Mr. Sayak Banerjee Introduction Before understanding the ‘internal aspect’ of rules, I think it is necessary to draw our attention to a hypothetical example that Prof. Hart uses in his book, The Concept of Law. Suppose in a society where there is an absolute monarch, who follows the Austinian way of governing people, through general…
“Theory of Justice” under the Indian and Pakistani Constitutions – A Comparative Analysis
Ms. Simran Sabharwal Abstract ‘The Theory of Justice’ by John Rawls postulates his central idea of justice using the doctrine of good and moral development. His philosophy is helping lawmakers to provide justice even today. The article will critically analyse the Rawlsian theory in the context of India and Pakistan. Both countries follow Rawls’ principle…
The Hart-Dworkin Debate: Round I-Part II: Exploring the sphere of discretion
Mr. Sayak Banerjee I. Introduction What fascinates me about this debate more than the “Fight of the Century” between Muhammad Ali and Joe Frazier, is that both the jurists argue on different propositions to assert their stance. This fight is not built on a single proposition to find wrong-doings, but the multitude of views…
The Hart-Dworkin Debate: Round I: Part I – Laying the Ground-Work
Mr. Sayak Banerjee I. Introduction With the perplexity of law and legal obligation that has enticed almost every legal philosopher for decades; the demand to contexualize for the betterment of understanding and to keep the jurisprudential discussions flowing has become increasingly important. Our earlier blog posts have dealt with Prof. H.L.A Hart’s theory in…
Aarogya Setu Mobile App: A Necessary Evil?
Ms. Shailja Rawal Abstract “The worst happens when you are least expecting it” While the world is busy dealing with the COVID – 19 pandemic, is it true that Indian Government is inventing ways to curb the fundamental rights of its citizens? One of the recent developments in this regard is launch of the mobile…
The Conflicting Jurisprudence of Facial Recognition Technology and Privacy in a Democratic Setup
Sanah Javed Abstract An advancement in technology has inevitably equipped the government with new surveillance mechanism, the most prominent one being the Facial Recognition Technology [FRT]. The unfettered advancement of the use of FRT by the State machineries in India has posed multiple privacy concerns. The FRT is in line with Jeremy Bentham’s panopticon prison;…
Freedom and security in a world with no off switch: A theoretical approach
Bodhisattwa Majumder & Atisha Sisodiya Abstract The outbreak of COVID has put profound philosophical questions to a test, a test between individual interest and the common good, a test between freedom of expression and control of the digital space and a test between individual privacy and digital security. This article presents a theoretical critique of…
SC’s verdict on free Covid-19 tests – from NITI to NYAYA
Ms. Jisha Garg & Ms. Anchal Bhatheja Abstract The order handed out by the supreme court regarding free Covid-19 tests on 8th April wherein it directed the private laboratories to provide free tests to all the citizens irrespective of their economic or social standing, was seen as a manifestation of judicial over-reach and was also…
Taking Dworkin seriously in the Corona era
Ms. Anchal Bhatheja Abstract In the wake of the coronavirus outbreak, many journalists have been hounded and hauled up for reporting facts and opinions which did not appeal to the government. In the given piece, I argue that the clamp down upon the media personnel, who are critical of the government, is not something Dworkin…
Understanding Property Rights in Human Biological Materials
Ms. Aparna Sojan Abstract One might naturally speak of ‘my body’ and infer that, because it is ‘my body’, I can determine what is done to it or its parts. So, a typical answer to the question as to “Do you own your body?” would be “Yes, I do own my body.” Unfortunately, this is…
Trust as Ownership: A Critical Evaluation
Mr. Rahul Kumar Abstract Trust is a very old but still a very peculiar concept in terms of ownership. Trust may create two or more owners of the same property with different capacities. Therefore, Salmond called Trust an instance of “dual” ownership, on the other hand, Fratcher called it a “split” ownership. However, subsequent authors…
Transgenders – Changing Laws and Perspective
Ms. Stuti Bhargava & Ms. Pallavi Diwakar Abstract The authors in this paper have attempted to give an overview of the laws that govern homosexuals and transgenders. The primary focus of the article has been on the judgment of the Madras High Court (Arun Kumar and Anr. v. The Inspector General of Registration) where the…
The clampdown in Kashmir and the ADM Jabalpur Verdict
Mr. Ritwik Sharma Abstract In this article, the author draws out a strange comparison between the current lockdown in Kashmir where citizens/political leaders have been detained and the dissenting judgment given by Justice HR Khanna in the ADM Jabalpur verdict. Moreover, the article highlights the importance of John Locke’s theory of natural rights and its…
Surrogacy Ban in India: An Utilitarian Perspective
Ms. Parina Muchhala Abstract The Lok Sabha recently passed the Surrogacy (Regulation) Bill, which banned commercial surrogacy due to prevalent misuse of the practice and the accruing health threats to surrogate mothers. Nevertheless, this ban has generated an uproar within Indian feminist groups and stakeholders as being an inherently discriminatory legislation violative of their fundamental…
Plato and Gender Equality: In Context of Sabarimala
-Mr. Ayush Mishra ABSTRACT This article aims to juxtapose the exclusion of women in Sabarimala with the ideals of gender equality (or lack thereof) in the works of Plato. Part I of the article would briefly highlight the social standing of women in the ancient Greek society and Plato’s portrayal of women in his initial…
Utilitarianism in the Context of Intellectual Property
Mr. Mohit Kar Abstract Jeremy Bentham is known as the founder of modern utilitarianism. He believed in production of the greatest possible quantity of happiness, on the part of those whose interest is in view. With regards to intellectual property, he had opined that inventors and authors should be given absolute privilege over their work,…
Legal Fiction
Mr. Sourish Roy Abstract “Legal fiction is a premise that is assumed to be true so as to enable the courts to apply certain legal principles to a given situation. The Court knows that it is not true or not exactly true but still goes forward on its basis; in order to press a legal…
The Libertarian Approach: Who owns us?
Mr. Vivek Punia Abstract This article explores the idea of ‘self-ownership’, the extent to which an individual can have autonomy over his mind, body and resources and the justifications given for taking away a portion of such liberty. INTRODUCTION Robert Nozick summed up the libertarian opposition to distributive justice in his book Anarchy, State and…
Legal Positivism and the need for judicial restraint
Mr. Ritwik Sharma Abstract In this article, the author puts forward the argument which supports the positivist school of thought while exercising judicial restraint. The article seeks to advocate the importance of the positivist school of thought in maintaining the independence of judiciary and how this school differs from the sociological school of thought. …
Gender biased laws: A stereotype in the guise of reform?
Ms. Arundhati Diljit Abstract There are many laws which are enacted purely for the protection of women. They may, on the face of it, appear to be aimed at achieving gender equality, however, a careful perusal of this reasoning behind such gender biased laws reveal that they may be in conflict with the liberal feminist…
RTI (Amendment) Bill, 2019 – A result of weak parliamentary scrutiny
Mr. Vaibhav Suppal Abstract Opposition plays a very vital role in the Parliamentary Democracy. The absolute majority of the BJP government in the Parliament has led to the legislation of several laws with arbitrary provisions in it. In this article, the author puts forward the worrisome situation of the Indian legislative system due to the…
Analyzing the Legality of Activities through the Fractals of Andrew Stumpff
Mr. Yazad Maneck Udwadia Abstract Andrew Morrison Stumpff in his 2013 writing, “Law is a Fractal – The Attempt to Anticipate Everything” has made an attempt to create and give a certain structure to all thoughts about legality. We see that there can be an endless amount of possibilities of interplay between laws and illegal…
Understanding Constitutional Identity: Away From A Fixed Identity And Towards A Dynamic Equilibrium
Mr. Karan Gupta Abstract In this article, the author argues, in response to Jacobsohn, that constitutional identity, though dialogical, need not be fixed. Important constitutional aspects emanate from distinct principles and tensions between them may be perpetuated, repudiating the claim that the constitution has a fixed identity and may be either militant or acquiescent. Jacobsohn advances a…
Can Law exist without Sanctions?
Mr. Advik Rijul Jha Abstract The role of sanctions in the enforcement of law has been discussed in this piece with the aid of Command theory put forth by Austin. Hart’s criticism of Austin’s work has been looked at and it has further been argued that laws cannot exist without sanctions. It is not necessary that sanctions…
Law as a Study of Norms
In the earlier articles, we discussed the position of law as per HLA Hart who believes that law is a combination of primary and secondary rules. However, this time we would be discussing a philosopher who has a completely different idea about what is law, thus we would be discussing Hans Kelsen’s views on law….
Law as Union of Primary & Secondary Rules
In the article titled ‘Hart’s concept of law’ we discussed the criticism of John Austin’s theory and the internal & external aspect of law given by HLA Hart. In this article, we’ll address the next part of Hart’s Concept of Law, first, what are Primary rules and Secondary rules and second, Law as a Union…
Practical Application of Bentham’s Utilitarianism
Utilitarianism is based upon the idea that all humans are governed by two sovereign masters-pleasure and pain. The theory is descriptive as well as prescriptive in nature. On one hand, it describes how actions of human beings are aimed towards maximising the pleasure and minimising the pain, and on other it prescribes or advocates…
Theory of Utilitarianism
One of the theories in jurisprudence that takes into account the inherent nature of human beings is the theory of Utilitarianism proposed by Jeremy Bentham. He was an English philosopher, economist and theoretical jurist born in 1748. He says that all humans are governed by two sovereign masters – pleasure and pain. Thus, all human…
Hart’s Concept of Law
HLA Hart (1907–1992), was a Professor of Jurisprudence at Oxford University (1952–1968). He was a leading figure who revived interest in the philosophy of law. In his leading work ‘The Concept of Law’ (1961) Hart sets out his positivist approach to investigating the phenomenon of law. In ‘The Concept of Law’ Hart analyses the relation…
John Austin’s Theory in the Indian Legal System
In our last post, we discussed legal positivism from the perspective of John Austin, who said that the conception of law can be understood as the command of a sovereign backed by sanction.There are primarily two kinds of authority in Austin’s theory: the authority of God and the authority of the political superior. The political…
John Austin’s Command Theory of Law
Before proceeding to the discussion of more complex and nuanced concepts of legal theory, the first question we must ask ourselves is, “What is law?”. Even though this seems like a simple question, there is no one answer to this question and no one theory that holds universal appeal and application. We believe that the…
Introduction to Legal Theory
One of the most fundamental issues in the practice and study of law is largely concerned with the ability of law to address the most profound open ended questions, for instance, conception of morality, justice, rights etc. The blog, as its name suggests, aspires to present a picture of such discussions, free from any social…
The Original Position 