Legal Theory
LL.M. · 12 topics in 5 units
Unit I 3 topics
- Natural law from the Greeks to KantHow the idea of a higher law moved from Greek nature and Stoic reason through Roman jus gentium, the Hebrew covenant and Aquinas to Grotius, the social-contract writers and Kant, and why it declined in the nineteenth century.9 min
- The revival of natural law: Stammler, Radbruch, Fuller, Finnis, Rawls and NozickWhy natural law came back in the twentieth century, how Fuller's procedural inner morality of law differs from classical natural law, the Hart-Fuller debate, Finnis's basic goods, and Rawls and Nozick on justice, with the Indian constitutional echoes.8 min
- Dharma and Indian legal thought, ancient and modernDharma as the Indian idea of a higher law, its sources and the king's subjection to it, the Arthashastra's realism, and the modern line from Gandhi and Ambedkar to Sarvodaya, Baxi and Galanter, with the Supreme Court's use of constitutional morality.6 min
Unit II 3 topics
- Bentham and Austin: utility, command and the birth of analytical positivismBentham's principle of utility, his censorial jurisprudence and theory of law, Austin's command theory and its military flavour, and the standard criticisms from Maine, Hart and the sociologists, with the Indian sovereignty question.6 min
- Kelsen's pure theory of law and the GrundnormWhy Kelsen purified law of politics and sociology, the norm as an ought, the hierarchy of norms and the basic norm, efficacy and revolution in the Dosso, Matovu, Madzimbamuto and Asma Jilani cases, monism in international law, and the Indian basic-structure debate.6 min
- Hart's Concept of Law and Dworkin's challengeHart's critique of Austin, primary and secondary rules, the rule of recognition and the internal point of view, open texture and discretion; Dworkin's rules and principles, Hercules, law as integrity and the one right answer; and the inclusive and exclusive positivist replies.6 min
Unit III 2 topics
- The historical and anthropological school: Savigny, Puchta, Hegel, Maine and GierkeLaw found not made: Savigny's Volksgeist and the codification controversy, Puchta's refinements, Hegel's historical spirit, Maine's status to contract and the stages of legal development, Gierke's real personality of groups, and the school's place in Indian personal law.6 min
- Marxist and economic theories of law: Marx and Engels to GorbachevBase and superstructure, law as class instrument, the withering away of the State, Lenin, Pashukanis's commodity-exchange theory, Stalin and Vyshinsky's socialist legality, Tito's self-management, Mao, Gorbachev's law-based state, Renner and the critical legacy, and Marxist ideas in the Indian Constitution.6 min
Unit IV 2 topics
- The sociological school: Montesquieu, Ihering, Ehrlich and DuguitLaw as a social fact: Montesquieu and Comte as precursors, Bentham's social utility, Ihering's purpose and interests, Ehrlich's living law, Duguit's social solidarity as the test of validity, and the Indian perspective on sociological jurisprudence.7 min
- Roscoe Pound: social engineering and the theory of interestsPound's attack on mechanical jurisprudence, law in books and law in action, law as social engineering, the classification of individual, public and social interests, the jural postulates, and how Indian courts have used the idea, with the standard criticisms.6 min
Unit V 2 topics
- Legal realism: American and ScandinavianHolmes and the prediction theory, Gray, Llewellyn's rule-scepticism, Frank's fact-scepticism, why American realism combines analytical positivism and sociological jurisprudence, the Scandinavian realists Hagerstrom, Olivecrona, Lundstedt and Ross, the differences between the two, and realism's influence on the Indian judiciary.6 min
- Critical legal studies, feminist jurisprudence and critical race theoryThe heirs of realism and Marxism: indeterminacy and law as politics in CLS, liberal, radical, cultural and postmodern feminism, intersectionality and critical race theory, post-modernism, and how these ideas appear in Indian equality jurisprudence from Mathura to Joseph Shine.5 min