Positivism:

The notion of law as a command lies at the heart of classical legal positivism. The
term ‘positivism’ derives from the Latin positum, which refers to the law as it is laid
down or posited. Broadly speaking, the core of legal positivism is the view that the
validity of any law can be traced to an objectively verifiable source. The highest
common factor among legal positivists is that the law as laid down should be kept
separate – for the purpose of study and analysis – from the law as it ought morally to
be. In other words, that a clear distinction must be drawn between ‘ought’ (that
which is morally desirable) and ‘is’ (that which actually exists). But it does not follow
from this that a legal positivist is indifferent to moral questions. Most legal positivists
criticize the law and propose means to reform it. This normally involves moral
judgements. But positivists do share the view that the most effective method of
analyzing and understanding law involves suspending moral judgement until it is
established what it is we are seeking to elucidate.

Austin
The central feature of Austin’s map of the province of jurisprudence is the notion of
law as a command of the sovereign. Anything that is not a command is not law.
Austin’s insistence on law as commands requires him to exclude customary,
constitutional, and public international law from the field of jurisprudence. This is
because no specific sovereign can be identified as the author of their rules. The
relationship between commands and sanctions is no less important for Austin.
Indeed, his very concept of a command includes the probability that a sanction will
follow failure to obey the command. But what is a sanction? Austin defines it as some
harm, pain, or evil that is conditional upon the failure of a person to comply with the
wishes of the sovereign. There must be a realistic probability that it will be inflicted
upon anyone who infringes a command. There need only be the threat of the
possibility of a minimal harm, pain, or evil, but unless a sanction is likely to follow,
the mere expression of a wish is not a command. Obligations are therefore defined in
terms of sanctions: this is a central tenet of Austin’s imperative theory. The
likelihood of a sanction is always uncertain, but Austin is driven to the rather
unsatisfactory position that a sanction consists of ‘the smallest chance of incurring
the smallest evil’.
 Hart
Hart’s positivism is a far cry from the largely coercive picture of law painted by
Bentham and Austin. Hart conceives of law as a social phenomenon that can be
understood only by describing the actual social practices of a community. In order
for it to survive as a community, Hart argues, there need to be certain fundamental
rules. His disagreement with Austin’s theory is that in his idea law is more than the
decree of a gunman: a command backed by a sanction. The nucleus of Hart’s theory
is the existence of fundamental rules accepted by officials as stipulating procedures
by which the law is enacted. The most important of these he calls the rule of
recognition which is the fundamental constitutional rule of a legal system,
acknowledged by those officials who administer the law as specifying the conditions
or criteria of validity which certify whether or not a rule is indeed a rule.

Law, in Hart’s analysis, is a system of rules. His argument is as follows: All societies
have social rules. These include rules relating to morals, games, etc., as well as
obligation rules that impose duties or obligations. The latter may be divided into
moral rules and legal rules (or law). As a result of our human limitations, mentioned
above, there is a necessity for obligation rules in all societies. Legal rules are divisible
into primary rules and secondary rules. The former proscribes the use of violence,
theft, and deception to which human beings are tempted but which they must
normally repress if they are to coexist in close proximity. The rules of primitive
societies are normally restricted to these primary rules imposing obligations. But as a
society becomes more complex, there is obviously a need to change the primary
rules, to adjudicate on breaches of them, and to identify which rules are actually
obligation rules. These three requirements are satisfied in each case in modern
societies by the introduction of three sorts of secondary rules: rules of change,
adjudication, and recognition. Unlike primary rules, the first two of these secondary
rules do not generally impose duties, but usually confer power.

To grasp the nature of rules we must examine them from the point of view of those
who experience them, or who pass judgement on them. He also employs the concept
of a ‘rule’ to distinguish between ‘being obliged’ and ‘having an obligation’. When a
gunman says, ‘Your money or your life?’ you are obliged to obey, but, says Hart, you
have no obligation to do so – because no rule imposes an obligation on you.

Natural Law Theory (NLT)

The main claim of NLT, put simply, is that what naturally is, ought to be. NLT is a
moral and ethical framework grounded in the belief that there exist inherent and
unchanging principles of morality that are accessible through reason and
observation. At its core, this theory asserts that these universal moral principles are
derived from the fundamental nature of reality and human beings themselves. It
posits that human nature carries with it certain essential purposes and functions, and
ethical actions are those that align with these inherent aims. Natural law theorists
argue that these principles are not contingent on societal norms, cultural values, or
legal systems, but instead reflect a higher, objective moral order. As a result, NLT
emphasizes the existence of objective moral truths and contends that human-made
laws should be consistent with these principles to be considered just and legitimate.
This framework has been a cornerstone of moral philosophy, informing discussions
on human rights, ethics, politics, and legal systems by offering a rational and
universal basis for evaluating moral choices and societal structures.

Most early conceptions of the NLT were grounded in religion (because morality was
largely dictated by religious proprietary). Fuller developed a secular natural law
approach that regards law as having an ‘inner morality’. By this he means that a legal
system has the specific purpose of ‘subjecting human conduct to the governance of
rules. It follows that in this purposive enterprise there is a necessary connection
between law and morality. Ill-fated King Rex bites the dust because he disregards
Fuller’s eight principles: 1. Generality 2. Promulgation 3. Non-retroactivity 4. Clarity
5. Non-contradiction 6. Possibility of compliance 7. Constancy 8. Congruence
between declared rule and official action. Fuller concludes that where a system does
not conform to any one of these principles, or fails substantially in respect of several,
it could not be said that ‘law’ existed in that community. But, though he insists that
these eight principles are moral, they appear to be essentially procedural guides to
effective lawmaking. Some, however, would argue that they implicitly establish
fairness between the government and the governed and therefore exclude evil
regimes. The general view, however, is that compliance with Fuller’s eight
‘desiderata’ certifies only that the legal system functions effectively, and hence, since
this cannot be a moral criterion, an evil regime might just as easily satisfy the test.
Indeed, it is arguable that, in pursuit of efficacy, a wicked legal system might actually
seek to fulfil Fuller’s principles. Certainly, the rulers of apartheid South Africa sought
to comply with procedural niceties when enacting and implementing its obnoxious
laws.

Realism
Legal realism is a jurisprudential movement that emerged in the early 20th century
as a reaction against traditional formalism in law. Legal realists rejected the notion
that legal rules and decisions are solely determined by abstract principles and logic.
Instead, they argued that the law is influenced by various extra-legal factors,
including social, economic, psychological, and political considerations. Legal realists
sought to understand law as it operates in practice, acknowledging that judges'
decisions are often influenced by personal biases, social context, and practical
concerns. This perspective revolutionized the study of law by emphasizing the
importance of understanding the human element in legal decision-making and
challenging the idea of an entirely objective and detached legal system.

Karl Llewellyn
His theory of realism focused on understanding the way law functions in the real
world, acknowledging the complex interplay of social dynamics, human behaviour,
and legal rules. Llewellyn emphasized the concept of "law in action" over "law on the
books." He argued that the effectiveness and impact of legal rules should be
evaluated based on how they are applied and interpreted in actual cases, rather than
relying solely on theoretical legal principles. Llewellyn posited that in many cases
reaching the appellate review level, the law remains uncertain because established
legal sources like statutes, precedents, and constitutions fail to definitively support a
single decision. This uncertainty arises from conflicting yet equally valid interpretive
principles for these sources, allowing the same legal reference to be construed in
multiple ways. For instance, Llewellyn illustrated that U.S. courts had endorsed
opposing principles of statutory construction: "A statute cannot go beyond its text"
and "To effect its purpose, a statute may be implemented beyond its text."
Consequently, when confronted with a question of statutory interpretation, a court
could reasonably employ either principle, leading to divergent interpretations of the
statute's meaning. The core query posed by realists in such instances was: Why did
the judge arrive at a particular conclusion when legal principles did not necessitate
it? Llewellyn extended a similar argument to contrasting yet equally valid methods of
interpreting precedent, labelling them the "strict" and "loose" views. Llewellyn
contended that judges typically possess the latitude to characterize an earlier case's
decision either in a highly context-specific manner to differentiate it from the current
case or in a way that abstracts from its unique facts to establish binding precedent.
Hence, Llewellyn asserted that judges are never truly confined by precedent.

Nevertheless, akin to other American realists, Llewellyn maintained that judicial

decisions exhibit discernible patterns, albeit not those anticipated solely from
existing legal rules. Focusing on business law disputes, Llewellyn argued that judges
in such cases essentially seek to uphold unwritten but prevailing norms of the
commercial culture relevant to the dispute. In a well-known example, Llewellyn
identified a series of New York cases where courts had applied the rule that rejecting
a seller's shipment while specifying objections waives other objections. Llewellyn
noted that the rule had been rigorously applied in these cases, seemingly unfairly,
given potential buyer ignorance or insurmountable defects. However, Llewellyn's
scrutiny of underlying facts revealed that the market had turned unfavourable, and
buyers were attempting to void the contract. Judges, being attuned to "commerce or
decency," applied the unrelated rejection rule to thwart buyers' contract-escaping
endeavours. Thus, the court's seemingly severe enforcement of the rejection rule
upheld the commercial norm, signifying buyers' commitment despite market
fluctuations. Llewellyn asserted that these "background facts" and situational aspects
shape the course of such decisions.

Llewellyn and the legal realists' focus on nonlegal factors in judicial decision-making
instigated a multidisciplinary shift in American legal education, highlighting the
necessity for lawyers to engage with the social sciences in comprehending legal
evolution and judicial behaviour. Contemporary political science literature on law
and the courts draws inspiration from realism, explaining decisions not merely
through legal rationale (deemed indeterminate) but by considering judges' politics,
background, and ideology. Law. His ideas have had a lasting impact on legal
scholarship, influencing the way lawyers, judges, and scholars approach the study
and practice of law.

Critical Legal Studies

 Criticizes the perception of law as separate from social/political phenomena and

the values of judges.
 States that such a perception comes from various characteristics of the legal
system itself (seen as objective, emphasis on precedent and statute (law is pre-
existing on a legal issue, etc). Law’s ability to determine cases based on objective
hearing and routine application of pre-existing law is formulated within an
idealized model.
 CLS (in the same vein as realists) questions this objective nature and observes that
practically both personal and social/political considerations play a significant part
in legal outcomes.
 Such a divorce from “external” values also becomes problematic as debate over the
goodness of a legal system becomes primarily concerned with deviations from the
idealized model as opposed to the actual substance of law/legal decisions.
 Political democracy cannot last without substantiation by social democracy. Social
democracy puts emphasis on the principles of liberty, equality and fraternity as
inherently inter-connected and interdependent values. Equality in terms of
political rights cannot be achieved while social inequity persists.
 No structure of representative democracy can assert representation of its people in
the political sphere when the voices of the minority are systemically suppressed.
 Since the actual working of law is profoundly conditioned by social life, the legal
system has to actively work to empower marginalized communities through state
apparatus (like reservations in the Indian Constitution) to provide equal access.
 Mere formalistic structure (like the presence of a constitution) cannot guarantee
democracy, in fact it has no value without working towards social transformation.
 Is law necessary to human society at all?
 While anarchism is usually associated with chaos, it’s rejection of social order can
also translate into a rejection of a centralized hierarchical authority. Anarchists
usually see the state as an obstacle to radical individualism or as an actively
violent instrument of oppression.
Feminist Theory

 Feminists state that both jurisprudence and law are highly gendered because they
are all made by men within the context of a certain social privilege.
 Feminist theory also asserts that law is not neutral. It retains the values of the
lawmakers (a position largely enjoyed and accessed by privileged men). Since it
retains their values, it promotes their goals which is often accompanied by
overt/covert subordination of women and other marginalized groups.
 The values of these men then become the values of the law. Values held by women
and other groups are trivialized and seen as secondary.
 In the same vein, ideologies that assert that law has a certain set definition or that
it is neutral/objective in some manner reinforce the law’s oppression. Imposing
such neutrality on a law privileging the male class immediately grants it the status
of legal truth while outlying experiences are seen as “external.”
 Feminists also problematize the concept of legal knowledge when knowledge
production is facilitated by male values. Knowledge production by other groups
becomes non-legal and, hence, a victim to legal privileging.
 They talk of how law can look different to different groups of people. People who
benefit from the law see it as objective, others see it as an instrument of
oppression.
 Law gains power through a claim to truth (objective nature), when you assert your
contents as true, you are also asserting other knowledge as invalid or secondary at
best.
 Law also gains power from being seen as a unified field divorced from social order.
It is able to ignore the struggle for rights and poise itself as something that can
give/take away rights without any external pressure or consideration.

Critical Race Theory

 The objective is to understand how a regime of white supremacy has been created
and maintained (especially through the subordination of people of colour).
 Understand how legal ideals like rule of law/equal protection interact with such a
social structure.
 Not only gain such an understanding, but also change the system.
 Like CLS, CRT also believes that legal scholarship can never be objective or
neutral. Scholarship on race cannot be written from an “external” position,
divorced from racial realities and dynamics.
 Thus, legal scholarship, which is often times is a source of formal knowledge
production, becomes necessarily political.
 Race is a social construction in terms of its existence. However, when it becomes a
ground for domination and violence, it becomes a tangible and brutal reality.
 Race is a manner of organizing such violence and facilitating such dominance.
Such discrimination doesn’t just materialize in hate-fuelled exceptional crimes but
is also systemically ingrained in the legal system as well as opinions/ideas.
 Political democracy cannot last without substantiation by social democracy. Social
democracy puts emphasis on the principles of liberty, equality and fraternity as
inherently inter-connected and interdependent values. Equality in terms of
political rights cannot be achieved while social inequity persists.
 No structure of representative democracy can assert representation of its people in
the political sphere when the voices of the minority are systemically supressed.
 Since the actual working of law is profoundly conditioned by social life, the legal
system has to actively work to empower marginalized communities through state
apparatus (like reservations in the Indian Constitution) to provide equal access.
 Mere formalistic structure (like the presence of a constitution) cannot guarantee
democracy, in fact it has no value without working towards social transformation.

Queer Theory

 Queer theory tries to question (primarily sexual) categories of law that have
historically appeared invariant.
 The public/private divide is a social construction used conveniently by the State to
justify intervention in some areas while justifying inaction in other areas.
 The private sphere can become a safe space symbolizing sexual autonomy to queer
theorists. The non-interference of law, though an unstable form of protection,
provides some security from institutional discrimination and violence.
 However, the restriction of queer identities to the private sphere can also become
a form of exclusion for these communities. Any guarantee as to this privacy also
necessarily requires an acknowledgement in the public sphere.
 While some theorists see fluidity of gender and sexuality in fixed, definable terms,
such determination still happens within the bounds of socially-constructed
identity claims.
 Others state that an unconstraint notion of fluidity is more authentic to its spirit.
It captures the primacy of the individual and their freedom of choice.
 By rejecting entirely, the boundaries of gender, fluidity escapes the problems of
gender rules and boundaries.
 Such theorists also see identity itself as an oppressive category. The social
pressures of fitting one-self into any one label is extremely damaging to self-
expression. Usually, to fit into the label, they have to adopt the socially-accepted
rules of that gender. Further, publicly available categories of gender usually fail to
capture the incredibly complex experiences of most queer individuals.
 Queer theorists arguing against the rejection of such identity assert that by simply
realizing that gender is a social construct does not relieve the community of the
pressures of gendering.