LAWCC-514
LAW AND JUSTICE IN A GLOBALIZING
WORLD
APPROACH OF VARIOUS
THEORIES OF LAW
Submitted by:
G S Gokul
Ist Sem LLM
Department of Law
University of Kerala,
Kariavattom Campus
1|Page
INDEX
Content pg
Introduction 3
The Natural Law Theory 3
Hans Kelsen's Pure Theory of Law 4
Kelsen's Critique of Natural Law 5
Legal Realism 6
Gandhism 7
The Concept of Sarvodaya 8
Marxism 9
Naxalism 10
Conclusion 11
Bibliography 11
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INTRODUCTION
"At various times and places, jurists have made their approaches to the study of law from
different angles. They have defined law, determined its sources and nature and discussed its
purpose and ends. For the sake of clarity and convenience in understanding their points of view,
the jurists are divided into different schools on the basis of their approaches to law. It is not
denied that any such division may not be comprehensive or exact. There may be jurists who
may not fall within the strict bounds of any one school. Some of the schools may be merely a
synthesis of tow approaches. However, in spite of all this, the division is helpful in
understanding the evolution of legal philosophy."1
THE NATURAL LAW THEORY
"A theory of Natural law claims to be able to identify conditions and principles of practical
right-mindedness, of good and proper order among persons, and in individual conduct."2
Natural law is a concept that has shaped the foundations of legal and moral philosophy
throughout history. Its origins can be traced back to ancient Greece, and it has had a profound
influence on legal thought, especially during the Middle Ages. We can also find Natural justice
principles, rooted in natural law, ensure procedural fairness. They include impartiality (nemo
iudex in causa sua), hearing both sides (audi alteram partem), ruling without bias, and a fair,
public hearing. Decision-makers must base their judgments on relevant, reliable evidence.
These principles uphold due process, preventing arbitrary or unfair actions by courts and
administrative bodies. They safeguard individual rights and ensure equitable legal proceedings,
underlining the idea that universal moral and legal principles should guide fair treatment and
justice in various legal systems.
In ancient Greece, thinkers like Socrates and Plato laid the groundwork for natural law by
positing the existence of universal, unchanging moral principles that transcended human-made
laws. Aristotle further developed these ideas, emphasizing that a just society must align its laws
with the natural order to achieve the highest good.
During the Middle Ages, the Christian church played a significant role in advancing natural
law theory. Theologians like Thomas Aquinas synthesized Christian doctrine with Aristotle's
ideas, arguing that natural law was divinely ordained and that human laws should adhere to it.
This perspective greatly influenced medieval jurisprudence.
1
V D Mahajan, Jurisprudence and Legal Theory, 437 (5th ed. 1987) (Rep- 2018)
2
John Finnis, Natural Law and Natural Rights, 18 (2nd Ed. 2011)
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However, the decline of natural law occurred during the Enlightenment as social contract
theories gained prominence. Thinkers like Thomas Hobbes and John Locke argued that
individuals voluntarily entered into a social contract to form governments, which derived their
legitimacy from the consent of the governed. This approach shifted the focus from inherent,
universal moral principles to the authority of positive law created by society.
In English law, the decline of natural law corresponded with the rise of legal positivism. Legal
scholars like Jeremy Bentham and John Austin argued that the validity of a law depended solely
on its enactment by a recognized authority. This marked a departure from the natural law
tradition and placed the state's will at the core of legal legitimacy.
In American jurisprudence, natural law principles have had a lasting impact, especially on the
interpretation of the U.S. Constitution. The framers of the Constitution were influenced by the
natural law tradition, recognizing inalienable rights and the importance of limiting government
power to protect individual freedoms. This constitutional framework reflects the enduring
influence of natural law on American legal and political thought.
In recent times, there has been a revival of natural law theories. Some philosophers argue that
natural law is essential in addressing contemporary moral and legal dilemmas. They contend
that universal moral principles can provide a foundation for ethical decision-making and are
necessary to navigate complex ethical questions in an increasingly interconnected world.
In conclusion, natural law has a rich history that extends from ancient Greece through the
Middle Ages to modern legal and philosophical thought. While it declined in prominence
during the Enlightenment, it remains a fundamental influence on American jurisprudence and
has experienced a resurgence in contemporary discussions about ethics and law. Natural law
continues to play a vital role in shaping our understanding of justice and moral principles in
legal systems worldwide.3
HANS KELSEN'S PURE THEORY OF LAW
Hans Kelsen's Pure Theory of Law sought to establish a comprehensive and systematic
framework for understanding law that was free from subjective judgments and external moral
considerations. It aimed to provide a "pure" and objective analysis of law as a self-contained,
normative system.
Kelsen argued that law consists of norms or rules that prescribe behavior and assign
consequences. These norms form a hierarchical structure, with a basic norm (Grundnorm) at
the apex, providing validity to all other norms within a legal system. The Grundnorm is a
hypothetical postulate, not empirically verifiable but necessary for the coherence of the legal
system. Kelsen introduced the concept of the Grundnorm to explain the hierarchy of norms.
Norms are interconnected, and their validity is derived from higher norms. This hierarchical
structure ensures the internal consistency of a legal system.
3
Ref- V D Mahajan, Jurisprudence and Legal Theory, 595 – 617 (5th ed. 1987) (Rep- 2018)
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Kelsen emphasized the importance of separating legal science from other disciplines, such as
ethics, sociology, or psychology. He argued that understanding the law should not be tainted
by subjective moral judgments or empirical analysis. Hence making the discipline to be pure.4
Pure Theory of Law represented a significant advancement from John Austin's earlier
positivist ideas. Austin's legal positivism, known as the "command theory," posited that laws
are commands issued by a sovereign authority backed by the threat of sanctions. Kelsen's
theory improved upon Austin's in several ways:
• Hierarchy of Norms: While Austin's theory did not account for the hierarchy of norms,
Kelsen introduced this concept in his Pure Theory of Law. It addressed the question of
what happens when there is a conflict between different legal rules, providing a more
comprehensive framework for understanding legal systems.
• Grundnorm: Kelsen's introduction of the Grundnorm went beyond Austin's concept of
a sovereign's command. It allowed for the understanding of law in a more complex and
interrelated manner, demonstrating the interconnectedness of legal norms.
• Objectivity: Kelsen's insistence on objectivity and the separation of law from morality
was a notable improvement upon Austin's theory, which did not distinguish law from
moral judgments. Kelsen's approach sought to create a more scientific and value-neutral
analysis of law.
• Comprehensive System: Kelsen's Pure Theory aimed to provide a systematic and
comprehensive account of legal systems, emphasizing their coherence and structure.
Austin's theory, on the other hand, was more limited in scope.
Hans Kelsen's Pure Theory of Law represents a significant improvement upon John Austin's
legal positivism by introducing the concept of the Grundnorm, a hierarchy of norms, and a
commitment to objectivity. Kelsen's work has had a lasting influence on legal philosophy,
providing a foundation for the study of legal systems and their internal structure, and offering
valuable insights into the nature of law itself.5
Kelsen's Critique of Natural Law
Kelsen contended that natural law theories lacked scientific rigor and were rooted in
metaphysical assumptions. He argued that natural law proponents made claims about law's
inherent moral foundations without providing empirical evidence to substantiate these
assertions. In contrast, Kelsen advocated for a scientific, value-neutral approach to law that
relies on observable, objective facts rather than subjective moral principles. Natural law
theories often involve moral principles that are open to interpretation and subject to individual
beliefs and values. Kelsen criticized this subjectivity, as it could lead to inconsistencies and
conflicts in legal applications. He favored a legal framework that is precise and free from moral
ambiguity to ensure the predictability and consistency of legal norms.
Kelsen's emphasis on the potential for conflicts among values, the religious and cultural biases
inherent in natural law theories, and the failure to maintain a clear separation between law and
morality constituted some of his fundamental criticisms. He advocated for a more positivist,
scientific, and value-neutral approach to legal theory, emphasizing the need for a secular,
4
Dr. Rega Surya Rao, Jurisprudence and Legal Theory, 203 – 205 (1st ed – 2019)
5
Ref- V D Mahajan, Jurisprudence and Legal Theory, 471 – 482 (5th ed. 1987) (Rep- 2018)
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internally coherent legal system. The debate between natural law and legal positivism remains
a fundamental discussion in contemporary legal philosophy and jurisprudence, with Kelsen's
criticisms playing a significant role in shaping these ongoing discussions.6
LEGAL REALISM
This concept emerged in the 20th century, challenges the traditional notions of law by positing
that it is not merely a set of objective principles but a reflection of societal, economic, and
political factors. This perspective arose in response to the profound social and political changes
of the time, including the industrial revolution, urbanization, and World War I. Legal scholars
such as Oliver Wendell Holmes Jr., Jerome Frank, and Karl Llewellyn were central figures in
the development and promotion of legal realism.
One of the core tenets of legal realism is the assertion that law cannot be divorced from the
societal context in which it operates. Rather than a detached set of principles, it is a product of
human behaviour and is profoundly influenced by the dynamics of society. Legal realists
propose a predictive theory of law, contending that judges often make decisions influenced by
personal values, social and political factors, and practical considerations, rather than adhering
strictly to legal precedent or statutes. This means that the outcome of a legal case is not solely
determined by precedent or statutes but can be influenced by subjective factors.
American Legal Realism: American legal realism had a profound impact on the U.S. legal
system and is often associated with jurists like Oliver Wendell Holmes, Jr., Jerome Frank, and
Thurman Arnold.
• Oliver Wendell Holmes, Jr.: Justice Holmes is one of the most iconic figures in
American legal realism. He famously remarked that "the life of the law has not been
logic; it has been experience." Holmes argued that legal decisions should be based on
the pragmatic consequences of actions rather than abstract principles. He recognized
the influence of societal norms, economic factors, and human behavior on judicial
decision-making.
• Jerome Frank: Jerome Frank expanded on the ideas of Holmes by emphasizing the role
of psychology and the uncertainty of legal decision-making. He argued that judges often
rely on psychological factors and personal biases when interpreting the law. His work,
"Law and the Modern Mind," explored the human element in legal judgments.
• Thurman Arnold: Arnold, a leading figure in the field of antitrust law, emphasized the
social and economic context of legal decisions. He argued that judges should consider
the broader social consequences of their decisions and the potential impact on business
and society.
6
Ref- Pierluigi Chiassoni, Kelsen on Natural Law Theory:An Enduring Critical Affair, Law Logic and Morality 23
(2014)
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Scandinavian Legal Realism: Scandinavian legal realism, often associated with scholars like
Alf Ross, Axel Hägerström, and Karl Olivecrona, offers a distinct perspective on legal theory.
• Alf Ross: Ross is known for his "On Law and Justice" (1956), in which he introduced
a new approach to legal positivism. He emphasized that law should be viewed as a
social phenomenon rather than a product of moral or ethical considerations. Ross's work
focused on the empirical analysis of legal concepts and their practical implications.
• Karl Olivecrona: Olivecrona argued that the role of the legal theorist should be purely
descriptive, examining the actual functioning of the legal system without introducing
moral judgments. He advocated for the separation of law from morality, advocating a
more scientific and value-neutral approach to legal analysis.
• Axel Hägerström: Hägerström was a pioneer in the Scandinavian legal realist
movement. He rejected the idea of natural law and argued that legal concepts were
devoid of moral content. His work emphasized the importance of studying law as a
sociological and empirical phenomenon.
In challenging the prevailing formalistic approach to law, legal realism rejects the idea that law
can be reduced to a rigid set of rules devoid of real-world complexities. It advocates for an
empirical approach, which emphasizes the importance of empirical research to analyze legal
decisions, judicial behavior, and the societal effects of legal rules. Legal realism's impact
persists in contemporary legal thought, influencing critical legal studies, judicial decision-
making analysis, law and economics, and fostering a more holistic legal education. While legal
realism remains a subject of debate and criticism, its enduring legacy continues to shape the
evolution of jurisprudence by encouraging critical analysis and empirical research.7
GANDHISM
Gandhism, as a theory of law in international political science, centers on Mahatma Gandhi's
principles of nonviolence (Ahimsa), truth, social justice, and self-reliance. This philosophy
advocates for the application of these principles in the realm of international law and global
politics.
At its core, Gandhism encourages nonviolent means of conflict resolution in international
relations. It challenges the conventional approach of using military force and coercion and
instead promotes dialogue, diplomacy, and negotiation. This resonates with international legal
principles that advocate for the peaceful settlement of disputes and the avoidance of armed
conflict.
Gandhism's emphasis on truth and morality aligns with the ethical underpinnings of
international law. It underscores the importance of upholding human rights, promoting justice,
and respecting the sovereignty of nations.
7
Ref- V D Mahajan, Jurisprudence and Legal Theory, 563 – 593 (5th ed. 1987) (Rep- 2018)
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Moreover, the idea of self-reliance and sustainability in Gandhism corresponds to the concept
of sovereignty in international law, emphasizing that nations should have the autonomy to
make decisions in their own best interests.
In international political science, Gandhism serves as a moral and ethical framework,
influencing discussions on peace, justice, and diplomacy in the global arena. It advocates for a
world where nations adhere to nonviolence, uphold truth, and work collectively for the well-
being and welfare of all, thus fostering a more just and peaceful international legal order.8
A Gandhian Constitution was suggested as an alternative in the place of the current one where
the core idea was "basing the Constitution on the village and tis panchayat and erecting upon
them a super structure of indirect, decentralized government in the Gandhian manner."9 Based
on this concepts S. N. Agarwal drafted a Gandhian Constitution For Free India where he
"based his work on the well-known Gandhian principle that 'violence logically leads to
centralization: the essence of non-violence is decentralization."10 However at the end of the
day a parliamentary, federal constitution was incorporated.
Looking from the penal angle Gandhi suggested reformative theory to incorporated instead of
the traditional forms of punishments. "This theory says that 'punishment should be used as a
measure to reclaim the offender and not to torture or harass him. The aim of this theory is to
reform the criminals.”11
The concept of Sarvodaya
"'Sarvodya' is a Sanskrit word which is comprised of two terms – 'Sarva' which means all and
'udaya' which means rising. Thus the etymological meaning of Sarvodaya is the rising of all.
This all includes all living beings. Sarvodaya is a coinage of Gandian thought." 12 ”It may be
called Gandhian socialism based on the Indian values of spiritualism."13
"According to Vinoba Bhave, the term Sarvodaya commands two-fold meaning. In one sense,
Sarvodaya means making all happy by removing suffering and poverty with the help of
scientific knowledge. In another sense, establishing a world state full with divinity, kindness
and equality is called Sarvodaya."14
This principle embodies a comprehensive socio-political and economic philosophy. In its social
dimension, Sarvodaya champions the community as the core unit, emphasizing collective
decision-making and harmony among diverse groups. It seeks to uplift the marginalized,
fostering social equality and the reduction of disparities.
8
Refer- J C Johari, Principles of Modern Political Science, 637 (2nd ed-2009)(Rep-2018)
9
Granville Austin, the Indian Constitution-Cornerstone of a Nation, 34 (1st ed- 1972) (Re-2022)
10
Granville Austin, the Indian Constitution-Cornerstone of a Nation, 37 (1st ed- 1972) (Re-2022)
11
Dr. Rega Surya Rao, Criminology, penology and Victimology, 82 (1st ed- 2021)
12
Anil Dutta Mishra, Fundamentals of Gandhism, 5 ( 1st ed-1995)
13
J C Johari, Principles of Modern Political Science, 637 (2nd ed-2009) (Rep-2018)
14
Anil Dutta Mishra, Fundamentals of Gandhism, 5-6 ( 1st ed-1995)
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On the political front, Sarvodaya promotes decentralized governance and participatory
democracy, empowering local communities to self-govern and make decisions in their best
interests. Elected representatives are expected to be accountable to their constituents.
Economically, Sarvodaya advocates for self-sufficiency at the local level, encouraging the use
of local resources and the development of small-scale industries. Equitable resource
distribution and sustainable development are central tenets. This philosophy supports a frugal
and environmentally conscious way of life, discouraging excessive consumerism.
" Gandhian Sarvodaya aims not at the rise of the few or the many, or for that matter the rise of
the greatest number. It is not utilitarianism which stands for the greatest good of the greates
number. Thus, it contains the germ of minority and majority. Sarvodaya as against
utilitarianism, stands for the good of one and all, of the high and the low, of strong and weak,
the intelligent as well as the dull. To Vinobaji, 'the idea of Sarvodaya, as preached by the Gita
is to merge oneself in the good of all."15 "For Gandhi means determine the end. He says, 'As
the means so the end. Means are as important as the ends." 16
Sarvodaya's overarching goal is to create a society where individuals coexist peacefully, are
politically engaged, and economically self-reliant, with a focus on social justice and welfare
for all. Rooted in Gandhian principles, Sarvodaya's influence extends to movements seeking
social and economic justice worldwide.
MARXISM
"Marxism is a variety of socialism given by Karl Marx in which the role of his friend and
collaborator Fredrick Engels has its own place. Known as Marxism, it appeared as a merciless
criticism of all forms of socialism that it reproached as 'utopian'. It started with the publication
of Communist Manifesto in 1847-48 at the behest of a small international workingmen's
organisation that was at once an interpretation of the role of the working class in the past and
future history and a clarion call to labour to unite for the purpose of securing its emancipation,
the freedom of all mankind. It marked a definite decline of the leadership of the utopian school
of thought among the advocates of a new social order. It marked at the same time the advent
of Marxian or 'scientific socialism', a social philosophy which has exerted such a powerful
influence on the political, social, economic and cultural thought of the last half century and
which seems destined to play a still larger role in future historical development. The main tenets
of Marxian socialism are dialectical materialism, materialistic interpretation of history, class
war, labour theory of value and inevitability of revolution."17
• Dialectical Materialism: This is the philosophical foundation of Marxism, combining
Hegelian dialectics with a materialistic worldview. It asserts that societal change arises
from the conflict and contradictions between opposing forces within a material,
economic context.
• Materialistic Interpretation of History: Marxists view history as a series of class
struggles driven by economic factors. They believe that economic relations and the
modes of production shape the social and political structures of a given era.
15
Anil Dutta Mishra, Fundamentals of Gandhism, 6 ( 1st ed-1995)
16
Anil Dutta Mishra, Fundamentals of Gandhism, 13 ( 1st ed-1995)
17
J C Johari, Principles of Modern Political Science, 542—543 (2nd ed-2009) (Rep-2018)
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• Class War (Class Struggle): Marxism posits that society is divided into two primary
classes – the bourgeoisie (owners of the means of production) and the proletariat
(working class). Class struggle is the inevitable conflict between these classes, which
Marx believed would lead to the overthrow of the capitalist system.
• Labour Theory of Value: Marx argued that the value of a commodity is determined by
the socially necessary labour time required to produce it. This theory underscores the
exploitation of workers in capitalist systems, where surplus value is extracted from their
labour.
• Inevitability of Revolution: Marxists contend that the inherent contradictions of
capitalism, including class exploitation and economic inequality, will ultimately lead
to a proletarian revolution. This revolution is seen as the path to establishing a classless
society where the means of production are collectively owned (communism).
Marxism is a comprehensive ideology that analyses society through the lens of historical
materialism, class struggle, and economic determinism, with the ultimate goal of achieving a
classless, communist society. While it has had a significant impact on social and political
thought, its application in the real world has varied and often resulted in different
interpretations and implementations of Marxist principles.18
NAXALISM
"The Naxalite movement calls for a complete transformation of the political, social and
economic system. In the process they tend to reject the present parliamentary system and to
create a new social order so that it may lead to an end of the exploitation of vulnerable sections
of India society. It cannot be denied that naxalism is an expression of aspirations of the people
who are deprived for a life of dignity and self-respect. The pattern of violence perpetuated by
Naxalites are an indicator of an emerging serious challenge to economic and social stability of
the nation.
Various governmental and non – governmental studies have revealed that the causes are varied
depending on the following factors : social, economic and cultural backward; corruption; their
structural problems; ineffective land reforms topography and so on. These are rooted in the
objective conditions of life and respond to the deep – seated frustration of the people. The
Naxalite movement in West Bengal was launched from a strategically located territory called
“Naxalbari” in March 1967. This northern portion of West Bengal is important as it touches
the boundaries of Sikkim, Tibet, Bhutan, Nepal and Bangladesh."19
Naxalism does not propose a theory of law in the traditional sense; rather, it critiques and
challenges the existing legal and political systems. The Naxalite movement often operates
outside of established legal frameworks and is characterized by armed struggle and guerrilla
warfare against the state. It seeks to overthrow what it perceives as an oppressive capitalist and
class-based system and replace it with a more equitable and just society.
18
Ref- J C Johari, Principles of Modern Political Science, 543 – 552 (2nd ed-2009) (Rep-2018)
19
Prof. Shekhar Adhikari, Security Challenges from Naxalism, National Defence and Aerospace Power 12 (28
August 2012)
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The movement has had a complex and controversial history in India, involving armed conflicts,
human rights abuses, and government efforts to suppress it. Naxalism has also inspired debates
on the underlying socio-economic and political issues it highlights, such as land distribution,
exploitation of tribal communities, and economic inequality.
While Naxalism doesn't provide a specific theory of law, it is essential to understand it in the
context of broader discussions about social justice, governance, and the rule of law in India.
The movement challenges the existing legal and political systems, demanding change and
advocating for the rights of marginalized communities within the framework of Indian law and
society.
CONCLUSION
In conclusion, the theories of law and socio-political movements discussed here offer a rich
tapestry of perspectives on legal philosophy, ethics, and governance. Natural law theory, with
its historical roots, underscores the enduring significance of universal moral principles in
shaping legal systems. While facing challenges over time, it remains influential in
contemporary legal thought, especially in American jurisprudence.
Conversely, Hans Kelsen's Pure Theory of Law promotes an objective and value-neutral
approach to legal analysis. His critique of natural law, emphasizing the separation of law and
morality, has left a profound mark on modern legal philosophy. Legal realism, be it the
American or Scandinavian variants, redefines the understanding of law by spotlighting the role
of societal, economic, and psychological factors in legal decision-making, influencing critical
legal studies and judicial analysis. Other philosophies, such as Gandhism, Sarvodaya,
Marxism, and Naxalism, propose alternative visions for societal transformation and
governance, each rooted in unique principles. These diverse perspectives collectively enrich
the ongoing discourse on law, ethics, and justice, leaving an indelible imprint on the
development of legal and political thought.
BIBLIOGRAPHY
• Anil Dutta Mishra, Fundamentals of Gandhism, ( 1st ed-1995)
• Dr. Rega Surya Rao, Criminology, penology and Victimology, (1st ed- 2021)
• Granville Austin, the Indian Constitution-Cornerstone of a Nation, 34 (1st ed- 1972)
(Re-2022)
• J C Johari, Principles of Modern Political Science, (2nd ed-2009) (Rep-2018)
• John Finnis, Natural Law and Natural Rights, 18 (2nd Ed. 2011)
• Pierluigi Chiassoni, Kelsen on Natural Law Theory:An Enduring Critical Affair, Law Logic and
Morality 23 (2014)
11 | P a g e
• Prof. Shekhar Adhikari, Security Challenges from Naxalism, National Defence and
Aerospace Power 12 (28 August 2012)
• V D Mahajan, Jurisprudence and Legal Theory, (5th ed. 1987) (Rep- 2018)
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