B.A. LL.B. — Five-Year Integrated Academic Support

Welcome to B.A. LL.B. — Five-Year Integrated Academic Support. Follow Jurisprudence: Sources of Law and the Main Schools of Legal Thought, then practise in the learning system. Sign in and use the study header to open your authorised course. Select this published lesson. Start Course Tutor with Auto audio on: it teaches continuously, answers a typed question, then resumes. Natural law. Law is valid only if it conforms to higher principles of justice or reason. Classical sources include Aristotle, Aquinas and later Locke. Question. "Austin's command theory cannot explain the Indian Constitution." Discuss. Step 1: state Austin's theory. Law is a command of a sovereign, habitually obeyed and not habitually obeying another, enforced by sanction. Step 2: test each element against India. Sovereign. India has no single illimitable sovereign. Legislative power is divided between the Union and the States (Article 246 and the Seventh Schedule), and Parliament's power itself is limited by Part III and by the basic structure doctrine. Command. Many constitutional provisions do not command anyone. Rules that confer powers (for example, the power to make a will or form a company) are not orders backed by threats. Sanction. The consequence of a void statute or an invalid contract is nullity, not punishment. Step 3: bring in a better theory. Hart's rule of recognition explains Indian law more fully: the officials of the system accept that a rule is valid if it is made under the Constitution and not struck down. Kelsen's hierarchy of norms also fits, with the Constitution at the top of positive law. Step 4: conclude. Austin is useful for understanding criminal statutes, but his theory cannot explain a federal, rights-based constitution; Hart and Kelsen offer better explanations. Second example (custom). Two families of a community in Punjab claim that a customary rule allows adoption of a married son. Apply the test: is the custom ancient, certain, reasonable, continuous and not opposed to statute? The party alleging the custom must prove it by clear evidence of instances. If the Hindu Adoptions and Maintenance Act, 1956 allows custom to override its conditions on that point, the court will ask whether the custom is proved; if the statute does not allow the override, the custom fails because statute prevails. Ask Course Tutor to explain this step: Sanction. The consequence of a void statute or an invalid contract is nullity, not punishment. Step 3: bring in a better theory. Say what you tried. Pause and try this source task. What are the three elements of Austin's definition of law? The source answer is: A command, issued by a sovereign, enforced by a sanction. Compare your method and result, correct an error, then continue. Use Stop to end Course Tutor.