Making law matter: projectivism and Hart's normativity

This thesis explores a novel approach to understanding H.L.A.Hart's account of the 'normativity of law'. A successful account of the 'normativity of law' is meant to inter alia establish how legal requirements come to be morally binding. It will be argued that the internal point of view, key to Hart's account of normativity, can intelligibly constitute the 'source' of moral bindingness only if one assumes a projectivist model (resting on a non-cognitivist metaethic). The projectivist model understands moral bindingness as the motivational pull exerted by a moral judgment owing to the attitude of approval underlying it. Hart never expressly endorsed projectivismâfar from it: he refused to take any firm metaethical stance at all. This thesis argues, however, that there are semantic and metaethical elements in Hart's scheme that naturally lend themselves to a projectivist model. A good portion of this thesis comprises in setting out, aligningâand where appropriate, emendingâthose elements so as to yield a coherent projectivist model of the 'normativity of law'. While discussing Hart's account of normativity occupies a bulk of this thesis, its overarching telos would be to take the first steps towards attempting a new begrundung of the projectivist model of 'normativity of law'. It does so by setting out the conceptual underpinnings of the projectivist model and by allaying some of the misgivings surrounding it. The projectivist model used to be prominent in the first half of the 20th century, thanks to the pioneering works of the Scandinavian Legal Realists, but has of late largely fallen into disrepute. Although Hart is widely credited with having taken apart the Scandinavian Legal Realistsâ projectâwho themselves saw Hartâs project as contiguous with theirsâit will be argued that there is indeed a great deal convergence between the projects of Hart and the Scandinavian Legal Realists.</p

Making law matter: projectivism and Hart's normativity

This thesis explores a novel approach to understanding H.L.A.Hart's account of the 'normativity of law'. A successful account of the 'normativity of law' is meant to inter alia establish how legal requirements come to be morally binding. It will be argued that the internal point of view, key to Hart's account of normativity, can intelligibly constitute the 'source' of moral bindingness only if one assumes a projectivist model (resting on a non-cognitivist metaethic). The projectivist model understands moral bindingness as the motivational pull exerted by a moral judgment owing to the attitude of approval underlying it. Hart never expressly endorsed projectivism—far from it: he refused to take any firm metaethical stance at all. This thesis argues, however, that there are semantic and metaethical elements in Hart's scheme that naturally lend themselves to a projectivist model. A good portion of this thesis comprises in setting out, aligning—and where appropriate, emending—those elements so as to yield a coherent projectivist model of the 'normativity of law'. While discussing Hart's account of normativity occupies a bulk of this thesis, its overarching telos would be to take the first steps towards attempting a new begrundung of the projectivist model of 'normativity of law'. It does so by setting out the conceptual underpinnings of the projectivist model and by allaying some of the misgivings surrounding it. The projectivist model used to be prominent in the first half of the 20th century, thanks to the pioneering works of the Scandinavian Legal Realists, but has of late largely fallen into disrepute. Although Hart is widely credited with having taken apart the Scandinavian Legal Realists’ project—who themselves saw Hart’s project as contiguous with theirs—it will be argued that there is indeed a great deal convergence between the projects of Hart and the Scandinavian Legal Realists

Making law matter: projectivism and Hart's normativity

This thesis explores a novel approach to understanding H.L.A.Hart's account of the 'normativity of law'. A successful account of the 'normativity of law' is meant to inter alia establish how legal requirements come to be morally binding. It will be argued that the internal point of view, key to Hart's account of normativity, can intelligibly constitute the 'source' of moral bindingness only if one assumes a projectivist model (resting on a non-cognitivist metaethic). The projectivist model understands moral bindingness as the motivational pull exerted by a moral judgment owing to the attitude of approval underlying it. Hart never expressly endorsed projectivism—far from it: he refused to take any firm metaethical stance at all. This thesis argues, however, that there are semantic and metaethical elements in Hart's scheme that naturally lend themselves to a projectivist model. A good portion of this thesis comprises in setting out, aligning—and where appropriate, emending—those elements so as to yield a coherent projectivist model of the 'normativity of law'. While discussing Hart's account of normativity occupies a bulk of this thesis, its overarching telos would be to take the first steps towards attempting a new begrundung of the projectivist model of 'normativity of law'. It does so by setting out the conceptual underpinnings of the projectivist model and by allaying some of the misgivings surrounding it. The projectivist model used to be prominent in the first half of the 20th century, thanks to the pioneering works of the Scandinavian Legal Realists, but has of late largely fallen into disrepute. Although Hart is widely credited with having taken apart the Scandinavian Legal Realists’ project—who themselves saw Hart’s project as contiguous with theirs—it will be argued that there is indeed a great deal convergence between the projects of Hart and the Scandinavian Legal Realists.</p

The Conflict between Freedom of the Press and Parliamentary Privileges: An Unfamiliar Twist in a Familiar Tale

This article proposes a novel interpretation of the conflict between the two constitutional principles of parliamentary privilege and freedom of speech. The author argues that the combined effect of the 42nd and 44th Constitutional Amendments was to lower the status of parliamentary privileges from being part of the original constitution, to being introduced into the Constitution through an amendment. This would make these privileges subject to basic structure review and, by implication, subject to Art. 19(1)(a)

Schrodinger\u27s Constitutional Cat: Limits of the High Court\u27s Declaration of Unconstitutionality

Following the confusion created regarding the territorial reach of the Delhi HC dcision in Naz Foundation, Mr. Swam inathan argues that a thorough analysis of Article 226 of the Indian Constitution leads to one conclusion: a declaration of unconstitutionality of a Central statute by a state High Court renders the statue invalid only in that state. Likening it to Schridinger\u27s cat, the article highlights why the analysis cannot be restricted to Article 13 alone, but requires a larger jurisprudential and ontological justification. While the decision in Kusum Ingots is the current position in India, Mr. Swaminathan argues why this deserves to be reconsidered

Police Powers and the Constitution of India: The Inconspicuous Ascent of an Incongruous American Implant

Res extra commercium is a doctrine introduced by Chief Justice Das of the Supreme Court of India in the 1957 case, State of Bombay v. R.M.D. Chamarbaugwala, which has the effect of constricting the scope of fundamental rights by rendering as constitutional outcasts certain purportedly immoral or noxious activities. It does this by blocking these activities from falling within the purview of the protection of fundamental rights. First, it will be argued that though the court did not expressly spell it out, it was the doctrine of police powers (the specific conception of the doctrine advanced by Justice Harlan of the U.S. Supreme Court in Mugler v. Kansas), which lies behind Chief Justice Das\u27s invocation of res extra commercium. Second, it will be argued that Chief Justice Das did not openly invoke the police power doctrine in R.M.D. Chamarbaugwala because larger benches of the Supreme Court had earlier squarely rejected the import of the doctrine from American constitutional law. Finally, the paper argues why the police power doctrine sought to be imported by Chief Justice Das under the verbal dressing of res extra commercium is incongruous with the scheme of the Indian Constitution