What Austin called “determinate human superior”, some call it grund norm. Which one of the following jurists did it?

The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past, it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).
Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned.
If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry as observed by this Court in Suresh Koshy George v. University of Kerala [Civil Appeal No. 990/68, decided on 15-07- 1968], the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
[Extract from the judgment of the Supreme Court in A.K. Kraipak v. Union of India, (1969) 2 SCC 262, decided on April 29, 1969, hereafter ‘A.K. Kraipak’].

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In the realm of jurisprudence, the interplay between morality and legality is a complex and often contentious issue. While laws are designed to regulate human behavior and maintain social order, they may not always align with personal or societal moral values. This leads to a fundamental question: Should laws be based on moral principles, and if so, to what extent?
One school of thought, known as legal moralism, asserts that the law should enforce moral values and prohibit actions that are considered immoral by society. Proponents argue that certain actions, such as murder or theft, are inherently wrong and that the law should reflect and enforce these moral judgments
However, legal moralism is not without its critics. They argue that enforcing moral values through the law can be overly intrusive, infringing on individual autonomy and diversity of thought. They contend that the law’s primary role is to protect individual rights and maintain social order, not to impose moral values.
On the other hand, the principle of legal neutrality posits that the law should remain neutral on matters of morality. This perspective asserts that the law’s primary function is to protect individual rights and maintain order, and it should not be concerned with enforcing particular moral values. Legal neutrality allows for a more pluralistic and diverse society where individuals are free to live in accordance with their own moral values, as long as they do not infringe on the rights of others.
Nevertheless, this perspective raises challenging questions. If the law remains morally neutral, it may tolerate actions that many find morally repugnant, such as hate speech or discrimination. This leads to a moral dilemma—whether it is morally justifiable for the law to allow such actions in the name of freedom and neutrality
These philosophical debates highlight the complexity of balancing morality and legality within a legal system. They challenge us to consider the appropriate role of the law in shaping and reflecting societal values.

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Within the intricate tapestry of legal philosophy, the concept of legal positivism stands as a highly debated and intricate doctrine. Legal positivism posits that the validity and authority of law are determined solely by the source from which it originates. In other words, if a rule is created by a recognized authority, it is considered legally valid, regardless of its moral or ethical implications. Legal positivism places significant emphasis on the distinction between law as it is and law as it ought to be, focusing on the former. One of the most renowned proponents of legal positivism, H.L.A. Hart, argued that a legal system is composed of primary and secondary rules. Primary rules are those that govern human behavior, such as criminal laws or contractual obligations. Secondary rules, on the other hand, are rules that dictate how primary rules should be created, changed, or terminated. These secondary rules include the rule of recognition, the rule of change, and the rule of adjudication.
The rule of recognition, according to Hart, is the fundamental rule that identifies the authoritative source of law within a legal system. It is what legal officials use to determine, which rules are legally valid. This rule acts as a kind of social norm among legal professionals, signaling that certain rules have legal status. For example, in a democracy, the rule of recognition may point to the Constitution as the highest source of legal authority.
Critics of legal positivism argue that this philosophy risks legitimizing immoral or unjust laws if they are enacted through the proper procedures. They assert that the law should be grounded in moral or ethical principles, and its validity should be assessed based on its conformity to these principles.
Natural law theory, in contrast to legal positivism, argues that law should be guided by moral or ethical principles. According to natural law theory, there is a higher, moral law that transcends man-made laws. This moral law, proponents argue, should be the basis for evaluating the validity of legal norms
The debate between legal positivism and natural law theory raises profound questions about the nature and purpose of law. Does the source of law, as posited by legal positivism, determine its validity, or should law be grounded in moral or ethical principles, as argued by natural law theorists? These questions challenge the very foundation of legal philosophy and the role of law in society.

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It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused; and the court shall presume the absence of such circumstances. Under section 105 of the Evidence Act, read with the definition of “shall presume” in section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a “prudent man”. If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of “prudent man”, the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in section 299 of the Indian Penal Code. If the Judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.
[Extract from Dahyabhai Chhaganbhai Thakker v. State of Gujarat, AIR 1964 SC 1563, para 5].

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What Austin called “determinate human superior”, some call it grund norm. Which one of the following jurists did it?

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