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In compliance with the partial fulfillment of the marking scheme, for
Trimester 1 of 2014-2015, in the subject of Jurisprudence


ROLL No. A029
ACADEMIC YEAR: 2014-2015

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International labour organization

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My research study is based on primary and secondary resources, like pre-existing
knowledge, views and perception, and books and research papers, I have used books and online
resources and case laws to build upon the topic, as they are a rich source of citation in legal
Library Research
a. Book study
b. Reference and Abstracts
c. Note taking
Researching through the Internet
a. E- books
b. E-articles


The project will attempt to examine the relevant principles of Legal Pragmatism- Democracy,

Rights, and And Society and how that affects the legal system in India.
The topic is relevant to the present conditions as; India being a democracy, one experiences the
freedoms, privileges and restrictions that come with it on a day to day basis. Rights are something
that are exercised at every stage in life and aid in living a fulfilling life. The society is a social set
up that we live in, it can range from as small as one building to the whole world in general. The
regulations made in these fields govern our day to day life and affect the common man with every

This project will attempt to fragment and explain the meaning of Legal Pragmatism, with

refrence to democracy, rights and society. It will also analyse the interrelation of these terms.
It will also inspect how Legal Pragmatism has been put to use and acquired a varied and broader
meaning over the years, as this term has now been interpreted in a much broader sense and

extended in remarkable ways.

This project will also cite some landmark cases and study how they were built on the edifice of
democracy rights and society, thereby widening the perspective meaning of these terms. It will
also examine how legal pragmatism binds these principles together.

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To interpret the meaning of legal pragmatism

To understand the inter relation between democracy, rights and society with reference to legal

To try and interpret how legal pragmatism is the binding force between democracy, rights and

To understand how the different schools and jurists interpreted the meaning of legal



What is legal pragmatism?

In what way does legal pragmatism work as a binding force among democracy, rights and



The research study carries with itself a few limitations, like, as it also includes primary
knowledge, the resources, quality of research is affected as the origins of the information

maybe questionable.
The research papers and theses on this particular topic are prepared in a different era,

therefore the meaning and scope of those terms may have changed.
Also secondary research never meets the specific needs of researcher because all the info,
data, statistics have already been generated, and individually interpreted and opined upon.
Hence it would be prudent to critically evaluate and validate the reliability and credibility
of the information gathered.

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Meaning of legal pragmatism.

Pragmatism, is a philosophy that emphasizes action, experimentation, and a concern with what

works in human experience.The oxford dictionary defines pragmatism as An approach that

evaluates theories or beliefs in terms of the success of their practical application 1. Pragmatism is
also an ideological movement which claims that an ideology or hypothesis is true if and only if it
works satisfactorily, so the meaning of an ideology is to be found in the practical after effects of
applying it. Combining the meanings of both the words, one can roughly interpret that legal
pragmatism is the interpreting law in a practical sense and not working solely by the book.
Legal pragmatism infuses the methods and theories of pragmatic thinking and approach into
legal theoryHowever this is a generalized meaning of legal pragmatism. Legal pragmatism has its
roots in the writings of Oliver Wendell Holmes, for eg. In The Common Law Holmes argues that,
The life of the law has not been logic, it has been experience. Here what Holmes implies that, as
much as logic provides for an imporant backing for law, it is the experience that truly defines it.
Legal pragmatism is a theory critical of more traditional pictures of law and, more specifically,
judicial decision-making2. While the classical ideology of law works on a case based approach
which lays emphasis on the universal and fundamental quality of legal facts, the pedantic analysis of
the precedent and the argument and drawing a connection between them. Legal pragmatism,
focuses on the need to include a highly diverse set of statics and data and claims that law is best
interpreted as a practice that is based in the specific issue at hand. It also says that law is something
with strong edifices, partly objective and partly subjective in nature and always depending upon
perception. A pragmatic stand towards the study of jurisprudence and legal pragmatism as a school
of thought, challenges many of the old philosophical interpretations of law its area of use, the
different aspects it includes and its generalized perception


Origin of legal pragmatism

Legal pragmatism also known as is a school of philosophy, which lays emphasis on the
applicability of law rather than its precision in books. Oliver Wendell Holmess description of law in
1897 as what the courts will do in fact and of the real ground of decisions as resting often in some

1 Taken from on 6th August 2014 at 11:20 pm

2 Taken from on 6th August 2014 at 11:25 pm
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inarticulate major premise rather than in expressed reasons 3set the central theme for the 20th century
legal pragmatism.
Legal pragmatism and pragmatism as a philosophical concept was first conceived in the final
decade of the nineteenth century pragmatism was initially intended to provide an alternative to
foundationalism, i.e., the view that there are innate and indubitable beliefs upon which knowledge
must be based.4 The origin of legal pragmatism lies with the philosophises of the late 19 th century and
early 20th century. Legal pragmatism challenges the orthodoxies of law gives a new meaning to legal
perception. Traditional pragmatism had considerable influence in the first several decades of the
twentieth century. Its intellectual significance waned in the 1930s and thereafter. However, beginning
in the 1960s, pragmatism was revived .
As it has evolved, pragmatism has taken many forms and attracted a highly diverse set of
supporters. However there are three distinct and significant types of pragmatic thought: philosophical
pragmatism, environmental pragmatism, and legal pragmatism.


Evolution Of Legal Pragmatism

The twentieth century schools of pragmatism stress on social purpose of law, and questions

assumptions made by lawyers. It lays emphasis on the need to separate the is from ought. And
categorically substitute the idealistic ideologies with realistic methods. The orthodoxies thus
challenged included the sociological and philosophical works of the early jurisprudence. On the
brighter side, it is now clear that the concerns of those early twentieth century jurists were indeed
very important and revolutionized the legal system and social system of the modern world. For a
long time legal pragmatism was labelled and seen at as an issue of contention, as it went against
the books of law and tried to extend the scope of law.
However in the coming years it was perceived as a highly progressive step and readily
incorporated by the learners. The idealistic views of the jurists started taking a realistic form by
reducing the number of assumptions and studying facts in light of precedents.

Contemporary Position Of Legal Pragmatism

The contemporary position of legal pragmatism seems to be transcending its pre perceived

scope. As it has now taken a form where it completely relies on logic and practicality rather than
theories and opinions. The best example of this can be found in our country itself, as judicial
activism is now being promoted and readily included in the judicial affairs of our country. As law
is being infered in many different ways, practicing and applying legal pragmatism as a theory has
3 Taken from on 6th August 2014 at 10:40 pm
4 Taken from William James, What Pragmatism Means, in The American Pragmatists 28, 3132 (Milton
Konvitz & Gail Kennedy eds., 1960).
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become a necessaity rather than a choice, because if a particular judgement looks right and
appropriate on paper but does not work in reality, that judgement and judge faces heavy critisism.

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Analysis in jurisprudential context.
This section will attempt to critically evaluate the meaning of all the terms in jurisprudential context.
Democracy, Rights & Society
Democracy is defined as, A system of government by the whole population or all the eligible
members of a state, typically through elected representatives5. OR
That form of government in which the sovereign power resides in and is exercised by the whole
body of free citizens;6 in a generalized sense, and to quote Abraham Lincoln, democracy is for the
people, by the people and of the people. It differs from monarchy, oligarchy and aristocracy because the
representative is elected. Freedom and democracy are often used as synonyms, however they differ in
meaning. Democracy is essentially a set of ideas and doctrines about freedom. In the jurisprudential
context, democracy directly affects the way jurisprudence and its theories are applied in a society, if the
nation is a democratic nation, then the theories of jurisprudence can be applied liberally however, if its a
dictatorial government or monarchy, the application and validity of theories is restricted.
In jurisprudential context, democracy sets the theme for theories which are evolving and yet to
evolve. Democracy completely depends upon the provisions and rules of jurisprudence and it is a concept,
which is an amalgamation of jurisprudence, and sociology.
Rights are defined as - A moral or legal entitlement to have or do something 7
The concept typically insinuates itself into the discourses of morals and ethics. A right can be synonymous
with privilege, power or immunity. However tights are the privileges granted because of something, this
could be in order to live a fulfilling and enriched life. Or as theory of natural law says, it could be the course
of nature, wherein every person must be granted a specific set of rights.. Thus a person may have a right
protected by law (legal right) to do something which is unethical, e.g. A policeman forced to kill a criminal
to avoid greater harm, however this then opposes the standards of positive morality.
Rights are inherent to all humans, no matter what our nationality, gender, color, caste, language,
ethnic background, social status or religion. All of us are equally entitled to the human rights without
discrimination. The human rights are interrelated, indivisible and also interdependent.
Human rights are also independent and indivisible as whether they are civil or political rights, such as
right to life and personal liberty, or equality before and equal status in front of law, freedom of speech and
expression, or right to education, or collective such as right to development and progress, they are again
interrelated indivisible and inalienable.
In jurisprudence, rights constitute a major part of almost all theories and much deliberation has taken
5 Taken from at 1:28 am on 7th August 2014.
6 Taken from at 1:30 am on 7th august 2014.
7 Taken from on 7 th August 2014 at 2:10 am
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place on this subject. A legal right is always enforceable.

Society is defined as- the community of people living in a particular country or region and having
shared customs, laws, and organizations 8 An association or company of persons (generally not Incorporated)
united together for any mutual or common purpose. In a wider sense, the community or public; the people in
The concept of society generally means a community of people with something in common, it could be
nationality, colour, caste, creed, language etc. But society really means a conglomeration of people who are
treated as a unit. Jurisprudence deals with the concept of society in detail and many of the provisions made
have a social dimension to them.
Democracy rights and society are interrelated, one cannot exist without the other. Legal pragmatism
endows a different meaning to these three terms, democracy exists in a society, and rights are essential for
the existance and functioning of a healthy society. Also, for a society to flourish and progress, democracy
and freedoms are necesssary. As legal pragmatism focuses on the practicality of law, it has dwelved into
these aspects very often. It divorces them from the idealistic

perceptions of the books of sociology,

philsophy and law and focuses on the functionality of these aspects, by studying their secondary branches
and the effect they have on each other.

8 Taken from on 8th August 2014 at 12:00pm

9 Taken from on 8th August 2014 at 12:02 pm
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Instead of an emphasis upon consistency with the essence of past decisions the pragmatist judge
looks to the worldly implications of his or her decision. For instance, in a contract dispute a
judge following the classical model of legal reasoning would look to antecedently held rights and
obligations as shown in earlier cases in order to decide. A pragmatist judge, on the other hand,
would see those issues as important but would also look at the greater implications for contract
disputes in the future. This prospective attitude would bring in data as to the effects of the
contract decision upon third parties, how a ruling would affect daily life, etc.

A) Oliver Wendell Holmes:
Very much the intellectual, he famously declared that, the common law is not a brooding
omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be
identified with thus giving high importance to the common law. Justice Holmes expanded the
theory of legal pragmatism. In an essay published by him, he was quoted emphasizing that
distinguish clearly between law and morality, consider what it is and not what it ougt to be 10.
According to Justice Holmes, it is not the law written in the statutes which matters for the society
but the result of the court that matters. By affirming this, he is referring to the fact that as it is not
the legislators, but the judges who are the most appropriately stationed to examine the need to
mend the law the way in which it was necessary. In a way, Holmes can be said to be the main
preacher of this theory. His objective and evolutionary view towards law became holy for the
supporters of this school
as as engine havingpurposes,notvalues initself.Hehelists sixthings whichhavetobe

10 Understanding Jurisprudence by Raymond Wacks

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determination of procedures for authoritative decision making, Provision of direction and

C) Jerome Frank
Justice Jerome Frank was one of the most radical of jurists. Justice Jerome Frank not only
succeeded Holmes, but also went on to further develop the pragmatic movement. He branded
himself as a fact sceptic ie, who were concerned to uncover the unconscious forces that affect the
discovery and interpretation of facts of a case. 12 He said that the various prejudices of the jury and
jurors directly affected the outcome of a case, the main thrust was directed against the idea, and
that certainty could be achieved through legal rules. The fundamentals of Jerome franks ideology
are that he considers legal certainty a sin of modern Jurisprudence. He calls it the basic legal
myth of rule certainty Jeromes famous quote is that, The life of law has never been logic. It has
been experience had a massive effect on the philosophy of Jurisprudence.

D) Richard Posner
A liberal state is a representative democracy constrained by the rule of law. Richard
Posner argues for a conception of the liberal state based on pragmatic theories of government. He views
the actions of elected officials as guided by interests rather than by reason and the decisions of judges by
discretion rather than by rules. He emphasizes the institutional and material, rather than moral and
deliberative, factors in democratic decision making.
Posner argues that democracy is best viewed as a competition for power by means of regular
elections. Citizens should not be expected to play a significant role in making complex public policy
regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the
wise or the good but that it enables stability and orderly succession in government and limits the tendency
of rulers to enrich or empower themselves to the disadvantage of the public. Posners theory steers
between political theorists concept of deliberative democracy on the left and economists public-choice
theory on the right. It makes a significant contribution to the theory of democracyand to the theory of
law as well, by showing that the principles that inform Schumpeterian democratic theory also inform the
theory and practice of adjudication.

11 Understanding Jurisprudence by Raymond Wacks

12 Understanding Jurisprudence by Raymond Wacks
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of man and therefore, is independent of any devices or means of such legislation. Therefore the
deals with law as it is, it analyses the principles of law. It is also called as imperative school of
jurisprudence. The proponents of this school considered that most important aspect of law is the

Sociological school
Instead of questioning the source of law, the sociological school studies the repercussions of a law
on the society. That is the real effect it will have on democracy, rights and society too. Whenever a law is
made, it has certain psychological effects and in turn sociological effects, the sociological effects can
affect The supporters of sociological school, therefore, stress not on the source of law but on the effects of
It is a law given by God and has divine power. It takes the moral aspect of respecting life. The
ancient Law laid great stress on being liberal, humane, just and all-pervasive as it sustains and protects the
universe while modern law is confined only to the society. So conferring rights is correct in the view of
jurists. While in the positivist theory, the law considers the fact and does not consider morals to be
essential part of law-making. As per morals then the unborn is to be given rights. But in positive its more
on law making by the sovereign and not by God. The sociological school lays emphasis on the practical
applicability of law which coincides with the pragmatist view.

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1. Legal Pragmatism: Three Ideas

As you might expect, legal pragmatism focuses on neither the theory of truth nor the theory of meaning
and is instead directed at the normative and the role of normative theory in legal practice. There are many
ways in which we might approach this relationship. Let's focus on three ideas that illuminate legal
pragmatism: (1) the idea of practical judgment, (2) the idea of particularism, and (3) the notion of
Practical Judgment One way to think about legal pragmatism begins with the distinction between
"practical judgment" (and the allied notion of "practical wisdom") and "theoretical judgment." No one
doubts that legal practice involves "practical judgment." Judges and lawyers cannot limit their activity to
the theoretical realm. The decision of a case is always contextual--conditioned by a history of facts and
by the concrete consequences that attend to a decision. Legal pragmatism emphasizes the idea that
practical judgment is an ineliminable part of legal reasoning and may even make the stronger claim that
the practical trumps the theoretical if the two are in conflict.
Paticularism Another way to approach legal pragmatism is via the an idea that is sometimes called "the
priority of the particular." This phrase is shorthand for the assertion that judgments (or intuitions or
considered judgments) about particular cases have priority over theoretical judgments about broad classes
or categories of cases. What does "priority" mean in this context? One answer to this question is that the
priority of the particular means that our judgments about particular cases are firmer, more grounded, and
less subject to revision than are our beliefs about theory. In other words, when a theory collides with a
firmly held belief about what is right or wrong in a particular case, it is the theory and not the judgment
about the case that will have to give way.
Antitheory (or Antifoundationalism) And a final way to approach legal pragmatism is based on the
notion that legal pragmatism is anitheoretical (or antifoundational). Let me back up a bit to explain this
point. Some philosophers are suspicious of "big" "top down" normative theories generally, and there are
"antitheoretical" positions in moral and political philosophy.13 What does it mean to be antitheoretical?
One formulation expresses opposition to deductive systems--to be antitheoretical is to be oppose a
method that begins with axioms and then proceeds to deduce the theorems and corollaries that guide
normative practice. Another formulation uses "top down" and "bottom up" as metaphors. Being
antitheoretical is being against "top down" construction of legal arguments that move from abstract and
general propositions to conclusions about particular cases. The alternative approach is "bottom up,"
starting with judgments about particular cases and ending with "low level" principles that are more
concrete and contextual than abstract and general.
Ad Hoc Legal Pragmatism
So far, I've tried to get at what I think is the core coneptual content of legal pragmatism--in its best and
most intellectually defensible forms. But there is another version of "legal pragmatism" that deserves
some discussion. Sometimes, the phrase "legal pragmatism" is used in a very casual way as a kind of
evasion or escape from serious objections. For example, someone might make a series of normative
arguments that rest on inconsistent theoretical premises--affirming some form of consequentialism at one
point and then relying on strong deontological premises at another. When confronted with inconsistency,
they might say, "Oh, I'm a pragmatist." And they might be, but "pragmatism" is not a "Get Out of Jail
Free" card that somehow magically nullifies contraditions or reconciles theoretical contraditions. The
13 Taken from on 28th August 2014 at
6:00 am
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best uses of legal pragmatism always ground specific pragmatic moves in some metatheoretical
There is no official name for "sloppy pragmatistm," but I use the label "ad hoc pragmatism" as a shorthand label for the attempt to use "pragmatism" as an excuse for theoretical inconsistency or for gaps in a
theoretical argument. "Pragmatism" should be the term we use to describe a family of metatheoretical
arguments; it is not an excuse for avoiding such arguments.

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Legal pragmatism, isolated I itself would not be able to stand on its own, however as legal
pragmatism binds these concepts together, these concepts also support it to a great extent.
Legal pragmatism can be branded as a theory with descriptive pretences. That is, as a
theory as to what really happens in law, despite the ideological occurrence of the
classical model. The descriptive legal pragmatist thinks that the classical picture of
jurisprudence does not fit the facts of law, and that a pragmatist picture offers a
better unconventional picture. A legal pragmatism of this type looks to the legal
realists as historical precursor.
The legal pragmatist ideal has hitches as a descriptive theory as well. First, judges for
the most part definitely act and write as if they are ensuing precedent and the
traditional legal materials. Next, it seems as if judges that were really pragmatic
would have to be more rigorous in the following out of empirical implications of their
This goes in every way to suggest that legal pragmatism works in all directions. In
democracy, it helps frame the constitution and set up the electoral process. While
democracy aids legal pragmatism as it paves the way for it to function and garner
As pragmatism is about practicality, and application, society provides it a platform to
It is also related to psychology as, human intellect is what is being put to use when

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A.D.M Jabalpur v/s Shivkant Shukla, A.I.R. 1976 S.C. 1207
Facts: The petitioner was arrested during emergency and the reason sited was of Preventive
Detention, the petitioner challenged the ground of his detention.
Issue: The issue in question was wether the fundamental rights of an individual are suspended during
a national emergency and if even the right to life is suspended.
Judgement: The Supreme Court adopted a wholly positivistic approach in the historic Habeas Corpus
case wherein it was held that fundamental rights remain suspended during the Proclamation of Emergency
and, therefore, the court cannot go into vires of mala fides of detention the order and writ of Habeas Corpus
is not maintainable so long as the right to life and personal liberty envisaged by Article 21 itself remains
A.K. Gopalan v/s State of Madras, 1950 AIR 27, 1950 SCR 88
Facts: The petitioner was detained under prevention of detention act, the contempletion was wether the
detention was lawful or not.

petitioner who was detained under the Preventive Detention Act (Act IV of 1950) applied

under Art. 32 of the Constitution for a writ of habeas corpus and for his release from detention, on the
ground that the said Act contravened the provisions of Art. 13, 19, 21 and 22 of the Constitution and was
consequently ultra vires and that his detention was therefore illegal.
Judgement: In this case, the SC considered the scope of Article 21 and it rejected the argument that
Article 21 contains the American Doctrine of Due Process and further held that, the word law means state
made or enacted law. Thus, the view which prevailed after this case was that there was no guarantee in our
constitution against any arbitrary law.
Maneka Gandhi v/s UOI, 1978 AIR 597, 1978 SCR (2) 621
Facts: The petitioners passport was taken back, the reason sited was public intrest and she was told to
return her passport within seven days of the recipt of the letter. However, she took to the court of law and
demanded a reason for her passport being cancelled.
Issues: The issue was regarding the validity of the reason given for the cancellation of her passport and
the interpretation of Article 21.
Judgement:In this case, the SC overruled the Gopalan decision and observed that if there is a law which
prescribes the procedure to deprive a person of his life or liberty, then, there is no infringement of Article 21
per se. Such a law can be challenged if it is arbitrary, unreasonable and unjust.
Kesawananda Bharti v/s State Of Kerala, AIR 1973 SC 1461
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Facts: sri HH keshvananda Bharti challenged the state of Kerala under two land Reforms Acts, to impose
some limitations on the management of of the property. It was regarding the right to manage religious
property without government intervention.
Judgement: The SC in this case, propounded the basic structure doctrine, judiciarys enthusiasm to
incorporate the principles of natural law in the constitutional jurisprudence. Adopting the 20th century
revivalist approach to the natural law philosophy the SC ruled that fundamental rights are not absolute and
immutable but they are relative in nature and changeable in order to build a just social order.

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It can be concluded that legal pragmatism is a very wide concept and can be interpreted in a diverse

Legal pragmatism interlinks and encompasses a lot of concepts, sociology, rights society, to name a

Democracy spells freedom and is integral for the optimum development of human beings.
Democracy can be of different types and representative democracy is the one which is most popular

Rights are integral and duties go with rights, one cannot be separated from the other

Rights are inalienable and natural law theory propagates this idea. It was propounded by .Natural law
is classically compared with the positive law of a given political community, society, or state, and
thus serves as a standard by which to criticize said positive law. Although natural law is often
conflated with common law, the two are distinct in that natural law is a view that certain rights or
values are inherent in or universally cognizable by virtue of human reason or human nature, while
common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of
judicial recognition or articulation

A person can be at liberty to express opinions but cannot hurt the feelings of others or harm others.

Society and legal pragmatism are deeply interwoven. One forms the edifice for the other and builds
upon it.

Liberty and right are synonyms, liberty acting according to ones wish could be illusory, if it were not
protected from obstruction, when law affords such protection, retrospectively it is in effect of
conferring a right, and therefore right and liberty are synonyms.

In philosophy, the term "pragmatism" is both vague and ambiguous referring to a family of related
but distinct philosophical positions, some of which are inconsistent and most of which are highly
general and abstract.
Similarly "legal pragmatism" is not really a single well-defined metatheoretical position, but is,
instead, a label that is applied to a number of different moves in general legal


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Legal pragmatism should be clearly explained and articulated. The interrelation between rights,
democracy, and society should be elaborated upon.

Rights are integral and living without them will lead to a caged life.

Democracy guarantees freedom of ideas, thoughts, and it is for the people by the people and of the

India is the largest democracy and is the best example of a successful democracy.

We live in a free country where our opinions are valued, heard and respected.

Indian can raise their voice against any injustice and get it remedied.

People should be informed about their rights and duties as well.

People are ignorant about legal pragmatism and thus cant take full advantage of it as a result.

Natural theory has been propounded centuries ago yet it is relevant. The interrelation should be
deeply understood, studied and explained.


2. UNDERSTANDING JURISPRUDENCE- third edition- by Raymond Wacks
3. Salmond on jurisprudence
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4. A textbook of jurisprudence G.W PATON

5. Studies in jurisprudence and legal theories Dr. N.V Paranjape
6. article=4600&context=mulr
8. Jurisprudence and Legal Theory- By V. D. Mahajan.

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