Legal–Institutional Approach

The legal–institutional approach is concerned, first, with the study of political institutions such as the State, legislature, executive, judiciary, office of the prime minister, cabinet, etc. And, second, it deals with the study of constitutional law, legal position of institutions, and concepts with juridical implications, such as legal sovereignty, separation of powers, rule of law, and so on. In fact, as Alan R. Ball says, ‘the study of constitutional law formed a very important cornerstone of traditional political studies’.²¹ The study of legal institutions becomes an important element in political study. Dicey’s Law of the Constitution and Bagehot’s The English Constitution are two representative British studies of the constitutional law approach.

In the Indian context, Granville Austin’s The Indian Constitution: Cornerstone of a Nation presents an account of ‘development of the constitutional democracy in India’. Austin opines that the Indian Constitution was envisaged by the Constituent Assembly as a design for achieving many goals, transcendent among them being that of social revolution.²² He suggests that the decisions to adopt a parliamentary government and attendant political structure were part of this larger goal. Austin calls his study the ‘political history of the framing of the Constitution’ and distinguishes it from other studies that he says have ‘a more legalistic approach’.²³ The juridical method of study in which, according to Jellinek, the contents of the rules of public law are determined and conclusions deduced, can be treated as part of this approach. Social and political relations are seen in terms of public law, rights and obligations, and the State is treated as a corporation or juridical person. As such, the State becomes an organization for the creation and enforcement of law. This method views political science as a science of legal norms.²⁴

In India, the legal approach to the study of the Constitution and political set-up would deal with the legal implications of the provisions contained in the Constitution of India, such as the Fundamental Rights and Directive Principles of State Policy, the federal provisions regarding the division of powers between the Union and the States, the functions and powers of president/governor, prime minister/chief minister, cabinet and council of ministers, etc., the implication of the separation of powers between the legislature, the executive and the judiciary, the bodies and agencies that legally and constitutionally constitute the ‘State’ in India, and so on.

The legal–institutional approach, though helpful in understanding political institutions and legal implications, is limited by its focus on formal structures and arrangements. Merely studying the organization of a government and its organs in constitutional and formal terms cannot give a full picture of the complexity of political processes. To fill the gap, a new trend focuses on studying the informal political process such as political parties, pressure and interest groups, and group behaviour in politics. The concept of the State as a juridical person also has a limited use in understanding its meaning and role in contemporary times. A welfare State, for example, is not merely a law-enforcement agency but performs what may be called cradle to grave functions.