JANHIT COLLEGE OF LAW

Transcription

1 Very Short- Answer Questions Jurisprudence Q.1 What are the various kinds of law? Answer Kinds of Law-The term Law has been used in different senses- Law, in its common use, means a number of things. Blackstone says "Law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of action whether animate, rational, irrational. Thus, we say the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations'. Law (in its comprehensive sense) is generally of the following kinds-(i) Imperative law (ii) Physical or scientific law. (iii) Natural or moral law. (iv) Conventional law. (v) Customary law. (vi) Practical or technical law. (vii) International law; and (viii) Civil law. Q.2 What is Imperative Law? Imperative Law--Imperative law means 'a rule of action imposed upon men by some authority which enforces obedience to it.' Its enforcement may be secured by physical force or by some other means. In an organised society law tends to become imperative. Not only the rules given by the state but also the rules of other organisation and associations are imperative because there is some kind of sanction behind them. Q.3 What do you mean by Physical or Scientific Law? Ans. Physical or Scientific Law-Physical law signifies those uniformities and regularities which are observable in nature as the laws of light and heat. It includes also those actions of human beings which are uniform. Natural Law - It has various other names such as the 'moral law' 'Divine law', 'Jaw of God', 'universal or eternal-law' and 'law of reason' etc. 1

2 It signifies the principles of natural right and wrong, in other words, the ideal conception of justice. It has often been considered to be different from the positive law or positive justice (the concept of right, wrong and justice in actual practice). The idea of natural law and justice is based on moral or religious grounds. Generally, it presents a picture of ideal law or what the jaw ought4o be. Q.4 What do you mean by Conventional law? Conventional Law - Conventional law means those rules or set of rules which are the outcome of an agreement between persons or groups of persons. They agree to observe these rules in the regulation of their conduct towards each other. This agreement is law for the parties to it. The rules of voluntary societies are the examples of such law. Conventional law in cases is enforced by the state. When it is enforced by the state it become $ a part of the 'civil law'. Q.5 What is Customary law? Ans. Customary Law - By 'Customary law' is meant those rules and principles which have been observed in a particuar community in actual practice for a long time. To them who observe these rules they are law. They come into existence due to a number of reasons. When some kind of action gets general approval and is generally observed for a long time it becomes a custom. Sometimes they come into being on the ground of expediency. Q.6 What do you mean by Technical law? Ans. Technical Law - Technical law means those rules which are necessary for the attainment of certain ends such as the laws of poetical composition or the laws of health etc. There are certain rules the observance of which is necessary for the composition of poetry. Similarly, there is a set of rules which will have to be followed if one wants health. 2

3 Q.7 What is International Law? International Law - By International law we mean the aggregate of the rules by which the states are governed in their conduct towards and relation with each other. The recognition of this kind of law started many centuries ago. In modern times, International law is a very important branch of law. There have been jurists even in the present century who argued that International law is not law but its rapid growth and the important role that the International law plays in modern times, have left this point no longer in controversy and now it is considered to be a very important branch of law. Q. 8 What do you mean by Civil law? Ans. Civil Law - By civil law is meant the law of the land or municipal law. It is enforced by the courts of the state. In jurisprudence the word 'law' is used to mean mainly this kind of law. Salmond says that "this is law in the strictest and original sense of the term, all other applications of the term being is by analogical extension." Q.9 Explain the contribution of Savigny. Ans. Contribution of Savigny ( ) - Savigny is considered as (lie greatest 'German' jurist of 19th Century. He was a teacher in the university of Berlin and later in 1819 was appointed as chairman of Saw also His famous works. - (i) The Law of Possession, (ii) History of Roman Law in Middle ages and (iii) The system of modern Roman law testify his genious. It is book named "Das Rhect des Besitzes" was published in 1903 which is considered to be the best book on Roman law. He is the founder of historical 3

4 Savigny's theory of Historical School came as a powerful reaction against I Kill century 'rationalism' and principles of natural law the advocates of which Q. 10 Explain the contribution of Sir Henry Maine. Ans. Contribution of Sir Henry Maine ( ) - Sir Henry Main! was a great 'English' Jurist who presented a very balanced view of history Savigny explained the relation between community and the law whereas Maine went further and pointed out the link between the developments of both and purged out many of the exaggerations which Savigny had made. Maine started Ins career as Regius Professor of Civil Law in the University of Cambridge at,111 early age of twenty-five. He was Law Member in the Council of the Governor general of India between 1861 and This provided him an opportunity for (he study of Indian Legal system. From 1869 to 1877 he occupied the chair of historical and comparative jurisprudence in Corpus Christi College, Oxford. Ancient Law', Village 'Communities,' Early History.of Institutions' dissertation on Early Law and Customs', are the important contributions made by him to legal thought and legal philosophy. Most of the historical jurists of the Continent confined their studies only lo Roman Law but Maine studied the legal systems of various communities and by their analysis laid down a comprehensive theory of the development of law. On the one hand, differing from Savigny, Maine recognized legislation.is a very potent source of law, and on the other hand, he avoided the excesses of philosophical school of Germany. Maine used the study of legal history mostly to understand the past and not to determine the future course and standards, and in this field he made valuable contributions to legal theory. Later researches in anthropology have brought new facts into light which do not support Maine's view of the course of legal development but even then his work is creditable for his approach. 4

5 Maine made a comparative study of various legal systems and traced the course of their evolution. According to him, law developed through the Following 'four stages' i.e., - (i) Law made by the ruler under divine inspiration, (ii) Customary Law, (iii) Knowledge of law in the hands of priests, (iv) Codification. The societies which do not progress beyond the fourth stage are "static societies" (as Maine calls them). The societies which go on developing their law by new methods are called progressive. Progressive societies develop their laws through legal fiction, equity and legislation. As to the legal conditions prevailing at the end of the general course of evolution, i.e., of static societies, Maine calls them 'status' and ultimately he concluded that a progressive society moves "from the status to contract". Maine's theory preaches a belief in progress and it contained the germs of sociological approach. He inspired later Jurists like Maitland, Vinogradoff and Lord Bryce. who applied historical and comparative method of the study of Q.11 Explain the contribution of Duguit. Contribution of Duguit ( ) - Duguit's Theory of "Social Solidarity" ultimately becomes a theory of natural law, or a theory of justice, the idea of justice that we find in him is perfectly in social terms and derived from social facts. He shaped a theory of justice out of the doctrines of sociology. Many later jurists, like Kelsen though proceeding from different premises, i cached similar conclusions as Duguit had reached (specially about the state, right, and public and private law). He launched a vigorous attack on the myth of state sovereignty. The 'social solidarity' is the touch-stone of judging the activities of individuals and all organisations. State is also a human organisation and it is in no way different from other organisations. It is simply the expression of the will of the individuals who govern. They too are under a duty to ensure 'social solidarity'. Duguit's view on state and its function led him to deny the distinction between 5

6 private and public law. Both are to serve the same end, i.e., 'social solidarity'. He denies the existence of private rights. With Comte he says : The only right which any man can possess is the right always to do his duty. National] socialists and Soveit jurists both adopted many of the principles from Duguit's theory, but interpreted it in such a way as to suit their purpose or took only such part of the theory which supported their activities. Inspired by Duguit's emphasis on the importance of 'group' many later jurists as Hauriou and Renard propounded 'Institutional theory'. Though Duguit's theory holds good hardly on any point, he is credited for his original and comprehensive approach which inspired many jurists to propound new theories. Q. 12 Explain the Contribution of Roscoe Pound. Ans. Contribution of Roscoe Pound - Pound is considered to be the American' leader in the field of sociological jurisprudence. His main thesis is that the task of law is "social engineering." By social engineering pound means a balance between the competing interest in the society. His legal philosophy is free from all dogmas. He takes a middle way avoiding all exaggerations. He speaks of values but says that they are relative. He emphasises 'engineering' but does not forget the task of maintaining of balance. His approach is experimental. Pound's theory stands on a practical and firm ground and it has inspired great practical field-work. His emphasis on studying the actual working of legal rules in the society, the importance of social research for good-saw making and pointing out the great constructive function which the law is to perform are very valuable contributions to jurisprudence. He points out the responsibility of the lawyer, the judge and the jurist and gives a comprehensive picture of the scope and field of the subject. Pound's influence on modern legal thought is great and the study of the subject is being undertaken under the light of his theory. Q.13 Explain the contribution of Kelsen. 6

7 Ans. Contribution of Kelsen- Kelsen has made an original, striking, and greatly valuable contribution to jurisprudence. He has considerably influenced the modern legal thought. He propounded "Pure theory of law" which on tin-one hand, avoids any discussion of ethics of natural law, and, on the other hand, it reacts against the modern sociological approaches which go to widen the boundaries of jurisprudence to a very large extent. According to kelsex Law is a normative science. Every legal act relates to a norm which gives legal validity to it. In this way every legal norm gains its force from some more general norm which backs it. Ultimately that hierarchy relates back to an initial norm or initial hypothesis, called 'Grundnorm', and it is from this norm that all inferior norms derive their force. This 'Grundnorm' is the starting point in a legal system. From this base a legal system broadens down in gradation, becoming more and more detailed and specific as it progresses. Kelsen calls this process 'gradual concretization' of 'Grundnorm' or the Basic norm - thus focussing the law to specific situations. This is a dynamic process. Analysis of legal concepts - Kelson's view regarding right, personality, state, and public and private law have received great support from various quarters and they require a very close study. His theory very forcefully suggests for a revaluation of these concepts. Positivist - His abstract notions which covered the law, Kelsen took positive law as the subject-matter of his study. With his scientific precision and mighty and unparallel logical subtlety he analysed the legal order in a most convincing way. Such criticism as "in the anxiety to keep his theory 'pure', he raises it to such a remote and inaccessible altitude that it has difficulty in drawing the breath of life" which means that theory gives no practical guidance, is out of point. Kelsen himself never intended his theory for this purpose. Practical value - The practical value of the theory for a lawyer is that at least it clears his mind and after that he is free to make a choice of an ideology. 7

8 The theory was much criticised in the beginning as it propounded something and starting but now it is drawing very wide appreciation, Q.14 Explain the Contribution of Hart. Contribution of Hart - Hart's contribution may be assessed as in the light of the following points - 1. Reformulation of Analytical Positivism - His theory, on the one hand builds on and, on the other hand, makes important modifications in the theories of Austn and Kelsen. "Two aspects of Hart's analysis of the concept of law are of special importance. In the first place, he bridges the age-old conflict between the theories of law emphasising recognition and social obedience as the essential characteristic of a legal norm, and those that see the distinctive characteristic of law in the correlated elements of authority, command, and sanction." The former approach is that of the Savigny, Ehrlich and others. The latter is that of Austin, Kelsen and their followers. 2. Primary rules of obligation and secondary rules of recognition- Social acceptance predominates in primitive societies and organised authority predominates in more developed societies. This distinction is expressed in terms of contrast between primary rules of obligation and secondary rules of recognition. 3. Primary rules give way to secondary rules - ''Both historically and logically, primary rules of obligation generally give way to secondary rules, in which the forms of recognition, change arid adjudication are systematised, usually through the centralisation of authority, the articulation of definite procedures for the making application and execution of law, and a system of official sanction. International Law According to Hart, in the contemporary world international law is the conspicuous illustrations of a system of primary rules. 8

9 Explain the "Doctrine of Stare Decisis AflsrT5octrine of Stare Dedsi - Historically speaking, the doctrine of precedents began by asserting the "Doctrine of stare decisis. This means 'to stand by precedent and not to disturb the settled point of law". When a point of law has been decided once, it becomes precedent and it must not be departed from in subsequent cases. In other words, the judges have to follow the past decisions as model with the help of which they should decide the case on hand. The 'Doctrine of Stare Decisis' is not fully applicable in India. The supreme court is not bound by its-own earlier decisions; so also the High courts are not bound by their earlier decisions. But to say this is to utter a technicality because in actual fact the judge; are most reluctant to depart from earlier decisions. The Supreme Court has laid down that except for compelling reasons, it will not depart from its earlier decisions. In Indian jurisprudence, an outstanding example is the historic case of I.C. Golaknath which laid down in the year 1966 that even in future Parliament cannot amend fundamental rights in Part III of the Constitution. This decision was expressly overruled in Keshavan and Bharati's case, known as the & indumenta rights case', white was decided by the Supreme Court in Q. 15. Explain vicarious liability under criminal Saw? Ans. Vicarious Liability under Criminal law - In criminal law the general principle is that a person is not liable for the acts of another. A master is not criminally liable for the unauthorized acts of his servant. However, there are certain exceptions to this rule. The legislature may prohibit an act or enforce a duty in such terms as to make the prohibition or the duty absolute; in that case the principal is liable if the act is in fact done by his servant. Thus, a statute may impose criminal liability upon the master as regards the acts or omissions of his servants. A master or owner is liable in case of public nuisance 9

10 Q. 16 What is rule of absolute liability? JANHIT COLLEGE OF LAW AnsRule of absolute liability - in M.G. Mehta Vs. Union of India, the SC 1086, the Supreme Court evolved the rule of 'absolute liability as part of Indian law in preference to the rule of strict liability laid down in Ryiamds Vs. Fletcher. It expressly declared that the new rule was not subject to any of the exceptions under the rule in Rylands Vs. Fletcher. Because those who had established hazardous industries in and around thickly populated areas could escape the liability for the havoc caused thereby pleading some exception to the rule in Ryiands Vs. Fletcher. For instance, when the escape of the substance causing damage is due to the act of a stranger, say due to sabotage, there is no liability under that rule. In his original petition Mr. M.C. Mehta sought a closure of Shriram Industries as it is engaged in manufacturing of hazardous substances and is located in a densely populated area of Delhi. While the petition was pending, oleum gas leaked from one of its units affecting several persons. A three judge bench allowed the partial reopening of the plant but directed the company to take all necessary safety measures. On behalf of those affected by the gas leak, the Delhi Legal Aid and Advice Board and the Delhi Bar Association filed applications for compensation in the original petition by M.C. Mehta. The case is referred to a larger bench of five judges. While the 3-judge bench extended the scope of the right to life and said that the State had power to place restrictions on carrying of hazardous industrial activities, the 5-judge bench made further extension of the right and held that the right to life contains the right to claim compensation to victims of pollution hazards. The court observed that the rule of Rylands Vs, Fletcher was evolved in the 19th century at a time when all these developments of science and technology had not taken place... We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrilized economy The court, thus, held that it was not bound to follow the 19th century rule of English law, and it could evolve a rule suitable to the social and economic. 10

11 Explain the modes of acquisition of possession. JANHIT COLLEGE OF LAW Modes of Acquisition of Possession - There are three modes of acquisition of possession i.e. - Taking - It implies an act exclusively on the part of the person who takes' the possession. Taking is 'original' or 'derivative'. The 'original' taking takes place when the object has no previous owner as res nullius. When the possession of a thing is taken which has already a previous owner, it is 'derivative' taking. Here 'taking' means acquiring possession without the consent of that previous owner or possessor. The derivative taking may be rightful or wrongful. Keeton gives the example of both "Where an innkeeper seizes the goods of his guest, who has failed to pay his bill, there is an acquisition of possession against the will of the previous possessor, but it is rightful taking of possession Where a thief steals a watch, this is still an acquisition of possession against the will of the true owner, but it is wrongful, i.e. not in pursuance of a legal right. Delivery - Delivery means the voluntary relinquishment of in by one person in favour of another. Delivery may be actual or constructive Actual delivery means the transfer of immediate possession. A delivers a watch to B. All that is not actual delivery is constructive delivery. The delivery of a key of a house with the intention of delivering possession of the house is the constructive delivery of the house, By operation of law - Acquisition of Possession also takes place when by the operation of law goods are removed from the possession of one person to the other. For example, when a person dies, the things in his possession pass to his personal representative. Jurisprudence Jurisprudence is the science of the first principles of civil Mid. Discuss. Or 11

12 "Jurisprudence is the formal science of Positive Law." Holland. Explain. Or "Jurisprudence is the Philosophy of Positive Law", Austin. Discuss. "Jurisprudence is the scientific synthesis of the essential principles of law". Dr. Allen. Or Examine with reference to Holland and Salmond the definition of Jurisprudence. Point out how far these definitions are good today? Or Q.19 Discuss in brief the various definitions of Jurisprudence. What according to you would be the most appropriate definition of Jurisprudence? Ans. Etymological Meaning of Jurisprudence - The English word "Jurisprudence" has been taken from a Latin word "Jurisprudential", which consists of two words, 'Juris* and 'prudentia'. *Jruis' means law and 'Prudentia' means knowledge. Jurisprudence, therefore, literally means knowledge of law and its application. In this sense it covers the whole body of legal principles in the world. It studies the general terms of the law. Juristic Meaning of Jurisprudence - That history of the concept of law shows that jurisprudence has assumed different meanings at different times. It is, therefore, difficult to give a singular definition of the term. Since the growth and development of law in different countries has been under different social and political conditions hence the different jurists have given the different definitions according to their own notion of the subject-matter and so it is not possible to give a universal and uniform definition of Jurisprudence. So the different jurists have defined this term in different ways - Or 12

13 1. According to Ulpian, "Jurisprudence is the knowledge of things human and divine, the science of the Just and unjust." Criticism-The above definition is wider and broad enough In cause it includes the term 'Dharma' under Hindu Jurisprudence. It also covers the province of religion, ethics and philosophy. According to Jaimini Dharma may be defined as "that which signifies by a command, and leads to a man's material and spiritual salvation. The modern jurisprudence does not study the spiritual salvation. It is now-a days places the periods of prescription or the requisites of a good marriage. It is for jurisprudence to elucidate the meaning of prescription in its relation to ownership and to actions; or to explain the -Jegal aspects of marriage and its connection with property and the family. Q.20 Discuss the nature and scope of Jurisprudence. What is of this subject in the study of law? 'Jurisprudence is the eye of law."comment. Ans. Nature of Jurisprudence Jurisprudence in its nature is entirely /different subject from other social sciences. The reason for this is that/ft is not codified but a growing and dynamic subject haying no limitation on itself. Its inquiry system is of different status from other subjects. Every jurist does not base his study on the rules made but tries to understand their utility after due deliberation. Thus, jurisprudent has no limited scope being a growing subject. There is a difference of opinion about the nature of Jurisprudence. It is called both Art and Science. But to call it science would be more proper and useful. The reason for this is that just as in science we draw conclusions after making a systematic study by inventing new methods. In the same/way jurisprudence is concerned with the fundamental principles 0flaw and systematic and scientific study of their methods. 13

14 Scope of Jurisprudence Broadly speaking, Jurisprudence includes all corrects of human order and conduct in State and Society. According to Justice P. B. Mukherjee, "Jurisprudence is both an intellectual and idealistic abstraction as well as behavioural study of man in society. It includes political, social, economic and cultural ideas. It covers that study of man in relation to State and Society. Jurisprudence involves certain types of investigations into law, an investigation of an abstract, general and theoretical nature which seeks to lay the bare essential principles of law and legal systems. Elaborating the point further, Salmond observed, "In jurisprudence we are not concerned to derive rules from authority and apply them to problem; we are concerned rather to reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of legal system." This makes the distinction between law and Jurisprudence amply clear. Thus, whereas in law we look for the rule relevant to the given situation, in jurisprudence we ask, what is for a rule to be a legal rule, and what distinguishes law from morality; etiquette and other related phenomenon. It, therefore, follows that jurisprudence comprises philosophy of law and its object is not to discover new rules but to reflect on the rules already known. Utility or Importance of Jurisprudence It is often said that ^jurisprudence being an abstract and theoretical subject, is not of any practical use. But it is not correct to say so. Its utility is as under 1. Salmond pointed out that jurisprudence has its own intrinsic interest like any other subject of serious scholarship. Just as a mathematician investigates the number theory not with the aim of seeing his findings put to practical use but by reason of the fascination which it holds for him, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest. The legal researches on jurisprudence may well have their effect on contemporary socio- 14

15 political thought at the same time may themselves be influenced by these ideologies. Jurisprudence also has its practical applicability. It seeks to rationalise the concepts of law which enables us to solve the different problems involving intrieateness of law. In other words, it serves to render the complexities of law more manageable and rational and in this way jittery can help to improve practice in the seats of law3. Jurisprudence has great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and formalism and trains them to concentrate or social realities and the functional aspects of law. It is not the form of law but the social function of law which has relevance in modern jurisprudence. Law has to take note of the needs of society and also of the advances in related and relevant disciplines such as sociology, economics, philosophy, psychiatry etc. For Instance, a proper understanding of law of contract may perhaps require some knowledge of economic and economic theory or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and perhaps also of sociology. Q. 21. (a) Discuss the various ends of criminal justice, In this connection give a critical appraisal of various theories of punishment. Explain the relation between the deterrent and preventive theories. Which theory of punishment is suitable to India? (b) In the light of the various theories of punishment express your opinion for and against the abolition of the death sentence. Is capital punishment unconstitutional? Ans. Various Ends of Criminal Justice - The purpose of criminal justice is to punish the wrongdoer. He is punished by the state. The question arises for consideration as to what is the purpose of punishment or the end of criminal justice. From very ancient times, a number of theories have been given 15

16 concerning the purpose of punishment. These theories may be broadly divided into two classes. The view of one class of theories is that the end of criminal justice is to protect and add to the welfare of the State and Society. The view of the other class of theories is that the purpose of punishment is retribution. The offender must be made to suffer for the wrong committed by him. Theories of Punishment There are five theories of punishment 1. Deterrent Theory According to Salmond, "Punishment is before all things deterrent and the chief end of the law of crime is to make the evildoer an example and a warning to all that are likeminded with him." I Lock is also of the opinion that the commission of every offence should be made "a bad bargain for the offender." According to the deterrent theory of punishment, the object of punishment is not only to prevent the wrongdoer from doing a wrong a second time but also to make him an example to other persons who have criminal tendencies. A judge once said : "I don't punish you for stealing the sheep but so that sheep may not be stolen." An exemplary punishment should be given to the criminal so that the others may learn a lesson from him. As Paten puts ; "The deterrent theory emphasises the necessity of protecting society, by sohreating the prisoners that others will be deterred from breaking the law. 1. Preventive Theory According to this theory the object of punishment is preventive or disabling. The offenders are disabled from repeating the offences by such punishments as imprisonment, death, exile, forfeiture of office etc. By putting the criminal in jail, he is prevented from committing another crime. By dismissing a person from his office, he is deprived of an opportunity to commit a crime again. Paton says : "The preventive theory concentrates on the prisoner but seeks to prevent him from offending again in the future. Death penalty and exile serve the purpose of disabling the offender." An example of preventive punishments 16

17 is the cancellation of the driving licence of a person. As he has no licence, he is prevented from driving. 2. Criticism According to Kant this theory treats man as a thug not as a person, as a means not as an end in himself. It conflicts with I he-sense of justice. It violates the fundamental principle of all free communities that the members of such communities have equal rights tolife, liberty and the personal security. 3. Reformative Theory According to reformative theory, the object of punishment should be the reform of the criminal. Even if an offender commits a crime, he does not cease to be a human being. According to Mahatma Gandhi, 'Hate the sir, not the sinner. The reason is that the society contains within itself the germs of all the crimes that are about to be committed and the criminal is only the instrument which executes them. He may have committed a crime under circumstances which might never occur again. The object of punishment should be to bring about the moral reform of the offender. The qualities of men are latent in every criminal They are merely to develop in them. 4. Retributive Theory In primitive society, punishment was mainly retributive. The person wronged was allowed to have his revenge against the wrongdoer. The principle of '"an eye for an eye", "a tooth for a tooth" was recognised and followed. Justice Holmes writes: "It is commonly known that the early forms of legal procedure were grounded in vengeance." According to Stephen the purpose of punishment is to gratify the desire for vengeance by making the criminal pay with his body. To quote him : "The criminal law stands to passion of revenge in much the same relation as marriage to the sexual appetite." Punishment gratifies the feeling of pleasure experienced by individuals at the thought that the criminal has been brought to justice. That desire ought to be satisfied^ inflicting punishment in order to avoid the danger of private vengeance. 17

18 Arguments in Favour of Capital Punishment On the other hand 3 juristsargue (i) That there are some offenders who are not only incorrigible but who are immensely dangerous to the society, and there is no reason why the society should be burdened with maintaing such people. (ii) It is to be noted that punishment by state is a substitute for private revenge and if a murderer is not punished with death, it is quite possible that other relatives of the victim might murder the murderer and thus a chain of murder might set in. Thus, it is clear that so long as human emotions are powerful, the powers of vengeance prevail and as, such capital punishment is a necessary kind of punishment. Conclusion It can fairly be said that although capital punishment serves some purposes but it must be awarded only in those cases where there are aggravating circumstances. Arguments in Favour of Capital Punishment On the other hand 3 jurists argue (i) That there are some offenders who are not only incorrigible but who are immensely dangerous to the society, and there is no reason why the society should be burdened with maintaing such people. (ii) It is to be noted that punishment by state is a substitute for private revenge and if a murderer is not punished with death, it is quite possible that other relatives of the victim might murder the murderer and thus a chain of murder might set in. 18

19 Thus, it is clear that so long as human emotions are powerful, the powers of vengeance prevail and as, such capital punishment is a necessary kind of punishment. Conclusion It can fairly be said that although capital punishment serves some purposes but it must be awarded only in those cases where there are aggravating circumstances. Is Capital Punishment Unconstitutional? In Bachan Singh Vs. State of Punjab A.I.R., 1980 the constitutionality of death penalty for murder provided U/S. 302 I.P.C. and the sentencing procedure embodied in S. 354 (3) Cr. P.C., 1973 was challenged in the Supreme Court, on the ground that they are violative of Arts. 14,19 and 21 of the Constitution. The majority of the Constitution Bench held that provisions of death penalty as alternative punishment for murder and also the sentencing procedure in S. 354 (3) do not violate Arts. 14, 19 and 231 of the constitution. Q.22 Law is a command of Sovereign. Austin Discuss. Do you agree with the view that Austinian definition of law is not suitable for a modern democratic state which has a written Constitution? Or Critically explain the imperative Theory of Law How far do you agree that it is unethical and inadequate? Positive Law- These are the laws set by political superiors as such, or by men not acting as political superior but acting in pursuance of legal rights conferred by political superiors. Only these laws are the proper subject matter of jurisprudence. Positive Morality- Other laws which are not set by political superiors (set set by persons who are not acting in the capacity or character of political superiors) or by men in pursuance of legal rights. This class includes international Law. Laws improperly so called are also divided into two heads- 19

20 Laws by Analogy- These are the opinions or sentiments of an underterminate body of men, i.g., laws of fashion, honour and etiquette etc. Positive Law as Command The law properly so-called is die positive law depends upon political authority the sovereign. Every rule, therefore, according to Austin is a command. So laws properly so called are a species of commands. If you express or intimate a wish that I shall do or forbear from some act, and you will visit me with an evil in case I do not comply with your wish, the expression or intimation of your wish is a command. If I am bound by it, I lie under a duty to obey it. Command duty are, therefore, correlative terms. Command further implies not only duty but sanction also. Command and Sanction Sanctiojris an evil which will be incurred if a command is disobeyed and is the means by which a command or duty is enforced. It is wider than punishment. A reward for obeying the command can scarcely be called a sanction. A command embraces (a) A wish or desire conceived by a rational being to another rational being who shall do or forbear; (b) An evil to proceed from the former to be incurred by the latter in case of non-compliance; and an expression or intimation of the will by words or otherwise. Command are of two kinds 1. General and 2. Particular. General Command A general command is a law or rule where it obliges generally to acts or forbearances of class. All commands are not law, it is only the general command, which obliges to a course of conduct, is law. Particular Command It is occasional or particular when it obliges to a specific individual act or forbearance. Law is a command of sovereign which obliges a person or person to a course of conduct. It requires signification and can, therefore emanate from a 20

21 determinable source or author (a person or body of persons). Thus, Austin resolved every law into a command of the law giver, an obligation imposed there by on the citizen and a sanction threatened in the event of disobedience. Q.23 Discuss Kelsen s Pure Theory of Law. What are the main points of criticism of this theory? Ans. Law is a Normative Science According to Kelsen law is a normative science.' But law norms may be distinguished from science on the ground that norms of science are norms of 'IS' (Sein) are based on cause and effect such as law of gravitation.the law natural science are capable of being accurately described, determine and discovered in *IS' which is an essential characteristic of all natural while the law norms are 'Ought' (Soiisn) norms. Law does not attempt describe what actually occurs but only prescribes certain rules. It sir ii one breaks the law, then he ought to be punished.' These legal 'Ought' norms differ from 'morality norms hi respect of the fact that the for me are backed by physical compulsion while the latter lacked. Kelsen does not admit the command theory of Austin as it introduces psychological element into the definition of law which Kelsen avoids. To Kelsen, "law is a depsychologized command, a command which does not imply a will in a psychological sense of the term. 2. Hierarchy of Normative Relations The science of law to Kelsen is knowledge of hierarchy of normative relations. He builds on Kant's theory of knowledge and extends this theoretical knowledge to law also. He does not want to include in his theory what the law ought to be and speaks of his theory of law as a structural analysis, as exact as possible, of the positive law, an analysis free of all ethical or political judgments of value. 3. Seperation of Mw from Other Social Sciences and Morals Kelsen limits the scope of jurisprudence by excluding its relation with any social science. He seperates law from polities, sociology, metaphysics and all other extra-legal 21

22 disciplines. Like Austin, Kelsen divested moral, ideal or ethical elements from law and wished to create a 'pure* science of law devoid of all moral and sociological considerations. He rejected Austin's definition of law as a command as it introduces subjective considerations whereas he wanted legal theory to be objective. Likewise, he also 'discards the notion of justice as an essential element of law because many laws, though not just, may still continue as law. He defines 'science' as. a system of knowledge or a 'totality of cognitions' systematically arranged according to logical principles. Kelsen's grundnorm is analogous to Austin's concept of sovereign without which law cannot be obligatory and binding. Thus, Kelsen's pure theory of law is a theory of positive law based on Tabrmative order eliminating all extra-legal and nonlegal elements from it. 4. The 'Grundnorm' Kelsen's Pure Theory of Law is based on pyramidical structure of hierarchy of norms which derive their validity fronvtne basic norm which he termed as 'Grundnorm'. The Grundnorm or basic norm determines the content and gives validity to other norms derived from it. Kelsen has no answer to the question as to wherefrom the Grundnorm or basic norm derives its validity. He considers it to be a meta-legal question in which jurist need not intrude. Keken, however, onsiders Grundnorm as a fiction rather than a hypothesis. 5. Pyramid of Norms Kelsen considers legal science as a pyramid with 'Grundnorm' at the apex. The subordinate norms are controlled by norms superior to them in hierarchical order. The 'Grundnorm is however, independent of any cither norm being at the apex. The process of one norm deriving its power from the norm immediately superior to it, until it reaches the Grundnorm has been termed by Kelsen as 'concretisation' of the legal system. Thus, the system of norms proceeds from downwards to upwards and finally it.closes at the Grundnorm at the top. 22

23 Essential Features of Kelsen's Theory The basic features of Kelsen Pure Theory of Law are as under 1. The aim of a theory of law, as of any science, is to reduce chaos and multiplicity to unity. 2. Legal theory is science, not volition. It is knowledge of what the law is', not of what the law 'ought to be. 3. The law is a normative not a natural science. 4. Legal theory as a theory of norms is not concerned with the effectiveness of legal norms. 5. A theory of law is formal, a theory of way of ordering, changing contents in a specific way. 6. The relation of legal theory to a particular system of positive law is that of possible to actual law. Postulates of Kelsen's Theory Postulates of Kelsen theory are 1. Law and State are riot Two Different Things According to Kelsen-there is no difference between law and state. He says that when all derive their power and validity ultimately from the 'Grundnonn' there can be no superior person as 'sovereign'. In the same way the state is but a simple way of conceiving the unity of legal order. The reality of state is that it is a system regulating the social behaviour in a normative order. But such a working can be discovered only in a legal system. Really speaking, law and state are the same, and the difference between them-appears because we look at them from two different points of view. 2. No Distinction Between Public and Private Law According to Keisen, there is no difference between public and private law. When all law derives its force from the same 'Grundnorm', two entirely different characters cannot be 23

24 attributed to it. No distinction between them can be made on the ground that they protect interest of different nature. Private interests are protected in public interest. 3. No Difference Between Natural and juristic Persons To Kelsen a legal personality is artificial and derives its validity from superior norms. 'Personality in law means an entity capable of bearing rights and duties. The legal order confers personality where it wills. Law treats human beings also as an entity having' Vights and subject to duties. So in law they differ in no way from legal persons. 4. No Individual Rights Kelsen's-xpnception of law as a system of normative relations leads to the conclusion that there is no such thing as individual right in law. Legal duties are the 'essence of law'. Law is always a system of 'oughts'. The concept of right is not basically essential for a legal system; 'legal right is merely the duty as viewed by the person entitled to require its fulfilments.' In criminal law, in most part, the idea of individual right has ceased and the State itself moves against the accused. 5. Supermacy of International Law Kelsen tries to estabjjshthe supremacy of International Law. Kelsen says that the International Law should also be considered a 'juridical order. To remove the difficulty which arises by the fact that International Law does not possess all the characteristics of law, especially the 'apparatus of compulsion', he says that it is comparable to 'primitive law.' As law in the beginning was in customary form without an adequate sanction and assumed the present form after a course of evolution, so the present International Law is (like primitive law) in its early stage, and in future it will have all the characteristics which the modem law has. Q.24. Write a critical note on the Historical school of Jurisprudence. Or 24

25 Critically examine the Volksgeist Theory of Savigny and assess his contribution. Ans. Historical School of Jurisprudence The chief supporter of this school are Savigny, Cartar, Puchta, Henary Maine and G.C. Lee. Under Historical School of Jurisprudence we study the orgin, development and systematized change in law and legal concepts In this school the study of mutual relations of state and law is made in Historical perspective. According to the view of Historical School law is found, not made. Law is based on customs and usages. One of the main exponent of this school is Savigny. Savigny ( )-German jurist Fredrich Karl Von Savigny is known as the founder of Historical School of Jurisprudence. The main propositions of his theory of law are as under 1. Source of Law is Volksgeist Savingny was of the opinion that law is a product of the people's life it is a manifestation of its spirit. Law has its source in the general consciousness (Volksgeist) of the people. According to Savigny, a law made without taking into consideration the past historical culture and tradition of community is likely to create more confusion than solving the problems because law is not an "artificial lifeless mechanical device." Thus, the origin of law lies in the popular sprit of the people which Savigny termed as Volksgeist. 2. Law Develops Like Language and has a National Character Savigny remarked that law has a national character and it develops like language and binds people into one whole because of their common faiths, beliefs, and convictions. He pointed out that "law grows with the 'growth of the society and gains its strength from the society itself and finally it dies away as the nation loses its nationality." Law, language, customs and government have no separate existence from the people who follow them. Common conviction of 25

26 the people makes all these as a single whole. The central theme of Savigny's historical jurisprudence may be summarised as under "The organic evolution of law with the life and character of the people develops with the ages, and in this it resembles language. As in the latter, there can.be no instant of rest, there is always movement, and development of law is governed by the same power of internal necessity as simple phenomena. Law grows with a nation, increases with it, and dies at its dissolution and is a characteristic of it." 3. Early Development of Law is Spontaneous; Latter on It is Developed by Jurists According to Savigny in the earlier stages law develops spontaneously according to the internal needs of the community but after the community reaches a certain level or civilization, the different kinds of national activities, hitherto developing as a whole, bifurcate in different branches to be taken up for further study by specialists such as jurists, linguists, anthropologists, scientists etc. Law has to play a duel role, namely, as a regulator of general national life and as a distinct discipline for study. The former may be called the political element of law while the latter as a jurisitc element but both have a significant role in the development of law. The history of Roman law furnishes the best illustration of these processes. 4. Savigny's View on Codification of Law Although Savigny not totally against codification of laws. He, however, opposed the. codification of the German law on the French (Napoleonic Code ) pattern at that time because Germany was then divided into sevn.il smaller states and its law was primitive immature and lacked uniformity. He said that German law could be codified at a later stage when the unification of Germany takes place and there is one law and one language throughout the country. Since Volksgeist i.e. common consciousness had not adequately developed at that time, therefore, codification would have marred the evolution and growth of law. 26

27 5. Law is a Continuous and Unbreakable Process Tracing the evolution of law from Volksgeist, Savigny considered its growth as a continuous and unbreakable process bound by common cultural traditions and beliefs. It has its, roots in the historical processes which should constitute the subject of study for the jurists. According to him, codification of law may hamper its continuous growth and, therefore, it should be sorted to when the legal system has fully developed and established. 6. Saragny's Admiration for Roman Law While emphasizing Volksgeist as the essence of law, Savigny justified adoption of Roman law in the texture of German law which was more or less diffused in it. He, therefore, located Volksgeist in the Romanised German customary law. He considered Roman law as an inevitable tool for the development of unified system of law in Germany. Q.25 The movement of Progressive Societies has hitherto been a movement from status to a contract. Comment on this statement of Maine and critically assess his contribution? Also comment on the reversal of trend from contract to status. Ans. Ans. Henry Maine ( ) Maine studied ancient law of Indiaand drew a comparison between the Indian Law and the Laws of Modern Western Societies. Among other works of Maine, his books entitled 'Village Communities', 'Early History of Institutions', 'Dissertation of Early Law and Custom', deserve special mention. Maine's Views on the Development of Law Maine, through his comparative researches came to the conclusion that the development of law and other social institutions has been more or less on an identical pattern in almost all the ancient societies belonging to Hindu, Roman, Anglo Saxon, Hebrew and Germanic Communities. Most of these communities are founded on patriarchal pattern wherein the eldest male parent called the pater familias dominated the entire family including all its male and female members, children and slaves as 27