Jurisprudence Class Notes 04.01.2011 Module I- Introduction to Jurisprudence 1. Nature and Scope of Jurisprudence 2. The Nature of Law Nature and Scope of Jurisprudence What is Jurisprudence? There is no universal or uniform definition of Jurisprudence since people have different ideologies and notions throughout the world. It is a very vast subject. When an author talks about political conditions of his society, it reflects that condition of law prevailing at that time. Romans were the first who started to study what is law. Jurisprudence- Latin word Jurisprudentia - Knowledge of Law or Skill in Law. Most of our law has been taken from Common Law System. Bentham is known as Father of Jurisprudence. Austin took his work further. Bentham was the first one to analyse what is law. He divided his study into two parts: 1. Examination of Law as it is- Expositorial- Command of Sovereign. 2. Examination of Law as it ought to be- Censorial- Morality of Law. Austin stuck to the idea that law is command of sovereign. The structure of English Legal System remained with the formal analysis of law and never thought what it ought to be. J. Stone also tried to define Jurisprudence. He says that it is a lawyer s extra version. It is lawyer s examination of the percept, ideas and techniques of law in the light derived from present knowledge in disciplines other than the law. There can be no goodness or badness in law. Law is made by the state so there could be nothing good or bad about it. Jurisprudence is the science of law.
Definitions by: 1. Austin 2. Holland 3. Salmond 4. Keeton 5. Pound 6. Dias and Hughes 05.01.2011 Austin- Science of Jurisprudence is concerned with Positive Laws that is laws strictly so called. It has nothing to do with the goodness or badness of law. Two Parts: 1. General Jurisprudence- It includes such subjects or ends of law as are common to all system. 2. Particular Jurisprudence- It is the science of any actual system of law or any portion of it. In essence they are same but in scope they are different. Salmond s Criticism He said that for a concept to be General Jurisprudence, it should be common in various systems of law. This is not always true. Holland s Criticism He said that it is only the material which is particular and not the science itself. Holland s Definition- Jurisprudence means the formal science of positive laws. It is analytical science rather than material science. 1. He defines the term positive law. He says that the positive law means the general rule of external human action enforced by a sovereign political authority.
2. He simply added the word formal in Austin s definition. Formal means we study only the form and not the essence. We study only the external features and do not go into the intricacies. How it is applied and how it is particular that is not the concern of Jurisprudence. 3. The reason for using the word Formal Science is that it describes only the form or the external sight of the subject and not its internal contents. Jurisprudence is not concerned with the actual material contents of law but with its fundamental conceptions. Therefore, Jurisprudence is a Formal Science. 4. It has been criticized by Gray and Dr. Jenks. Jurisprudence is a formal science because it is concerned with the form, conditions, social life, human relations that have grown up in the society and to which society attaches legal significance. 5. Jurisprudence is a science because it is a systematized and properly co-ordinated knowledge of the subject of intellectual enquiry. The term positive law confines the enquiry to these social relations which are regulated by the rules imposed by the states and enforced by the courts of law. Therefore, it is a formal science of positive law. 6. Formal as a prefix indicates that the science deals only with the purposes, methods and ideas of the basis of the legal system as distinct from material science which deals only with the concrete detail of law. 7. It has been criticized on the ground that this definition is concerned only with the form and not the intricacies. 06.01.2011 Salmond- Jurisprudence is Science of Law. By law he means law of the land or civil law. He divides Jurisprudence into two parts: 1. Generic- This includes the entire body of legal doctrines. 2. Specific- This deals with the particular department or any portion of the doctrines. Specific is further divided into three parts: 1. Analytical, Expository or Systematic- It deals with the contents of an actual legal system existing at any time, past or the present. 2. Historical- It is concerned with the legal history and its development. 3. Ethical- The purpose of legislation is to set forth laws as it ought to be. It deals with the ideal of the legal system and the purpose for which it exists.
Criticism- It is not an accurate definition. Salmond only gave the structure and failed to provide any clarity of thought. Keeton- He considers Jurisprudence as the study and systematic arrangement of the general principles of law. Jurisprudence deals with the distinction between Public and Private Laws and considers the contents of principle departments of law. Roscoe Pound- Jurisprudence as the science of law using the term law in juridical sense as denoting the body of principles recognized or enforced by public and regular tribunals in the administration of justice. Dias and Hughes- Jurisprudence as any thought or writing about law and rather than a technical exposition of a branch of law itself. Conclusion- Jurisprudence is the study of fundamental legal principles. Scope of Jurisprudence- Austin was the only one who tried to limit the scope of jurisprudence. He said morals and theology in the study of jurisprudence. Basically, the study of jurisprudence cannot be circumscribed because it includes all human conduct in state and society. Approaches to the study of Jurisprudence- There are two ways 1. Empirical- Facts to Generalization. 2. A Priori- Start with Generalization in light of which facts are examined. 07.01.2011 Significance and Utility of the Study of Jurisprudence 1. This subject has its own intrinsic interest because this is the subject of serious scholarship and researchers in jurisprudence; they contribute to the development of society by having repercussions in whole legal, political and social thoughts. One of the tasks of this is to construct and elucidate concepts serving to render the complexities of law more manageable and more rational. In this way, theory can help to improve practice. 2. Jurisprudence also has an educational value. It helps in the logical analysis of the legal concepts and it sharpens the logical technique of the lawyer. The study of jurisprudence helps to combat the lawyer s occupational view of formalism which
leads to excessive concentration on legal rules for their own sake and disregard of the social function of the law. 3. The study of jurisprudence helps to put law in its proper context by considering the needs of the society and by taking note of the advances in related and relevant disciplines. 4. Jurisprudence can teach the people to look if not forward, at least sideways and around them and realize that answers to a new legal problem must be found by a consideration of present social needs and not in the wisdom of the past. 5. Jurisprudence is the eye of law, grammar of law because it throws light on basic ideas and fundamental principles of law. Therefore, by understanding the nature of law, its concepts and distinctions, a lawyer can find out the actual rule of law. It also helps in knowing the language, grammar, the basis of treatment and assumptions upon which the subject rests. Therefore, some logical training is necessary for a lawyer which he can find from the study of jurisprudence. 6. It trains the critical faculties of the mind of a student so that they can dictate fallacies and use accurate legal terminology and expression. 7. It helps a lawyer in his practical work. A lawyer has to tackle new problems which he can handle through his knowledge of jurisprudence which trains his mind into legal channels of thought. 8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws passed by the legislators by providing the rules of interpretation. Therefore, the study of jurisprudence should not be confined to the study of positive laws but must include normative study i.e. that study should deal with the improvement of law in the context of prevailing socio-economic and political philosophies of time, place and circumstances. 9. Professor Dias- The study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence. 10.01.2011 Relationship of Jurisprudence with other Social Sciences 1. Sociology and Jurisprudence- There is a branch called Sociological Jurisprudence. This is based on social theories. It is essentially concerned with the influence of law
on society at large particularly when we say social welfare. The approach from sociological perspective towards law is different from a lawyer s perspective. The study of sociology has helped Jurisprudence in its approach. Behind all legal aspects, there is something social. Sociology of Law is different from Sociological Jurisprudence. 2. Jurisprudence and Psychology- No human science can be described properly without a thorough knowledge of Human Mind. Hence, it has close connection with Jurisprudence. Relationship of Psychology and Law is established in the branch of Criminological Jurisprudence. Both psychology and jurisprudence are interested in solving questions such as motive behind a crime, criminal personality, reason for crime etc. 3. Jurisprudence and Ethics- Ethics has been defined as science of Human Conduct. It strives for ideal Human Behaviour. a. Ideal Moral Code- In relation to Natural Law. b. Positive Moral Code- In relation to Command of the Sovereign. c. Ethics is concerned with good human conduct in the light of public opinion. d. Jurisprudence is related with Positive Morality in so far as law is the instrument positive ethics tries to assert itself. e. Legislations must be based on ethical principles. It is not to be divorced from Human principles. f. No law is good unless it is based on sound principles of human value. g. A Jurist should be adept in this science because unless he studies ethics, he won t be able to criticize the law. h. Austin disagrees with this relationship. 4. Jurisprudence and Economics- Economics studies man s efforts in satisfying his wants and producing and distributing wealth. Both Jurisprudence and Economics are sciences and both aim to regulate lives of the people. Both of them try to develop the society and improve life of the individual. Karl Marx was a pioneer in this regard. 5. Jurisprudence and History- History studies past events. Development of Law for administration of justice becomes sound if we know the history and background of legislations and the way law has evolved. The branch is known as Historical Jurisprudence. 6. Jurisprudence and Politics- In a politically organized society, there are regulations and laws which lay down authoritatively what a man may and may not do.
Nature of Law 1. Introduction- Law cannot be static because it has to grow with the development of the society. The scope of law cannot be kept static. The result is that the definition of law is ever changing with the change in society. The definition of law considered satisfactory today might be considered a narrow definition tomorrow. This view has been put forward by Professor Keeton. He says that an attempt to establish a satisfactory definition of law is to seek, to confine jurisprudence within a Straight Jacket from which it is continually trying to escape. 2. There are two jurists in this regards- Austin and Salmond. 3. Austin says law is the aggregate of the rules set by men as political superior or sovereign to men as politically subject. In short, Law is the command of sovereign. It imposes a duty and duty is backed by a sanction. There exists three elements in law: a. Command b. Duty c. Sanction 4. Salmond defines law as the body of principles recognized and applied by the state in the administration of justice. 5. Austin s Theory of Law or Imperative Theory of Law a. It is a type of command b. It is laid down by a political superior c. It is enforced by a sanction 6. He goes on to elaborate his theory. Request, wish, these are expressions of desire. Command is also an expression of desire which is given by a political superior to a political inferior. The relationship of superior to inferior, in consists in the power which the superior enjoys over the inferior because the superior has ability to punish the inferior for its disobedience. 7. He further says that the commands which are laws and there are certain commands which are not laws. Commands which are laws are general in nature. Therefore, laws are general commands. Laws are like standing order in a military station which is to be obeyed by everybody. 8. He goes on define who is a sovereign. Sovereign is a person or a body or person whom a bulk of politically organized society habitually obeys and who does not
himself habitually obey some other person or persons. Perfect obedience is not a requirement. 9. He goes on to classify law. Laws are of two types a. Divine Law- Given by god to men b. Human Law- Given by men to men i. Positive Laws- Statutory Laws ii. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc. 10. Criticism of Austin s Theory of Lawa. Laws before state- It is not necessary for the law to exist if the sovereign exists. There were societies prior to existence of sovereign and there were rules that were in prevalence. At that point of time, there was no political superior. It had its origin in custom, religion and public opinion. All these were later enforced by the political superior. Thus, sovereign is a requirement for law has received criticism - Historical and Sociological School of Thought. b. This criticism is not supported by Salmond. Salmond says that the laws which were in existence prior to the existence of state, they were something like primitive substitutes of law and not law. They resembled law. Salmond gives an example. He says that apes resemble human beings but it is not necessary to include apes if we define human beings. c. Generality of Law- The laws are also particular in nature. It is applicable to a particular domain. There are laws which are not universally applicable. Thus, laws are not always general in nature. d. Promulgation- It is not necessarily for the existence of the law that the subjects need to be communicated. But, Austin thought otherwise. e. Law as Command- According to Austin, law is the command of the sovereign. But all laws cannot be expressed as commands. Greater part of law in the system is not in the nature of command. f. Sanction- The phrase regarding sanction might be correct for the monarchical state. But for a democratic state, it does not find true meaning because it is not the force of the state but willingness of the people. In civil laws, sanction does not exist unlike criminal law. g. Not applicable to International Law- Austin s definition is not applicable to International Law. International Law is a law between sovereigns. According to Austin, International Law is simply Positive Morality.
h. Not applicable to Constitutional Law- Constitutional Law defines powers of the various organs of the state. Thus, nobody can command himself. Therefore, it is not applicable. i. Not applicable to Hindu Law or Mohameddan Law or Cannon Law- It has its origin in religion, customs and traditions. His definition strictly excludes religion. Therefore, it is not applicable. j. Disregard of Ethical elements- The moment law is devoid of ethics, the law loses it colour and essence. Austin s theory is silent about the special relationship of Justice and Law because justice is the end of law. Salmond says any definition of law which is without reference to justice is imperfect in nature. He further says Law is not right alone, it is not might alone, it a perfect union of the two and Law is justice speaking to men by the voice of the state. According to Salmond, whatever Austin has talked about is a law and not the law. By calling the law we talk about justice, social welfare and law in the abstract sense. Austin s definition lacks this abstract sense. A perfect definition should include both a law and the law. k. Purpose of law ignored- Law is formulated for social welfare. If we devoid law of ethics, the social welfare part is lost. This part has been ignored by Austin. 11. Merit of Austin s Definition- Austin has given a clear and simple definition of law because he has excluded ethics from law. He has given a paramount truth that law is created and enforced by the state. 13.01.2011 Salmond s Definition of Law Law may be defined as the body of principles recognized and applied by the state in the administration of justice. In other words, law consists of rules recognized and acted upon by the courts of justice. Law may arise out of popular practice and its legal character becomes patent when it is recognized and applied by a court in the administration of justice. Courts may misconstrue a statute or reject a custom; it is only the ruling of the court that has the binding force of law. Laws are laws because courts enforce them. He draws emphasis on administration of justice by the courts. The true test of law is enforceability in the courts of law.
Salmond has defined law in the abstract sense. His definition brings out the ethical purpose of law. In his definition, law is an instrument of justice. Criticism by Vinogradoff Definition of law by reference to administration of justice inverts the logical order of ideas. The formulation of law is necessary precedent to the administration of justice. Law has to be formulated before it can be applied by a court of justice. The definition given by Salmond is defective because he thinks law is logically subsequent to administration of justice. A rule of law because court of justice could apply and enforce it while deciding cases, vitiates the definition of law. Nature of Law 1. Sanction- It is derived from Roman law term sanctio, it is that part of the statute that established the penalty or other provisions for its enforcement. Sanction is also the motivating force for the purpose of better performance and execution of law. Reward is also a type of sanction which will enable you to do or not do something. a. Salmond says that sanction is the instrument of coercion by which any system of imperative law is enforced. b. He further says that physical force is the sanction applied in the administration of justice. Censure ridicule and contempt are the sanctions by which the society enforces the rule of positive morality. c. Also war is the ultimate sanction for maintaining the laws of nations. d. Jurists like Hobbes, Locke and Bentham have included Reward as part of the sanction. It is reward that motivates a person to do or not to do something, thus it is sanction. 2. Territorial Nature of Law- The enforcement of law is territorial in the same way as the state is territorial. The territoriality nature of law flows from political divisions of the world and as a general rule, no state allows another state to exercise powers within its domain. Therefore, enforcement of law is confined to the territorial boundaries of the state of enforcing it. The proposition that a system of law belongs to a defined territory means that it applies to all persons, acts and things within that territory. Mubarak Ali Ahmad v. State of Bombay- AIR 1957 SC 857- Admiralty Jurisdiction. 3. Purpose and function of law- Society is not static. Therefore, laws made for the people are also not static. Thus, purpose and function of law cannot remain static.
There is no unanimity in theories as to purpose and function of law. We study purpose and function in context of advantages and disadvantages. a. Advantages of lawi. Fixed principles of law- 1. They provide uniformity and certainty of administration of justice. 2. Law is no respecter of personality and therefore we say that law is certain. 3. It avoids the dangers of arbitrary, biased and dishonest decisions because law is certain and it is known. It is not enough that justice should be done but it is also important that it is seen to be done. 4. It protects the administration of justice from the errors of individual judgments. Individual whims and fancies are not reflected in the judgment of the court or rule of law. ii. Legislature represents the wisdom of the people and therefore it is much safer because it is the decision of the particular individual is not much reliable. b. Disadvantages of lawi. Rigidity of Law- An ideal legal system keeps on changing according to the changing needs of the people. Therefore, law must adjust to the needs of the people and it cannot isolate itself from them. However, in practice, law is not usually changed to adjust itself to the needs of the people. Therefore, the lack of flexibility resolves in hardship in several cases. ii. Conservative nature of law- Both lawyers and judges favour in continuation of the existing laws and the reason is that very often laws become static and they do not respond to the progressive society because of the conservative nature. iii. Formalism of law- Most of the times we look into the technical operation of law and not the merits of the case. It creates delay in the justice delivery system. There is injustice in certain cases. iv. Complexity of law- It causes difficulty in Interpretation of Statutes.
c. Therefore, advantages of law are many but disadvantages are too much- Salmond. 4. Question of Law and Fact a. Question of Law- Important for any question that comes before the court of justice. It is very difficult to determine because there cannot be one single meaning. It is ambiguous and it has different point of views. i. Salmond has defined Question of Law from three distinct senses. 1. It means a question of law which the court is bound to answer in accordance with the rule of law which has already been authoritatively answered by the court. All other questions are questions of fact. Therefore, every question which has not been determined before and authoritatively answered by law is a question of fact. 2. A question of law is a question as to what the law is. An appeal in a question of law means an appeal in which the question for decision is what the true rule of law is in a certain manner. Question of law in this sense arise out of the uncertainty of law. If the whole law could be definitely ascertained, there would be no question of law in this sense. Therefore, when a question of fact arises in a court of justice as to the true meaning of an ambiguous statutory provision, the question is one of law. An authoritative answer to the question becomes a judicial precedent which is law for all other cases in which the same statutory provision is in question. Therefore, the judicial interpretation of a statute represents a progressive transformation of the various questions of fact as to the meaning of that statute into questions of law to be answered in conformity with the decided cases. 3. The term question of law is used in the general sense that questions of law are for judges and questions of fact are for the jury to decide. In cases we do find, judges interpreting a document, and then the judge is looking into the question of fact which is supposedly to be done by jury. b. Salmond has defined Question of fact as well.
1. The term question of fact has more than one meaning. In the general sense it includes all questions which are not questions of law, therefore, everything is a matter of fact which is not a matter of law. According to Salmond, a question of fact means either a question which is not predetermined by a rule of law or any question except the question as to what the law is or any question which is to be answered by the jury. 2. Therefore, in the narrower sense, a question of fact is opposed to judicial discretion which includes questions as to what is right, just, equitable or reasonable. Therefore, evidence can be laid to prove or disapprove a question of fact. 5. Distinction between Question of fact and discretiona. Questions of fact are questions as to what actually the fact is. When we talk about discretion, the question of right comes in or what ought to be. b. In question of fact, the court tries to find out the truth, but in a question of discretion, the court decides what is just. c. Therefore, we find that, question of fact has to be proved by evidence and demonstration but question of discretion is subject to reasoning and argument. 6. Mixed question of law and fact- The court has to decide at the same time on question of law as well as fact. Earlier, we saw that there was gradual transformation of question of fact into law. 7. Transformation of Question of fact into law- The very existence of a legal system shows that transformation of question of fact into law. With more and more identical decisions on identical facts, we find that in cases which have identical facts, the discretion of judge disappears and the judge is bound to give decision on precedent on that subject. Question of fact and question of discretion transform into question of law. 8. Discordance between law and fact- Salmond says that the law is the theory of things as received and acted upon within the courts of justice and this theory may or may not conform to the reality of things outside. The eye of law does not infallibly see things as they are. a. Establishment of Legal Presumptions- Legal Presumption is a rule by which courts and judges draw a particular inference from particular facts or from particular evidence unless and until the truth of that inference is disproved.
Therefore, one fact is recognized by law as sufficient proof of another fact whether it is in truth sufficient for the purpose or not. i. Presumption of Law- 1. Conclusive (Presumptio Juris Et Dejure) - One which constrains the courts to infer the existence of one fact from the existence of another even though that inference could be proved to be false. Law prohibits leading evidence to the contrary. 2. Rebuttal- It is one where the law requires the court to draw an inference even though there is no sufficient evidence to support it. However, if sufficient evidence is given to contradict a rebuttal presumption drawn by the court, the latter is bound to reject it. ii. Presumption of Fact b. Device of Legal Fiction- Salmond says that fiction is a device by which law deliberately departs from the truth of things whether there is any sufficient reason for the same or not. Kinds of Law Salmond s division 1. Imperative Law- Imperative Law means a rule by which a general course of action is imposed by some authority which enforces it by superior power either by physical force or by any other form of compulsion. This theory is similar to John Austin. 2. Physical or Scientific Law- Physical Laws or the scientific laws are the laws of science and these are the expressions of the uniformities of nature, general principles expressing the regularity and harmony observable in the activities and operations of the universe. There is uniformity and regularity in those laws. They are not creation of men and cannot be changed by men. Human laws can change from time to time, country to country but physical laws are invariable and immutable forever. 3. Natural Law or Moral Law- It means the principles of natural right and wrong and the principle of natural justice if we use the term justice in the widest sense to
include to all forms of rightful action. Natural Law is also called Divine Law or Law of Reason or The Universal Law and Eternal Law. This law is a command of the god imposed on men. It is established by reason by which is the world is governed, it is unwritten law and it has existed from the beginning of the world and hence called eternal. This law is also called natural law as its principles are supposed to be laid down by god for the guidance of man. It is called rational thought because it is based on reason. Natural Law is unwritten as we do not find it in any type of code. Therefore, Natural law exists only in ideal state and differs from law of a state. Thus, philosophy of Natural law has inspired legislation and the use of reason in formulating a system of law. 4. Conventional Law- Any rule or system of rules agreed upon by persons for the regulation of their conduct towards each other. It is a form of special law. It is a law for the parties who subscribe to it. 5. Customary Law- Any rule of action which is actually observed by men, any rule which is the expression of some actual uniformity of some voluntary action. A custom may be voluntary and still is a law and therefore, it is an important source of law. 6. Practical Law- Practical or technical law consists of rules for the attainment of certain ends. These rules guide us as to what we ought to do in order to attain a certain end. E.g. Law of Health, Law of Architecture. 7. International Law- It consists of rules acknowledged by the general body of civilized independent states to be binding upon them in their mutual relations. It consists of rules which govern sovereign states in their relations and conduct towards each other. 8. Civil Law- It is the law of the state or the land, the law of the lawyer and the law of the court. Civil law is the Positive Law of the land or the law as it exists. Like any other law, it is uniform and that uniformity is established by Judicial Precedents. Civil law has an imperative character and has legal sanction behind it. It is also territorial in nature. It is not universal but general. Present Day Classification of Law 9. Laws of Nations a. Public Law i. Constitutional Law
ii. Administrative Law iii. Criminal Law b. Private Law- Diverse opinions i. Laws of Persons ii. Laws of Property 1. Law of Contract 2. Quasi Contract 3. Law of Torts iii. Laws of Obligations iv. Conflict of Laws 10. International Law a. Public International Law b. Private International Law 24.01.2011 Module II- Administration of Justice A. Importance of Justicea. Salmond- Definition of law itself reflects that administration of justice has to be done by the state on the basis of rules and principles recognized. b. Roscoe Pound- It is the court who has to administer justice in a state. Both Roscoe Pound and Salmond. Roscoe Pound stresses more on courts whereas Salmond stresses more on the State. B. Administration of Justice- Function of State a. War b. Administration of Justice If a state is not capable of performing these functions, it is not a state. Salmond said that the administration of Justice implies maintenance of rights within a political community by means of the physical force of the state. However orderly society may be, the element of force is always present and operative. It becomes latent but it still exists.
In a society, social sanction is an effective instrument only if it is associated with and supplemented by concentrated and irresistible force of the community. Social Sanction cannot be a substitute for the physical force of the state. c. Origin and Growth i. It is the social nature of men that he wants to live in a community. It demands that he lives in a society. This leads to conflict of interests and gave rise to administration of justice. This is the history and growth of administration of justice. ii. In the next phase, the state was trying to come into force. The so called state was not strong enough to regulate crime and to give punishment to criminals. There was law of private vengeance and self-help. iii. State comes into existence. With the growth and power of the state, it began to act like a judge to assess liability and impose penalty. Public Enquiry and punishment came into picture. iv. The modern administration of justice is a natural corollary to the growth in power of the political state. C. Advantages and Disadvantages of Legal Justice a. Advantages of Legal Justice i. Uniformity and Certainty- There is no scope of arbitrary action and even the judges have to decisions according to the declared law of the country. As law is certain, people can shape their conduct accordingly. ii. Law is not for the convenience for the special class. Judges have to act accordingly. It is through this that impartiality is secured in administration of justice. Coke says that the wisdom is law is wiser than any man s wisdom. Justice represents wisdom of the community. b. Disadvantages of Legal Justice i. It is rigid. Society changes more rapidly than legal justice. ii. Technicalities and Formalities iii. It is complex. Our society is complex. To meet the needs of the society we need complex laws. iv. Salmond says Law is without doubt a remedy for greater evils yet it brings with it evils of its own. D. Public Justice- Classification of Justice. It can be divided into two parts
a. Private Justice- It is distinguished as being justice between individuals. Private Justice is a relation between individuals. It is an end for which the court exists. Private persons are not allowed to take the law in their own hands. It reflects the ethical justice which should be there between individuals. b. Public Justice- It is administered by the state through its own tribunals. It is a relation between the courts and individual on other. Public Justice is the means by which courts fulfil that end of Private Justice. E. Concept of Justice According to Law- What the court renders to the people in the form of justice, it is not actually in the so called sense. We cannot call it justice because justice rendered is always according to law. The reason is judges are not legislators, they are the interpreters. It is not the duty of the judge to correct the defects in law. The only function of them is to administer the law of the country and therefore, in the modern state, the administration of justice according to law is commonly taken to imply recognition of fixed rules. F. Civil and Criminal Justice- This follows from Public Justice and Private Justice. Looking from a practical standpoint, important distinctions are in the legal consequences. Civil Justice is administered by a particular set of courts whereas Criminal Justice is administered by a different set of Courts. If successful, civil proceedings result in a judgment for damages or injunction or restitution or specific decree or other reliefs which are known as civil. If successful result in a number of punishment which may range from hanging to fine or release on probation. Therefore, he says that the basic objective of criminal proceeding is punishment and the usual goal of civil proceeding is not punitive. G. Theories of Punishment a. Deterrent Theory- Salmond says that deterrent aspect of punishment is very important. Object of punishment is not only to prevent the wrongdoer second time but also to make him an example to other persons who have criminal tendencies. The aim of this theory is not revenge but terror and as per this theory an exemplary punishment should be given to the criminal so that others may take lesson from him. Even in Manusmriti, this theory is mentioned. He said Penalty keeps the people under control, penalty protects them, and penalty remains awake when people are asleep, so the wise have regarded punishment as the source of righteousness. Critics say that it is not effective in checking crime.
b. Preventive Theory- The object of punishment is preventing or disabling and it disables a person from committing a crime in future. Deterrent theory aims at giving a warning to society at large whereas in Preventive Theory, the main is to disable the wrongdoer from repeating of the activity, his physical power to commit crime is disabled in this theory. c. Reformative Theory- Punishment should be to reform to criminal even if the offender commits a crime, he does not cease to be a human being, he may have committed under circumstances which might never occur again. The object of punishment should be to bring about the moral reform of the offender. Therefore, under this theory, there are certain guidelines given: i. While awarding punishment, the judge should study the characteristics and the age of the offender, his early breeding, the circumstances under which he has committed the offence and the object with which he has committed the offence. ii. The object of this exercise by the judge is to acquaint him with the exact nature of the circumstances so that he may give a punishment which suits the circumstances. iii. Advocates say that by sympathetic, tactful and loving treatment of the offenders, a revolutionary change may be brought about in their characters. Critics say that Reformative Theory is alone not sufficient, there should be compromise between the Deterrent Theory and the Reformative Theory. The Deterrent Theory must have the last word. iv. Distinction 1. It stands for the reformation of the convict but the Deterrent Theory wants to give exemplary punishment so that the others are deterred from following the course. 2. In Deterrent Theory, the criminal is not reformed whereas in the Reformative Theory, it will want to punish the criminal as little as possible. Under Reformative Theory, it is said that if we inflict harsh punishment on criminals, there will be no scope for reform. 3. It is said that the fundamental principle of Deterrent Theory, punishment should be determined by the character of the crime and too much emphasis is on the crime and not on the criminal.
In Reformative Theory, the circumstances under which the offence was committed must be taken into consideration and every effort should be made to give a chance to the criminal to improve himself in future. d. Retributive Theory- In primitive society, the punishment was mainly retributive and the person wronged was allowed to have his revenge against the wrongdoer. The principle was an eye for an eye. This principle was recognized and followed. Another view of retributive theory is that it is an end in itself, apart from a gain to the society and the victim, the criminal should meet his reward in equivalent suffering. ( blood money in Islamic law) e. Theory of Compensation- Punishment should not be only to prevent further crime but it should also exist to compensate the victim. Critics point out that this theory is not effective in checking crime. The purpose behind committing a crime is not always economic. Imposing fine will not lower down the crime though it might prove to be beneficial to the victim. Under this theory, the compensation is paid to the persons who have suffered from the wrongdoing of the government. H. Kinds of Punishmenta. Capital Punishment- This punishment is available right from the primitive ages and it was one of the most important punishments since ages. Even our IPC prescribes for it. But several countries have abolished capital punishment and this ideology has affected the Indian Judiciary while considering Capital Punishment. A laxity has come in the minds of judges while awarding this punishment. In Raghubeer Singh v. State of Haryana, Supreme Court accepted that the murder was treacherous but still Life Imprisonment was given. b. Deportation or Transportation- It was in practice under the British Era. It was considered as a punishment at that time. The criminal is put in a secluded place or in a different society. Critics say that the person will still cause trouble in the society where he is being deported. c. Corporeal Punishment- This punishment is abolished in our country but it exists in some Middle Eastern Countries. Critics say that it is inhuman and ineffective.
d. Imprisonment- It serves the purpose of three theories, Deterrent, Preventive and Reformative. i. Under Deterrent Theory, it sets an example. ii. It disables the offender thus serving the purpose of Preventive Theory iii. If the government in reforming the prisoner, thus serving the purpose of Reformative Theory. iv. There are certain disadvantages. 1. Short Term- It is disadvantageous. 2. Long Term e. Solitary Confinement- It is an aggravated kind of punishment. It is said that it exploits fully the sociable nature of men. Critics say that it is inhuman. f. Indeterminate Sentence- The accused is not sentenced for any fixed period. The period is left indeterminate while awarding and when the accused shows improvement, the sentence may be terminated. It is reformative in nature. I. Civil Justice Module III- Analytical Positivist School- Sources of Law Austin says that the term source of law has three different meanings. 1. The term refers to immediate or direct author of the law which means the sovereign in the country. 2. The term refers to the historical document from which the body of law can be known. 3. The term refers to the causes which have brought into existence the rules which later on acquire the force of law and here he says for example, the customs, judicial decision, equity etc. Historical Jurists- Savigny, Henrye Maine, Puchta- Law is not made but it is formed. The foundation of law lies in the common consciousness of the people which manifests itself in the practices usages and customs of the people. Therefore, customs and usages are the sources of law. Sociological Jurists- They protest against the orthodox conception of law according to which law emanates from a single authority in the state. Law is taken from many sources and not from one.
Ehlrich- He says that at the present as well as any other time the centre of gravity of legal development lies not in legislation, not in science nor in judicial decisions but in society itself. Duguit- Law is not derived from any single source and the basis of law is public service. There need not be any specific authority in a society which has the power of making laws. Salmond on Source of Law- Salmond has done a classification of sources 1. Formal Sources- It is as that from which rule of law derives its force and validity. The formal source of law was the will of the state as manifested in statutes or decisions of the court and the authority of law proceeds from that. 2. Material Sources- They are those from which is derived the matter though not the validity of law and the matter of law may be drawn from all kind of material sources. a. Historical Sources- In this rules are subsequently turned into legal principles, were first to be found in an Unauthoritative form. They are not allowed by the law courts as of right. They operate mediatory and indirectly. i. Unauthoritative Writings b. Legal Sources- They are sources which are the instruments or organs of the state by which legal rules are created for e.g. legislation and custom. They are authoritative and are followed by the courts as of right. They are the gates through which new principles find admittance into the realm of law. i. Legislations ii. Precedent iii. Customary Law iv. Conventional Law- Treatise (CK Allen) Allen says that Salmond has attached insignificant attention to historical sources which demands more attention. Keeton says that state is the organization which enforces the law. Therefore, technically state cannot be considered as a source of law. According to Salmond, a statute is a legal source which must be recognized and writings of Bentham are without legal authority.
Legal source of English Law- There are two sources of English Law 1. Enacted Law having its source in legislation- It consists of statutory law. Legislation is the act of making of law by formal and express declaration of new rules by some authority in the body politic which is recognized as adequate for that purpose. 2. Case Law having source in judicial precedence- It consists of common law which we find in law reports. Precedent is also making of law but by recognition and application of new rules by the courts in the administration of justice. Case laws are developed by the courts whereas enacted laws come into the courts ab extra. 3. Juristic Law- Professional opinion of experts or eminent jurists. These are also sources of law. Though, they are not much accepted. Source of Law: Are they source of right? It means some fact which legally constitutes a right. By source of law is meant some fact which is legally constitutive of right. It is the de facto antecedent of a legal right in the same way as the source of law is de facto antecedent of a legal principle. Legislation- Legis means law and latum means making. 1. Salmond- Legislation is that source of law which consists in the declaration of legal rules by a competent authority. 2. Gray- Legislation means the forma utterance of the legislative organs of the society. 3. Austin- There can be no law without a legislative act. Analytical Positivist- They say that typical law is a statute and legislation is the normal source of law making. The majority of exponents of this school do not approve that the courts also can formulate law. They do not admit the claim of custom as a source of law. Thus, they regard only legislation as source of law. Historical School of Thought- Legislation is the least creative of the sources of law. Legislative purpose of the legislation is to give better form and more effective the custom which is spontaneously developed by the people. They do not regard legislation as source of law. Legislation
1. Supreme Legislation- Superior Legislation which proceeds from the sovereign power of the state. It cannot be repealed, annulled or controlled by any other legislative authority. 2. Subordinate Legislation- It is that which proceeds from any authority other than the sovereign power and it is dependant for its continual existence and validity on some superior authority. Delegated Legislation- Function of the executive is to enforce the law. In case of Delegated Legislation, executive is framing the provisions of law. It is also known as executive legislation. It comes in the form of orders, by laws etc. Sub-Delegation is also a case in Indian Legal system. The power to make subordinate legislation is derived from existing enabling act. It is fundamental that the delegate on whom such power is conferred has to act within the limits of the enabling act. Its purpose is to supplant and not to supplement the law. Its main justification is that sometimes legislature does not foresee the difficulties that will come while enacting the law. Therefore, Delegated Legislation fills in those gaps which are not seen while formulation of the enabling act. Delegated Legislation gives flexibility to law and there is ample scope for adjustment in the light of experiences gained during the working of legislation. Controls over Delegated Legislation 1. Parliamentary Control 2. Parliamentary Supervision 3. Judicial Control- Indirect- Courts cannot annul subordinate enactments but they can declare them inapplicable in particular circumstances. Though, these rules are not actually abrogated but they become dead letter because in future, no responsible authority will attempt to apply it. 4. Trustworthy Body of Persons- It can be ensured if power is trusted only to trustworthy persons 5. Public Opinion can be a good check on arbitrary exercise of Delegated Powers. It can be enlightened by antecedent publicity of the Delegated Laws. In matters of technical nature, opinion of experts must be taken, that will minimize the dangers of vague legislations. Advantages
1. Abrogation- By exercising power to repeal, the legislature can abrogate any legislative measure or provision which is meaningless or ineffective in the changed circumstances. The ease with which the legislature can repeal a law is not the case in situation of courts because interference of litigants is necessary in such cases. 2. Division of function- Legislation is advantageous because of division of function. Legislature can make the law by gather all materials and relating it to the legislative measure. In this process, legislature takes opinion of public and experts. Thus, public opinion has its opinion in legislature. Judiciary cannot gather particular material regarding enforcement of particular principles. 3. Prospective Nature of Legislation- This is because they are made applicable to events which it is supposed to apply after the legislation is passed. Therefore, public can shape its conduct according to enacted legislation. Judgment Law is necessarily retrospective. The legality on the nature of act is pronounced after the act has been done. Bentham said Do you know how they make it; just as man makes for his dog. When your dog does something, you want to break him off, you wait till he does it and beat him and this is how the judge makes law for men. 4. Nature of assignment- Due to the nature of assignment, the legislators interact with all sections of people and thereby opportunities are available for them to know the failed necessities of time. The decisions of legislators are collective in nature but this is not so in case of Judgment Law. Sometimes, Judgment is also based on prejudice that makes it uncertain at times. 5. Form- Enacted Legislation is abstract proposition with necessary exceptions and explanations but Judgment Law is merged with details of facts of the case. When Judge gives Judgment, he makes elephantiasis of law. Legislation and Customary Law- 1. Legislation has its source in theory. Whereas customary law grows out of practice. 2. The existence of Legislation is essentially De Jure. Whereas existence of customary law is essentially De Facto. 3. Legislation is the latest development of Law making tendency. Whereas customary law is the oldest form of law. 4. Legislation is a mark of an advanced society and a mature legal system. Whereas customary law is a mark of primitive society and under-developed legal system.