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Notes and Video Lecture of LL ( 3 Year) Kurukshetra University Kurukshetra
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JURISPRUDENCE
WHAT IS ADMINISTRATION OF JUSTICE? EXPLAIN ITS KINDS.
DISTINGUISH BETWEEN CIVIL AND CRIMINAL JUSTICE.
INTRODUCTION:-Administration of Justice:- According to Salmond : -”The administration of justice implies the maintenance of right within a political community by civilized substitute for the primitive practice of private vengeance and violent self-help.” This has been criticized on the ground that it is not the force of the state alone that secures the obedience of law. There are a number of other factors such as the social sanctions, habit and convenience which help in the obedience of law. In civilized societies, obedience to law becomes a matter of habit and in very rare cases the force of the state is used to secure it According to Austin: ‘Law is the aggregate of rule set by men as politically superior, or sovereign, to men as politically subject.” It means
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law is command of sovereign. In his definition Command, duty and sanction are the three elements of law. The fundamental difference between the definitions of the two jurists is that whereas in the definition of Austin, the central point of law is sovereign, in the definition of Salmond, the central point is Court. In fact, both the definitions are not perfect and present two aspects of law. Salmond : Points out that men do-not have one reason in them and each is moved by his own interest and passions. The only alternative is one power over men. Men is by nature a fighting animal and force is the ultima ratio of all mankind. As Hobbes puts it “ without a common power to keep them all in awe, it is not possible for individuals o live in society. Without it injustice is unchecked and triumphant and the life of the people is solitary, poor, nasty, brutish and short.” Salmond says however orderly a society may be, the element of force is always present and operative. It may become latent but still exists. KINDS OF ADMINISTRATION OF JUSTICE The administrative of justice may be divided into two parts:-
- Civil.
- Criminal.
- Administration of Civil Justice: The wrongs which are the subject- matter of civil proceedings are called civil wrongs. The rights enforced by civil proceedings are of two kinds (1) Primary and (2) Sanctioning or remedial rights. Primary right are those rights which exists as such and do not have their source in some wrong. Sanctioning or remedial rights are those which come in to existence after the violation of the primary rights. The object of the civil administration of justice is to ascertain the rights of the parties and the party who suffers from the breach of such rights is to be helped by way of paying damages or getting injunction, restitution and specific performance of contract etc.
- Administration of Criminal Justice:- The object of the criminal justice is to determine the crime of a person who is charged with the doing of an offence. The criminal court after proving that the offender is guilty of the offence charged awards him the punishment of fine, imprisonment as prescribed by criminal law. A convicted person is awarded physical pain. Thus the main purpose of the criminal justice is to punish the wrongdoer. DIFFERENCE BETWEEN CIVIL AND CRIMINAL ADMINISTRATION OF JUSTICE Civil Administration of Justice In the civil case the suit is Filed in the civil court. Criminal Administration of Justice In the criminal cases the proceedings Is filed in the criminal court. The main remedy in civil Cases is damages. The main remedy in criminal cases is to Punish the offender. In the civil cases, the court Follows the procedure Prescribed in Civil Procedure Code. In the criminal cases, the court follows the procedure laid down in criminal Procedure Code. In civil cases the action is taken By the injured party and the Suit is established by himself By giving evidence. In criminal cases the proceeding is taken by the state and the injured party is called out as a witness by the state.
2 What is Law? Discuss. Definition given by various jurists?
constraint. EHRLICH :- Ehrlich lays down, “that the law consists of norms coverings social life. But only the living Law is the actual law.” ROSCUEPOUND :- According to him Law is an instrument for balancing, conflict or completing interest of people in the society. REQUIREMENTS FOR LAW The followings are some requirements for the definitions of law :- i) Before the law there is a State. ii) Before the State there must be a society. iii) State & society develop a legal order to be followed. iv) And finally law always has a purpose. CONCLUSION:- In end we can say that law is the important and necessary part of the state and developing the human beings. Law gives rights and duties to human beings. And law is the essential part of a State. Law is an instrument of social control as well as social change.
3 Define ‘Right’ and discuss the essential elements of legal right. OR What is a ‘Legal Right’? Discuss the characteristics of a legal right. INTRODUCTION: Right generally means an interest or facility or a privilege or immunity or a freedom. In this way right for the purpose of jurisprudence is called legal right. Austin in his theory has separated the subject matter of jurisprudence from morality or materiality. He gave the concept of positive law. So here also right means positive law right only, which is term of legal right. Legal right is recognised by law. It is different from moral right. Moral right if violated is called moral wrong. The violatin of natural right is called natural wrong. But these wrongs are not remedial under law while if a legal right is violated then it will be legal wrong which is remedial under law. The different jurists have defined legal right in different ways:- According to Austin : “ Right is a faculty which resides in a determinate party or parties by virtue of a given law and which avails against a party or parties other than the party or parties in whom it resides.” According to Salmond :- “ Right is an interest recognised and protected by the rule of right.” Here rule of right means rule of law or law of country. When an interest of a person is protected by the rule of law then it is called right. Salmond definition involves two points, firstly that right is an interest and secondly it is protected by rule of right. It means that it relates to his (person) interest i., life liberty, heath and reputation etc. Grey has criticised the interest theory propounded by Salmond, Ihering and Heck and he has supported the view that right is not an interest but that means by which the interest is secured. According to Holland, “ right is as a capacity residing in one man of controlling, with the assent and assistance of the state the action of others.” According to Paton : “ That legal right is that it should be enforceable by the legal process of the state.” He however says that there are three exceptions to this rule :-
- It is not necessary that the state should always necessarily enforce all the legal rights.
- There are certain rights which recognised by law but not enforced by it for example : In a time barred debt, the right of the creditor to recover the debt is an “ imperfect right”
- There are certain laws which do not confer right of enforcement to the courts, for example : International Court of Justice has no power to compel enforcement of its decrees under International Law.
THEORIS OF RIGHT :- There are two theories of right :
- WILL THEORY : This theory is based upon the will of human beings. It says that a right reflects the inner will of a human being. Austin, Holland, Halmes and Dov recognised this theory of right. According to them a person wants o remain in the world freely and according to his own choice because a man is born free.
- Interest Theory:- This theory says that interest is the base of the right. It is only interest which is recognised by law. This theory reflects the external nature of the human beings. Supporter of this theory say that there are many interests in the world. These interest which are protected and recognised by law are called right. ELEMENTS OF LEGAL RIGHT:- Following are the elements of Rights :-
- Subject: here means a person who has right. So there must be a person for rights
- Act of Forbearance :- Right means some standard of action permitted by law. In a right either an act is done or an act is forbidden. This is also called as content of right.
- Object:- There must be a object upon which the right is exercised. Mainly there are three essential elements of right e. Lives in a house. Here : (i) A has the right to live in the house. (ii) A is subject, house is object and (iii) His living in the house is act content. But some writers give some more elements of right.
- Correlative duty: For right there must be a correlative duty. In the above example ‘A’ has the right to live in the house but other persons have correlative duty not to disturb him. Almost all jurists agree on the point because one cannot exists without the other. Here Austin is not agree to this He says that the duty may be divided into two kinds i. (1) Absolute and (ii) Relative.
- Title: Salmond gives one more element of rights in the form of title. He says that a right has got also a title. Title may be in the form of the owner or co-owner or mortgager or leaser or buyer etc. ILLUSTRATION: If, ‘A’ buys a piece of land from ’B’. A is the subject or owner of the right so required. The person bound by the co-relative duty is persons in general because a right of this kind avails against the world at large. The right consists in non-interference with the purchaser’s exclusive use of the land. KINDS OF RIGHTS :- The following are the kinds of rights :-
- Primary right and secondary right : Primary right is an independent right while secondary right means dependent right. They are also called as principal right and helping right or remedial right. ILLUSTRATION:- ‘A’ has right of reputation which is his primary and independent right. If any person defames A then A has the right of damages against the defamer. This right of damages is called secondary right or remedial right.
- Positive and Negative Right:- Positive right is linked with negative and negative right is linked with duty. Positive right permits to do an act while negative right prohibit doing an act. ILLUSTRATION:- ‘ A ‘ has the right of reputation. This is his positive right and any person should not defame him. The defaming his reputation called negative right.
- Right Rem and Personam:- Right in Rem means right against the whole world while right in persosnam means right against a definite person. ILLUSTRATION: ‘A’ has not to be harmed by any person. This is right in rem. On the other hand, ‘A’ has entered into a contract with ‘B’ and ‘B’
(I) Positive Law (II) Positive Moral Law Positive Law is main subject of jurisprudence. This classification can be seen as under :-
LAW
(A) Law propriety so called (b) Law impropriety so called
A) Law of God A) Law of Men
A.2) Positive Law A.2) Positive moral Law
Law of analogy law by Metaphor Law impropriety so called:- There are certain laws, which are called impropriety laws e. Divine Law, Moral Law and religious Law. But his law is not the subject of jurisprudence. This law is concerned only with the administrations of jurisprudence. The law is the subject matter of jurisprudence. Analytical school of jurisprudence deals with the following matter:- (I) An Analysis of the conception of civil law. (II) The study of various relations between civil law and other forms of law. (III) An inquiry into the scientific arrangement of law. (IV) An account of legal sources from which the law proceeds. (V) The study of the theory of liability. (VI) The study of the conception of legal rights and duties. (VII) To investigate such legal concepts as property, contracts, persons, acts and intention etc. DEFINITION OF THE LAW Austin has defined the law is hiss ‘Command Theory’. He says that, “Law is the command of sovereign.” Sovereign here means a politically superior body or a determinate person or determinate body of persons like king of council. The command of these persons shall be the law in the country. This law must be obeyed by certain persons. If it is not obeyed hen the order of these persons shall not be law. It means there must be politically inferior persons. If the command is disobeyed then the political superior should have the power to punish, those persons who have disobeyed the law. CHARACTERISTICS OF COMMAND THEORY From the above facts we find that the following characteristics of Analytical School :-
- Sovereign (II) Command (III) Duty (IV) Sanction Power. SOVEREIGN: Means the political superior person or a determinate person or body of person or intelligent persons. This may be compared with the kind or the head of state in monarchy system and parliament in democracy system. COMMAND:- There must be some order of the Sovereign. This order may be oral or written. The Sovereign which is followed by force, is called command. DUTY:- This command must be followed by some persons, it means the political inferior persons who are under the control of Sovereign, are
under a Duty to follow the order of the Sovereign. SANCTION:- There must be sanction or the power of force behind the command of Sovereign and it there is no force or sanction then such command shall not be law. The sovereign must have power to punish those who do not obey this command. In this way the above mentioned things are essential then it will be the law. But Austin excluded some commands from the concept of the law. These are :- (I) Explanatory Law :- If there is a command for the explanation of already existed law command shall not be the law. (II) The Repeal Law : I there is a command for the repealing of already existed law then the second command shall not be law. AUSTIN LAW (AUSIN’S METHOD) Austin adopted analytical method which excluded all types of morals and religion from Law. His school is also called analytical school or imperative school. Imperative means force behind law. CRITICISM OF ANALYICAL SCHOOL Various writers have criticised the command theory of Austin on the following ground :
- Customs ignored:- Analytical school is based upon the law. According to Austin the law does not include customs but we see that customs are a very important part of the society. There were customs by which the society and later on state came into existence. In state also customs played an important role in the administration of justice. Even in the modern times the customs play an important role in the formation of law. So we cannot ignore customs from law.
- Precedents ignored:- Precedent means the decisions of the court, which are also called as judge made laws. Judge made laws because these laws were not the command of the Sovereign. These laws were not enforceable at that time, so he excluded these laws from his concept of the law.
- Conventions Ignored:-There are certain conventions or methods, which are observed or followed by the coming generation. These conventions or methods later on take the form of law. The become law afterwards by their regular observance. In England the base of English Law is conventions, which is very popular in the World. So we cannot ignore conventions. But Austin did not include conventions in his concept of law.
- International Law Ignored:- Austin did not include international law in his law. According to his law there is no Sovereign for enforcing the international law. But in modern days we cannot exclude international law from the field of law because it plays an important role in maintaining peace and society at international level. In other words it is also a form of municipal law of civil law.
- Command Theory is not suitable:- It is not easy to understand the ‘Commands Theory’ for common persons. It is not necessary that all should be enforceable or all common person should be considered as law. Only those commands which are related with law and order, should be law. It is difficult to separate those commands from others by the common people or persons. So this theory is not suitable in modern times. It is also an artificial theory haveing no sense in the modern world.
- Only Power Is Not Necessary:- According to the ‘Command Theory’, law can be imposed only with the help of power, But we have the result of the tyrants or forced rules which were thrown away by the people of French Revolution, of Panamaeto. Law can be enforced even without power, it they are suitable to the society.
so many differences as pointed out above came into picture. In spite of these differences there is a clear relationship between law and morals. For this purpose it can be noticed from the following three points :-
- Morals as the basis of law:- In the ancient society morals were the basis of all laws. All the rules originate from the common sources i. morals. The reason behind them was in the form of supernatural fear. The state picked up those rules which were necessary for the society of the state. The state put its own sanctions behind their rules and enforced them and these rules were called laws. The rules for which the state could not ensure their observance wee known as morals. Thus laws and morals have common origin. We cannot totally separate law from morals. Queen v/s Dudley: It was held that moral are the basis of law on the ground of morality, it was not necessary to kill the boy for saving their lives. One cannot take the law into one’s own hands. The rule is that none has the power/right to take another’s life to save his own.
- Morals as the list of law:- It has been argued that the law must conform to morals. It means the law must be based upon morals and it should not be against morals. The Roman law was based upon natural law and Christian morals and principles say that any law that is against morals is invalid. The natural law theories were enforcing which were also according to morals. In the modern times the laws which are not in conformity with morals are not good laws. However in practice to a great extent law conforms to morals. Laws cannot depart from morals due to many reasons. The conformity of law with morals is a very important factor even in the modern times.
- Morals as the end of Law:- Sometimes morals are considered as the end f law. Justice in its popular sense is based upon morals. The word used for law conveys an idea of justice and morals in the same area of law. Sociological school says that law always has a purpose. Law is a means to get the end. This aim of law is to secure social test of law. This can be done properly in the contest of socially recognize values which are closely related to morals. Thus ultimately morals become the end of law. In India the legal system is engaged from the personal laws and local customs. In addition to this there are certain other factors like public opinion, political, ethical, social and economical ideas which are directly or indirectly under the influence law. CONCUSION:- So morals also have influence to a great extent in the development of law. Morals also check the arbitrary powers of the legislature. All human conduct and social relations cannot be regulated and governed only by law. A considerable number of them are regulated by morals. Thus we can say that the morals are the very important factor in the development of law. Morals are basis of law. 6 Professor Hart claims of make a ‘fresh start’ in legal theory. Discuss. INTRODUCTION:- Hart is one of the great jurists of that time. He belongs to analytical school. HLA Hart was the Principal and Professor in “ Brasenose College Oxford” His theory about the law named as concept of Law. He talks about the realty. His theory mainly based on primary and secondary rules and also based on the relationship between law and society. His theory described about two words i. Pre- legal world and Legal world. DEFINITION AND MEANING: Sir HLA Hart define Law,” that law is the system of rules, a union of primary and secondary rules.” He means to say that law is the system of rules and these rules are primary which are
pre-legal rules and secondary which are legal rules and the main based of his theory on the relationship between Law and Society. Body : Sir HLA Hart theory talks about the two words. These words are:- Concept of Law
Pre-legal world Legal world
No legislature Rule of recognitaion No executive Rule of Change No court Rule of Adjustice
- Pre-Legal World :- This pre legal world belongs to old age. According to Sir, HLA Hart pre legal world there was primitive society. And in this society there was no legislature which can make the rules. There was no executive also which can change the rules besides this there was no court also to decide the disputes. In the primitive society there were three defects which are as under :- 2 Un-certainty :- Since there was no Parliament in the primitive society which causes the un-certainty in the law. 3 Static character:- In the primitive society there were customs and these customs were not changed. It means there have static character. 4 Inefficiency :- In the primitive society there were no power of Jurisdiction. It means that there were no courts followed by the people.
- Legal World :- This legal world belongs to modern age. According to Sir HLA Hart in the legal world there are modern society. Because of modern society there are rules of recognition which means that there is a Parliament/State Executive. The function of the Executive to change or to amend the rules. In modern age there are courts which decides the disputes. Judges applies the earlier laws in deciding the disputes. These rules/laws are the secondary rules. Thus we can say that Law is the union of Primary and Secondary rules. In other words it can be said that the Law is the journey of rules. RELEVANCY OF HLA HART’S THEORY Sir HLA Hart’s theory “ concept of Law “ is the most important theory of analytical school. Because this theory tells us about the old age and for the modern age. In the old age there were primitive society which did not have any legislature, executive and court. Therefore only custom and usages which were not allowed to change them by any person. The theory of ‘concept of law’ tells us about the legal world. In the legal world there is a legislature which makes the rules and these rules are changed or amended by the executive when it necessary. There are courts which apply the rules on party. So we can say that in modern age the law is certain not static in character. Sir HLA Hart also gives the place of Morality in his theory because the moral have an important role in every legal world and these morals are not changed by passing any Act. We can say that Sir HLA Hart theory, “ Concept of Law” has the most important place in the theory of Analytical School. CONCLUSIION:- Sir, HLA Hart theory Concept of Law have no conclusion because this theory talks about both the pre-legal world and the legal world which updates and tells us that how the law comes. So we can opined that such best and usable theory needs no conclusion as it has its self conclusion.
derives its validity from the moral and ethical standard in society. So that he laid down stress upon moral and cultural development of society. 3. Finnis: Finnis also is a very famous jurists of the present century. He has given the definition and place to natural law. According to finnis Natural Law is the set of principles of practical reasonableness in ordinary human life and human community. He sets up the proposition that there are certain basic goods for human being. Fennis lists them as under :- i) Life:- The term life signifies every aspect of vitality in good shape for self determination. ii) Knowledge: Knowledge is a process of knowing of unknown with the help of sense. iii) Sociability of Friendship:- Doing something best for the sake of one’s friend’s purposes, one’s well being. iv) Role:- It is the expression of a status of human being in practical form such role is protected and recognised by law. v) Religion:- Question of the origins of cosmic order and of human freedom and reason expressed thus this view is a good that even an ethicist can value. vi) Practical reasonableness :- This is the logic expression of the ideas and decision in practical circumstances. This the measurement of just or unjust in a real situation. Despite the merits of Natural Law philosophy it has been criticized for its weakness on the following grounds. In other words the demerits of the Natural Law may be read as follows :- i) Moral proposition i. ought to be may not always necessarily conform to the needs of the society. ii) The concept of morality is a varying content changing from place to place, therefore it would be futile to think of universal applicability of law. iii) The rules of morality embodied in natural law are not amendable to changes but legal rules do need a change with changing of the society. iv) Legal disputes may be settled by law courts but disputes relating to moral and law of nature cannot be subjected to judicial scrutiny. CONCLUSION:-The brief survey of the theories of Natural law reveals that its concept has been changing from time to time.
8 Explain the importance of Legislation as source of Law. OR Distinguish between supreme and subordinate legislation? INTRODUCTION:- Legislation means the process of law making. This law making power is vested in the legislation body which is sovereign body. It is called Parliament at the centre level and legislative assembly at the state level. Legislation is the most important and modern source of Law. This source has played an important role in the development of modern law and also different from custom and precedent etc. LEGISLATION AS A SOURCE OF LAW:- The importance of legislation starts from the beginning of analytical school. This school ignored the importance of custom and gave the stress on command of sovereign which can make law only through legislation. This school also ignored the judge made law. About custom they say that the custom are not law but they are the source of law. HISTORICAL SCHOOL:- It gives no importance to the legislation rather gives more importance to custom. According to them the function of law in only to specify and to correct the custom into law whereas in the modern times the importance of legislation has considerably been increased. With the coming of existence of the State the legislation has
also been come into existence and become most important source of law. The scope of legislation has become very wide in the modern times. KINDS OF LEGISLATION:- There are two kinds of the legislation :-
- Supreme Legislation:- It has the powers of making law and is known as supreme legislation in each country. This power is vested in sovereign body in India i. Parliament at the centre and legislation in the State.
- Subordinate Legislation: It is inferior from supreme legislation and is indirect legislation. It takes power to make law indirectly from Parliament, who gave him power to make law that is why is called subordinate legislation authority. It is further divided into the following parts :- i) Autonomous Laws : A group of persons for making law is known as autonomous law and body i University or Boards. ii) Judicial Rule :- means the rules made by judicial body under power owed from supreme authority i. High courts or supreme court etc. iii) Local Law: means law made by local bodies under the control of SC i Zila Parishad, Municipal Corporation. iv) Colonial Law: It is for those countries who are under the control of any other country can make laws with the permission that country. Executive Law:- The law and the rule can be made by the executive body in the State under the power conferred by the Sovereign/ Parliament which is also known as delegated legislation. It includes the following origins : I) Legislation:- The legislation is the super power to make law for a country. II) Executive:-The executive body of the nation is to imposes law in the country. III) Judiciary:- The Judiciary is to explain and implies the law so passed. Parliament in India delegates its laws making power to the executive body and this power is called legislated or delegated legislation. Many reform acts were handing power of making reforms, controlling of employment, development of education. In 20th century some important matters were given to delegated legislation to restrict the State to interfere in the daily life of the citizens. CRITICISM:- Many of the writers has criticized this power because it gives much power to the executive body and administration body. The legislation has passed by facing the complicated problems in the constitution. There were some supporters also who were in the favor of this delegation of power. REASONS FOR DELEGATED LEGISLATION i) Lack of Time:The parliament has the shortage of time because of a Public welfare state. It has to pay much time towards national problems. ii) Technicality of Matters:- With the progress of society the things have become more complicated and technical. Therefore the policy is made by the Parliament and the imposing matter is left on the masters of it. iii) Flexibility: Law should be flexible and according to the need & conditions of the Public along-with the local matters which are different from area to area, So keeping in view of this reason the power is handed over to the executive. There are some dangers in delegations of this power:- i) The executive body may uses the more powers than the powers delegated by the Parliament. (ii) The Parliament has no time to examine the rules passed by the executive under delegated legislation.
iii) LEGAL THEORY :- Legal theory is concerned with law as it exists and functions in the society and the manner in which law is created and enforced as also the influence of social opinion and law on each other. It is therefore necessary that while analysing legal concepts, and effort should be made to present them in the background of social developments and changing economic and political attitudes. 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 :-
- Salmond pointed out that jurisprudence has its own intrinsic interest like and other subject of serious scholarship, 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-political thought and at the same time may themselves be influenced by these ideologies.
- Jurisprudence also has its practical applicability. In other words it serves to render the complexities of law more manageable and rational and in this way theory can help to improve practice in the seats of law.
- 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. 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.
- Commenting on the significance and utility of jurisprudence : Holland observed, “ the ever renewed complexity of human relations call for an increasing complexity of legal details, till a merely empirical knowledge of law becomes impossible.” Thus jurisprudence throws light on the basic ideas and the fundamental principles of law in a given society. This why it has been characterised as “The eye of law.”
- Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the laws passed by he legislature by providing the of interpretation.
- The study of jurisprudence helps in rationalising the thinking the students and prepares them for an upright civil life. The knowledge of law and legal precepts also helps them to face every exigency of human affairs boldly and courageously.
- Jurisprudence may also be helpful o legislators who play a crucial role in the process of law-making. The study of jurisprudence may familiarise them with technicalities of law and legal precepts thus making their job fairly easy as also interesting. According to Dias the study of jurisprudence provides an opportunity for the lawyer to bring theory and life into focus for it concerns human thought in relation to social existence. The law should serve the purpose of social-engineering by preserving societal values and eliminating conflicting interests of individuals in the society. JURISPRUDENCE IS THE EYE OF LAW:- On account of importance of jurisprudence in the field of law it is called, “The eye of Law”. The eyes are one of the most important parts of human body. Almost all human activities and the movements of body are possible only through them. Unless man can see anything properly, he cannot do any work. The
reason of calling jurisprudence the ‘ the eye of law’ is that jurisprudence functions for law in the same manner as the eyes do in human body. For example- the interpretation of law is a very difficult task, It cannot be done without the help of jurisprudence. ‘PATON’ in this connection says that,” Jurisprudence is a particular method of study, not the law of one particular county but of the general notions of law itself.’ Whenever any complicated problem regarding law like:- 1 How and when the law developed. 2 What is its object. 3 Whether the law was made by people or it was due to the inspiration of some Divine force. 4 Whether the law is a command of a sovereign or it is a result of gradual development of civilization in society. The main function of jurisprudence is to study the origin of law, its development and its contribution towards society. The matters to birth, marriages, death, succession etc., are equally controlled through laws. It is the well known saying that, “ignorance of law is no excuse,” hence it is essential to know the correct basic principles of law which are contained only in the jurisprudence. Law is also connected with civil life. A person who obeys laws is known as a civilized citizen. A person who does not obey law is punished. It is therefore necessary that all the people should have the sound knowledge of law which is possible only with the help of jurisprudence. Therefore, jurisprudence, having so much importance for the society, has rightly been called the eye of law.
10 Judges are the makers of law not discovers of law. Do you agree with this view? INTRODUTION:- There are two contrary theories regarding the question as to whether Judges declare the existing law or make the law. There are two which are as under :-
- Theory that judges declare the law or Declaratory Theory.
- Theory that judges make the law or legislative theory. (Law making theory)
- DECLARATORY THEORY :- The first theory is the declaratory theory as described by Hall and Blackstone and they supported by Dr. carten also. According to the declaratory theory no new law is created by the Judge, Courts of Justice do not make law, their province is to ascertain and declare what the law is. Judges only discover the existing laws. Hale enunciates declaratory theory of precedents and contends that whilst Parliament alone legislates in the strict sense the Judges only expound the law and their decisions are the best evidence of what law is. The result of his theory is that the effect of the decision is retrospective for it does not only declare what law is but what it always has been. Nevertheless as Maine has pointed out once the Judgement has been declared and reported we start with a new train of thought and frequently admit that the law has been modified. According to Lord Esher, There is in fact no such hing as Judge- made law, for h judge do not make the law, though they frequently have to apply the existing law to the circumstances as to which it has not previously been authoritatively laid down that such law is applicable.” Declaratory theory is based on the fiction that the English law is an existing something which is only declared by the Judges. This theory is known as the theory of judicial precedent. LAW MAKING THEORY The second theory is that the Judges do not declare law but make the law in the sense of manufacturing of creating entirely new law. Bentham
i) POUND CONCENTRATES ON THE FUNCTIONAL ASPECT OF LAW:- Pound concentrates more on the functional aspect of law, that is why some writers name has approach as “ functional school” the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round as far as possible with the least friction and waste. ii) THE TASK OF LAW IS “SOCIAL ENGINEERING”:- He says, “for the purpose of understanding of law of today. I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy, social wants, the claims and demands involved in the existence of civilized society. iii) SOCIAL ENGNEERING MEANS A BALANCE BETWEEN HE COMPETING INTEREST IN SOCIETY :- He lays down a method which a jurist should follow for ‘social engineering’. He should study the actual social effects of legal institution and legal doctrines, study the means of making legal rules effective sociological study in preparation of law- making, study of judicial method, a sociological legal history and the importance of reasonable and just solutions of individual cases.” He himself enumerates the various interests which are to be protected by the law. He classifies them under three heads: i. Private Interests (ii) Public Interests (iii) Social Interests. PRIVATE INERESTS:- Such as interest of physical integrity, reputation, Freedom of volition and freedom of conscience. They Are safe-guarded by law of crimes, contracts. PUBLIC INTERESTS:- Main public interests are preservation of the State, State as a guardian of social interests such as Administ-Ration of trusts, charitable endowments, protection of Natural environment, territorial waters, sea-shores, Regulation of public employment and so on. SOCIAL INTERESTS:- Preservation of peace, general health, preserving of Social institutions such as religion, political and Economic institutions, general morals, promotes Human personality, cultural and economic life. Pound tackled he problem of interests in term as of balancing of individual and social interests. It is through the instrumentality of law that these interest are sought to be balanced. Justice Cardozo remarked that,” Pound attempted to emphasize the need for judicial awareness of the social values and interests.” Roscoe Pound regarded law as a basic tool of social engineering. How in India the society and law are acting and reacting upon each other can be adjudged from the following enactments passed after India became Independent:- a. The special Marriage Act 1954 2. The Hindu Marriage Act 1955 3. The Hindu succession Act 1956 4. The Hindu Minority and guardianship Act 1956 5. The Hindu Adoptions and Maintenance Act 1956 6. The Dowry Prohibition Act 1961 7. Child Marriage Restraint (Amendment Act) 1978 8. The Consumer Protection Act 1986 9. The S & S. (Prevention of Atrocities) Act 1989 10. Commission of Sati (Prevention) Act 1987 11. Bonded labour(Abolition) Act- 1976 INTERESTS AS THE MAIN SUBJECT-MATTER OF LAW:- Pounds theory is that interests are the main subject matter of law and the task of law is the satisfaction of human wants and desires. It is the duty of law to make a valuation interests in other words to make a selection of socially most valuable objectives and to secure them. To concluding the theory, Pound says that the aim of ‘Social Engineering’ is to build an efficient structure of the society as far as
possible which involves he balancing of competing interests. CRITICISM AGAINST POUND’S THEORY :- i. Engineering not a happy word : It suggests a mechanical application of the principles to social needs but really the word engineering is used by Pound metaphorically to indicate the problems which the law has to face. ii. Classification of interests not useful: Freidmann doubts the value of classification of interests and the value of such classification. iii. Ihering & Bentham concludes the theory of Pound’s that, “such classifications greatly helps to make legislature as well as the teacher and practitioner of law conscious of the principles and values involved in any particular issue. It is an important aid in the linking of principle and practice.” POUND’S CONTRIBUTION Social Engineering stands on a practical and firm ground. He points out the responsibility of the lawyer, the judge and the jurists and gives a comprehensive picture of the scope and field of the subject.
12 What do you mean legal personality and its different theories? Whether the following are legal person :-
- President of India 2. Council of Ministers 3. Company 4 Un- born child. 5. Animals. INTRODUCTION:- Natural Persons are all human beings who are capable of rights and duties in law, i. who have a status. Legal persons are those to whom law is recognised as a person. It is either a thing or a mass of property or group of human beings to which law attributes personality the law confers a legal status and who thus in the eye of law possess rights and duties as a natural person. Person is of two types :-
- Natural Person II. Legal Person According to Gray, “A person is an entity to which rights and duties may attributed.” According to Salmond, “ person is, any being to whom law regards a capable of rights and duties.” According to Paton, “Legal personality is a medium through which some such units are created in whom rights can be vested.” In the development of society, law developed and with the development of law the concept of legal personality come into existence. In the ancient times there was no concept of legal personality but as the society developed the person was recognised as the representative of the State and a separate personality was given to him. In the due course of time corporation and companies came into existence such companies and corporate were given the separate personality so in this way these bodies are now called as legal persons. There are the following two types of persons :- i) NATURAL PERSONS ( HUMAN PERSONS):- All human beings are natural persons but in ancient society the slaves were not recognised as natural persons. Similarly outlaid persons, unsound persons were not natural persons. In Hindu Law, Manu has mentioned some persons who were not recognised as natural persons i. Born child, deaf persons, sanyasi and those who are living dead.
- Unborn person: Unborn person is not a natural person because he is not in existence, but a child in the womb is natural person because he bears the rights and duties under law. Person in the womb can represent the position after birth. In IPC the child in the womb is considered as a natural person as soon as any of his organ will come out from the womb.
Law Notes (LL.B Notes) Jurisprudence
Course: BA LLB (HONS.)
University: Dr. Ram Manohar Lohiya National Law University
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