Jurisprudence Study Material PDF

KLE LAW ACADEMY BELAGAVI (Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S. A. Manvi Law College, Gadag, KLE Society’s B. V. Bellad Law College, Belagavi, KLE Law College, Chikkodi, and KLE College of Law, Kalamboli, Navi Mu...

KLE LAW ACADEMY BELAGAVI (Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S. A. Manvi Law College, Gadag, KLE Society’s B. V. Bellad Law College, Belagavi, KLE Law College, Chikkodi, and KLE College of Law, Kalamboli, Navi Mumbai) STUDY MATERIAL for JURISPRUDENCE Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi Compiled by Reviewed by Mr. Tanmay J. Patil. Asst. Prof. Dr. S. G. Goudappanavar (Unit I, II & III) Ms. Ankita Rituraj, Asst. Prof. (Unit IV & V) K.L.E. Society's Law College, Bengaluru This study material is intended to be used as supplementary material to the online classes and recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation for their examinations. Utmost care has been taken to ensure the accuracy of the content. However, it is stressed that this material is not meant to be used as a replacement for textbooks or commentaries on the subject. This is a compilation, and the authors take no credit for the originality of the content. Acknowledgement, wherever due, has been provided.  JURISPRUDENCE SYLLABUS UNIT – I Meaning and nature of ‘Jurisprudence’ Purpose and value of Jurisprudence Schools of Jurisprudence: Natural law, Imperative Theory, Legal Realism, Historical School, Sociological School. UNIT – II Functions and purpose of law, questions of law, fact, and discretion Justice and its kinds Civil and Criminal Administration of Justice Theories of Punishment and Secondary functions of the Court. UNIT – III: Sources of Law Legislation Precedent Custom UNIT – IV: Legal Concepts Right and Duty, Kinds, Meaning of Right in its wider sense. Possession: Idea of Ownership, kinds of Ownership, Difference between Possession and Ownership Nature of Personality, Status of the Unborn, Minor, Lunatic, Drunken and Dead Persons. UNIT – V Liability: Conditions for imposing liability Wrongful act: Damnum Sine Injuria, causation, mens rea, intention, malice, negligence and recklessness, strict liability, vicarious liability, obligation. Substantive Law and Procedural Law. Prescribed Books: 1. Fitzgerald, Salmond on Jurisprudence, (Bombay: Tripathi, 1999). 2. Dias, R. W. M, Jurisprudence, (Delhi: Aditya Books, 1994) Reference Books: 1. W. Friedman, Legal Theory, (New Delhi: Universal, 1999) 2. V. D. Mahajan, Jurisprudence and Legal Theory, (Lucknow; Eastern, 1996 Reprint) 3. Paton G. W., Jurisprudence, ELBS, (Oxford, 1972) 4. Bodenheimer, Edgar, Jurisprudence, (Harvard University Press, 1974) (Revised Edition)  UNIT – I JURISPRUDENCE – CONCEPT AND SCHOOLS OF LAW Meaning and nature of ‘Jurisprudence’ Purpose and value of Jurisprudence Schools of Jurisprudence: Natural law, Imperative Theory, Legal Realism, Historical School, Sociological School. ------------------ Definition and Meaning of Jurisprudence: Jurisprudence is the study of the Theory and Philosophy of Law. This article focuses on information concerning the subject. There are several ideas with regards to the meaning of jurisprudence and its nature. The term ‘jurisprudence’ has been derived from the Latin term ‘jurisprudentia’ which literally translates to ‘knowledge of law’ or ‘skill in law’. The Roman civilization, which is popularly known as the bedrock of all human civilizations in the world, started to question the meaning and nature of law. Ulpian defined law as the “knowledge of things divine and human”. According to him, the law is the science of right and wrong. Several jurists in Europe began to deliberate upon the meaning of the law. Jeremy Bentham, the Father of Jurisprudence, stated that the “science of jurisprudence” has nothing to do with ideas of good and bad. His disciple, Austin, defined jurisprudence in the following words, “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.” According to him, laws are commands made by the sovereign and their non-obedience leads to imposition of sanctions. He termed such laws as positive law and stated that the main subject matter of jurisprudence is the study of positive laws. According to Holland, “Jurisprudence means the formal science of positive laws. It is an analytical science rather than a material science.” Keeton defined jurisprudence as, “the study and systematic arrangement of the general principles of law.” Jurisprudence is the study of the Theory and Philosophy of Law. The subject, in its entirety, differs from other social sciences. There are several ideas with regards to the meaning of jurisprudence and its nature. This makes it difficult to define. Each country has its own idea of jurisprudence shaped by the social and political conditions in which the development of law took place in that region. Modern jurisprudence is tied to sociology on one end and philosophy on the other. The ideas of jurisprudence that are popular in major legal systems throughout the world today have their origins in the West. Jurisprudence versus Legal Theory: One of the most interesting debates in jurisprudence has been with regards to the difference between jurisprudence and legal theory. It has been argued that while jurisprudence studies the legal concepts which may or may not be theoretical in nature, the legal theory deals with the philosophical aspects of the law. According to Friedmann, “All systematic thinking about legal theory is linked at one end with philosophy and at the other end with political theory.” Salmond explains that the jurisprudence is concerned with investigating law while legal theory seeks to understand the law in a strictly academic manner. According to him, jurisprudence brings some important principles of law and legal concepts to light and legal theory attempts to study legal concepts in an academic manner to answer questions pertaining to meaning of law. The subject matter of jurisprudence includes the study of concepts such as nature of law, legal systems, and legal institutions, etc. as well as the utility of concepts such as liberty, equality, neutrality, etc. Legal theory is concerned with the meaning of law and legal concepts and the philosophies which shape them such as- natural law and natural rights, legal positivism, legal realism, Marxism, feminist legal theory, postmodern legal theory, etc. Evolution: Jurisprudence originated in the Roman civilization with the Romans questioning the meaning and nature of law. It was quite limited since the concepts of law, morals and justice were confused with each other. References are also made to the works of ancient Greek philosophers such as Homer, Socrates, Plato, and Aristotle. With the fall of the Roman Empire, the ideas of Roman and Greek jurisprudence disappeared, and the Christian State emerged. Soon, the authority of the church over the state was challenged by the reformist and ideas of secularism emerged. Many theories were proposed with regards to the evolution and nature of ‘state’ by philosophers th like Hugo Grotius, John Locke, Rousseau, and Blackstone. The Age of Reason in the 17 Century led to the formation of ideas of collectivism and social welfare. Slowly, the idea of positive law and positivistic approach gained popularity whereby the boundaries of the law were demarcated, and its scope was limited. Nature of Jurisprudence: Law regulates significant aspects of human life. In simple terms, law is a set of regulations which are formulated by the state and are binding upon its subjects. Jurisprudence is the science of law. It has been described as the “grammar of law”. To effectively interpret the law, it is essential to understand its origin, nature and meaning. Not only interpretation, but even the legislative process requires legislators to keep several factors in mind to ensure that the law that is made is effectively enforced and followed by all. Jurisprudence studies the law to facilitate better legislation as well as interpretation. In doing so, it uses the wisdom provided by other social sciences. According to Paton, modern jurisprudence is mostly based on social sciences and philosophy since it examines the historical aspects of law to address the chaos created by conflicting legal systems. Describing jurisprudence as a “lawyer’s extraversion”, Julius Stone is of the opinion that the objective of jurisprudence is to view and examine law from the eyes of disciplines other than law. Roscoe Pound states that the subjects of jurisprudence, ethics, economics, politics, and sociology might be quite distinct at the core, however, at a certain point they overlap with each other. He further adds on that it is impossible to understand their respective cores without studying this overlapping with other social sciences. According to him, all social sciences must especially co- work with jurisprudence. Let us evaluate the interrelation of jurisprudence with other social sciences. Jurisprudence and Sociology The objective of sociology is to study human actions in a social environment. Its studies humans as members of social groups. Law is an important element of society. Therefore, sociologists must understand law to understand society. However, a sociologist would not look at law in the same way as a lawyer. While a lawyer is concerned with the law itself, a sociologist is concerned with the impact of the law upon society. There is a separate branch of jurisprudence which comprises of sociological theories of law. Not only sociologists but lawyers too have to understand the society to understand the law. For instance, crime is essentially an act of social deviance and to understand the law of crimes, a basic understanding of the society is required. Earlier, the judges used to decide punishments based on popular opinion. However, now the process has become more technical and professional in nature with the opinions and studies of criminologists being taken into consideration. According to Paton, it is essential to understand the relationship between law and social interests since such a study would lead to a better understanding of the evolution of law. The human factor in law cannot be entirely neglected. The ideas of jurists like Keeton asserting the necessity of studying law as devoid of any social interests is, indeed, compelling but appears to be quite impractical. Jurisprudence and Psychology Psychology is the science of human mind and behavior. Its objective is to understand the reasons behind the way an individual responds to a stimulus. All the social sciences, including jurisprudence, study human actions. Psychology occupies a central position among the social sciences for it is imperative to understand the human mind before studying human actions. Law plays a regulatory role in a man’s life. One cannot regulate without understanding the nature of that which is to be regulated. Therefore, it is important that a lawmaker understands basic psychological concepts. Such an understanding would enable the lawmaker in ensuring that the law is not only made but also effectively followed by the people. It may be argued that jurisprudence is in no way concerned with the workings of a human mind. However, psychological researchers have greatly contributed to penology and criminology. The analytical positivists stress upon the importance of sanctions that are imposed by law. Some jurists believe that the sanctions are mostly psychological ones. Jurisprudence and Ethics Ethics scientifically studies human conduct. It deals with the concept of ideal human conduct. Such an ideal state is determined by popular opinions of what is good and what is bad. It depends upon the moral values of the society. Crimes are acts against the society at large which are penalized by law. Generally, law does not concern itself with the science of ethics. Sometimes ethics may help in the determination of whether an act should be criminalized or not. However, it must be noted that something that is unethical may not be a crime and vice versa. Ethics deals with the values and beliefs about ideal human conduct. The law deals with the regulation of human conduct. Thus, a jurist must have a basic understanding of the science of ethics to examine a law. Austin divorced ethics from jurisprudence. The same has been criticized by many, for, it is believed that complete separation of ethics from jurisprudence would completely cut out the science of law from all forms of social contact and reduce it to a “system of rather arid formalism”. Jurisprudence and Economics Economics refers to the science of wealth. Both, jurisprudence, and economics aim for the betterment of the lives of the people. Economics aims for such betterment through the satisfaction of the needs and wants of the people, while jurisprudence, the science of law, aims for the betterment of the lives of the people through the enactment of welfare legislations. Wealth forms an important source of happiness, peace, and fulfilment in an individual’s life. Therefore, to enact good welfare legislations, a legislator must be mindful of the fundamental concepts of the science of wealth, that is, economics. Moreover, economic factors also lead to crime. Therefore, an understanding of economics is essential to address and prevent crime in society. Law also protects people from economic exploitation. The intimate relation between law and economics was first emphasized by Karl Marx. After his theory, several jurists began to evaluate the relation between the science of wealth and the science of law. Jurisprudence and History History studies the events and happenings of the past. One of the important areas of jurisprudence is to understand the origin and evolution of law. Thus, the relation between jurisprudence and history is extremely close. In fact, there is an entire separate historical school of jurisprudence. Jurisprudence and Political Science According to Friedmann, jurisprudence is linked to philosophy at one end and to political theory on the other. The concept of law, as we know it today, originated with the concept of state. Political Science is the science of the state. The analytical school of jurisprudence considers law as the command of the sovereign. This ‘sovereign’ is what is known as the state. The various political theories regarding the origin of the state have been used by jurists to formulate theories regarding the origin, nature and functions of law. The various social sciences are deeply inter-related. This makes it impossible to study a single social science in complete isolation. The primary objective of all social sciences is to study human actions and behavior in different forms. Thus, it is important for a legal professional to be mindful of the intimate relations that jurisprudence shares with other social sciences. Purpose and Value of Jurisprudence: The purpose of jurisprudence is to study the law and legal concepts and analyze the same to facilitate better understanding of legal complexities. Therefore, the theories of jurisprudence are quite useful in solving complex legal problems in the practical world. The various studies and analysis of the legal concepts help a legal professional in sharpening his legal acumen. The subject has immense academic value. One of the most important features of jurisprudence is its relationship with other social sciences such as sociology, political science, ethics, etc. Therefore, research in the field of jurisprudence yields great number of social benefits. Moreover, jurisprudential concepts make way for sociological perspectives in law, thereby preventing it from being reduced to rigid formalism. Jurisprudence is known as the “grammar of law”. It helps in the effective expression and application of legal concepts to real-life legal problems. It greatly helps in the interpretation of law and determination of legislative intent. It stresses upon the importance of considering present social needs over the ideas of the past while dealing with legal problems. Jurisprudence is also known as the “eye of law”. The human eye senses the light reflected from objects to make them visible. Similarly, jurisprudence throws light on several fundamental legal concepts to facilitate their effective application in deliberation of legal problems. Indian Perspective: The Hindu legal system is one of the most ancient legal systems of the world. It is based on the concept and philosophy of “Dharma”. The Hindu concept of dharma might appear to be like the natural school of jurisprudence. Dharma refers to the order set by nature and the adherence of human beings to such natural order. Dharma includes the concept of nyaya or justice. The term natural order implies to the cosmic order- the law which sustains the entire universe. The Hindus believed that dharma ensures that humans exist in harmony with the entire cosmos or universe. The philosophy of Dharma is found to be encoded in various ancient Hindu texts known as the “Dharmashastras” (Code of Law). Some of the most important ones are: Manu Smritis – it is the systematic collection of all rules of Dharma Shastras- covering all the branches of law then in force. The simple language and great clarity in its composition made the Manu Smriti the most authoritative source of ancient Hindu jurisprudence. Narada Smriti- It consists of both substantive as well as procedural laws. Yajnavalkya Smriti Arthashastra- The political treatise of Hindus The modern Indian Legal System is based on the common law system. The ancient Hindu system is denounced greatly to ensure that the Indian state remains secular in nature. Thus, the ancient Hindu legal system has lost its relevance in the modern world. Though several thinkers have questioned the utility of jurisprudence, it remains one of the most important subjects of law. The purpose of the law is to regulate society to maintain order. Jurisprudence ensures that law remains connected with society and its philosophies. Without jurisprudence, the law would be reduced to a formalistic science which may appear to facilitate its goal of regulation. However, in the long run, it would only lead to a situation of chaos and constant conflicts between law and society. Schools of Jurisprudence: Natural School of Law: Natural law thinking is an important tool in political and legal ideology in modern times. The term ‘natural law’ essentially refers to the legal system laid down in nature since the dawn of life on the planet. Unlike positive law, natural law does not require a “politically superior” authority to formulate laws. Natural rights are conferred and protected by God himself. Lord Llyod describes natural law as a mere law of self-preservation or an operative law of nature that constrains a man to behave in a certain way. History According to Friedmann, the history of natural law school is a “tale of the search of mankind for absolute justice and its failure”. Natural law has always appeared, in some form or other, throughout the various ages, as an idea of law higher than positive law. With the changing socio- political conditions, the idea of natural law is also undergoing change. However, one aspect that appears to be permanent is the appearance of nature as an ideal higher than that of positive law. Natural law has helped in the transformation of the old civil law of Romans. It has validated the idea of international law. It has been used as a weapon in the fight against absolutism. At different times, the natural law school has been put to different uses. The history of natural law school can be traced as follows: Greece The Greeks are said to have laid the foundations of the natural law school. Heraclitus observed a certain rhythm in events and termed it as “destiny, order, and reason of the world.” With this, he laid down the basis of natural law. Nature, according to the Greeks, refers to a certain order in things. They identified the relation between such an order and law. This thinking formed the basis for the Greek school of enlightenment in the 5th century B.C. It went on to dominate the philosophical thinking of those times. Socrates Socrates identified that particular element of natural law which calls for adherence to positive law. However, he argued that natural law does not demand blind adherence to positive law. It must be critically evaluated by men, using their insight. This element of natural law was a climacteric factor during his age. Plato Plato’s ideas mainly revolved around the concept of natural justice. According to him, each individual is given a certain sense of justice by divine power. Such a sense of justice and ethical reverence has been given to him to facilitate his survival by forming unions with other individuals. An ideal State is one where a person is given a role that justifies the capabilities that he possesses. His Republic can be said to be a product of his pursuit for the basis of justice. Aristotle Aristotle views the world as a composition of nature. According to him, man is a part of the creation of God. Man is endowed with the gift of reason which distinguishes him from other creatures created by God. He argues that when a man lives in accordance with “reason”, it can be said that he is living “naturally”. Rome The Romans did not confine natural law to theoretical considerations. Instead, they explored its utility by applying its concepts practically. Romans used principles of natural law to transform their rigid legal system into a cosmopolitan one. Roman Legal system can be said to have three divisions- jus civile, jus gentium and jus natural. Jus civile refers to Roman civil law which applied to Roman citizens only. Jus gentium refers to certain principles of natural law that were universally accepted and were, therefore, applicable to foreign citizens as well. The Roman jurists did not deliberate upon the conflict between natural law and positive law and did not decide as to which of them is higher. India The Hindu legal system is one of the most ancient legal systems of the world. It is based on the concept and philosophy of “Dharma”. The Hindu concept of dharma might appear to be like the natural law school of jurisprudence. Dharma refers to the order set by nature and the adherence of human beings to such natural order. Dharma includes the concept of nyaya or justice. The term natural order implies the cosmic order- the law which sustains the entire universe. The Hindus believed that dharma ensures that humans exist in harmony with the entire cosmos or universe. Natural Law and Social Contract The political, social, and economic developments in medieval Europe opened upon an entirely fresh perspective towards the principles of natural law. The idea of natural law was used to support that of a social contract. The social contract theory argues that ‘state’ is nothing, but a product of an agreement entered into by individuals in order to protect their life, liberty, and property. The interrelation between natural law and social contract theory can be found in the works of the following chief exponents of the social contract theory: Hugo Grotius Grotius believed the social contract theory is a historical fact. He argued that by entering a social contract, the people are forfeiting their right to punish the ruler howsoever bad his government may be. He further went on to state that the ruler was also bound by the basic principles of natural law by virtue of its existence even before the social contract was entered into by the people and the ruler. Thomas Hobbes Hobbes believed in the existence of natural law. However, his approach towards its study was completely different from those who regarded the idea of natural law as higher to that of positive law. He expounded upon the principles of natural law in the form of natural rights possessed by each individual. He recognized these rights as “inalienable”. He recognized all the rights related to self-preservation of a human being as natural rights. He further went on to say that individuals are always in the fear of their rights being violated or unlawfully taken away by another individual. Thus, to remove such insecurities, the rights were vested into an entity called the State which was tasked with protecting and preserving the natural rights of its citizens. This is how Hobbes beautifully synthesized the concepts of natural law and the social contract. John Locke Locke too recognized the existence of certain inalienable natural rights. He categorized them as “life, liberty, and estate”. However, he is said to be an opponent of Hobbes for while Hobbes’s social contract is based on absolutism, Locke’s social contract is based on liberalism. According to him, individuals came together to constitute an entity called State to protect the three inalienable natural rights, namely, the right to life, liberty, and property. Social justice, according to him, referred to the protection of life and the economic rights of an individual by the State. A society can be said to be fair and just only if it protects the economic interests of the people. His idea of justice stemmed from the common belief of classical liberals that private property is the source of liberty and that it also ensures the effective protection of such liberty. Rousseau According to Rousseau, “Man by nature never thinks and he who thinks is a corrupt creature.” He believed that the state of nature was an idyllic state wherein man did not reason things out and lived-in absolute liberty with a free mind. Slowly, mischief crept into the human mind and crimes like theft and murder started taking place. Thus, to protect natural rights, the individuals came together to constitute a body. Through the social contract, everyone surrendered their rights to a body known as the State whose primary function was to protect the rights that have been surrendered. According to him, an individual cannot be oppressed by a State since he himself is a member of it. Kant Kant made a sharp distinction between natural rights and acquired rights and recognized only one natural right i.e., the right to freedom. However, the same also had one limitation; that it must harmoniously coexist with the right to freedom of other individuals. Decline The decline of natural law theories took place in the 18th Century. With the advancement of empirical methods of study and scientific behavioralism, natural law theories were denounced primarily because its source was said to be a “divine entity”. Montesquieu and Hume attacked some of the core beliefs of natural law such as the element of reason present inherently present in all human beings. Hume went on to establish that the element believed to be reason by natural law theorists is, in fact, confusion. Bentham and Austin mercilessly criticized the natural law school as, “simple nonsense; natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts.” Revival The revival of natural law theories began towards the end of the 19th Century. It came up as a reaction to positivist legal theories of the 19th Century. The First World War shattered several ideals of western societies and it was realized that positive law alone is incapable of solving all problems in the new social order. The emergence of ideologies such as Marxism and Fascism and their counter ideologies led to the revival of natural law theories. The revived natural law theories took analytical, historical as well as sociological approaches into consideration. Instead of formulating abstract ideas, it took practical problems into consideration and concentrated upon relativism. The concept of natural law has undergone several changes throughout the course of history. It has supported the emergence of several ideologies which have played a prominent role in world history. In conclusion, it can be said that the natural law school has, with its various theories, greatly contributed to the overall development of law. Imperative Theory Analytical school is also known as the Austinian school since this approach is established by John Austin. It is also called as an imperative school because it treats law as the command of the sovereign. Dias terms this approach as “Positivism” as the subject-matter of the school is positive law. The analytical school gained prominence in the nineteenth century. The distinctive feature of eighteenth-century juristic thought was Reason. Individualism became the manifestation of the cult of reason. Writers like Descartes, Locke, Rousseau, Kant advocated Reason as the last guide and judge in everything. Bentham breaks away from the spirit of the eighteenth century, rejects natural law and subjective values and emphasizes utility and propounds the concept of expository jurisprudence which deals with the law as it is. Austin takes over tins concept of expository jurisprudence and subjects it to a far more detailed, thorough, and searching analysis. Allen has pointed out that Austin does not revolt against 18th-century individualism but seems to be quite impervious to it. His approach was secular, positivistic, and empirical. In fact, it was Austin who propounded the theory of positive law, the foundation of which was laid by Bentham. Background The Natural law school predominated of the juristic thought up to the beginning of the eighteenth century. Principles of Natural law were considered supreme and according to some writers, could override the man-made law. The term Natural law was differently defined and understood by different writers and no single general acceptable meaning of the term “Natural law” or the criterion for ascertaining the content of the principles of Natural Law was there. Nature, reason, supernatural source, justice, utility were some of the bases from which Natural Law was supposed to be derived. The analytical school was a reaction against the airy assumptions of natural law. Exponents of Analytical School The prominent exponents of this school are Bentham, Austin, Holland, Salmond, Kelsen, Gray, Hoffield and Hart. Bentham Jeremy Bentham can be said to be the founder of the Analytical school. In one of his books, he rejected the clinches of natural law and expounded the principle of utility with scientific precision. He divided jurisprudence into expository and censorial. The former deals with the law as it is while the latter deals with the law as it ought to be. Bentham’s analysis of censorial jurisprudence is indicative of the fact that the impact of natural law had not completely disappeared that’s why he talked of utility as the governing rule. Perhaps, because of this reason, Bentham is not styled as the father of analytical school. He, however, believes that law is a product of state and sovereign. Bentham’s concept of law is an imperative one for which he himself preferred the term “mandate”. A law may be defined, said Bentham, as an assemblage of sin declarative of a violation conceived or adopted by the sovereign in a state concerning the conduct to be observed in a certain case by a certain person or class of persons who, in the case, in question are or supposed to be subject to his power. Austin In 1832, John Austin’s lectures were published under the title of “the Province of Jurisprudence Determined”. This was the first systematic and comprehensive treatment on the subject which expounded the analytical positivist approach and because of this work, Austin is known as the father of the Analytical School. He limited the scope of jurisprudence and prescribed its boundaries. His approach was analytical. Austin built on the foundation of expository jurisprudence laid by Bentham and did not concern himself with extra-legal norms. He distinguished between the science of legislation and law from morals. To Austin, jurisprudence meant the formal analysis of legal conceptions. He divides jurisprudence into general jurisprudence and particular jurisprudence. Austin took a legal system as it is that is positive law and resolved it into its fundamental conception. Positive law is the outcome of state and sovereign and is different from positive morality. The great contrast between positive law and positive morality, according to Austin, is that the former is set by a political superior whereas the latter is not the offspring of state and sovereign, hence it is not law. Law cannot be defined by reference to any idea of justice. The science of jurisprudence is only concerned with the positive laws. According to Austin, analysis of positive law is to be done by the operation of logic on the law without consideration of the history of ethical significance. Austin ignored social factors as well as in his analysis of law, he emphasized that by the operation of logic, it is impossible to find out the universal elements in law, for example, notions were common in all mature legal systems. Austin’s approach, analysis and deduction are, however, applicable to a unitary polity based on parliamentary sovereignty. It does not have that relevance to legal systems as in India and the United States of America. Holland Holland is another supporter of the analytical school. He is the follower of Austin. However, he differs from Austin as to the interpretation of the term positive law. For him, all laws are of not the command of sovereign, rather, he defines law as rules of external human action enforced by a sovereign political authority. Salmond Salmond also belongs to the analytical school but differs from his predecessors in several ways. These are: 1. He gives up the attempt to find the universal elements in law by defining jurisprudence as science of civil law. According to him, there is nothing like universal element in law because it is the science of law of the land and is thus conditioned by factors which prevail in a particular state. 2. He deals with low as it is but the law to him is to be defined not in terms of the sovereign but in terms of courts. Law is something which emanates from courts only. 3. He did not agree with Austin that analysis of law can be done with the help of logic alone. He points out that the study of jurisprudence which ignores ethical and historical aspects will become a barren study. Tenets of analytical School 1. Difference between law as it is and law as ought to be – This is a trait of all positivism thinkers for example, Bentham’s Law and Morals have same course but different circumference. Austin does not deny that moral factors work in the creation of law, however, he does not allow any place to morals in his theory. To him, positive law carries its own standard itself. This approach has been criticized by Dias, Hughes, Paton, Stone, Fuller, etc. 2. Concentration of positive law – Analytical jurists look exclusively at the positive law. They prefer to be concerned only with what is the pure fact of law. Representing to themselves the whole body of legal precepts that obtain in each system as made at one stroke on a logical plan to which they conform in every detail, the analytical jurists set out to discover the plan by analysis. 3. Law in terms of and a product of State – Analytical jurist regards law as something made consciously by lawmakers, whether legislative or judicial. They emphasize not the way in which the precepts originate with respect to their content but the fact that they get the conscious stamp of the authority of the state. Thus, the most important fact is establishment or authoritative recognition by the state, of a rule of law. In this sense law is a product of conscious and increasingly determinate human will. 4. Logic – For studying law, analytical jurist have mainly taken resort of logic and rejected ethical elements. There is no value of historical or social factors for jurists of analytical school. 5. Statute – Law is that which is made consciously by the state. Statute law is the main concern of the school. Kelson’s pure theory of law Kelson’s theory of law which is known as the pure theory of law implies that law must remain free from Social Sciences like psychology, sociology, or social history. Kelson’s aim was to establish a science of law which will be pure in the sense that it will strictly eschew all metaphysical, ethical, moral, psychological, and sociological elements. His aim goes beyond establishing an autonomous legal science on positivistic empirical foundations, as he constantly criticized the ideas of justice and the principles of natural law. He altogether excludes all such factors from the study of law. Kelson defines law as an order of human behavior. The specific nature of this order consists – 1. in its being coercive and 2. the fact that this coercive power is derived solely from the sanction attracted to the law itself. His sole object was to determine what can be theoretically known about the law of any kind at any time under any conditions. The essential foundations of Kelson’s system may be summarized as under: 1. The aim of theory of law as of any science is to reduce chaos and multiplicity and to bring unity. 2. Legal theory is science not volition. It is knowledge of what law is, not of what the law ought to be. 3. Law is a normative not a natural science. 4. Legal theory is a theory of norms. It is not concerned with the effectiveness of legal order. 5. A theory of law is formal, of the way of ordering changing contents in a specific way. 6. The relations of legal theory to a particular system of positive law is that of possible to actual law. The most distinguishing feature of Kelson’s theory is the idea of norms. To Kelson, jurisprudence is a knowledge of a hierarchy of norms. A norm is simply a preposition in hypothetical form. Jurisprudence consists of the examination of the nature and Organization of such normative proportions. It includes all norms created in the process of applying some general norm to a specific action. According to Kelson, a dynamic system is one in which fresh norms are constantly being created on the authority of an original or basic norm, while a static system is one which is at rest in that the basic norm determines the content of those derived from it in addition to imparting validity to them. Criticism Kelson’s pure theory of law has been criticized by jurists. The main criticisms are as follows: 1. His conception of Grundnorm is vague. Friedman puts it, it is a fiction incapable of being traced in legal reality. Kelson seems to have given his thesis based on the written constitution but even in the written constitution Grundnorm is made up of many elements and any one of these elements alone cannot have the title of Grundnorm. 2. Every rule of law or norm derives its efficacy from some other rule or norm standing behind it but the grundnorm has no rule or norm behind it. A grundnorm derives its efficacy from the fact of its minimum effectiveness. 3. Another important objection of Kelson’s theory is that he has not given any criterion by which the “minimum of effectiveness” is to be measured. Writers like Friedman, Stone, Stammer have pointed out that in whatever way the effectiveness is measured, Kelson’s theory has ceased to be pure on this. The minimum of effectiveness cannot be proved except by an enquiry into political and social facts whereas Kelson has altogether rejected political and social facts. Legal Realism Unlike the sociological school, legal realism is mostly unconcerned with the ends of the law. The movement is known as the “realist” movement for it aims to study the actual workings of law and rejects the traditional definitions which regard enacted the law as the only true law. One of the most important aftermaths of the Industrial Revolution was the increased tendency towards socialization amongst the people. It was recognized that to ensure justice, it is important to strike a balance between the overall welfare of the society and the protection of individual liberties. Thus, it was opined that the society is an important element in an individual’s life and vice-versa. This can be said to be the basis of the various sociological approaches towards the study of law. One such sociological approach is legal realism. The realists study the judgments given by the courts of law and even consider the human factor involved while delivering the said judgments. It can be divided into two schools of thought- American Realism and the Scandinavian Realists. American Realism The aim of American realism is to reform the law. They recognize the fact that the same cannot be done without understanding it. They are interested in studying the law “as it is” and not “as it ought to be”. This is something that they have in common with the positivists. Furthermore, they seek to understand the law by taking into consideration the sociological factors. They adopt an empirical approach to the study of law. The American realists put too much emphasis upon the role of judges in law. According to them, the law is what the judges decide through their judgments. This tendency is due to the fact that judges have played an important role in the development of the American Constitution and subsequent laws. American realism studies the human factors involved in law. In fact, it strongly emphasizes the importance of studying such human factors. Some of the noted American Realists are as follows: Gray (1839-1915) John Chipman Gray is one of the “mental fathers of realist movement”. Although known to be an analytical jurist, Gray considered the judiciary, and not the legislature, to be the most important source of law. He admitted the crucial role played by “non-logical” factors, such as personality and prejudice of the judge while delivering the judgments. Gray is complimented for laying down a solid groundwork upon which many of the most important ideas of American Realism are currently resting. Justice Holmes (1841-1935) Oliver Wendell Holmes J. is famous for his “bad man’s theory” which looked at law from a criminal’s perspective. Law, according to him, is meant for the potential criminals or the “bad man”. He took note of the various definitions of law based on principals of ethics, morality and natural law and rejected all of them stating that the bad man only cares about what the courts will do if he commits certain acts. Such predictions or “prophecies” regarding the actions of the courts is known as the law. He believed in the complete separation of law and morals. He was interested in studying law “as it is”. Legal history, according to him, should only be studied to analyze the relevance of certain historical laws in contemporary times. His definition of law as ‘prediction’ resulted in the increased importance of litigation and lawyers in the field of law. His approach towards law can be said to be empirical and pragmatic. Through his literary works and the writings as a judge of the Supreme Court of America, Holmes brought about a significant amount of change in the overall attitude towards the law. Jerome Frank (1889-1957) Frank insisted upon the existence of two groups of realists. While one group is skeptical about legal rules providing uniformity to law, the other group is skeptical about the establishment of facts before the trial court, in addition to the skepticism about legal rules. Frank identified himself as a member of the second group. According to him, law involves the application of certain rules of law to the facts of a case by the judge. He expresses his skepticism about the accuracy in the finding of a fact by a judge and remarks that, in most judgments, it is difficult to distinguish between the facts found by the judge, the rule of law applied to them and the subsequent combination of both, the facts as well as the rules. Frank emphasizes the uncertainty of the law. Precedents and codified law, according to him, are made under the false belief that law should be certain. He believed judges and lawyers should accept the fact that law is uncertain and should not strictly adhere to the precedents and codified laws. Such strict adherence to precedents and codifications to ascertain the law only provides a false sense of security to them and is actually quite harmful and dangerous. Carl N. Llewellyn (1893-1962) Llewellyn recognized law as an institution. According to him, law is an extremely complex institution in society. It owes its complexity to the use of several precedents and ideologies in the formulation of legal principles. He further establishes the concept of “law-jobs” wherein law has two basic functions in society: 1. to facilitate group survival. 2. to engage in a quest for justice, efficiency, and richer life. He further expounded upon the achievement of such “law-job ends” using “legal tools”. He established the concept of “craft” as a minor institution. “Craft”, according to him, refers to the skill and “knowhow” among a group of specialists who perform certain jobs within an institution. Such group or body of specialists continuously develops its skills from time to time and then passes them over to the next generation through education and practical example. He described the legal profession as a profession involved in the practice of such crafts with the juristic method being the most important one amongst them. Scandinavian Realists Professor Dias is of the view that there is no “school” of Scandinavian Realism since the people belonging to such a group have certain differences amongst themselves. The approach of the Scandinavian realists towards law is more abstract and philosophical, unlike that of American Realism. It strongly criticizes the metaphysical ideas of law. Scandinavian realists have played an important role in rejecting the ideas of the school of natural law. Some of the noted Scandinavian Realists are as follows: Hagerstorm (1868-1939) Axel Hagerstorm is regarded as the spiritual father of the Scandinavian Realists. He was a philosopher who strongly criticized the metaphysical foundations of law. Much of his work is a critique of the errors in juristic thought and writing. His analysis is conceptual, historical, and psychological and not empirical, like that of American realists. He reviews the attempts made by various jurists to find empirical foundations of rights and rejects all of them. He stressed upon the psychological significance of right. According to him, “One fights better if one believes that one has right on one’s side.” He extensively studied the Greek and Roman law in his quest for the historical basis of rights. He believed that just like classical law, modern law is also ritualistic in nature. According to him, the relation between law and ritual is just like that between liquor and its container (bottle). One cannot drink the container, but it is necessary to be able to drink the liquor. Hagerstorm rejected the ideas of good and bad. He denied the existence of such objective values. Olivercrona (1897-1980) Law, according to Prof. Olivercrona, does not require any specific definition. He sought to investigate the law and not the nature of law since such an examination of the nature of law would require an assumption to be made with regards to what it is. He insisted on examining facts rather than making assumptions. According to him, the law has a “binding force” so long as it is valid. The moment it loses its validity, it loses its binding force. He rejected the ideas of “binding force behind the law” and “the” binding force of law. He further stated that such binding force is not vested in the “will of the State” or the unpleasant consequences if the law is broken. The binding force is present in its validity and the moment it is declared as invalid, it loses its binding force. He further believed that the term “right” is a hollow word and legal problems can be solved without using the concept of rights. Ross (1899- 1979) Alf Ross was a Danish jurist who deliberated upon the normative character of law. He distinguished between normative laws and descriptive laws which are found in the books. He did not believe in interpreting the law in the light of social facts and expressed concerns regarding the validity of the law. Like all legal realists, his ideas too are concerned with legal orders and the position of the courts. A.V. Lundstedt Lundstedt rejects the idea of justice and all the normative aspects of the law. The idea of justice, according to him, is purely metaphysical and regarded it as pure fantasy. He believed that only physical facts should be considered in the study of law. Thus, he dismissed the concepts of rights, duties, legal rules, etc. as unrealistic. The idea of laws being made to achieve justice was rejected by him and he regarded such laws made on the idea of natural justice as ‘material law’. Critics have argued that the overall approach of the realists, in general, undermines the importance of statutory principles and rules. They further argued that the realists have given undue amount of importance to litigation and the human factor in law and have been ignorant of that part of the law which does not even come before the courts for adjudication purposes. All in all, legal realism has greatly contributed to the evolution of jurisprudence. Julius Stone describes it as a gloss on the sociological approach and Allen goes on to describe it as an “avatar on the sociological jurisprudence.” Historical School Historical school of jurisprudence deals with the origin and development of the general principles of law as well as certain important legal principles which have been imbibed into legal philosophy. It primarily emerged as a reaction against the natural law school. In fact, Prof. Dias opines that its reaction against the natural law theories can be said to be the basis of several important principles of historical jurisprudence. Some thinkers are also of the opinion that the Historical School has emerged as a reaction against Analytical legal positivism. Montesquieu Montesquieu is regarded as the first jurist to follow the “Historical Method”. He studied the laws of various societies and concluded that “laws are the creation of climate, local situations, accident or imposture”. He did not go further to explain his observation. However, this idea of law answering the needs of time and place has been the basis of many notable ideas and theories. F. K. Von Savigny (1779-1861) Savigny is the founder of the Historical School in Europe. He was academically inclined towards historical studies. He believed reforms which go against the nation’s continuity are doomed. Therefore, he cautioned legislators to look before leaping into reforms. He considered law to be “a product of times the germ of which like the germ of State, exists in the nature of men as being made for society and which develops from this germ various forms, according to the environing influences which play upon it.” Savigny believed that the nature of any legal system reflects the spirit of its people. This later came to be known as Volksgeist. Every law should follow the historical course. The “historical course” refers to the spirit of the people which manifests itself in the form of customary rules. Thus, customs are not only a formal source of law but also superior to it. Law is not universally applicable. It varies with time and place. He rejected the theories of natural law as well as positive law. According to him, law is a part of the culture. It is not the product of an arbitrary act of the legislator but a response to the national spirit of the people. Thus, it is a product Volksgeist. of Savigny views a nation as an organism which grows and withers away with the passage of time. He regards law as an integral part of such an organism. According to him, law matures and withers away along with the national identity. His idea of Volksgeist has been criticized for the lack of precision. According to Prof. Dias, there no doubt lies a certain amount of truth in the concept. However, Savigny has gone too far by developing major ideas and theories on the concept. The idea of Volksgeist is a product of the growing spirit of nationhood that existed throughout Europe in those times. Volksgeist is a concept with limited applicability which has been unreasonably stretched and made universal by Savigny. Nevertheless, Savigny is one of the greatest jurists of the 19 Century. Ihering has stated that with the publication of Savigny’s early works, modern jurisprudence was born. It is regarded as quite unfortunate that the Germans used the concept of Volksgeist to suit their own ends. They regarded the nation as a racial group and used the concept to enact laws against the Jews. Sir Henry Maine (1822-1888) Maine studied the development of primitive societies and identified three agents of legal development: Legal Fiction- Using legal fiction, the law is changed according to the needs of time while casting an impression that it is remaining uniform and constant. He states, “I employ the expression ‘legal fiction’ to signify any assumption which conceals or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified.” Equity- Equity is used to modify the law “as a set of principles invested with higher sacredness than those of original law.” Legislation- Finally people came to realize that law can simply be reformed by explicit declarations of an intention to do so and enactment of legal codes. This process was termed as legislation. Estimate of Historical School Historical School has always maintained that law cannot be studied in complete isolation of its social aspect. It is a movement for facts against fancy. While it is recognized that the Historical School primarily studies the “evolution” of law, it is also noted by jurists that “evolution” does not mean “progress”. It has been opined by some jurists that the Historical School owes its existence as a juristic school to the fact that it supplies the historical aspect of a particular law or legal concept as an aid for interpretation. The moment it fails to do so, it shall no longer be said to be a juristic school. Comparison between Historical School and Analytical School Both, the Historical School as well as the Analytical School, use the analytical method to study law. The most important point of distinction between the two is that the Analytical School studies the concepts as they are in the present time whereas the Historical School is concerned with the historical development of certain important legal concepts. Other points of distinction may be briefly summarized as follows: 1. The scope of the Analytical School is confined to mature legal systems whereas that of Historical School extends to primitive legal institutions of society. 2. Analytical School believes that law is a creation of man whereas the Historical School believes that law is self-existent. 3. The Analytical School believes that law has been created by the State whereas the Historical School believes that the concept of law existed even before that of State. 4. The Analytical School believes that the “hallmark of law is its enforcement by the sovereign” whereas the Historical School is of the opinion that law does not owe its existence to its enforcement by a sovereign. 5. Unlike Analytical School, the Historical School regards custom as a formal source of law. 6. While interpreting any law, the Historical School emphasizes upon historical aspect whereas the Analytical School is strictly concerned with its textual contents. Distinction between Legal History and Historical School There is a fine distinction between legal history and historical jurisprudence. While legal history studies the origin and development of an entire legal system, historical school is concerned with the history of legal principles existing within a legal system and not the entirely legal system. Both the disciplines are equally important in the study of law. Sociological School The sociological school of jurisprudence started dominating over the other schools in the initial years of the 20 Century. It aims to study the circumstances that led to the emergence of legal institutions and those which control their scope and applicability thereafter. It is completely unconcerned with the ethical constituents of law. Let us look at some of the notable sociological jurists and thinkers. One of the most important aftermaths of the Industrial Revolution was the increased tendency towards socialization amongst the people. It was recognized that to ensure justice, it is important to strike a balance between the overall welfare of the society and the protection of individual liberties. Thus, it was opined that the society is an important element in an individual’s life and vice-versa. Approaches made from this perspective are known as sociological approaches. Duguit (1859-1928) Leon Duguit challenged the existing ideas on the concepts of State, sovereignty and law and viewed them from a social perspective. According to him, the most important social reality is the interdependence of the people. With the technological and scientific advancement of man, this interdependence has also increased. Specialization has increased to such an extent that an individual needs the help and support of other individuals to survive. It has become impossible for man to survive independently, without the membership of any community. Thus, social interdependence is not an idea or a theory but an important social fact. According to Duguit, all humans must strive to ensure that individuals work and exist in perfect harmony with each other. This is known as the principle of “social solidarity”. He goes on to say that all human activity and organizations must be tested based on their contribution towards ensuring social solidarity and that the State must not enjoy any extra privileges. State is also a human organization which is necessary to protect the principle of social solidarity. The principle of social solidarity is the object as well as the limit and extent of the powers of the State. According to him, “Man must so act that he does nothing which may injure the social solidarity upon which he depends; and more positively, he must do all which naturally tends to promote social solidarity.” Rudolf von Ihering (1818-1898) Ihering studied the genesis of Roman law and jurisprudence. He stressed on the importance of “purpose” in guiding the human will. According to him, just as a stone cannot be moved without any external force, the human will cannot operate without any specific purpose. According to him, the purpose of law is to protect interests. Interest refers to the “pursuit of pleasure and avoidance of pain”. Individual interest is partly affected by social factors wherein an individual takes the interest of other people into account. According to him, law strives to ensure individual good only to an end and not an end in itself. The end is the collective good or overall welfare of the society. He was also of the opinion that law is not the only method to regulate society. There are other means and methods as well. Within a society, while there may be several aspects which exclusively fall within the domain of law, there are certain aspects wherein no legal intervention is required. He recognized the coercive character of law which is why his approach is said to be a modern approach towards the study of law. Roscoe Pound (1870-1964) The works of Dean Roscoe Pound have greatly contributed to the school of sociological jurisprudence. His ideas are a product of his constant confrontation with sociological and philosophical problems as well as the working of the American courts. Although some may describe him as completely pragmatic or a utilitarian, he never really denied the important part played by abstract legal philosophy in the development of legal institutions. However, he did approve of the various limitations that have been imposed upon it by time and place. Pound is credited for the growth of the functional attitude in jurisprudence. Functional attitude refers to the attitude of looking at the functional aspects and working of law rather than its abstract contents. According to him, the purpose of sociological jurisprudence is to ensure that social facts are taken into consideration while formulating, interpreting, and applying laws. Theory of Social Engineering Pound frequently stated that the task of a lawyer is analogous to that of an engineer. Pound defined interests as wants or desires which are asserted by individuals in a society. Law must attend to such assertions to create an organized society. According to him, the purpose of social engineering is to build a society in which maximum wants are satisfied with minimum friction and waste. Thus, it must balance competing interests. Pound classified various interests as follows: 1. Private Interests- These are an individual’s “interests of personality” such as physical integrity, reputation, freedom of volition and freedom of conscience. 2. Public Interests- These are the interests asserted by individuals either involved in politics or as viewed from the standpoint of political life. 3. Social Interests- These are the interests pertaining to the social life of an individual and generalized as the interests of social groups. These may pertain to: General Security Security of social institutions General Morals Conservation of Social Resources General Progress Individual life One of the most important outcomes of sociological jurisprudence is that it promoted field study to evaluate the interrelation between law and society. Another important outcome is that it evaluated abstracted ideas on an empirical basis. Critics have argued that the sociological school of jurisprudence teaches “a little of everything except law.” They further state that a textbook of sociology cannot be converted into that of jurisprudence by simply changing the title. Nevertheless, it is difficult to deny the importance of sociological school in the study of law for; firstly, it helps us understand the evolution of law in a better manner, secondly, the element of human interest shall always play a prominent role in law and lastly, study of social interest leads to a better understanding of the legal system.  UNIT – II CONCEPT OF LAW AND JUSTICE Functions and purpose of law, questions of law, fact and discretion Justice and its kinds Civil and Criminal Administration of Justice Theories of Punishment and Secondary functions of the Court. ------------------ Meaning and Nature of Law Law is the subject-matter of jurisprudence since the latter deals with the study of law. In its most general and comprehensive sense, it means any rule of action and includes any standards or pattern to which actions are or ought to be confirmed. Blackstone defines law as “it signifies a rule of action and is applied indiscriminately to all kinds of action whether animate or inanimate or rational or irrational. Bentham said that law is a portion of discourse by which expression is given to an extensively applying and permanently in during act or state of the will of a person or person in relation to others and in relation to whom he is or they are in the state of superiority. Salmond defines law as the body of principles recognized and applied by the sovereign in the administration of Justice. According to Austin law is a command of the sovereign backed by sanction. All definitions have been founded on different bases which can mainly be categorized into the following three categories: 1. Law is a dictate of reason – given by supporters of the natural theory of law. 2. Law is a command of the sovereign – supported by followers of analytical School of Law. 3. Law is the practice of court – supported by followers of legal realism. The word law is in two main forms that is one is concrete and the other is abstract. In its concrete form, the law includes statutes, ordinances, decrees, and the act of Legislature. Law may be described as a normative science that is a science which Lays down norms and Standards for human behavior in a specified situation or situation enforceable through the sanction of the state. What distinguishes law from other Social Sciences is its normative character. This fact along with the fact that at stability and certainty of law are desirable goals and social values to be pursued, make the law to be a primary concern for the legal fraternity. Theoretically speaking judges do not make law they only interpret or declared it but the truth is that even during the period when analytical positivism held it’s over the common law judges through their judicial creatively developed the common law to suit the needs of the social change. The function of law is that of social engineering and this perception has been accepted by all the civilized countries of the world including India. The concern of law as an instrument of enhancing economic and Social Justice has widened to an extent that there has been a growth of a variety of laws touching various facets of human life. Law is considered not as an end in itself but is a means to an end. The end is securing of social justice. Almost all theorists agree that law is an instrument of securing justice. According to Holland, the function of law is to ensure the well-being of the society. Thus, it is for the protection of individuals’ rights. Roscoe Pound attributed four major functions of law, namely: (1) maintenance of law and order in society; (2) to maintain status quo in society; (3) to ensure maximum freedom of individuals; and (4) to satisfy the basic needs of the people. He treats law as a species of social engineering. Though law functions to regulate the conduct of men in society, it’s extent of operation has to be restricted to some extent for ensuring certainty and stability in the legal system. Having regard to history of development of law, it would be seen that different approaches through doctrinal theories propagated by jurists from time to time has been to project law as an instrument for balancing the rights and duties of the Subjects to exert social control. Functions of Law Salmond’s opinion regarding the function of law appears to be sound and logical. The term “Law’ denotes different kinds of rules and Principles. Law is an instrument which regulates human conduct/behavior. Law means Justice, Morality, Reason, Order, and Righteous from the viewpoint of the society. Law means Statutes, Acts, Rules, Regulations, Orders, and Ordinances from point of view of the legislature. Law means Rules of court, Decrees, Judgment, Orders of courts, and Injunctions from the point of view of Judges. Therefore, Law is a broader term which includes Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc. Ever since the down of Human civilization, mankind has had some sort of rule or that they used to Govern itself in society laws set the standard in which we should live in if we want to be part of society. Law set up rules and regulations for society so that we can freedom, gives Justice to those who were wronged, and it set up that it protects us from our own Government. Most importantly the law also provides a mechanism to resolve disputes arising from those duties and rights and allows parties to enforce promises in a court of law (Corley and Reed 1986 P.A) According to Corley and Reed (1986) law is a body of rules of action or conduct Prescribed by controlling authority and having legal binding forces. Laws are created because it helps prevent chaos from happening within the business environment and as well as society. In business, the law sets guidelines regarding employment regulatory, compliance, even inter office regulations. The Modern History of Common Law With the decline in the power of the monarchy and the ascendancy of parliament, the English court system stabilized; judicial independence was taken for granted and no longer considered a problem by the English rules. Even Oliver Cromwell and his puritan followers, who overthrew the Stuart kings and established a commonwealth in England between 1648 and 1660, feared the possible destabilizing effects of sweeping changes in the law. Cromwell thus made no major effort to supersede the common law (Prall, 1966). The English legal system remained a complex system of rules and precedents, interpreted with small shades of meaning and requiring a body of legal expects to deal with it. These legal experts had to save long apprenticeships to become familiar with the vast number of cases and precedents that would govern their decisions. Devine and Human Laws Divine Laws are the laws of God himself and are beyond the scope of jurisprudence, whereas human laws are framed by men. Public and Private Law The term public implies either State, or sovereign part of it. By private, it means an individual or a group of individuals. In private law, State exists but only as an arbiter of rights which exist between individuals. In public law, State itself is a party involved along with the public at large. Salmond’s classification of Law He has referred to eight kind of laws: 1. Imperative law – the command of the sovereign must be general, and the observance of law must be enforced by some authority. 2. Physical or scientific law – these are laws of science which are the expression of the uniformities of nature. 3. Natural or moral law – Natural law is based on the principles of right and wrong whereas Moral laws are laws based on the principles of morality. 4. Conventional law – system of rules agreed upon by persons for the regulation of their conduct towards each other. 5. Customary law – any system of rules which are observed by men as a custom and has been in practice since time immemorial. 6. Practical or technical law – rules meant for a particular sphere by human activity. 7. International law – rules which regulate the relations between various nations of the world. 8. Civil law – the law enforced by the State. Austin’s Classification of Law: John Austin has classified law as follows: 1. Divine law – the law of God, beyond the scope of jurisprudence. 2. Human Law – Law made by men. 3. Positive morality – rules set by the non-political superior. 4. Law metaphorically or figuratively so-called. However, according to him, only divine law and human law are proper laws. Purpose of Law Salmond retains the emphasis on the judicial process but considers that a reference to the purpose of the law is essential. The law may be defined as the body of principles recognized and applied by the state in the administration of Justice. Justice is the end of law and it is only fitting that an instrument should be defined by a delineation of the purpose which is its raison d’être. This raises the question of the relationship of law and Justice in which one theory defines law in terms of justice but from this, it follows that, and unjust law cannot exist for if it could then on the promises there would be a fetal cells contradiction. Many writers have fallen into the simple trap. Earlier theories of natural law put the emphasis on Justice and denied the validity of law if it was opposed to natural justice, but slavery condemned by natural law yet existed in the legal systems of the time and thought the Romans recognize this difficulty they never succeeded in solving it. A second means of solving the problem of the relationship of law and justice is to place all the emphasis on law and regard justice as near conformity to law by then we are depriving ourselves of a Criterion which may not be wholly subjective by which we made test the operation of a legal system. The purpose of law is essential to an understanding of its real nature but the pursuit of justice is not the only purpose of law the law of any period so many ants and doors and will vary as the decades roll by and to seek a for one term which may be placed in a definition as the only purpose of law leads to dogmatism the end That seems most nearly Universal is that of securing order but this alone is not an adequate description indeed, Kelson regards it as a pleonasm since law itself is the order of which we speak. Questions before a court of law Question which arises for determination before a court of law are either questions of fact or questions of law or an admixture of both, known as mixed question of law and fact. Questions of law A question of law is understood in three senses: a. First sense A question of law is one where answer is already prescribed by some rule of law. Thus, the question as to what the reasonable and proper punishment for murder is a question of law. In such cases the judicial opinion is excluded, and discretion of the Judge ruled out. b. Second Sense The question as to what law on point is such question arises where notwithstanding the existence of law on the point, it is dubbed with uncertainty. Such a situation is a matter of common occurrence because the language of the statute is always capable of various interpretations and it is in this sphere that the lawyers play the most important role. So, interpretation of a particular provision of law is a question of law in this second sense but once it has been interpreted either way a superior court it becomes a question of law in the first sense. c. Third Sense In jury, trails, such questions as are to be answered by the judge are named questions of law as distinguished from those which are to be answered by the jury and which are called questions of fact. This classification of the definition of question of law is however incorrect because the judge may often determine questions of fact also but for that mere reason such questions would not turn out to be questions of law. Questions of fact a. Broad sense In its broad sense question of fact means a question other than a question of law. Thus, i. Any question not answered by any fixed rule of law. ii. Any question other than what the law on point is. iii. Any question which is to be decided by the jury and not by the judge, are question of fact. b. Restricted sense In its restricted sense the terms mean a question of fact opposed to a question of judicial discretion. Thus, whether in a case of breach of contract the plaintiff should be allowed specific performance or merely left out with compensation is a question of discretion. Or where matters of opinion arise before the court, the court has discretion to adopt whichever view it deems best suited the circumstances of the case. In such cases, however, no rule of law is applicable, and it would, therefore, be appropriate to call them, questions of discretion. Comparison of question of fact and question of discretion i. Questions of fact are question of what is. Questions of discretion are questions of right or what ought to be. ii. Questions of fact are to be proved by evidence and demonstration. Questions of discretion are subjects of reasoning and argument. iii. In questions of fact, the court seeks to find out the truth. In questions of discretion, the court’s aim is to determine what is just. Conversion of questions of fact and discretion into those of law As we have already seen, in the primitive stage of society, the basis of decision was the sole discretion of the judge, unfettered by any fixed rules or principles. With the advancement of society fixed principles or formulae came to be evolved and the judge had to follow them but these principles being general and vague left much room for the exercise of judicial discretion. Later, elaborate and all covering statues were framed but these again due to their being expressed in language, which is an unruly horse and capable of being interpreted in various ways, still left sufficient room for the judge to exercise his discretionary powers. The situation exists even to this day. But with the development of society and growth of law, the discretion of the courts is gradually being curtailed, firstly, by liberal enactment of statutes and secondly, by previous judicial decisions and authoritative opinion. The developed legal system aims at exclusion of the moral judgments of the courts and to compel them to decide cases, not according to their discretion, but according to fixed principles. To achieve this end, decisions of superior courts are permanently preserved in Law Reports and courts are bound to act according to the rules laid down therein. In this way, what were formerly mere questions of discretion are converted, at a later stage, into questions of law. Likewise, questions of fact may also at a later stage be converted into questions of law. Discordance between law and fact “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 the law does not infallibly see things as they are partly by deliberate design and partly by errors and accidents of historical development, law and fact, legal theory and they may not be treated by law to be so or, in other words, law is discordant with facts in many instances. Concept of Justice The concept of justice is as old as the origin and growth of human society. A man living in society desires peace and, while living in he tends to experience a conflict of interests and expects a rightful conduct on the others part. And therefore, jurists like Salmond and Roscoe Pound have emphasized the importance of justice. Through the instrumentality of law regulated by the state, the concept of justice became clearer. As the law grew and developed the concept of justice walked parallel and expanded its tentacles into different spheres of human activities. The essence of legal justice lies in ensuring uniformity and certainty of law and at the same time ensuring the rights and duties duly respected by all. The notion of justice is the impartiality imbibed in it. The violation of justice which is enforced by the law results in state sanction as ‘punishment’. In the words of Chief Justice Coke it has been rightly said that ‘wisdom of law and justice is wiser than man’s wisdom,’ thereby legal justice represents the collective wisdom of the community which Rousseau called as ‘General Will’ of the people. Definition The term justice has been derived from the Latin word ‘Jungere’ which means to bind or tie together, thus in this way it can be stated as justice is the key ailment which ties the individuals in the society together and harmonizes a balance between them and enhances human relation. In the words of jurists- Blackstone- “Justice is a reservoir from where the concept of right, duty, and equity evolves.” Salmond- “Though every man wants to be righteous and just towards him, he himself being ‘selfish’ by nature may not be reciprocal in responding justly.” According to him, some kind of external force is necessary for maintaining an orderly society, and without justice it is unthinkable. Justice represents itself in kinds mainly: Social Justice In the words of Chief Justice, P. B. Gajendragadkar-social justice means ending all kinds of social inequalities and then provide equal opportunities to all. Commenting on social justice Mr. M.C. Chagla, the former Chief Justice of the Bombay High court observed in the case of Prakash Cotton Mills v. State of Bombay, 1957 II LLJ 490 (Bom) that “we are no longer living in the laissez-faire…. it is true that social justice is imponderable, and we asked not to introduce the principles of social justice in constructing legislation that comes for interpretation before us. But in our opinion, no economic, social or labor legislation can be considered by the court without applying the principles of social justice in interpreting these related provisions of law.” While in the case of State of Mysore v. Workers of Gold Mines 1958 II LLJ 479 (SC) the Supreme Court observed that the concept of social justice is a living concept of revolutionary impact: it gives substance to rule of law and meaning and significance to the idea of welfare of the state. Thus, the concept of social justice aims to uplift the underprivileged section without unduly and unreasonably affecting the interests of the upper section of the society. The concept of social justice finds its expression in Articles 14(equality before law), 15(prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth), 16(equality of opportunity in matters of public employment) and 39 (b) and (c) [(b) ownership and control of the material resources and its equal distribution, (c) operation of the economic system not resulting to the concentration of wealth and means of production to the common detriment], of the constitution of India. It also determines the concept of Processual Justice based on natural law which is the very basis of not only substantive law but also the remedial justice. Legal maxims like Nemo Judex In Propria Cause (no one can be a judge in his own case); Audi Altrem Partem (here the other side or party) plays a vital role. Economic Justice It demands that all citizens should have adequate opportunities to earn their livelihood and get equal pay for equal work, which could substantially help them in fulfilling their basic needs. From financial inclusion to better health care the state government should create opportunities for them by generating employment opportunities, following MNREGA, RSBY and so on. No person or group of people should indulge themselves in exploitation and be exploited. There must be a fair and just equitable distribution of wealth and resources, and the gap between rich and poor should get abridged. Political Justice It means granting of equal political rights and opportunities to all citizens to take part in the administration of the country. The legality of the right to vote and contest election free and fairly. Legal Justice It has two dimensions as the formulation of just laws and then to do justice according to it. While making laws the will of the rulers must not be used on ruled. Laws should be based on public opinion and public needs considering the core of social values, morality, and the concept of just and unjust must be considered. It simply means rule of law and not the rule of person. Objective due dispensation of justice by the courts of law is an essential ingredient of legal justice. Administration of Justice Origin The administration of justice in modern civilized societies has evolved through 4 stages: - 1. Primitive stage- when society was primitive and private revenge and self-help were only the remedies available to the wrongdoer, one could easily get the wrong redressed with the help of his friends and relatives, ‘an eye for an eye, a tooth for a tooth and a limb for a limb.’ 2. Elementary/Infant stage- it has been considered that law and state were at infantry level during this stage, and the feeling of security as a responsibility by the state towards its individual and his property was absent. It did not have the enforcing power through which it could punish the wrongdoer. 3. The growth of Administration of Justice- a change was about to witness where a sought of tariff schedules were fixed for different kinds of injury and offenses. And up to that time justice mold as private in nature without the compulsive force of the state. 4. The modernization- it was the developmental stage where the state geared its authority and took upon itself the responsibility of administrating justice and punishing the wrongdoer using its force whenever necessary. This stage owes its origin and growth to the gradual evolution of the state and its political power. And with its transformation, private revenge and self-help got substituted by the administration of criminal and civil justice through law courts. Concept “Men being what they are-each keen to see his own interest and passionate to follow it-society can exist only under the shelter of the State, and the law and justice of the state is a permanent and necessary condition of peace order and civilization.” (Salmond) Driving from the words of Salmond administration of justice means justice according to law. Physical force of the state is the sole or exclusive factor for a sound administration. Administration of justice is the firmest pillar of government, and granting justice is said to be the ultimate end of law and the goal of society, which the judges of the courts have been pouring into law with new variants of justice in the form of contemporary values and need-based rights like freedom, liberty, dignity, equality, and social justice as ordained in the constitutional document. Access to justice for the people is the foundation of the constitution. [State of Haryana v. Darshna Devi, AIR 1979 SC 855, per Justice Krishna Iyer] Classification Under the purview of administration of justice, it is classified into two kinds: 1. Civil justice Blackstone called it as ‘private wrong’. It has been defined as civil injuries where violation or infringement of civil or legal rights of an individual is taken into consideration. A civil case may result in an award of compensation or dismissal of the case. In jurisprudential term, the right of justice is enforced through the administration of civil justice which connotes enforcement and protection of rights as opposed to the punishment of wrongs. The rights to be enforced under it may either be primary rights or secondary rights. Where the enforcement of Primary rights; is also called specific performance wherein the defendant is compelled to do the very act which is agreed upon to be done. For instance, payment of debt, or to perform a contract or restore land or property wrongfully taken or detained. It also connotes remedial rights under it, where the purpose may be either imposition of a pecuniary penalty upon the wrongdoer; or providing for pecuniary compensation to the plaintiff in respect of the damages which he has suffered from the defendant’s wrongful act. And on the other hand, is the Sanctioning rights; where the right to receive pecuniary compensation or damages from wrongdoer may be of two kinds: (i) restitution- here the defendant is compelled to give up or restore the pecuniary value or some benefit which he has wrongfully obtained. (ii) The penal redress, where it is not only restoration of all benefits which the wrongdoer has achieved through his wrongful acts, but also a full redress for the plaintiff loses. Section 9 of the Civil Procedure Code, 1908 defines a civil suit. The civil courts in India have the power to try all suits of civil nature excepting those the cognizance of which is expressly or impliedly barred. These courts can grant declaratory, prohibitory, and momentary reliefs. 2. Criminal Justice Blackstone stated it as ‘public wrong’. The main purpose of administration of criminal justice has always been to punish the offender, while in certain general exceptional cases the accused may get acquitted. The nature of the violation of public rights and duties which affects the community is called a crime and a criminal proceeding results in applying on punishment varying from sentence of death to a mere fine or binding over the lawbreaker to keep the peace or his release on probation after admonition. Under this, the magistrate must decide the guilt of the accused based on the evidence before him. Theories of Punishment Various theories are advanced in justification for punishing the offender. The view regarding punishment also kept changing with the changes in the societal norms. They are of following kinds: 1. Deterrent theory The term ‘Deter’ means to abstain from doing an act. While the main purpose of this theory is to deter the criminals from doing the crime or repeating the same in the future. Under this theory, severe punishments get impose upon the offender so that he abstains from committing a crime while it would constitute as a lesson to the other member of the society. In the words of Salmond- punishment is before all things deterrent and the chief aim of the law of crime is to make the evil-doer an example and warning to all who are like minded as him. He further stated that offenses are committed by reason of conflict of interest of the offender and the society. While this theory concept could be determined in the words of Manu from ancient India. According to him punishment or “dandh” are the sources of righteousness because people abstain from committing wrongful acts through the fear of punishment. 2. Retributive theory This theory is based on the principle- ‘An eye for an eye, a tooth for a tooth…” here, retributive means to give in return. The object of the theory is to make the criminal realize the sufferings of the pain by subjecting him to the same kind of pain, as he had imposed on the victim. The theory has been regarded as an end as it only aims at revenge taking rather than sound welfare and transformation. Salmond puts his words stating that to suffer punishment is to pay a debt due to the law that has been violated. Revenge is the right of the injured person and the penalty for wrongdoing is a debt which the offender owes to the victim and when the punishment is given the debt is paid. While this theory was never recognized as a just theory because it plays a role in self-motivation for committing a crime on the ground of justice for injustice. Overall, it could be stated as it was a kind of abatement prompted by society to victims. 3. Preventive theory The preventive theory is founded on the idea of preventing the repetition of crime by disabling the offender through measures such as imprisonment, forfeiture, death punishment, etc. In the words of Paton, ‘this theory seeks to prevent the prisoners from committing the crime by disabling him.’ It pre-supposes that need of punishment for crimes simply arises out of social necessities, as by doing so the community is protecting itself against anti-social acts which are endangering social order. However, this theory was also not a just method as stated by jurist Kant and others that merely by awarding a term of imprisonment is not going to reduce the crime unless reformative efforts are made to integrate him in the mainstream of society through the process of rehabilitation. 4. Expiatory theory This theory is solely based on the concept of morality, rather being much more concerned with legal concepts. It emphasizes more on ancient religious perceptions regarding crime and punishment when prisoners were placed in isolated cells to repent or expiate for their crime or guilty from their core of the heart and the one who succeeded in doing so were let off. This theory is based on ethical considerations due to which it lost its relevance in the modern system of punishment. 5. Reformative theory This theory emphasizes the reformation of offenders through the method of individualization. It is based on the principle of humanistic principle that even if an offender commits a crime, he does not cease out to be a human being. And an effort should be made to reform him during the period of incarceration. This theory is based on the principle of ‘hate the sin, not the sinner.’ The focal point of the reformist view is that an effort should be made to restore the offender to society as a good and law-abiding citizen. The Supreme Court in the case of T. K. Gopal v. State of Karnataka AIR 2000 SC 1669(1674) stated that- the law requires that a criminal should be punished, and the punishment prescribed must be meted out to him, but at the same time, reform of the criminal through various processes, despite he has committed a crime, should entitle him all the basic rights, human dignity, and human sympathy. Proceedings before a court of law are cither penal or remedial. In penal proceedings the law aims to secure the punishment of the defendant. In remedial proceedings, on the oilier hand, the idea of punishment is entirely absent. It is enforced by specific performance of the contract and actions for res-titution. All criminal proceedings are penal; but the converse is not true, for there are civil proceedings which are merely penal and there are civil proceedings which are merely remedial. Functions of the court Primary Functions of Courts of Law The primary functions of a court of law are the administration of justice, viz., the application by the Slate of the sanction of physical force to the rules of justice. Justice is administered by a court by the enforcement of a right and the punishment of wrongs. It involves in every case two parties, namely, a plaintiff and a defendant, the prosecutor or complainant and the accused, and a judgment in favor of the one or the other. Secondary Functions of Courts of Law: The secondary func-tions of courts of law consist of activities which, though primarily exercisable by the State, have for the sake of convenience been dele-gated lo the courts of law. The secondary functions of the courts are rapidly increasing with the growth of civilization. Under the English Law they have been classified by Salmond into four groups: 1. Petition of Right: If a subject claims a debt or any other right against the State or raises an action for breach of a contract against the Slate, he can file a petition of right in a court of law. The court will investigate the claim and pronounce judgment in accordance with law. Bui as the courts form part of the State itself, no one can compel the Slate to act and the necessary sanction or the element of coercive force cannot be exercised against the defendant. 2. Declaration of Dight: A litigant may require the assistance of a court of law not only for the enforcement of any right but also for a declaration that such a right exists. He seeks the assistance of the courts because his rights, though not violated, are uncertain. Examples of declaratory proceedings are declaration of legitimacy, declaration of nullity of marriage, etc. 3. Administration: A third form of secondary judicial action includes those cases where the court undertakes the management and distribution of properly by means of the administration of trust, liqui-dation of a company by the court or realization and distribution of an insolvent casual. 4. Titles of Right: Sometimes judicial decrees are employed as the means of creating, extinguishing or transferring rights, e.g., a divorce decoct, a decoct ordering judicial separation, or an adjudica-tion of insolvency. In such cases the judgment does not operate as the remedy of a wrong, but as the little of a right.  UNIT – III SOURCES OF LAW Legislation Precedent Custom ------------------ Sources of Law: The common sources of law are codified laws, judicial precedents, customs, juristic writings, expert opinions, morality, and equity. With the growing popularity of the idea of constitutionalism, legislations and precedents occupy the center position amongst all the various sources of law. Let us analyze the sources of law in the article. Meaning The meaning of the term “sources of law” differs from writer to writer. The positivists use the term to denote the sovereign or the State who makes and enforces the laws. The historical school uses the term to refer to the origins of law. Others use it to indicate the causes or subject matter of law. Prof. Fuller, in his “Anatomy of the Law”, states that a judge interprets and applies certain rules to decide upon a case. Such rules are obtained from various places which are known as “sources”. He further goes on to give examples of the common sources of law such as codified laws, judicial precedents, customs, juristic writings, expert opinions, morality, and equity. Holland has defined the term to mean the sources of the knowledge regarding law. Classification There exists no definite classification of the sources of law. Different thinkers and jurists have given their own classifications according to their own understanding of the meaning of the term. Salmond’s Classification According to Salmond, there are two main sources of law- formal and material. Formal sources are those from which law derives its validity and force, that is, the will of the State which is expressed through statutes and judicial decisions. He sub-divided the material sources into legal sources and historical sources. Legal sources comprise of legislations, precedent, custom, agreement and professional opinion. They are authoritative in nature and origin and are followed by the courts as a matter of right. On the other hand, historical sources are those wh