WHAT IS ADMINISTRATION OF JUSTICE? EXPLAIN ITS KINDS. DISTINGUISH BETWEEN CIVIL AND CRIMINAL JUSTICE.
INTRODUCTION:-Administration of Justice:- According to Salmond : -”The administration of justice implies the maintenance of right within a political community by civilized substitute for the primitive practice of private vengeance and violent self-help.” This has been criticized on the ground that it is not the force of the state alone that secures the obedience of law. There are a number of other factors such as the social sanctions, habit and convenience which help in the obedience of law. In civilized societies, obedience to law becomes a matter of habit and in very rare cases the force of the state is used to secure it
According to Austin: ‘Law is the aggregate of rule set by men as politically superior, or sovereign, to men as politically subject.” It means law is command of sovereign. In his definition Command, duty and sanction are the three elements of law.
The fundamental difference between the definitions of the two jurists is that whereas in the definition of Austin, the central point of law is sovereign, in the definition of Salmond, the central point is Court. In fact, both the definitions are not perfect and present two aspects of law.
Salmond : Points out that men do-not have one reason in them and each is moved by his own interest and passions. The only alternative is one power over men. Men is by nature a fighting animal and force is the ultima ratio of all mankind. As Hobbes puts it “ without a common power to keep them all in awe, it is not possible for individuals o live in society. Without it injustice is unchecked and triumphant and the life of the people is solitary, poor, nasty, brutish and short.” Salmond says however orderly a society may be, the element of force is always present and operative. It may become latent but still exists.
KINDS OF ADMINISTRATION OF JUSTICE
The administrative of justice may be divided into two parts:-
1. Administration of Civil Justice: The wrongs which are the subject-matter of civil proceedings are called civil wrongs. The rights enforced by civil proceedings are of two kinds (1) Primary and (2) Sanctioning or remedial rights. Primary right are those rights which exists as such and do not have their source in some wrong. Sanctioning or remedial rights are those which come in to existence after the violation of the primary rights. The object of the civil administration of justice is to ascertain the rights of the parties and the party who suffers from the breach of such rights is to be helped by way of paying damages or getting injunction, restitution and specific performance of contract etc.
2. Administration of Criminal Justice:- The object of the criminal justice is to determine the crime of a person who is charged with the doing of an offence. The criminal court after proving that the offender is guilty of the offence charged awards him the punishment of fine, imprisonment as prescribed by criminal law. A convicted person is awarded physical pain. Thus the main purpose of the criminal justice is to punish the wrongdoer.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL ADMINISTRATION OF JUSTICE
Civil Administration of Justice
In the civil case the suit is Filed in the civil court. Criminal Administration of Justice
In the criminal cases the proceedings Is filed in the criminal court.
The main remedy in civil Cases is damages. The main remedy in criminal cases is to Punish the offender.
In the civil cases, the court Follows the procedure Prescribed in Civil Procedure Code. In the criminal cases, the court follows the procedure laid down in criminal Procedure Code.
In civil cases the action is taken By the injured party and the Suit is established by himself By giving evidence. In criminal cases the proceeding is taken by the state and the injured party is called out as a witness by the state.
2 What is Law? Discuss. Definition given by various jurists?
INTRODUCTION: It is easier to explain than to define it. It means that things are easy to explain than to define it. Definition is very necessary for the study of the subject, because the beginning and in one sense it ends is also its definition. To give a definition of Law is comparatively a hard task due to many reasons :
1. In Hindu :- Dharma
2. In France :- Droit
3. In Rome :- Jur.
4. In Muslim :- Hukma
All these above words conveys different meaning. And we can say that a definition which contain all the above meaning and all elements would be a good definition of law. Endlly definition given by every person is always different. Because definition given by a lawyer a philosopher, a student or a lecturer is always different. A definition which doesn’t cover all these elements would be an in-perfect definition.
DEFINITION OF LAW:- The word, “Law” has been taken from the ‘latin word’ which means “The body of Rules” various scholars has attempted to define this term according to their own prospective. Some of them are as under:-
According to Roman Scholars:- The law is concerned with the parameters which is right or wrong, fair and unfair.
ULPIAN:- The famous Roman scholars and a Juries, he defined the term ,” Law as standard of what is just and unjust.”
According to Salmond:- The law is the body of principals recognised and applied by the state in the administration of justice.
According to Positivist Definition :- They are known as a modern thinkers and they propounded a new school in the Law namely, “ Analytical School.” This school is also known as a scientific school. Benthem, Austin and Kelson define the term of Law in the following manners:-
1. AUSTIN:- Austin is the father of English Jurisprudence and according to him, “Law is the command of sovereign” There are three elements of law according to Austin :
a) Command )
b) Duty ) = LAW
c) Sanction )
According to him every law have a command and due to this command we have the duty to obey this command and if we don’t obey this duty then there is a sanction.
2. As per Benthem:- The law is the violaion of some declarations by the political head with utiity ensuring maximum happiness of he maximum people in the society. Benthm concept of law revolves around individual utilitarianism and its concern with the theory of pain and pleasure, which means that the purpose of Law to reduce the pain and harms and pleasure in the society.
3. According to Kelson:- The law is depsycholigically command. He is concern with those commands which purely rest upon the formal expression of law.
3. Sociological Definition: The sociological approach is not a single approach but it includes a number of thoughts, but all these thought related to society, that is why heading is given them to sociological. And we shall discuss some of true definitions :-
DUGUID :- According to him the law is a set of sosme formal norms aiming an creation of soliditary in society.
IHERING :- According to Ihering the Law is a form of guarantees of the conditions of life in society which are assured by the states power of constraint.
EHRLICH :- Ehrlich lays down, “that the law consists of norms coverings social life. But only the living Law is the actual law.”
ROSCUEPOUND :- According to him Law is an instrument for balancing, conflict or completing interest of people in the society.
REQUIREMENTS FOR LAW
The followings are some requirements for the definitions of law :-
i) Before the law there is a State.
ii) Before the State there must be a society.
iii) State & society develop a legal order to be followed.
iv) And finally law always has a purpose.
In end we can say that law is the important and necessary part of the state and developing the human beings. Law gives rights and duties to human beings. And law is the essential part of a State. Law is an instrument of social control as well as social change.
3 Define ‘Right’ and discuss the essential elements of legal right. OR
What is a ‘Legal Right’? Discuss the characteristics of a legal right.
INTRODUCTION: Right generally means an interest or facility or a privilege or immunity or a freedom. In this way right for the purpose of jurisprudence is called legal right. Austin in his theory has separated the subject matter of jurisprudence from morality or materiality. He gave the concept of positive law. So here also right means positive law right only, which is term of legal right. Legal right is recognised by law. It is different from moral right. Moral right if violated is called moral wrong. The violatin of natural right is called natural wrong. But these wrongs are not remedial under law while if a legal right is violated then it will be legal wrong which is remedial under law. The different jurists have defined legal right in different ways:- According to Austin : “ Right is a faculty which resides in a determinate party or parties by virtue of a given law and which avails against a party or parties other than the party or parties in whom it resides.” According to Salmond :- “ Right is an interest recognised and protected by the rule of right.” Here rule of right means rule of law or law of country. When an interest of a person is protected by the rule of law then it is called right. Salmond definition involves two points, firstly that right is an interest and secondly it is protected by rule of right. It means that it relates to his (person) interest i.e., life liberty, heath and reputation etc. Grey has criticised the interest theory propounded by Salmond, Ihering and Heck and he has supported the view that right is not an interest but that means by which the interest is secured. According to Holland, “ right is as a capacity residing in one man of controlling, with the assent and assistance of the state the action of others.”
According to Paton : “ That legal right is that it should be enforceable by the legal process of the state.” He however says that there are three exceptions to this rule :-
1. It is not necessary that the state should always necessarily enforce all the legal rights.
2. There are certain rights which recognised by law but not enforced by it for example : In a time barred debt, the right of the creditor to recover the debt is an “ imperfect right”
3. There are certain laws which do not confer right of enforcement to the courts, for example : International Court of Justice has no power to compel enforcement of its decrees under International Law.
THEORIS OF RIGHT :- There are two theories of right :
1. WILL THEORY : This theory is based upon the will of human beings. It says that a right reflects the inner will of a human being. Austin, Holland, Halmes and Dov recognised this theory of right. According to them a person wants o remain in the world freely and according to his own choice because a man is born free.
2. Interest Theory:- This theory says that interest is the base of the right. It is only interest which is recognised by law. This theory reflects the external nature of the human beings. Supporter of this theory say that there are many interests in the world. These interest which are protected and recognised by law are called right.
ELEMENTS OF LEGAL RIGHT:- Following are the elements of Rights :-
1. Subject: here means a person who has right. So there must be a person for rights
2. Act of Forbearance :- Right means some standard of action permitted by law. In a right either an act is done or an act is forbidden. This is also called as content of right.
3. Object:- There must be a object upon which the right is exercised. Mainly there are three essential elements of right e.g. Lives in a house. Here : (i) A has the right to live in the house. (ii) A is subject, house is object and (iii) His living in the house is act content. But some writers give some more elements of right.
4. Correlative duty: For right there must be a correlative duty. In the above example ‘A’ has the right to live in the house but other persons have correlative duty not to disturb him. Almost all jurists agree on the point because one cannot exists without the other. Here Austin is not agree to this He says that the duty may be divided into two kinds i.e. (1) Absolute and (ii) Relative.
5. Title: Salmond gives one more element of rights in the form of title. He says that a right has got also a title. Title may be in the form of the owner or co-owner or mortgager or leaser or buyer etc.
ILLUSTRATION: If, ‘A’ buys a piece of land from ’B’. A is the subject or owner of the right so required. The person bound by the co-relative duty is persons in general because a right of this kind avails against the world at large. The right consists in non-interference with the purchaser’s exclusive use of the land.
KINDS OF RIGHTS :- The following are the kinds of rights :-
1. Primary right and secondary right : Primary right is an independent right while secondary right means dependent right. They are also called as principal right and helping right or remedial right. ILLUSTRATION:- ‘A’ has right of reputation which is his primary and independent right. If any person defames A then A has the right of damages against the defamer. This right of damages is called secondary right or remedial right.
2. Positive and Negative Right:- Positive right is linked with negative and negative right is linked with duty. Positive right permits to do an act while negative right prohibit doing an act.
ILLUSTRATION:- ‘ A ‘ has the right of reputation. This is his positive right and any person should not defame him. The defaming his reputation called negative right.
3. Right Rem and Personam:- Right in Rem means right against the whole world while right in persosnam means right against a definite person.
ILLUSTRATION: ‘A’ has not to be harmed by any person. This is right in rem. On the other hand, ‘A’ has entered into a contract with ‘B’ and ‘B’ has broken +ve contract. ‘ A “ can enforce this right against ‘B’. This is known as right in personam.
1. LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):- The division of right has its origin in England. Legal ight is recognised by Law. While equitable right has been recognised by natural justice. In England there were two types of courts: (i) Legal courts (ii) Chancery courts
Chancery Courts recognised the conquerable rights on the basis of justice, equity and good conscience.
4. Vested & Contingents Right:- These rights is of permanent nature that depends upon the happening of an uncertain event. Thus contingents right becomes full right only when such uncertain events happen according to the condition.
5. Proprietary and Personal Right:- Proprietary rights which are concerned with property. A person possessing any property has the proprietary right over it, and personal right means the right related with a person or a body. Every person has a status. He should not be injured or defamed. If any person injures or defames another person then the wrong doer infringes the personal right of a person.
6. Perfect or Imperfect Right:- These rights which are enforceable by law are perfect and which law does not enforceable are imperfect rights.
7. Right of Re-propia and Right in re-alena:- Right in re-propia means the right in one’s own thing whereas right in re-aliena means the right in the things of others.
4 Law is the command of sovereign comment. Critically examine the main features of ‘Analytical School’? OR
Discuss the essential characteristics of the ‘Analytical School’?
INTRODUCTION : The main features/essential characteristics of Analytical School of Jurisprudence are as under:- The jurists of analytical school consider that the most important aspect of law is its relation to the State Law is treated as an imperative or command emanating from the state. For this very reason this school is known as the Imperative school.
The exponents of this school are concerned neither with the past nor with the future of law but with law as it exists, i.e. ‘ as it is (positus).For this reason this school is termed the positive school. Its founder is John Austin who was the professor of jurisprudence in the University of London.
He is also considered as the father of English jurisprudence. He studied the Roman Law in Germany. There he was that Roman Law is very systematic and scientific whereas English Law is not systematic and scientific. So he tried to make English law in well manner. For this purpose he wrote a book ‘Province of English Jurisprudence’. In this book he difined English law and made it in a systematic way.
Austin said that only positive law is the subject matter of jurisprudence. He separated both the morals and the religion from the definition of the law. Prior to Austin the law was based upon customs and morals but Austin reduced all things from the definition of law. He divided law into two parts :
(i) Law propriety so called (II) Law impropriety so called.
It further divided into two parts :-
(1) Law of God (Divine Law) (II) Law of Men ( Human Law)
Law of God is also called divine law. It is a law set by God for human beings on earth. Men also make law of men is made by men, so it is called human Law. This law makes a relationship between persons and the Law. This law is imposed upon persons and is made by persons. Human law is further divided into two parts :-
(I) Positive Law (II) Positive Moral Law
Positive Law is main subject of jurisprudence. This classification can be seen as under :-
(A) Law propriety so called (b) Law impropriety so called
A.1) Law of God A.2) Law of Men
A.2.i) Positive Law A.2.ii) Positive moral Law
Law of analogy law by Metaphor
Law impropriety so called:- There are certain laws, which are called impropriety laws e.g. Divine Law, Moral Law and religious Law. But his law is not the subject of jurisprudence. This law is concerned only with the administrations of jurisprudence. The law is the subject matter of jurisprudence.
Analytical school of jurisprudence deals with the following matter:-
(I) An Analysis of the conception of civil law.
(II) The study of various relations between civil law and other forms of law.
(III) An inquiry into the scientific arrangement of law.
(IV) An account of legal sources from which the law proceeds.
(V) The study of the theory of liability.
(VI) The study of the conception of legal rights and duties.
(VII) To investigate such legal concepts as property, contracts, persons, acts and intention etc.
DEFINITION OF THE LAW
Austin has defined the law is hiss ‘Command Theory’. He says that, “Law is the command of sovereign.” Sovereign here means a politically superior body or a determinate person or determinate body of persons like king of council. The command of these persons shall be the law in the country. This law must be obeyed by certain persons. If it is not obeyed hen the order of these persons shall not be law. It means there must be politically inferior persons. If the command is disobeyed then the political superior should have the power to punish, those persons who have disobeyed the law.
CHARACTERISTICS OF COMMAND THEORY
From the above facts we find that the following characteristics of Analytical School :-
1. Sovereign (II) Command (III) Duty (IV) Sanction Power.
SOVEREIGN: Means the political superior person or a determinate person or body of person or intelligent persons. This may be compared with the kind or the head of state in monarchy system and parliament in democracy system.
COMMAND:- There must be some order of the Sovereign. This order may be oral or written. The Sovereign which is followed by force, is called command.
DUTY:- This command must be followed by some persons, it means the political inferior persons who are under the control of Sovereign, are under a Duty to follow the order of the Sovereign.
SANCTION:- There must be sanction or the power of force behind the command of Sovereign and it there is no force or sanction then such command shall not be law. The sovereign must have power to punish those who do not obey this command. In this way the above mentioned things are essential then it will be the law. But Austin excluded some commands from the concept of the law. These are :-
(I) Explanatory Law :- If there is a command for the explanation of already existed law command shall not be the law.
(II) The Repeal Law : I there is a command for the repealing of already existed law then the second command shall not be law.
AUSTIN LAW (AUSIN’S METHOD) Austin adopted analytical method which excluded all types of morals and religion from Law. His school is also called analytical school or imperative school. Imperative means force behind law.
CRITICISM OF ANALYICAL SCHOOL
Various writers have criticised the command theory of Austin on the following ground :
1. Customs ignored:- Analytical school is based upon the law. According to Austin the law does not include customs but we see that customs are a very important part of the society. There were customs by which the society and later on state came into existence. In state also customs played an important role in the administration of justice. Even in the modern times the customs play an important role in the formation of law. So we cannot ignore customs from law.
2. Precedents ignored:- Precedent means the decisions of the court, which are also called as judge made laws. Judge made laws because these laws were not the command of the Sovereign. These laws were not enforceable at that time, so he excluded these laws from his concept of the law.
3. Conventions Ignored:-There are certain conventions or methods, which are observed or followed by the coming generation. These conventions or methods later on take the form of law. The become law afterwards by their regular observance. In England the base of English Law is conventions, which is very popular in the World. So we cannot ignore conventions. But Austin did not include conventions in his concept of law.
4. International Law Ignored:- Austin did not include international law in his law. According to his law there is no Sovereign for enforcing the international law. But in modern days we cannot exclude international law from the field of law because it plays an important role in maintaining peace and society at international level. In other words it is also a form of municipal law of civil law.
5. Command Theory is not suitable:- It is not easy to understand the ‘Commands Theory’ for common persons. It is not necessary that all should be enforceable or all common person should be considered as law. Only those commands which are related with law and order, should be law. It is difficult to separate those commands from others by the common people or persons. So this theory is not suitable in modern times. It is also an artificial theory haveing no sense in the modern world.
6. Only Power Is Not Necessary:- According to the ‘Command Theory’, law can be imposed only with the help of power, But we have the result of the tyrants or forced rules which were thrown away by the people of French Revolution, of Panamaeto. Law can be enforced even without power, it they are suitable to the society.
7. Moral Ignored:- The Command Theory has also excluded morals from the field of law. But we have observed that morals have also an important role in the formation of law. We cannot ignore morals from law because laws are meant for the society and such laws must be according to the feelings of society. The feelings of society are based upon morals. So we can’t ignore morals from the field of law.
CONCLUSON :-In this way he theory of command has been criticised and which is not considered as suitable in the modern time. But we also can’t ignore the contribution of Austin for giving he meaning of law in a systematic way. He give the concept of law in scientific manner. This views became the base for the coming writers, jurists and philosophers. So we can say that Austin contributed a lot in the field of jurisprudence.
5 Define and distinguish law and morals. Up to what extent morals help in the development of law.
Introduction:- Play an important role in the development of law. In the ancient society there was no difference between law and morals. The Vedas and suteras which are the main ancient sources of law are based upon morals. In the western society also the position was the same. The legal system of Greek was also based upon the doctrine of natural rights, which was in fact founded upon morals. So the Roman law also recognised the doctrine of natural law, which was founded upon morals. In the middle period also morals were the basis of law. In the 17th and 18th centuries natural law theories become very popular which were also based upon morals. However in modern times it was only Austin who discarded morals from law. He said that law is a command of sovereign. But after him there came the Historical School that recognised morals as the part of law.
DIFFERENCE BETWEEN LAW AND MORALS
When the Austin did not give any place to morals in law then there came a question of the difference between law and morals. Later on the courts tried to make difference between law and morals. In the modern times there is clear difference between law and morals. In every developed and civilized society the following are the differences between morals and laws:-
1.The morals are concerned with individual and are the laid down rules for the moulding of his character.
2.Morals are mainly concerned with the internal conduct of the nature of a person.
3.The morals are an end in themselves.
4. The observance of morals is a matter of individuals conscience.
5. Morals are considered to be universal in nature and value. 1. The laws are mainly concerned with the society as a whole and lay down the rules for relationship of individual with each other and with the state.
2. Law is concerned with the external conduct of the individuals.
3. Laws are meant by which the evils ends. The justice is achieved.
4 The observance of law is concerned with duty towards the state.
5 Law is concerned only with a particular state and society which differ from place to place & from time to time.
RELATIONSHIP BETWEEN LAW & MORALS
In the ancient society there was no difference between laws and morals, but in modern times various theories of law separate morals from laws so many differences as pointed out above came into picture. In spite of these differences there is a clear relationship between law and morals. For this purpose it can be noticed from the following three points :-
1. Morals as the basis of law:- In the ancient society morals were the basis of all laws. All the rules originate from the common sources i.e. morals. The reason behind them was in the form of supernatural fear. The state picked up those rules which were necessary for the society of the state.
The state put its own sanctions behind their rules and enforced them and these rules were called laws. The rules for which the state could not ensure their observance wee known as morals. Thus laws and morals have common origin. We cannot totally separate law from morals. Queen v/s Dudley: It was held that moral are the basis of law on the ground of morality, it was not necessary to kill the boy for saving their lives. One cannot take the law into one’s own hands. The rule is that none has the power/right to take another’s life to save his own.
2. Morals as the list of law:- It has been argued that the law must conform to morals. It means the law must be based upon morals and it should not be against morals. The Roman law was based upon natural law and Christian morals and principles say that any law that is against morals is invalid. The natural law theories were enforcing which were also according to morals.
In the modern times the laws which are not in conformity with morals are not good laws. However in practice to a great extent law conforms to morals. Laws cannot depart from morals due to many reasons. The conformity of law with morals is a very important factor even in the modern times.
3. Morals as the end of Law:- Sometimes morals are considered as the end f law. Justice in its popular sense is based upon morals. The word used for law conveys an idea of justice and morals in the same area of law. Sociological school says that law always has a purpose. Law is a means to get the end. This aim of law is to secure social test of law. This can be done properly in the contest of socially recognize values which are closely related to morals. Thus ultimately morals become the end of law. In India the legal system is engaged from the personal laws and local customs. In addition to this there are certain other factors like public opinion, political, ethical, social and economical ideas which are directly or indirectly under the influence law. CONCUSION:- So morals also have influence to a great extent in the development of law. Morals also check the arbitrary powers of the legislature. All human conduct and social relations cannot be regulated and governed only by law. A considerable number of them are regulated by morals. Thus we can say that the morals are the very important factor in the development of law. Morals are basis of law.
6 Professor Hart claims of make a ‘fresh start’ in legal theory. Discuss.
INTRODUCTION:- Hart is one of the great jurists of that time. He belongs to analytical school. HLA Hart was the Principal and Professor in “ Brasenose College Oxford” His theory about the law named as concept of Law. He talks about the realty. His theory mainly based on primary and secondary rules and also based on the relationship between law and society. His theory described about two words i.e. Pre-legal world and Legal world.
DEFINITION AND MEANING: Sir HLA Hart define Law,” that law is the system of rules, a union of primary and secondary rules.” He means to say that law is the system of rules and these rules are primary which are pre-legal rules and secondary which are legal rules and the main based of his theory on the relationship between Law and Society.
Body : Sir HLA Hart theory talks about the two words. These words are:-
Concept of Law
Pre-legal world Legal world
No legislature Rule of recognitaion
No executive Rule of Change
No court Rule of Adjustice
1. Pre-Legal World :- This pre legal world belongs to old age. According to Sir, HLA Hart pre legal world there was primitive society. And in this society there was no legislature which can make the rules. There was no executive also which can change the rules besides this there was no court also to decide the disputes. In the primitive society there were three defects which are as under :-
2 Un-certainty :- Since there was no Parliament in the primitive society which causes the un-certainty in the law.
3 Static character:- In the primitive society there were customs and these customs were not changed. It means there have static character.
4 Inefficiency :- In the primitive society there were no power of Jurisdiction. It means that there were no courts followed by the people.
2. Legal World :- This legal world belongs to modern age. According to Sir HLA Hart in the legal world there are modern society. Because of modern society there are rules of recognition which means that there is a Parliament/State Executive. The function of the Executive to change or to amend the rules. In modern age there are courts which decides the disputes. Judges applies the earlier laws in deciding the disputes. These rules/laws are the secondary rules. Thus we can say that Law is the union of Primary and Secondary rules. In other words it can be said that the Law is the journey of rules.
RELEVANCY OF HLA HART’S THEORY
Sir HLA Hart’s theory “ concept of Law “ is the most important theory of analytical school. Because this theory tells us about the old age and for the modern age. In the old age there were primitive society which did not have any legislature, executive and court. Therefore only custom and usages which were not allowed to change them by any person.
The theory of ‘concept of law’ tells us about the legal world. In the legal world there is a legislature which makes the rules and these rules are changed or amended by the executive when it necessary. There are courts which apply the rules on party. So we can say that in modern age the law is certain not static in character. Sir HLA Hart also gives the place of Morality in his theory because the moral have an important role in every legal world and these morals are not changed by passing any Act. We can say that Sir HLA Hart theory, “ Concept of Law” has the most important place in the theory of Analytical School.
CONCLUSIION:- Sir, HLA Hart theory Concept of Law have no conclusion because this theory talks about both the pre-legal world and the legal world which updates and tells us that how the law comes. So we can opined that such best and usable theory needs no conclusion as it has its self conclusion.
7 Define Natural Law theory. Also explain its relevancies in the Modern times.
INTRODUCTION: The Natural Law school is not independent school. It has deep concern with historical, analytical school. The main contents of this theory is that it has been interpreted differently at the different times depending on the needs of the developing legal thought but the greatest attribute of the Natural la w theory is its adaptability to meet new challenges of the transient society.
According to the pro pounder of this theory says that, Law is a product of the straight thinking of human mind. According to Socrates, he duely assert it that the positivist authority should be obeyed but not blindly and it ought to be subject to criticism if deserve so. Plato: He was in the view that each individual be given best suitable role by reason of his capacity and abilities. Thomas Acquinas (Roman Thinker):- He means that Natural Law is a part of Divine Law. This part is applied by human beings to govern their affairs and relations. Thomas Hobbes (Roman Thinker) :- According to him that there should be an absolute authority which should govern and control the affairs of human beings in the reciprocal transmission of concerned with every span of life. Rousseau (Roman Thiner) : He held that there two types of will:1. The will of individual and 2. General will. The authority through his rule must respect the both and in the administration of rule making process. These will should be reflected.
Definition:- From the jurisprudence point of view Natural law is not a body of actual enacted or interpreted law enforced by courts. It is in fact a way of looking at things and a humanistic approach of Judges and Jurists. It embodies within it a host of ideals such as morality, justice, reason, good conduct, freedom, equality, liberty, ethics and so on. The phrase Natural Law has a flexible meaning. The chief characteristic feature of natural law may be briefly stated as follows :-
i) It is basically a priori method which is different from empirical method. It used to stress upon a cause and effect relationship between the facts on the verge of logic.
ii) It symbolizes physical law of nature based on moral ideals which has universal applicability at all places and times.
iii) It has often been used either to defend a change or to maintain status quo according to needs of the time.
iv) The concept of Rule of law in England and India and due process in USA are essentially based on Natural Law philosophy.
MODEN NATURAL LAW THEORIS:- The following are the three main thinker who contribute to the Modern Natural Law theories:-
1. Stammler:- He was much more influence by Positive Law. He says that” all positive law is an attempt at just law” with regard to will and purpose of the law maker should have the proper understanding and knowledge of actual social world or social reality. Various a time in his concept he inter changeable used the word will with the purpose and he conclude that it is the will of the people which enable them to secure their purpose under social reorganisation.
2. KOHLER:- His thoughts were influenced by Hegal. According to him Law is standard of conduct which is consequence of in the impulse of human being that urges him towards a reasonable form of life. It also derives its validity from the moral and ethical standard in society. So that he laid down stress upon moral and cultural development of society.
3. Finnis: Finnis also is a very famous jurists of the present century. He has given the definition and place to natural law. According to finnis Natural Law is the set of principles of practical reasonableness in ordinary human life and human community. He sets up the proposition that there are certain basic goods for human being. Fennis lists them as under :-
i) Life:- The term life signifies every aspect of vitality in good shape for self determination.
ii) Knowledge: Knowledge is a process of knowing of unknown with the help of sense.
iii) Sociability of Friendship:- Doing something best for the sake of one’s friend’s purposes, one’s well being.
iv) Role:- It is the expression of a status of human being in practical form such role is protected and recognised by law.
v) Religion:- Question of the origins of cosmic order and of human freedom and reason expressed thus this view is a good that even an ethicist can value.
vi) Practical reasonableness :- This is the logic expression of the ideas and decision in practical circumstances. This the measurement of just or unjust in a real situation.
Despite the merits of Natural Law philosophy it has been criticized for its weakness on the following grounds. In other words the demerits of the Natural Law may be read as follows :-
i) Moral proposition i.e. ought to be may not always necessarily conform to the needs of the society.
ii) The concept of morality is a varying content changing from place to place, therefore it would be futile to think of universal applicability of law.
iii) The rules of morality embodied in natural law are not amendable to changes but legal rules do need a change with changing of the society.
iv) Legal disputes may be settled by law courts but disputes relating to moral and law of nature cannot be subjected to judicial scrutiny.
CONCLUSION:-The brief survey of the theories of Natural law reveals that its concept has been changing from time to time.
8 Explain the importance of Legislation as source of Law. OR
Distinguish between supreme and subordinate legislation?
INTRODUCTION:- Legislation means the process of law making. This law making power is vested in the legislation body which is sovereign body. It is called Parliament at the centre level and legislative assembly at the state level. Legislation is the most important and modern source of Law. This source has played an important role in the development of modern law and also different from custom and precedent etc.
LEGISLATION AS A SOURCE OF LAW:- The importance of legislation starts from the beginning of analytical school. This school ignored the importance of custom and gave the stress on command of sovereign which can make law only through legislation. This school also ignored the judge made law. About custom they say that the custom are not law but they are the source of law.
HISTORICAL SCHOOL:- It gives no importance to the legislation rather gives more importance to custom. According to them the function of law in only to specify and to correct the custom into law whereas in the modern times the importance of legislation has considerably been increased. With the coming of existence of the State the legislation has also been come into existence and become most important source of law. The scope of legislation has become very wide in the modern times.
KINDS OF LEGISLATION:- There are two kinds of the legislation :-
1. Supreme Legislation:- It has the powers of making law and is known as supreme legislation in each country. This power is vested in sovereign body in India i.e. Parliament at the centre and legislation in the State.
2. Subordinate Legislation: It is inferior from supreme legislation and is indirect legislation. It takes power to make law indirectly from Parliament, who gave him power to make law that is why is called subordinate legislation authority. It is further divided into the following parts :-
i) Autonomous Laws : A group of persons for making law is known as autonomous law and body i.e University or Boards.
ii) Judicial Rule :- means the rules made by judicial body under power owed from supreme authority i.e. High courts or supreme court etc.
iii) Local Law: means law made by local bodies under the control of SC i.e Zila Parishad, Municipal Corporation.
iv) Colonial Law: It is for those countries who are under the control of any other country can make laws with the permission that country.
Executive Law:- The law and the rule can be made by the executive body in the State under the power conferred by the Sovereign/ Parliament which is also known as delegated legislation. It includes the following origins :
I) Legislation:- The legislation is the super power to make law for a country.
II) Executive:-The executive body of the nation is to imposes law in the country.
III) Judiciary:- The Judiciary is to explain and implies the law so passed.
Parliament in India delegates its laws making power to the executive body and this power is called legislated or delegated legislation.
Many reform acts were handing power of making reforms, controlling of employment, development of education. In 20th century some important matters were given to delegated legislation to restrict the State to interfere in the daily life of the citizens.
CRITICISM:- Many of the writers has criticized this power because it gives much power to the executive body and administration body. The legislation has passed by facing the complicated problems in the constitution. There were some supporters also who were in the favor of this delegation of power.
REASONS FOR DELEGATED LEGISLATION
i) Lack of Time:The parliament has the shortage of time because of a Public welfare state. It has to pay much time towards national problems.
ii) Technicality of Matters:- With the progress of society the things have become more complicated and technical. Therefore the policy is made by the Parliament and the imposing matter is left on the masters of it.
iii) Flexibility: Law should be flexible and according to the need & conditions of the Public along-with the local matters which are different from area to area, So keeping in view of this reason the power is handed over to the executive.
There are some dangers in delegations of this power:-
i) The executive body may uses the more powers than the powers delegated by the Parliament. (ii) The Parliament has no time to examine the rules passed by the executive under delegated legislation.
In India there is a Parliament form of legislation and it is a welfare state and the Parliament cannot go aside from the constitution. Any cut against the constitution is void. The Main power of delegated legislation & CONCLUSION is :
Power of facing an act into operation. Power to apply the Act.
Power to increase or to decrease the scope of the Act. There is a parliamentary as well as judiciary control over delegated legislation. This power in India has also on constitutional basis.
9 Discuss the nature and scope of Jurisprudence. What is the importance of this subject in the study of law? OR “Jurisprudence is the eye of law”.
INTRODUCTION :- Jurisprudence in its nature is entirely a difference subject from other social science. The reason for this is that it is not codified but a growing and dynamic subject having no limitation on itself. Its inquiry system is of different status from other subjects. Every jurist does not base his study on the rules made but tries to understand their utility after due deliberation Thus the jurisprudence has no limited scope being a growing subject. There is difference of opinion about the nature of jurisprudence. It is called both art and science. But to call it science would be more proper and useful. The reasons for this is that just as in science we draw conclusions after Making a systematic study by investing new methods. In the same way jurisprudence is concerned with the fundamental principles of law systematic and scientific study their methods.
Scope of Jurisprudence:- According to justice P.B.Mukherjee: ,” Jurisprudence is both an intellectual and idealistic abstraction as well as behavioural study of man in society. It includes political, social, economic and cultural ideas. It covers that study of man in relation to state and society.”
Jurisprudence involves certain types of investigations into law, and investigation an abstract, general and theoretical nature which seeks to lay the bare essential principles of law and legal systems.
Salmond observed: “In jurisprudence we are not concerned to derive rules from authority and apply them to problem, we are concerned rather to reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of legal system.” It therefore follows that jurisprudence comprises philosophy of law and its object is not to discover new rules but to reflect on the rules already known.
CONTENTS OF JURISPRUDENCE:- The following are the contents of jurisprudence:-
i) Sources It is true that the basic features of a legal system are mainly to be found in its authoritative sources and the nature and working of the legal authority behind these sources. Under this head matters such as custom, legislation, precedent as a sources of law, pros and cons of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the administration of justice etc., are included for study.
ii) Legal Concepts :- Jurisprudence includes the analysis of legal concepts such as rights, title, property, ownership, possession, obligations, acts, negligence, legal personality and related issues. Although all these concepts are equally studied in the ordinary branches of law, but since each of them functions in several different branches of law, jurisprudence tries to build a more comprehensive picture of each concept as a whole.
iii) LEGAL THEORY :- Legal theory is concerned with law as it exists and functions in the society and the manner in which law is created and enforced as also the influence of social opinion and law on each other. It is therefore necessary that while analysing legal concepts, and effort should be made to present them in the background of social developments and changing economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE
It is often said that jurisprudence being an abstract and theoretical subject, is not of any practical use. But it is not correct to say so. Its utility is as under :-
1. Salmond pointed out that jurisprudence has its own intrinsic interest like and other subject of serious scholarship, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest. The legal researches on jurisprudence may well have their effect on contemporary socio-political thought and at the same time may themselves be influenced by these ideologies.
2. Jurisprudence also has its practical applicability. In other words it serves to render the complexities of law more manageable and rational and in this way theory can help to improve practice in the seats of law.
3. Jurisprudence has great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and formalism and trains them to concentrate or social realities and the functional aspects of law. It is not the form of law but the social function of law which has relevance in modern jurisprudence. For instance, a proper understanding of law of contract may perhaps require some knowledge of economic and economic theory or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and perhaps also of sociology.
4. Commenting on the significance and utility of jurisprudence : Holland observed, “ the ever renewed complexity of human relations call for an increasing complexity of legal details, till a merely empirical knowledge of law becomes impossible.” Thus jurisprudence throws light on the basic ideas and the fundamental principles of law in a given society. This why it has been characterised as “The eye of law.”
5. Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the laws passed by he legislature by providing the of interpretation.
6. The study of jurisprudence helps in rationalising the thinking the students and prepares them for an upright civil life. The knowledge of law and legal precepts also helps them to face every exigency of human affairs boldly and courageously.
7. Jurisprudence may also be helpful o legislators who play a crucial role in the process of law-making. The study of jurisprudence may familiarise them with technicalities of law and legal precepts thus making their job fairly easy as also interesting.
According to Dias the study of jurisprudence provides an opportunity for the lawyer to bring theory and life into focus for it concerns human thought in relation to social existence. The law should serve the purpose of social-engineering by preserving societal values and eliminating conflicting interests of individuals in the society.
JURISPRUDENCE IS THE EYE OF LAW:- On account of importance of jurisprudence in the field of law it is called, “The eye of Law”. The eyes are one of the most important parts of human body. Almost all human activities and the movements of body are possible only through them. Unless man can see anything properly, he cannot do any work. The reason of calling jurisprudence the ‘ the eye of law’ is that jurisprudence functions for law in the same manner as the eyes do in human body. For example- the interpretation of law is a very difficult task, It cannot be done without the help of jurisprudence. ‘PATON’ in this connection says that,” Jurisprudence is a particular method of study, not the law of one particular county but of the general notions of law itself.’ Whenever any complicated problem regarding law like:-
1 How and when the law developed. 2 What is its object. 3 Whether the law was made by people or it was due to the inspiration of some Divine force. 4 Whether the law is a command of a sovereign or it is a result of gradual development of civilization in society. The main function of jurisprudence is to study the origin of law, its development and its contribution towards society.
The matters to birth, marriages, death, succession etc., are equally controlled through laws. It is the well known saying that, “ignorance of law is no excuse,” hence it is essential to know the correct basic principles of law which are contained only in the jurisprudence. Law is also connected with civil life. A person who obeys laws is known as a civilized citizen. A person who does not obey law is punished. It is therefore necessary that all the people should have the sound knowledge of law which is possible only with the help of jurisprudence. Therefore, jurisprudence, having so much importance for the society, has rightly been called the eye of law.
10 Judges are the makers of law not discovers of law. Do you agree with this view?
INTRODUTION:- There are two contrary theories regarding the question as to whether Judges declare the existing law or make the law. There are two which are as under :-
1. Theory that judges declare the law or Declaratory Theory.
2. Theory that judges make the law or legislative theory. (Law making theory)
1. DECLARATORY THEORY :- The first theory is the declaratory theory as described by Hall and Blackstone and they supported by Dr. carten also.
According to the declaratory theory no new law is created by the Judge, Courts of Justice do not make law, their province is to ascertain and declare what the law is. Judges only discover the existing laws.
Hale enunciates declaratory theory of precedents and contends that whilst Parliament alone legislates in the strict sense the Judges only expound the law and their decisions are the best evidence of what law is. The result of his theory is that the effect of the decision is retrospective for it does not only declare what law is but what it always has been. Nevertheless as Maine has pointed out once the Judgement has been declared and reported we start with a new train of thought and frequently admit that the law has been modified.
According to Lord Esher, There is in fact no such hing as Judge-made law, for h judge do not make the law, though they frequently have to apply the existing law to the circumstances as to which it has not previously been authoritatively laid down that such law is applicable.”
Declaratory theory is based on the fiction that the English law is an existing something which is only declared by the Judges. This theory is known as the theory of judicial precedent.
LAW MAKING THEORY
The second theory is that the Judges do not declare law but make the law in the sense of manufacturing of creating entirely new law. Bentham and Austin, have opposed the traditional view as a childish fiction and have declared that Judges are in fact the makers and fulfill a function very similar to that of the legislature.
Lord Becon: The new point decided by the Judges is a direct contribution towards law-making. Professor Dicey supported this view and gives example of English common law which has been made by the judges which has been made by the judges through their judicial pronouncements.
Prof. Gray : supports this law making theory and says that judges alone are the makers of law. He discredits the declaratory theory.
Judges are without any query law-makers but their power of law making is not un-restricted. It is strictly limited for instance they cannot over rule a statute where the statute clearly lays down the law. The legislative powers are restricted to the facts of case before them.
According to Salmond : Who is strong support of this view says that he is evidently troubled in mind as to the true position of precedent. He further says that both in law and in equity declaratory theory altogether totally rejected.
Such cases which are not covered by existing laws the judicial decisions created new notions and formulae new principles which were never contemplated earlier. Supreme court over-ruled the Golak Nath decision in Keshwanand Bhari’s case and laid down a new basic structure theory and in Golak nath case the new principle of prospective over-ruling was evolved by Judges.
RECONCILAION OF THE TWO THEORIES
The above two views about making of law by judges are not exclusive of each other but they are rather complementary. It will be seen that neither the purely declaratory theory nor the purely legislative theory represents the whole truth. Judges develop the law but cannot be said to legislate. The common law is not made but has grown and the more it changes the more it remains the same thing.
The answer to the question whether the Judges make or discover law much depends upon the nature of the particular legal system. In common law system it may be stated that the Judges make law while in other countries where is law is codified the judges only supplement the law. It is true that custom and statutes do not render the judges some super fulvous knowledge.
11 Explain the phrase, “Law is social Engineering” as propounded by Roscoe Pound.
INTRODUCTION:- Roscoe Pound is considered to be the,” American Leader” in the field of Sociological jurisprudence. He comes from Harvard Law School and had a great academic favour. According to him,” the end of law should be to satisfy a maximum of wants with minimum of friction.” He defined law as containing the rules, principles, conceptions and standards of conduct and decision as also the precepts and doctrines of professional rules of art. He considers law as a means of a developed technique and treats jurisprudence as ‘social engineering’.
The main propositions of Roscoe Pound theory of Social Engineering are as under:-
i) POUND CONCENTRATES ON THE FUNCTIONAL ASPECT OF LAW:- Pound concentrates more on the functional aspect of law, that is why some writers name has approach as “ functional school” the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round as far as possible with the least friction and waste.
ii) THE TASK OF LAW IS “SOCIAL ENGINEERING”:- He says, “for the purpose of understanding of law of today. I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy, social wants, the claims and demands involved in the existence of civilized society.
iii) SOCIAL ENGNEERING MEANS A BALANCE BETWEEN HE COMPETING INTEREST IN SOCIETY :- He lays down a method which a jurist should follow for ‘social engineering’. He should study the actual social effects of legal institution and legal doctrines, study the means of making legal rules effective sociological study in preparation of law-making, study of judicial method, a sociological legal history and the importance of reasonable and just solutions of individual cases.” He himself enumerates the various interests which are to be protected by the law. He classifies them under three heads:
i. Private Interests (ii) Public Interests (iii) Social Interests.
PRIVATE INERESTS:- Such as interest of physical integrity, reputation, Freedom of volition and freedom of conscience. They Are safe-guarded by law of crimes, contracts.
PUBLIC INTERESTS:- Main public interests are preservation of the State, State as a guardian of social interests such as Administ-Ration of trusts, charitable endowments, protection of Natural environment, territorial waters, sea-shores, Regulation of public employment and so on.
SOCIAL INTERESTS:- Preservation of peace, general health, preserving of Social institutions such as religion, political and Economic institutions, general morals, promotes Human personality, cultural and economic life.
Pound tackled he problem of interests in term as of balancing of individual and social interests. It is through the instrumentality of law that these interest are sought to be balanced. Justice Cardozo remarked that,” Pound attempted to emphasize the need for judicial awareness of the social values and interests.” Roscoe Pound regarded law as a basic tool of social engineering. How in India the society and law are acting and reacting upon each other can be adjudged from the following enactments passed after India became Independent:-
a. The special Marriage Act 1954 2. The Hindu Marriage Act 1955 3. The Hindu succession Act 1956 4. The Hindu Minority and guardianship Act 1956 5. The Hindu Adoptions and Maintenance Act 1956 6. The Dowry Prohibition Act 1961 7. Child Marriage Restraint (Amendment Act) 1978 8. The Consumer Protection Act 1986 9. The S.C & S.T.(Prevention of Atrocities) Act 1989 10. Commission of Sati (Prevention) Act 1987 11. Bonded labour(Abolition) Act- 1976
INTERESTS AS THE MAIN SUBJECT-MATTER OF LAW:- Pounds theory is that interests are the main subject matter of law and the task of law is the satisfaction of human wants and desires. It is the duty of law to make a valuation interests in other words to make a selection of socially most valuable objectives and to secure them.
To concluding the theory, Pound says that the aim of ‘Social Engineering’ is to build an efficient structure of the society as far as possible which involves he balancing of competing interests.
CRITICISM AGAINST POUND’S THEORY :-
i. Engineering not a happy word : It suggests a mechanical application of the principles to social needs but really the word engineering is used by Pound metaphorically to indicate the problems which the law has to face.
ii. Classification of interests not useful: Freidmann doubts the value of classification of interests and the value of such classification.
iii. Ihering & Bentham concludes the theory of Pound’s that, “such classifications greatly helps to make legislature as well as the teacher and practitioner of law conscious of the principles and values involved in any particular issue. It is an important aid in the linking of principle and practice.”
Social Engineering stands on a practical and firm ground. He points out the responsibility of the lawyer, the judge and the jurists and gives a comprehensive picture of the scope and field of the subject.
12 What do you mean legal personality and its different theories? Whether the following are legal person :-
1. President of India 2. Council of Ministers 3. Company 4 Un-born child. 5. Animals.
INTRODUCTION:- Natural Persons are all human beings who are capable of rights and duties in law, i.e. who have a status. Legal persons are those to whom law is recognised as a person. It is either a thing or a mass of property or group of human beings to which law attributes personality the law confers a legal status and who thus in the eye of law possess rights and duties as a natural person. Person is of two types :- 1. Natural Person II. Legal Person
According to Gray, “A person is an entity to which rights and duties may attributed.”
According to Salmond, “ person is, any being to whom law regards a capable of rights and duties.”
According to Paton, “Legal personality is a medium through which some such units are created in whom rights can be vested.”
In the development of society, law developed and with the development of law the concept of legal personality come into existence. In the ancient times there was no concept of legal personality but as the society developed the person was recognised as the representative of the State and a separate personality was given to him. In the due course of time corporation and companies came into existence such companies and corporate were given the separate personality so in this way these bodies are now called as legal persons.
There are the following two types of persons :-
i) NATURAL PERSONS ( HUMAN PERSONS):- All human beings are natural persons but in ancient society the slaves were not recognised as natural persons. Similarly outlaid persons, unsound persons were not natural persons. In Hindu Law, Manu has mentioned some persons who were not recognised as natural persons i.e. Born child, deaf persons, sanyasi and those who are living dead.
1. Unborn person: Unborn person is not a natural person because he is not in existence, but a child in the womb is natural person because he bears the rights and duties under law. Person in the womb can represent the position after birth. In IPC the child in the womb is considered as a natural person as soon as any of his organ will come out from the womb.
2. If the pregnant lady gets the punishment of death sentence. She will be hanged only after delivery.
3. ANIMALS:- In ancient time the animals were legal persons but in modern time animals are not the legal persons but in law we find come cases in which some animals have some rights and duties. Today also the protection of animals some laws have been made which give rights to the animals. These laws prohibit people to kill them. In this theory the personality has also been confirmed.
4. Dead Person:- In law dead person has no existence as the dead person has no personality. But in certain cases they are considered as person in law. First if any person defames the dead person and such defamation lowers the reputation of the family members of the dead person, then a legal action be taken against the wrongdoer who defamed the dead person. Secondly if any person defames the dead body of deceased person then such person is liable for damages under law.
ii) LEGAL PERSONS:- Legal person are artificial or imaginary beings to whom law attributes personality by way of fiction, i.e. law gives them rights and duties like of natural persons, e.g. King of England has two personalities- first a human being second as head of state, being head of state he is known as a legal person. Similarly he President of India and the Governors of the states are legal persons.
CORPORATE PERSONALITY:- Main form of legal personality is the corporate personality. It is of two kinds :-
1. Corporate sole: means a single body representing any state or any other object. It is called series of the successive persons. The King of England or the President of India is the corporate sole. They represent only one man in successive period. The post of corporate sole remains always alive while the human beings who sit on the post may die.
2. Corporate Aggregate :- When law confers single personality to a group of person then it is called corporate aggregate e.g. companies are registered according to law of societies or according to law of land. These companies or corporations etc., are legal persons.
3. In the ancient time the Karta represented the whole Hindu family who was considered as legal person. It is same as in Roman Society. It is adopted in the shape of Indian companies Act 1956. The advantages of the corporate personality because they represent an association of persons as a single person which is helpful in business.
13 Lay down the essential features of the Historical school. Discuss the views of Society in this regard. OR Discuss the philosophy of law as given by Sovging under Historical School? OR Write critically note on the following Soveging (Volkgeist Theory).
INTRODUCTION:- Jurisprudence is a subject in which the definition nature and the sources of law are studied various writers under various schools have defined law. Austin under Analytical school says that law is the command of sovereign. He added only the law in the study of jurisprudence. But under historical school Soviging says that law is the general consciousness (Volkgeist) of the people. It means what the common people think or behave is the base of law. Law shows the general nature of the common people. This theory of Volkgeist is bassed on the historical method. Soveging is the father of it. According to Soveging, “ Law is the General consciousness of he people.”
Historical School is a branch of Law, which studies law from the past history. It says that law is based on the General Consciousness of people. The consciousness started from the very beginning of the society. There was no person like sovereign for the creation of law.
The law in the ancient times was based mainly upon simple rules, regulation, custom, usages conventions etc. These things were later on developed by the jurists and lawyers. These things were later on converted into set form of law.
CAUSES OF COMMING OF THE HISTORICAL SCHOOL
The Historical school is just opposite to the Analytical school in 18th and 19th century, the concept of individualism came into existence. Due to this concept the revolutions came like French revolution, Russian revolution etc. At that time Soveging montasque, Barke, Hngo were the writers who said that law is the general will of the people or law is based upon common people and the feelings of the common people.
Law develops like the language and manners of the society. So law has a natural character. Law has no universal application. It differs from society to society and state to state. In the same way the languages differ from society to society and locality to locality.
Montasoque has said, “Law is the creation of climate, local situations and accidents.” According to Hugo hag, “ Law develops like language and the manners of the society and it develops according to suitable circumstances of the Society. The necessary thing is the acceptance and observance by society.
According to Burke, “ Law is the product of the General process. In this sense it is dynamic organ which changes and develops according to the suitable circumstances of society.
SOVEGING :- Soveging is considered as the main expounder or supporter of the historical school. He has given the Volkgeist theory. According to this theory, law is based upon the general will or free will of common people. He says that law grows with the growth of nations increases with it and dies with the dissolution of the nations. In this way law is national character. Consciousness of people. In other words, according to this theory law is based will or free will of common people. He says that law grows with the growth of nation. A law which is suitable to one society may not be suitable to other society. In this way law has no universal application because it based upon the local conditions local situations, local circumstances, local customs, elements etc. Al these things effect law and make it suitable to the society.
The main features of the Soveging theory is :-
1. Law has a national character.
2. Law is based upon the national conditions, situations, circumstances, custom etc.
3. Law is pre historic: means law is found and is not made, the jurists and the lawyers make it into set form.
4. Law develops like language and manner of the society. In ancient society law was not in a natural stage or no in a set form. Later on with the development of the society the requirements and the necessities of the society increased. Due to this it was necessary to mould law in a set form.
IMPORTANCE OF CUSTOMS
According to Soveging customs are more important than legislation because customs come before legislation. In other words the customs are the base of legislation.
CRITICISM OF SOVEGING’s THEORY
Savigny’s theory has been criticised on the following grounds:-
1. Inconsistency in the Theory :- Saveging asserted that the origin of law is in the popular consciousness, and on the other hand, argued that some of the principles of Roman law were of universal application. Thus, it is a clear cut inconsistency in his ideas.
2. ‘Volksgeist’ not the Exclusive Sources of law :- There are many technical rules which never existed in nor has any connection with popular consciousness.
3. Customs not Always Based on Popular Consciousness:- Many customs are adopted due to imitation and not on the ground of their righteousness. Sometimes customs completely opposed to each other exist in different parts of the same country which cannot be said to be reflecting the spirit of the whole community.
4. Savigny Ignored Other Factors That Influence Law:- The law relating to trade unions is an outcome of a long and violent struggle between conflicting interests within a society.
5. Many Things Unexplained :- Legal developments in various countries show some uniformity to which he paid no heed. i.e.
6. What is national and what is universal.
7. Juristic Pessimism:- Soveging encouraged juristic pessimism. Legislation must accord with popular consciousness. Such a view will not find favour in modern times. No legal system would like to make compromise with abuses. People are accustomed to it.
From the facts mentioned above we have gone behind to see the history of the society to check that what was the position of law in the ancient time. How and in what form law was prevailing in the society? To find the solution of the questions the supporter of Historical school found that law is the general consciousness of the common people or it is the free will of common people on which law developed and converted into a set of form of law.
14 Define Precedents? Lay down the importance of the precedents as the source of law. In what sense they are binding? Do the judges make law?
INRODUCTION:- Precedents literally means previous judicial decision. The decisions of the higher courts are binding on the lower courts. The binding force of decision is called precedent. The precedents play an important role in the development of law. It is the second important source of law. First source is customs and the third source is legislation. Sometimes act may be insufficient for the case or there may be an vacuum or any thing missing in the act. Under these circumstances the court can apply their own mind. These independent decisions becomes precedents which are followed later on by the same & Lower courts. This method of decision is also called as Judge made law. The English and American law is mostly based upon the precedents. In India Art.141 of Indian Constitution says that the decision of the higher courts shall be binding upon the lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a decision of a court which is also called judicial decision. According to the Oxford University, “Precedents means the previous decision case given by a court according to rules.” Various writers have given the definition of precedents is conduct of court adopted by the lower court in similar facts and in similar circumstances in a case. Particularly the precedents means the Judge made law. When the court gives its own ideas for creating new rules. England, America and China also follow the previous decisions as the source of law but the continent countries like Germany, Japan does not accept the previous decisions as the source of law. The method of taking precedents as source of law is called inductive method, while the method of continental countries not following previous decisions of the court is called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very important source of Law. They play an important role in the development of law, so they have certain advantages as:
1. Precedents show true respect to the ancestors means by adopting the previous decision of the higher court to decide the present case, it is a kind of respect to elders.
2. Precedents are suitable to the present situation means after some times the circumstances of the society can change with the change of time so the precedents they are more suitable and fit for the present time and circumstances.
3. Precedents are based on customs means the law in the form of act which based upon customs. Court interprets the customs while interpreting any act.
4. Precedents are convenient and easy to follow because they are available in the form of written reports.
5. Precedents bring certainty in law, once decision is given in a case there would be no need to repeat all precedents in any other case if it resembles to the former case.
6. Precedents are the best guide for the Judges: They play an important role in the judiciary because the precedents are the guide lines for the courts.
DEMERITS OF THE PROCEDENTS:- lthough the demerits are very few but these are as under :-
i) The decisions are given by the human beings while performing the duties as judge, his decision may not be suitable to all persons who have different mind and thinking. This will be a bad effect on Judiciary.
ii) Sometimes the decisions of the higher courts contradictory to each other. It becomes harder to another judge to apply the same verdicts as a precedents of higher court
iii) Sometimes the higher courts give a wrong decision and over pass the important factors of the case due to one reason or the others.
PRECEDENTS ARE BINDING:- The precedents is an important source of law. It is available in the form of judicial decisions. Now the question arises that in what sense and when the precedents are binding o follow. For the answer of this query different views have been given by the various writers and jurists. No doubts the precedents is not binding like warrant issued by a court of law. It means precedent can be over ruled if they are not right or appropriable to the case to be decided but warrant has to be followed by all to whom it is applicable.
It is not necessary that in the case which is to be decided the circumstances and the facts must be the same as in resembling case. If the facts and the circumstances of the cases are materially similar then the precedents or previous judicial decision is applied in the later cases and are applied only in the form of ‘ratio decidendi’ of previous cases. There are two parts of it :-
i) Ratio-decidendi:- means reasons which leads the court to reach the decision. It is the main part of the case in judgement and the ratio decidendi of the decision is binding in the form of precedent.
ii) Obits decidendi:-It is also a part of the decision which is irrelevant to the facts and circumstances of the case. The judge takes into consideration the social conditions, morality, principal of natural justice that is why the Judges play an important role in the development of legal system.
DIFFERENCE BETWEEN CUSTOM & PRECEDENTS
Custom is primary source of law.
Precedents are the secondary source of law.
Custom is given by people in general. Precedents are given by courts.
Custom is conduct adopted by people of society. Precedents is itself complete certain, reasonable given by a competent court of the country.
Custom is based upon the reasoning of common people of the society.
Precedents are based upon the reasoning of a individual Judge or very few judges.
Customs have more value then precedents and cannot be ignored. It can be ignored if it gives un-justice.
DO JUDGES MAKE LAW:-
There are two theories about this purpose one theory says that Judgs do not make laws and other theory says that Judges in fact are the makers of Laws. This theory is also known as declaratory Theory. According to this the judges are not makers of the laws which they are already n existence. The judges while deciding the case only applies the existent and relevant customs for deciding the cases.
Judges are not the law makers:- The supporters of this theory (historical school) says that all the laws are based upon customs. The judges only to explain these laws and customs. According to Coke hate and Dr.Carter, that the law is created by the King or by the Parliament or by the Legislature bodies. Common Laws is based upon custom. The public through the decision of courts come to know those customs. It means that Judiciary is not the maker of law. A case: Rageshwar Parsad v/s state of West Bengal. It was held that, The court does not create Law.
ORIGINAL LAW MAKING THEORY
This theory is opposite to the first theory. It says that the Judges are the real makers of the law. They not only interpret or explain but also make the law. According to Salmond: who is the main supporters of this theory says, “ That the decisions of the courts are a great contribution to the legal system.” Dicay says that, “that legal system is the best part of the law of England which is judge made law.”
CONCLUSION:- The conclusion or the correct view is that we cannot ignored any of the above theories because both are correct and complements to each other and both should be taken. No doubt that a Judge can only to explain or to interprets the existing laws but at the same time he also creates the new ideas, thoughts and gives new touch ideas which play an important role in the development of law.
15 Discuss the main features of the ‘Pure Theory’ of Law. How it resembles with Austin’s command theory. Critically examine the view of Kelson given under pure theory of Law?
Introduction:- The Pure Theory of Law is given by Kelson. This theory is also known as “Vienna School” because Kelson is the productor of Vienna University. This theory resembles with Austin’s command theory because in Kelson’s theory there must be sanction behind law. Austin gave it the name of command theory and Kelson gave it the name of grandnorm theory. Kelson is affected by local conditions, natural condition and international condition. After studying all these conditions he gave this theory of Law, which is known as pure theory of law and grandnorm theory .
Concept of pure theory of Law:- At the time of Kelson there are Ist world was which destricted the property of human beings at international level. So he gave power to the international law and avoiding the destructions of the world. Secondly during that time many countries adopted written constitution. So Kelson also get influenced from these written constitutions and gave his own theory which is based on grandnorms.
Grand means great and norm means Law, So it means a great law the superior authority from which law comes out. He compared the grandnorm with written constitution. According to him written constitution is the highest authority in the country which is known as grandnorms. In England the Parliament is a grandnorm, in USA written constitution is grandnorms and in India too written Constitution is grandnorm. State is not above the grandnorm. Sovereignty also liven in grandnorm. Accoding to Kelson law is a motive nor science, it means science of norms. In laws only those rules are taken which are related with legal aspects. Any others like moral rules, religious rules, ethical rules do not come under the concepts of grandnorm. Here Kelson is equal to Austin. When he excludes morals relation or ethics from the field of law.
System of Normative Rules:- System of normative rules was Hierarchy. In hierarchy system there is one highest authority and all other are lower authorities. This highest authority was grandnorm which was in the form of written constitution and other authorities are below the constitution. The source of power in a state for all bodies is written constitution.
Internation Law:- Kelson says that norms have a force behind it. This force lies in the grandnorm. If this legal norm is not obeyed then one person will be punished for it. He also says that at this time international law is immature. It is in primitive stage. It is developing.
Nature of Grandnorm:- According to Kelson each country has the formation of grandnorm according to local conditions. The duty of jurists is to interpret the grandnorm in their own language. They are not concerned with the goodness or badness of the grandnorm. They are not concerned with the origin of the grandnorm. In this way the grandnorm is the main source of all the laws in the country.
Elements of Pure Theory:- Kelson gave his view under this theory about State, sovereignty, public and private law, public and private rights, international law private and juristic law.
Feature of Kelson’s theory:-
1. Grandnorm as a source of law:- Grandnorm is the source of all laws. Grandnorm is in the form of written constitution. Any such body, which contains rules, or any such legal system in a country.
2. No difference between law and state:- Kelson says that there is no difference between law and State between because they get power from the same grandnorm. Law comes from the grandnorm and the state also comes from the grandnorm.
3. Sovereign is not a separate body:- Austin says sovereign is a politically superior person which keeps controls over the politically inferior persons. But Kelson says that the power of sovereign lies in the people. So the Sovereign is not separate and superior from the people of the country.
4. No difference between public law and private law:- The public law is related with the state and the private law is related with the individuals as Kelson says that there is no difference between public law and private law. The law which creates a contract between individuals is called private law.
5. Supremacy of internationally laws:- The main prupose of Kelson was to decrease the tension at world level because there was Ist world war which destroyed millions of persons and property. He also said that the internaiton law is in primitive stage or immature stage. It means it is in developing stage. One day will come when international law will get equal to that of municipal law. So this is also enforceable.
Criticism of Kelson’s theory:- In-spit of having good concept of pure theory given by Kelson some of the criticism faced by him, which are as under:
a. Grandnorm is a vague concept:- The concept of grandnorm is not clear. It cannot be applied where there is no written constitution. The base of grandnorm in the form of positive norms or the rules based only on legal order is not clear. The rules, which are not linked with morals ethics. Customs and religion are not the norms. But we can not ignore the role of these norms in the development of law.
b. Interantion Law is a weak law:- Kelson advocated the supremacy of international law. But even upto now we see that is no force behind international law.
c. No difference between state and law:- this point is also criticised by various writers. Law as a separate thing from the State. State is body is law in, which law is a rule that regulates the state.
d. Difference between public law and private law:- Kelson says that there is no different between public law and private law. Which is also not right in the modern days.
e. Customs and Precedents ignored:- He also customs as a source of law while we see that customs are the source of all laws.
Conclusion:- Although Kelson has been criticised from various angles yet he had contributed a lot in the development of the society. Thus the concept of grandnorm gave power to the public at large as well as at national level. His main purpose was to stop destruction of any world war. This can resemble to Austin also Kelson is also limited with the law.
16 Discuss the Salient features of the Sociological School of Jurisprudence? OR Salient features of the Sociological School of Jurisprudence?
Introduction:- The sociological school is one of he important branches of law. It comes after the Analytical school and Historical school. Its seeds were found in the historical school. Duguit, Roscopound and Camta are the supporters of this school. This school is related with society. According to this school law is numerator of society. Law and society both are the two sides of the same coin, one cannot exist without the other. If there is law there should be society and if there is society there should be law. Law is very necessary for regulating the society. Many writers like Duguit, Roscopound and Inhering gave these view in the sociological school.
The theory of Duguit under sociological school is a social solidarity. Scocial solidarity means the greatness of society. Duguit said that there are mainly two types of needs of the society:-
1.Common Needs 2. Adverse Needs.
1. Common Needs :- Which are fulfilled by mutual assistance.
2. Adverse Needs.:- Which are fulfilled by the exchange of services. No one can live without the help of other. Even a state cannot exist without the help of other state. One cannot produce all things required for him. So he has to depend upon others. The dependency is called social solidarity. For this purpose the division of labour is necessary. Division of labour will fulfill all requirement for the society. This philosophy or views is called social solidarity.
ESSENTIAL ELEMENTS OF DUGUIT THEORY OF LAW
1.Mutual Inter dependence : In society all persons are depending upon each other. Individual cannot fulfill his ambitions alone.
2. No difference between state & society: State and society are a group of persons. Main purpose of the society is to save the people. This responsibility is also lies upon the state. So state does not have a special status or above status from people. State should make law for the welfare of the people.
3. Sovereign and will of people: Sovereign is a politically superior person. Duguit says that sovereign is not superior to people. The sovereign of a state lives in people or in the will of people.
DIFFERENCE BETWEEN PUBLIC & PRIVATE LAW
Duguit says that there is no difference between public law and private law because the aim of both the law is to develop the social solidarity. Pubic law and private law are meant for people. Public right and private right or people have only duties and not any right.
There is no difference between public right and private right. According to Duguit there is only one right that is to serve the people. It means person have only duties not rights.
CRITICISM OF DUGUIT’S THEORY
1.The theory of social solidarity is vague:- This theory is not clear for a common person. One cannot gain anything from this theory so this is vague theory.
2.Who will decide social solidarity :- Duguit has not given the authority that who will explain the solidarity because Duguit did not recognize sovereignty. We can imagine that Judge will explain the standard of social solidarity. But there are no guidelines for the Judgess
3.Public law and Private law are not same :- There must be an authority which passes the law. In Duguit theory there is no place for such authority.
4. Public right and Private right are also not same :- The right of society is public right and the right of common people is private right.
5. Custom ignored:- Custom is the base of any law but Duguit ignore these customs. In this way the theory of Duguit is not suitably in modern times.
No doubt Duguit was a sociologist because he gave a lot of development to society. The social solidarity itself contains the welfare of the people. Duguit said that law should be according to the social solidarity. Here he discards natural principal but the theory of the social solidarity itself is based upon natural law, which demands that the people should served properly according to their needs. In this way Duguit put out the natural law principal from the door and accepted through the window.
However the contribution of Duguit is accepted by many writers and some of them also adopted this theory.
17 Define Ownership. Discuss the various kinds of ownership. Distinguish between possession and ownership.
INTRODUCTION: Ownership is linked with possession. Possession is the first stage of ownership. It means for ownership possession is necessary. Possession and ownership both are two sides of the same coin and one cannot exist without the other.
Ownership gives the full right over the thing. Ownership is ultimate and final right for disposing the property. It means to transfer that property in any way. Ownership is a relation ship between the person and the thing. For ownership there must be a thing and the owner of thing. The concept of ownership was absent in the ancient society. There was also no concept of possession too. Slowly and slowly as the society developed the concept of possession also developed. The idea of ownership came into existence. So this way after the progress of the concept of ownership the person became the full owner of his property.
DEFIN ITION :- Before to define the ownership we have to discuss the various kinds of law :-
Roman Law :- As evident from history that the Roman Law was the first law in the world. It is considered the ancient law. All concepts of law begin from the period of Roman society. Under the Roman Law the concept of ownership is defined in the form of dominion that means to have the right control of a thing. The concept of ownership developed in the form of a right over the thing. Dominion is distinguished from possession. Possession means to have possession over a thing but dominos means to have a right over the thing.
HINDU LAW :- Hindu Law is also considered as the most ancient law in the world. In Hindu law the concept of ownership also has been discussed. In Hindu Law ownership is said a , “According to Hindu Law ownership means a relationship between person and a thing. Person is called owner and a thing is called property. Means a property which is in the control of a person is his property.
VIEWS OF MODERN & WESTERN JURISTS
The western jurists like Austin, Holland and Salmond defined the concept of ownership.
Austin :- According to him ownership is the relationship which exists in between the person and the thing.” This definition resembles with the definition under Hindu Law. Austin says that in ownership a person has the following relations with the thing.
1.Indefinite Use :- It means to use that thing in any way whether to use it for agriculture or for industry, residence but there is a restriction that one cannot use one’s property in such a way which destructive in the living of others.
2.Un-restricted power of dispose:- Means to transfer that thing or property according to his choice. He can sale or to mortgage even to give on lease or gift to anybody. But under art.19(2) of the Constitution reasonable restrictions can be imposed by the Govt., in the interest of public policies.
3.Un-limited duration of time :- means the right of transfer of his property will remain always in the name of owner. After his death it will go to his heirs so there is no time limits.
4.Domination :- It means to have control over the thing. For this purpose both elements of possession corpus and animus should be there. If the conditions are there between person and the thing and then the person is owner of that thing.
According to Holland: He defined the ownership as a plenary control of a person over a thing. The definition also contains the following conditions :-
1.Possession 2. Enjoyment 3. Disposal.
According to Salmond :- Salmond defines ownership as a relationship between person and the right. Right means to have a thing under possession. Thing always represents physical objects. But right always represents a thing which is not in physical existence like copy right and allowances are always thing which are called property. And which are not in physical existence.
Salmond has included all those right which are property in the concept of ownership. In view of the above it is learnt that Austin and Holland definitions are not complete. But salmond is completely perfect in his definition.
KINDS OF OWNERSHIP
There are various kinds of ownership which are as under :-
1. Corporal and Incorporeal ownership: Corporeal and incorporeal ownership also called material and immaterial ownership. Corporeal ownership is the ownership of a material object and incorporeal ownership is the ownership of a right. Ownership of a house, a table or a machine is corporeal ownership. Ownership of copyright a patent or a trade mark is incorporeal ownership.
2. Sole and co-ownership:- The general principal of ownership is that vested in one person only. But some times it vested in many persons in other words two or more person have the right of ownership. If only one person have right of ownership that known as sole ownership and where two or more persons have the right of ownership then know as co-ownership.
3. Vested and contingent ownership:- Ownership is either vested or contingent it is vested ownership when the title of the owner is already perfect. It is contingent ownership when the title of the ownership is yet imperfect.
4. Absolute and Limited ownership:- means owner is one in whom are vested all the rights over a thing to the exclusion of all or when a person has an absolute right over his property known as absolute ownership.
When there are limitations on the user duration or disposal of rights of ownership the ownership is limited ownership.
5. Legal and Equitable ownership:- Legal ownership is that which has its origin in the rules of common law. Equitable ownership is that which proceeds from the rules of equity. Legal right may be enforced in rem but equitable rights are enforced in personam.
The ownership is a relationship between person and the right. These rights include the right of possession enjoyment and disposal of the property. If all conditions are there then it is called Ownership.
DIFFERENCE BETWEEN POSSESSION & OWNERSHIP
1.Possession is a primary stage of ownership which is in fact. 1. Ownership is in right.
2.Possession does not give title in the property defacto exercise of a claims 2. While in ownership it gives title in the property dejure recognisation.
3.Possession is a fact. 3. Ownership is a right and superior to possession.
4.Possession tends to become ownership. 4.Ownership tends to realize itself in to possession.
5.Possession dominion corpus and animus are necessary. 5.Ownership they are not necessary because law gives full rights.
6.Transfer of possession is comparatively easier.
7. Possession is nine points of law. 6.Ownership most of the cases involves a technical process i.e. conveyance deed etc.
7.Ownership always tries to realize itself in possession i.e. complete thing.
18 Define Custom and essentials of a valid custom. Discuss its importance as a source of law and also compare with precedents.
INTRODUCTION: Custom is a conduct followed by persons in the society. Custom is considered as the most ancient and most important source of law. Source means origin of a thing. It is also considered that law basically comes out from customs. In the past customs were prevailing for the control over the society.
Austin was the first person who discarded the value of the custom. But the historical school again gave the importance to custom. The sociological school also gives importance to law with relation to society.
In the modern times the precedents i.e. Judge made law and legislation have become over powered to that of customs. As in a case of Maduri v/s Motu Ram Linga. It was held that even custom power over the state.
VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE OF LAW.
The followings are the systems which recognized custom as a source of law :
1.Romal Law :- Roman Law is known to be the oldest one in the world. This law is mainly based upon customs of the society. Those customs which were reasonable continued them as law by the Roman jurists.
2.Hindu Law :- Hindu law is also to be considered as the most ancient law. His sources are Vedas, Sutras and Smiriies and these were mainly based on customs. All personal laws of Hindu are based upon custom that is why Lord Warren Hastings and Lord Cornwallis did not attack on customs of Indians.
Manu said One should follow the given path of their ancestors. This was nothing but the reorganization of customs.
3.Mohammedan:- Particularly ignored customs for the purpose of law. During th Muslim period in India their customs were protected by State. The British rulers in India also protected customs and personal laws which were based upon customs. The traditions which were not opposed by the prophet Mohammedan were recognized as law. In this way we can say that customs in Mohammedan law also played an important role.
4. English Law :- Which is known as common law and in the shape of un-written and based upon customs and conventions. Customs which were reasonable and not against the public policies were recognized as law under English Law.
According to Pollock, The common Law is customary law. Black stol common includes written law and un-written law.” The written law is based upon the general customs. In this way English law also gave importance to the customs as a source of law.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to the nation and are applicable on the country’s people.
2. Local Customs :- Those customs which are related with a particular locality.
3. Family Customs :- Those customs which are related with a family and have application on a particular family.
4. Conventional Customs :- These customs based upon conventions e.g. a bigger part of English Law based on customs and conventions.
ESSENTIALS OF CUSTOMS
1. Antiquity :- It means oldness of the customs. The customs must be ancient. There is no limit of time for the antiquity of custom. In India there is no fixation of such time limit.
2. Reasonable :- The customs must be reasonable. It should not be un-reasonable and against the public feelings.
3. Followed :- Customs must be followed by the society. There should be no contradiction in observing customs.
4. Continuity :- Customs must be continuing from the time it was recognized as law. There should not be any break or interruption. If there is break for sometimes it does not mean that the right thing has been lost.
5. Certainty :- Customs must be certain in its nature.
6. Consistency :- There should not any confliction for its reorganization as a law.
7. Peaceful enjoyment :- Custom must be enjoyed peacefully for a long time without an disturbances.
8. Immorality:- Customs should not be against the morality.
9. Public Policy:- It must not be against the public policies or against the will of people.
10. Not against the State of Law:- Customs should not over-ride the legislation . It should not be against the law of the land.
WHEN DOES A CUSTOM BECOME LAW.
ANALYTICAL VIEW:- Austin and Gray are the supporters of analytical school. They say that a custom becomes law when it is recognized by the sovereign in the sense of positive law only.
It means that if a custom has been accepted or adopted or recognized by the sovereign then it will become a law otherwise there will be no value of the custom in judicial system of the society.
HISTORICAL SCHOOL:- Sovereign as the supporter of Historical school says that custom is a main source or base of law He says that “ consciousness of the volkgiest is the main source of law.”
Custom is superior to Judge made law or legislation. The legislation while making a law recognizes the customs of the society. The courts also while giving the decisions recognized the customs prevailing in the society.
Custom occupies an important place as a source of law even to these days because most of the material contents of developed system of law have been drawn from ancient customs. Custom is one of most fruitful sources of law. According to Analytical school a custom when recognized by State or sovereign becomes law. According to Historical school when state or courts make law they give importance to the customs. So both of the view are combining to each other and are correct for a custom as source of law.
19 Rights and duties are co-relative. Discuss. OR Distinguish between claims liberties powers and immunities also explain the correlative of each.
Introduction:- Right and duties are the very important element of law. The term ‘ Right’ has various meanings such as correct, opposite of left, opposite of wrong, fair, just and such like other expression etc. But in legal sense a right is a legally permissible and protected action and interest of a man group or state.
According to Austin :- “Right is a standard of permitted action within a certain sphere. He further define right is a party has a right when others are bounds to obligesed by law to do or not to do any act.”
According to Salmond : “ It is an interest recognized and protected by the rule of justice / law.”
According to Gray:- “Right is not an interest itself but it is the means by which the enjoyment of an interest in secure.”
According to Prof. Allen:- “ The essence of right not a legal guarantee in itself but a legally guaranteed power to realized an interest.”
ELEMENTS OF RIGHTS
1. Subject:- The subject of a right is concerned with the person legal and artificial or a group who legally is entitled to seek the privilege and benefit of against other. In other words the subject is that the person whom the right is vest.
2. Content:- This is the subject matter of the right along-with the nature and limits of that right.
3. The person of Incidence :- It means that the person upon whom falls the corrective duty.
OBJECT:- The object of the right may be material or immaterial determinate or indeterminate.
CHARACTERSTICS OF RIGHTS
1. RIGHT is a general o specific type of claim, interest or such like expression of the people in a State.
2. The right is duly recognized and approved by the State through its agencies.
3. A legal right is expressed a deep correlation with a corresponding duty, liability or disability on the part of those against whom such right is conferred.
4. A right may has its independent existence and type of assemblies with other rights.
5. Basic philosophy or the fundamental concept of right remains permanent but with the time being it is subjected to incorporate the allied changed in it.
6. The realization and scope of a legal right depends upon the type of society and the nature of interest.
THEORIES OF RIGHTS:- There are two main theories of legal right:-
1. Will theory:- The will theory says that the purpose of law is to grant the individual i.e. self expression or positive declaration. Therefore right emerges from the human will. The definition of right given by Austin and Holland, “ that the will is the main elements of a right.” Pollock says, “ that right in term of will.”
2. The Interest Theory:- Interest is the basis of right. A great german jurists defines about the legal right as, “ A legally protected Interest.” According to him the basis of right is “Interest” and not “will”.
The definition of law is in term of ‘purpose’ that law has always a purpose. In case of right the purpose of law is to protect certain interest and not the wills or the assertions of individuals. These interests are not created by the State but they exist in the life of the community itself.
TYPES OF RIGHTS
1. Primary and secondary Right: They are known by Antecedent and remedial rights names also.
2. Perfect and imperfect Right: Means which has a correlative positive duty.
3. Negative and Positive Right:-Positive means related to duty whereas negative means not related to duty.
4. Right in Rem & Personam:
5. Right is repropria and Right is Re-aliena.
6. Vested and contingent right.
7. Propriatory and personal Right.
8. Equitable and legal right.
Introduction:- The term duty may be used in various form as an obligation, as responsibility and accountability. There are some scolers who define Duty as following:-
Definitions of Duty:- According to Gray, Duty is the act of or forbearance which an organized society used to impose on people through state in order to protect the legal right of other. According to Rose Duty is the Pre-dicament of person whose act are liable to be control with the assistance of the State. As per Hoffield The duty is the correlative of Right.
Classification of Duties:- Duty classified into two categories. There are as follows:-
Positive And Negative Duties Primary and Secondary Duties
1. Positive and Negative Duty:- A positive duty implies some act on the part of person on whom it is imposed. Negative duty implies some forbearance on the part of the person on whom it is imposed.
2. Primary and Secondary duty:- A primary duty is that which exists perse and independent of other duty. A secondary duty is that duty whose purpose to enforce some other duty.
Essentials of duty:- There are following essential of duty:-
a. It may be dependent and independent.
b. It consists an obligation on the part of someone and confirm a privilege upon other.
c. The concept of duty is affirmed and protected by the law of the land where it exist.
d. The concept of duties is a changing process which arises from time to time, place to place and circumstances to circumstances.
e. Duty in most of the cases creates an absence of right against some person.
f. Duty may be fundamental, legal or moral in character.
Relation between Right and Duties:- The following objects describes the correlation between right and duties:-
i. A right is indispensible without any duty.
ii. A duty and right has separate and independent existence.
iii. A right procreates duty and vice-versa.
OR Your choice
Even though right and duties are opposite points but there is a great relation between two relations. The right and duties has a relation of Father and Child, Husband and Wife because there is no father without child and no wife without husband. So right and duties cannot be separated form each other.
Right/Claim Liberty or privilege Power Immunity
Duty No claim Liability Disliability
(Jural opposites) (Jural correlative)
Conclusion:- Right and duties are correlative of elements of each other. There is no right without duty and there is no duty without right. These are recognized by law for maintaining the society very well.
20 Define law as an instrument of social change. What special changes have been brought out by law?”
INTRODUCTION:- Law as a command as it introduces subjective considerations whereas the legal theory is objective. Notion of justice as an essential of law because many laws though not just may still continue as law. Science as system of knowledge or a totality of cognitions systematically arranged according to logical principles. The laws of natural science are capable of being accurately described determined and discovered. A law is valid because it derives its legal authority form the legislative body and the legislative body its own turn drives its authority from Constitution of India. The aim of law as of any science is to reduce chaos and multiplicity to unity.
According to Kelson, law is normative science but law norms may be distinguished from science.
Definition of Law:- while emphasising Volksgeist as the essence of law, Savigny justified the adoption of Roman Law in the texture of German Law which was more or less defused in it. Law has unconscious organic growth, it found and not artificially made. Law is not universal in nature. But like a language it varies with the people time and need of the community. With the growing complexity of law the popular consciousness as represented by lawyers who are nothing but the mouth peace of the Consciousness.
Law as an instrument of Social Change:- The following are the elements which have been helping the law to be an instrument who bring the social changes:-
1. A social Utilitarian:- The system develops aspects of Austinian positivism and combines them with principles of Utilitarianism as established and developed.
2. Law is the result of Constant struggle:- According to Ihering the development of law like its origin is neither spontaneous nor peace full. It is the result of constant struggle with a view to attain peace and order. Law is the guarantee of the conditions of life of society.
3. Law is to serve for social purpose:- As a result of social changes comes through law that is social purposes comes in conflict with the duty of the State is to protect and further social purposes to suppress those individual purposes which clash with it. Therefore, law is coercion organised in a set form by the State.
4. Law protects Social Interest:- Law is a such type of instrument which protects the social interest of the people. According to Bentam it is the persuit the pleasure and avoidance of pain.
5. Law is to found in social facts:- AS per Ehrlich, That the law of community is to be found in social facts and not in formal sources of law. He says at present as well as any other time the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision but it lies in society itself. It is a social changes.
6. Living law is the fact that govern social life:- The essential body of legal rules is always based upon the social facts of law and the facts of law which underline all law are usage, domination, possession and declaration of will .
7. Law according to the requirement of Society:- It means that law in a society should be made and administered with the utmost regard to its necessity.
8. Law also to serve this and:- Law is the rule which men possess not by virtue of any higher principle whatever, good, interest or happiness but by virtue and perforce of the facts because they live in society and can live in society. This is because of to use the law as an instrument which brought the Social Changes.
Conclusion:- The contribution of law in the social changes is a great and its approach is more scientific and comprehensive. The study of law in social context and emphasizes its close relation with the life of society.