1 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) Civil.
2) Criminal.
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.
CONCLUSION:-
In end we can say that law is the important and
necessary part of the state and developing the human beings. Law gives rights
and duties to human beings. And law is the essential part of a State. Law is an
instrument of social control as well as social change.
3 Define ‘Right’ and discuss the essential elements of legal right.
OR
What is a ‘Legal Right’? Discuss the characteristics of a legal
right.
INTRODUCTION: Right generally means an interest or facility or a
privilege or immunity or a freedom. In this way right for the purpose of
jurisprudence is called legal right. Austin in his theory has separated
the subject matter of jurisprudence from morality or materiality. He gave
the concept of positive law. So here also right means positive law right only,
which is term of legal right. Legal right is recognised by law. It
is different from moral right. Moral right if violated is called
moral wrong. The violatin of natural right is called natural wrong. But
these wrongs are not remedial under law while if a legal right is violated then
it will be legal wrong which is remedial under law. The different jurists have
defined legal right in different ways:- According to Austin : “ Right is
a faculty which resides in a determinate party or parties by virtue of a given
law and which avails against a party or parties other than the party or parties
in whom it resides.” According to Salmond :- “ Right is an interest
recognised and protected by the rule of right.” Here rule of right means rule
of law or law of country. When an interest of a person is protected by the rule
of law then it is called right. Salmond definition involves two points, firstly
that right is an interest and secondly it is protected by rule of right. It
means that it relates to his (person) interest i.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 :-
LAW
(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:-
MORALS 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.”
POUND’S CONTRIBUTION
Social Engineering stands on a practical and firm ground. He
points out the responsibility of the lawyer, the judge and the jurists and
gives a comprehensive picture of the scope and field of the subject.
12 What do you mean legal personality and its different
theories? Whether the following are legal person :-
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
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.
CONCLUSION
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
CUSTOMS 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.
Grandnorm
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.
CONCLUSION
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.
CONCLUSION
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
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.
CONCLUSION
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.
Definition
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.
Duty
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:-
Duties
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.
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