English Jurisprudence-Free Lectures From the Book 29 Lectures on English Jurisprudence--Authored ByRehan Aziz Shervani

29 LECTURES ON ENGLISH JURISPRUDENCE ( A SELF EXPLANATORY BOOK With 700 Dictionary Meanings.) For

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Rehan Aziz Shervani

Visiting Professor of Law; Consultant Tax, Intellectual Property, Banking & Corporate Laws. (Advocate High Court) LLM.,LLB.,M.A Economics; M.A Political Science; DCMA; DTL;B.Com. PUBLISHED By R & R RESEARCH & PUBLISHING COMPANY. “Pioneer in Publishing Self-Explanatory Books” Office 01, M-Garden-Industrial Area, Opposite Descon Engineering, 18,Km, Ferozpur Road, Lahore. Cell: 0333-4324961 Email:[email protected]

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This book has as many as 35 lectures---It is available on ILMI Book Depot Urdu Bazar, Lahore, Mansoor Book Depot Fan Road, Lahore—Irfan Book Depot, Lahore High Cour, Lahore---

Lecture 3 {Jurisprudence is not concerned with God-made laws. It is concerned with positive laws (=man made laws) and answers the question: ‘What is law?’}

Exam Oriented Question. What is Jurisprudence? Discuss briefly different schools of jurisprudence. Discuss (=argue or talk about) Briefly (=in a few words) Schools (=scholastic institutions)

(2002) 2008) Outline: (1) Meaning of the Terms: ‘Schools’ & ‘Jurisprudence’: (2) Natural Law School of Jurisprudence. (3) Historical School of Jurisprudence.

(4) Analytical School of Jurisprudence. (5) Sociological School of Jurisprudence. (6) Conclusion Answer: Meaning of the Terms: ‘School’ & ‘Jurisprudence’: To run by the question requires understanding of the following concepts: (1) Schools & (2) Jurisprudence By ‘Schools’ mean ‘scholastic institutions’ and by ‘jurisprudence’ means understanding of law. Thus, the phrase ‘Schools of Jurisprudence’ connotes ‘scholastic institutions that deal with understanding of law’. Different schools of Jurisprudence are as under: Scholastic (=academic) Thus (=as a result) Phrase (=expression or term) (1) (2) (3) (4)

Natural Law School of Jurisprudence. Historical School of Jurisprudence. Analytical School of Jurisprudence. Sociological School of Jurisprudence.

Natural Law School of Jurisprudence: Plato is of the view that “physical phenomenon of the world are mere manifestation of a superior order laid up in heaven and must be studied to gain insight in to the ultimate pattern. Physical (=material) Phenomenon ( =observable fact) Mere (=simple) Manifestation (=appearance) Superior order (=superior power) Laid up (=set) Insight (=understanding) Ultimate (=real) Pattern (=philosophy) Thus, it may be said that Plato is of the view that “observable material facts of this world are simple appearance of a superior power set in heaven and must be studied to gain insight in to the real philosophy of this world”.

The scholars of the school are of the view that legal rules must be derived from a universalized idea of human nature or divine justice rather than from legislative or judicial actions. Historical School of Jurisprudence: Von Savigny was founding father of this school. Bruke, upholder of this school, is of the view that never constructs schemes of legal rules for future without having first learning the lesson from the past. History (=what went before) Analytical School of Jurisprudence: Before discussing the methodology of this school, it is necessary to, first, understand the literal meaning of the term ‘analytical’-----analytical means investigative or diagnostic or exploratory. In analyzing a legal issue, the school tries to find answers of the following questions: (1)What is the logical structure of law or a legal issue? (2)What are the logical meanings of the terms involved in a legal issue? (3)What are the logical use of concepts and terms involved in a legal issue? Logical (=rational; reasonable; valid; sound) Sociological School of Jurisprudence: This school of jurisprudence takes in to consideration the actual social effects of legal institutions, doctrines and practices on society. Actual (=genuine) Social effects (=shared consequences or results) Doctrine (=theory or rule or principle) Conclusion (a)All the schools strive to address different aspects of law’. (b) Historical school focuses that lesson from history must be taken in to consideration in formulating the legal rules (c) Sociological School focuses that in formulating the legal rules the social effects thereof must be taken in to consideration (d) Analytical school of Jurisprudence focuses that investigative or exploratory approach must be followed to formulate the legal rules. (e) Natural school of jurisprudence supports that legal rules must be derived from a universalized idea of human nature.

Conclusion (finale; end) Strive (=struggle) Address (=deal with) However (=on the other hand) ------------------------------------------------------------------------------------------------------Lecture 1 [“The noblest pleasure is the joy of understanding.”] [The importance of knowledge lays not only its direct practical utility but also in the fact that it promotes a widely contemplative habit of mind.] Contemplative (=thoughtful or meditative)

Exam Oriented Question: Discuss in detail what is meant by the term ‘law’?

Outline: What is ‘Law’? (1) Simple definition

(2) Austinien’s definition of law (3) Aristotle’s definition of law. (4) Classical definition of law (5) Why laws are made? (6) Who makes laws? (7) Advantage of law (8) Concept of supreme law (9) What is justice? (10) Relevant quote on relationship of law and justice (11) Conclusion Answer: What is ‘Law’? To answer the question, the following definitions are discussed:Simple definition “Law is the right of one, obligation of the other, maintained by law enforcing authority” Right (= Sheltered and recognized interest) Obligation (=Duty) Maintained (=Managed) Enforcing authority (= Implementing power.)

Thus, it may be stated that law is the sheltered and recognized interest of one, duty of the other managed and controlled by law implementing power. Austinien’s definition of law “Law is the command of the sovereign” Command (=Order) Sovereign (= Ruler) Thus, it may be stated that law is the order of the ruler. Additional information Kinds of sovereign: (1) de-jure sovereign (Constitutional ruler) (2) de-facto sovereign (Unconstitutional ruler) Aristotle defines constitution as: “A constitution denotes not only an arrangement of office, but, a manner of life. Aristotle’s definition of law. “Law is the experience, developed by reason and reason, tested by experience”. Experience (=Knowledge) Reason (= Rationale) Tested (=Checked) Thus, it may be stated that law is the knowledge, developed by rationale and rationale, checked by knowledge. Relevant quotation. Experience is a very hard teacher she gives the test first, the lesson afterwards. Classical definition of law: Law is the ‘dispassionate reason’ and its content is the same as that of morality. Dispassionate (=Unemotional) Reason (= Rationale) Content (=Substance) Thus, law is the ‘unemotional rationale’ and its substance is the same as that of morality.

Why laws are made? Laws are made to regulate human actions. Who makes laws? Laws are made by super human wisdom. In modern political state they are made by Parliament. Why laws are respected:

Laws are respected because "civilization presupposes respect for the law" — that is, law is a foundation of civilization and dictates the tone and colour of what we suppose to be civilization. Advantage of law The supreme advantage of law is peace and harmony. Law governs both the ruler and the ruled. Concept of supreme law “Salus est poupli suprema lex” (Latin Maxim) Salus (= welfare) est (=is) Populi (= People) Suprema (=Supreme) Lex (=Law) Thus, it means welfare of people is the supreme law. What is justice? Justice means ‘giving every man his legal right’. Relevant quote on relationship of law and justice “Justice is an ideal like truth just as a sculptor tries to achieve beauty with his mallet and chisel, so law is the tool of a judge in the pursuit of justice.” Ideal (=Model) Beauty (=Splendor or Prettiness) Mallet (=Hammer) Chisel (=Shape) Tool (=Instrument) Pursuit (=Search) Thus, it may be said that justice is a model like truth just as a sculptor tries to achieve prettiness with his hammer and a shape, so, law is the instrument of a judge in the search of justice.

It is also said that justice is the daughter of law. Conclusion: From the above it may be concluded that law is a formal mechanism of social

control. It helps in maintaining social order in a society. Exam Oriented Question:

Define ‘Administration of Justice’. What are the points of difference between Civil and Criminal Justice or discuss the theories regarding ‘end of justice’. Define (=describe) End (=purpose) Answer; Outline: (1) Simple Meanings of the Term ‘Administration’ and ‘Justice’ (2) Relationship between administration of justice & law (3) Is it a substitution for private vengeance? (4) Historical Evolution of ‘Administration of justice’ (5) Salmond and ‘administration of justice’ (6) Lord Bryce and ‘administration of justice’ (7) Modern system of administration of justice. (8) Kinds of justice or theories of justice (9) Public Justice (10) Difference between civil and criminal justice. Simple Meanings of the Term ‘Administration’ and ‘Justice’: The terms ‘administration’ & ‘justice’ respectively means ‘practical management’ & ‘giving every man what he deserves as per law’. Thus ‘administration of justice’ stands for practical management by which every man is given what he deserves as per law’. Relationship between Administrations of Justice & Law: The relationship between ‘administration of justice’ and ‘law’ may be determined from the following quote: “Justice is an ideal like truth just as a sculptor tries to achieve beauty with his mallet and chisel so law is the tool of a judge in the pursuit of justice.” Ideal (=model) Beauty (=splendor or prettiness) Mallet (=hammer) Chisel (=shape)

Tool (=instrument) Pursuit (=search) Thus, it may be said that justice is a model like truth just as a sculptor tries to achieve prettiness with his hammer and a shape so law is the instrument of a judge in the search of justice. Is ‘administration of justice’ a substitution for private vengeance? Yes. Administration of justice is a civilized substitution for private vengeance. Civilized (=sophisticated or educated or cultured) Substitution (=alternate; replacement) Private (=personal) Vengeance (=revenge) Thus, administration of justice is cultured alternative for personal revenge. Historical Evolution of ‘Administration of justice’: In ancient times, man used to take revenge from his enemies either by self-help or with the help of his associates and relatives. When society grew a little, the persons of position, influence and social status started resolving the private disputes of people. At the advent of the institution of Kingship, the administration of justice became the responsibility of jurists of high caliber. At present, in political states, administration of justice is done by Magistrates & Judges. Revenge (=pay back) Influence (=power) Jurist (=philosopher of law) Salmond and ‘Administration of Justice’: “Law may be defined as the body of principles recognized and applied by the state in the administration of justice” Body (=a collection of) Recognized (=acknowledged; accepted) Lord Bryce and ‘Administration of Justice’: “There is no better test for the excellence of a government than the efficiency of its judicial system.” Test (=analysis; check) Modern System of ‘Administration of Justice’.

Following are quaint essence for the effective system of ‘administration of justice’: (1) State’s physical force (2) Organized political society (3) Maintenance of rights as the object. (4) Public opinion In equation form it may be presented as: Modern system of Administration of Justice = State’s physical force + politically organized political society + Maintenance of rights as the object + public opinion. Kinds of justice or theories of justice: Justice is of two kinds: (1) Natural justice (2) Legal justice Natural justice deals with the enforcement of rights and punishments of wrongs according to moral standards as appeal to the mind of human being. It stands independent of recognition by state. Legal justice denotes justice according to what the law declares to be just (=right). Legal justice may be divided in to the following kinds: (a) Private justice & (b) Public justice Private or personal justice is what the person whose right is violated wants from the counter party. Public or community justice is what a plaintiff demands and receives from the community through court if his counter parties have denied him personal justice. Private Justice is the object for which the public justice exists. Kinds of public justice: Following are the two kinds of public justice: (a) Civil justice (b) Criminal justice The two kinds can be well understood by understanding their points of difference: Points of Difference Civil Justice Criminal Justice Nature of Wrong Civil justice is dispensed Criminal justice is Wrong (=breach of one’s for private wrongs. dispensed for public legal duty) Private wrong (=breach of wrongs. Nature (=character) right of individual) Public wrong (=breach of Dispense (=to give out) right of community) Dispense (=to give out) Purpose The purpose of civil justice The purpose of criminal is to compensate the justice is to punish the aggrieved party. offenders Compensate (=reimburse) Offenders (=wrong doers) Punish (= penalize)

Procedure Nature of Court Degree of Harmfulness Style of Titling Relevant Procedural Code Prosecution Measuring the liability

For civil justice civil procedure is adopted. Civil justice is administered by Civil Courts.

For criminal justice criminal procedure is adopted. Criminal justice is administered by Criminal Courts. Civil wrongs are relatively Criminal wrongs are less harmful for the society. relatively more harmful for the society. Civil cases are titled as Criminal cases are titled as Bashier Hussan versus State versus Bashier Nazier Akhtar. Hussain. The relevant procedural The relevant procedural Code is ‘The Civil code is ‘The Criminal Procedure Code, 1908.’ Procedure Code, 1898.’ In civil justice, government In criminal justice, does not prosecute the case. government prosecutes the case. In civil cases in determining Criminal liability is the liability, the following measured by keeping the factors are irrelevant: (1) following in view: (1) Motive (2) Intention (3) Motive (2) Intention (3) Magnitude of the offense Magnitude of the offense (4) Character of the (4) Character of the offender. offender.

Conclusion: Administration of justice’ means practical management by which every man is given what he deserves as per law. Justice is divided in to private and public justice; public justice is divided in to criminal and civil justice. Criminal justice imposes punishments on the offenders, whereas civil justice focuses on the enforcement of rights and granting of compensations to the aggrieved party. Reason is the life of the law; nay, the common law itself is nothing else but reason... The law, which is perfection of reason.

Lecture 8A Exam Oriented Question. Discuss in detail sources of law.

Ans: Sources of Law: Source (= the point that something comes from; starting place; foundation)

Law (=law is the command of the sovereign; law is the right of one obligation of other backed by law enforcing authority; law is the dispassionate reason and its content is the same as that of morality; law is the experience developed by reason and reason tested by experience.

Following are the sources of law: (1) Case law or judicial precedent (2) Legislation Judicial Precedent or Case Law: Introduction: In every legal system precedents are kept preserved in the form of decisions of the superior courts. The decisions are preserved in law reports.. The decisions are given by the judges of unqualified respect therefore their decisions are given highest respect. The decisions are presumed to be unfailingly correct and are followed as examples or precedents in future cases.. Law reports (=law news paper) Unfailingly (=consistent; trust worthy)

Definition of judicial precedent? ‘Precedent is making of law by a court in recognizing and applying new rules while administering justice’. Recognizing(=identifying) Applying (=implementing) While (=at the same time as) Administering (=dispensing or giving out or managing) Justice (=fairness or righteousness or evenhandedness)

Thus, it may be said that ‘precedent is law making by a court in identifying and implementing new rules while dispensing justice’. Dispensing (=giving out)

Stare decisis: The binding authority of precedent comes fron the principle of ‘stare decisis’ which means to abide by authorities and cases already adjudicated upon. In other words stare decisi is also known as: ‘stand by the things decided’. Authority (=last word) Binding authority (=authority to impose legal duty) Adjudicated (=judicially decided)

The doctrine of ‘judicial precedent’ is based on a fundamental feature which states that ‘principles established through precedents do not become inoperative through the lapse of time. More over the doctrine brings consistency in the laws of any state. Doctrine (=rule; principle; theory)

Factors increasing the worth of precedent as a source of law: The following factors increase the worth of precedent in any legal system: (1)Justice is administered by an establishment of judges. Establishment (=organization; body) (2) Judges are specialists of law (3) Judges represent the collective conscience of society. (4) A case once decided stands correct unless reversed by the higher court. Specialist (=expert) Represent (=symbol of) Collective (=joint or combined) Conscience (=sense of right and wrong) Society (= the general public) Unless (=if not) Reversed (=overturned)

(5)A rule formulated through precedent is a model implemented on the subsequent cases. It brings fair-mindedness and impartiality in judicial decisions. Model (=copy; reproduction) Subsequent (=following or successive) Impartiality (=neutrality)

(6) Precedent makes the interpretation of question of law final. Interpretation (=understanding or explanation) Final (=absolute or concluding)

Advantages of case law as a source of law: The law is decided fairly and predictably, so that business men and individuals can regulate their conduct by reference to the law. The risk of mistakes in individual cases is reduced by the use of precedents. Case law can adapt to changing circumstances in society, since it arises directly out of the actions of society. Case law, having been developed in practical situations, is suitable for use in other practical situations.

Regulate (=adjust) Actions (= law suits; cases)

Legislation: The second source of law is ‘legislation’. Etymology of the term ‘legislation’: The term ‘legislation’ has its etymology in the following Latin words: ‘Legis’ & ‘Latum’ respectively means ‘law’ & ‘to make’. Thus the term ‘legislation’ means ‘to make law’. Etymology (=origin)

Meaning of the term ‘legislation’: The process of making or enacting a positive law in written form, according to some type of formal procedure, by a branch of government constituted to perform this process. Process (=method) Enact (=pass) Positive law (=man-made law) Written (= in black & white) Formal (=certified or official or proper) Procedure (=system)

Thus, the term ‘legislation’ means the method of making or passing a man-made law in written form according to some type of proper system by a branch of government constituted to perform this process. Legislation is also termed as ‘statute law’ and it takes the form of ‘Act of Parliament’ or ‘delegated legislation.’ In Pakistan legislation is made by the Parliament or by the authority in exercise of the law making powers delegated to it by the Parliament. Types of legislation: Besides making new laws and altering existing laws. The Parliament has power to make the law clearer by passing a codifying statute putting case law on a statutory basis. It can also pass consolidating statutes that incorporate an original statute and its successive amendments in to a single piece of legislation. Codification (=the process of compiling, arranging and systematizing the laws of a given jurisdiction.)

Consolidating statutes (= a law that collects the legislative provisions on a particular subject and embodies them in a single statute, often with minor amendments and drafting improvements. Successive (=succeeding; following)

Legislation can also be categorized as under: (1) Public Acts Legislation (2) Private Acts Legislation (3) Enabling legislation Public Acts contain legislation relating with the general public. Private Acts contain legislation that affects specific individuals and groups. Enabling legislation empowers a specific individual or body to produce the detail required by a parent Act. General public (=Common people

Advantages and disadvantages of statute law: Following are the advantages and disadvantages of statute law: (a) Advantages: (1) The Parliament is elected at intervals of not more than five years. Hence the law making process is theoretically responsive to public opinion. Intervals (=gaps) Theoretically (=notionally) Responsive (= alert; quick to respond)

(2) Statute law can in theory deal with any problem. (3) Statutes are carefully construed codes of law. Construed (=interpreted) Code of law (= a complete system of positive law, carefully arranged and officially promulgated)

(4) A new problem in society or some unwelcome development in case law can be dealt with by passing an Act of Parliament. (b) Disadvantages: (1) Statutes are bulky. Bulky (=large; huge; massive)

(2) Parliament often lacks time to consider draft legislation in sufficient detail. Draft (=outline)

(3) A substantial statute can take up a lot of Parliamentary time. Substantial (=important; significant)

(4) Statute law is a statement of general rules. Those who draft it cannot anticipate every individual case which may arise. Statement (=declaration) General (=broad) Anticipate (=predict)

Delegated Legislation: To save time in Parliament, Acts usually contain a section by which power is given to a minister, or public body such as a local authority, to make subordinate or delegated legislation. Section (=a distinct part or division of a writing especially a legal instrument.) Public body (= a body relating to entire community)

The term ‘delegation’ & ‘legislation’ respectively means ‘the act of entrusting something to some one’ & ‘to make law’. Thus, the term ‘delegated legislation’ means ‘the act of entrusting some one with the power to make law’ Entrust (=hand over)

‘Delegated legislation’ means rules of law, often of a detailed nature, made by subordinate bodies to whom the power to do so has been given by statute. Delegation of legislative power is made by the ruling party on behalf of the Parliament; it takes place in the following form: (i)Government ministers by virtue of the delegated powers make statutory instruments. By virtue (=on account of) Statutory instruments (=an administrative regulation or order issued by an authority empowered by statute to do so usually to give detailed effect to the statute.

(ii)Local authorities by virtue of the delegated powers make bye-laws. (iii) Rules of court may be made by the Judiciary to control court procedure.

(iv) Professional regulations concerning certain occupations such as law can be delegated to authorized bodies such as the Law society Advantages and disadvantages of delegated legislation: Delegated legislation has the following advantages: (1) It saves time as Parliament does not have to examine matters of detail. (2) Much of the content of delegated legislation is technical and is better worked out in consultation with professional, commercial or industrial group outside parliament. (3) If new or altered regulations are required later, they can be issued without referring back to Parliament. (4) The system allows the law to be enacted quickly. Disadvantages of delegated legislation are as follows: (1) There are concerns over the accountability of parliament. Individual MNA and their civil service staff effectively become the source of law rather than Parliament whose actions are open to questioning and public scrutiny. (2) The system is unrepresentative in that some power is given to civil servants who are not democratically elected. (3) Because delegated legislation can be produced in large volumes. Ordinarily MNA and the public find it difficult to keep up to date with developments. (4) The different sorts of delegated legislation which may be produced by virtue of one statute can greatly confuse users.

Lecture 15 [When there's a single thief, it's robbery. When there are a thousand thieves, it's taxation. ~Vanya Cohen]

Exam Oriented Question: What is possession? Discuss its essential elements. Outline: (1) Salmond & possession. (2) Meaning of the term ‘possession’ according to Black’s Law dictionary edition 8th: (3) Essentials of Possession (4) Corpus of possession (5) Relationship between possessor and others. (6) Relationship between possessor and the things possessed.

(7) Animus Possidendi.

Answer: To know ‘possession’ requires undergoing the following discussion: Salmond & possession: Salmond states: in the whole range of legal theory, there is no conception more difficult than possession; it is impossible to frame a concrete definition of possession whereof concrete law of possession can be logically deduced, however, ‘possession’ is defined as under: Whereof (=of that) Deduced (=figured out; worked out) However (= on the other hand)

“The continuing exercise of a claim to the exclusive use of material objects” Continuing (=unending; ongoing) Exercise (=implementation) Exclusive (=selected; limited; private; restricted) Material objects (= food; water; clothes etc)

Thus, it may be said that ‘possession’ means unending implementation of a claim for the ‘private use’ of material objects like land, building automobile etc. etc (=and others)

Meaning of the term ‘possession’ according to Black’s Law dictionary edition 8th: There are five senses of possession described in Black’s law dictionary, however, of that, following two are of great significance: First Sense: ‘The fact of holding property in one’s power’. Fact (=reality; certainty) Power (=control) Hold (=grip or embrace)

Thus, it may be said that the term ‘possession’ means ‘the certainty as to grip property in one’s control’. Grip (=hold)

Second Sense: The right under which one may exercise control over something to the exclusion of all others. Right (=an interest protected by law) Exercise (=apply) Control (=be in command of; management) Exclusion (=keeping out; ruling out; elimination)

Thus, the term ‘possession’ means ‘an interest protected by law by which one may apply his management over something to the exclusion of all others. . Essentials of Possession:

Following are the essentials of possession: (1) Corpus of possession or corpus possessionis. (2) Animus possidendi. Possession=Corpus of possession + Animus possidendi Corpus of possession: ‘Corpus of possession’ means possessor’s exclusive physical control over a thing’. Quality of possession is established by measuring quality of control over a thing. Foundation of ‘corpus of possession’ is based on the following:(i) Relationship between possessor and others. (ii)Relationship between possessor and the things possessed. Quality (=worth; value)

Relationship between possessor and others: Possessor’s ‘corpus of possession’ may be determined on the basis of his relationship with the following things: (a) Possessor’s physical presence has excluded all others from possessing the thing. (b) Property is in the exclusive knowledge of the possessor. (c) Property is under lock and key of the possessor. (d) Possessor is in possession of a thing by virtue of a custom. (e) Possessor is in possession of a thing by virtue of a legal right. Relationship between possessor and the things possessed: The second element of corpus of possession consists of the fact that there exists a direct relationship between the possessor and the thing possessed. Animus Possidendi: Black’s law dictionary states: ‘animus possidendi’ is ‘the intent to possess a thing’. As actions are considered best interpreters of thought or intention’, therefore, possessor’s intention is gathered from the interpretation of his actions. -------------------------------------------------------------------------------------------This book has as many as 35 lectures---It is available on ILMI Book Depot Urdu Bazar, Lahore, Mansoor Book Depot Fan Road, Lahore—Irfan Book Depot, Lahore High Cour, Lahore