Jurisprudence Class Notes Full

Jurisprudence Class Notes 04.01.2011 Module I- Introduction to Jurisprudence 1. Nature and Scope of Jurisprudence 2. The Nature of Law Nature and Scope of Jurisprudence What is Jurisprudence? There is no universal or uniform definition of Jurisprudence since people have different ideologies and notions throughout the world. It is a very vast subject. When an author talks about political conditions of his society, it reflects that condition of law prevailing at that time. Romans were the first who started to study what is law. Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law. Most of our law has been taken from Common Law System. Bentham is known as Father of Jurisprudence. Austin took his work further. Bentham was the first one to analyse what is law. He divided his study into two parts: 1. Examination of Law as it is- Expositorial- Command of Sovereign. 2. Examination of Law as it ought to be- Censorial- Morality of Law. Austin stuck to the idea that law is command of sovereign. The structure of English Legal System remained with the formal analysis of law and never thought what it ought to be. J. Stone also tried to define Jurisprudence. He says that it is a lawyer’s extra version. It is lawyer’s examination of the percept, ideas and techniques of law in the light derived from present knowledge in disciplines other than the law. There can be no goodness or badness in law. Law is made by the state so there could be nothing good or bad about it. Jurisprudence is the science of law. Definitions by:

1. 2. 3. 4. 5. 6.

Austin Holland Salmond Keeton Pound Dias and Hughes

05.01.2011 Austin- Science of Jurisprudence is concerned with Positive Laws that is laws strictly so called. It has nothing to do with the goodness or badness of law. Two Parts: 1. General Jurisprudence- It includes such subjects or ends of law as are common to all system. 2. Particular Jurisprudence- It is the science of any actual system of law or any portion of it. In essence they are same but in scope they are different. Salmond’s Criticism He said that for a concept to be General Jurisprudence, it should be common in various systems of law. This is not always true. Holland’s Criticism He said that it is only the material which is particular and not the science itself. Holland’s Definition- Jurisprudence means the formal science of positive laws. It is analytical science rather than material science. 1. He defines the term positive law. He says that the positive law means the general rule of external human action enforced by a sovereign political authority. 2. He simply added the word ‘formal’ in Austin’s definition. Formal means we study only the form and not the essence. We study only the external features and do not go into the intricacies. How it is applied and how it is particular that is not the concern of Jurisprudence.

3. The reason for using the word Formal Science is that it describes only the form or the external sight of the subject and not its internal contents. Jurisprudence is not concerned with the actual material contents of law but with its fundamental conceptions. Therefore, Jurisprudence is a Formal Science. 4. It has been criticized by Gray and Dr. Jenks. Jurisprudence is a formal science because it is concerned with the form, conditions, social life, human relations that have grown up in the society and to which society attaches legal significance. 5. Jurisprudence is a science because it is a systematized and properly co-ordinated knowledge of the subject of intellectual enquiry. The term positive law confines the enquiry to these social relations which are regulated by the rules imposed by the states and enforced by the courts of law. Therefore, it is a formal science of positive law. 6. Formal as a prefix indicates that the science deals only with the purposes, methods and ideas of the basis of the legal system as distinct from material science which deals only with the concrete detail of law. 7. It has been criticized on the ground that this definition is concerned only with the form and not the intricacies. 06.01.2011 Salmond- Jurisprudence is Science of Law. By law he means law of the land or civil law. He divides Jurisprudence into two parts: 1. Generic- This includes the entire body of legal doctrines. 2. Specific- This deals with the particular department or any portion of the doctrines. Specific is further divided into three parts: 1. Analytical, Expository or Systematic- It deals with the contents of an actual legal system existing at any time, past or the present. 2. Historical- It is concerned with the legal history and its development. 3. Ethical- The purpose of legislation is to set forth laws as it ought to be. It deals with the ideal of the legal system and the purpose for which it exists. Criticism- It is not an accurate definition. Salmond only gave the structure and failed to provide any clarity of thought. Keeton- He considers Jurisprudence as the study and systematic arrangement of the general principles of law. Jurisprudence deals with the distinction between Public and Private Laws and considers the contents of principle departments of law.

Roscoe Pound- Jurisprudence as the science of law using the term ‘law’ in juridical sense as denoting the body of principles recognized or enforced by public and regular tribunals in the administration of justice. Dias and Hughes- Jurisprudence as any thought or writing about law and rather than a technical exposition of a branch of law itself. Conclusion- Jurisprudence is the study of fundamental legal principles. Scope of Jurisprudence- Austin was the only one who tried to limit the scope of jurisprudence. He said morals and theology in the study of jurisprudence. Basically, the study of jurisprudence cannot be circumscribed because it includes all human conduct in state and society. Approaches to the study of Jurisprudence- There are two ways 1. Empirical- Facts to Generalization. 2. A Priori- Start with Generalization in light of which facts are examined. 07.01.2011 Significance and Utility of the Study of Jurisprudence 1. This subject has its own intrinsic interest because this is the subject of serious scholarship and researchers in jurisprudence; they contribute to the development of society by having repercussions in whole legal, political and social thoughts. One of the tasks of this is to construct and elucidate concepts serving to render the complexities of law more manageable and more rational. In this way, theory can help to improve practice. 2. Jurisprudence also has an educational value. It helps in the logical analysis of the legal concepts and it sharpens the logical technique of the lawyer. The study of jurisprudence helps to combat the lawyer’s occupational view of formalism which leads to excessive concentration on legal rules for their own sake and disregard of the social function of the law. 3. The study of jurisprudence helps to put law in its proper context by considering the needs of the society and by taking note of the advances in related and relevant disciplines.

4. Jurisprudence can teach the people to look if not forward, at least sideways and around them and realize that answers to a new legal problem must be found by a consideration of present social needs and not in the wisdom of the past. 5. Jurisprudence is the eye of law, grammar of law because it throws light on basic ideas and fundamental principles of law. Therefore, by understanding the nature of law, its concepts and distinctions, a lawyer can find out the actual rule of law. It also helps in knowing the language, grammar, the basis of treatment and assumptions upon which the subject rests. Therefore, some logical training is necessary for a lawyer which he can find from the study of jurisprudence. 6. It trains the critical faculties of the mind of a student so that they can dictate fallacies and use accurate legal terminology and expression. 7. It helps a lawyer in his practical work. A lawyer has to tackle new problems which he can handle through his knowledge of jurisprudence which trains his mind into legal channels of thought. 8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws passed by the legislators by providing the rules of interpretation. Therefore, the study of jurisprudence should not be confined to the study of positive laws but must include normative study i.e. that study should deal with the improvement of law in the context of prevailing socio-economic and political philosophies of time, place and circumstances. 9. Professor Dias- The study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence. 10.01.2011 Relationship of Jurisprudence with other Social Sciences 1. Sociology and Jurisprudence- There is a branch called Sociological Jurisprudence. This is based on social theories. It is essentially concerned with the influence of law on society at large particularly when we say social welfare. The approach from sociological perspective towards law is different from a lawyer’s perspective. The study of sociology has helped Jurisprudence in its approach. Behind all legal aspects, there is something social. Sociology of Law is different from Sociological Jurisprudence. 2. Jurisprudence and Psychology- No human science can be described properly without a thorough knowledge of Human Mind. Hence, it has close connection with

Jurisprudence. Relationship of Psychology and Law is established in the branch of Criminological Jurisprudence. Both psychology and jurisprudence are interested in solving questions such as motive behind a crime, criminal personality, reason for crime etc. 3. Jurisprudence and Ethics- Ethics has been defined as science of Human Conduct. It strives for ideal Human Behaviour. a. Ideal Moral Code- In relation to Natural Law. b. Positive Moral Code- In relation to Command of the Sovereign. c. Ethics is concerned with good human conduct in the light of public opinion. d. Jurisprudence is related with Positive Morality in so far as law is the instrument positive ethics tries to assert itself. e. Legislations must be based on ethical principles. It is not to be divorced from Human principles. f. No law is good unless it is based on sound principles of human value. g. A Jurist should be adept in this science because unless he studies ethics, he won’t be able to criticize the law. h. Austin disagrees with this relationship. 4. Jurisprudence and Economics- Economics studies man’s efforts in satisfying his wants and producing and distributing wealth. Both Jurisprudence and Economics are sciences and both aim to regulate lives of the people. Both of them try to develop the society and improve life of the individual. Karl Marx was a pioneer in this regard. 5. Jurisprudence and History- History studies past events. Development of Law for administration of justice becomes sound if we know the history and background of legislations and the way law has evolved. The branch is known as Historical Jurisprudence. 6. Jurisprudence and Politics- In a politically organized society, there are regulations and laws which lay down authoritatively what a man may and may not do. Nature of Law 1. Introduction- Law cannot be static because it has to grow with the development of the society. The scope of law cannot be kept static. The result is that the definition of law is ever changing with the change in society. The definition of law considered satisfactory today might be considered a narrow definition tomorrow. This view has been put forward by Professor Keeton. He says that an attempt to establish a satisfactory definition of law is to seek, to confine jurisprudence within a Straight Jacket from which it is continually trying to escape. 2. There are two jurists in this regards- Austin and Salmond.

3. Austin says law is the aggregate of the rules set by men as political superior or sovereign to men as politically subject. In short, Law is the command of sovereign. It imposes a duty and duty is backed by a sanction. There exists three elements in law: a. Command b. Duty c. Sanction 4. Salmond defines law as the body of principles recognized and applied by the state in the administration of justice. 5. Austin’s Theory of Law or Imperative Theory of Law a. It is a type of command b. It is laid down by a political superior c. It is enforced by a sanction 6. He goes on to elaborate his theory. Request, wish, these are expressions of desire. Command is also an expression of desire which is given by a political superior to a political inferior. The relationship of superior to inferior, in consists in the power which the superior enjoys over the inferior because the superior has ability to punish the inferior for its disobedience. 7. He further says that the commands which are laws and there are certain commands which are not laws. Commands which are laws are general in nature. Therefore, laws are general commands. Laws are like standing order in a military station which is to be obeyed by everybody. 8. He goes on define who is a sovereign. Sovereign is a person or a body or person whom a bulk of politically organized society habitually obeys and who does not himself habitually obey some other person or persons. Perfect obedience is not a requirement. 9. He goes on to classify law. Laws are of two types a. Divine Law- Given by god to men b. Human Law- Given by men to men i. Positive Laws- Statutory Laws ii. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc. 10. Criticism of Austin’s Theory of Lawa. Laws before state- It is not necessary for the law to exist if the sovereign exists. There were societies prior to existence of sovereign and there were rules that were in prevalence. At that point of time, there was no political superior. It had its origin in custom, religion and public opinion. All these were later enforced by the political superior. Thus, sovereign is a requirement for law has received criticism - Historical and Sociological School of Thought. b. This criticism is not supported by Salmond. Salmond says that the laws which were in existence prior to the existence of state, they were something like primitive substitutes of law and not law. They resembled law. Salmond gives

an example. He says that apes resemble human beings but it is not necessary to include apes if we define human beings. c. Generality of Law- The laws are also particular in nature. It is applicable to a particular domain. There are laws which are not universally applicable. Thus, laws are not always general in nature. d. Promulgation- It is not necessarily for the existence of the law that the subjects need to be communicated. But, Austin thought otherwise. e. Law as Command- According to Austin, law is the command of the sovereign. But all laws cannot be expressed as commands. Greater part of law in the f.

system is not in the nature of command. Sanction- The phrase regarding sanction might be correct for the monarchical state. But for a democratic state, it does not find true meaning because it is not the force of the state but willingness of the people. In civil laws, sanction does

not exist unlike criminal law. g. Not applicable to International Law- Austin’s definition is not applicable to International Law. International Law is a law between sovereigns. According to Austin, International Law is simply Positive Morality. h. Not applicable to Constitutional Law- Constitutional Law defines powers of the various organs of the state. Thus, nobody can command himself. Therefore, it is not applicable. i. Not applicable to Hindu Law or Mohameddan Law or Cannon Law- It has its origin in religion, customs and traditions. His definition strictly excludes religion. Therefore, it is not applicable. j. Disregard of Ethical elements- The moment law is devoid of ethics, the law loses it colour and essence. Austin’s theory is silent about the special relationship of Justice and Law because justice is the end of law. Salmond says any definition of law which is without reference to justice is imperfect in nature. He further says Law is not right alone, it is not might alone, it a perfect union of the two and Law is justice speaking to men by the voice of the state. According to Salmond, whatever Austin has talked about is ‘a law’ and not ‘the law’. By calling ‘the law’ we talk about justice, social welfare and law in the abstract sense. Austin’s definition lacks this abstract sense. A perfect definition should include both ‘a law’ and ‘the law’. k. Purpose of law ignored- Law is formulated for social welfare. If we devoid law of ethics, the social welfare part is lost. This part has been ignored by Austin.

11. Merit of Austin’s Definition- Austin has given a clear and simple definition of law because he has excluded ethics from law. He has given a paramount truth that law is created and enforced by the state. 13.01.2011 Salmond’s Definition of Law Law may be defined as the body of principles recognized and applied by the state in the administration of justice. In other words, law consists of rules recognized and acted upon by the courts of justice. Law may arise out of popular practice and its legal character becomes patent when it is recognized and applied by a court in the administration of justice. Courts may misconstrue a statute or reject a custom; it is only the ruling of the court that has the binding force of law. Laws are laws because courts enforce them. He draws emphasis on administration of justice by the courts. The true test of law is enforceability in the courts of law. Salmond has defined law in the abstract sense. His definition brings out the ethical purpose of law. In his definition, law is an instrument of justice. Criticism by Vinogradoff Definition of law by reference to administration of justice inverts the logical order of ideas. The formulation of law is necessary precedent to the administration of justice. Law has to be formulated before it can be applied by a court of justice. The definition given by Salmond is defective because he thinks law is logically subsequent to administration of justice. A rule of law because court of justice could apply and enforce it while deciding cases, vitiates the definition of law. Nature of Law 1. Sanction- It is derived from Roman law term ‘sanctio’, it is that part of the statute that established the penalty or other provisions for its enforcement. Sanction is also the motivating force for the purpose of better performance and execution of law. Reward is also a type of sanction which will enable you to do or not do something. a. Salmond says that sanction is the instrument of coercion by which any system of imperative law is enforced.

b. He further says that physical force is the sanction applied in the administration of justice. Censure ridicule and contempt are the sanctions by which the society enforces the rule of positive morality. c. Also war is the ultimate sanction for maintaining the laws of nations. d. Jurists like Hobbes, Locke and Bentham have included Reward as part of the sanction. It is reward that motivates a person to do or not to do something, thus it is sanction. 2. Territorial Nature of Law- The enforcement of law is territorial in the same way as the state is territorial. The territoriality nature of law flows from political divisions of the world and as a general rule, no state allows another state to exercise powers within its domain. Therefore, enforcement of law is confined to the territorial boundaries of the state of enforcing it. The proposition that a system of law belongs to a defined territory means that it applies to all persons, acts and things within that territory. Mubarak Ali Ahmad v. State of Bombay- AIR 1957 SC 857- Admiralty Jurisdiction. 3. Purpose and function of law- Society is not static. Therefore, laws made for the people are also not static. Thus, purpose and function of law cannot remain static. There is no unanimity in theories as to purpose and function of law. We study purpose and function in context of advantages and disadvantages. a. Advantages of lawi. Fixed principles of law1. They provide uniformity and certainty of administration of justice. 2. Law is no respecter of personality and therefore we say that law is certain. 3. It avoids the dangers of arbitrary, biased and dishonest decisions because law is certain and it is known. It is not enough that justice should be done but it is also important that it is seen to be done. 4. It protects the administration of justice from the errors of individual judgments. Individual whims and fancies are not reflected in the judgment of the court or rule of law. ii. Legislature represents the wisdom of the people and therefore it is much safer because it is the decision of the particular individual is not much reliable. b. Disadvantages of lawi. Rigidity of Law- An ideal legal system keeps on changing according to the changing needs of the people. Therefore, law must adjust to the needs of the people and it cannot isolate itself from them. However, in

practice, law is not usually changed to adjust itself to the needs of the people. Therefore, the lack of flexibility resolves in hardship in several cases. ii. Conservative nature of law- Both lawyers and judges favour in continuation of the existing laws and the reason is that very often laws become static and they do not respond to the progressive society because of the conservative nature. iii. Formalism of law- Most of the times we look into the technical operation of law and not the merits of the case. It creates delay in the justice delivery system. There is injustice in certain cases. iv. Complexity of law- It causes difficulty in Interpretation of Statutes. c. Therefore, advantages of law are many but disadvantages are too muchSalmond. 4. Question of Law and Fact a. Question of Law- Important for any question that comes before the court of justice. It is very difficult to determine because there cannot be one single meaning. It is ambiguous and it has different point of views. i. Salmond has defined Question of Law from three distinct senses. 1. It means a question of law which the court is bound to answer in accordance with the rule of law which has already been authoritatively answered by the court. All other questions are questions of fact. Therefore, every question which has not been determined before and authoritatively answered by law is a question of fact. 2. A question of law is a question as to what the law is. An appeal in a question of law means an appeal in which the question for decision is what the true rule of law is in a certain manner. Question of law in this sense arise out of the uncertainty of law. If the whole law could be definitely ascertained, there would be no question of law in this sense. Therefore, when a question of fact arises in a court of justice as to the true meaning of an ambiguous statutory provision, the question is one of law. An authoritative answer to the question becomes a judicial precedent which is law for all other cases in which the same statutory provision is in question. Therefore, the judicial interpretation

of

a

statute

represents

a

progressive

transformation of the various questions of fact as to the

meaning of that statute into questions of law to be answered in conformity with the decided cases. 3. The term question of law is used in the general sense that questions of law are for judges and questions of fact are for the jury to decide. In cases we do find, judges interpreting a document, and then the judge is looking into the question of fact which is supposedly to be done by jury. b. Salmond has defined Question of fact as well. 1. The term question of fact has more than one meaning. In the general sense it includes all questions which are not questions of law, therefore, everything is a matter of fact which is not a matter of law. According to Salmond, a question of fact means either a question which is not predetermined by a rule of law or any question except the question as to what the law is or any question which is to be answered by the jury. 2. Therefore, in the narrower sense, a question of fact is opposed to judicial discretion which includes questions as to what is right, just, equitable or reasonable. Therefore, evidence can be laid to prove or disapprove a question of fact. 5. Distinction between Question of fact and discretiona. Questions of fact are questions as to what actually the fact is. When we talk about discretion, the question of right comes in or what ought to be. b. In question of fact, the court tries to find out the truth, but in a question of discretion, the court decides what is just. c. Therefore, we find that, question of fact has to be proved by evidence and demonstration but question of discretion is subject to reasoning and argument. 6. Mixed question of law and fact- The court has to decide at the same time on question of law as well as fact. Earlier, we saw that there was gradual transformation of question of fact into law. 7. Transformation of Question of fact into law- The very existence of a legal system shows that transformation of question of fact into law. With more and more identical decisions on identical facts, we find that in cases which have identical facts, the discretion of judge disappears and the judge is bound to give decision on precedent on that subject. Question of fact and question of discretion transform into question of law. 8. Discordance between law and fact- Salmond says that “the law is the theory of things as received and acted upon within the courts of justice and this theory may or may not

conform to the reality of things outside. The eye of law does not infallibly see things as they are.” a. Establishment of Legal Presumptions- Legal Presumption is a rule by which courts and judges draw a particular inference from particular facts or from particular evidence unless and until the truth of that inference is disproved. Therefore, one fact is recognized by law as sufficient proof of another fact whether it is in truth sufficient for the purpose or not. i. Presumption of Law1. Conclusive (Presumptio Juris Et Dejure) - One which constrains the courts to infer the existence of one fact from the existence of another even though that inference could be proved to be false. Law prohibits leading evidence to the contrary. 2. Rebuttal- It is one where the law requires the court to draw an inference even though there is no sufficient evidence to support it. However, if sufficient evidence is given to contradict a rebuttal presumption drawn by the court, the latter is bound to reject it. ii. Presumption of Fact b. Device of Legal Fiction- Salmond says that “fiction is a device by which law deliberately departs from the truth of things whether there is any sufficient reason for the same or not.” Kinds of Law Salmond’s division 1. Imperative Law- Imperative Law means a rule by which a general course of action is imposed by some authority which enforces it by superior power either by physical force or by any other form of compulsion. This theory is similar to John Austin’. 2. Physical or Scientific Law- Physical Laws or the scientific laws are the laws of science and these are the expressions of the uniformities of nature, general principles expressing the regularity and harmony observable in the activities and operations of the universe. There is uniformity and regularity in those laws. They are not creation of men and cannot be changed by men. Human laws can change

from time to time, country to country but physical laws are invariable and immutable forever. 3. Natural Law or Moral Law- It means the principles of natural right and wrong and the principle of natural justice if we use the term justice in the widest sense to include to all forms of rightful action. Natural Law is also called Divine Law or Law of Reason or The Universal Law and Eternal Law. This law is a command of the god imposed on men. It is established by reason by which is the world is governed, it is unwritten law and it has existed from the beginning of the world and hence called eternal. This law is also called natural law as its principles are supposed to be laid down by god for the guidance of man. It is called rational thought because it is based on reason. Natural Law is unwritten as we do not find it in any type of code. Therefore, Natural law exists only in ideal state and differs from law of a state. Thus, philosophy of Natural law has inspired legislation and the use of reason in formulating a system of law. 4. Conventional Law- Any rule or system of rules agreed upon by persons for the regulation of their conduct towards each other. It is a form of special law. It is a law for the parties who subscribe to it. 5. Customary Law- Any rule of action which is actually observed by men, any rule which is the expression of some actual uniformity of some voluntary action. A custom may be voluntary and still is a law and therefore, it is an important source of law. 6. Practical Law- Practical or technical law consists of rules for the attainment of certain ends. These rules guide us as to what we ought to do in order to attain a certain end. E.g. Law of Health, Law of Architecture. 7. International Law- It consists of rules acknowledged by the general body of civilized independent states to be binding upon them in their mutual relations. It consists of rules which govern sovereign states in their relations and conduct towards each other. 8. Civil Law- It is the law of the state or the land, the law of the lawyer and the law of the court. Civil law is the Positive Law of the land or the law as it exists . Like any other law, it is uniform and that uniformity is established by Judicial Precedents. Civil law has an imperative character and has legal sanction behind it. It is also territorial in nature. It is not universal but general. Present Day Classification of Law 9. Laws of Nations

a. Public Law i. Constitutional Law ii. Administrative Law iii. Criminal Law b. Private Law- Diverse opinions i. Laws of Persons ii. Laws of Property 1. Law of Contract 2. Quasi Contract 3. Law of Torts iii. Laws of Obligations iv. Conflict of Laws 10. International Law a. Public International Law b. Private International Law 24.01.2011 Module II- Administration of Justice A. Importance of Justicea. Salmond- Definition of law itself reflects that administration of justice has to be done by the state on the basis of rules and principles recognized. b. Roscoe Pound- It is the court who has to administer justice in a state. Both Roscoe Pound and Salmond. Roscoe Pound stresses more on courts whereas Salmond stresses more on the State. B. Administration of Justice- Function of State a. War b. Administration of Justice If a state is not capable of performing these functions, it is not a state. Salmond said that the administration of Justice implies maintenance of rights within a political community by means of the physical force of the state. However orderly society may be, the element of force is always present and operative. It becomes latent but it still exists. In a society, social sanction is an effective instrument only if it is associated with and supplemented by concentrated and irresistible force of the community. Social Sanction cannot be a substitute for the physical force of the state. c. Origin and Growth of Justice in a society i. It is the social nature of men that he wants to live in a community. It demands that he lives in a society. This leads to conflict of interests

and gave rise to administration of justice. This is the history and growth of administration of justice. ii. In the next phase, the state was trying to come into force. The so called state was not strong enough to regulate crime and to give punishment to criminals. There was law of private vengeance and self-help. iii. State comes into existence. With the growth and power of the state, it began to act like a judge to assess liability and impose penalty. Public Enquiry and punishment came into picture. iv. The modern administration of justice is a natural corollary to the growth in power of the political state. C. Advantages and Disadvantages of Legal Justice a. Advantages of Legal Justice i. Uniformity and Certainty- There is no scope of arbitrary action and even the judges have to decisions according to the declared law of the country. As law is certain, people can shape their conduct accordingly. ii. Law is not for the convenience for the special class. Judges have to act accordingly. It is through this that impartiality is secured in administration of justice. Coke says that the wisdom is law is wiser than any man’s wisdom. Justice represents wisdom of the community. b. Disadvantages of Legal Justice i. It is rigid. Society changes more rapidly than legal justice. ii. Technicalities and Formalities iii. It is complex. Our society is complex. To meet the needs of the society we need complex laws. iv. Salmond says Law is without doubt a remedy for greater evils yet it brings with it evils of its own. D. Public Justice- Classification of Justice. It can be divided into two parts a. Private Justice- It is distinguished as being justice between individuals. Private Justice is a relation between individuals. It is an end for which the court exists. Private persons are not allowed to take the law in their own hands. It reflects the ethical justice which should be there between individuals. b. Public Justice- It is administered by the state through its own tribunals. It is a relation between the courts and individual on other. Public Justice is the means by which courts fulfil that end of Private Justice. E. Concept of Justice According to Law- What the court renders to the people in the form of justice, it is not actually in the so called sense. We cannot call it justice because justice rendered is always according to law. The reason is judges are not legislators, they are the interpreters. It is not the duty of the judge to correct the defects in law. The only function of them is to administer the law of the country and

therefore, in the modern state, the administration of justice according to law is commonly taken to imply recognition of fixed rules. F. Civil and Criminal Justice- This follows from Public Justice and Private Justice. Looking from a practical standpoint, important distinctions are in the legal consequences. Civil Justice is administered by a particular set of courts whereas Criminal Justice is administered by a different set of Courts. If successful, civil proceedings result in a judgment for damages or injunction or restitution or specific decree or other reliefs which are known as civil. If successful result in a number of punishment which may range from hanging to fine or release on probation. Therefore, he says that the basic objective of criminal proceeding is punishment and the usual goal of civil proceeding is not punitive. G. Theories of Punishment a. Deterrent Theory- Salmond says that deterrent aspect of punishment is very important. Object of punishment is not only to prevent the wrongdoer second time but also to make him an example to other persons who have criminal tendencies. The aim of this theory is not revenge but terror and as per this theory an exemplary punishment should be given to the criminal so that others may take lesson from him. Even in Manusmriti, this theory is mentioned. He said “Penalty keeps the people under control, penalty protects them, and penalty remains awake when people are asleep, so the wise have regarded punishment as the source of righteousness. Critics say that it is not effective in checking crime. b. Preventive Theory- The object of punishment is preventing or disabling and it disables a person from committing a crime in future. Deterrent theory aims at giving a warning to society at large whereas in Preventive Theory, the main is to disable the wrongdoer from repeating of the activity, his physical power to commit crime is disabled in this theory. c. Reformative Theory- Punishment should be to reform to criminal even if the offender commits a crime, he does not cease to be a human being, he may have committed under circumstances which might never occur again. The object of punishment should be to bring about the moral reform of the offender. Therefore, under this theory, there are certain guidelines given: i. While awarding punishment, the judge should study the characteristics and the age of the offender, his early breeding, the circumstances under which he has committed the offence and the object with which he has committed the offence.

ii. The object of this exercise by the judge is to acquaint him with the exact nature of the circumstances so that he may give a punishment which suits the circumstances. iii. Advocates say that by sympathetic, tactful and loving treatment of the offenders, a revolutionary change may be brought about in their characters. Critics say that Reformative Theory is alone not sufficient, there should be compromise between the Deterrent Theory and the Reformative Theory. The Deterrent Theory must have the last word. iv. Distinction 1. It stands for the reformation of the convict but the Deterrent Theory wants to give exemplary punishment so that the others are deterred from following the course. 2. In Deterrent Theory, the criminal is not reformed whereas in the Reformative Theory, it will want to punish the criminal as little as possible. Under Reformative Theory, it is said that if we inflict harsh punishment on criminals, there will be no scope for reform. 3. It is said that the fundamental principle of Deterrent Theory, punishment should be determined by the character of the crime and too much emphasis is on the crime and not on the criminal. In Reformative Theory, the circumstances under which the offence was committed must be taken into consideration and every effort should be made to give a chance to the criminal to improve himself in future. d. Retributive Theory- In primitive society, the punishment was mainly retributive and the person wronged was allowed to have his revenge against the wrongdoer. The principle was “an eye for an eye”. This principle was recognized and followed. Another view of retributive theory is that it is an end in itself, apart from a gain to the society and the victim, the criminal should meet his reward in equivalent suffering. ( blood money in Islamic law) e. Theory of Compensation- Punishment should not be only to prevent further crime but it should also exist to compensate the victim. Critics point out that this theory is not effective in checking crime. The purpose behind committing a crime is not always economic. Imposing fine will not lower down the crime though it might prove to be beneficial to the victim. Under this

theory, the compensation is paid to the persons who have suffered from the wrongdoing of the government. H. Kinds of Punishmenta. Capital Punishment- This punishment is available right from the primitive ages and it was one of the most important punishments since ages. Even our IPC prescribes for it. But several countries have abolished capital punishment and this ideology has affected the Indian Judiciary while considering Capital Punishment. A laxity has come in the minds of judges while awarding this punishment. In Raghubeer Singh v. State of Haryana, Supreme Court accepted that the murder was treacherous but still Life Imprisonment was given. b. Deportation or Transportation- It was in practice under the British Era. It was considered as a punishment at that time. The criminal is put in a secluded place or in a different society. Critics say that the person will still cause trouble in the society where he is being deported. c. Corporeal Punishment- This punishment is abolished in our country but it exists in some Middle Eastern Countries. Critics say that it is inhuman and ineffective. d. Imprisonment- It serves the purpose of three theories, Deterrent, Preventive and Reformative. i. Under Deterrent Theory, it sets an example. ii. It disables the offender thus serving the purpose of Preventive Theory iii. If the government in reforming the prisoner, thus serving the purpose of Reformative Theory. iv. There are certain disadvantages. 1. Short Term- It is disadvantageous. 2. Long Term e. Solitary Confinement- It is an aggravated kind of punishment. It is said that it exploits fully the sociable nature of men. Critics say that it is inhuman. f. Indeterminate Sentence- The accused is not sentenced for any fixed period. The period is left indeterminate while awarding and when the accused shows improvement, the sentence may be terminated. It is reformative in nature. I. Civil Justice Module IIIAnalytical Positivist School- Sources of Law Austin says that the term source of law has three different meanings.

1. The term refers to immediate or direct author of the law which means the sovereign in the country. 2. The term refers to the historical document from which the body of law can be known. 3. The term refers to the causes which have brought into existence the rules which later on acquire the force of law and here he says for example, the customs, judicial decision, equity etc. Historical Jurists- Savigny, Henrye Maine, Puchta- Law is not made but it is formed. The foundation of law lies in the common consciousness of the people which manifests itself in the practices usages and customs of the people. Therefore, customs and usages are the sources of law. Sociological Jurists- They protest against the orthodox conception of law according to which law emanates from a single authority in the state. Law is taken from many sources and not from one. Ehlrich- He says that at the present as well as any other time the centre of gravity of legal development lies not in legislation, not in science nor in judicial decisions but in society itself. Duguit- Law is not derived from any single source and the basis of law is public service. There need not be any specific authority in a society which has the power of making laws. Salmond on Source of LawSalmond has done a classification of sources 1. Formal Sources- It is as that from which rule of law derives its force and validity. The formal source of law was the will of the state as manifested in statutes or decisions of the court and the authority of law proceeds from that. 2. Material Sources- They are those from which is derived the matter though not the validity of law and the matter of law may be drawn from all kind of material sources. a. Historical Sources- In this rules are subsequently turned into legal principles, were first to be found in an Unauthoritative form. They are not allowed by the law courts as of right. They operate mediatory and indirectly. i. Unauthoritative Writings b. Legal Sources- They are sources which are the instruments or organs of the state by which legal rules are created for e.g. legislation and custom. They are

authoritative and are followed by the courts as of right. They are the gates through which new principles find admittance into the realm of law. i. Legislations ii. Precedent iii. Customary Law iv. Conventional Law- Treatise (CK Allen) Allen says that Salmond has attached insignificant attention to historical sources which demands more attention. Keeton says that state is the organization which enforces the law. Therefore, technically state cannot be considered as a source of law. According to Salmond, a statute is a legal source which must be recognized and writings of Bentham are without legal authority. Legal source of English Law- There are two sources of English Law 1. Enacted Law having its source in legislation- It consists of statutory law. Legislation is the act of making of law by formal and express declaration of new rules by some authority in the body politic which is recognized as adequate for that purpose. 2. Case Law having source in judicial precedence- It consists of common law which we find in law reports. Precedent is also making of law but by recognition and application of new rules by the courts in the administration of justice. Case laws are developed by the courts whereas enacted laws come into the courts ab extra. 3. Juristic Law- Professional opinion of experts or eminent jurists. These are also sources of law. Though, they are not much accepted. Source of Law: Are they source of right? It means some fact which legally constitutes a right. By source of law is meant some fact which is legally constitutive of right. It is the de facto antecedent of a legal right in the same way as the source of law is de facto antecedent of a legal principle. Legislation- Legis means law and latum means making. 1. Salmond- Legislation is that source of law which consists in the declaration of legal rules by a competent authority. 2. Gray- Legislation means the forma utterance of the legislative organs of the society.

3. Austin- There can be no law without a legislative act. Analytical Positivist- They say that typical law is a statute and legislation is the normal source of law making. The majority of exponents of this school do not approve that the courts also can formulate law. They do not admit the claim of custom as a source of law. Thus, they regard only legislation as source of law. Historical School of Thought- Legislation is the least creative of the sources of law. Legislative purpose of the legislation is to give better form and more effective the custom which is spontaneously developed by the people. They do not regard legislation as source of law. Legislation 1. Supreme Legislation- Superior Legislation which proceeds from the sovereign power of the state. It cannot be repealed, annulled or controlled by any other legislative authority. 2. Subordinate Legislation- It is that which proceeds from any authority other than the sovereign power and it is dependant for its continual existence and validity on some superior authority. Delegated Legislation- Function of the executive is to enforce the law. In case of Delegated Legislation, executive is framing the provisions of law. It is also known as executive legislation. It comes in the form of orders, by laws etc. Sub-Delegation is also a case in Indian Legal system. The power to make subordinate legislation is derived from existing enabling act. It is fundamental that the delegate on whom such power is conferred has to act within the limits of the enabling act. Its purpose is to supplant and not to supplement the law. Its main justification is that sometimes legislature does not foresee the difficulties that will come while enacting the law. Therefore, Delegated Legislation fills in those gaps which are not seen while formulation of the enabling act. Delegated Legislation gives flexibility to law and there is ample scope for adjustment in the light of experiences gained during the working of legislation. Controls over Delegated Legislation 1. Parliamentary Control 2. Parliamentary Supervision 3. Judicial Control- Indirect- Courts cannot annul subordinate enactments but they can declare them inapplicable in particular circumstances. Though, these rules are not

actually abrogated but they become dead letter because in future, no responsible authority will attempt to apply it. 4. Trustworthy Body of Persons- It can be ensured if power is trusted only to trustworthy persons 5. Public Opinion can be a good check on arbitrary exercise of Delegated Powers. It can be enlightened by antecedent publicity of the Delegated Laws. In matters of technical nature, opinion of experts must be taken, that will minimize the dangers of vague legislations. Advantages of Legislation 1. Abrogation- By exercising power to repeal, the legislature can abrogate any legislative measure or provision which is meaningless or ineffective in the changed circumstances. The ease with which the legislature can repeal a law is not the case in situation of courts because interference of litigants is necessary in such cases. 2. Division of function- Legislation is advantageous because of division of function. Legislature can make the law by gather all materials and relating it to the legislative measure. In this process, legislature takes opinion of public and experts. Thus, public opinion has its opinion in legislature. Judiciary cannot gather particular material regarding enforcement of particular principles. 3. Prospective Nature of Legislation- This is because they are made applicable to events which it is supposed to apply after the legislation is passed. Therefore, public can shape its conduct according to enacted legislation. Judgment Law is necessarily retrospective. The legality on the nature of act is pronounced after the act has been done. Bentham said “Do you know how they make it; just as man makes for his dog. When your dog does something, you want to break him off, you wait till he does it and beat him and this is how the judge makes law for men.” 4. Nature of assignment- Due to the nature of assignment, the legislators interact with all sections of people and thereby opportunities are available for them to know the failed necessities of time. The decisions of legislators are collective in nature but this is not so in case of Judgment Law. Sometimes, Judgment is also based on prejudice that makes it uncertain at times. 5. Form- Enacted Legislation is abstract proposition with necessary exceptions and explanations but Judgment Law is merged with details of facts of the case. When Judge gives Judgment, he makes elephantiasis of law. Legislation and Customary Law-

1. Legislation has its source in theory. Whereas customary law grows out of practice. 2. The existence of Legislation is essentially De Jure. Whereas existence of customary law is essentially De Facto. 3. Legislation is the latest development of Law making tendency. Whereas customary law is the oldest form of law. 4. Legislation is a mark of an advanced society and a mature legal system. Whereas customary law is a mark of primitive society and under-developed legal system. 5. Legislation expresses relationship between man and state. Whereas customary law expresses relationship between man and man. ( can be seen as “state” came after customary law according to the historical perscpective of legal systems) 6. Legislation is precise, complete and easily accessible but the same cannot be said about customary law because legislation is jus scriptum. 7. Legislation is the result of a deliberate positive process. But customary law is the outcome of necessity, utility and imitation. Advantage of Precedence Law over legislationDicey- The morality of courts is higher than the morality of the politicians. A judge is impartial. Therefore, he performs his work in an unbiased position. Salmond- Case law enjoys greater flexibility than statute law. Statute law suffers from the defect of rigidity. Courts are bound by the letter of law and are not allowed to ignore the law. In the case of precedent, analogical extension is allowed. It is true that legislation as an instrument of reform is necessary but it cannot be denied that precedent has its own importance as a constitutive element in the making of law although it cannot abrogate the law. Gray- Case law is not only superior to statute law but all law is judge made law. In truth all the law is judge made law, the shape in which a statute is imposed on the community as a guide for conduct is that statute as interpreted by the courts. The courts put life into the dead words of the statute. Coke- The function of a court is to interpret the statute which is a document having a form according to the intent of them that made it. Salmond- The expression will of the legislature represents short hand reference to the meaning of the words used in the legislature objectively determined with the guidance furnished by the accepted principles of interpretation.

It is the duty of the judiciary to dispower and to act upon the true intention of the legislature. Sensitia legis Maxwell on Interpretation1. Rule of Literal Construction- The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislations are used in their technical meaning if they have acquired one, otherwise in the ordinary meaning. Second is that the phrases and words are to be constructed according to the rules of the grammar. Therefore, it is very desirable in all cases to adhere to the words of the act of parliament giving to them that sense which is their natural import in order in which they are placed. Lastly, the length and detail of modern legislation has undoubtedly reinforced the claim of literal construction as the only safe rule. 2. Mischief Rule- When the true intention of the legislature cannot be determined by the language of the statute in question, it is open to the court to consider the historical underlying the statute. The court may consider the circumstances that led to the introduction of the bill, also to the circumstances in which it became the law. When judges are allowed to probe into the questions of policy in interpreting statutes, there is bound to be some uncertainty. It is maintained that the judges may look at the law before the Act and the mischief in the law which statute was interested to remedy. The act is to be construed in such a manner as to suppress the mischief and advance the remedy. This rule is known as Mischief Rule. Heydon’s Casea. What was the common law before making this act? b. What was the mischief and defect for which the common law did not provide? c. What remedy, the parliament has resolved and appointed to cure the disease? d. What is the true reason of the remedy and then, the office of all judges is always to make such construction as shall suppress the mischief and advance the remedy. e. Smith v. Hughes- Lord Justice Parker tried to find out mischief in Street Offences Act, 1959. Section 1 talked about offence for a prostitute to solicit customers on a street but it did not make it an offence to solicit customers from window. The purpose of the act was to clean the street, so it is immaterial from where the prostitute solicits the customer. 3. Golden Rule- It is a modified version of literal construction. Although it is useful to adhere to the literal rule of construction, yet if the ordinary meaning is at variance with the intention of the legislature, it is to be collected from the statute itself. If it leads to manifest absurdity or repugnance, the language may be varied to avoid such

inconvenience. Secondly, if the language is capable of more than one interpretation, one ought to discard the more natural meaning if it leads to an unreasonable result and adopt that interpretation which leads to a practicable and reasonable result. Therefore, court when faced with two possible constructions of legislative language, it is entitled to look at the result by adopting each of the alternatives in the quest for true intention of the parliament. 4. Construction uti regis magis valeat qua pareat- Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statutes purports to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion in the working of legal system. Therefore, in accordance with these principles, the courts should avoid interpretations which would leave any part of the provisions to be interpreted without effect. The courts will not narrow down the enactments but it may give a wide sense to the words in the statute. 5. Rule of Beneficial Construction- The construction of a statute must not so strain the words as to include cases plainly omitted from the natural meaning of the language. F v. C (Queen’s Bench Case). Therefore, Beneficial Construction is a way of relaxing the strict principles of interpretation and that is the reason why they are called beneficial construction. It is a way when the courts without supplying the omission when confronted with a choice between a wide meaning which carries out what appears to have been the object of the legislature more fully and narrow meaning which carries it out less fully or not or at all, the courts will often chose the former. 6. Restricted Construction- There are some objects which the legislature is presumed not to intend and a construction which would lead to any of them is therefore to be aborted. It is not infrequently necessary to limit the effects of the words in an enactment especially the general words and sometimes to depart from not only there primary meaning but also from the principles of grammatical construction. It is more beneficial or more reasonable to hold that the legislature expressed its intention in a slovenly manner that a meaning should be given to them which could not have been intended. 7. Construction to avoid collision with other provisions- If the two sections of the same statute are repugnant the known rule is that the last must prevail and one way in which repugnancy can be avoided is by regarding two apparently conflicting provisions as dealing with distinct matters or situations.

8. Generalia Specialibus Non Derogant- Where there are general words in a latter act capable of reasonable and sensible application without extending them to subjects especially dealt with by earlier legislations, the judges are not to hold that earlier or special legislation indirectly repealed, altered or derogated merely by the force of such general word without any indication of a particular intention to do so. 9. General Clauses Act, 1897- This is a consolidating and amending act. N.Chandra v. Mahendra Nath, AIR 1963 SC 1894- The main purpose of General Clauses Act is to avoid superfluous and repetition of language and to place in a single act, provisions as regards definitions of words and legal principles of interpretation which would otherwise have to be incorporated in many different acts and regulations. The definitions and the rules of interpretation contained in the General Clauses Act have to be read in every statute governed by it provided the statute does not contain anything repugnant to them in the subject or context or does not exhibit a different intention. Interpretative Process Gadaner- Hermeneutics- It is a constructive process of Interpretation. Constructive Process- Theories which are universally accepted in interpretative process. Negative Hermeretics Process- It starts from the assumption that very notion of universal valid interpretation is not tenable. Gadamer’s Approach- Statutory Interpretation involves creative policy making by judges and it is not just the courts figuring out the answers that was put in the statute by the enacting legislature. Basically, the interpreter is situated historically and the interpretation is a dynamic process. Every age has to understand the transmitted text in its own way. The real meaning of the text as it speaks to the interpreter does not depend on the contingencies of the author and to whom he originally wrote for. It certainly is not identical with them for it always partly determined also by the historical situation by the interpreter and hence, by the totality of the objective course of the history. The chief metaphor in his interpretation is fusion of horizons. He says every text contains assumptions and pre-understandings, a horizon which is quite different from the horizon of the latter interpreter because both horizons are alienated from one another. The interpreter can never completely recreate or understand the text’s horizon. Interpreter’s effort is to find a

common ground and the common ground is possible because the temporal gulf is filled with traditions and experiences that inform the current horizon and link it with the previous one. He gives certain suggestions. The text lacks manning until interpreted. One does not understand a text in the abstract without application of the text to a specific problem since, finding the meaning of a statute is not a mechanical operation. It often involves interpreter’s choice among several competing answers. Therefore, this creative supplementing of the law which is involved in interpretation is a task that is reserved for the judge. Dworkin also follows the line of Gadamer in Interpretative Process. Pragmatic Hermeretics- Legal Interpretation is interpretative in character and it is different from other types of interpretation. 1. Scientific Interpretation- This is generally done by the scientists to give meaning to the phenomenon they observe. 2. Conversational Interpretation- It is a process by which the readers and the listeners understand their communicative utterances and a standard view of this kind of interpretation holds that the listener or the reader understand by duplicating or substituting themselves with the propositional attitude of the author. This method is common in the literature. The most important character in interpretation is creative or constructive interpretation. This legal interpretation has 2 characters. 1. Legal Practice 2. Legal Concepts The need for creative interpretation arises when the community develops a complex interpretative attitude towards the rules; the interpretation is called for when a text or a practice is regarded as authoritative. The legal practice with regard to statute in a legal system is interpretative precisely because there are some values served by granting authority to the past political decisions that statute represents. He does not agree with certain jurists. According to many jurists, jurisprudence is not interpretative because there is no point in making practice of judges authoritative for legal theories. The general theories propounded by a legal philosopher forms a constructive interpretation because they try to show the legal practice as a whole in its best light to achieve

equilibrium between legal practices as they find it and the justification of that practice. Hence, according to Dworkin, no firm line divides Jurisprudence from adjudication or any other aspects of legal practice. There are three kinds of interpretation liable for interpretative practice. 1. The text that judges and others within a particular legal culture, obligated to interpret and obey. 2. The text created by judges within some particular legal culture which consists of judicial practices in construing statutes and constitutions. 3. The work of prior legal theories some of whom seek to describe the judges’ jurisprudence within some particular legal system and others who seek to do nonculture specific or general jurisprudence. Precedent as a Source of Law Judgment rendered by Supreme Court is binding on all the subordinate courts, High Courts and the tribunals within the territory of the country. In case of a judgment rendered by the High Court, it is binding in nature to the subordinate courts and the tribunals within its territory. In other territories, it only has persuasive value. Indo-Swiss Time Ltd. v. Umroo, AIR 1981 P&H 213 Full Bench- Where it is of matching authority, then the weight should be given on the basis of rational and logical reasoning and we should not bind ourselves to the mere fortituous circumstances of time and date. Union of India v. K.S. Subramanium- AIR 1976 SC 24351. Substantial and Compelling circumstances. 2. Error or baneful effect of decision on the general interest of the public. 3. Inconsistency of the decision with the Constitutional Philosophy and conflict between the benches of the court, the decision of the larger bench should be followed. What is the meaning of precedent as a source of law? Loose Sense- The precedence that are reported may be cited and probably be followed by the courts. This is was done till 19th Century.

After that, another meaning got momentum. Strict meaning said that precedence not only have great authority but must be followed in certain circumstances.( i guess this is in cases where res judicata applies. So precedent would necessariloy be followed ) Holdsworth- He supports the loose meaning. Goodheart- He supports the strict meaning. Declaratory Theory of Precedence- It is inapplicable to the principles of equity. Principles of equity has its origin in either custom or legislation. Declaratory theory says that the binding value is low since court simply declares on the basis of past historical values. Authoritative Precedent- Judges must follow whether they approve of it or not. Persuasive Precedent- Judges are under no obligation to follow but which they will take into consideration and to which they will attach such weight as it seems to them proper. Therefore, Authoritative Precedents are legal sources whereas Persuasive Precedents as historical sources. Disregarding a Precedent- Over ruling is a way by which we disregard a precedent. There are circumstances which destroys the binding force of the precedent. 1. Abrogated Decision- A decision when abrogated by a statutory rule. 2. Affirmation or reversal by a different ground- The judgment which was rendered by a lower court loses its relevance if such a judgment is passed by a higher court. 3. Ignorance of Statute- In such cases, the decision loses its binding value. 4. Inconsistency with earlier decisions of High Court 5. Precedent sub-silento or not fully argued 6. Decision of equally divided courts- Where there is neither a majority nor a minority judgment. 7. Erroneus Decision

What is Ratio Decindi- The previous case is binding as to its ratio decidendi but ratio

decidendi is a vague concept. Ratio decidendi is the binding part for the case at hand. Goodheart- He does not accept the classical view that ratio is the principle of law which links the essential determination of the case with the essential or material facts of it and the statement of the judge may or may not do that or may be formed too widely or too narrowly. It is the general ground upon which the decision is based- Supreme Court of India How to ascertain Ratio Decidendi Krishna Kumar v. Union of India- AIR 1990 SC 1782 The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law either statutory or judgment and minor premise consisting of the material facts of the case under immediate consideration. Therfore, we find that it is the ratio decidendi which is a binding precedent. Other material part is the Obiter Dictum. Process of Reasoning1. Major Premise 2. Minor Premise Union of India v. Maniklal Banerjee- AIR 2006 SC 2844- Only ratio decidendi is binding and has precedent value. State of Orissa v. Sudhanshu Shekhar Mishra- AIR 1968 SC 647- A decision is an authority for what it decides and not for what can logically be deduced from it. The only thing in a judge's decision binding a party is the principle upon which the case is decided. On our analysis, we have to isolate the ratio of the case. A decision contains: 1. Finding of Material Facts- Direct and inferential 2. Statement of the principle of law applicable to the legal problem disclosed by the facts.

3. Judgments based on the combined effects of the above two. Ratio Decidendi is a statement of law applied to the legal problems raised by the facts as found upon which the decision is based. Dalveer Singh v. State of Punjab- 1979 3 SCC 745- Though we are able to find out the ingredients from the decision. But later on, when there is a similar situation, it is very difficult for him to apply the ratio in that case because a rigorous division of facts has to be made which is not possible. It is correct that a decision on a question of sentence depending upon the facts and circumstances of a case can never be regarded as a binding precedent, much less 'law' declared under article 141 of Constitution of India so as to bind all law courts within the territory of India. Minerva Mills v. Union of India- AIR 1980 SC 1789- If a provision is uphold by the majority, the fact that the reasoning of some of the judges is different from the ratio of that case will not affect its validity. Fazlun B. v. Khadarwali- AIR 1980 SC 17301. Where the earlier decision is altogether unpalatable to the court in the latter case, the latter court may be persuaded to interpret it as narrowly as possible. 2. The limit of the process is reached when some judges in extreme and unusual case are apt to cease on almost any factual difference between the previous case and the case before them in order to arrive at a different decision and the precedent is an authority on its 'actual facts'. AR Anutulay v. RS Nayak- Order delivered without reference to relevant provision of the Constitution of India or without arguments or without an act or a citation of authority is per incurium. Amrit Das v. State of Bihar- AIR 2000 SC 2264- Decisions sub-silento have no binding value. Saeyada Mossarrari v. Hindustan Steel Limited, Bhilai Steel Plant- AIR 1989 SC 406Sometimes well considered Obiter Dicta are taken as precedent but every passing expression of a judge cannot be treated as an authority.

Swaran Singh Lamba v. Union of India- AIR 1995 SC 1729- Normally, even an Obiter Dicta is expected to be obeyed and followed. It is binding on the High Court but has only persuasive value for the Supreme Court. Three Tests- (Ratio Decidendi Test) 1. Wambaugh's Test- It is an imperative proposition of law without which case would have been decided otherwise. Inversion Test is in form of a dialogue between him and his student. He sits with him and gave him some orders. a. Frame carefully the supposed proposition of law and then insert in the proposition, a word reversing its meaning. b. Let him enquire if the court had conceived this new proposition to be good and had in its mind the decision would have been the same. c. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition. d. If the answer be negative, the case is an authority for the original proposition. e. In short, when a case turns only on one point, the proposition or the doctrine of the case, the reason of the case, the ratio decidendi must be a general rule without which the case must have been decided otherwise. f. Sankara Narayanan v. Director of Legal Studies, Madras Law Journal- Justice Ismail was in a law teacher in his initial days. Lecturers were removed without giving any opportunity of hearing. The service rules said that only permanent employees be given the opportunity of hearing. There was only one issue: i. Whether removal was legal or not. 1. Old teachers are more competent than the new teachers. 2. In case of removal, opportunity of hearing should be given. ii. Second proposition materially affects the decision, hence it is the ratio. g. Rupert Cross- When Wambaugh states that we must insert the proposition that has a reverse meaning from that of the supposed ratio, does he mean contrary or contradictory proposition? Rules of law are complex proposition and contain contrary principles. i. Is ratio decidendi a proposition without which a case could not logically have been decided as it was decided or is the one without which the case would not have been decided as it was decided. ii. How to apply Wambaugh’s Test when the decision contains more than one ratio decidendi? iii. In some cases, the court may consider some facts as immaterial for the decision which others may consider as material. 2. Halsbury’s Test- Quinn v. Liatham- 1901 Appeal Cases 495- After stressing that every judgment should be read in the lines of the facts of the case. Lord Halsbury says that a

case is only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it. Tamillarasan’s CaseMadras Law Journal- 1991 Case. 3. Goodheart’s Test-Ratio Decindi is found out by ascertaining the facts treated as material by the judge. The court is bound by the earlier decision must come to a similar conclusion unless there is a further fact in the case that is considered by the latter court as material or unless some fact treated as material is absent. He uses the term “principles of law” in his essay called “Determining the Ratio Decidendi Case”. He discusses six points on how to find out Ratio: a. The principle of a case is not found out in the reasoning given in the opinion. The reason given by the judge for his decision never constitutes as the binding part of the judgment. b. The principle is not found in the rule of law set forth in the opinion. For it is not the rule of law set forth by the court or the rule enunciated as Halsbury puts it which necessary constitutes as principles of the case. There may be no rule of law set forth in the opinion or the rule of law stated may be too wide or too narrow. In the appellate courts, the rules of law set forth by the different judges may have no relation to each other, nevertheless, each of these cases contain a principle which can be discovered on proper analysis. c. Judges Opinion need not be consulted in order to find the principle of law for which the case is an authority. The realist perception of the society held that it is not the judge’s opinion but the way they decide cases which should be dominant subject matter of truly scientific study of law. d. The principle of case is found by taking into account: i. The facts treated of the case by the judge as material ii. His decision based on them. iii. It follows that our task in analysing a case is not to state the facts and the conclusion but to state the material facts as seen by the judge and his conclusion based on them. It is by his choice of the material facts the judge creates the law. e. First is to find out all the necessary facts as seen by the judge. Secondly, to discover which of those facts were treated by the judge as material? f. The judge never expresses his view about what facts are considered by him as material and what facts are immaterial. We should apply various tests to determine which is material and immaterial. g. The conclusion based on hypothetical facts is dictum. A Ratio Decidendi cannot be based on assumed fact. Rupert Cross says that in cases even dictum

should be considered in finding out the ratio. Custom as a Source of Law Salmond says that Custom is the embodiment of those principles which have commended themselves to the national conscience as the principles of justice and public utility. Keeton says that Customary laws are those rules of human action established by usage and regarded as legally binding by those to whom the rules are applicable which are adopted by the courts and applied as a source of law because they are generally followed by the political society as a whole or by some part of it. Austin- Custom is not a source of law. Roscoe Pound- Customary Law 1. Law formulated through Custom of popular action. 2. Law formulated through judicial decision. 3. Law formulated by doctrinal writings and scientific discussions of legal principles. Historical School of Jurisprudence- Von Savigny says that Customary law which bought its content from habits of Judicial Decision or from traditional modes of juristic thinking expressing jural ideas of the people of conviction of rights, of its ideas or rights and rightful social control. The origin of custom of source of law- Greek historical School is the innovator of custom as source of law. Gierke- He held that every true human association becomes a real and living entity animated by its own individual soul. Henry Maine- He said custom is the only source of law. “Cusotm is a conception posterior to that of themestes or judgment.” Ingredients of a Custom1. 2. 3. 4. 5. 6.

Antiquity Continuous Peaceful Enjoyment Obligatory Force Certainty Consistency

7. Reasonableness

Module IV Legal Concepts Legal Right What is legal right as per the positivists? Savigny gives us some fundamental conceptions and distinctions 1. Legal Rights are essentially those interests which have been legally recognized and protected. These rights may also be interests which are ascertained and morally protected. These moral rights are protected by a moral duty. A legal rights stands on a different footing from a moral right. Salmond says legal right is an interest recognized and protected by rule of law. An interest violation of which would be a legal wrong. A legal duty is an act which obliges: a. To do something and act, the opposite of which would be a legal wrong b. Whenever law ascribes duty to a person, there is a corresponding right against whom the duty is imposed. c. Moral Duty and Legal Duty. d. Rights are said to be benefits secured for persons by rules regulating relationships. e. Salmond says there can be no right without a corresponding duty. Every right or duty involves a bond of legal obligation by which two or more persons are bound together. There can therefore be no duty unless there is someone to whom it is due. There can be no right unless there is someone from whom it is claimed and there can be no wrong unless there is someone who is wronged, that is to say, whose right has been violated. Viniculum Juris. 2. Duty can be of two types a. Relative Duty- There is a corresponding right in these duties. b. Absolute Duty- There is no corresponding right. c. The conceive duty to be of the essence of a right that it should be vested in some determinate person and be enforceable by some form of legal process instituted by him. 3. Legal Right- Five Characteristics of Legal Right a. It is vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled or the person of inherence.

b. It avails against a person upon who lays a correlative duty. He may be distinguished as the person bound or as the subject of the duty or as the person of incidence. c. A person bound to an act or omission in favour of the person entitled. This may be termed as the content of the right. d. The act or omission relates to something which may be termed as the object or subject matter of the right. e. Every legal right has a title, that is to say, certain facts or events by reason of which the right becomes vested in its owner. 4. Every right involves a threefold relation in which the owner of it stands: a. It is a right against some person or persons. b. It is a right to some act or omission of such person or person. c. It is a right over to something to which the act or omission relates. Legal rights in a wider sense- A right may not necessarily have a correlative duty. A right may be defined as an advantage or benefit conferred upon a person by a rule of law. These legal rights are known as legal concepts and these legal concepts have their correlatives. Right- Duty

Liberty- No right

Power- Liability

Immunity- Disability

Roscoe Pound gives an analysis of legal concepts. These rights are essentially interests recognized and administered by law and belong to the science of law rather than to law and are a complete idea. It may mean the legally recognized and delimited human demands or some conceptions by which recognized interests are given form in order to be secured as legal order. Hohfield’s Analysis of Legal Right1. Jural Opposites a. Right- No right b. Privilege- Duty c. Power- Disability d. Immunity- Liability 2. Jural Correlatives a. Right- Duty b. Privilege- No right c. Power- Liability d. Immunity- Disability 3. Vertical lines represents jural correlatives and is the presence of in another. Thus, right is the presence of duty in another and liability is the presence of power in another.

4. Diagonals connect Jural contradictions and may be read either ways as is the absence of in oneself. Thus, no right is the absence of right in oneself and disability is the absence of power in oneself. 5. Horizontal lines connect contradictories of correlatives and may be read as is the absence of in another. Thus, liberty (not) is the absence of right in another and immunity is the absence of power in another. 6. They are applicable in general law and applicable in particular transactions. a. It is improper to speak of a right inhering in A towards B unless it can always be said that B has a duty. b. It is improper to speak of A having a privilege vis-a-vis B unless it can be shown that B has no right to prevent its exercise. c. It is improper to speak of A as having a power against B unless is exercise of the power involves an imposition of liability on B. d. It is improper to speak of A as having immunity as against B unless it can be shown that B is under a disability in respect of a same subject matter that is has a no power to impose liability being the opposite of immunity. 7. Simplification a. As a person’s right is an expression of a wish or claim, that other person against whom the right or claim is expressed has a duty to obey his right or claim. b. A person’s freedom is an expression of a right or claim that he may do something against other person to change his legal position. c. A person’s power is an expression of claim or a right that he can alter other person’s legal position. d. A person’s inability is an expression of a wish that another person cannot alter the person’s legal position. Positive and Negative Rights Salmond- A perfect right is one which corresponds to a perfect duty and a perfect duty is one which is not merely recognized by law but also enforced by law. In a fully developed legal system, there are rights and duties which though recognized by law are not perfect in nature. The rights and duties are important but there is no action for its maintenance. It is a good ground for defence but it is not a good ground for action. There are some cases in which imperfect right is sufficient to enforce equity. A positive right corresponds to a corresponding duty and entitles its owners to have something done for him without the performance of which his enjoyment of the right is imperfect. Negative rights have negative duties corresponding to them and enjoyment is

complete unless interference takes place. Therefore, majority of negative rights are against the entire world. Negative rights correspond to negative duty of all others, not to interfere. In the case of positive rights, the person subject to the duty is bound to do something, whereas, in case of negative rights others are restrained to do something. Therefore, the satisfaction of a positive right results in the betterment of the position of the owner. Whereas in case of a negative right, the position of the owner is maintained as it is. In case of positive rights, the relation between subject and object is mediate and object( object being the end result for which the right exists itself) is attained with the help of others. Whereas in case of negative rights, the relation is immediate, there is no necessity of outside help. All that is required is that others should refrain from interfering case of negative rights. Whereas in case of positive rights, a duty is imposed on one or few individuals. In case of negative rights, the duty is imposed on a large number of persons. Real and Personal Right 

A real right corresponds to a duty imposed upon persons in general whereas a

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personal right corresponds to a duty imposed upon determinate individuals. Therefore, a real right is available against the whole world whereas a personal right is

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available against only the particular person. Real rights are more important than personal rights as they are available against the

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whole world. All real rights are negative and most personal rights are positive although in few exceptional cases, they are negative. Therefore, a real right is nothing more than a right to be left alone by others. It is merely a right to their passive non-interference. The only duties which could be expected from the whole world are of negative character. All legal rights are negative but it is not so in case of a personal right. There



are some cases where they are both personal and negative. It is to be observed that real rights are Right in Rem and personal rights are Right in Personam, real rights are generally negative rights, personal rights are generally positive rights. Right in rem and Right in personam

Every right is at the same time one in respect of something and against some person. So Every right involves not only a real but also a personal relation. Although the two exist

together, but they are not same. In real right, the relation is to a thing, in personal right, it is the relation to other persons who owe the duties which is important. Real rights are derived from some special relation to the object but personal rights are derived from special relation to the individual or individuals under the duty. A right in rem is available against the whole world but right in personam is available against a particular individual only. Proprietary and Personal Right It includes a person’s assets and his property in various forms. Proprietary Rights have some economic or monetary value. They are the elements of wealth for men, whereas personal rights are the elements of his well-being. Test for determining Proprietary Right- It is not whether there can be any alienation, whether it can be equivalent to some amount of money. Inheritable and Uninheritable Rights- A right is inheritable if it survives the owner. It is uninheritable if it dies with the owner.

Ownership Ownership denotes the relationship between a person and an object forming the subject matter of his ownership. It consists in a complex of rights, all of which rights in rem being good against the entire world and not merely against the specific persons. Incidence of Ownership 1. The owner will have the right to possess the things which he owns. 2. The owner normally has a right to use or enjoy the thing owned, the right to manage it, the right to decide how it shall be used and the right of income from it. Right to possess is not a right in the strict sense because in this case rights are in fact liberties. The owner has no duty to others and he can use it in any way he likes and nobody can interfere with the enjoyment of his ownership.

3. The owner has the right to consume, destroy or alienate the things. The right to consume and destroy are straight forward liberties. The right to alienate i.e. the right to transfer the rights involves the existence of power. 4. Ownership has the characteristic of indeterminate duration. The position of the owner differs from the non-owner in possession, in that the latter’s interest is subject to be determined out of some future set point whereas the interest of the owner can be there theoretically forever. 5. Ownership has a residuary character. Austin’s Concept of Ownership Ownership means a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration over a determinate thing. 2 Caveats 1. Not to use your property to injure your neighbour. 2. It is not lawful to build upon your land to the injury of others. Dias Ownership is needed to give effect to the idea of “mine” and “not mine or thine”. Ownership consists of claims but owner may be divested of all the claims to the extent that he is not left with any practical benefit of ownership. The way in which ownership arises differs in different legal systems. According to Salmond, the subject matter of ownership is the relationship between the thing and the owner. This thing may be a land or a chattel. Ownership can also include interests. Ownership may consists of incorporeal things as well which cannot be perceived by senses. Ownership 1. When the statute says that property will devolve after sometime. 2. A person may take or make a property and become the owner. 3. By natural circumstances, the person can also become the owner. Corporeal and Incorporeal Ownership Corporeal Ownership signifies ownership in a physical object whereas Incorporeal Ownership is a right or an interest. The distinction lies in the incorporeal or corporeal thing.

Corporeal things are things which can be perceived by senses whereas incorporeal things cannot be perceived by senses and are in tangible. Sole and Co-Ownership Sometimes there is more than one person who owns the property. When an individual owns, its sole ownership. Trust and Beneficial Ownership In trust, there is no co-ownership. Two persons- one for whom the trust is created, the beneficiary and one on whom the responsibility lies for the benefit of the others, the trustee. The trustee has no right to the beneficial enjoyment of the property. His ownership is limited. Therefore, the trustee is merely an agent upon whom law has conferred the duty of administration of property. Trust ownership and beneficial ownership are independent of each other in their destination and disposition. Trusteeship may change hands but the beneficial owners remain the same. Legal and Equitable Ownership Legal ownership is that ownership which has its ownership in common law but equitable ownership comes from equity divergent of common law. The distinction between legal and equitable ownership is very thin. Vested and Contingent Ownership Ownership is vested when the title is perfect whereas it is contingent when it is capable of being perfect after fulfilment of certain condition. Vested ownership is absolute whereas contingent ownership becomes vested when the conditions are fulfilled. Absolute and Limited Ownership Absolute- It designates when possession, enjoyment, disposal are complete and vested without restrictions save as restriction imposed by law. Limited- The ownership is subjected to the limitations of use, disposal or duration. Possession

Paton- Possession is a concept of law, but it lacks a uniform approach. However, possession has created various legal relations. Possession is the prima facie evidence of ownership. He who has a possession must show that he has a better title over the property. Possession is a root of title and all possession is regarded as just till it is shown to be otherwise. Salmond- Possession is the most basic relationship between men and things as men require basic necessities of food, clothing etc. and therefore, men has to possess them. He admits that this concept if difficult but at the same time it is not purely a legal concept. It is not independent of law. It varies from one system to another system. A person who may have a possession in fact may not have a possession in law. It may be legal and non-legal. Possession in fact and Possession in law Possession in fact denotes that something is in one’s control and by control he means that it may be direct or indirect control. Direct control means that one has custody of the thing whereas indirect control means that when the thing is lying somewhere and one has the power to retain or regain it, this amounts to indirect control. There can be variety of situations where Possession in fact depends on the intention as to possessor, how he wants to possess the things. Corpus Possessionis- This is comprised of both power to comprise things, to use possess and existence of grounds for the expectation of the possessor’s use will not be interfered with. Animus Possessiondi- It consists of an intention to appropriate it to oneself and to the exclusive use of thing possessed. Possession in law- It means that the possession has been given rights by law to keep the thing in possession without interference by others. Salmond says that this is a right in rem supported by right in personam against those who violate possessor’s right and also include right to recover compensation and also it includes, right of disposition. Law will protect possession against criminal and other sanctions. Merry v. Green- A purchases an almirah which has several drawers and sells it to B. B finds some jewels in a drawer. B wants to sell it to C. Is B guilty of theft?

B does not require legal possession until he discovers them. If he at this stage, decide to dishonestly misappropriate them, he is guilty of theft. Mediate and Immediate Possession Salmond writes that one person may possess a thing for on account of someone else. In such a case, the latter is in possession by the agency of him who holds the thing on his behalf. Thus, possession held by one man through another may be termed mediate. While, acquired or taken directly may be distinguished as immediate and direct. There are three types of mediate possession 1. That acquired through an agent or servant. 2. That held through a borrower or hirer or tenant where the thing can be demanded at will. 3. Where the chattel is lent out for a fixed or delivered as security for repayment of the debt. The possession acquired through an agent, it is through someone who solely owes on someone’s behalf an account of claim in the agent or servant. The possession where one’s superior right is exercised for obtaining from the other the direct possession, i.e. the cases of borrower and tenant at will. Where the immediate possession is in a person who claims it for himself, until sometime has lapsed or certain conditions have fulfilled but who acknowledges the title for another for whom he holds the thing and to whom he is prepared to hand over the possession when his own temporary claim has come to an end. Immediate possession is a possession valid against the whole world including the mediate possessor. According to Paton, this type of classification is not possible and not recognized by common law. But it may be true for civil law countries. It has created confusion as to what is mediate and what is immediate. This classification is too facile a differentiation. Paton Propositions

a. Possession of a chattel is not required when mere physical control is taken; it depends on the knowledge of the taker of the nature of the thing required. b. A possessor of land possesses everything attached to or under the land and things lying loose on the land are not in the possession of the land owner but fall into the possession of the first finder if he is lawfully on the land. c. The owner or possessor of the shop is not in possession of chattel on the floor of his shop until he knows of their presence there. d. The owner of the house, who may well have been in the possession of the house for purpose of taking action against trespasser, may not be in the possession of the chattel found on the premises if he has never physically occupied the house. e. The owner or the possessor of the land may not be in the possession of chattels in the land even though he owes those chattels, another person not on the land may be in possession of them. f. The finder of the lost chattel obtains possession of it and hence, title to it against those to have no claims prior to his. g. A finds a chattel, he finds in the course of employment, does not obtain possession of it. h. As between two or more person, who is in apparent physical control and enjoyment of the use of chattel, the owner of the chattel is in the possession of them. i. To acquire possession of a thing, it is necessary to exercise such physical control as the thing is capable and it is evident with the intention to exclude others. Possession in Roman Law- If one could show he has good faith and good cause, he could acquire ownership. 1. Possessio Naturalis 2. Possessio Civilis Savigny- False Text- Possession 1. Corpus Possessionis- Physical 2. Animus Domini- Intention with which such control is exercised. Intention to hold or possess a thing is a requirement. But concept of intention may not be in some cases. Jenning- Adopted a more objective theory.

A man possesses who is in relation to a thing in the position in which the owner of such things ordinarily animus being merely an intelligent consciousness of the fact. Persons who hold the property will be the owners in majority of the cases. Whenever a person is looked from the point of being the owner, the possession in law belongs to such a person. Jenning’s theory is an improvement of Savigny’s theory. J.L. Williams Criticism- Possession once acquired may continue even though animus or corpus or both are lost. Therefore, these things are irrelevant. Holmes Theory- A man must stand in certain physical relation to the object and to the rest of the world and must hav certain intent. And intent must be searched in cases of possession. This theory is criticized by Dias. He says this idea is a mere generalization and not clear whether physical control should run concurrently. Pollock’s Theory- His test of De Facto Possession- Physical Control with intent is possession. Persoanality Grey- Ethical Natural law philosophers of the 17 th and 18th centuries as well as the metaphysical theories of 19th century postulated the concept of will as an essential requirement for exercising legal right and hence personality is the subjective possibility of a rightful will. Legal personality is an artificial creation of law and entities recognized by law are capable of being parties to a legal relationship. A natural person is a human being whereas legal persons are beings that are imaginary who are treated in similar or lesser degrees. A legal person is any subject matter except a human being. All of them can sue and can be sued. Theories of Juristic Personality 1. Fictional Theory- Savigny and Salmond- When the law grants legal personality to an entity that has no mind and no will, in short no legal personality, it is the work of a fiction to which we attribute personality to non-living objects. Legal capacity is considered as extended to artificial subjects admitted by means of pure fiction. Grey supports this theory by saying that it is only human beings who are capable of thinking, therefore it is by way of fiction we attribute will capable of thinking to non-

human beings and assign them personality. Wolf says that there are three advantages of this theory. It is analytical, more elastic and it makes easier to disregard juristic personality where it is desirable. 2. Concession Theory- It assumes that associations are artificial creations of the state i.e. law. According to this theory, law is the only source from which legal personality may flow. It is something by way of a privilege ascribed to a group and is nearer to fiction theories in concerning personality. Law decides what shall be regarded as juristic entity. 3. Group Personality or Realist Sociological Theory- Gierke- He says that a group has a real mind and it has a real will and it has a real power of action. The realist theories builds on the concept that groups or associations when recognized by law become a legal reality and also juristic personality. 4. Bracket Theory- Jerring- He contends that the member of an incorporated association is bearers of rights whereas juristic persons are a symbol of giving effect to the purpose of the group. Juristic person is a special form where members manifest their relations of rights and law with outside world. 5. Hoffield’s Theory- He says that juristic persons are creation of arbitrary rules of procedure. As human beings alone are capable of having rights and duties, any group to which the law ascribes juristic personality is merely a procedure for working out the legal rights and jural relations and making them as human beings. 6. Kelsen’s Theory of Legal Personality- There is no difference between legal personality of a company and that of an individual. Personality in the legal sense is only a technical personification of a complex of norms and assigning complexes of rights and duties.

Module V 12-14th Century-Middle Ages Political Social and Economic Affairs of the state- Four strands of thought 1. The political society and the state were considered to be moral epitomes of justice. 2. The rule of law was interpreted as the highest principle of society binding rulers and rule alike.

3. The authoritative interpretation of Supreme law which to a great extent was jettisoned within the spiritual authorities, the charge and the emperor depending upon the political development. 4. The social and legal authority within the civil society, the principle that law and government derive their existence from the people. Summa Theologica- Law into three types1. Eternal Law- These are laws governing whole of the community of the universe that is divine reason. 2. Natural Law- Law derived from eternal law from those who have divine reason of deriving natural law from eternal law. An imperfect reflection of the dictate of the divine reasons but it enables man to know some of the principles of eternal law. 3. Human Law- As human reason has to proceed from the precepts of natural law as thought from certain common and undemonstratable principles to other more particular dispositions arrived at by an effort of reason are called Human laws provided other conditions necessary. Human Law1. Common Good- law must have achieved its proper object- the wellbeing of the community. 2. The achieving of common good, promulgation of law should be concern of the whole community whose duty is to take care of the common good. Law is a rational ordering of things which concerns with common good promulgated with whoever is charged with the care of the community. 3. All actions concerned with above precepts are natural law besides a man should avoid ignorance. The basic tenet of Thomasian doctrine (St.Thomas Acquinas) gave importance to human reason responsible for achieving peace and harmony in a given community and the world at large and obeys the positive law as it is just and reasonable. Friedman says that Saint Thomas system clearly upholds the supreme authority of the church, gives the state or rather the emperor, his due share and at the same time discourages civil revolution by opposing to injustice by opposing oppressive laws.

Saint Thomas’s analysis was much ahead of his time. His concept of justice was more revealing as he described it as a habit whereby a man renders to each one his due by a constant perpetual will. It consists of two parts- distributive justice and corrective justice. Natural Law after 14th Century- Nicholo Machiavelli- He did not support natural law. He was the one who glorified the omnipotence of state and subordination of all ethical principles in public life to the political state craft. He said that the nation should be ruled by one ruler. Jean Bodin- He supported Machiavelli by developing the doctrine of National Sovereignty which justified the absolutism of the state. In later parts, there was recognition of rights. All this lead to the concept of lassies-faire and also liberalism in politics. Natural law became synonymous with natural rights. Natural law had almost matured in developing the concepts of individual liberty, popular sovereignty and freedom of will of an individual. Hugo Grotius- Dutch Jurist- Father of International Law- Formulated the doctrine of social life of men as its unique characteristics for peace and tranquillity with fellowmen according to the measure of the intelligence with the intelligence of other fellow men with whom he has to live with. This unique characteristic is to be found in natural law because natural law is directly proportional to human intelligence. Natural Law is superior to all law as it is dictated by reason and any law which is not in conformity with rational nature is either irrational or immoral. He believed whole universe is regulated by the law of nature. He also developed the concept of “Pacta sunt Servanda”. He conceptualized the notion of a state as an association of the freemen joined together for the enjoyment of rights and for their common interest. This association is a result of a contract in which people have transferred their sovereign power to a ruler who has acquired it as his private power and whose actions under ordinary circumstances are not subject to legal control. However, the ruler is bound to observe the natural law and the law of nations. Grotius uses the construction of social contract for a twofold purpose, internally for the justification of the absolute duty of obedience of the people to the government, internationally to create a basis for legally binding and stable relations among the states. Grotius puts forward social contract as an actual fact in human history. The constitution of each state, Grotius thinks, had been precedent by a Social Contract by means of which each people had chosen the form of government which they consider most suitable for themselves.

Samuel Pufendorf- He based natural law on two sides of human nature while protecting personal property but not to disturb peace of the society. Christian Wool- German Jurist- He saw in the beauty of self-perfection, the principle or command of natural law. The condition of such perfection is provided by a benevolent sovereign who provides peace and security. According to him, natural law is a living force. Thomas Hobbes- He preferred positive laws more than natural laws. In many respects, he improved the social contract theory and made it an essential part of the system of extraordinary logical power. He has written two books. 1. De Civi- 1642 2. Leviathan He was convinced of the overwhelming importance of the state authority which he thought ought to vest in an absolute ruler. In theory, he acknowledged authority of natural law but he understood it in a different sense for those writers for whom natural law as an objective order to natural right as a subjective claim based on the nature of men and prepares the way for individualism in the nature of inalienable rights. It is necessary for men to enter into social contract so as to transfer all their powers and strength to one men or assembly of men to be constituted as leviathan or the mortal god. This god will provide peace and security. 1. Sovereign Power or sovereignty is absolute and not subject to any restraints including 2. 3. 4. 5.

legal restraints. Civil laws are the extension of sovereign’s will and natural laws are above civil laws. Under Social Contract, there is no distinction between just and unjust laws. The authors of laws are people who have yielded to sovereign to make laws for them. People should have right to hold and enjoy some property as it is important to achieve

peace. 6. The people cannot revolt against unjust or tyrannical laws of the sovereign. The tyrannical sovereign will be condemned in eternal death. Basically, he emphatically rejects contractual or quasi-contractual right by which subjects could demand the fulfilment of certain obligations by the ruler. His Social Contract is not true contract but a logical fiction. And according to him only condition attached to the absolute power of the ruler that he can govern and keep order. Hobbes naturally discourages civil disobedience but he clearly states in leviathan that where resistance is successful, the sovereign ceases to govern, the subjects are thrown back upon their original position and may now transfer their obedience to a new ruler.

Hobbes’s concept of sovereignty is entirely rational and utilitarian and it is purely the result of rational individual self-interest which supersedes the irrational and thus self-destructive lust for power as man pursues it in the state of nature. These rights were not recognized to be inalienable rights. The positive law was therefore reduced to the command of sovereign whereas the law of nature were moral commands which the ruler or the sovereign ought to follow. Thus, Hobbes laid down the first foundation for analytical positivism. John Locke- He was a theoretician of the rising middle class who was individualistic and acquisitive and avoided conflicts between ethics and profits. His ideas appealed to the generations in the following centuries. He resorted to the medieval concept of natural law in so far as he made it superior to positive law. He placed the individual in the centre and invested him with inalienable natural rights among which right to property was the most prominent. Locke used the Social Contract to justify the government by majority which held the power in trust with the duty to preserve individual rights whose protection was entrusted to them by the individuals. Locke is an opponent of Hobbes. Hobbes stood for authority whereas Locke stood for liberty. So the contribution of Locke to the concept of natural law is twofold. 1. That man prior to the natural law living as they are in a state of nature has certain important rights which at best are recognized by the law of nature. 2. Men have inalienable rights to be governed by a benevolent legislature who should avoid despotic rule and separate the powers. Locke prepared the ground for parliamentary democracy emphasizing on inalienable rights of the men and to the great extent influenced the French and American Revolutions. Jean Jacques Rousseau- According to him, the law of nature or the natural law is the general will of people who come together to form an association called state. However, the inalienable right of individuals may still remain with them. “Each men in giving himself to all, gives himself to nobody and as there is no associate over whom he does not acquire the same right as he yields other over himself, he gains an equivalent for everything he loses and an increase of force for the preservation of what he has.”

The general will is the core principle of Rousseau both in terms of his political thought and the preservation of citizen’s rights. The sovereign represents the general will of the citizens who have under a social contract organized themselves as state and the state is the expression of individual wills collectively expressed and as such the decisions of the state are sovereign which have to be taken by a majority of individual wills. Rousseau’s contribution has a profound influence on French Revolution as well as determining the parliamentary supremacy. General will was a precursor to Adult Suffrage. Immanuel Kant- He was a German Idealist. He is an idealist and he based his theory on pure reason. He says man is a part of reality and is subject to its laws (sovereign’s laws). Though, it is through will of the people, the sovereign comes into existence, but still the man is not free. His reason and inner consciousness makes him a free moral agent, so the ultimate aim of the individual should be a life of free will and it is when free will is exercised according to reason and uncontaminated by emotions, that free willing individuals can live together. People are morally free when they are able to obey or disobey a moral law but since morality and freedom are same, an individual can be forced to obey the law without forcing the freedom provided by law in conformity with morality. He talks about proclamation of autonomy of reason and will. Human reason is law creating and constitutes moral law. Freedom in law means freedom from arbitrary subjection to another. Law is the complex totality of conditions in which maximum freedom is possible for all. The sole function of the state is to ensure observance of the law. The individual should not allow himself to be made a means to an end as he is an end in himself, if need be he should retire from society if his free will would involve him in wrong doing. Society unregulated by rights, results in violence. Men have an obligation to enter into society and avoid doing wrong to others. Such a society has to be regulated by compulsory laws. Those laws are derived by pure reason of the idea of social union; men will be able to live in peace. What is needed is a rule of law and not of man. Kant’s ideal of laws does not bear any relation to any actual system of law; it is purely an ideal to serve as a standard of comparison and not as a criterion for the validity of law. Kant considered political power as conditioned

by the need of rendering each man’s right effective while limiting it at the same time through the legal rights of others. Only the collective universal will armed with absolute power can give security to all. This transfer of power is based on social contract which is not a historical fact but it is an idea of reason. The Social Contract is so sacred that there is an absolute duty to obey the existing legislative power. Rebellion is not justified. Therefore, he considers a republican and representative state is an ideal state. Only the united will of all can institute legislation and law is just only when it is at least possible when the whole population should agree to it. He was in favour of separation of power and was opposed to privileges of birth and established church and autonomy of corporations. He was in favour of free speech. The function of the state was essentially that of the protector and guardian of that law. Joham Gottefichte- Theory of Kant- A practical Approach- Classification of RightsSocial ContractProperty Contract Protection Contract Through property, a person becomes a citizen as per the social contract exhibits. Everyone must have property so that he is not excluded from legal community. The right to punish was a part of the social contract and was based on retaliation. Fichte saw property as an emanation of personality. Fichte appears to have understood the requirements of refined natural law of the succeeding generations as his legal philosophy explains the various rights which state should protect. 1. Right to live 2. Right to work The state has a further duty 1. The necessities of life are produced in sufficient quantities proportionate to the number of citizens. 2. Everyone should be able to satisfy his needs through work. Individual and State Relationship 1. The individual fulfilling his civic duties becomes a member of the state. 2. The law limits and assumes the rights of the individuals.

3. The individual is free and only responsible to himself but subject to fulfilling his civic duties. He also recognized social responsibility of the individual while exercising his freedom. He believed in natural destiny and was in consensus with Kant.

George Wilham Fredreich Hegel- 1770-1831- Theoretical explanation of the universe- He developed a theory called ideal dialecticsism. It is a way of investigating the truth of opinions by discussion and logical argument. Later on, Karl Marx converted this into material dialectism and poltical idea and statecraft. The basic tenets of Hegel philosophy is neokantian natural law. His system is a monistic one. The idea unfolds from the simple to the complex by means of the dialectical process and any face of reality is based on reason. The history of civilization does not depend on unfolding of events but there is an objective spirit as standard bearer of reason unfolding human civilization. What is reasonable is real and what is real is reasonable. The moving spirit of civilization is the “idea”. This idea is responsible for the movement of the civilization both in terms of leadership thrown up in the movement of the civilization. All the social systems are on a move from one stage to another. The first stage of conceiving the idea is thesis which is from the standpoint of the one’s observation, a given concept of the civilization from that standpoint. However, by the time thesis is conceived, the opposite of idea of thesis is hidden within the idea. The principle or doctrine which is taken at the first starting point would be thesis but these rules and principles have a counter point inbuilt in them which when reduced to tangible categories may become ‘anti-thesis’ of them. However, the antithesis of idea of the doctrines, rules would before becoming concrete and metamorphosed would enter into synthesis, new phase and the synthesis would again become thesis as the content and structure of these rules, principles and doctrines. This is an endless circle and is true human history. The history of civilization does not depend upon unfolding of events but there is an objective spirit. The nations are on a move to achieve this freedom. Once the nations achieves these ideals, the young nations would strive to do the same. Law essentially is made to understand the idea of freedom from its external manifestations. He used the metaphor of natural law that man is free, passions, irrational desires and material interest which have to be subordinated to

his rational and spiritual self. The mandate of natural is that man should lead a life governed by reason and respect the reason of others. Property- Private Property. State has the ultimate control of the property. Contract- Contract is the capacity of the individual to acquire or dispose of property. Wrong- It is an act or disposition which negates the will of others. Revival of Natural Law- 20th Century- The law making was put into searching questions as the legal administration put up peculiar and trivial problems. The search for solutions to these problems lead to revival of natural law and led to idealization of positive law and the theorists of the 20th century took recourse to early natural law theories bordering between Aquinas and 18th century philosophers like Grotius, Kant, Hegel and Others. The revival of natural law in 20th century is represented by Georgio Del Lucio, Duguit, John Ross, Lon L. Fuller etc. Georgio Del Vecchio- He talked about Ideals of Law as compared to positive law. Ideals of law should correspond to natural law is higher law and provides criteria for evaluating positive law and to measure its elements of justice. It is the basic principle which guides legal and human evolution. The respect for human autonomy should be there. His theory takes experience from Kantian metaphor which is the basis of justice. Earlier conceptions of natural law such as consent, liberty, representative democracy and conscience which have to a great extent recognized in positive law will further impact the evolution of positive law. The law faces a struggle and this struggle leads again to evolution of law. Though, he basis his thesis on Kant but he differs in one aspect. The state is not only concerned with making of law but also with enforcement of law and should concern with social, political and economic well-being of social life of human beings. The contribution of Vecchio in reviving of natural law is that search of ideals for reforming positive law lies in natural law as natural law is part of the human nature. Joseph Kohler- 1849-1919- Kohler based his thesis on Hegel. He approved Hegel’s hesis of civilization as unfolding of ideas and he describes law as a phenomenon of civilization. He seeks to find the principle for critique of law based on anthropology of history and history of civilization. Kohler holds law is a product of civilization of a people in the past and a product

of an attempt to adjust this result of the past to the civilization of the present. Kohler was essentially concerned with the idea of individual liberty, individual and social interest and the unfolding of such ideas in the totality of legal and political phenomenon. Kohler’s most important contribution is his jural postulates. These postulates are certain principles of rights, logically derived or assumed by or expressed by a given civilization. These postulates are useful instruments both by way of critique and ideals which law makers should conform and these postulates may be used and applied by the jurist to develop the legal system. Kohler’s contribution is that his theory is in pursuit of seeking ideas of right and justice through postulates. This would mould the law and determine its contents. Rudolf Stammler- 1856-1938- His theories were based on Kant’s Theory of Pure ReasonHuman beings are by their cognitive perception of phenomenon capable of cognizing certain a priori categories and forms of understanding which they have not obtained through the observation of reality. In other words, Cognitive Perception may be different than the law which is observed at the human life. Concept of Law is a universal phenomenon of all legal systems notwithstanding the content of law of a given legal system. The idea of law is the task set forth for the legal system to pursue the concept of law. Law is an inviolable and autocratic collective will which he found from all the forms and rules of the legal system which he observed. The universally valid concept of law is that it arises out of volition because law is a mode of ordering human conduct according to relations of means and purposes. Law is a product of sovereignty and different from arbitrariness of an individual and law is an inviolable volition. The concept of law is somewhere akin to positive law but is different from historical approach to law. The idea of law is realization of justice and he says that justice postulates harmonizing of individual purposes or interests with that of the society. Such a harmony can only be brought by adjusting individual desire to the aims of the community. So, according to Stammler: 1. Just law is the highest universal point in every study of social life of men. 2. It is only thing that makes it possible to conceive by means of an absolute valid method of social existence as unitary whole. 3. It shows the way to a union with constitutionally permissible yet these restrictions should not isolate the individual to a state of non-entity.

There are two principles of participation: 1. No person lawfully obligated must not be arbitrarily excluded from the community. 2. Every lawful power of decision may exclude the person affected by it from the community only to the extent that the person may remain a fellow creature. His natural law is a variable content. Stammler has put the law on its own feat using the Kantian Theoretical premises and revive legal idealism. So, Stammler’s revival in natural law had a pragmatic influence on modern legal theories and jurisprudence. Cognitive- Acquisition of knowledge through thought or perception. Leon Duguit- 1829-1928- Social Solidarity Theory- He laid emphasis on duties as he believed that positive law imposes duties both on the government and the governed. His rejection of natural law theory was based on his zeal for recognizing social interdependence through similarity of needs and diversity of functions. This led to the principle of right and law binding on all members of the society to act so as to further social interdependence and not to do anything that impairs it. There are duties but no rights. He discarded the elements of sovereignty using the analogies of duty and restricted it to perform social functions. The most important social function was organization and maintenance of public services. The government officials are under a duty to guarantee a continuous and uninterrupted operation of the public services. Duguit’s most important contribution in terms of natural law is social solidarity by which he meant solidarity is the social cohesive fact of existence of every social group which cannot be denied. It leads to rule of law and rule of law demands that everyone should contribute to social cohesion or solidarity. Social solidarity demands that the government and governed should not do anything which is incompatible to social solidarity. No statute or administrative order is valid if it is not in conformity with social solidarity. The contribution of Duguit is although titled to Sociological Jurisprudence yet his idealization of modern industrial country has lots of instructions in his theory. He is a metaphysical jurist having sociological undertakings. NOTES MISSING John Finnis- Natural Law and Natural Rights- He considered as an authoritative modern version of natural law. He aims at exploring the requirements of practical reasonableness in

relation to the good of human beings who live in a community are confronted with the problems of justice and rights of authority of law. The principle of jurisprudential concern of theory of natural law is to identify principles and limits of rule of law and to trace the ways in which sound laws in all its positivity and mutuality are to be derived from unchanging principles, the principles that have their force from reasonableness not from any originitive acts or circumstances. His thesis advocates that there are basic virtues which are sine qua non for any community of people who are governed by a system of law. These basic virtues are expressed are in such a manner that in the ultimate analysis, the basic human goods are being sub stratum of human life. The ruler has to abide by some moral principle in enacting the law and the enforcers of the law are also under an obligation to abide by the moral principle. The maintenance of human rights is a fundamental component of common good. Finnis integrates natural law with analytical jurisprudence. The contribution of Finnis is his blending of positive law with natural law. The human rights are fundamental components of common good. Lon. L. Fuller- 1902-1978- He represents the most contemporary exponent of natural law reflected in his writings which we find from his works. He says that all theories of natural law in the times and context within which they were written have a common thread reflected in common aim of discovering principles of social order which enables a man to attain a satisfactory life in common. All theories were moulded to discover a process of moral principles and by a collaborative articulation of share purposes by which men come to understand that their own ends and to discern more clearly the means of achieving them. Natural law are procedural in character and are concerned with ways in which a system of rules of governing the human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be. He was much concerned with the structural and technical character of law and legal system. The contribution of Fuller in recognizing natural in procedural aspects of law by itself is novel.

Margaret Mead- Anthropological considerations of natural law- It is a universal fact established from the studies of primitive culture and certain universal rules were always recognized as sacred and ethical without which human evolution would not have happened. She defines natural law as those rules of behaviour which have developed from a species, it means the specific capacity to ethicize as a feature of those examples of such ethicalizing that appear in all known societies. The recognition of natural rights to life property and reproduction is found in all societies with variation in interpretation. H.L.A. Hart- He has drawn a connection between positive law and natural law. He admits that there is a pore of indisputable truth in the doctrine of natural law. There are certain rules of conduct which any social organization must contain if it has to be viable. Such rules constitute a common element in the law and conventional morality of all societies. Therefore, such universally recognized principles of conduct which have a basis concerning human being, their natural environment and aims is the ‘minimum content’ of natural law. He lists down five truths as minimum content of natural law: 1. Human Vulnerability- As men are vulnerable, the common requirement of law and morality demands that the use of force or violence in killing and bodily harm should be avoided to the maximum. 2. Approximity- As men differ from each other in physical strength, agility and intellectual capacity, law and morals demand that no individual should be subjected to dominate by others than what can be tolerated under circumstances. Law and morals demand mutual forbearance and compromise among strong and weak. 3. Limited Altruism- Human altruism is limited in range and intermittent and the tendencies to aggression are frequent enough to be fatal to social life if not controlled. 4. Limited Resources- As resources are limited and scarce, law and morals demand a fair approximation of the resources needed for the survival of human beings. 5. Limited understanding and strength of will- As all men are tempted to prefer their own interest, it is important to understand the advantages of mutual forbearance and the number and strength of those who would co-operate voluntarily would normally be greater than those who combine together to achieve their interest. Hart does not claim any connection between law and morality and is conscious of the fact that human society has seen a record of operation, discrimination and intolerance in the name

of security and legal order such as slavery, religious prosecution. He refuses the formal connection between law and morals. Minimum content of natural law is answer to those positivists who think that some natural law content is possible to derive from positive law. His contribution is remarkable as he draws a relationship between positive law, morality and natural law.

Philosopher’s School of Law It is the common ground of moral and legal philosophy of ethics and jurisprudence. It rivets its attention on the purpose of law and its justification (law’s justification) for coercive regulation of human conduct by means of legal rules. Kant has shown the chief purpose of law to be provision of field with free activity by an individual without interference by his fellow men. Law is the means by which individual will is harmonized with the general will of the community. It concerns chiefly with the relation of law with the certain ideas. It investigates the purpose of law and measure and manner in which that purpose is fulfilled. These jurists regard law as neither arbitrary command of the ruler nor the creation of historical necessity. Hugo Grotius- The law of war and peace- Natural law is the dictate of the right reason which points out that an act, according as it is or is not in conformity with rational nature has in it a quality of moral base and moral necessity. There are fundamental ideas which are common to every legal system. Immanuel Kant- He gave modern thinking a new basis which no subsequent philosophy would ignore. In ‘Critique of Pure Reason’, he set for himself the task of analysing the world as it appears to human consciousness. Nature follows necessity but human mind is free because it can set itself purposes and free will. Compulsion is essential to law and a right is characterized by the power to compel. The aim of Kant was a universal world state, the establishment of a republican constitution based on freedom and equality of states was a step towards league of states to secure peace. Kant was doubtful of the practical possibility of the

state of nations and he saw no possibility of international law without an international authority superior to the states. Fichte- Self-consciousness of reasonable being. No reasonable being can think himself without ascribing free activity to himself. There is moral duty to respect the liberty of others absolutely; a legal duty to do so is dependent on reciprocity. These must be protected as these are necessary conditions of personal existence. His social contract is divided into property contract and protection contract. It is through property that a person becomes a citizen. The right to be protected by state and the right to work and without the latter, there can be no duty to recognize others. Hegel- He was the most influential one. Both the state and law are the product of evolution and the legal institutions are within the sphere of legal, ethical and political institutions. The various manifestations of social life including law are the product of evolutionary dynamic process. His philosophy stands between the 17th and 18th centuries and the liberalism of 19th century. His critical philosophy of knowledge has been applied to law by the Neo-Kantian jurists. Much of his teachings were inspired by Del Viccio. His relation between individual and state laid the foundation of ascendency of state over individual and directly inspired modern fascist ideas on the corporative and totalitarian state. The outlook of these jurists is different but none of them could have elevated the individual above the state. Basically, if we mix the three philosophies we get their personal opinions and prejudices. Kant’s theory has remained the basis for all those conceptions of law and state which denies that any organic character and definitely cease a paramount object of life in the development of individual. Modern German Neo-Hegelian Jurists- Binder and Larenz- Bosenquet’s view- The real will of an individual is what he would desire if he were morally and intellectually fully developed. The state embodies the purifier intellectual and moral conduct of which the average individual is not capable. Kohler- He was known as a Hegelian. Law as a standard of conduct which is in consequence with the inner impulse that urges man towards a reasonable form of life emanates from the whole and is forced upon the individual. His book is called as “Philosophy of law”. He

postulates the promotion and vitalizing of culture as the end achieved through the instrumentality of law. By culture, he means the totality of the achievements of the humanity and the assumption of the law of nature, a permanent law suitable to all times be not correct as it involves the notion that the world has already attained the final aim of culture. The actual fact is that the civilization is changing and progressing and law has to adopt itself constantly advancing culture. Every culture should have its own postulates of law to be utilized by the society according to requirements. There is no eternal law or universal body of institutions suitable for all organizations. He does not believe in divine law or law of nature. What might be good for one stage of culture may be bad for another. Stammler- 1856-1938- Neo-Kantian- The theory of Justice- The need for development of just law in addition to the investigations of the positive law. The content of a given law can be tested with reference to the theory of just law. A law is just if it conforms to the social ideal of bringing a harmony between the purposes of the individual and society. The social ideal is a community of men willing freely. The social ideal represents the union of individual purposes. It requires the maintenance of proper interest of every associate and the maintenance of social co-operation. The use of universally valid concept of law is partly philosophical and partly practical. Philosophically, the quest for universal concept of law is a manifestation of doctrine of human mind to reduce the phenomenon to that unity which only human mind can provide. Del Viccio- His work displays a profusion of philosophical, historical and juristic learning. Law is not only formal but has a special meaning and an implicit faculty of valuation. Law is a phenomenon of nature and collected by history. Historical School of ThoughtFredrich Karl Von Savigny- Founder of Historical School of Jurisprudence- German Jurisprudence- “On the vocation of our age for legislation and jurisprudence”- Written in 1840- He emphasized on the intimate connection of the people’s law. 1. Law was not a self-contained collection of verbal formulas but part of the complex of people’s experience and character manifest in the common feeling of inner necessity with which people regard it. In time law reflects people’s general development during

its youth, reach in forms and symbols. Law is a product of internal silently operating forces. 2. The people do not remain instinctively remain familiar with law but regards law literally true only for young people whose law remains simple in conception, narrow in scope but imbibed with people’s spontaneous symbolism language and love for form. As people’s life become more specialized and artificial, so does law. 3. The kind of law which expresses the real nature of law is customary law as all law is originally formed in the manner in which in ordinary but not quite correct language, customary law is said to have been formed. It is first developed by custom and popular faith and only then by juristic activity. Therefore, law develops by internal silently operating powers and not by arbitrary will of the law giver. 4. He believes as positives lives in the general consciousness of the people, it is people’s law and the form in which law lives in the common consciousness of people is not that of abstract rules but of living institutions of law in their organic connections so that whenever necessity arises for the rule to be conceived in its logical form, this must be first formed by a scientific procedure from the total institution. 5. The constant preservation of law is effected by tradition and is conditioned by and based upon not sudden but gradual change of generations. The independence of the life of individuals asserted of law appertains to the unchanged continuation of the rule of law. Secondly, it is the foundation of the gradual formulation of law and in this connection, it has special importance. 6. Famous Aphorism- The law, that law was rooted in the past of a nation and its sources were popular faith, custom and common consciousness of the people. Like the language, the constitution and the manner of the people was determined by the peculiar character of a nation by its national spirit, Volksgeist. Henry Maine- Founder of English Historical School of Jurisprudence- He developed Historical jurisprudence based on following principles: 1. Volksgeist was not complete because it does not indicate the growth of legal system as a whole and is a barrier to scientific comparison to the discovery of common principles of co-relations of legal and social system which has to be rectified. 2. There is uniformity and communalities of legal ideas and conceptions which can be explained uniformly. 3. There are stages of social development common to various people which could be explained in a theory with different instruments of legal growth.

He was concerned to study the nature and the development of early law both in its historical context and also as understood by the study of underdeveloped societies in the contemporary world. He is also concerned with the development and growth of early law of Greece, Rome and Old Testament and the also the ancient law of India. This entire study has been published in a book called “Ancient Law” in 1861. His comparative study of development of different legal systems led him to draw a fundamental distinction between static and progressive societies and there legal evolution. Equity has played a dominant role in the refinement of both Roman and English law and according to him English common law was generally considered to have originated in equity jurisdiction. So equity has often been used to modify existing laws as a set of principles invested with a higher sacredness than those of the original laws. Legislation finally represents the most direct, comprehensive and systematic method of law making vested in law making authorities of state. Maine’s Theory of Historical Jurisprudence has much more over tunes of Anthropology and as a matter of fact, the anthropological research of law and legal institutions was triggered with the publication of his book “Ancient Law”. His writings prompted the anthropologists to study the primitive society in terms of their law and legal systems. The concerns of legal anthropology are exactly same as that of general social scientist coinciding with the sociology of law. However, the legal anthropologists have gone a little further in searching the models of dispute settlements in the primitive society both formal and informal. On the whole, the legal anthropology in 20th century has focused on local understanding of law and legal practice and institutions. American Realist School of Jurisprudence- American Realism is not a school of jurisprudence but it is pedagogy of thought. They are concerned with the study of law as it works and functions which means investigating the social factors that makes a law on the hand and the social results on the other. The emphasize more upon what the courts may do 0rather than abstract logical deductions from general rules and on the inarticulate ideological premises underlying a legal system. John Chipman Gray- 1839-1915- The real relationship of jurisprudence to law depends not upon what law is treated but how law is created. Gray stresses the fact that the statutes together with precedents, equity and custom are sources of law but the law itself is what the persons acting as judicial organs of the state laid down as rules of conduct. To determine,

rights and duties, the judges settle what fact exists and also lay down rules according to which they deduce legal consequences from facts. Gray emphasizes the role which judges play in laying down the law because it is the judge who while interpreting the statute, custom or equity create law rather than discovering the law. The law as expressed in statutes or customs gets meaning or precision only after the judge expresses his opinion. The judge depend on the sources of the law such as statute, judicial precedent, opinion of experts, customs and public policies and principles of morality, the law becomes concrete and positive only in the pronouncements of the court. Judge made law is the final and authoritative form of law. He suggests that the judicial pronouncements of law are the true subject matter of jurisprudence for evaluations. Gray’s contribution lies in the fact that judicial decisions often have been responsible for giving not only content but direction to political, social and economic thought. The contribution of Gray in formulating the principle that the judges or the courts have the first and the final say as to what the law is and obviously the role of jurisprudence is to understand and evaluate the law made by judges is the realist approach to understanding law and legal institutions. Justice Oliver Wendell Holmes- American Realist Movement- Scope of Jurisprudence has an enhanced effect on American Realist thinking. The concept of law traditionally is a collection of rules from which deductions can be made. Holmes observed that life of the law has not been logic, it has been experience. The law embodies the story of a nation’s development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of mathematics. Law must be strictly distinguished from morals. Holmes definition of law and the scope of jurisprudence led to future developments in constructing American Realism which focused attention on empirical factors underlying legal system. Jerome Frank- 1889-1957- Law and Modern MindRule Sceptics believe that the lawyer should be able to predict to his clients, the decisions in most law suits not yet commenced but legal rules enunciated in court’s opinions sometimes called paper rules, too often proved unreliable as guides in the prediction of decisions. The Fact Sceptics also engage in rule scepticism and tear behind the paper rules. The Fact Sceptics are primarily interested in trial courts, yet they too cannot predict future decisions.

The conventional description how the courts render decision from the application of legal rules does not describe the picture of judicial law making correctly and fairly, especially when testimony of witnesses are to be recorded in the trial where the chances making of mistakes on part of the witnesses as to the correctness of what they saw or heard in their recollection of what they observe may be at variance with the reality. Similarly, Trial judges and jurists, also human, may have prejudices of an unconscious unknown even to themselves for or against some judges, lawyers, witnesses. These prejudices can even be racial, religious, economic, and political or gender biased. He laid emphasis on understanding the working of the lower courts as he believed points of law emerge from fact situation of the lowest situation of the court hierarchy. The textbook approach of law is misleading as the working of the court system is uncertain and misty. Instead of taking precedence, emphasis should be there in training in fact-finding, evaluation of prejudices, psychology of witnesses both for the trial judges and for the prospective jurors to give effect to the empirical analysis of law and legal institutions. Karl Llewellyn- 1893-1962- he recognized the functional approach to law and delineated certain positions as common to American Realist. He summarized it. 1. The conception of law is in a constant state of flux. 2. The conception of law is a means to social ends and not an end in itself so that any part needs to be constantly examined for its purposes and for its effect and to be judged in the light of both and of their relation to each other. 3. The conception of society is in flux and in flux it is typically faster than the law so that probability is always given that any portion of law needs re-examination to determine how far it fits the society it purports to serve. 4. For the purpose of these enquiries, the jurist should look at what courts and officials and citizens without reference to what they ought to do. There should be a temporarily divorce of is and ought for the purposes of study. 5. Juristic enquiry must regard with suspicion the assumptions that legal rules as they are formally enunciated or inscribed in books represent what courts and people are actually doing. 6. Jurist must regard with equal suspicion that rules of law formally enunciated actually do produce the decisions which purport to be based on them. 7. There must be recognition of the necessity of grouping cases in narrower categories as the realists tries to indicate explicitly which criterion is being applied in any particular instance.

8. Jurists must insist on evaluation of any part of law in terms of its effects and insistence on the worthiness of crime to find these effects. 9. Jurist must insist on sustained and programmatic attacks on the problems of law along any of these lines. My philosophy of law- He stresses that law is a going and necessary institution in the society. Law as a going institution must be tested by life and achieve results. The legal phenomenon can be booked for the purposes of law jobs. He goes on for advocacy, counselling, judging, law making, mediation, conciliation, organization, policing etc. All these areas need a fresh look. While commenting on common law traditions list three major characteristics of judicial precedents as doing law jobs. The reputations of the opinion writing judge, the principle of broad generalization to bring order and sense in the precedent, and policy of prospective consequence of the rule under consideration are considerations which must be taken into account before evaluating a judicial decision. The facts of law are facts of life and the precedence of courts whether lower or higher unit not in the sense what they have decided but what was bothering and helping the court.

Portion for End TermModule I 1. 2. 3. 4.

Law as a dictate of Reason Purpose and Function of Law The purpose of Legal Theory The nature and value of Jurisprudence

Module II- Complete Module Module III- The sources of law- Complete Module Module IV1. 2. 3. 4.

Legal Rights Ownership Possession Persons

Module V1. 2. 3. 4.

American Realist School of Jurisprudence The Scandinavian Realist School Marxist Theory of State and Law Natural Law- Hugo Grotius, Immanuel Kant, Hegel, Del Viccio