(LEGAL
THEORY)
Q.No.1Explain the nature and scope of
Jurisprudence.
Answer:-
The study of
Jurisprudence started with Romans. The
Latin equivalent of “Jurisprudence” is Jurisprudentia which means either
(“Knowledge of law or Skill in law”).
2. It is not generally used in other languages
in the English sense.
3. In French, it refers to something like
“case law” it an analysis of the formal structure of law and its concepts.
(Examination
/ studies) Limits
/ Boundaries
4. It is confined only to law touching every
aspect of law and study of fundamental legal principles. “Juris” means law (legal) and prudentia”
means skill or knowledge.
5. It includes the philosophical, historical
and sociological basis and an analysis of legal concepts.
6. In France, it is called ‘____ philosophia
du droit”, (that is the philosophy of Rights).
7. In Germany, it is called
‘Rechtsphilosophie’ (that is the philosophy of Rights), that is of law in the
abstract sense.
8. An India (NidhiShostra) that is knowledge
of law.
DEFINITION:-
According to ULPIAN Definition:- “Jurisprudence is the knowledge of
things divine and human, the science of the just and unjust”.
PAULUS : Defines, “It is the law and the law is
not to be deduced from the rule but the rule from the law”.
AUSTIN : It is a
positive law. Every law is command, obtains its force from
its sovereign. The positive law which
is termed by him as “laws strictly so – called”. It is study of law as it is and not what it,
“ought to be”.
He says, “law
is the command of sovereign and not of divine”.
Acc to him, there is no distinction between good law and bad law. He divided it into 2 kinds
Acc to him, there is no distinction between good law and bad law. He divided it into 2 kinds
1. General Jurisprudence
2. Particular Jurisprudence.
Branches of Jurisprudence
It can be divided into 3 branches:
1. Historical Jurisprudence
Deals with
general principles governing the origin and development of law, with influences
that affect the law, with the origin and development of those legal conceptions
and principles which are so essential in their nature as to deserve a place in
the philosophy of law.
2. Analytical Jurisprudence
Analyses the
first principles of law as they exist in a legal system.
3. Ethical or philosophical Jurisprudence.
Deals with the
first principles of ethical significance and adequacy of law.
The nature And Value of Jurisprudence
Irrespective of the serious and severe
criticisms on the utility of the subjects “Jurisprudence’, it has its own
merits, valuer, benefits in the legal field.
WurzusOpines : “Jurisprudence is classed
as social sciences first of kind ever born”.
1. Reflection of Rules:-
The Jurisprudence comparises philosophy
of law and is a second order subject which object is not to discover new rules,
but to reflect on the rules already known.
It is just like a philosopher in law.
The Philosopher does not discover any new law. He is
concerned with the Scientific law already discovered.
2. Analysis:-
It is analyses of legal concepts several times the legal rules overlap
with another. Eg The legal rules of
penal code overlap with torts, contract, family laws, civil etc.,.
Then it analyse them, separate them and
show a right path to the lawyers, jurists, administrators, legislators etc.,.
3. Salmond gives an eg : He writs : “Jurisprudence studies the meaning
of the terms for eg ‘Right’ in the abstract and seeks to distinguish the
various kinds of Rights which are the theory possible under a legal system.
Similarly it investigates such other
legal concepts as ‘act’, ‘intention’, ‘Negligence’, ‘ownership’, ‘possession’
etc.
All of those are equally rigorously
studied in the ordinary branches of law, but since each of them functions in
several different branches of law, Jurisprudence tries to build up a general
and more comprehensive picture of each concept as a whole”.
4. Clarification : It clarifies the legal position correctly,
pin-point, whenever there arises a situation of confusion, ambiguous, uncertain
in language of the law.
5. Connection with other Disciplines:
Laws treats the legal position only. But
Jurisprudence concerns with all other disciplines such as sociology, economic,
political, philosophy, physiology, psychology, history etc., it is the only
subject ‘Jurisprudence’ which can link law with other disciplines and give a
wider social context and aspect.
6. Intrinsic Interests :- It has ‘Intrinsic Interest” in its own
subject. The Jurisprudence analyses,
investigations, enquires into the law.
It goes to the depth of the society and law. It reaches the roots of the elements of
law. It is the only person to evolve a
new theory of law can approach for the remedy of evils. Therefore, researches into Jurisprudence may
well have re-echos on the whole of legal, political and social thought.
7. Rational :-Sawer in his ‘Law in Society’
explains the value of benefit of Jurisprudence.
He says – “It is to construct and
elucidate organizing concept serving to render the complexities of law more
Manageable and more rational and in this way theory can help to improve practice”.
8. In Practice:- Practically by studying
‘Jurisprudence’ a lawyer can develop his professional skills. He can sharpen his own professional and
logical techniques.
9. SalmondVarites :- “Jurisprudence can teach
lawyer to look, if not forwards, at least side ways and around him and to
realize that the answers to new legal problems must be found by consideration
of present social needs rather them in the distilled wisdom of the past”.
SCOPE OF
JURISPRUDENCE
1. It has widened considerably over the years.
2. It includes all concepts of human order and
human conduct.
3. Anything which concerns order in the state
and society will be within the domain of Jurisprudence.
4. Acc to Redcliffe. It is a part of history, a part of economics
and sociology, a part of ethics and a philosophy of life.
5. Acc to Mukherjee, “Jurisprudence is both an
intellectual and idealistic abstraction as well as behaviour study of man in
society”.
6. It includes political, economic and
cultural ideas. It covers the study of
man in relation to state and society.
7. Karl Llewellyn Observes: Jurisprudence is as big as law and bigger.
Utility of
Jurisprudence
Jurisprudence is not without practical
value. It is the “eye of law” and its
main uses are follows:-
1. A study of those fundamental principles
which are common to all systems of law is of great advantage in the study of a
particular system of law.
2. The Aim of Jurisprudence is to develop
those fundamental principles, the knowledge of which is essential for the
practical work of the registrar and the advocate and which are adopted by the
Society to adjust the relations between man and man.
3. A study of Jurisprudence is of immense
value to the closely allied sciences of legislation.
4. Jurisprudence also has great educational
value. The logical analysis of legal
concepts widens the (outlook) of lawyers and sharpens their logical technique.
5. It can also help to improve practice. It is to construct and elucidate concepts
serving to sender the complexities of law more manageable and more rational.
6. It can teach the people to look, if not
forward, at least side ways and around them and realize that answers to new
legal problems must be found by a consideration of the present social needs and
not in the wisdom of the part.
7. It said to be “The eye of law”. It is the grammar of law.
8. It can find out the Actual rules of law, by
understanding the Nature of law, its concepts and distinctions.
9. It also helps in knowing the language,
grammar, the basis of treatment and assumptions upon which subjects rests.
10. It can help to tackle new and difficult
problems which he can handle through his knowledge of Jurisprudence which
trains his mind into legal channels of thought in his practical work.
11. It relieves again and again in each Act
certain expressions such as right, duty, possession, ownership, liability,
negligence etc.,.
12. It enlightens students and helps them in
adjusting themselves in society without causing injuries to the interests of
other citizens.
13. It helps the judges and the lawyers in
ascertaining the true meanings of the laws passed by the legislatures by
providing the rules of interpretation.
14. It exams the consequences of laws its
administration on social welfare and suggesting changes for the betterment of
the superstructure of laws.
15. It confined to the study of positive law and
also include normative study.
16. It is social engineering regarding ___ which
improve its quality at every stage.
17. It came to recognize the social and rational
nature of man. Law was adopted to human
nature.
Q.No.2
Historical school of Jurisprudence.
Historical School of Jurisprudence
The Historical School was founded by ran
savigny.
This School enquire into the past to
discover the ‘genesis’ of law and find out the history of its development.
It deals with the general principles
governing the origin and development of law as also the origin and development
of legal conceptions and principles found in the philosophy of law.
Acc to them law is the produce internal
silently operating force i.e., popular faith, custom and the common
consciousness of the people.
Law grows with the growth and strengthens
with the strength of the people and finally dies away as a nation, looses its
Nationality.
The Historical approach to law arose as a
reaction against natural law theories Historical approach derived its in
inspiration from the study of Roman law in the condiment.
1. Law is found and not
made. It is self existent.
2. Law is antecedent to the state and it
exited even before states came into existence.
3. Law is independent of political authority
and enforcement.
4. Law rests on Social pressure.
5. In construing a statute judges should
consider the history of legislation in question.
6. The typical law is custom.
7. Emphasis is on comparative method.
8. Leaders :Savigny and Puchta.
9. “Law is the spirit of people (Valksgiest)
i.e., custom” is the concept of this school.
10. The Jurisprudents of this school strongly
opine that custom is superior than legislation.
11. The Analysis of the first principle is that
law is the result of historical reasons and circumstances and the spirit of the
people.
12. There is a offshoot of this school, known as
‘Anthropological Approach’.
13. It deals with all branches of law.
14. It enquires into part and finds the elements
of legal liability.
15. Acc to this school ‘law is found’. The Jurisprudents give the preference to
‘Ought’ fascinating new interpretations.
16. This approach depends upon present and part.
17. Acc to this school, custom is the formal
source of law. It is transcendent law
and other methods of legal evolution like legislation and precedent, derive
their authority from custom.
18. In Historical School, law rests on the social
pressure behind the rules of conduct which it enjoins.
19. Acc to Historical School, in constructing a
statute Judges should consider the history of legislation in question.
20. It proceeds to examine the manner,
circumstances and factors responsible for the growth of law and takes account
of the social forces operating in the process of the evolution of law.
Q.No.3 What is
meant by Administration of Justice? Whatis it’s necessity and distinguish civil
and criminal justice.
Answer:-
Justice and its kinds (Civil and
Criminal) Administration of Justice
Theories of punishment and secondary
functions of the Court.
The 2 most essential functions of a state
are
1. War
2. Administration of Justice.
It a state is incapable of performing
these functions cannot be rightly called a ‘state’.
It implies the maintenance of peace and
order within a political community by means of physical force of the state.
Administration of justice and command
will help obedience of law. They
include social sanction, public opinion, custom, convenience etc.,
Acc to Salmond, “law is the body of principles recognized or applied by
the State in the administration of justice”.
Acc to pound, “law is the body of
principles recognized or enforced by public and regular courts in the
administration of justice.
Meaning:-
Salmond “the
Administration of justice is the maintenance of right within a political community
by means of the physical force of the state.
It is the application by the State of the sanction of force to the rule
of right”.
Acc Black Stone :- Justice is a reservoir
from where the concept of right, duty
and equity evolves.
Justice is expressed in terms of “Justice according to law”
Dicey
called as “Rule of law”. “No one is above law”.
Importance (necessity) of Administration of
Justice.
It is true that unlimited and
unrestrained liberty leads to a state of anarchy, therefore some kind of
external coercive authority is needed to keep man within his limits and
restrain his unfettered liberty.
Herbeart Spencer, “every man is true to
do what he desires provided he infringers not with the equal freedom of any
other man”.
Hobbes believed that a common power was
necessary to keep people within controle in the community.
Force is necessary to prevent the
recalcitrant minority from gaining unfair advantage over law abiding people in
general. Therefore, state force is inevitable
for protection of rights of individuals in society.
Origin
of the Administration of Justice :-
It has evolved 3 stages.
1. When Society was primitive and Private
Vengeance and Self-help were the Only remedies available to the wronged person
against the wrongdoer he could get his wrongs redressed with the help of his
friends and relatives.
2. It rise of political states took place, but
they were hardly powerful to regulate crime and to inflict punishment on the
criminal.
The law of private vengeance and self
help continued.
Eg.In the days of the Saxons.
Vegeance was not totally absent but it
was merely regulated and restricted.
3. The state began to act as a Judge to assess
liability and to impose penalty.
There was a transformation from private
justice to public justice through the agency of state with the growth of the
state’s power, private vengeance and violent self help were substituted by the
administration of civil and criminal justice.
Advantages
of Administration of Justice.
i) Administration of justice brings
uniformity.
ii) As the law is know to the citizens, it
enables them to regulate their conduct in accordance with it.
iii) As the rules are fixed, it helps judges in
applying the law uniformly.
iv) As justice is done according to the
principles of law, it ensures impartiality and equality.
v) The rules of law represents the collective
wisdom of the community, therefore, in following them there are little chances
of going wrong.
vi) The administration of justice brings
uniformity and consistency in the law sit causes a systematic development of
law.
Disadvantages.
i) It makes law rigid. When same rules are applied to all the cases
of similar nature, sometimes it may causes hardship and injustice.
ii) Law, tends to become conservative because
it does not keep pace with the changed conditions.
iii) Law becomes more formal.
iv) Law becomes very complex.
Kinds of Justice : 2 kinds.
1. Natural Justice (Normal Justice).
2. Legal Justice.
* Moral Justice is implanted in the human
mind by the divine power.
* Legal Justice is the body of the
Principles framed and recognized by the state.
Legal
Justice is divided 2 kinds.
1. Civil Justice.
2. Criminal Justice.
* Criminal
Wrongs are – Public wrongs.
Civil
wrongs are – Private wrongs.
* The former are an infringement or
deprivation of private or civil rights belonging to individuals considered as
individuals, and
are frequently terms civil injuries ;
the latter are a breach and violation of public rights and duties which affect
the whole community, considered as a community ; and are distinguished by the
harsher appellation.
Distinction
Between
Criminal Justice
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Civil Justice
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1. All criminal wrongs are administrated by criminal justice.
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1. All civil wrongs are
administrated by civil justice.
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2. Eg. Theft, murder, rape, forgery etc.
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2. Eg. Breach of contract,
Irespass to land etc.,.
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3. All crimes are public
wrongs.
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3. All civil wrongs are private
wrongs.
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4. All criminal proceedings are
instituted by the state.
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4. The aggrieved person
institutes the civil proceedings.
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5. A Crime is treated a harmful
Act to the entire Society.
Eg. Murder, killing a person
primarily affects the deceased, but it badly affects on his family and also
entire society.
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5. Civil wrongs are deemed only
to infringe the rights of the individual.
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6. The object of the criminal
justice is to ‘punish’ the wrongdoer, ranging from death to fine.
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6. The object of the civil
Justice is to provide ‘compensation’ to the aggrieved and sufferer by wrong –
does.
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7. Criminal Justice is
administered according to the set of criminal procedures.
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7. Civil justice is
administered Acc to the set of Civil Procedures.
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8. The doctrine of estoppel
does not apply to criminal Justice.
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8. The doctrine of estoppel
applies only Civil Justice.
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9. “It is better that several
guilty men should escape rather than one innocent should punished”.
The guilt must be proved
beyond the doubt.
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9. This Principle does not
apply to civil proceedings.
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10. The rules of evidence
cannot be relaxed by the consent of the parties.
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10. Te rules of evidence may
be relaxed by the consent of the parties.
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11. The cases once instituted
cant be compounded or withdrawn in the criminal Justice. There are very few exceptions.
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11. The proceedings may be
withdrawn by the parties with their own consent.
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12. The burden of proof lies
on the prosecution.
The guilt must be proved
beyond the doubt.
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12. The burden of proof dies
on both the Petitioner and the Defendant.
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13. In the criminal cases, the
obligation lies on the Court to bring all relevant evidence on the record so
that justice is done.
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13. In the Civil, it is the
duty of the parties to place their case as they think best.
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14. ‘Benefit of doubt’ is
given to the Accused in criminal Justice.
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14. ‘Benefit of doubt’
principle does not arises in civil justice.
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15. The criminal justice deals
with remedial and breaches of duties.
It is a corrective Justice.
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15. It deals with the
distribution of wealth and honour. It
is distributive Justice.
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16. Criminal Courts administer
the criminal justice.
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16. Civil Courts administer
the Civil Justice.
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Purpose of Criminal Justice : Punishments
There are 2 aspects
of Punishments.
i) It can be a method of protecting society
by reducing the occurrence of criminal behaviour or it can be an end in itself.
ii) It can protect society by deterring
potential offenders, by preventing the actual offender from committing further
offences and by turning and reforming him into a law – abiding citizen.
Various
theories of punishment have been propounded to Justify ends of criminal Justice
and Punishment.
1. Deterrent.
2. Preventive
3. Reformative
4. Retributive
5. Compensation.
1. Deterrent Theory:-
The evil – doer should be given such a
punishment that he becomes an example and warning to others that might
similarly feel inclined to deviate from the straight path of duty.
It should serve as a warning to others.
It not only dissuades the offender from
repeating the crime but also deters others from indulging in criminal
activities.
Eg. Mutilation, beheading, flogging, branding
etc.,
2. Preventive
theory:-
It is based on the idea of preventing
repetition of crime by disabling the offender through measures such as
imprisonment, dealth sentences etc.
It is to deprive the offender, either
temporarily or permanently of the power to repeat the offence.
Death Punishment – Most effective Mode.
When offence are very grave nature, such
as murder or treason.
In modern times, certain preventive
measures have been adopted in various offences such as, forfeiture, suspension
or cancellation of licence etc.
3. Reformative Theory.
Punishment should serve as a means of
social education. It emphasizes on
reformation of criminals through the methods of individuaisation. It says that offences are committed under the
influence of motive upon character.
Therefore, they can be checked either by a change of motive or by change
of character.
Acc this, crime is the result of a
disease and the criminal is a patient who should be given proper treatment.
This theory is to reform the character of
the wrong does so that he will desire to do what is right instead of yearing to
do what is wrong.
4. Retributive Theory
It was
accorded exclusive recognition in ancient penology. “An eye for an eye and a tooth for a tooth”
is the maxim on which primitive society proceeds. This involves 2 conceptions:
i) That punishment is an end it in itself ;
ii) That
the primary Justification of punishment is found in the fact that an offence
has been committed and not in any future advantages to be gained by its
infliction, whether for society or for the offender as an individual.
5. Compensation:-
The object of
punishment must not be merely to prevent further crimes but also to compensate
the victim of the crime.
Q.No.4 Question of Law and question of Act.
Marks: 5
Questions of Law, Fact and Discretion
The determination of cases by the court
involves enquiry and consideration of various questions that arise in the suit
or trail.
These questions may be of 2 kinds.
i) Question of law,
ii) Question of fact.
In a court of justice 2 kinds of
questions arise, both these terms are ambiguous and possess more than one
meaning.
Question of Law:-
This term has 3 distinct meanings.
1. It means that a question is to be answered
in accordance with the already established rules of law and not in accordance
with the evidence that is laid before the court.
Every question which has not been
predetermined and authoritatively answered by the law is a question of law.
Eg. In a suit for damages,
The question
as to whether damages are at all recoverable, in the circumstances of the case,
is a question of law while the question of quantum of damages would be a
question of fact.
Eg. Whether a contractor has been guilty of
unreasonable delay in building a house is a question of fact but whether the
holder of a bill of exchange has been guilty of unreasonable delay in giving
notice of dishonour is a question of law to be determined in accordance with
certain fixed principles laid in the bills of exchange Act.
2. A question of law is a question as to what
the law is. In this sense questions of
law arise out of law’s uncertainty.
When in a court of justice any question
arises as to the meaning of an ambiguous statutory provision, this question is
a question of law in the second sense and not in the 1st sense but a
question of fact.
3. The general rule is that questions of law
in both the senses are for the Judge but that questions of fact are for the
jury.
Questions of fact
Questions of fact in its general sense
includes all questions which are not questions of law. Everything which is not a matter of law is
matter of fact. It has these meanings.
1. Any question which is not predetermined by
a rule of law.
2. Any question except a question as to what
the law is ; or
3. Any question that is to be answered by the
jury instead of by the Judge.
Question of Judicial discretion
A question of fact in a narrow and more
specific sense is opposed to a question of judicial discretion.
It pertains to the sphere of right and
includes all questions as to what is right, just, equitable or reasonable. In determining the question of fact the
court ascertains the truth of the matter which in determining questions of
judicial discretion it seeks to discover the right or justice of the matter.
For eg. When an Accused charged with a criminal act,
that question, which considered whether he has committed the criminal act with
which he is charged, is a question of fact but when proved guilty should he be
punished by way of imprisonment or by way of fine only, is a question of
judicial discretion or of right.
UNIT-III
Q.No.5 Delegated legislation and Sub
delegation.
Marks: 5
Delegated
legislation.
When law making power is conferred by the
legislature upon some other body and that other body declare laws, it is known
as delegated legislation and the legislative power is said to be delegated.
The Committee on minister’s power said
that the term ‘delegated legislation” has 2 meanings.
1. It means the exercise of power that is
delegated to the executive to make rules.
2. It means the output or the rules or
regulations etc. made under the power so given.
Reasons
for delegated legislation.
1. Want of time :- The Parliament is so much occupied with matters concerning
foreign policy and other political issues that it has no time to enact social
legislation in all its details.
2. Technicality of the matters :- Society
things have become more technical. All
the legislators may not know them fully and hence, they cant make any useful
discussion on it.
3. Emergency :- During the
time of emergency quick and decisive action is very necessary at the same time,
it is to be kept confidential.
Therefore, the executive is delegated
the power to make rules to deal with situations.
4. Flexibility :-Amendming
Acts will become necessary Acc to future contingencies and that would cause
wastage of time and money. Therefore
delegation to the departments becomes necessary.
5. Local matters :- Which
concern only a particular locality, group or profession, needs consultation
with the people on these matters, regarding such legislation the departments
are give power to make changes or rules with interested in it.
6. Experimentation :- For some Acts needs operation in different
localities on different dates according to their suitability and as a matter of
experiment.
Dangers
of delegated Legislation.
1. Legislation may be passed in too skeleton a
form and wide powers of action to make new laws and to impose tax may be given
to executive.
2. Parliament gets inadequate time to
scrutinize regulations.
3. Some of the regulations attempt to deprive
the subjects of recourse to the law courts for protection.
4. Illegal actions done under the authority of
delegated legislation.
Control
of delegated legislation,
1. Procedural control.
2. Parliamentary control.
3. Judicial control.
1. Procedural
control :- Certain safeguards are necessary to keep
vigil over the exercise of power by the executive or administrative authorities.
Methods:
a) Prior
consultation of interest.
b) Prior
publicity of proposed rules and regulations.
c) Publication
of delegated legislation.
In India, “previous publication” is
necessary under Section 23 of the general clauses Act 1987.
2. Parliamentary
Control :-
When a bill that provides for the
delegation of power is before the house, the house may modify, amend or refuse
altogether the powers proposed to be delegated in the bill.
In India, such control is exercised
through the committee on subordinate legislation on both the houses of
parliament.
3. Judicial
Control :-
Whenever a law made by the executive is
found to be i) inconsistent with the constitution or ii) ultra vires the parent
Act from which the law – making power has been derived, it is declared null and
void by the Court.
Sub –
Delegation
It is not uncommon for a body or a
person to receive delegated powers indirectly under a statute. The legislation so produced is in known is
sub – delegated legislation.
Q.No.6 What is a Precedent? Explain circumstances which
weaken the binding force of a precedent.
Marks:15
Precedent
Judicial
precedent is another imp source of law.
It have a binding force on Judicial Tribunals for deciding similar cases
in future.
Acc
to Salmond, the doctrine of Precendent has 2 meanings.
1. In a loose sense precedent includes merely
reported case law which may be cited and followed by the Courts.
2. In a strict sense, it means that case – law
which not only has a great binding authority but must also be followed.
* A statement of law made by a Judge in a
Case can become binding on later Judges and other subordinate courts and in
this way may becomes the law for every one to follow.
* Precedent
become binding depends on 2 main factors
1) It must have been pronounced by a court
which is sufficiently senior.
2) It is only the retiodecidendi, i.e.,
reasoning behind the decision which is binding.
Authority
of precedent in India :
* The privy Council’s Made Authoritative influence
by its decisions on Indian judicial legal system.
* The principles of equity, justice and
good conscience in India a were the result of privy council’s various
decisions. Still it’s decisions are
binding force in all the courts in India.
* After independence, the supreme court
occupied the place of the privy council.
Acc to Jeremy Bentham, precedent is a
Judge – Made law.
Austin call it as judiciary’s law.
Keeton holds precependents as those
judicial pronouncements of the court which carry with them certain authority
having a binding force.
* A precedent may be defined as a statement
of law found in the decision of a superior court, which has to be followed by
that court and by courts inferior to it.
* Meant to be followed a judicial decision
of a High Court or superior court by the same court as also by subordinate
courts.
* Black stone has pointed out that it is an
established rule to abide by the former precedents where the same points came
again in litigation.
* The process of Judicial decision making
may be either deductive pr inductive.
* Deductive method is associated with
codified system of law. It assumes that
the legal rule applicable to any particular case is fixed and certain and the
Judge us required to apply this rule as justice acc to the law without any
reference to his personal view.
* Inductive Method starts with the same
primary object of finding the general principles applicable to the particular
case, but it does not conceive the rule as being applicable to the particular
case, but it does not conceive the rule as being applicable directly by simple
method of deduction. It rather moves
from particular to general.
Kinds
of precedents
1. Declaratory and original precedents
2. Persuasive precedents
3. Absolutely Authoritative precedents,
4. Conditionally Authorities precedents.
Persuasive Precedents may be of
various Kinds
1. Foreign Judgments
2. Decision of superior courts to other parts
of British empire.
3. Judgments of the privy council when sitting
as the final court of appeal from the colonies.
4. Judicial dicta (obiter dicta)
5. Authoritative text books and
commentaries.
Art 141 -> Law declared by Supreme Court to be
binding on all Courts
Supreme Court
is not bound by its own decisions. The expression ‘all Courts’ used in Art 141
refers only to the Courts other than the Supreme Court. Therefore, the Supreme
Court is not bound by its own decisions except to the extent that a smaller
bench is bound by the decision of a larger bench and that of a co-equal bench.
Ratio decidendi:
·
Precedents
carry some legal principles. The legal principle on which a case is decided is
called the ratio decidendi of that case.
·
The
ratio decidendi means the reasoning factor behind the decision.
It
is that principle of law on which a judicial decision is based. It is the very
heart of a precedent
OBITER DICTA:
Judges
often express legal opinion on issues which they are not asked to decide. These
statements of law, in fact, not necessary for the decision, are termed obiter
dicta.
·
It
is what the judge said unwontedly, just by the way.
·
Goodhart
defined obiter dicta as “a conclusion based on a fact the existence of which
has not been determined by the Court”
Circumstances which destroy the binding force of
Judicial Precedents:
1) Ignore of
statute:
It is not
binding if it be rendered in ignorance of any statute or any other rule having
the force of stature.
2) Inconsistency
between earlier decision of higher Court:
It loses its
binding force completely, if it is inconsistent with the decision of a higher
Court.
3) Inconsistency
between earlier decision of the Court of the same Rank:
A Court is not
bound by its own earlier decisions which are conflicting with each other.
The conflict
may raise due to inadvertence, ignorance in earlier decisions before the Court.
4) Precedent sub
silentio:
A decision is
said to be sub silentio when the point of law involved in it is not fully
argued or not perceived by the Court.
5) Decision of
equally divided Court:
There may be
cases where the Judges of the Appellate court are equally divided. In such a
case practice is to dismiss the appeal and hold that the decision appealed
against is correctly decided.
6) Erroneous
decisions:
The decisions which are founded on misconceived principles or in conflict with
the fundamental principles of law lose their binding force totally.
7) Abrogated
decisions:
A decision ceases to be binding if statute inconsistent with it is subsequently
enacted. So also, it ceases to be binding if it is reserved, overrules or
abrogated.
8) Affirmation or
reversal on a different ground:
When a higher
Court either affirms or reverses the judgment of the Lower Court on a ground
different from that on which the judgment rests, the original Judgment is not
deprived of all the authority, but the subsequent Court may take a view that a
particular point which the higher Court did not touch, is rightly decided.
Advantages of Precedent:
1) Jurists like
Coke & Blackstone have supported the doctrine of precedents because it shows
respect for the opinion of one’s ancestors.
2) It enable the
judges to re-shape the law according to the needs of the time, binding
authority of precedents pouts check on the arbitrary decision of the judges.
3) Precedents
provide flexibility to the law to adopt itself to mew environments.
4) It is based on
customs and therefore, they are followed. In following precedents we follow
customs which in their turn have been a general practice or conduct of the
people for a long time, and not only the opinion of a Judge.
5) Laws contained
in the case laws are certain and simple. They being certainty in law.
6) They provide
useful guidelines to the Judges for decisions.
7) Precedents
give raise to practical and perfect laws because they are the result of
concrete actually happened problems.
8) It will save
the Labour of the Judges and the Lawyers. At the same time, it will cause a
great impediment in the way of the administration of justice.
Disadvantages of Precedent:
1) Bentham has
not recognized precedent as law because it lacks binding force of the state.
2) It overlooks
the fundamental rule of natural justice that law must be known before it is
actually enforced.
3) Acc to
Frederick Pollock, the law based on case – Law is incomplete because the Judges
take into consideration only those facts which are involved in the cases before
them.
4) Major setback
of precedent is that the development of law through case-law more or less
depends upon chance.
5) Sometimes
erroneous decisions of Supreme Court create practical problems for the
sub-ordinate Judges.
6) One practical
difficulty which arises in Judicial Precedent is that what should be the test
for determining the validity of law made by case Law?
UNIT-IV
Q.No.7 Discuss the idea of legal personality and
examine the statusofDead man.
Marks:15
LEGAL
PERSONALITY
The main
object of law is to regulate the relationship between individuals in the
society. The law imposes certain duties on individuals for the protection of
interests of mankind. The law being concerned with regulating the human
conduct, the concept of legal personality constitutes an important
subject-matter of jurisprudence because there cannot be rights and duties
without a person.
Origin of the concept of legal personality
The word “
person” is derived from the Latin word persona which meant a mask worn by
actors playing different roles in a drama.
Generally,
there are 2 types of person which the law recognizes, namely,
Natural and
artificial.
One of the
most recognized artificial person is corporation.
Definition of ‘’legal person’’
Salmond
defines, “ any being to whom the law regards as capable of rights or duties.
Any being that is so capable, is a person whether human being or not and
nothing that is not so capable is a person even though he a man.”
Gray ,’’
entity to which rights and duties may be attributed”.
Paton, legal
personality is a medium through which some such units are created in whom right
scan be vested.
Kinds of Persons
1.Natural Persons- A Natural person is a
human being capable of rights and duties. They are both persons in fact and in
law.
2.Legal persons- “ legal persons are
being, real or imaginary, who for the purpose of legal reasoning are treated in
greater or less degree in the same way as human beings.” they are persons in
law, but not in fact. Legal persons are also termed fictitious, juristic,
artificial or moral.
i) Corporation – a corporation is a
group or series of persons which, by a legal fiction, is regarded and treated
as a person.
ii) Institution – the object selected for
personification is not a group or series of persons, but an institution, for
eg., a church or university.
i)
Fund or
Estate-
the corpus is some fund or estate devoted to special of uses, for eg., a
charitable fund or a trust estate.
LEGAL
STATUS OF LOWER ANIMALS
The only natural persons are human
beings. Accsalmond beasts are not persons, either natural or legal. They are
merely tings – often the objects of legal rights
And duties but never the subject of
them.
Although the beasts are in cable of
legal rights and duties and their interests are not recognized by law but the
legal history reveals that archaic codes contained provisions regarding
punishment to animals if they were found guilty of homicide. Sutherland refers
to certain instances where bulls were punished. Ïf an ox gore a man or a woman
that they die: then the ox shall be surely stoned and flesh shall not be
eaten”.
In the ancient Hindu jurisprudence,
killing of harmless animals like swans, squirrels, cows , bulls, etc. was made
punishable with fine.
Today, an animal cannot be punished
but if it is extremely dangerous then only certain laws allow shooting down. In
India, the cattle trespass act has been passed for animals doing trespass.
A beast is incapable of legal rights as
of legal duties, for its interests receive no recognition from the law.
However, there are two cases in which beasts may poses legal rights. In the
first place, cruelty to animals is a criminal offence, and the second place, a
trust for the benefit of particular classes of animals, as opposed to one for
individual animals, is valid and enforceable as a public and charitable trust.
For e.g., a provision can be made for
the establishment and maintenance of a home for stray dogs or broken – down
horses.
Salmond says that the duties towards
animals are in fact duties towards the society itself. The society does have an
interest in the protection and well-being of animals.
LEGAL
STATUS OF UNBORN PERSONS
Unborn persons have given the legal
status by law. There is nothing in law to prevent a man from owning property
before he is born. His ownership is real and present ownership but it is
contingent because he may never be born at all.
Paton has observed that, “the child in
womb is not a legal personality and can have no rights”. this view is based
upon the fact that the child should be born alive and should be completely
extruded from the mother’s body before it can have any benefits under the law.
It is submitted that this view is not tenable. Now only children in utero, but
even unborn children in the sense of children not yet conceived have legal
personality. Thus, in the law of property, there is a fiction that a child en
ventresa mere is a person in being for the purposes of-
i)
The
acquisition of property by the child itself, or
ii)
being
a life chosen to form part of the period in the rule against perpetuities.
The Hindu law of partition requires a
share to be allotted to a child in mother’s womb along with the other living
heirs. But if the child is not born alive, his share will be equally
partitioned between the surviving heirs. Thus, proprietary rights of children
in utero are fully recognized by the law. Injury to the child in womb has been
made a punishable offence by the criminal law. Causing death of a child in womb
has been made a punishable offence by the Indian penal code a punishable
offence. Thus, children in the womb have rights protected by law and have legal
personality. Criminal law also protects the unborn child.
The personality of an unborn person is
contingent to his birth because if he dies in the womb or is still- born, no
right will be deemed to have been vested in such a child.
LEGAL
STATUS OF DEAD MAN
Accsalmond,“Dead man are no longer
persons in the eye of the law. They have laid down their legal personality with
their lives, and are now as destitute of rights as of liabilities. They have no
rights because they have no interests. They do not even remain the owner of
their property until their successors enter upon their inheritance.”
Ïn law dead men are ‘ things’’ and not
‘persons’’. They have no rights and no interests. The criminal law provides
that any imputation against a deceased peson, if it harms the reputation of
that person, if living, and is intended to hurt the feelings of his family or
other near relatives, shall be an offence of defamation under section 499 of
the indian penal code.
Salmond says that there are three
things, more especially, in respect of which the anxieties of living men extend
beyond the period of their death in such sort that the law will take notice of
them. These are a man’s body, his reputation and his estate.
Dead persons are not recognized as
legal persons but the testamentary dispositions of the dead are carried out by
law. A person can, by his will, made a valid trust for repairs and maintenance
of the graveyard because it amounts to a charitable or public trust but he
cannot, by a direction in his will, provide that certain part of his estate
shall be permanently used for the maintenance of his own grave.
Williams
v. Williams
it was laid down that a person cannot during his lifetime make a will disposing
of his body, for e.g., giving his brain to the museum or giving any part of his
body to the medical college. However, now a days one can legally donate his
eyes during his lifetime for another person after his death.
DOUBLE
CAPACITY AND DOUBLE PERSONALITY
Law recognizes many different
capacities in which a man may act. A man may have power to act in an official
or representative capacity or he may act in his private capacity or on his own
account.
The fact to be noticed is that if a
man has two or more capacities it does not give him the power to enter into a
legal transaction with himself. Double capacity must not cannot double
personality. Law does not recognize double personality of the individual. For
e.g. At common law, a man could not sue himself or contract with himself or
convey property to himself even if he was acting on each side in a different
capacity.
Q.No.8 sole corporation
Marks
:5
Corporations
A corporation is an artificial person.
It is a group or series of persons, which by legal fiction are treated as a
person and it has capacity to have rights and duties and holding property.
Corporation are of 2 kinds—
Kinds
of corporation
i)
corporation
aggregate
a corporation
aggregate is an incorporated group of co-existing persons. Corporations
aggregate have several members at a time.
E.g., a
registered company, consisting of all the shareholders and a municipal corporation consisting of all
the inhabitants of the borough, limited companies are the best example of a
corporation aggregate.
The
partnership firm is not a person because it is a person because it is only an aggregate of individuals but is not
incorporated. The existing partners own the property and the debts.
ii)
Corporation
-sole
A corporation
sole is an incorporated series of successive persons. Corporation sole has only
one member at a time. According to salmond, corporation sole is found only when
the successive holders of some public office are incorporated so as to
constitute a single, permanent and legal person.
E.g., the
secretary of state for war, the postmaster- general, the solicitor to the
treasury, attorney- general of India.
Advantages
of incorporation
1.Corporate
personality- a partnership firm, which has no existence apart form its members
a company is a distinct legal or juristic person independent of its
members.under the law, an incorporated company is a distinct entity, even the
one man company. Eg.,salomon v Solomon and co. it was held that the company has
its existence separate and distinct from its members.
2.Limited
liability- in the case of limited companies, no member is bound to contribute
anything more than the nominal value of the shares held by him
3.Perpetual
succession- an incorporated company has perpetual succession which means that
‘’ members may come and members may go but the company can go on forever’’
4.Transferable
shares- shares of the companies are movable property, transferable in the
manner provided by the articles of the company.
5.Restriction
on purchase by a company of its own shares- the companies have been prohibited,
with some exceptions, the purchase of their own shares, especially by companies
with liabilities limited by shares or guarantee.
6.Separate
property- a company as a legal entity is
capable of owning its funds and others assets. The property of the
company is not the property of the shareholders.
7.Capacity to
sue- as a juristic legal person, a company can sue in its name and be sued by others.
8. Flexibility
and autonomy- the company has an autonomy and independence to form its own
policies and implement them, subject to the general principles of law, equity
and good conscience and in accordance with the provisions contained in the
companies act, memorandum and articles of association.
Disadvantages of incorporation
1.Formalities
and expenses- incorporation of a company is coupled with complex, cumbersome
and detailed legal formalities and expenses, involving considerable time and
money.
2.Corporate
disclosures- notwithstanding the elaborate legal framework designed to ensure
maximum disclosure of corporate information, the members of a company are
having comparatively restricted accessibility to its internal management and
day-to- day administration of corporate working.
3. Divorce of
control from ownership- members of a company are no having as effective and
intimate control over its working as one can have in other forms of business
organization.
4.Greater
social responsibility- having regard to the enormous powers wielded by the
companies and the impact they have on society, the companies are called upon to
show greater social responsibility in their working and for that purpose, are
subject to greater control and regulation than that by which other forms of
business organization are governed and regulated.
5. Greater tax
burden in certain cases- in certain circumstances, the tax burden on a company
is more than that on others forms of business organization.
6. Detailed
winding – up procedure—the companies act provides elaborate and detailed
procedure for winding up of companies which is more expensive and time
consuming than that which is applicable to other forms of business organization.
UNIT-V
Q.No.9 Explain
the theory of strict liability and vicarious liability.
Marks:15
LIABILITY
Liability is responsibility for an act
or omission. Whoever commits a wrong is said to be liable for it.
Acc salmond, “ liability or responsibility
is the bond of necessity that exists between the wrongdoer and the remedy of
the wronged”.
Acc to Austin,”’liability consists in
those which a wrongdoer must do or suffer. It is the ultimatum of law and has
its source in the supreme will of the state.
Liability arises from a breach of duty
which may be in the form of an act or omission.he prefers to call liability as
‘imputability’’.
Liability can be classified in to
1.it can be civil or criminal.
2.it can be remedial or penal.
3.it can be absolute or vicarious.
Civil liability consisits in
enforcement of the right of the plaintiff against the defendant in civil
proceedings,
Criminal liability –the purpose of the
law is to punish the wrongdoer.
Difference b/w civil and criminal
liability:
1.Crime is a wrong against the society
but a civil wrong is a wrong against a private individual.
2. The remedy for a crime is
punishment but the remedy for civil wrongs is damages.
3. The proceedings in case of crime are
criminal proceedings but in case of a civil wrong they are civil proceedings.
4. In a civil wrong, the liability is measured by the
wrongful act and the liability depends upon the act and not on the intention while liability in a crime is
measured by the intention of the wrongdoer .
The defendant is asked to pay damages or
to pay a debt, or to make a specific performance,etc the liability is called
Remedial liability.
When after a successful proceeding the
wrongdoer is awarded punishment, fine, imprisonment, etc., the liability is
called penal liability.
STRICT
LIABILIY
Generally a man is held liable for his
wrongful acts but there is an exception to this general rule which is known as
wrongs of strict liability. These are the acts for which a man is responsible
irrespective of the existence of either wrongful intent or negligence. They are
exceptions to the general requirement of fault.
Wrong
of strict liability are also known as wrong of absolute liability. The wrong
arises from the breach of an absolute duty. An “absolute duty’’ may be defined
as a ‘ duty which renders a man liable
without any fault of his and irrespective of any consideration of intention or
negligence on his part”.
It
is absolute liability in the sense that it is not necessary for the injured
party to prove any intention or negligence on the part of the injuring party.
Wrongs of absolute liability can be classified into 4 kinds:
i)
Cases
relating to escape of dangerous things;
ii)
Cases
relating to escape of animals.
iii)
Cases
relating to the use of things which in their nature are specially dangerous
such as fire, fire-arms, explosives, poisonous drugs etc.
Acc
to salmond, it can be put into 3 groups-
1) Mistake of law
2) Mistake of
fact
3) Inevitable
accident
1) Mistake of
law- it is expressed in legal presumption that everyone knows the law. If a
person has committed a wrong under mistake of law, the law will not hear him
say that he had no guilty mind and that but for his ignorance of law, he would
not have done it. This presumption is irrefutable.
2) Mistake of
fact- which means that ignorance of the fact is excuse. It means that a person
is not liable for a wrongful act if he has done it under a mistake of fact.
Mistake of fact is a valid defense against wrongful acts.
In
R. v Prince – a person who abducted a girl under the legal age of consent was
held criminally liable, although he honestly believed her to be of that age
because the act of taking away the girl itself is a wrongful act.
3) Inevitable
accident- it is commonly recognized as a ground of exemption from liability.
Accsalmond, every act which is not done intentionally is either done
accidentally or by mistake. It is done accidentally when the consequences are
unintended and it is done by mistake when the consequences are intended but the
actor is ignorant of some material circumstances.
In
Ryan v Youngs the sudden death of the driver of a motor vehicle due to heart-
failure as a result of which the accident was caused, was held to be a mere
inevitable accident and the defendants were held not liable.
VICARIOUS
LIABILITY
Normally, the person who does the wrong
is liable for that wrongful act but there are certain circumstances when the
liability of the wrongdoer is imposed on some other person than the wrongdoer
himself. Therefore, in vicarious liability one man is made answerable for the
acts of another. Modern civil law recognized vicarious liability in 2 chief
classes:
i)
Masters
are responsible for the acts of their servants done in the course of their
employment,
ii)
Representatives
of dead men are liable for the acts of the deceased whom they represent.
1) Master’s
liability for the acts of his servants
Vicarious liability means
liability which is incurred for, or instead of, another. Every person is
responsible for his own acts, but in certain circumstances liability attaches
to him the wrongs committed by others. Liability of the master for the acts of
his servant is both joint as well as several.
A servant is that person who
voluntarily agrees, whether for wages or not, to subject himself at all times
during the period of service to the lawful orders and directions of another in
respect of certain work to be done. While the master is that person who is
legally entitled to give such orders and to have them obeyed by others.
3 reasons for holding a master liable
for the wrongs of his servant:
i)
Qui
facit per aliumfacit per se
ii)
Respondeat
superior
iii)
Financial
considerations
iv)
2) Living representatives for the acts of the
dead
A man cannot be punished in his
grave and, therefore, it was held that all actions for penal redress must be
brought against the living offender and must die with him. This old rule has
been abrogated by law to a great extent. A personal action does not survive on
the death, either of the person who sustained or the person who committed, the
wrong.
At common law, in the case of the death
of the person wronged, his executors or administrators could not maintain an
action for-
a)
Personal
wrongs committed during his life- time, such as assault, libel, false
imprisonment, negligence not causing death, reduction; or
b) Trespass to
his goods and chattels; or
c)
Damages
for his death.
Vicarious
liability in criminal law
The general principle is that a person is not
responsible for the act of another. A master is not criminally liable for the
unauthorized acts of his servant. However, there are certain exceptions of this rule. The legislature may prohibit an
act or enforce a duty to make them absolute. In such a case the principle will
be liable for the act of his servant as if he did that act himself. If a
principle neglects the performance of an act which is likely to cause dangers
to others and entrusts it to unskilled hands, he will be made criminally liable
in certain cases.
Q.No.10 Mens
Rea
Marks:5
Mens
Rea
Meaning
of mensrea is guilty mind. Any act alone does not constitute a crime. It
requires a guilty mind behind it. Mensrea is defined as the ‘mental element’’
necessary to constitute criminal liability’’. Slamond says that criminal
liability may require the wrongful act to be done intentionally or with some
further wrongful purpose in mind, or it may suffice that it was done
recklessly; and in each cae the mental attitude of the doer is such as to make
punishment effective. If a person does a wrongful act intentionally or even if
committed the forbidden act without wrongful intent but knowing the harmful
consequence of the act, he will be punished.
Mensrea
must extend to all three parts of the act;
i)
the
physical doing or not doing;
ii)
the
circumstances
iii)
the
consequences
wrongs may be divided into
three types;
i)
intentional
or Reckless wrongs—in which mensrea is intention, purpose, or design.
ii)
Wrongs
of Negligence—in which the mensrea is mere carelessness, as opposed to wrongful
intent or foresight.
iii)
Wrongs
of Strict liability – in which mensrea is not required. These wrongful acts by
themselves are wrongs and punishable.
Exceptions to mensrea
i)
When
the law imposes strict liability, the requirement of guilty mind or mensrea is
dispensed with. In the interest of public safety, health, and social welfare,
many measures imposing strict liability have been legislated. In matters
concerning DSFSDFpublic health, food, drugs etc.,such
strict liability is imposed.
ii)
Where
mensrea is difficult to be proved, a
guilty mind need not be proved in such cases; provided that the penalties are
petty fines.
iii)
In
the interest of public safety, in deciding cases relating to public nuisance,
it is not necessary to take mensrea into consideration.
iv)
In
those cases which are criminal in form but in fact they are only summary mode
of enforcing a civil rights, mensrea is not necessary.
v)
Ignorance
of law is no excuse is the maxim of another exception.
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