Jurisprudence and Legal Theory by V. Mahajan, , available at Book Depository with free delivery worldwide. April 17th, - Read Jurisprudence and Legal Theory book reviews amp author details and Pdf This box is a note. You can add and remove as many boxes as you want.
Boxes can be used to display things like location info, store hours, pictures, ads, etc.. B Students Mahajan, , available at Book Depository with free delivery worldwide.. In this paper,. Friedman, Law in Changing Society. It, therefore, follows that jurisprudence comprises philosophy of law and its object is not to discover new rules but to reflect on the rules already known.
Sources: It is true that the basic features of a legal system are mainly to be found in its authoritative sources and the nature and working of the legal authority behind these sources. Therefore, it obviously forms the contents of jurisprudence.
Subject such as custom, legislation, precedent as a source of law, pros and cons of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the administration of justice etc.
About 29, Indian Law students are members of this community and share FREE study material, cases, projects, exam papers etc. The study of these abstract legal concepts furnishes a background for better understanding of aw in its various forms. Legal Theory: Legal theory is concerned with law as it exists and functions in the society, and the manner in which law is created and enforced as also the influence of social opinion and law on each other. Utility I Importance of Jurisprudence: Salmond opines that jurisprudence has its own intrinsic interest like any other subject of serious scholarship.
Just as a mathematician investigates the number theory not with the aim of seeing his findings put to practical use but by reason of the fascination which it holds for him, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest. The legal researches on jurisprudence may well have their effect on contemporary socio-political thought and at the same time may themselves be influenced by these ideologies.
Practical Applicability: Jurisprudence also has its practical applicability. It seeks to rationalize the concepts of law which enables us to solve the different problems involving intricateness of law. In other words, it serves to render the complexities of law more manageable and rational and in this way theory can help to improve practice in the seats of law.
Educational Value: Jurisprudence has great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and formalism and trains them to concentrate or social realities and the functional aspects of law. It is not the form of law but the social function of law which has relevance in modern jurisprudence.
Law has to take the needs of society and also of the advances in related and relevant disciplines such as sociology, economics, philosophy etc. The proper understanding of law of contract may perhaps require some knowledge of economics and economic theory or a proper grasp of criminal law may need some knowledge of criminology and perhaps also of sociology. Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the laws passed by the legislatures by providing the rules of interpretation.
It also furnishes them an opportunity to pinpoint the lacunae, short-comings and defects in the laws framed by the legislature and remedy them through their judicial interpretation. The study of jurisprudence helps in rationalizing the thinking of the students and prepares them for an upright civil life. The knowledge of law and legal precepts also helps them to face every exigency of human affairs boldly and courageously.
Jurisprudence may also be helpful to legislators who playa crucial role in the process of law-making. The study of jurisprudence may familiarize them with technicalities of law and legal precepts thus making their job fairly easy as also interesting.
The utility of jurisprudence should be tested in the light of its functional role and in the context of the prevailing socio-economic and political philosophies of the time, place and. The eyes are one of the most important parts of human body. Almonds all human activities and the movements of body are possible only through them.
Unless man can see things properly, he cannot do any work. The main function of jurisprudence is to study the origin of law, its development and its contribution towards society. Law is the only nearest and important aspect in the absence of which the existence of a peaceful and organised society cannot be imagined.
Laws are the basis of all nation-activities. The proper existence of State is in obedience of personal rights and liabilities of people and the conduct of national activities depends on the existence of solid and perfect law.
The matters relating to birth, marriages, death, succession etc. Hence it is essential to know the correct basic principles of law which are contained only in the jurisprudence. It is necessary that the people should have a sound knowledge of law which is possible only with the help of jurisprudence. Therefore, jurisprudence, having so much importance for the society, has rightly been called the eye of law.
Definition of Law: In one sense the law is a large body of rules and regulations based mainly on general principles of justice, fair play and convenience, which have been worked out and promulgated by governmental bodies to regulate human activities and define what is and what is not permissible conduct in various situations.
The term law, however, is also used in a much broader sense. To denote the whole process by which the organized society, through governmental bodies and personnel Legislatures, Courts, Administrative tribunals, Law enforcement agencies and officials, Penal and Corrective institutions etc. Thus the study of law is necessarily not only a study of legal rules but also a study of the whole legal system through which society attempts to maintain law and order. Article 13 3 a of the constitution.
The term law includes any ordinance, order, by-law, rule, regulation, notification, custom and usage having, in the territory of India, the force of law.
It denotes different kinds of rules and principles. Now we are discussing various meanings given to law which shall be discussed and the meaning in which it is taken in jurisprudence shall be discussed. Classification of Law: For a proper and Logical understanding of Law, its classification becomes necessary.
It helps in grasping the principles and the logical structure of the legal order. It makes clear the inter-relation of rules and their effect on each other. It helps in arranging the rules in a concise and systematic way. It presents an analysis for the architect of Law which greatly helps in codification. It is of great use for a lawyer. It helps him in understanding the law.
Classification of law is generally on the following pattern 1. Codified and Uncodified Law. Substantive Law and Procedural Law or Formal Law: Substantive law is the law dealing with the topic with which it has been connected.
Procedural or formal law deals with evidence and procedure in court of law- C. We have on the whole the same law of evidence in Civil cases. Some laws are predominantly substantive and some mainly formal or procedural. But a substantive law also may have the formal in it. Where the rule of formal law differs from a rule of substantive law, the substantive law prevails over the formal law, because all the formal laws deal with the form not with the spirit-. Substantive Law determines their conducts and relation in respect of the matter litigated.
Civil Law and Criminal Law: Civil Law which is the part of the imperative law, is the law of land and is forced by its courts -. Civil Law has what are known as sanctions behind it. A sanction means a coercive factor for the enforcement of law. These sanctions are of three kinds namely- 1. Inner or moral, Le. Social Le. That says how the Executive, the Legislative and the Judiciary are to function. That determines the structure of e state, the allocation of powers, the rights and liberties of the subject as also the obligation of t e citizen in consonance with the maintenance of the solidarity of the State.
Administrative or Executive Law: Administrative or executive law is the law including the rules concerning the Administration of the executive department of the State. Characteristics of Civil Law: a Uniformity, b Territoriality of application. Its aim is the prevention of and punishment for offences. Criminal law is necessary for maintaining order and peace within the State.
In civilized societies crime is considered to be a wrong against the society. Therefore, the state initiates the proceedings against the offender, and thus it is always a party in criminal cases.
This is why the criminal law is considered as a branch of pubic law. International Law: International law, also called the Law of Nations, is the body of rules which regulates mainly the mutual relations of States.
Some earlier jurists like Austin and his supporters were of the view that international law is not law as it lacked many of the elements which a law should have. But on the other hand Kelson, and his supporters were of the view that international law is a law and is superior to the municipal law.
This controversy is no more and it has been recognised on almost all heads that international law is law and is a very important branch of law. According to some jurists, it may be divided into two classes-. Public International Law: Public International law is the body of rules which governs the conduct and relations of states with each other.
Private International Law: Private International Law means those rules and principles according to which the cases having foreign elements are decided e. The rules and principles on which the rights and duties of person would be determined would be called private international law or conflicts of laws. Codification means promulgation, compilation, collection and systematization of the body of law in a coherent form by an authority in a State competent to do so.
The codified law is certain, simple and rigid whereas the uncodified law is flexible as a judge is bound by the precedent of higher courts. The codified law can be laid down beforehand whereas the emergence of uncodified law depends on litigation. Codified law is coherent whereas the uncodified law differs from case to case. Uncodified law is the principle and enacted law is merely accessory. The activity of the legislative is called for only on special occasions to do that which lies beyond the constructive or remedial efficacy of the common law or uncodified law.
Codification means, not the total disappearance of case law or uncodified law, but merely the reversal of this relation between it and statute law. Case law or uncodified law continue to grow, even when codes are complete. It means that the substance and body of law shall be enacted law, and that in that case law shall be incidental and supplementary only.
But no legislative skill can effectually anticipate the complexity and variety of facts. The function of. This supplementary and explainary case law is codified and incorporated into successive additions of the Code then the process of interpretation will begin again with the like results.
Before the codification, the customs and personal laws governed the individuals in India. This classification can also be shown with the help of following diagram -. Public Law: The state activities are largely regulated by public law. It determines and regulates the organization and functioning of the state and determines the relation of the state with its subjects.
Constitutional Law: By constitutional law is meant that law which determines the nature of the state and the structure of the government. Administrative Law: Administrative law deals with the structure, powers and functions of the organs of administration, the limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the methods by which their powers and functions are controlled including the legal remedies available to a person against them when his rights are infringed by the operation.
Criminal law is necessary for the maintenance of peace and order within the state. Private Law: This branch of law regulates and governs the relations of citizens with each other. The parties in such cases are the individual and the state. Through it judicial organ adjudicates the matters. A general classification is as follows a. Low of persons b.
Law of property c. Law of obligations d. Conflict of laws Law of obligation is divided into three classesa. There is difference of opinion among the jurists about the origin of law. Austin says that law originates from the Sovereign. The theologians say that law originates from God. The Vedas, the Quran which are the primary law sources of Hindus and Mohammedans are considered to have been revealed by God.
The Former source is the act of the State as manifested in the Statute. Former sources are those from which the law derives its force and validity. Material sources are those sources of law from which law derives not its validity but the subject matter of which it is composed. Legal sources are those which are authoritative. These are recognised as such by the law itself.
These are allowed by the Courts as of right. These are immediate sources of law. The rest of the sources are the historical sources; these are unauthoritative. Under this clause come- Juristic writings, Foreign decisions and numerous other things from which a judge derives help in shaping his judgement.
If they are recognized by law as such or they are incorporated in law they may become legal. Solmand says that historical sources pertain to legal history and not to legal theory. Therefore, in his book of jurisprudence he has discussed only legal sources.
And even in legal sources he has included Legislation, Precedent and Customs only. As per Solmand, classified by reference to their legal sources, there are four kinds of law-. Customs What is Custom? Custom may be defined as the uniformity of conduct of people under like circumstances.
Those patterns of human behaviour which receive universal acceptance and recognition are called sage and when in the course of time they get established, they are called customs. For where the people find any act to be good and beneficial and apt and agreeable to their nature and disposition, they use and practise it from time to time, and it is by frequent Iiteration and multiplication of this act that the custom is made and being used.
From time in which custom is made and being used to time in which memory runneth not to the contrary obtains the force of law. Thus, it is tradition passing on from one generation to another that originally governed human conduct. This tradition is custom. Customs without Sanction: Customs without sanction are those customs, which are non-obligatory.
They are observed due to the pressure of public opinion. Customs having Sanction: Customs having sanction are those customs, which are enforced by the state.
These are the customs with which we are concerned. These can be divided into two partsi. Legal Customs: Legal Customs operate as a binding rule of law and have been recognized by the courts and have become a part of the law of land. These customs are enforced by courts and can further be classified as followsa. General Customs: General customs are those customs which prevail throughout the territory of the state, though the customs which are treated to be part of law of the land are general legal customs.
Local Customs: Local customs are those customs which apply to a defined locality i. These can be classified as follows -. Essentials of a Valid Custom: Certain essentials have been laid down which must be satisfied by a custom for its judicial recognition. The essentials which were laid down by the jurists for the recognition of custom are given belowAntiquity: A custom to be recognized as law must be proved to be in existence from time immemorial.
Time immemorial means time so remote that no living person can give its origin or can give incidence concerning it. Continuance: The other essential for the validity of custom is continuance. If must have been practiced continuously. It means that custom must have been enjoyed continuously without interruption.
If a custom has been disturbed for a considerable time, a presumption arises against it. Peaceable Enjoyment: The custom must have been enjoyed peaceably. Obligatory Force: For a valid custom it must have an obligatory force, which means that it must have been supported by the general public opinion and enjoyed as a matter of right. Certainty: A custom must be certain a custom A which is vague or indefinite, cannot be recognized.
It is more a rule of evidence then anything else. Consistency: Custom must not come into conflict with other established customs. There must be consistency among the customs.
It is, therefore, axiomatic that one custom cannot be set in opposition to other customs. Reasonableness: A custom must be reasonable. Custom gives a good deal of discretion to the court in the matter of recognition of customs. The degree of reasonableness cannot be judged. The custom should not be immoral and further the custom should not be contrary to the justice. Conformity With Statute Law: A custom, to be valid must be in conformity with the statute law.
If a custom is having all the essentials given above then it is law otherwise it is not a valid custom. Reasons For Recognition of Custom: Salmond has given two reasons for the recognition of custom. The reasons for the recognition are as followsCustom is frequently the embodiment of those principles, which have commended themselves to national conscience as principles of justice and public utility.
The national conscience may be well accepted by the court as an authoritative guide. The existence of an established usage is the basis of a rational expectation of its continuance in the future. When Does A Custom Become Law: To answer this question two views have been given by the jurists on this point, which are contrary to each other.
The view of Austin and Gray is that a custom becomes law after its recognition by the Sovereign. Austin says that custom is a source of law; it itself is not law. His definition of law that it is a command of the Sovereign does not allow the customs to be included in law. According to Savigny, who is the founder of this school, custom is per se law. A custom carries its justification on itself.
They are based on the opinion of the people and national character. They embody those principles of justice which society recognises. He says custom is the badge and not a ground of origin of positive law. According to historical school, custom is law independent of any declaration or recognition by the State. The State has no discretion or power over them except to accept them. Conclusion: Customs lie in the foundation of all legal systems. They came into existence with the existence of the society.
The customs are the basis of most of the laws, but at the same times, Judges, Jurists and Legislatures have played a very vital role in moulding them.
Precedent: Precedent is a fundamental principle of judicial practice in the British Common wealth and in the United States the decision of a Court quite apart from its intrinsic merit should have binding force on judicial tribunals.
What is Precedent? Precedent is an earlier event, decision or action used to guide in parallel circumstances later. Gray: A precedent covers every thing said or done which furnishes a rule for sub sequent practice. Keeton: A Precedent is a judicial decision to which authority has in some measure been attached.
Civil Law System: Civil law system which is followed in U. The Civil law system does not follow the Precedent System. The Doctrine of Precedent was taken from the British System. Some jurists consider Precedent is not law. Some say that judges do not make law. The role of judges is to explain and interpret the legislation and not to explain it.
The whole law of Torts in India is judge-made law. John Austin condemned the practice of judges making law. Salmond and Gray maintained that law amounting to nothing but the decisions of the Courts. However, all three agree that precedent is an important source of law. What is basis of Precedent: The judges create the Precedent on the basis of the existing law applicable to the case, if any, and if there is none, then out of natural justice, equity and good-conscience.
What exactly is a Precedent 1. Is it the decision? Is it the reason given by Court in such a decision, or. It is very difficult to give a categorical answer to these questions. But one must find out from any judgement that portion which is actually binding. In other words, what rule of law is behind the decision in a case must be discovered. Obiter Dicta: The other principles in the case remunerated in the case are Obiter Dicta. Good-Hart: The other view is of Prof.
According to this view only a study of whole series of decisions on a particular problem of law will be able to reveal the merging principle on that given problem. It is the Dynamic process of restricting and expanding, and reporting, and interpreting and reformulating a prior body of Doctrine. We have in theory accepted the view of John Salmond. However the latest view that Ratio of any case is a. Original Precedent: Original precedents are those which create or establish original or new.
Declaratory Precedent: Declaratory precedents are those which merely reiterate and apply an already existing rule or law. Precedents are further divisible in two classes1. Authoritative Precedent: An authoritative precedent is one which judges must follow whether they approve of it or not.
This is also called a Binding Precedent. Generally, a lower court is bound by the decision of higher court. Decisions of a court of co-ordinate jurisdiction are only persuasive. On the basis of this there was the theory of precedent in India. Crown Courts and Company Courts. The Crown Courts were the Supreme Courts and they were established under the provisions of Regulating Act, and were functioning in three presidency towns i. Calcutta, Bombay and Madras and these Courts were established under the authority of Parliament of England the other hand, the Company Courts i.
There were Presidency Courts in Presidency towns and mofussils court in districts and above these Courts was the High Court. Every court was bound by the decision of the superior court. This helped bringing uniformity and certainty in law because the decisions of Privy Council were binding on all the Courts in British India. Later on, on 1 October, a Federal Court was established in India under the provisions of government of India Act, The hierarchy of the Courts before independence of India was as under1.
Federal Court. Thus, the decisions of the Federal Court were binding on all the courts below. The decisions of the Privy council were binding on the Federal Court and the Court below. The Privy Council was not bound by its n decisions. During British time the Obiter Dicta things said by the way was binding on all the courts British India. After independence the Supreme Court of India was established as the highest court of India. The Supreme Court, sometimes overrules its earlier decisions or in other words, the Supreme Court is not bound by its earlier decision Art.
The overruling is not a good law but if any thing is detrimental to the general welfare of the public, the Supreme Court overrules the same as it has been done by the Supreme Court in Sajjan Singh vs. State of Rajasthan and Shankari Prasad case. The question before the court was whether the parliament has the power to abridge or to take away the fundamental rights of the citizens.
The Supreme Court held that yes, the parliament has the power to abridge or to take away the fundamental rights of the citizens. The Supreme Court evolved the Doctrine of prospective overruling and declared that the decision of Golak Nath case will only be applicable to the future cases.
This decision was not given retrospective operation so that there will be no choas and confusion among the masses and the whole progress of the country shall be dashed to ground.
The Application of the Doctrine: The authority of a decision as a precedent lies in its ratio decidendi. It is, therefore, necessary to know what this ratio decidendi is and how it is determined. Ratio decidendi and obiter dictum. There are cases which involve questions which admit of being answered on principles. Such principles are deduced by way of abstraction of the material facts of the case eliminating the immaterial elements.
And as the result the principle that comes out, is not applicable only to that case, but to other cases also which are similar to the decided case in their essential features. This principle is known as ratio decidendi, The issues which need determination of no general principles are answered on the basis of the circumstances of the particular case and lay down no principles of general application.
These are called obiter dictum. It is the ratio decidendi or the general principle, and not the obiter dictum that. But the determination of ratio decidendi and obiter dictum is not so easy in practice as it appears to be in theory.
Many eminent jurists have laid down principles and methods to determine the ratio decidendi of a decision. But the task is full of difficulties. Goodhart has made an elaborate discussion about the structure of a case and has suggested methods for the determination of the ratio decidendi, but he too has failed in laying down infallible test. In cases in which the reasons for the decision are not given, or where judges have come to the same conclusion, but have given different, and, sometimes, contrary reasons, or where a reason, is only a hypothesis it is very difficult to find out the ratio decidendi.
But this difficulty serves useful purpose also. It is for the judge to determine ratio decidendi and to apply it on the case which he is going to decide. This gives an opportunity to him to mould the law according to the changed conditions by laying emphasis on one or the other point. When an appeal is heard by an even number of the judges and they are equally divided, the practice is that the appeal is deemed to have failed, and it is the resultant negative which is regarded as the precedent for the future.
Precedents are cited not only in those courts, or tribunals where they have obligatory force, but also where the precedent cited is in any way relevant in answering the question involved. And relevant decision of a court is a strong argument and it is given a respectful consideration. A precedent may be cited from any source which is reliable. Generally, the reports are used, and some reports are considered more authoritative than the other.
A precedent is not abrogated by lapse of time. With the passing of the time the authority of a precedent goes on strengthening if the law on that point is not altered by some statute. Merits and Demerits of the Doctrine: It is clear from the discussion made in the preceding page that the doctrine has assumed a very important place in modern times. A number of jurists have expressed their views for and against the doctrine. The supporters of the doctrine put forward the following arguments in support of the doctrine-.
Eminent jurists like Coke and Blackstone have supported the doctrine on this ground. They say that there are always some reasons behind these opinions, we mayor may not understand them. Precedents are based on customs, and, therefore, they should be followed.
Therefore, 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. As a matter of great convenience it is necessary that a question once decided should be settled and should not be subject to re-argument in every case in which it arises. It will save the labour of the judges and the lawyers. If the precedents are not followed, every case would go from the court of the first instance to the highest tribunal causing a lot of delay, expense and inconvenience to the public.
At the same time, it will cause a great impediment in the way of the administration of justice. Precedents bring certainty in law. If courts do not follow precedents and the judges start deciding and determining issues every time afresh without having regard to the previous decisions on the point, the law would become most uncertain. A good law should always be certain. This certainty can be brought about only by conferring authority on precedents.
Precedents bring flexibility in the law. Judges in giving their decisions are influenced by social, economic and many other values of their age.
They mould and shape the law according to the changed conditions and thus bring flexibility in the law. Precedents are Judge-made law. Therefore, they are more practical. They are based on actual cases. It is not like statute law which is based on a priori theories. The law develops through precedents according to actual needs. This development is based on experience. Thus, it is better suited to fulfill the ends of law.
Precedents bring about a scientific development in law. Precedents guide judges and, consequently, they are prevented from committing errors which they would have committed in the absence of precedents. The law, in precedents, is laid down after thrashing of the points and argument in great detail. Therefore, it is of great value to the judges. By following precedents, judges are prevented from any prejudice and partiality because precedents are binding on them.
By deciding cases on established principles, the confidence of the people in the judiciary is strengthened. As a matter of policy, decisions, once made on principle should not be departed from in the ordinary course. When reliance has been placed on a decision and the people have adjusted their rights and liabilities according to it, they should not be disappointed by an overruling of such decision.
Jessel, M. Of course, that requires two things, antiquity of decision, and the practice of mankind in conducting their affairs. There is always a possibility of overlooking authorities.
The vastly increasing number of the cases has an overwhelming effect on the judge and the lawyer. It is very difficult to trace out all the relevant authorities on every point. There are instances where a decision might have been different if some precedent would not have been overlooked. Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court on the horns of a dilemma.
Though there are rules for such contingencies, they are not of much help. The provision is that the lower court should choose between the two conflicting decisions of a superior court. But this makes law uncertain, depending on the individual interpretation and discretion.
A great demerit of the doctrine of precedent is that the development of law depends on the incidents of litigation. Sometimes, most important points may remain unadjudicated because nobody brought action upon them.
A very grave demerit, or, rather an anomaly, of the doctrine of precedent is that, sometimes, an extremely erroneous decision is established as law due to not being brought before a superior court. This is followed in later cases because courts do not allow the reopening of a question. Arguments Supporting the Doctrine not Sound: It is submitted that many of the arguments given in support of the doctrine of precedent are not realistic.
The argument that by following precedents we pay respect to the opinions of our ancestors is untenable and illogical.
The other argument also that precedents are based on customs contains but little truth. In any case it is not true in modem times. The precedents do not bring certainty in law. There is no infallible technique for discovering the law on a particular point except to turn the leaves of the terrifying volumes of reports and digests with every possibility of overlooking authorities.
Therefore, there is more uncertainty than certainty in following the precedents. The argument that the doctrine leads to the scientific development of law is unconvincing. Such development can be secured even without the doctrine of precedent. In the name of precedent most unfortunate cases are established as law and mar the logical consistency of the law.
Undoubtedly, precedents, in some cases, guide judges, but in other cases their binding effect makes the judges to deliver judgments which are in no way approved by their sense of justice.
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