English Jurisprudence for LLB First Years
Q1. Define Jurisprudence? Explain practical value of jurisprudence. (2000), (1997)(1993)
Q2.What is the Jurisprudence? Explain the practical value of jurisprudence
1. Introduction:
The study of jurisprudence started with the Romans. The definitions gives by the Roman jurists are vague and inadequate but they put forth the idea of a legal science. Every jurist has its own notion of the subject matter and the proper limits of jurisprudence depends upon his ideology and the nature of society. The world jurisprudence used is different languages in different senses. In French it refers “case law”. These has been a shift during the last one century and jurisprudence today is envisaged in more broader sense than it had understood in Australia age.
2. Meaning Of Jurisprudence:
The term jurisprudence is derived from the Latin word “Jurisprudentia” which means either “Knowledge of law” or “skill in law” .
3. Definition Of Jurisprudence:
It is definition to give a universal and uniform definition of jurisprudence. Following definitions have been givens by the leading jurists.
I. Austin’ s Definition:
Austin defines jurisprudence as “ the philosophy of positive law” positive law laid down by a political superior for controlling the conduct of those subjects to his authority.
A. Divisions Of Jurisprudence By Austin:
Austin divided the jurisprudence into following:
(i) General Jurisprudence
(ii) Particular Jurisprudence
(i) General Jurisprudence:
General Jurisprudence includes such subject or ends of law as are common to all systems.
(ii) Particular Jurisprudence:
Particular Jurisprudence is the science of any actual system of law or any portion of it.
B. Criticism On Austin’ s Definition:
Salmond’ s criticism:
The error in Austin’ s idea of general jurisprudence lies in the fact that he assumes that unless a legal principal is common to many legal systems, it cannot be dealt within general jurisprudence. There may be many schools of jurisprudence but not different kinds of it.
Holland’ s Criticism
Holland’ s points out that it is only the material which is particular and not the science itself.
II. Holland’ s Definition Of Jurisprudence:
Sir Thomas Erskine Holland defines Jurisprudence as “The formal science of positive law”.
A. Analysis Of Holland’ s Definition:
According to Holland, Jurisprudence is not a material science. Holland follows the Austin’s definition but he adds the term “formal” which means “that which concerns only the form and not its essence”. He says that jurisprudence is only a formal science i.e., a science which describes only the form or the external side of the subject and not its internal contents.B. Criticism:
By Gray:
The real relation of jurisprudence to law is treated but how law is treated
By Dr.Jenks:
He observed that jurist can only recognize a law by its form, for it is the form which causes the manifold matter of the phenomena to be perceived but having got the form as it were, on the operating table, has to dissect it and ascertain its meaning Jurisprudence is concerned with means rather than with ends, though some of its means are ends in themselves.
III. Salmond’ s Definition:
Salmond defines Jurisprudence as “The Science of Law”. By law he means the “law of the land”
Or “civil”.
Salmond uses the term Jurisprudence is two senses.
(i) Generic sense:
Generic jurisprudence includes the entire body of legal doctrines. In that sense, jurisprudence is of 3 kinds.
(a) Expository or Systematic Jurisprudence:
It deals with the contents of an actual legal system as existing law at any time, whether in past or in presents.
(b) Legal History:
It deals with the history of development of law.
(c) Science of legislation:
The purpose of the science of legislation is to set forth law as it be. It deals with the ideal of the legal system and the purpose for which it exists.
(ii) Specific Sense:
Specific jurisprudence deals with a particular department of legal doctrines. In this sense, it is also called theoretical or general jurisprudence . it is also defined as “the science of the first principal of the Civil Law.”
In this sense, he divides the subject into 3 branches:
(a) Analytical Jurisprudence
(b) Historical Jurisprudence
(c) Ethical Jurisprudence
A. Criticism:
It is submitted that Salmond had failed to give an accurate and scientific and also the divisions made by him of jurisprudence into general and particular raises a great deal of criticism as the Holland observes that these expressions should be discarded, as the science should be treated as incapable of being divided into these two branches.
IV. Definition Of Jurisprudence At Present Juncture:
The term jurisprudence may tentatively be described as any thought or writing about law and its relation to other disciplines such as philosophy, economics, anthropology and money others.
4. Scope Of Jurisprudence:
There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed under the following three heads.
I. Early Period:
In the early period, jurisprudence has been so defined as to cover moral and religious percepts also and that has created confusion.
II. Austinian Period:
It was the Austin, who distinguished law form morality and theology and restricted the term to the body of rules set and enforced by the sovereign or supreme law-making authority within the realm. So the scope of jurisprudence was limited to the study of the concept of positive law only.
III. Modern Period:
At present, there is a tendency to widen the scope of jurisprudence. The present view is that the limited. It includes all concepts human order and human conduct is state and society.
View of P.B Mukherji :
Jurisprudence includes political social, economic and cultural ideas. It covers the study of man in relation to state and society.
View of Lord Redcliffe:
Jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.
5. Importance And Utility Of Jurisprudence:
Jurisprudence in basically a theoretical subject but it also has a practical and educational value. The enumerated as under.
(i) Remove the complexities of law:
One of the task of jurisprudence is to construct concepts and make law more manageable and rational.
(ii) Answers the new problems:
Jurisprudence can teach people to look 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 past.
(iii) Grammar of Mind:
Jurisprudence is the grammar of law. It throws light on the basic ideas and the fundamental principles of law e.g., negligence, liability etc.
(iv) Training of Mind:
Jurisprudence trains the mind to solve the difficult legal provisions in legal way.(v) Grasp on the subject:
It helps is knowing and grasping the language, grammar, the basis of treatment and assumption upon which subject rests.
(vi) Useful in Art of pleading and legislation:
It helps legislators and the lawyer the proper use of legal terminology. It relieves them of the botheration creation of defining again and again certain expressions e.g., right, duty etc.
(vii) To Interpret law:
It helps the judges and the lawyers in ascertaining the true meanings of the law passed by the legislatures by providing the rules of interpretation.
(viii) To study foreign law.
It enable a lawyer to study foreign law because the fundamental principal are generally common to all systems of law.
(ix) Importance under the light of different jurists:
By Dr. M.J Sethna:
The value of jurisprudence lies in examining the consequences of law and its administration on social welfare and suggesting changes for the betterment of the superstructure of laws.
By M. 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.
6. Conclusion:
To conclude, I can say, that jurisprudence is the science of law and there are different methods of approach to it. The true purpose of the study of jurisprudence should not be confined to the study of positive law alone but must include normative study, that deal with the improvement of law in the context of prevailing, socio-economic and political philosophies of time, place and circumstances.
Q.Define Law. What are different kinds of law?
Q.Distinguish between general law and special law. Explain the kinds of special law that stand outside the preview of general law.(Supplementary1999)
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior. Laws are made by governments, specifically by their parliaments. The formation of laws themselves is influenced by a constitution and the rights encoded therein. The law shapes politics, economics and society in countless ways and serves as a social mediator of relations between people.
Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law regulates the transfer and title of personal property and real property. Trust law applies to assets held for investment and financial security. Tort law allows claims for compensation if a person's property are harmed. If the harm is criminalised in legislation, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. International law governs affairs between sovereign states in activities ranging from trade to military action. Writing in 350BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual.
A general distinction can be made between civil law jurisdictions, which codify their laws, and common law systems, where judge made law is not consolidated. In some countries, religion informs the law. Law provides a rich source of scholarly inquiry, into legal history, philosophy, economic analysis or sociology. Law also raises important and complex issues concerning equality, fairness, and justice. "In its majestic equality", said the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.In a typical democracy, the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. To implement and enforce the law and provide services to the public, a government's bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.
Kind of Law:
All legal systems deal with the same basic issues, but jurisdictions categorise and identify its legal subjects in different ways. A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property). In civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects although there are many further disciplines.
Public international law, Conflict of laws, and European Union law
Providing a constitution for public international law, the United Nations system was agreed during World War II
International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations.
Public international law concerns relationships between sovereign nations. The sources for public international law development are custom, practice and treaties between sovereign nations, such as the Geneva Conventions. Public international law can be formed by international organisations, such as the United Nations (which was established after the failure of the League of Nations to prevent the Second World War) the International Labour Organisation, the World Trade Organisation, or the International Monetary Fund. Public international law has a special status as law because there is no international police force, and courts (e.g. the International Court of Justice as the primary UN judicial organ) lack the capacity to penalise disobedience. However, a few bodies, such as the WTO, have effective systems of binding arbitration and dispute resolution backed up by trade sanctions.
Conflict of laws (or "private international law" in civil law countries) concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied. Today, businesses are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas businesses, making the question of which country has jurisdiction even more pressing. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958
European Union law is the first and, so far, only example of a internationally accepted legal system other than the UN and the World Trade Organisation. Given the trend of increasing global economic integration, many regional agreements—especially the Union of South American Nations—are on track to follow the same model. In the EU, sovereign nations have gathered their authority in a system of courts and political institutions. These institutions are allowed the ability to enforce legal norms both against or for member states and citizens in a manner which is not possible through public international law. As the European Court of Justice said in the 1960s, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states.
Constitutional and administrative law
The French Declaration of the Rights of Man and of the Citizen, whose principles still have constitutional value
Constitutional and administrative law govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. Most jurisdictions, like the United States and France, have a single codified constitution with a bill of rights. A few, like the United Kingdom, have no such document. A "constitution" is simply those laws which constitute the body politic, from statute, case law and convention. A case named Entick v Carrington illustrates a constitutional principle deriving from the common law. Mr Entick's house was searched and ransacked by Sheriff Carrington. When Mr Entick complained in court, Sheriff Carrington argued that a warrant from a Government minister, the Earl of Halifax, was valid authority. However, there was no written statutory provision or court authority. The leading judge, Lord Camden, stated that,
The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole ... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.
The fundamental constitutional principle, inspired by John Locke, holds that the individual can do anything but that which is forbidden by law, and the state may do nothing but that which is authorised by law. Administrative law is the chief method for people to hold state bodies to account. People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law. The first specialist administrative court was the Conseil d'État set up in 1799, as Napoleon assumed power in France
Criminal law
Criminal law, also known as penal law, pertains to crimes and punishment. It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact but, in itself, makes no moral judgment on an offender nor imposes restrictions on society that physically prevents people from committing a crime in the first place. Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure. The paradigm case of a crime lies in the proof, beyond reasonable doubt, that a person is guilty of two things. First, the accused must commit an act which is deemed by society to be criminal, or actus reus (guilty act).Second, the accused must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). However for so called "strict liability" crimes, an actus reus is enough. Criminal systems of the civil law tradition distinguish between intention in the broad sense (dolus directus and dolus eventualis), and negligence. Negligence does not carry criminal responsibility unless a particular crime provides for its punishment.
A depiction of a 1600s criminal trial, for witchcraft in Salem
Examples of crimes include murder, assault, fraud and theft. In exceptional circumstances defences can apply to specific acts, such as killing in self defence, or pleading insanity. Another example is in the 19th century English case of R v Dudley and Stephens, which tested a defence of "necessity". The Mignonette, sailing from Southampton to Sydney, sank. Three crew members and Richard Parker, a 17 year old cabin boy, were stranded on a raft. They were starving and the cabin boy was close to death. Driven to extreme hunger, the crew killed and ate the cabin boy. The crew survived and were rescued, but put on trial for murder. They argued it was necessary to kill the cabin boy to preserve their own lives. Lord Coleridge, expressing immense disapproval, ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it." The men were sentenced to hang, but public opinion was overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Crown commuted their sentences to six months in jail.
Criminal law offences are viewed as offences against not just individual victims, but the community as well. The state, usually with the help of police, takes the lead in prosecution, which is why in common law countries cases are cited as "The People v ..." or "R (for Rex or Regina) v ..." Also, lay juries are often used to determine the guilt of defendants on points of fact: juries cannot change legal rules. Some developed countries still condone capital punishment for criminal activity, but the normal punishment for a crime will be imprisonment, fines, state supervision (such as probation), or community service. Modern criminal law has been affected considerably by the social sciences, especially with respect to sentencing, legal research, legislation, and rehabilitation. On the international field, 111 countries are members of the International Criminal Court, which was established to try people for crimes against humanity.
Contract law
The famous Carbolic Smoke Ball advertisement to cure influenza was held to be a unilateral contract
Contract law concerns enforceable promises, and can be summed up in the Latin phrase pacta sunt servanda (agreements must be kept). In common law jurisdictions, three key elements to the creation of a contract are necessary: offer and acceptance, consideration and the intention to create legal relations. In Carlill v Carbolic Smoke Ball Company a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, the buyers would get £100. Many people sued for their £100 when the drug did not work. Fearing bankruptcy, Carbolic argued the advert was not to be taken as a serious, legally binding offer. It was an invitation to treat, mere puff, a gimmick. But the court of appeal held that to a reasonable man Carbolic had made a serious offer. People had given good consideration for it by going to the "distinct inconvenience" of using a faulty product. "Read the advertisement how you will, and twist it about as you will", said Lord Justice Lindley, "here is a distinct promise expressed in language which is perfectly unmistakable".
"Consideration" indicates the fact that all parties to a contract have exchanged something of value. Some common law systems, including Australia, are moving away from the idea of consideration as a requirement. The idea of estoppel or culpa in contrahendo, can be used to create obligations during pre-contractual negotiations. In civil law jurisdictions, consideration is not required for a contract to be binding. In France, an ordinary contract is said to form simply on the basis of a "meeting of the minds" or a "concurrence of wills". Germany has a special approach to contracts, which ties into property law. Their 'abstraction principle' (Abstraktionsprinzip) means that the personal obligation of contract forms separately from the title of property being conferred. When contracts are invalidated for some reason (e.g. a car buyer is so drunk that he lacks legal capacity to contract) the contractual obligation to pay can be invalidated separately from the proprietary title of the car. Unjust enrichment law, rather than contract law, is then used to restore title to the rightful owner.
Tort law
The "McLibel" two were involved in the longest running case in UK history for publishing a pamphlet criticising McDonald's restaurants.
Torts, sometimes called delicts, are civil wrongs. To have acted tortiously, one must have breached a duty to another person, or infringed some pre-existing legal right. A simple example might be accidentally hitting someone with a cricket ball. Under the law of negligence, the most common form of tort, the injured party could potentially claim compensation for his injuries from the party responsible. The principles of negligence are illustrated by Donoghue v Stevenson. A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a café in Paisley. Having consumed half of it, Mrs Donoghue poured the remainder into a tumbler. The decomposing remains of a snail floated out. She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer for carelessly allowing the drink to be contaminated. The House of Lords decided that the manufacturer was liable for Mrs Donoghue's illness. Lord Atkin took a distinctly moral approach, and said,
The liability for negligence ... is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay ... The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
This became the basis for the four principles of negligence; (1) Mr Stevenson owed Mrs Donoghue a duty of care to provide safe drinks (2) he breached his duty of care (3) the harm would not have occurred but for his breach and (4) his act was the proximate cause, or not too remote a consequence, of her harm. Another example of tort might be a neighbour making excessively loud noises with machinery on his property. Under a nuisance claim the noise could be stopped. Torts can also involve intentional acts, such as assault, battery or trespass. A better known tort is defamation, which occurs, for example, when a newspaper makes unsupportable allegations that damage a politician's reputation. More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes, when statute does not provide immunity.
Property law
A painting of the South Sea Bubble, one of the world's first ever speculations and crashes, led to strict regulation on share trading.
Property law governs valuable things that people call 'theirs'. Real property, sometimes called 'real estate' refers to ownership of land and things attached to it. Personal property, refers to everything else; movable objects, such as computers, cars, jewelry or intangible rights, such as stocks and shares. A right in rem is a right to a specific piece of property, contrasting to a right in personam which allows compensation for a loss, but not a particular thing back. Land law forms the basis for most kinds of property law, and is the most complex. It concerns mortgages, rental agreements, licences, covenants, easements and the statutory systems for land registration. Regulations on the use of personal property fall under intellectual property, company law, trusts and commercial law. An example of a basic case of most property law is Armory v Delamirie [1722]. A chimney sweep's boy found a jewel encrusted with precious stones. He took it to a goldsmith to have it valued. The goldsmith's apprentice looked at it, sneakily removed the stones, told the boy it was worth three halfpence and that he would buy it. The boy said he would prefer the jewel back, so the apprentice gave it to him, but without the stones. The boy sued the goldsmith for his apprentice's attempt to cheat him. Lord Chief Justice Pratt ruled that even though the boy could not be said to own the jewel, he should be considered the rightful keeper ("finders keeper") until the original owner is found. In fact the apprentice and the boy both had a right of possession in the jewel (a technical concept, meaning evidence that something could belong to someone), but the boy's possessory interest was considered better, because it could be shown to be first in time. Possession may be nine tenths of the law, but not all.
This case is used to support the view of property in common law jurisdictions, that the person who can show the best claim to a piece of property, against any contesting party, is the owner. By contrast, the classic civil law approach to property, propounded by Friedrich Carl von Savigny, is that it is a right good against the world. Obligations, like contracts and torts are conceptualised as rights good between individuals. The idea of property raises many further philosophical and political issues. Locke argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.
Equity (law) and Trust law
The Court of Chancery, London, early 19th century
Equity is a body of rules that developed in England separately from the "common law". The common law was administered by judges. The Lord Chancellor on the other hand, as the King's keeper of conscience, could overrule the judge made law if he thought it equitable to do so. This meant equity came to operate more through principles than rigid rules. For instance, whereas neither the common law nor civil law systems allow people to split the ownership from the control of one piece of property, equity allows this through an arrangement known as a 'trust'. 'Trustees' control property, whereas the 'beneficial' (or 'equitable') ownership of trust property is held by people known as 'beneficiaries'. Trustees owe duties to their beneficiaries to take good care of the entrusted property. In the early case of Keech v Sandford [1722] a child had inherited the lease on a market in Romford, London. Mr Sandford was entrusted to look after this property until the child matured. But before then, the lease expired. The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease. Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead. Mr Sandford took it. When the child (now Mr Keech) grew up, he sued Mr Sandford for the profit that he had been making by getting the market's lease. Mr Sandford was meant to be trusted, but he put himself in a position of conflict of interest. The Lord Chancellor, Lord King, agreed and ordered Mr Sandford should disgorge his profits. He wrote,
I very well see, if a trustee, on the refusal to renew, might have a lease to himself few trust-estates would be renewed ... This may seem very hard, that the trustee is the only person of all mankind who might not have the lease; but it is very proper that the rule should be strictly pursued and not at all relaxed.
Of course, Lord King LC was worried that trustees might exploit opportunities to use trust property for themselves instead of looking after it. Business speculators using trusts had just recently caused a stock market crash. Strict duties for trustees made their way into company law and were applied to directors and chief executive officers. Another example of a trustee's duty might be to invest property wisely or sell it. This is especially the case for pension funds, the most important form of trust, where investors are trustees for people's savings until retirement. But trusts can also be set up for charitable purposes, famous examples being the British Museum or the Rockefeller Foundation.
Law spreads far beyond the core subjects into virtually every area of life. Three categories are presented for convenience, though the subjects intertwine and overlap.
Law and society
A trade union protest by UNISON while on strike
Labour law is the study of a tripartite industrial relationship between worker, employer and trade union. This involves collective bargaining regulation, and the right to strike. Individual employment law refers to workplace rights, such as job securiy, health and safety or a minimum wage.
Human rights, civil rights and human rights law are important fields to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the Universal Declaration of Human Rights, the European Convention on Human Rights (which founded the European Court of Human Rights) and the U.S. Bill of Rights. The Treaty of Lisbon makes the Charter of Fundamental Rights of the European Union legally binding in allmember states except Charter of Fundamental Rights of the European Union – Poland and the United Kingdom.
Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern a citizen's right to a fair trial or hearing.
Evidence law involves which materials are admissible in courts for a case to be built.
Immigration law and nationality law concern the rights of foreigners to live and work in a nation-state that is not their own and to acquire or lose citizenship. Both also involve the right of asylum and the problem of stateless individuals.
Social security law refers to the rights people have to social insurance, such as jobseekers' allowances or housing benefits.
Family law covers marriage and divorce proceedings, the rights of children and rights to property and money in the event of separation.
Law and commerce
Company law sprang from the law of trusts, on the principle of separating ownership of property and control. The law of the modern company began with the Joint Stock Companies Act 1856, passed in the United Kingdom, which provided investors with a simple registration procedure to gain limited liability under the separate legal personality of the corporation.
Commercial law covers complex contract and property law. The law of agency, insurance law, bills of exchange, insolvency and bankruptcy law and sales law are all important, and trace back to the mediæval Lex Mercatoria. The UK Sale of Goods Act 1979 and the US Uniform Commercial Code are examples of codified common law commercial principles.
Admiralty law and the Law of the Sea lay a basic framework for free trade and commerce across the world's oceans and seas, where outside of a country's zone of control. Shipping companies operate through ordinary principles of commercial law, generalised for a global market. Admiralty law also encompasses specialised issues such as salvage, maritime liens, and injuries to passengers.
Intellectual property law aims at safeguarding creators and other producers of intellectual goods and services. These are legal rights (copyrights, trademarks, patents, and related rights) which result from intellectual activity in the industrial, literary and artistic fields.
Restitution deals with the recovery of someone else's gain, rather than compensation for one's own loss.
Unjust enrichment When someone has been unjustly enriched (or there is an "absence of basis" for a transaction) at another's expense, this event generates the right to restitution to reverse that gain.
Law and regulation
The New York Stock Exchange trading floor after the Wall Street Crash of 1929, before tougher banking regulation was introduced
Tax law involves regulations that concern value added tax, corporate tax, income tax.
Banking law and financial regulation set minimum standards on the amounts of capital banks must hold, and rules about best practice for investment. This is to insure against the risk of economic crises, such as the Wall Street Crash of 1929.
Regulation deals with the provision of public services and utilities. Water law is one example. Especially since privatisation became popular and took management of services away from public law, private companies doing the jobs previously controlled by government have been bound by varying degrees of social responsibility. Energy, gas, telecomms and water are regulated industries in most OECD countries.
Competition law, known in the U.S. as antitrust law, is an evolving field that traces as far back as Roman decrees against price fixing and the English restraint of trade doctrine. Modern competition law derives from the U.S. anti-cartel and anti-monopoly statutes (the Sherman Act and Clayton Act) of the turn of the 20th century. It is used to control businesses who attempt to use their economic influence to distort market prices at the expense of consumer welfare.
Consumer law could include anything from regulations on unfair contractual terms and clauses to directives on airline baggage insurance.
Environmental law is increasingly important, especially in light of the Kyoto Protocol and the potential danger of climate change. Environmental protection also serves to penalise polluters within domestic legal systems.
Legal systems of the world
In general, legal systems can be split between civil law and common law systems. The term "civil law" referring to a legal system should not be confused with "civil law" as a group of legal subjects distinct from criminal or public law. A third type of legal system—accepted by some countries without separation of church and state—is religious law, based on scriptures. The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system. Yet classification is a matter of form rather than substance, since similar rules often prevail.
Civil law (legal system)
First page of the 1804 edition of the Napoleonic Code
Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—and custom. Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi. Modern civil law systems essentially derive from the legal practice of the 6th-century Eastern Roman Empire whose texts were rediscovered by late medieval Western Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class. Instead a lay magistrate, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised. Each case was to be decided afresh from the laws of the State, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. From 529–534 AD the Byzantine Emperor Justinian I codified and consolidated Roman law up until that point, so that what remained was one-twentieth of the mass of legal texts from before. This became known as the Corpus Juris Civilis. As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before. The Justinian Code remained in force in the East until the fall of the Byzantine Empire. Western Europe, meanwhile, relied on a mix of the Theodosian Code and Germanic customary law until the Justinian Code was rediscovered in the 11th century, and scholars at the University of Bologna used it to interpret their own laws. Civil law codifications based closely on Roman law, alongside some influences from religious laws such as Canon law, continued to spread throughout Europe until the Enlightenment; then, in the 19th century, both France, with the Code Civil, and Germany, with the Bürgerliches Gesetzbuch, modernised their legal codes. Both these codes influenced heavily not only the law systems of the countries in continental Europe (e.g. Greece), but also the Japanese and Korean legal traditions. Today, countries that have civil law systems range from Russia and China to most of Central and Latin America. The United States follows the common law system described below.
Common law and equity
Common law and equity are legal systems where decisions by courts are explicitly acknowledged to be legal sources. The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts. Common law systems also rely on statutes, passed by the legislature, but may make less of a systematic attempt to codify their laws than in a "civil law" system. Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland, the U.S. state of Louisiana, and the Canadian province of Quebec). In medieval England, the Norman conquest led to a unification of various tribal customs and hence a law "common" to the whole country. The common law developed when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France. King John had been forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law. As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was often criticised as erratic, that it varied according to the length of the Chancellor's foot. But over time it developed solid principles, especially under Lord Eldon. In the 19th century the two systems were fused into one another. In developing the common law and equity, academic authors have always played an important part. William Blackstone, from around 1760, was the first scholar to describe and teach it. But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.
Religious law
Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia—both of which translate as the "path to follow"—while Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. However a thorough and detailed legal system generally requires human elaboration. For instance, the Quran has some law, and it acts as a source of further law through interpretation,Qiyas (reasoning by analogy), Ijma (consensus) and precedent. This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or Old Testament, in the Pentateuch or Five Books of Moses. This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha is a code of Jewish law which summarises some of the Talmud's interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the Catholic Church, the Eastern Orthodox Church and the Anglican Communion.
A trial in the Ottoman Empire, 1879, when religious law applied under the Mecelle
Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire's Mecelle code in the 19th century being first attempt at codifying elements of Sharia law. Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia. Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law. Iran has also witnessed a reiteration of Islamic law into its legal system after 1979. During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics.
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Q.1: Law is the command of sovereign.Dicuss and comments on this theory.(Annual 200)
Q.2:Explain the imperative theory of law. Also state objections reised against the thoery.(Supply 2001)
Q.3: Law is the command of sovereign.Explain by giving illustration in support of your answers.(Annual 2002)
1. Introduction:
The theory of legal realism, like positivism, looks on law as the expression of the will of the state but sees it as made through the medium of Courts. Law no doubt is the command of the sovereign, but the sovereign to the realist is not the Parliament but the Court.
2. IMPERATIVE OR AUSTIN'S THEORY OF LAW:
Austin says that law is a command which obliges a person or persons to a course of conduct. It is laid down by a political sovereign, and enforceable by a sanction.
3. FEATURES OF IMPERATIVE THEORY:
According to Austin, positive law has three main features:
I. Command
II. Sovereign
III. Sanction
I. COMMAND:
The first features of law is that it is a type of command.
According to Austin:
Commands are expressions of desire given by superiors to inferiors.
(i) Laws are general commands:
There are commands which are laws and which are not, Austin distinguishes law from other commands by their generality. Laws are general commands, unlike commands given on parade grounds and obeyed there then by the troops.
II. SOVEREIGN:
According to Austin, a sovereign is any person or body of persons, whom the bulk of a political society habitually obeys and who does not himself habitually obeys, some other persons or persons.
Characteristics of Sovereign:
(i) Source of Laws:
Sovereign is the source of law. Every law is set, by a sovereign persons or body of persons.
(ii) Source of Power:
Prof. Laski says that there are three implications of the definition of sovereignty given by Austin. The state is a legal order in which there is a determinate authority acting as the ultimate source of power.
(iii) Indivisible Power:
The power of sovereign is indivisible. It cannot be divided. Accordingly to Austin, there can only be one sovereign in the state. The totality of sovereign is vested in one person or a body of persons.
(iv) Habitual obedient by People:
The chief characteristic of sovereign lies in the power to exact habitual obedience from the bulk of the member of the society.
III. SANCTION:
The term sanction is derived from Roman Law. According to Salmond "Sanction is the instrument of coercion by which any system of imperative law is enforced. Physical force is the sanction applied by the state in the administration of justice.
4. CRITICISM:
Austin's theory of law has been criticized on many grounds.
(i) Laws Before State:
According to Historical School, law is prior to and independent of political authority and enforcement. A state enforces it because it is already law. It is not correct that it becomes law because the state enforces it.
(ii) Gunman Law:
Some have criticized the positivist theory of law as a theory of gunman, as it makes no real distinction between a law and the command of a bank-robber who points his gun at the bank clerk and orders him to give him money.
Reply:
This criticism over looks Austin's second requirement of law which requires that only that command is law which is given by political superior or sovereign.
(iii) Generality of Law:
According to Austin, law is a general rule of conduct, but that is not practicable in every sphere of law. A law in the sense of the Act of the legislature . may be particular in the fullest sense of the word. A Divorce Act is law even if it does not apply to all persons.
(iv) Promulgation:
According to Austin, law is a command and that has to be communicated to the people by whom it is meant to be obeyed or followed but this is not essential for the validity of a rule of law.
(v) Law as Command:
According to Austin, law is a command of the sovereign but the greater part of a legal system consists of laws which neither command nor forbid things to be done e.g., right to vote.
(vi) Existence of Personal Commander:
The term command suggests the existence of a personal commander. In modern legal systems, it is impossible to identify any commander in the personal sense.
(vii) Refusal of Precedents as Laws:
The bulk of the English law has been created by the decisions of the Court. To describe the judges as delegates by the positivists is misleading.
(viii) Sanction:
The concept of sanction is also misleading as in modern democratic country, the sanction behind law is not the force of the state but the willingness of the people to obey the same.
(ix) Sanction is not essential elements:
Sanction is not an essential element of law, as in civil law no such sanction is to be found.
(x) Disregard of ethical elements:
According to salmond, Austin's theory of law is one-sided and inadequatic. It disregards the moral or ethical elements in law.
(xi) Not applicable to International Law:
Austin's definition of law cannot be applied to International law that is to say that International Law is not an imperative law. The International law is not the command of any sovereign, yet it is considered to be law by all concerned. (xii) Not Applicable to constitutional law:
Austin's definition of law does not apply to constitutional law which cannot to called commands of any sovereign. Constitutional law of a country defines the powers of various organs of the state.
5. IS MORAL LAW IMPERATIVE:
Moral law has also been called the divine law, the law of reason, the universal or common law or eternal law. It is called the command of God imposed upon men. Natural law appeals to the reason of men. It does not possess physical compulsion. It embodies the principles of morality. Natural or moral law exists only in an ideal state and differs from positive law of state. In Austin view of law morality altogether ignores therefore moral law is not an imperative law.
6. CONCLUSION:
To conclude, I can say, that Inspite of criticism of Austin's theory of law, it cannot be denied that Austin rendered a great service by giving a clear and simple definition of law. He makes a distinction between what law is and what it ought to be. It seeks to define law not be reference to its contents but according to the formed criteria which differentiate legal rules from other rules such as those of morals, etiquette etc.
Q: What is the necessity of administration of Justice? Also give classification of various kinds of justice.(Annual.2001)
Q: What is Advantages and Disadvantages of Administration of Justice?
1. INTRODUCTION:
"Administration of Justice is the firmest pillar of the Government. It is sovereign and cannot be violated with impunity." (George Washington)
The most essential functions of a state are primarily two, war and administration of justice. If a state is not capable of performing either or both of these functions, it cannot be called a state The most important and primary purpose of law is to achieve justice and justice can be achieved through administration.
2. DEFINITION OF ADMINISTRATION OF JUSTICE:
>> By Salmond:
"The administration of justice implies the maintenance of rights within a political community by means of the physical force of the state."
3. NECESSITY OF ADMINISTRATION OF JUSTICE:
In primitive times might was the sole right Every man was his own judge. A person wronged would seek revenge by his own hands. To stop this loot it appears necessary that some strong tribunal should hold administration and now a state perform this function.
> According to Jeremy Taylor:
"A herd of wolves is quieter and more at one than So many men, unless they all have one reason in them or have one power over them."
> According to Hobbes:
"Without a common power to keep them all in awe, it is not possible for individuals to live in society."
I. REASONS FOR ADMINISTRATION OF JUSTICE:
Following are the reasons for the necessity of administration of justice.
(i) No common reason among men:
According to salmond, men do not have one reason in them and each is moved by his own interests and passions. The only alternative is one power over men.
(ii) Man is fighting animal:
Man is by nature a fighting animal and force is the ultima ratio of all mankind.
(iii) To stop criminal minority:
Force is necessary to stop the criminal minority and prevent them from gaining an unfair advantage over the law-abiding majority in the state.
(iv) Check on Injustice:
Without physical force, injustice is unchecked, and the life of the people is solitary, poor, nasty and short
(v) Man is a social animal:
The social nature of the man demands that he must live in society. While living so, man must have experienced a conflict of interests and that created the
necessity for providing the administration of justice.
4. ORIGIN OF ADMINISTRATION OF JUSTICE:
The origin and growth of administration of justice is identical with the origin and growth of man. The social nature of man demands that he must live in society. While living so, he must have experienced a conflict of interests and that created the necessity for providing for the administration of justice. The origin and growth of administration of justice may be divided into three stages.
I. FIRST STAGE:
At the first stage personal vengeance was allowed every man carried his life in his hands. He was liable to be attacked at any time and he could resist by overpowering his opponent. At that stage, every man was a judge in his own cause and might was the sole measure of right.
II. SECOND STAGE:
The second stage started with the rise of political states. However those states were not strong enough to regulate crime and inflict punishment on the criminals. The state merely regulated private vengeance and violent self-help. The state enforced the concept of "a tooth for a tooth", "an eye for an eye", "a life for a life". The state provided that a life shall not be taken for a tooth or for an eye.
III. THIRD STAGE:
With the growth of the power of the state, the state began to act as a judge to assess liability and impose penalty. It provided punishment for private vengeance. The civil law and administration of civil justice helped the wronged and became a substitute for the violent self-help of the primitive days. At present administration of justice is a natural corollary to the growth in power of political state.
5. CLASSIFICATION OF ADMINISTRATION OF JUSTICE:
Administration of justice is divided into two parts:
I. Administration of civil justice
II. Administration of criminal justice
I. ADMINISTRATION OF CIVIL JUSTICE:
Administration of civil justice is dealt within civil proceedings. The object of civil justice is to enforce rights.
> Kinds of rights:
There are two rights connected with the civil justice:
(i) Primary (ii) Secondary
(i) Primary Rights:
Primary rights are those rights which exist as such. It arises out of a conduct. All fundamental rights are primary rights. A primary right may be enforced by specific enforcement.
(ii) Sanctioning or secondary rights:
Sanctioning rights are those rights which come into being after the violation of primary right.
Sanctioning rights are:
> the right to the compensated by damages by the wrong-doer
> the right to exact the imposition of pecuniary
penalty on the wrong doer by penal action.
> Illustration:
'A' enters into a contract his right to have the contract performed is primary right. If contract is broke, his right to damages for the loss caused to him for the breach of contract is sanctioning right.
II. ADMINISTRATION OF CRIMINAL JUSTICE:
Administration of criminal justice is dealt within criminal proceedings. The object of criminal justice is to punish the wrong-doer. From very ancient time, a number of theories have been given concerning the purpose of punishment which may be broadly divided into two classes. The view of one class is that, the end of criminal justice is to protect and add to welfare of the state and society. The view of other class is that the purpose of punishment is retribution.
5. DISTINCTION BETWEEN CIVIL AND CRIMINAL JUSTICE:
The difference between criminal justice and civil justice cannot be considered in terms of natural acts or the physical consequences of the act. Following are the differences between civil and criminal justice.
(i) As to Administration:
Civil justice is administered according to one set of forms.
> Criminal justice according to another set of
forms.
(ii) Place of Administration:
> Civil justice is administered in one set of Courts i.e., civil Courts.
> Criminal justice is administered in different set of Courts i.e., criminal Courts.
(iii) As to object:
> The object of civil justice is to enforce rights,
> The object of criminal justice is to punish the wrongs.
(iv) Proceedings:
> Civil justice is dealt within civil proceedings.
> Criminal justice is dealt within criminal proceedings.
(v) Dealing:
> Civil justice deals with private wrongs.
> Criminal justice deals with public wrongs i.e., crimes against society.
(vi) As to Parties:
> In civil proceedings, private individuals are parties i.e., plaintiff vs. defendant.
> In criminal proceedings state constitutes itself
as a party i.e., state vs. accused.
(vii) Consequences:
> Civil wrongs are less harmful.
> Crimes are more harmful.
(viii) As to outcome:
> Civil proceedings result in judgment for damages etc.
> Criminal proceedings result in one or a number of punishment.
(ix) As to Institution of Proceedings:
> In a civil wrong, the injured person need not sue the wrong-doer.
> In a crime, the person injured cannot prevent proceedings being taken to punish the wrongdoer for the state controls the procedure.
6. ADVANTAGES AND DISADVANTAGES OF LEGAL JUSTICE:
The legal justice has many advantages as well as disadvantages.
I. ADVANTAGES:
(i) Legal justice ensures uniformity and certainty in the administration of justice,
(iii) Everyone knows what the law is and there is no scope of arbitrary action,
(iv) The judges have to give decisions according to the declared law of the country.
(v) There is a impartiality in administration of justice.
(vi) Impartiality is secured in the administration of justice
(viii) Judges are required to give their decisions according to the pre-determined legal principles and they cannot go beyond them
(viii) Law is already laid down and judges have to act accordingly.
x) Legal justice represents the collective wisdom of the community and that is always to be preferred to the wisdom of any one individual.
II. DISADVANTAGES:
(i) One disadvantage is that it is rigid.
(ii) Law has already been laid down in precedents.
(iii) It is not always possible to adjust it to the changing needs of society,
(iv) Society may change more rapidly than legal justice and may result in hardship and injustice in certain cases,
(v) Arother defects of legal justice is its formalism or technicalities,
(vi) Judges attach more importance to legal technicalities than they deserve.
(vii) The legal justice is complex. Modern society is becoming more and more complicated if law is to serve its needs it has to be complicated.
7. CONCLUSION:
To conclude, I can say, in the words of Prof. Sidgwick "In determining a nation's rank in political civilization, no test is more decisive than the degree in which justice as defined by the law is actually realized in its judicial administration." The modern administration of justice is a natural corollary to the growth in power of political state, which began to act as a judge to assess liability and impose penalty.
Q: Is law Territorial? If so, what are exceptions to the general ruler?(Supply 1998 and Annual. 1999)
Q: To what extent law is territorial in nature? (Supply.2000)
1:Introductions:
The enforcement of law is territorial in the same way as a law is territorial.The territoriality of law flows from the political divison of the world.No state allows other states to exerxise governmental powers within it.The enforcement of law is confined to the territorial boundaries of the state enforcing it.
2: Meanings of the Territorial Nature of Law:
The propositions that system of law belongs to a defined territory means that it applies to all persons,acts things and events within that territory.It does not apply to persons,things acts or events elsewhere.
3: Jurisdication of a State according to Territorial nature of Law:
A state has Jurisdication over all its persons and thing. Such persons may be natural born subjects or naturalized subjects or domiciled alien.Its jurisdication also extends over its ownership in its territorial waters and ports and all acts committed over them.
Example:
Criminal law o England extends to all offences committed in England and not outside its territory.Similarly the law of marriage, divorce and succession is applied by England courts only to those persons who are connected with the territory of England.
4: Remedy to the territorial nature of Law:
(a): In Case of Crimes:
The remedy lies in the practice of extradition.The states conclude treaties with each by which each agrees to surrender to the othre state persons found in its territory who are wanted for crimes commited in the territory of the party to the treaty.
(b): In Civial Cases:
Extradition is not practiced in civial cases. However each country gives a remedy in its own courts for civial wronges wherever they may be committed.
(c): Case Law:
Mobarik Ali Ahmed Vs State of Bombay(1957)
Held: The onender was a Pakistani but his entire offence of cheating U/S 420 accrued at Bombay. Therefore he was held guilty in Bombay.
Exceptions to the Territorial Nature of Law:
(a): International Law:
International law is and exception to the general ruler that law is territorial. States are allowed to exercise control over their armed forces when passing through a foreign territory.
(b): England Civial Law:
England civial law applies to all British subjects in respect of offenes concerning bigamy,treason or murder wherever they might be committed.
(c):Law of Procedure:
Law of procedure is not territorial in any respects. The England law of procedure is the law of England courts rather then the law of England.
Extra territorial Operation of Law:
A law is said to have extra territorial operation when it operates also outside the limites of the territory within it is enacted.
By virture of C.P.C. and Cr.P.C.,Pakistan courts are empowered to try an offence committed outside Pakistan on the land and on high seas. The latter is known as Admiralty Jurisdiction which is based on the principle that a ship on the high seas is a floating island belonging to the nation whose flag she flies.
Conclusion:
The conclusion of Salmond is that as the territory of law is not a logically necessary part of the idea of law, a system of law is conceivable the application of which is limited and determined not by reference to territorial considerations but by reference to the personal qualifications of the individuals over whom jurisdiction is exercised, qualifications such as nationality, race , or religion.
