Jurisprudence Notes
- Austin (Analytical School) – John Austin (1790 – 1859) – analytical method
– law carefully studied – principle lying therein – (matter of
jurisprudence is positive law)
- Austin’s
Concept of Law
i.
Law properly so
called (General commands)
1. Law set by God
2. Law set by men to men
a. Positive Law – law set by men to men as political
superiors or in pursuance of rights conferred by such superiors.
b. Positive Morality – law set by men to men not as
political superiors, nor in pursuance of rights conferred by such superiors.
Positive morality is still law properly so called because they are commands
e.g. set by a master to a servant, etc.
ii.
Law improperly so
called
1. Law by analogy – laws set by mere opinion e.g. laws of
fashion, international law, etc
2. Law by metaphor – expressions of the uniformity of
nature.
- Law as a Command – A command is an expression of a wish by a
determinate person or body of persons that another person shall do or
forbear from doing some act subject to an evil(sanction) in the event of
disobedience.
i.
General commands
– which obliges generally
ii.
Occasional or
particular commands – obliges to a specific act or forbearance or to acts or
forbearance which it determines specifically or individually.
Examples
– Essential Commodities Act(General) , Export Onions, Judicial commands etc.
Difficulty
in drawing distinct boundary between laws and occasional commands because of
-
Commands which
oblige generally the members of given community(or persons of given classes)
are not always laws or rules.
-
Command which
obliges exclusively persons to individually determined, may amount to a law or
rule.
Command is express when
expressed in words, written or spoken.
A command is tacit if desire
be signified by conduct.
- All Laws are not commands –
i.
There are objects
which don’t have an imperative character and thus improperly termed laws and
yet properly included within the province of jurisprudence.
1. Declaratory laws – laws enacted to clarify an existing
statute
2. Repealing laws
3. Imperfect laws (no sanction)
ii.
There are also
certain laws properly so called which may seem not imperative and are thus not
commands.
1. Laws which merely create rights – not imperative.
2. Customary laws – customs à considered as rules of positive morality. Customary
law à customs established
as statute by State. Positive morality à positive law.
- Criticism of command theory
i.
Association of
duty with commands – Prof Olivercona à duty – ought propositions. Non Sequitur to suppose
that such phraseology itself implies command.
ii.
Ideas of command
inapplicable in modern society.
iii.
Law & command
– Law à std to judge deviance
– Commands à directed to specific individual or individuals with reference to a
particular act or forbearance and does not serve as a general standard of
judgement. – Laws of permissive nature – (Buckland defends Austin theory i.e. Statute are commands not
provisions).
iv.
Inapplicability
to modern social legislations
v.
Conventions of
the Constitution (e.g. Directive principles, Preamble etc)
vi.
Judge-made law
vii.
Commands of a
sovereign – parliamentary procedure – difficult to square them with commands.
viii.
Sanction not the
only means to induce obedience.
ix.
Relation of law
and morals over-looked.
- Concept of Sovereignty
Contrast between positive law
& positive morality – theory of sovereignty.
Sovereign may have Moral
obligations – but may not always have legal obligations.
Sovereignty involves two
marks– positive & negative mark.
Positive mark – Bulk of a
given society was in the habit of obedience to some other superior. Such
determinate superior is sovereign in that society, and the society including
the superior is a society political & independent and the other members of
the society are subjects & dependent on that superior. Sovereign’s power is
unlimited & indivisible.
Negative mark - That
individual or body of individuals is not in a habit of obedience to a
determinate human superior.
It is the union of the
positive mark with the negative mark which renders that sovereign supreme and
the society political and independent.
- If the generality of the
population obey the commands, but this obedience is only rare or transient and
not habitual, then the relationship (between sovereignty & subjection) is
not established. E.g. Allied forces occupied France, 1815. Commands rare &
transient – not sufficient to constitute sovereignty.
- Society in Anarchy (or in a
state of nature) – Obedience not to one & the same superior.
- When superior habitually
obeys command of a certain body then society not independent although it may be
political. E.g. Vice Roy.
- International law
If a determinate human
superior, not in a habit of obedience to a like superior, receive habitual
obedience from the bulk of a given society, that determinate superior is
sovereign in that society, and the society (including the superior) is a
society political and independent. Or to that superior, the other members of
the society are subject. When we say that society is independent, we really
mean that the sovereign portion of it is.”
- Criticism of Austin’s Sovereignty Theory
i.
Dias à “sovereignty cannot be defined in terms of
obedience”. E.g. cannot be said that habitual obedience of the judges
established the sovereignty of the Crown in Parliament.
ii.
Negative mark of
sovereignty is not so much the concern of municipal lawyers as of international
lawyers.
iii.
Attribute of
continuity of sovereignty – e.g. dissolution of Parliament.
iv.
Attribute of
indivisibility – (India
example)
v.
Illimitability –
Can the sovereign limit itself. Debatable. (India example)
vi.
Law as a command
of the sovereign.
vii.
International law
– WTO DSU
- Sovereignty under Indian Legal
Order/Constitution
i.
Limitability –
basic structure- Kesavananda case
ii.
Indivisibility –
ordinance – rules – administrative discretion.
- India: Quasi Federal Constitution
i.
Legislative power
divided between States and Center
ii.
Executive,
Legislative & Judicial Sovereignty
- Sovereignty under Ancient Hindu Law
i.
No concept of
sovereignty
ii.
Lay with God was
delegated to the King.
iii.
King could not
make or unmake laws.
- Is Sovereignty essential in Modern State
i.
Dominant group
within every independent political society whose will prevails.
ii.
Salmond agrees
with Austin “It
seems clear that every political society involves the presence of a supreme
power.
iii.
Jenks challenged
the notion of essentiality of sovereignty within the state – law as all
pervading harmony that will regulate human existence without primitive
assistance of organized force applied by the sovereignty.
- Austin’s Contribution
i.
Father of English
jurisprudence.
ii.
Though inadequate
in modern times
iii.
Helped removing
confusion created by abstract theories about the scope & method of
jurisprudence.
iv.
Prof Olivercona
(one of his greatest critics) acknowledges him as the pioneer of modern
positivist approach to law.
v.
Applied fully to
English law – but no universal application.
vi.
Lead to many
other theories e.g. Kelsen’s pure theory, Salmond & Gray. H.L.A Hart built
his theory on criticism of Austin.
- Hart: Analytical School
- Law is a system of rules – rule is that which
creates obligation & a standard to judge morality of people’s action (e.g.
deviance) –Rules sprung from strong social pressure to impose stringent
liabilities for offences -- Law is a system of social rules which acquire
the character of legal rules – body of publicly ascertainable rules. Law
equivalent to a legal system.
- The Idea of Obligation – rule accepted by people
(internalized) and not habitually obeyed.
Agreed with Austin
that theory of Law à coercive orders.
i.
Being obliged v/s
Having an Obligation
1. Being obliged – Handing over money to Gunman
2. Having an obligation – Money to tax officer.
3. Gave reasons for rejecting Austin viewpoint that fear & motives are
not relevant to the question that he had an obligation.
a. Austin neglected internal aspect of rules.
b. If it were true that the statement that a person had
an obligation meant that he was likely to suffer in the event of disobedience,
it would be a contradiction to say that he had an obligation e.g. to report for
the military service but that, owing to the fact that he had escaped from the
jurisdiction, or bribed the police or the court, there was not the slightest
chance of his being caught or made to suffer.
ii.
Rules
Impose/Create Obligation – Rules are conceived & spoken of as imposing
obligations when the general demand for conformity is insistent & the
social pressure brought to bear upon those who deviate is great. The
seriousness of social pressure behind the rules is the primary factor which
determines whether the rules would give rise to obligations. Two other
characteristics of obligation go naturally with this primary one.
1. Firstly the rules supported by this serious pressure
are thought important because they are believed to be necessary to the
maintenance of social life. – Eg restriction of free use of violence &
honesty.
2. It is generally recognized that the conduct required
by those rules may, while benefitting others conflict with what the person who
owes the duty may wish to do.
- Internal & External Aspect of Rule
External Aspect
|
Internal Aspect
|
Descriptive pattern of
behaviour.
|
Prescriptive patter of
behaviour.
|
Merely an observer who does
not accept the rules
|
Obeys law with a sense of
obligation (not compulsion). Accepts & uses the rules as guides to
conduct.
|
Description will be in
terms of observable regularities of conduct, predictions, probabilities &
signs.
|
Description will be in
terms of rule dependent notions of obligations or duty.
|
For such an observer,
deviations by a member of the group from normal conduct will be a sign that
hostile reaction is likely to follow & nothing more. (No participation in
system itself i.e. detached observer) e.g. traffic red light – natural sign
others will stop.
|
View their own regular
behaviour (not of others) & a process of internalization (a process of
mind where no compulsion is involved). E.g. traffic red light – I ought to
stop,
|
Only concerned with rules
because they judge the unpleasant consequences that are likely to follow any
violation.
|
Violation of rule is not
merely a prediction that a hostile reaction will follow but a reason for hostility.
|
According to Hart the
predictive theory (Austin)
failed because it excluded the internal aspect of the rules & dealt with
external aspect of rules.
- Primary & Secondary Rules
i.
Primary rules –
Require or forbid certain actions. (Those imposing duties)
ii.
Secondary rules –
Instructions for adding or altering primary rules.
- Deficiencies of a Simple Social Structure
(Weakness of primary rules)
i.
Uncertainty - First,
if doubts arise as to the actual nature of these rules, there would be no
authority to turn to, to settle those doubts. Thus, the rules would always be
subject to an element of uncertainty.
ii.
Static - Second,
“there will be no means, in such a society, of deliberately adapting the rules
to changing circumstances, either by eliminating old rules or introducing new
ones.” Thus, the second defect of these primary rules would be that they are
static.
iii.
Inefficiency - Third,
these primary rules would inevitably be applied inefficiently, because there is
no one who can authoritatively discern if a rule has been broken. There is no
way to diffuse the responsibility for enforcing them. For this reason, the
third defect in these primary rules would be that they are inefficient.
- Remedies: Union
of Primary & Secondary Rules – remedy lies in supplementing the primary
rules of obligation with secondary rules.
i.
Rules of
recognition - The secondary rules that remedy uncertainty in primary rules are
called rules of recognition. These rules describe the means by which rules
become authoritative. In primitive societies, Hart explains, these may simply
be that the rules are listed in a book, or a stone tablet. “In a developed
legal system,” he continued, “This may be the fact of their having been enacted
by a specific body, or their long customary practice, or their relation to
judicial decisions.”
ii.
Rules of change -
The secondary rules that remedy the static quality of primary rules are called
rules of change. “The simplest form of such a rule,” said Hart “is that which
empowers an individual or body of persons to introduce new primary rules for
the conduct of the life of the group … and to eliminate old rules.” These rules
are closely connected with the first set of secondary rules, because the
changes made in accordance with the rules of change must be authoritative according
to the rules of recognition.
iii.
Rules of
adjudication - The secondary rules which remedy the inefficiency in primary
rules are called rules of adjudication. These rules empower “individuals to
make authoritative determinations of the question whether, on a particular
occasion, a primary rule has been broken.” The reason these are secondary rules
is because they don’t “impose duties” as primary rules do, but instead “confer
judicial powers and a special status on judicial declarations about the breach
of obligations.”
- Foundations of a Legal System: Rules of
recognition & legal validity – Rules of recognition are rules of a
higher order i.e. transfer a static set of unrelated rules into a unified
dynamic legal system capable of adoption to social change. Complexities
of rules of recognition in modern legal system i.e. multiple criteria for
identifying law – written Constitution, enactment, judicial precedents.
Relative subordination of one to another e.g. customs
subordinate to enactments
Day-to day life – rules of recognition very seldom
expressed (e.g. Art 41 CoI ) –
For
most part rules of recognition are unstated but its existence is shown in the
way in which particular rules are identified.
- Validity and Efficacy of Rules - The validity of
a legal system is independent from its efficacy. A completely ineffective
rule may be a valid one - as long as it emanates from the rule of
recognition. But to be a valid rule, the legal system of which the rule
is a component must, as a whole, be effective.
- Ultimate Rule of Recognition - Because the rule
of recognition is a social rule, it is capable of being an ultimate rule.
It is ultimate in the sense that it does not exist in virtue of any other
rule. Its existence is secured simply because of its acceptance and practice.
The primary rules of the legal system, by contrast, are not ultimate
because they exist in virtue of the rule of recognition. The rule of
recognition validates, but is not itself validated.
- Existence of a Legal System: Necessary
Conditions
According
to Hart, a legal system exists for a group G just in case (1) the bulk of G
obeys the primary rules and (2) officials of G accept the secondary rules of
recognition, change and adjudication from the internal point of view and follow
them in most cases.42 Thus, even if it turned out that most of the citizens of
Rhode Island obey most of the rules of Roman law, it would not be true that
Roman law still exists today, given that the Rhode Island State officials would
not be following the secondary rules of the (extinct) Roman legal system.
“There
are therefore two minimum conditions necessary and sufficient for the existence
of a legal system. On the one hand, those rules of behaviour which are valid
according to the system’s ultimate criteria of validity must be generally
obeyed, and, on the other hand, its rules of recognition specifying the
criteria of legal validity and its rules of change and adjudication must be
effectively accepted as common public standards of official behaviour by its
officials.
- Evaluation of Hart’s Theory
i.
Hart’s Criticism
of Austin’s Command Theory
1. Rule v/s Command – Rules are concerned not with what
happens but with but with what ought to be done, they are imperative or
prescriptive, rather than indicative or descriptive. This characteristic they
share with commands. But command à one unique performance whereas rule à demands repeated activity.
2. Rule v/s Habit – Rule à systematic quality. Compliance with a rule differs
from mere acting out of habit or a mere regular patter of behaviour.
3. Idea of command fails to explain continuity of law.
4. Law & rules are concerned with obligation rather
than coercion. Thus even a person who cannot be compelled to obey the law is
still reckoned as having an obligation to obey. Law still remains as a standard
demanding obedience.
5. Hart à variety of laws. Austin
à failed to take notion
of rights. E.g. Art 32 CoI.
6. Legal system may well contain rules which cannot be
attributed directly or indirectly to any act by the sovereign. The rules
identifying the sovereign are a case in point.
ii.
Criticism of
Hart’s Theory
1. Distinction b/w rules creating duties & rules
creating powers.
2. Distinction b/w legal & pre legal state of
affairs.
3. Ignorance of sociological foundations of a legal
system.
4. Oversimplification: inner aspect of law
5. Nature of ultimate rule of recognition.
6. Law is simply not a system of rule -
7. Exclusion of morality from law.- failed to separate
law from morals.
8. International law – no basic rule providing general
criteria of validity.
Finnis argues that when Hart
uses the idea of primary and secondary rules to distinguish a developed legal
system from a primitive legal system, he is using a philosophical tool called
“the central case” (an idea bearing close resemblance to the Weberian ideal
type). The central case is one which, within a certain paradigm, best fulfills
the characteristics of that paradigm. Finnis then argues that Hart should not
have stopped at the level of the existence of the internal aspect of rules as a
means of differentiating the central case from other, peripheral cases. He
should have further differentiated the notion of the internal aspect itself.
What this means is that there are many reasons or motivations behind people
viewing rules as standards (using the internal point of view), including
self-interest, a detached interest in the well-being of others etc. Finnis
argues that all these are “watered-down” notions of the internal aspect of
rules: the central case is the viewpoint of the moral man, the one who views
the law as a moral standard.
Raz argues that Hart’s
dichotomy between internal and external aspects of rules commits him to a
position where either one must be a detached observer commenting upon the
efficacy of the legal system, or an internal actor who is endorsing the law’s
moral authority. According to Raz, however, there is a third category of
statements, that of lawyers, or law teachers explaining the law to others. This
allows an internal statement to be made without espousing it as a normative
standard; for instance, I may be a vehement opponent of capital punishment, but
within the framework of my country’s legal system, I may end up writing a legal
opinion with the statement, “Given the law on this point, he ought to be
hanged.” The use of the word ought in this sentence does not commit me to an
endorsement of the moral content of the rule itself.
- Hart’s Contribution – Hart’s picture of law is
incomplete in certain respects. Less definitive and suggestive than that
unfolded by Kelsen’s conception. Hart himself cautions that union of
primary & secondary rules explains many aspects of law but this
cannot by itself illuminate every problem. However, his approach is
important for its emphasis on the socially constructive function of law.
- Hans Kelsen: Analytical School
- Roscoe Pound: (1870 – 1964) father of
sociological jurisprudence in America
– Sociological
School (also
functional school) – Main trend in
the 20th century western legal thought is sociological
jurisprudence. 19th Century positivist jurisprudence regarded
law as a set of rules enforced by the State. This was a correct view of
law, since law has a normative structure but the defect in it was that it
refused to consider the social and economic circumstances which gave rise
to these rules. Sociological
jurisprudence arose as a reaction to positivism and its main contribution
was broadening the scope of jurisprudence. According to it, law is not an
isolated phenomenon but is part of the social reality.
- The task of law is social engineering –
harmonize these interests so as to satisfy the maximum of wants and
eliminate friction and waste. By Social engineering Pound means balance
of interests in society. Thus law is a means of social control. Example
polluting factory – environmental interests v labour interests, jobs,
residents, etc. Jurist à study(should acc to Pound) actual social
effects of legal institutions & legal doctrines, study the means of
making legal rules effective, sociological study in preparation of
law-making, study of judicial method, etc. Thus a jurist must prepare an
inventory of social investigation.
- Interests as the main subject matter of law – Duty
of law to make ‘valuation of interests’, in other words ‘to make them a
selection of socially most valuable objectives and to secure them’. Prof
Allen describes Pound’s approach as Experiminetal Jurisprudence.
Pound
defined interests as claims or wants or desires which men assert de facto,
about which the law must do something if organised societies are to endure. He
classified the interests under three heads: Individual, Public, Social.
i.
Individual
Interests
1. Personality:- This
includes interests in (a) the physical person, (b) freedom of will, (c)honour
and reputation, (d) privacy, and (e) belief and opinion.
2. Domestic Relations:- It is important to distinguish
between the interest of individuals in domestic relationships and that of
society in such institutions as family and marriage. Individual interests
include those of (a) parents, (b) children, (c) husbands, and (d) wives.
3. Interest of Substance:- This includes interests of (a)
property, (b) freedom of industry and contract, (c) promised advantages, (d)
advantageous relations with others, (e) freedom of association, and (f)
continuity of employment.
ii.
Public Interests:-
demands of individuals from the stand point of political life.
1. Interests of the State as a Juristic Person
2. Interests of the State as a Guardian of Social
Interests
In
India
public interest is synonymous with social interest.
iii.
Social Interests
1. Social Interests in the general security: - ‘The claim
or want or demand, asserted in title of social life in civilized society and
through the social group, to be secure against those forms of action and
courses of conduct which threaten its existence.’ This embraces those branches
of the law which relate to (a) general safety, (b) general health, (c) peace
and order, (d) security of acquisitions, and (e) security of transactions.
2. Social Interests in the security of social
institutions: The claim or want or demand involved in life in civilised society
that its fundamental institutions be secure from those forms of action and
courses of conduct which threaten their existence or impair their efficient
functioning.’ This comprises (a) domestic institutions, (b) religious
institutions, (c) political institutions, and (d) economic institutions.
Divorce legislation might be adduced as an example of the conflict between the
social interest in the security of the institution of the marriage and the
individual interests of the unhappy spouses. Pound pointed out that the law has
at times attached disabilities to the children of illegitimate and adulterous
unions with the object of preserving the sanctity of marriage. The example is
not altogether fortunate, since the extent to which such vicarious suffering
has deterred would-be offenders is minimal. Then again, there is tension
between the individual interest in religious freedom and the social interest,
at any rate in some countries, in preserving the dominance of an established
church.
3. Social Interests in the general morals – The claim or
want or demand involved in social life in civilised society to be secured
against acts or courses of conduct offensive to the moral sentiments of the
general body of individuals therein for the time being.’ This conveys a variety
of laws, for example, those dealing with prostitution, drunkenness and gambling.
4. Social Interests in the conservation of social
resources: ‘The claim or want or demand involved in social life in civilised
society that the goods of existence shall not be wasted; that where all human
wants may not be satisfied, in view of infinite individual desires and limited
natural means of satisfying them, the latter may be made to go as far as
possible; and, to that end, the acts or courses of conduct which tend
needlessly to impair these goods shall be restrained.’ Thus this social
interest clashes to some extent with the individual interest in dealing with
one’s own property as one pleases. It covers (a) conservation of natural
resources, and (b) protection and training of dependants and defectives, i.e. conservation
of human resources.
5. Social Interests in general progress – 'The claim or
want or demand involved in social life in civilised society that the goods of existence shall not be wasted; that where all
human wants may not be satisfied, in view of infinite individual desires and
limited natural means of satisfying them, the latter be made to go as far as
possible; and, to that end, the acts or courses of conduct which tend
needlessly to impair these goods shall be restrained.' This has three aspects,
(a) Economic progress, which covers (i) freedom of use and sale of property,
(ii) free trade, (iii) free industry, and (iv) encouragement of invention by
the grant of patents. Now, (i) and (ii) are less marked today than they used to
be. Indeed, it might even be said that progress has been achieved by a reversal
of them. The policy of free trade, which has as its corollary the disapproval
of monopolies, might appear to have been indorsed by legislation against
restrictive practices. While this is true of private monopolies, it should be noted
that there is an ever-growing demand for monopolies in the state or
state-controlled institutions. The encouragement of invention by the grant of
patents, too, is somewhat suspect, for it opens the possibility of acquiring
patents in order to suppress inventions. On the whole, therefore, item (a) is
the least happy The interest in general progress also includes (b) political
progress, which covers (i) free speech, and (ii) free associations; and (c)
cultural progress, which covers (i) free science, (ii) free letters, (iii) free
arts, (iv) promotion of education and learning, and (v) aesthetics..
6. Social Interests in individual life – ‘The claim or
want or demand involved in social life in civilised society that each
individual be able to live a human life therein according to the standards of
the society.’ It involves (a) self-assertion, (b) opportunity, and (c)
conditions of life..
To
question how to evaluate the conflicting interests in due order of priority
Pound’s answer is that every society has certain basic assumptions upon which
its ordering rests. These assumptions are the Jural postulates of the legal system as embodying its
fundamental purpose:-
1. In civilized society men must be able to assume that
others will commit no intentional aggressions upon them.
2. In civilized society men must be able to assume that
they may control for beneficial purposes what they have discovered and
appropriated to their own use, what they have created by their own labour and
what they have acquired under the existing social & economic circumstances.
3. In civilized society men must be able to assume that
those with whom they deal in the general intercourse of society will act in good
faith.
4. In civilized society men must be able to assume that
those who engage in some course of conduct will act with due care not to cast
an unreasonable risk of injury upon others.
5. In civilized society men must be able to assume that
others who maintain things or employ agencies, harmless in there sphere of
their use but harmful in their normal action elsewhere, will refrain them or
keep them within their proper bounds.
Pound
also addressed to himself to the question of how in any given case the interests
involved are to be balanced or weighed. Interets should be weighed on the same
plane as it were i.e. one cannot balance an individual interest against a
social interest.
While
not denying that dispensing justice according to fixed rules has some advantages
e.g. certainty and uniformity, Pound suggests that in order to harmonize
conflicting interests in modern dynamic society the judge will often have to
determine justice without law(i.e. precedents or prescribed rules)
- Critical analysis of Pound’s Theory – mainly
emphasizes functional aspect of law – ignores nature & character of
law. Imp to note that Pound is criticized for his classification paradigm
& not for the basic issues regarding satisfaction of human needs.
i.
Pound is
criticized for suggesting application of social "engineering" using
much more a scientific word to solve social conflicts. It suggests mechanical
application of the theory on social desires and interest which keep on changing
from time to time.
ii.
Pound defined
interest as, "claims or wants or desires which men assert de-facto about
which the law must do something if organised society is to endure." Pound
considers interest defector inspires legislation, but this is not true always
sometime law appears first and then interest enshrined protected therein is
demanded.
iii.
Pounds Theory,
ask for maximum gain with least friction and least waste "maximum
satisfaction of human wants or expectations with-least sacrifice."
Somewhere this theory gives prime importance to interest of public at large
over individual's interest and if interpreted strictly then may result in
eliminating individual freedom.
iv.
Roscoe Pound
advocates 'judicial activism' and expects that judge should themselves evolve
yardstick for valuating interest involved in the case. Thus judiciary is given
very wide power and sometime may not be able to find out effective yardstick
because of its own constraints. By the available pleadings only one can not do
"social engineering" unless some framework is done by legislators.
v.
Pound says one of
the prime duties of the law is "to make a selection of socially most
valuable objectives and to secure them." Value of interest may change from
to time; it's hard to prepare any strict and efficient preference chart of
various interests.
v.
vi.
According to
pound judges should see basic assumptions of society on which it rest, to frame
preference chart of various interest. Now these days basic assumption of
society cannot provide golden scale in itself. Basic assumption of society at
large may be declared valueless if adjusted otherwise by intellectual mind, on
various other considerations, which may not always be widely appreciated.
vii.
To adjust and
reconcile interest pound suggest jural postulates which are ideal of society
and which help in turning law as an instrument in social development. Jural
postulates are based on basic assumption of western society, these basic
assumption are not universal in nature and sometime legislators are required to
nourish the interest which are not supported by basic assumption of the then
society.
- Pound’s Contribution – More than anyone has helped to bring home the
vital connection between laws, their administration & the life of
society. He demonstrated the responsible & creative task of lawyers,
especially the judges. His emphasis on studying the actual working of
legal rules in the society, the importance of social research for good
law-making and pointing out the great constructive function which the law
is to perform (i.e. to protect interests) are very valuable to
jurisprudence.
- Comparison between Historical, Analytical and
Sociological School:
Analytical
School
The
chief exponent of Analytical school of jurisprudence was the English Jurist,
John Austin. It is also called positivist school of jurisprudence because it
considers law as it is and not as it ought to be. This viewpoint is based on
two principles.
- Law
is the command of the sovereign (that is law is made only by the sovereign
authority of the stale)
- Force
is the essence of law i.e. what cannot be enforced is not a law.
This
theory was bitterly criticized in 19th century by the Pluralists and the
sociological Jurists. Despite its shortcomings this theory has explained many
too much about law. The Analytical school of jurisprudence says that laws must
be made by the state in the interest of general welfare.
Historical
School
Historical
school of jurisprudence believes that law is an outcome of a long historical
development of the society because it starts in the social custom, conventions
religious principles and economic needs and relations of the people. According
to this theory law is the product of the forces and influence of the past.
This
theory has some defects. Being conservative in its outlook and rely on past,
however its merit is that it shows that law must change with the changes in the
society. It clearly says if a law is not according to the will of the people,
it will never be obeyed. In this way supplemented the analytical school of law.
Sociological
School
According
to the supporters of sociological school of jurisprudence law has its source
and sanction in social needs and necessity. They say men can fulfill all his
wishes and desire only in a society which ails unity based on social rules.
Every individual has to observe these rules because he understands that only by
following these rules he can realize all his needs. The supporters of
sociological school are of the view that the state does not create the laws but
only formulates, so that social unity is preserved and social needs satisfy. So
laws do not came from the state but from the society. According to them the
sanction behind law is not the force of the state but the awareness on the part
of the individual that his disobedience will meet with the disapproval of the
society. In other words the members of the society obey laws because they serve
their purposes. Some of the supporters say that law is sovereign and reject the
sovereignty of the state.
These
are the three theories of law. None of them fully explains the nature of law,
yet each of them contains some truth. In some ways if all the three theories
are put together, we will have the correct view of law. We all know law is a
universal rule. It must be applied to all the people equally. The application
must also have a sanction behind it. But we must remember that laws are to
serve social needs and necessities.
- Savigny & Maine (Historical School)
- Rise of the Historical School
i.
Reaction against
the unhistorical assumptions of the natural law theorists
ii.
Reaction against
rationalism – reason without reference to past/existing circumstances à French revolution à disappointment instead of fulfilment of dreams à new classes in society.
iii.
French conquests
under Napoleon aroused the nationalism of Europe.
iv.
Influence of
certain early pioneers in new way of thinking: Montesquieu à law shaped by geographical & historical
considerations. Burke à law is the product of gradual & organic process à emphasized tradition as a guide to social change.
v.
Codification on
the controversy in Germany
– Thibaut’s proposals provided an immediate stimulus for the rise of the
historical school. Proposed that a code should be framed enunciating legal
principles which would not require any modification and would be all
comprehensive, applicable to all places and times. Law should be made by
legislative enactment. Savigny strongly opposed these principles & laid
down the propositions which became the thesis of the historical school.
- Savigny
- (1779 – 1861) emphasized that
the muddled and outmoded nature of a legal system was usually due to a
failure to understand its history & evolution. Essential prerequisite
to the reform of German law was for him a deep knowledge of its history.
Essay ‘Vom Beruf’ (On the
Vocation) (1814).
i.
Source of Law:
Volksgeist - The concept of the Volksgeist, or “the spirit of the Volk,” was
developed by German philosopher Johann Gottfried von Herder (1744–1803). The
application of Herder’s theory to law was made by German jurist and legal
historian Friedrich Karl von Savigny (1779–1861).
1. Law a natural manifestation of popular life & by
no means product of man’s free will. There is but one force and power in people
and it underlies all these institutions.
2. Law, language, customs & governments have no
separate existence. Law like language develops with the life of the people. “Law
grows with the growth, and strengthens with the strength of the people, and
finally dies away as the nation loses its nationality.”
3. Law à unconscious & organic growth
4. Law à found & not made.
5. Opposed codification à pointed to defects of contemporary codes à might introduce new & un-adaptable provisions. à Could never cater exhaustively for all problems that
could arise in the future à would highlight the loopholes & weaknesses of the law & so
encourage evasion.
ii.
Criticism of
Savigny’s Theory
1. Inconsistency in the theory à emphasized national character of law & yet
advocated acceptance of Roman law for Germany.
2. Volksgeist not the exclusive source of law – Many
technical legal rules which never existed in nor has any connection with
people’s consciousness. Sometimes alien legal system successfully transplanted
in another country. E.g. English law.
3. Customs not always based on popular consciousness –
Contradictory customs existing in different parts of the same country. Many
customs based on imitations. Originate for convenience of a powerful minority
e.g. Slavery.
4. Ignored other factors that influence law –Many rules
in modern times are a result of conscious effort e.g. law relating to trade
unions & industry is an outcome of a long & violent struggle between
conflicting interests within a society.
5. Limitations of ‘Volksgeist’- Volksgeist manifests
itself only in a few branches of law (e.g. family law) & even in these by
way of modifying & adapting any innovations that may be introduced.
6. Juristic pessimism – Pound said that Savigny
encouraged ‘Juristic pessimism’. Savigny’s contention was that legislation
should conform to existing traditional law, or it is doomed. E.g. no legal
system would like to make compromises with abuses only because people are
accustomed to it. (Child Marriage Restraint laws in India. Etc)
iii.
Savigny’s
Contribution – Considered by many to be the greatest jurist of the 19th
century. Great truth about Volksgeist that nations legal system is greatly
influenced by the culture & character of the people. After Savigny that the
value of the historical school was truly understood.
iv.
Applicability of
Savigny’s Theory to India
(Limited)
1. Federal constitution – Union list, State list –
Emergency à unitary character. Preamble à Sovereign, Socialist, Secular, Democratic Republic”
i.e. Power in the hands of the people.
2. Source of Indian Constitution – borrowed from various
parts of the world – accepted by the people of India.
3. Common law in India – law of torts etc, Hindu law
never recognized any form of wills but British law introduced this principle
into Hindu law.
4. Deliberate legislation making – reservation, uniform
civil code, etc. Conscious effort – Dowry prohibition act, Sati abolition,
Untouchability Act, etc.
5. Judicial Activism – Savigny ignored the creative
function of the judges i.e. judicial precedents.
- Maine (1822 – 1888) (comparative &
anthropological approaches to the study of law). More balanced view of
history than is found in Savigny. He brought to bear a scientific urge to
unify, classify & generalise the evolution of different legal orders.
Unlike Savigny Maine
favoured legislation & codification. 4 stages of development of law
(as per Maine) (1) Commands made my ruler believed to be acting under
divine inspiration (2) Commands crystallize into customary law (iii)
Knowledge & administration of customs goes into hands of a minority,
usually of a religious nature e.g. priests (4) Codification.
i.
Static &
Progressive societies – Societies which do not progress beyond the 4th
stage are static societies. Societies which go on developing their law are
progressive societies. They develop their law by three methods:
1. Legal fiction - Legal Fiction signify any assumption
which conceals, or affects to conceal, the fact that a rule of law has
undergone alteration, its letter remaining unchanged, its operation being
modified. Legal Fictions do their work in the infancy of society but should be
abandoned in a society because they make law more difficult to understand &
to harmonize legal order.
2. Equity - Equity means “any body of rules existing by
the side of the original civil law, founded on distinct principles and claiming
incidentally to supersede the civil law in virtue of a superior sanctity
inherent in those principles.”
3. Legislation - Legislation, the enactments of a
legislature which, whether it takes the form of an autocratic prince or of a
parliamentary assembly, is the assumed organ of the entire society, is the last
of the ameliorating instrumentalities.
In
early societies (both static & progressive) the legal condition of the
individual is determined by status i.e. his claims, duties etc are determined
by law. (March of progressive societies à disintegration of status and determination of legal
condition by free negotiation on his part. “The movement of progressive
societies has hitherto been a movement from status to contract”.
Status
à according to Maine a fixed condition à found without reference to his will and of which he
cannot divest himself by his own efforts. Indicative of social order in which
the group, not the individual is the primary unit of social life.
With
progression of civilization, this condition gradually gives way to a social
system based on contract.
Maine’s theory correct on a general sense. Does not apply
to certain laws in India
like inheritance and personal laws in India, which is based always on
status and not on contract. Pollock à theory only limited to laws of property because
personal laws like marriage, minor;s capacity to contract etc are still matters
of status & not contract.
Maine’s theory holds good as long as capitalism has
stronghold. In totalitarian states freedom of contract is hardly allowed and Maine’s theory does not
apply there.
ii.
Maine’s Contribution – Chief contribution to legal theory
are his analysis of the methods of legal changes and his ‘Status to Contract’
generalisation. In most European political societies, legal change to meet
emergent social needs became difficult because of a superstitious reverence for
traditional rules. Maine’s
analysis of law provided a solution for such problems. The most conspicuous
feature of Maine’s
work is the breadth & brilliance of his generalisation made on basis of a
comparative estimate of legal institutions in various societies at different
levels of historic development. He made significant contribution to law by
indicating that there had been a parallel and alike growth & development of
legal institutions & law in the societies of East & West up to a
certain stage.
- Difference between Historical and Analytical
School
|
Analytical School
|
Historical School
|
1
|
Confines itself to mature
legal systems
|
Concentrates on primitive
legal institutions.
|
2
|
Law: Command of the
sovereign.
|
Law is found & not
made. It is the rule whereby the invisible borderline is fixed within which
the individual and his activities obtain a secure & full space.
|
3
|
If there is no sovereign,
there can be no law.
|
Law is antecedents to the
State & exists even before a State organisation comes into being.
|
4
|
The hallmark of law is its
enforcement by the sovereign.
|
Law is independent of
political authority & its enforcement.
|
5
|
Law rests upon the force of
politically organised society.
|
Law rests upon the social
pressure behind the rules of conduct which it enjoins.
|
6
|
The typical law is statute.
|
The typical law is custom.
|
7
|
Custom is not law until its
validity has not been established by a judicial decision or by an Act of
legislature.
|
Custom is law by itself. It
does not require State recognition to become a law.
|
- Historical Approach: Conclusion –
i.
Historical
factors not as important as the factors of today. It is suggested that
Historical approaches would find their appropriate setting as part of a general
sociological approach.
ii.
Another weakness
is the mystical, nationalistic flavour which it imparted to theories about law.
iii.
Again historical
interpretation can so easily be made to lend its support to the particular
ideology of the interpreter. Savigny’s theory evolved out of his strongly
conservative, anti-revolutionary, civil law bias.
iv.
Nevertheless the
historical school provided the great stimulus to the historical study of law
& ingrained a sense of historical perspective in the outlook of lawyers. It
has demonstrated the dangers of over-hasty legislative experiment and has
taught the cautionary lesson that development should flow within the channels
of tradition. It has demonstrated the connection between some parts of law and
cultural evolution and the need to look into the past sometimes in order to
obtain a full understanding of law as it is at present.
- Speluncean Explorers’ Case
- Facts –
i.
Five cave
explorers got trapped underground, whilst on an expedition, following the
collapse of a cave wall. Any scope of rescue was at least 10 days away and the
last radio transmission received by them was from a doctor (following which the
radio; their only means of communicating with the outside world ran out of
battery), conveyed to them that the only manner in which they could survive
till the arrival of the rescue team would be if they were to consume one of
their own, given that they had run out of food and water supplies.
ii.
One of the
explorers, Whetmore, suggested that they throw dice to determine (i.e. random
probability) who amongst them should be the sacrifice. This was held as
reasonable by everyone after which, they all agreed to follow through with the
plan of action. However, just before the dice was thrown, Whetmore backed out
of the agreement. He was outvoted, and a dice was thrown on his behalf.
Whetmore lost.
iii.
About ten members
of the rescue team also died while trying to remove the rocks from the opening
of the cave and when they finally reached the explorers, they found that
Whetmore had been killed and eaten.
iv.
The remaining
explorers were put on trial for murder in the Supreme Court under the
jurisdictions statute, "Whoever shall wilfully take the life of another
shall be punished by death."
- Law:- “Whosoever shall wilfully take the life of
another shall be punished by death” – N.E.S.A (N.S). Statute permits no
exception applicable to this case.
- Truepenny J. (legalist/political) – Positive School – convicts – encourages
clemency by the executive.
- Foster J. (Acquits – Rationalist – Natural & Realist School)
i.
Case governed not
by positive law but by natural law of nature
ii.
Interpretation
according to purpose and not according to words
iii.
Common wealth v
Staymore – car parked for more than two hours – protest/demonstration – no part
– no anticipation - held that a person cannot be held guilty for anything which
was beyond his control.
- Tatting J. (Recuses – Union Carbide Case – Kania
J. recuses – held shares in Co)
i.
Court of law
can’t be transformed into a court of natural law
ii.
Purpose of
criminal law is not only to deter, but also to retribute
1. Commonwealth v Parry
2. Commonwealth v Scape - held that the one of the
objects of law is also to provide outlet for retribution.
3. Commonwealth v Makeover - It has also been said that
its object is the rehabilitation of the wrongdoer
4. Commonwealth v Valjean – Charged – Larceny – loaf of
bread theft – defence à starvation à Convicted – held à necessity not a defence to theft.
- Keen J. (Convicts – Legalist – Positive School
)
i.
Law & Morals
ii.
No scope for
judicial activism
iii.
Hard cases make
bad law but this is not necessarily always so.
- Handy J. (Acquits - Populist – Sociological
School)
i.
Judges must take
public opinion into account
- Decision
- Rati Ram v Union of India – Morality does not
have a well defined zone and should be regarded as separate from law in
deciding cases.
- US v Holmes – Throwing people from life boat case
– Necessity not a defence to murder – charge reduced to manslaughter – 6
months in prison & $20 fine - .
- Queen v Dudley & Stephens 1884
i.
Facts. The
defendants, Mr. Brooks and the victim Mr. Parker were English seamen. The group
was cast away in a storm on the high seas and was compelled to put into an open
boat that had no supply of food or water. After the group had been without food
for seven days and without water for five days, the Defendants spoke to Mr.
Brooks about sacrificing the victim Mr. Parker to save the rest. Mr. Brooks
dissented and the victim was not consulted. Mr. Dudley suggested that if no
vessel was in sight the next morning, they would kill the victim. No vessel
appeared the next day, so Mr. Dudley with the assent of Mr. Stephens killed the
victim. The three remaining castaways fed upon the victim Mr. Parker for four
days at which time a passing vessel rescued them.
ii.
Issue. Does the
defence of necessity permit the killing of one person to save others?
iii.
Held. No. At the
time of this case the doctrine of necessity was still largely unexplored. Much
of the prevailing authority at the time spoke of necessity in terms of what is
now called self-defense, i.e. taking another’s life to safeguard one’s own.
Lord Bacon provided some authority for the existence of the defense of
necessity to lesser crimes. For example, a hungry man is not guilty of larceny
for stealing food. However, the Queen’s Bench acknowledged that no court has
ever accepted necessity as a defense to murder and for good reason. Permitting
such a defense to be asserted raises poignant questions such as how does one
measure the comparative values of lives and who decides such things. Further,
specific to the present case, Lord Coleridge asks, “Was it more necessary to
kill [Parker] than one of the grown men?” While this murder was arguably not
“devilish” and even though the men probably would not have survived otherwise,
Lord Coleridge held that there is never any absolute or unqualified necessity
to preserve one’s own life. Once such a defense is allowed, there is no telling
what atrocious crimes may be justified by the excuse of necessity.
