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JURISPRUDENCE
2013 (1)
September (1)
LL.B Notes
ABOUT ME
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5. Title: Salmond gives one more element of rights in the form of title.
He says that a right has got also a title. Title may be in the form of the
owner or co-owner or mortgager or leaser or buyer etc.
ILLUSTRATION: If, A buys a piece of land from B. A is the subject or
owner of the right so required. The person bound by the co-relative duty
is persons in general because a right of this kind avails against the world
at large. The right consists in non-interference with the purchasers
exclusive use of the land.
KINDS OF RIGHTS :- The following are the kinds of rights :-
1. Primary right and secondary right : Primary right is an independent
right while secondary right means dependent right. They are also called
as principal right and helping right or remedial right. ILLUSTRATION:- A
has right of reputation which is his primary and independent right. If any
person defames A then A has the right of damages against the defamer.
This right of damages is called secondary right or remedial right.
2. Positive and Negative Right:- Positive right is linked with negative
and negative right is linked with duty. Positive right permits to do an act
while negative right prohibit doing an act.
ILLUSTRATION:- A has the right of reputation. This is his positive
right and any person should not defame him. The defaming his
reputation called negative right.
3. Right Rem and Personam:- Right in Rem means right against the
whole world while right in persosnam means right against a definite
person.
ILLUSTRATION: A has not to be harmed by any person. This is right in
rem. On the other hand, A has entered into a contract with B and B
has broken +ve contract. A can enforce this right against B. This is
known as right in personam.
1. LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):- The division
of right has its origin in England. Legal ight is recognised by Law. While
equitable right has been recognised by natural justice. In England there
were two types of courts: (i) Legal courts (ii) Chancery courts
Chancery Courts recognised the conquerable rights on the basis of
justice, equity and good conscience.
4. Vested & Contingents Right:- These rights is of permanent nature
that depends upon the happening of an uncertain event. Thus
contingents right becomes full right only when such uncertain events
happen according to the condition.
5. Proprietary and Personal Right:- Proprietary rights which are
concerned with property. A person possessing any property has the
proprietary right over it, and personal right means the right related with a
person or a body. Every person has a status. He should not be injured or
defamed. If any person injures or defames another person then the
wrong doer infringes the personal right of a person.
6. Perfect or Imperfect Right:- These rights which are enforceable by
law are perfect and which law does not enforceable are imperfect rights.
7. Right of Re-propia and Right in re-alena:- Right in re-propia means
the right in ones own thing whereas right in re-aliena means the right in
the things of others.
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LAW
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5 Define and distinguish law and morals. Up to what extent morals help
in the development of law.
Introduction:- Play an important role in the development of law. In the
ancient society there was no difference between law and morals. The
Vedas and suteras which are the main ancient sources of law are based
upon morals. In the western society also the position was the same. The
legal system of Greek was also based upon the doctrine of natural
rights, which was in fact founded upon morals. So the Roman law also
recognised the doctrine of natural law, which was founded upon morals.
In the middle period also morals were the basis of law. In the 17th and
18th centuries natural law theories become very popular which were
also based upon morals. However in modern times it was only Austin
who discarded morals from law. He said that law is a command of
sovereign. But after him there came the Historical School that
recognised morals as the part of law.
DIFFERENCE BETWEEN LAW AND MORALS
When the Austin did not give any place to morals in law then there came
a question of the difference between law and morals. Later on the courts
tried to make difference between law and morals. In the modern times
there is clear difference between law and morals. In every developed
and civilized society the following are the differences between morals
and laws:-
MORALS LAWS
1.The morals are concerned with individual and are the laid down rules
for the moulding of his character.
2.Morals are mainly concerned with the internal conduct of the nature of
a person.
3.The morals are an end in themselves.
4. The observance of morals is a matter of individuals conscience.
5. Morals are considered to be universal in nature and value. 1. The
laws are mainly concerned with the society as a whole and lay down the
rules for relationship of individual with each other and with the state.
2. Law is concerned with the external conduct of the individuals.
3. Laws are meant by which the evils ends. The justice is achieved.
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In the ancient society there was no difference between laws and morals,
but in modern times various theories of law separate morals from laws
so many differences as pointed out above came into picture. In spite of
these differences there is a clear relationship between law and morals.
For this purpose it can be noticed from the following three points :-
1. Morals as the basis of law:- In the ancient society morals were the
basis of all laws. All the rules originate from the common sources i.e.
morals. The reason behind them was in the form of supernatural fear.
The state picked up those rules which were necessary for the society of
the state.
The state put its own sanctions behind their rules and enforced them
and these rules were called laws. The rules for which the state could not
ensure their observance wee known as morals. Thus laws and morals
have common origin. We cannot totally separate law from morals.
Queen v/s Dudley: It was held that moral are the basis of law on the
ground of morality, it was not necessary to kill the boy for saving their
lives. One cannot take the law into ones own hands. The rule is that
none has the power/right to take anothers life to save his own.
2. Morals as the list of law:- It has been argued that the law must
conform to morals. It means the law must be based upon morals and it
should not be against morals. The Roman law was based upon natural
law and Christian morals and principles say that any law that is against
morals is invalid. The natural law theories were enforcing which were
also according to morals.
In the modern times the laws which are not in conformity with morals
are not good laws. However in practice to a great extent law conforms
to morals. Laws cannot depart from morals due to many reasons. The
conformity of law with morals is a very important factor even in the
modern times.
3. Morals as the end of Law:- Sometimes morals are considered as the
end f law. Justice in its popular sense is based upon morals. The word
used for law conveys an idea of justice and morals in the same area of
law. Sociological school says that law always has a purpose. Law is a
means to get the end. This aim of law is to secure social test of law. This
can be done properly in the contest of socially recognize values which
are closely related to morals. Thus ultimately morals become the end of
law. In India the legal system is engaged from the personal laws and
local customs. In addition to this there are certain other factors like
public opinion, political, ethical, social and economical ideas which are
directly or indirectly under the influence law. CONCUSION:- So morals
also have influence to a great extent in the development of law. Morals
also check the arbitrary powers of the legislature. All human conduct
and social relations cannot be regulated and governed only by law. A
considerable number of them are regulated by morals. Thus we can say
that the morals are the very important factor in the development of law.
Morals are basis of law.
6 Professor Hart claims of make a fresh start in legal theory. Discuss.
INTRODUCTION:- Hart is one of the great jurists of that time. He
belongs to analytical school. HLA Hart was the Principal and Professor
in Brasenose College Oxford His theory about the law named as
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concept of Law. He talks about the realty. His theory mainly based on
primary and secondary rules and also based on the relationship
between law and society. His theory described about two words i.e. Pre-
legal world and Legal world.
DEFINITION AND MEANING: Sir HLA Hart define Law, that law is the
system of rules, a union of primary and secondary rules. He means to
say that law is the system of rules and these rules are primary which are
pre-legal rules and secondary which are legal rules and the main based
of his theory on the relationship between Law and Society.
Body : Sir HLA Hart theory talks about the two words. These words
are:-
Concept of Law
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courts which apply the rules on party. So we can say that in modern age
the law is certain not static in character. Sir HLA Hart also gives the
place of Morality in his theory because the moral have an important role
in every legal world and these morals are not changed by passing any
Act. We can say that Sir HLA Hart theory, Concept of Law has the
most important place in the theory of Analytical School.
CONCLUSIION:- Sir, HLA Hart theory Concept of Law have no
conclusion because this theory talks about both the pre-legal world and
the legal world which updates and tells us that how the law comes. So
we can opined that such best and usable theory needs no conclusion as
it has its self conclusion.
7 Define Natural Law theory. Also explain its relevancies in the Modern
times.
INTRODUCTION: The Natural Law school is not independent school. It
has deep concern with historical, analytical school. The main contents of
this theory is that it has been interpreted differently at the different times
depending on the needs of the developing legal thought but the greatest
attribute of the Natural la w theory is its adaptability to meet new
challenges of the transient society.
According to the pro pounder of this theory says that, Law is a product
of the straight thinking of human mind. According to Socrates, he duely
assert it that the positivist authority should be obeyed but not blindly and
it ought to be subject to criticism if deserve so. Plato: He was in the view
that each individual be given best suitable role by reason of his capacity
and abilities. Thomas Acquinas (Roman Thinker):- He means that
Natural Law is a part of Divine Law. This part is applied by human
beings to govern their affairs and relations. Thomas Hobbes (Roman
Thinker) :- According to him that there should be an absolute authority
which should govern and control the affairs of human beings in the
reciprocal transmission of concerned with every span of life. Rousseau
(Roman Thiner) : He held that there two types of will:1. The will of
individual and 2. General will. The authority through his rule must
respect the both and in the administration of rule making process. These
will should be reflected.
Definition:- From the jurisprudence point of view Natural law is not a
body of actual enacted or interpreted law enforced by courts. It is in fact
a way of looking at things and a humanistic approach of Judges and
Jurists. It embodies within it a host of ideals such as morality, justice,
reason, good conduct, freedom, equality, liberty, ethics and so on. The
phrase Natural Law has a flexible meaning. The chief characteristic
feature of natural law may be briefly stated as follows :-
i) It is basically a priori method which is different from empirical
method. It used to stress upon a cause and effect relationship between
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iv) Legal disputes may be settled by law courts but disputes relating to
moral and law of nature cannot be subjected to judicial scrutiny.
CONCLUSION:-The brief survey of the theories of Natural law reveals
that its concept has been changing from time to time.
8 Explain the importance of Legislation as source of Law. OR
Distinguish between supreme and subordinate legislation?
INTRODUCTION:- Legislation means the process of law making. This
law making power is vested in the legislation body which is sovereign
body. It is called Parliament at the centre level and legislative assembly
at the state level. Legislation is the most important and modern source
of Law. This source has played an important role in the development of
modern law and also different from custom and precedent etc.
LEGISLATION AS A SOURCE OF LAW:- The importance of legislation
starts from the beginning of analytical school. This school ignored the
importance of custom and gave the stress on command of sovereign
which can make law only through legislation. This school also ignored
the judge made law. About custom they say that the custom are not law
but they are the source of law.
HISTORICAL SCHOOL:- It gives no importance to the legislation rather
gives more importance to custom. According to them the function of law
in only to specify and to correct the custom into law whereas in the
modern times the importance of legislation has considerably been
increased. With the coming of existence of the State the legislation has
also been come into existence and become most important source of
law. The scope of legislation has become very wide in the modern times.
KINDS OF LEGISLATION:- There are two kinds of the legislation :-
1. Supreme Legislation:- It has the powers of making law and is known
as supreme legislation in each country. This power is vested in
sovereign body in India i.e. Parliament at the centre and legislation in
the State.
2. Subordinate Legislation: It is inferior from supreme legislation and is
indirect legislation. It takes power to make law indirectly from
Parliament, who gave him power to make law that is why is called
subordinate legislation authority. It is further divided into the following
parts :-
i) Autonomous Laws : A group of persons for making law is known as
autonomous law and body i.e University or Boards.
ii) Judicial Rule :- means the rules made by judicial body under power
owed from supreme authority i.e. High courts or supreme court etc.
iii) Local Law: means law made by local bodies under the control of SC
i.e Zila Parishad, Municipal Corporation.
iv) Colonial Law: It is for those countries who are under the control of
any other country can make laws with the permission that country.
Executive Law:- The law and the rule can be made by the executive
body in the State under the power conferred by the Sovereign/
Parliament which is also known as delegated legislation. It includes the
following origins :
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1 How and when the law developed. 2 What is its object. 3 Whether
the law was made by people or it was due to the inspiration of some
Divine force. 4 Whether the law is a command of a sovereign or it is a
result of gradual development of civilization in society. The main function
of jurisprudence is to study the origin of law, its development and its
contribution towards society.
The matters to birth, marriages, death, succession etc., are equally
controlled through laws. It is the well known saying that, ignorance of
law is no excuse, hence it is essential to know the correct basic
principles of law which are contained only in the jurisprudence. Law is
also connected with civil life. A person who obeys laws is known as a
civilized citizen. A person who does not obey law is punished. It is
therefore necessary that all the people should have the sound
knowledge of law which is possible only with the help of jurisprudence.
Therefore, jurisprudence, having so much importance for the society,
has rightly been called the eye of law.
10 Judges are the makers of law not discovers of law. Do you agree with
this view?
INTRODUTION:- There are two contrary theories regarding the
question as to whether Judges declare the existing law or make the law.
There are two which are as under :-
1. Theory that judges declare the law or Declaratory Theory.
2. Theory that judges make the law or legislative theory. (Law making
theory)
1. DECLARATORY THEORY :- The first theory is the declaratory theory
as described by Hall and Blackstone and they supported by Dr. carten
also.
According to the declaratory theory no new law is created by the
Judge, Courts of Justice do not make law, their province is to ascertain
and declare what the law is. Judges only discover the existing laws.
Hale enunciates declaratory theory of precedents and contends that
whilst Parliament alone legislates in the strict sense the Judges only
expound the law and their decisions are the best evidence of what law
is. The result of his theory is that the effect of the decision is
retrospective for it does not only declare what law is but what it always
has been. Nevertheless as Maine has pointed out once the Judgement
has been declared and reported we start with a new train of thought and
frequently admit that the law has been modified.
According to Lord Esher, There is in fact no such hing as Judge-
made law, for h judge do not make the law, though they frequently have
to apply the existing law to the circumstances as to which it has not
previously been authoritatively laid down that such law is applicable.
Declaratory theory is based on the fiction that the English law is an
existing something which is only declared by the Judges. This theory is
known as the theory of judicial precedent.
LAW MAKING THEORY
The second theory is that the Judges do not declare law but make the
law in the sense of manufacturing of creating entirely new law. Bentham
and Austin, have opposed the traditional view as a childish fiction and
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have declared that Judges are in fact the makers and fulfill a function
very similar to that of the legislature.
Lord Becon: The new point decided by the Judges is a direct
contribution towards law-making. Professor Dicey supported this view
and gives example of English common law which has been made by the
judges which has been made by the judges through their judicial
pronouncements.
Prof. Gray : supports this law making theory and says that judges alone
are the makers of law. He discredits the declaratory theory.
Judges are without any query law-makers but their power of law
making is not un-restricted. It is strictly limited for instance they cannot
over rule a statute where the statute clearly lays down the law. The
legislative powers are restricted to the facts of case before them.
According to Salmond : Who is strong support of this view says that he
is evidently troubled in mind as to the true position of precedent. He
further says that both in law and in equity declaratory theory altogether
totally rejected.
Such cases which are not covered by existing laws the judicial
decisions created new notions and formulae new principles which were
never contemplated earlier. Supreme court over-ruled the Golak Nath
decision in Keshwanand Bharis case and laid down a new basic
structure theory and in Golak nath case the new principle of prospective
over-ruling was evolved by Judges.
RECONCILAION OF THE TWO THEORIES
The above two views about making of law by judges are not exclusive of
each other but they are rather complementary. It will be seen that
neither the purely declaratory theory nor the purely legislative theory
represents the whole truth. Judges develop the law but cannot be said
to legislate. The common law is not made but has grown and the more it
changes the more it remains the same thing.
The answer to the question whether the Judges make or
discover law much depends upon the nature of the particular legal
system. In common law system it may be stated that the Judges make
law while in other countries where is law is codified the judges only
supplement the law. It is true that custom and statutes do not render the
judges some super fulvous knowledge.
11 Explain the phrase, Law is social Engineering as propounded by
Roscoe Pound.
INTRODUCTION:- Roscoe Pound is considered to be the, American
Leader in the field of Sociological jurisprudence. He comes from
Harvard Law School and had a great academic favour. According to
him, the end of law should be to satisfy a maximum of wants with
minimum of friction. He defined law as containing the rules, principles,
conceptions and standards of conduct and decision as also the precepts
and doctrines of professional rules of art. He considers law as a means
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Act) 1978 8. The Consumer Protection Act 1986 9. The S.C & S.T.
(Prevention of Atrocities) Act 1989 10. Commission of Sati (Prevention)
Act 1987 11. Bonded labour(Abolition) Act- 1976
INTERESTS AS THE MAIN SUBJECT-MATTER OF LAW:- Pounds
theory is that interests are the main subject matter of law and the task of
law is the satisfaction of human wants and desires. It is the duty of law
to make a valuation interests in other words to make a selection of
socially most valuable objectives and to secure them.
To concluding the theory, Pound says that the aim of Social
Engineering is to build an efficient structure of the society as far as
possible which involves he balancing of competing interests.
CRITICISM AGAINST POUNDS THEORY :-
i. Engineering not a happy word : It suggests a mechanical
application of the principles to social needs but really the word
engineering is used by Pound metaphorically to indicate the problems
which the law has to face.
ii. Classification of interests not useful: Freidmann doubts the value of
classification of interests and the value of such classification.
iii. Ihering & Bentham concludes the theory of Pounds that, such
classifications greatly helps to make legislature as well as the teacher
and practitioner of law conscious of the principles and values involved in
any particular issue. It is an important aid in the linking of principle and
practice.
POUNDS CONTRIBUTION
Social Engineering stands on a practical and firm ground. He points out
the responsibility of the lawyer, the judge and the jurists and gives a
comprehensive picture of the scope and field of the subject.
12 What do you mean legal personality and its different theories?
Whether the following are legal person :-
1. President of India 2. Council of Ministers 3. Company 4 Un-
born child. 5. Animals.
INTRODUCTION:- Natural Persons are all human beings who are
capable of rights and duties in law, i.e. who have a status. Legal persons
are those to whom law is recognised as a person. It is either a thing or a
mass of property or group of human beings to which law attributes
personality the law confers a legal status and who thus in the eye of law
possess rights and duties as a natural person. Person is of two types :-
1. Natural Person II. Legal Person
According to Gray, A person is an entity to which rights and duties may
attributed.
According to Salmond, person is, any being to whom law regards a
capable of rights and duties.
According to Paton, Legal personality is a medium through which some
such units are created in whom rights can be vested.
In the development of society, law developed and with the
development of law the concept of legal personality come into existence.
In the ancient times there was no concept of legal personality but as the
society developed the person was recognised as the representative of
the State and a separate personality was given to him. In the due course
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3. In the ancient time the Karta represented the whole Hindu family
who was considered as legal person. It is same as in Roman Society. It
is adopted in the shape of Indian companies Act 1956. The advantages
of the corporate personality because they represent an association of
persons as a single person which is helpful in business.
13 Lay down the essential features of the Historical school. Discuss the
views of Society in this regard. OR Discuss the philosophy of law as
given by Sovging under Historical School? OR Write critically note on
the following Soveging (Volkgeist Theory).
INTRODUCTION:- Jurisprudence is a subject in which the definition
nature and the sources of law are studied various writers under various
schools have defined law. Austin under Analytical school says that law
is the command of sovereign. He added only the law in the study of
jurisprudence. But under historical school Soviging says that law is the
general consciousness (Volkgeist) of the people. It means what the
common people think or behave is the base of law. Law shows the
general nature of the common people. This theory of Volkgeist is
bassed on the historical method. Soveging is the father of it. According
to Soveging, Law is the General consciousness of he people.
HISTORICAL SCHOOL
Historical School is a branch of Law, which studies law from the past
history. It says that law is based on the General Consciousness of
people. The consciousness started from the very beginning of the
society. There was no person like sovereign for the creation of law.
The law in the ancient times was based mainly upon
simple rules, regulation, custom, usages conventions etc. These things
were later on developed by the jurists and lawyers. These things were
later on converted into set form of law.
CAUSES OF COMMING OF THE HISTORICAL SCHOOL
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not find favour in modern times. No legal system would like to make
compromise with abuses. People are accustomed to it.
CONCLUSION
From the facts mentioned above we have gone behind to see the history
of the society to check that what was the position of law in the ancient
time. How and in what form law was prevailing in the society? To find
the solution of the questions the supporter of Historical school found that
law is the general consciousness of the common people or it is the free
will of common people on which law developed and converted into a set
of form of law.
14 Define Precedents? Lay down the importance of the precedents as
the source of law. In what sense they are binding? Do the judges make
law?
INRODUCTION:- Precedents literally means previous judicial decision.
The decisions of the higher courts are binding on the lower courts. The
binding force of decision is called precedent. The precedents play an
important role in the development of law. It is the second important
source of law. First source is customs and the third source is legislation.
Sometimes act may be insufficient for the case or there may be an
vacuum or any thing missing in the act. Under these circumstances the
court can apply their own mind. These independent decisions becomes
precedents which are followed later on by the same & Lower courts.
This method of decision is also called as Judge made law. The English
and American law is mostly based upon the precedents. In India Art.141
of Indian Constitution says that the decision of the higher courts shall be
binding upon the lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a decision of a court
which is also called judicial decision. According to the Oxford University,
Precedents means the previous decision case given by a court
according to rules. Various writers have given the definition of
precedents is conduct of court adopted by the lower court in similar facts
and in similar circumstances in a case. Particularly the precedents
means the Judge made law. When the court gives its own ideas for
creating new rules. England, America and China also follow the previous
decisions as the source of law but the continent countries like Germany,
Japan does not accept the previous decisions as the source of law. The
method of taking precedents as source of law is called inductive
method, while the method of continental countries not following previous
decisions of the court is called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very important source of
Law. They play an important role in the development of law, so they
have certain advantages as:
1. Precedents show true respect to the ancestors means by adopting
the previous decision of the higher court to decide the present case, it is
a kind of respect to elders.
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he gave this theory of Law, which is known as pure theory of law and
grandnorm theory .
Concept of pure theory of Law:- At the time of Kelson there are Ist world
was which destricted the property of human beings at international level.
So he gave power to the international law and avoiding the destructions
of the world. Secondly during that time many countries adopted written
constitution. So Kelson also get influenced from these written
constitutions and gave his own theory which is based on grandnorms.
Grandnorm
Grand means great and norm means Law, So it means a great law
the superior authority from which law comes out. He compared the
grandnorm with written constitution. According to him written constitution
is the highest authority in the country which is known as grandnorms. In
England the Parliament is a grandnorm, in USA written constitution is
grandnorms and in India too written Constitution is grandnorm. State is
not above the grandnorm. Sovereignty also liven in grandnorm.
Accoding to Kelson law is a motive nor science, it means science of
norms. In laws only those rules are taken which are related with legal
aspects. Any others like moral rules, religious rules, ethical rules do not
come under the concepts of grandnorm. Here Kelson is equal to Austin.
When he excludes morals relation or ethics from the field of law.
System of Normative Rules:- System of normative rules was Hierarchy.
In hierarchy system there is one highest authority and all other are lower
authorities. This highest authority was grandnorm which was in the form
of written constitution and other authorities are below the constitution.
The source of power in a state for all bodies is written constitution.
Internation Law:- Kelson says that norms have a force behind it. This
force lies in the grandnorm. If this legal norm is not obeyed then one
person will be punished for it. He also says that at this time international
law is immature. It is in primitive stage. It is developing.
Nature of Grandnorm:- According to Kelson each country has the
formation of grandnorm according to local conditions. The duty of jurists
is to interpret the grandnorm in their own language. They are not
concerned with the goodness or badness of the grandnorm. They are
not concerned with the origin of the grandnorm. In this way the
grandnorm is the main source of all the laws in the country.
Elements of Pure Theory:- Kelson gave his view under this theory about
State, sovereignty, public and private law, public and private rights,
international law private and juristic law.
Feature of Kelsons theory:-
1. Grandnorm as a source of law:- Grandnorm is the source of all
laws. Grandnorm is in the form of written constitution. Any such body,
which contains rules, or any such legal system in a country.
2. No difference between law and state:- Kelson says that there is no
difference between law and State between because they get power from
the same grandnorm. Law comes from the grandnorm and the state also
comes from the grandnorm.
3. Sovereign is not a separate body:- Austin says sovereign is a
politically superior person which keeps controls over the politically
inferior persons. But Kelson says that the power of sovereign lies in the
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people. So the Sovereign is not separate and superior from the people
of the country.
4. No difference between public law and private law:- The public law
is related with the state and the private law is related with the individuals
as Kelson says that there is no difference between public law and
private law. The law which creates a contract between individuals is
called private law.
5. Supremacy of internationally laws:- The main prupose of Kelson
was to decrease the tension at world level because there was Ist world
war which destroyed millions of persons and property. He also said that
the internaiton law is in primitive stage or immature stage. It means it is
in developing stage. One day will come when international law will get
equal to that of municipal law. So this is also enforceable.
Criticism of Kelsons theory:- In-spit of having good concept of pure
theory given by Kelson some of the criticism faced by him, which are as
under:
a. Grandnorm is a vague concept:- The concept of grandnorm is not
clear. It cannot be applied where there is no written constitution. The
base of grandnorm in the form of positive norms or the rules based only
on legal order is not clear. The rules, which are not linked with morals
ethics. Customs and religion are not the norms. But we can not ignore
the role of these norms in the development of law.
b. Interantion Law is a weak law:- Kelson advocated the supremacy of
international law. But even upto now we see that is no force behind
international law.
c. No difference between state and law:- this point is also criticised by
various writers. Law as a separate thing from the State. State is body is
law in, which law is a rule that regulates the state.
d. Difference between public law and private law:- Kelson says that
there is no different between public law and private law. Which is also
not right in the modern days.
e. Customs and Precedents ignored:- He also customs as a source of
law while we see that customs are the source of all laws.
Conclusion:- Although Kelson has been criticised from various angles
yet he had contributed a lot in the development of the society. Thus the
concept of grandnorm gave power to the public at large as well as at
national level. His main purpose was to stop destruction of any world
war. This can resemble to Austin also Kelson is also limited with the
law.
16 Discuss the Salient features of the Sociological School of
Jurisprudence? OR Salient features of the Sociological School of
Jurisprudence?
Introduction:- The sociological school is one of he important branches of
law. It comes after the Analytical school and Historical school. Its seeds
were found in the historical school. Duguit, Roscopound and Camta are
the supporters of this school. This school is related with society.
According to this school law is numerator of society. Law and society
both are the two sides of the same coin, one cannot exist without the
other. If there is law there should be society and if there is society there
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should be law. Law is very necessary for regulating the society. Many
writers like Duguit, Roscopound and Inhering gave these view in the
sociological school.
The theory of Duguit under sociological school is a social solidarity.
Scocial solidarity means the greatness of society. Duguit said that there
are mainly two types of needs of the society:-
1.Common Needs 2. Adverse Needs.
1. Common Needs :- Which are fulfilled by mutual assistance.
2. Adverse Needs.:- Which are fulfilled by the exchange of services. No
one can live without the help of other. Even a state cannot exist without
the help of other state. One cannot produce all things required for him.
So he has to depend upon others. The dependency is called social
solidarity. For this purpose the division of labour is necessary. Division
of labour will fulfill all requirement for the society. This philosophy or
views is called social solidarity.
ESSENTIAL ELEMENTS OF DUGUIT THEORY OF LAW
1.Mutual Inter dependence : In society all persons are depending upon
each other. Individual cannot fulfill his ambitions alone.
2. No difference between state & society: State and society are a group
of persons. Main purpose of the society is to save the people. This
responsibility is also lies upon the state. So state does not have a
special status or above status from people. State should make law for
the welfare of the people.
3. Sovereign and will of people: Sovereign is a politically superior
person. Duguit says that sovereign is not superior to people. The
sovereign of a state lives in people or in the will of people.
DIFFERENCE BETWEEN PUBLIC & PRIVATE LAW
Duguit says that there is no difference between public law and private
law because the aim of both the law is to develop the social solidarity.
Pubic law and private law are meant for people. Public right and private
right or people have only duties and not any right.
There is no difference between public right and private right.
According to Duguit there is only one right that is to serve the people. It
means person have only duties not rights.
CRITICISM OF DUGUITS THEORY
1.The theory of social solidarity is vague:- This theory is not clear for a
common person. One cannot gain anything from this theory so this is
vague theory.
2.Who will decide social solidarity :- Duguit has not given the authority
that who will explain the solidarity because Duguit did not recognize
sovereignty. We can imagine that Judge will explain the standard of
social solidarity. But there are no guidelines for the Judgess
3.Public law and Private law are not same :- There must be an authority
which passes the law. In Duguit theory there is no place for such
authority.
4. Public right and Private right are also not same :- The right of society
is public right and the right of common people is private right.
5. Custom ignored:- Custom is the base of any law but Duguit ignore
these customs. In this way the theory of Duguit is not suitably in modern
times.
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CONCLUSION
No doubt Duguit was a sociologist because he gave a lot of
development to society. The social solidarity itself contains the welfare of
the people. Duguit said that law should be according to the social
solidarity. Here he discards natural principal but the theory of the social
solidarity itself is based upon natural law, which demands that the
people should served properly according to their needs. In this way
Duguit put out the natural law principal from the door and accepted
through the window.
However the contribution of Duguit is accepted by many writers and
some of them also adopted this theory.
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In the modern times the precedents i.e. Judge made law and
legislation have become over powered to that of customs. As in a case
of Maduri v/s Motu Ram Linga. It was held that even custom power over
the state.
VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE
OF LAW.
The followings are the systems which recognized custom as a source of
law :
1.Romal Law :- Roman Law is known to be the oldest one in the world.
This law is mainly based upon customs of the society. Those customs
which were reasonable continued them as law by the Roman jurists.
2.Hindu Law :- Hindu law is also to be considered as the most ancient
law. His sources are Vedas, Sutras and Smiriies and these were mainly
based on customs. All personal laws of Hindu are based upon custom
that is why Lord Warren Hastings and Lord Cornwallis did not attack on
customs of Indians.
Manu said One should follow the given path of their ancestors. This was
nothing but the reorganization of customs.
3.Mohammedan:- Particularly ignored customs for the purpose of law.
During th Muslim period in India their customs were protected by State.
The British rulers in India also protected customs and personal laws
which were based upon customs. The traditions which were not
opposed by the prophet Mohammedan were recognized as law. In this
way we can say that customs in Mohammedan law also played an
important role.
4. English Law :- Which is known as common law and in the shape of
un-written and based upon customs and conventions. Customs which
were reasonable and not against the public policies were recognized as
law under English Law.
According to Pollock, The common Law is customary law. Black
stol common includes written law and un-written law. The written law is
based upon the general customs. In this way English law also gave
importance to the customs as a source of law.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to the nation
and are applicable on the countrys people.
2. Local Customs :- Those customs which are related with a particular
locality.
3. Family Customs :- Those customs which are related with a family and
have application on a particular family.
4. Conventional Customs :- These customs based upon conventions
e.g. a bigger part of English Law based on customs and conventions.
ESSENTIALS OF CUSTOMS
1. Antiquity :- It means oldness of the customs. The customs must be
ancient. There is no limit of time for the antiquity of custom. In India
there is no fixation of such time limit.
2. Reasonable :- The customs must be reasonable. It should not be un-
reasonable and against the public feelings.
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Duties
1. Positive and Negative Duty:- A positive duty implies some act on the
part of person on whom it is imposed. Negative duty implies some
forbearance on the part of the person on whom it is imposed.
2. Primary and Secondary duty:- A primary duty is that which exists
perse and independent of other duty. A secondary duty is that duty
whose purpose to enforce some other duty.
Essentials of duty:- There are following essential of duty:-
a. It may be dependent and independent.
b. It consists an obligation on the part of someone and confirm a
privilege upon other.
c. The concept of duty is affirmed and protected by the law of the land
where it exist.
d. The concept of duties is a changing process which arises from time
to time, place to place and circumstances to circumstances.
e. Duty in most of the cases creates an absence of right against some
person.
f. Duty may be fundamental, legal or moral in character.
Relation between Right and Duties:- The following objects describes the
correlation between right and duties:-
i. A right is indispensible without any duty.
ii. A duty and right has separate and independent existence.
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OR Your choice
Even though right and duties are opposite points but there is a great
relation between two relations. The right and duties has a relation of
Father and Child, Husband and Wife because there is no father without
child and no wife without husband. So right and duties cannot be
separated form each other.
Right/Claim Liberty or privilege Power Immunity
Duty No claim Liability Disliability
(Jural opposites) (Jural correlative)
Conclusion:- Right and duties are correlative of elements of each other.
There is no right without duty and there is no duty without right. These
are recognized by law for maintaining the society very well.
20 Define law as an instrument of social change. What special changes
have been brought out by law?
INTRODUCTION:- Law as a command as it introduces subjective
considerations whereas the legal theory is objective. Notion of justice as
an essential of law because many laws though not just may still continue
as law. Science as system of knowledge or a totality of cognitions
systematically arranged according to logical principles. The laws of
natural science are capable of being accurately described determined
and discovered. A law is valid because it derives its legal authority form
the legislative body and the legislative body its own turn drives its
authority from Constitution of India. The aim of law as of any science is
to reduce chaos and multiplicity to unity.
According to Kelson, law is normative science but law norms may be
distinguished from science.
Definition of Law:- while emphasising Volksgeist as the essence of law,
Savigny justified the adoption of Roman Law in the texture of German
Law which was more or less defused in it. Law has unconscious organic
growth, it found and not artificially made. Law is not universal in nature.
But like a language it varies with the people time and need of the
community. With the growing complexity of law the popular
consciousness as represented by lawyers who are nothing but the
mouth peace of the Consciousness.
Law as an instrument of Social Change:- The following are the elements
which have been helping the law to be an instrument who bring the
social changes:-
1. A social Utilitarian:- The system develops aspects of Austinian
positivism and combines them with principles of Utilitarianism as
established and developed.
2. Law is the result of Constant struggle:- According to Ihering the
development of law like its origin is neither spontaneous nor peace full.
It is the result of constant struggle with a view to attain peace and order.
Law is the guarantee of the conditions of life of society.
3. Law is to serve for social purpose:- As a result of social changes
comes through law that is social purposes comes in conflict with the
duty of the State is to protect and further social purposes to suppress
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those individual purposes which clash with it. Therefore, law is coercion
organised in a set form by the State.
4. Law protects Social Interest:- Law is a such type of instrument
which protects the social interest of the people. According to Bentam it
is the persuit the pleasure and avoidance of pain.
5. Law is to found in social facts:- AS per Ehrlich, That the law of
community is to be found in social facts and not in formal sources of law.
He says at present as well as any other time the centre of gravity of
legal development lies not in legislation, nor in juristic science, nor in
judicial decision but it lies in society itself. It is a social changes.
6. Living law is the fact that govern social life:- The essential body of
legal rules is always based upon the social facts of law and the facts of
law which underline all law are usage, domination, possession and
declaration of will .
7. Law according to the requirement of Society:- It means that law in a
society should be made and administered with the utmost regard to its
necessity.
8. Law also to serve this and:- Law is the rule which men possess not
by virtue of any higher principle whatever, good, interest or happiness
but by virtue and perforce of the facts because they live in society and
can live in society. This is because of to use the law as an instrument
which brought the Social Changes.
Conclusion:- The contribution of law in the social changes is a great and
its approach is more scientific and comprehensive. The study of law in
social context and emphasizes its close relation with the life of society.
62 comments:
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What exactly is Sociological Jurisprudence?
Peonia Guimaraes Machado Martins
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This one is one up. Very useful
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