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LL.B. I Term
LB-101 - Jurisprudence-I
(Legal Method, Indian Legal System and Basic Theories of Law)
Cases Selected and Edited by Mahavir Singh Alka Chawla Anumeha Mishra Amrendra K. Ajit Anita Yadav Ashish Kumar Archa Vashistha Apanjot Kaur Ashutosh Acharya Ajay Sonawane Daya Devi Gurpreet Singh Harleen Kaur Kailash Kurmi Santosh Upadhyay Shakti K Aggarwal Shourie Anand Pushkar Anand Rubina Grewal Nagra Upendra Nath Silky Mukherjee
FACULTY OF LAW UNIVERSITY OF DELHI, DELHI- 110 007
JULY, 2020
(For private use only in the course of instruction)
ii
Course Name: Jurisprudence- I (Legal Method)
Course Code: LB-
Course Objectives:
To give an overview to the students about law and legal systems prevalent in
the world and India in particular, so that they can understand the jurisprudence
of all subjects taught to them over a span of three years.
To learn the jurisprudential basis of various concepts which are continuously
being dealt within law in all manifestations.
To sensitize the students to adopt a pragmatic approach in studying all the
subjects in the six semesters by teaching them how to read cases and ways to
club theory with practice. It is a subject which forms the foundation of the law
degree.
To make the students trace the evolution of law and legal systems in different
countries.
To familiarize the students with linkage of law with other social science such
as psychology, history sociology, economics history etc.
To familiarize the students with the growth of legal profession in India and the
laws governing the profession.
Learning Outcomes
Students will be acquainted with the basic ideas and fundamental principles of
Law in the given society.
Knowledge of Law and Legal precepts will help the students to face
exigencies of life boldly and courageously.
Students will be inculcated with standards of ideal for human conduct in terms
of law for the maintenance of Public conscience.
Students will be able to identify such pressing demand or problems which
require solution within the parameters of the law, justice and other social
norms.
iv
(iii) Glanville Williams, Learning The Law, Chapter 6, Learning The Techniques PP. 67-79 (11th^ Ed.,12th^ Indian Reprint 2006) 106 (iv) Advocates Act, 1961 A.N. Veera Raghavan, “Legal Profession And The Advocates Act, 1961, 14 Journal Of The Indian Law Institute pp. 228-262 (1972) 114
- Positive/Analytical School Of Thought
John Austin, Province Of Jurisprudence Determined 128
H.L.A. Hart, Concept Of Law, “Law As The Union Of Primary And Secondary Rules” And “The Foundation Of A Legal System”. 155 and 168
- Hans Kelsen, “Pure Theory Of Law” 175
- Historical And Sociological School Of Thought 208
Karl Von Savigny Roscoe Pound 221
- Judicial Process Applying Theories Of Law,
Lon. L. Fuller, The Case Of Speluncean Explore”, 62 Harvard Law Review” 616-664 (1949). 227
- Rights And Duties Dias, Jurisprudence, “Concept Of Rights And Duties: Jurisprudential
Analysis. 247
IMPORTANT NOTE:
1. The topics, cases and suggested readings given above are not exhaustive. The
Committee of teachers teaching the Course shall be at liberty to revise the
topics/case/suggested readings.
2. Students are required to study/refer to the legislations as amended from time to
time, and consult the latest editions of books.
Questions to Ponder
Unit 1
1. Discuss the major legal systems of the world and their impact on development
of India’s legal system?
2. What are the major components of Indian Legal System?
Unit 2
1. Discuss the importance of Legal Aid and Lok Adalat as a means of providing
easy access to Justice.
2. To what extent Dicey , writing in ‘ Introduction to the Study of Law of the
Constitution ’(1885 ) has been influential in establishing the rule of law within
the 19th century? Is application of rule of law a myth or reality in India?
3. Elaborate various rules of interpretation of the statues.
4. How does the system of checks and balances reinforce the separation of
powers? Discuss the application of theory of separation of powers in India.
5. Explain the hierarchy of Court System in India and their Jurisdiction.
Unit 3
1. Briefly discuss the objectives and the main features of The Advocates Act,
Unit 4
1. Critically examine Austin’s view on Sovereignty. How is a sovereign
identified in the command theory of law? Also discuss the existence of a
sovereign as a postulate in the current scenario in India.
b) varying rules of interpretation.
c) Judges of the Supreme Court are to provide justice to the people and not
merely provide judgement applying the law of the land in the given situation.
Unit 8
1. How does Hohfeld’s jural relations help in judicial reasoning and decision?
2. Is it possible to state legal problems with the help of Hohfeld’s eight
fundamental conceptions? Explain these conceptions with the aid of examples.
Major Legal Systems in the World Today
Our Legal System
(N.R. Madhava Menon)
The legal system of a country is part of its social system and reflects the social, political, and cultural characteristics of that society. It is, therefore, difficult to understand the legal system outside the socio-cultural milieu in which it operates. It is true in the case of India also even though the legal system we now have is largely the gift of the British rulers. There is a view that the system is still alien to the majority of Indians whose legal culture is more indigenous and whose contact with the formal legal system (the imported British model) is marginal if not altogether non-existent. The language, technicality and procedure of the inherited legal system are indeed factors which limit access to justice for the illiterate, impoverished masses of our country. Nevertheless, the rights and benefits conferred by the laws and the Constitution offer the opportunity for those very people to enjoy the fruits of a welfare democracy which the people of India have given unto themselves on the 26th January 1950. It is in this context familiarity with law and its processes becomes essential to every Indian, rich or poor, man or woman, young or old.
Components of a Legal System
A legal system consists of certain basic principles and values (largely outlined by the Constitution), a set of operational norms including rights and duties of citizens spelt out in laws -Central, State and local, institutional structures for enforcement of the laws and a cadre of legal personnel endowed with the responsibility of administering the system.
The Constitution: The Fundamental Law of the Land
The Constitution of a country is variously described depending upon the nature of the policy and the aspirations of the people in a given society. It is generally a written document and assumes the character of a federal (several independent units joined together) or unitary form of government. India is declared to be a Socialist, Secular, Democratic Republic. It is said to have a quasi-federal structure. The Constitution of India represents the collective will of 700 million Indians and, as such, the reservoir of enormous power. It describes the methods by which this power conferred on the State is to be exercised for the benefit of the people. In other words, it is a political document which distributes State power amongst different organs (Central and State Governments, Legislative, Executive and Judicial wings of each Government) and regulates its exercise in its incidence on the people. The form of government is democratic and republican and the method is parliamentary through adult franchise. The goals are spelt out in Preamble itself which seeks to secure to all citizens: “Justice, social, economic and political; Liberty of thought, expression, faith and worship; Equality of status and of opportunity, and to promote among them all.”
Major Legal Systems in the World Today
day in and day out as occasion demands. Courts interpret them in specific fact situations and, in the process, extend the scope and application of the laws. The common man may get lost in the maze of legislations coming from all sides and contribute to its complexity by creating his own laws through contracts and agreements with others he has to deal with.
On the basis of the remedies sought and the procedure followed, all laws can be grouped into two categories, namely, Civil Laws and Criminal Laws. Broadly speaking, criminal law is concerned with wrongs against the community as a whole, while civil law is related to the rights duties and obligations of individual members of the community between themselves.
Civil Law includes a number of aspects which may be grouped under six or seven major headings such as family law, the law of property, the law of tort, the law of contract, the law relating to commerce and business, labour law, law of taxation etc. Family law, which in India has its source both on statute and religion, comprises of the laws governing marriage, divorce, maintenance, custody of children, adoption inheritance and succession. Though the Constitution envisages a Uniform Civil Code, each religious group at present follows largely its own norms in matrimonial and family relations. The law of property includes rights of ownership, transfer, mortgages, trusts, intestacy and similar matters. The law of contracts, is concerned with the enforcement of obligations arising from agreements and promises. This includes transactions such as sale of goods, loans of money, partnerships, insurance, guarantees, negotiable instruments, agency and the like. The law of torts deals with propriety of actions and infraction of duties. Injuries to person or property caused by failure to take reasonable care and caution leads to actionable wrongs under tort, which usually compensates the victim of such injuries. Laws of commerce and business, which includes contract law, relate to economic operations of individuals, partnerships and companies and governmental regulation of them. Even law of taxation forms part of commercial laws. Labour law deals with the relationship between employer and employees in the production and distribution of wealth.
Criminal law is concerned with public wrongs or wrongs against the order and well being of the society in general. The persons guilty of such wrongs are prosecuted and punished by the State. These wrongs are specific and are defined in the Penal Code and a few other special and local laws. One important aspect in this regard is that criminal laws insist (apart from a few exceptional offences) on a particular intent or state of mind as a necessary ingredient of a criminal offence. It also recognizes degrees of criminality and gradations of crime. Ignorance of law is’ never taken as an excuse. Certain situations where guilty intention could not have been entertained such as infancy, insanity mistake of fact etc., they are recognized as defences to criminal responsibility. Offences are classified on the basis of the objective or otherwise. Thus there are crimes against the human body, property, reputation of the individual, against the State or against public rights.
Major Legal Systems in the World Today
On a procedural basis they are classified as cognizable and non-cognizable (cognizable are those in which the police can investigate or arrest persons without judicial warrant), bailable and non-bailable, compoundable or otherwise.
Procedural Laws, Civil and Criminal
Most proceedings in the Supreme Court and the High Courts are governed by Rules of Procedure made by the Courts themselves under powers given by statute. The Civil and Criminal Procedure Codes and the Evidence Act do apply to judicial proceedings in these courts as well. The writ procedure under Articles 32 and 226 is unique to these courts and is intended for the quick enforcement of Fundamental Rights whenever they are threatened by the State or its agencies. In such situations citizens can approach these courts even through a letter sent by post as the Supreme Court has declared that procedure should not be allowed to come in the way of dispensation of justice.
For the enforcement of civil rights and obligations a suit before a civil court is usually- instituted. The procedures for trial and appeals including execution of decrees and orders are laid down in the Code of ‘Civil Procedure. Variationism for purposes of jurisdiction is made according to the Suits Valuation Act. The amount of court fees to be paid on plaints and appeals is determined by the Court Fees Act. The Limitation/ Act prescribes the periods of limitation with in which suits can be filed. The Evidence Act regulates the relevancy, admissibility and probative value of evidence led in courts, civil and criminal.
The trial is in the nature of adversary proceedings where two parties oppose each other in a suit or action between parties. The procedure commences with ‘pleadings’, which set out the precise question in dispute or the cause of action. The opposite party (the defendant) may file a written statement to admit or deny the allegations in the plaint. The pleadings may be supplemented by the parties by making admissions of fact, answers and interrogatories, oral statements before the court and by admissions and denials of documents filed by them.
The hearing of a suit commences with the serving of a copy of the plaint to the defendant. A party can appear himself in court for the hearing or make appearance through an agent or a pleader. According to the Advocates Act right to practise law before courts is given to Advocates only. In the proceedings, parties have to summon their witnesses for deposing in court. The trial involves recording of evidence of witnesses on a day-to-day basis at the conclusion of which judgment is to be pronounced in open court.
Because civil proceedings are private matters, they can at any time be abandoned or compromised and, in fact, in a number of cases they are settled before trial.
Major Legal Systems in the World Today
Legal Aid has now assumed an important place in judicial procedure in country. Right to counsel by a lawyer of one’s choice is a constitutional right every citizen possesses. In the case of poor person the Criminal Procedure Code provides for the appointment of counsel at State expense to defend the indigent accused in all major criminal cases. In civil proceedings, a poor person can declare himself to be a ‘pauper’ in which case he is exempted from co fees and a variety of related court expenses. Legal Aid Schemes set up in State also provide such persons with the services of lawyers to conduct litigation on their behalf.
Courts of Law
Courts are institutions wherein disputes are adjudicated and justice, administered. They are created by Statutes and enjoy such powers and jurisdiction, which the Statutes confer. The Constitution itself provides for the Supreme Court and the High Court in each State at the apex of the judicial system and confers original and appellate jurisdiction on them primarily to resolve disputes between Union and the State, State and State, State and the citizen and in limited cases appeals arising out of private disputes involving substantial questions of law. This higher judiciary is named as the Union Judiciary and appointments to it are made by the President of the Union on the advice of the Chief Justice. Citizens can directly approach the High Courts or the Supreme Court to seek redress for the violation of Fundamental Rights. These courts have a supervisory function over the subordinate courts (State Judiciary) which are set up by each State according to its requirements under the Civil Procedure Code, Criminal Procedure Code or other State laws. The High Courts and Supreme Court enjoy civil and criminal jurisdiction apart from the writ jurisdiction.
The State judiciary under the High Court is organised in a hierarchy on the civil and criminal sides based on their jurisdiction, territorial or monetary. On the criminal side, the Criminal Procedure Code provides for the Magistrates Court (First or second Class depending on the extent of powers for punishment) and above them the Sessions. Courts, usually one in each District. On the civil side the Civil Procedure Code provides for the Munsiffs’ Court (with limited pecuniary jurisdiction), the Sub-Divisional Court and the District Court each with varying pecuniary and territorial jurisdiction. There can be Special Courts set up for specific purposes and also Administrative and Revenue Tribunals to adjudicate upon specific categories of disputes. Thus there are Motor Vehicles Compensation Tribunals, Sales Tax Tribunals etc. all of which are judicial bodies adjudicating disputes in the areas assigned to them, Appeals from these courts and tribunals usually lie to the High Courts and, in exceptional cases, a second appeal to the Supreme Court.
The Personnel of the Law
Administration of justice requires the co-operation not only of the parties and the judges but also of officers of court who include the Advocates, the court staff and the para-legal personnel who assist the lawyers and judges.
Major Legal Systems in the World Today
Judges
All judicial officers from the Supreme Court Judge to the Munsiff in a small taluka are independent of both the legislature and the executive. They are free to administer-law without fear or favour and they cannot be interfered with by any one including the top functionary of the Government. They have the power to punish those who commit contempt of court or disobey their legitimate orders.
The President, acting on the advice of the Cabinet and the Chief Justice of India, appoints the Judges of the Supreme Court and the High Court. The Governor of the State appoints the Judicial Officers of the State similarly on the advice of the State High Court/Government. Their salaries and service conditions are determined by law and cannot be changed to their disadvantage. Their removal from service requires a special procedure and the control of their judicial functions vest on the higher judiciary.
Lawyers and the Bar
Lawyers are the key functionaries assisting the judges in the administration of justice. They are officers of court and are constituted into an independent profession under an Act of Parliament. (The Advocates Act,1961). No others may practice before the courts. Without the expert assistance of lawyers on either side of a dispute, judges will find it difficult to find the truth on disputed facts in issue and interpret the law applicable to varied situations. That is why the legal profession is often referred to as a noble and a learned profession.
There are at present approximately 2,30,000 Advocates practising in the various courts in the country. For organizational purposes they have formed themselves into bar associations. They are enrolled into the profession by the Bar Council created by Parliament under the- Advocates Act. The Bar Councils at the State level and the Central level consist of elected members of the profession who undertake the responsibility of not only admitting new entrants, but also improving the quality of legal services particularly through the exercise of disciplinary powers over erring members of the profession. Legal Services to the poor is one of the social obligation of every lawyer required under the Bar Council rules of professional conduct.
Major Legal Systems in the World Today
original institutions in place; this is particularly clear in the case of Muslim countries where the reception of European law and the adhesion to the Romano-Germanic family have been only partial, leaving some legal relations subject to the principles of the traditional, local law. The old ways of thinking and acting peculiar to these countries may also mean that the application of the new has been quite different from what it is in Europe. This question is particularly important in the case of the countries of the Far East, where an ancient and rich civilization existed long before the reception of western law.
Finally, with respect to the countries of Africa and America, it will also be necessary to ask whether their geographical conditions and populations’ distribution, creating conditions entirely different from those in Europe, have not led to the development of laws substantially different from their European models.
Common law family
A second family is that of the Common law, including the law of England and those laws modelled on English law. The Common Law, altogether different in its characteristics from the Romano-Germanic family, was formed primarily by judges who had to resolve specific disputes. Today it still bears striking traces of its origins. The Common law legal rule is one which seeks to provide the solution to a trial rather than to formulate a general rule of conduct for the future. It is then much less abstract than the characteristic legal rule of the Romano- Germanic family. Matters relating to the administration of justice, procedure, evidence and execution of judgments have, for Common law lawyers, an importance equal, or even superior, to substantive legal rules because, historically, their immediate pre-occupation has been to re-establish peace rather than articulate a moral basis for the social order. Finally, the origins of the Common law are linked to royal power. It was developed as a system in those cases where the peace of the English kingdom was threatened, or when some other important consideration required, or justified, the intervention of royal power. It seems, essentially, to be a public law, for contestations between private individuals did not fall within the purview of the Common law courts save to the extent that they involved the interest of the crown or kingdom. In the formation and development of the Common law- a public law issuing from procedure-the learning of the Romanists founded on the jus civile played only a very minor role. The divisions of the Common law, its concepts and vocabulary, and the methods of the Common law lawyer, are entirely different from those of the Romano-Germanic family.
And as with the Romano-Germanic family, so too the Common law has experienced a considerable expansion throughout the world-and for the same reasons: colonization or reception. The observations made with respect to the Romano-Germanic family apply with equal value. But here again a distinction between the Common law in Europe (England and Ireland) and that outside Europe must be made. In certain extra-European countries, the Common law may have been only partially received as in the case, for example, of certain of Muslim countries or India and where it was received, attention must be given to its transformation or adoption by reason of its co-existence with the tradition of previous civilizations. A different environment has, in any event, created difference between the Common law of the countries where it originated and that of those into which it was imported. This observation is particularly true with respect of the Common law family because it groups some countries such as the United States and Canada where a civilization
Major Legal Systems in the World Today
different in many respects from that of England has developed. The laws of these countries enjoy a largely autonomous place within the family.
Relations between these two families
Over the centuries there have been numerous contacts between countries of the Romano- Germanic family and those of the Common law, and the two families have tended, particularly in recent years, to draw closer together. In both, the law has under gone the influence of Christian morality and, since the Renaissance, philosophical teachings have given prominence to individualism, liberalism and personal rights. Henceforth, at least for certain purposes, this reconciliation enable us to speak of one great family of western law. The Common law retains, to be sure, its own particular structure, very different from that of the Romano-Germanic system, but the methods employed in each are not wholly dissimilar. Above all, the formulation of the legal rule tends more and more to be conceived in Common law countries as it is in the countries of the Romano-Germanic family. As to the substance of the law, a shared vision of justice has often produced very similar answers to common problems in both sets of countries.
The inclination to speak of a family of western law is all the stronger when one considers that the laws of some states can not be annexed to either family, because they embody both Romano-Germanic and Common law elements. The laws of Scotland, Israel, the Union of South Africa, the Province of Quebee and the sophies in which the place and function of law are very different from what they are in the West. A true picture of law in contemporary world society would be incomplete without taking these considerations into account.
In non-western societies the governing social principles to which reference is made are of two types. On the one hand law is fully recognized as being of great value but the law itself is framed in a different concept than it is in the West; on the other, the very notion of law is rejected, and social relations are governed by other extra-legal means. The first view is that of Muslim and Hindu societies, while the latter is that adopted in countries of the Far East and large parts of Africa and Malagasy.
Family of Socialist Laws
The Socialist legal system makes up a third family, distinct from the first two. To date the members of the socialist camp are those countries which formerly belonged to the Romano-Germanic family, and they have preserved some of the characteristics of Romano- Germanic law. Thus, the legal rule is still conceived in the form of a general rule of conduct; and the divisions of law and legal terminology have also remained, to a very large extent, the product of the legal science constructed on the basis of the Roman law by European universities.
But apart from points of similarity, there do exist such differences that it seems proper to consider the socialist laws as detached from the Romano-Germanic family - the socialist jurist most decidedly do and as constituting a distinct legal family, at least at the present time. The originality of Socialist law is particularly evident because of its revolutionary nature; in opposition to the somewhat static character of Romano-Germanic laws, the proclaimed ambition of socialist jurists is to overturn society and create the conditions of a new social
Major Legal Systems in the World Today
law. Reconciliation is greater value than justice; mediation must be used to remove conflicts rather than invoking law to resolve them. Laws may exist to serve as a method of intimidation or as a model; but law is not made with a view to being really applied, as in the West, Scorn is reserved for those who aspire to regulate matters according to law or whose preoccupation is its study or application, and who thereby defy convention and accepted proprieties. Countries of the Far East have, traditionally, held the view that law is only for barbarians. The Chinese communist regime and the westernization of Japan have not fundamentally changed this conception rooted as it in their ancient civilizations. In China the communist regime rejected the legal codes drawn up after the fall of imperial rule along western lines and, and, after some brief hesitation, then repudiated the Soviet method of building communism. The techniques finally adopted for doing so have given up to the present time a very narrow place to law. Codes on the European model have been instituted in Japan but, generally speaking, the populations makes little use of them; people abstain from using the courts and the courts themselves encourage litigants to resort to reconciliation; and new techniques have been developed for applying or removing the need of applying the law.
Muslim, Hindu, and Jewish Laws
The attitude of the Muslim, Hindu and Jewish communities about the law is easily understood by a western jurist, even though the definition of law itself in western jurisprudence has always given rise to difficulties and no single definition has so far elicited any general acceptance. One of the fundamental reasons for this lack of agreement is the debate between the proponents and adversaries of the notion of “natural law”. But it is because the idea of “natural law” exists that we are able to understand the starting premise of these other systems. In this debate, law is held by some to be no more than the body of rules that are really observed. The application of which is entrusted to the courts. This is the view today to our western universities in which our national laws are taught. But law may also be seen as a model of ideal behavior, one not to be confused with the actual rules by which individuals act which courts apply. European universities, in their pre-nineteenth-century tradition, paid very little attention to national or customary laws of the time and taught, almost exclusively, an ideal law constructed on the basis of Roman law. In Muslim countries, in the same way, more attention is given to the model law linked to the Islamic religion than to local custom (treated as a phenomenon of fact) or the laws and decrees of the sovereign (treated as merely administrative measures) and neither of these is thought to possess the full dignity of law. The same can be said of Jewish law and, in a very different context, Hindu law. Law, then, whether linked to a religion or corresponding to a particularly way of thinking about the social order, is not in either case always necessarily observed by private persons or applied by courts. It may nonetheless exert considerable influence on both “righteous” men may endeavor to rule their own lives according to what they consider to be truly the law. A student of western societies may well in a positivist perceptive concentrate attention upon the rules enacted by legislatures and applied by court or, alternatively, in a sociological perspective, classify as law only those rules which are really observed as a matter of practice. This difference in approach is not a source of any real inconvenience because in western
Major Legal Systems in the World Today
societies there is a large degree of equivalence between justice, positive law and social manners. The same cannot however be said of non-western societies where “rules of law” (in the western sense) remain unorganized, fragmentary and unstable, and where there is generally feeling that true law is to be found elsewhere than in legislation, custom or judicial decisions. Without taking sides in the debate between positivists and advocates of natural law, Muslim and Hindu law, therefore, must be included within the major contemporary legal systems. Jewish law, despite its historical and philosophical interest, must be omitted because its sphere of influence is incomparably less than that the other two.
Far East
The situation in the Far East, especially China is completely different. Here there is no question of studying an ideal law distant from rules laid down by legislators or simply followed in practice: here the very value of law itself has traditionally been put into question. In the West, and in Islamic and Hindu communities, law is held to be a necessary part of, indeed a basis for, society. Good social order implies the primacy of law: men must live according to law and, where necessary, be prepared to fight for the supremacy of law; administrative authorities, no less than any other part of Philippines would fall into this group. And lastly, but from another point of view, the Romano-Germanic and Common law families are included in the same deliberately ignominious term of “capitalist” or “bourgeois laws” by jurists of the socialist camp, made up of the Soviet Union and those countries that have used its law as a model or which, like the U.S.S.R. profess an adherence to Marxist-Leninist teachings.
Black Africa and Malagasy Republic
The preceding observations regarding the Far East apply as well to the black African countries and the Malagasy Republic (Madagascar). There too, in milieux in which the community’ cohesion prevails over any developed sense of individualism; the principal objective is the maintenance or restoration of harmony rather than respect for law. The Western laws adopted in Africa are often hardly more than a veneer, the vast majority of the population still lives according to traditional ways which do not comprise what we in the West call law and without heed to what is very often nothing more than an artificially implanted body of rules.
