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important question and answers (JURISPRUDENCE)

JURISPRUDENCE
(LEGAL THEORY)

Q.No.1Explain the nature and scope of Jurisprudence.            
Answer:-
The study of Jurisprudence started with Romans.   The Latin equivalent of “Jurisprudence” is Jurisprudentia which means either (“Knowledge of law or Skill in law”). 

1.     It studies the Meaning of the term “rights” and various kinds of rights which are theory possible under a legal system.

2.     It is not generally used in other languages in the English sense.

3.     In French, it refers to something like “case law” it an analysis of the formal structure of law and its concepts.

(Examination / studies) Limits / Boundaries

4.     It is confined only to law touching every aspect of law and study of fundamental legal principles.  “Juris” means law (legal) and prudentia” means skill or knowledge.

5.     It includes the philosophical, historical and sociological basis and an analysis of legal concepts.

6.     In France, it is called ‘____ philosophia du droit”, (that is the philosophy of Rights).

7.     In Germany, it is called ‘Rechtsphilosophie’ (that is the philosophy of Rights), that is of law in the abstract sense.

8.     An India (NidhiShostra) that is knowledge of law.

DEFINITION:-
                              
According to ULPIAN Definition:- “Jurisprudence is the knowledge of things divine and human, the science of the just and unjust”.

PAULUS : Defines, “It is the law and the law is not to be deduced from the rule but the rule from the law”.

AUSTIN : It is a
positive law.   Every law is command, obtains its force from its sovereign.   The positive law which is termed by him as “laws strictly so – called”.   It is study of law as it is and not what it, “ought to be”.

He says, “law is the command of sovereign and not of divine”. 
Acc to him, there is no distinction between good law and bad law.   He divided it into 2 kinds
1.    General Jurisprudence
2.    Particular Jurisprudence.

Branches of Jurisprudence

       It can be divided into 3 branches:

1.    Historical Jurisprudence
Deals with general principles governing the origin and development of law, with influences that affect the law, with the origin and development of those legal conceptions and principles which are so essential in their nature as to deserve a place in the philosophy of law.

2.    Analytical Jurisprudence
Analyses the first principles of law as they exist in a legal system.

3.    Ethical or philosophical Jurisprudence.
Deals with the first principles of ethical significance and adequacy of law.


The nature And Value of Jurisprudence

       Irrespective of the serious and severe criticisms on the utility of the subjects “Jurisprudence’, it has its own merits, valuer, benefits in the legal field.

       WurzusOpines : “Jurisprudence is classed as social sciences first of kind ever born”.

1.    Reflection of Rules:-
        The Jurisprudence comparises philosophy of law and is a second order subject which object is not to discover new rules, but to reflect on the rules already known.   It is just like a philosopher in law.   The Philosopher does not discover any new law.   He is concerned with the Scientific law already discovered.

2.     Analysis:-   It is analyses of legal concepts several times the legal rules overlap with another.  Eg The legal rules of penal code overlap with torts, contract, family laws, civil etc.,.
        Then it analyse them, separate them and show a right path to the lawyers, jurists, administrators, legislators etc.,.

3.     Salmond gives an eg :  He writs : “Jurisprudence studies the meaning of the terms for eg ‘Right’ in the abstract and seeks to distinguish the various kinds of Rights which are the theory possible under a legal system.

        Similarly it investigates such other legal concepts as ‘act’, ‘intention’, ‘Negligence’, ‘ownership’, ‘possession’ etc.

        All of those are equally rigorously studied in the ordinary branches of law, but since each of them functions in several different branches of law, Jurisprudence tries to build up a general and more comprehensive picture of each concept as a whole”.

4.     Clarification :   It clarifies the legal position correctly, pin-point, whenever there arises a situation of confusion, ambiguous, uncertain in language of the law.

5.     Connection with other Disciplines:  
        Laws treats the legal position only. But Jurisprudence concerns with all other disciplines such as sociology, economic, political, philosophy, physiology, psychology, history etc., it is the only subject ‘Jurisprudence’ which can link law with other disciplines and give a wider social context and aspect.

6.     Intrinsic Interests :-        It has ‘Intrinsic Interest” in its own subject.   The Jurisprudence analyses, investigations, enquires into the law.   It goes to the depth of the society and law.   It reaches the roots of the elements of law.   It is the only person to evolve a new theory of law can approach for the remedy of evils.   Therefore, researches into Jurisprudence may well have re-echos on the whole of legal, political and social thought.

7.     Rational :-Sawer in his ‘Law in Society’ explains the value of benefit of Jurisprudence. 
        He says – “It is to construct and elucidate organizing concept serving to render the complexities of law more Manageable and more rational and in this way theory can help to improve  practice”.

8.     In Practice:- Practically by studying ‘Jurisprudence’ a lawyer can develop his professional skills.   He can sharpen his own professional and logical techniques. 

9.     SalmondVarites :- “Jurisprudence can teach lawyer to look, if not forwards, at least side ways and around him and to realize that the answers to new legal problems must be found by consideration of present social needs rather them in the distilled wisdom of the past”.

SCOPE OF JURISPRUDENCE

1.     It has widened considerably over the years.
2.     It includes all concepts of human order and human conduct.
3.     Anything which concerns order in the state and society will be within the domain of Jurisprudence.
4.     Acc to Redcliffe.  It is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.
5.     Acc to Mukherjee, “Jurisprudence is both an intellectual and idealistic abstraction as well as behaviour study of man in society”. 
6.     It includes political, economic and cultural ideas.  It covers the study of man in relation to state and society.
7.     Karl Llewellyn Observes:  Jurisprudence is as big as law and bigger.

Utility of Jurisprudence

        Jurisprudence is not without practical value.  It is the “eye of law” and its main uses are follows:-

1.     A study of those fundamental principles which are common to all systems of law is of great advantage in the study of a particular system of law.

2.     The Aim of Jurisprudence is to develop those fundamental principles, the knowledge of which is essential for the practical work of the registrar and the advocate and which are adopted by the Society to adjust the relations between man and man.

3.     A study of Jurisprudence is of immense value to the closely allied sciences of legislation.

4.     Jurisprudence also has great educational value.   The logical analysis of legal concepts widens the (outlook) of lawyers and sharpens their logical technique.

5.     It can also help to improve practice.   It is to construct and elucidate concepts serving to sender the complexities of law more manageable and more rational.

6.     It can teach the people to look, if not forward, at least side ways and around them and realize that answers to new legal problems must be found by a consideration of the present social needs and not in the wisdom of the part.

7.     It said to be “The eye of law”.   It is the grammar of law.

8.     It can find out the Actual rules of law, by understanding the Nature of law, its concepts and distinctions.

9.     It also helps in knowing the language, grammar, the basis of treatment and assumptions upon which subjects rests.

10.   It can help to tackle new and difficult problems which he can handle through his knowledge of Jurisprudence which trains his mind into legal channels of thought in his practical work.

11.   It relieves again and again in each Act certain expressions such as right, duty, possession, ownership, liability, negligence etc.,.

12.   It enlightens students and helps them in adjusting themselves in society without causing injuries to the interests of other citizens.

13.   It helps the judges and the lawyers in ascertaining the true meanings of the laws passed by the legislatures by providing the rules of interpretation.

14.   It exams the consequences of laws its administration on social welfare and suggesting changes for the betterment of the superstructure of laws.

15.   It confined to the study of positive law and also include normative study.

16.   It is social engineering regarding ___ which improve its quality at every stage.

17.   It came to recognize the social and rational nature of man.  Law was adopted to human nature. 






Q.No.2 Historical school of Jurisprudence.                           

Historical School of Jurisprudence

       The Historical School was founded by ran savigny.
       This School enquire into the past to discover the ‘genesis’ of law and find out the history of its development.

       It deals with the general principles governing the origin and development of law as also the origin and development of legal conceptions and principles found in the philosophy of law.

       Acc to them law is the produce internal silently operating force i.e., popular faith, custom and the common consciousness of the people.

       Law grows with the growth and strengthens with the strength of the people and finally dies away as a nation, looses its Nationality.

       The Historical approach to law arose as a reaction against natural law theories Historical approach derived its in inspiration from the study of Roman law in the condiment.

  1.   Law is found and not made.   It is self existent.

2.     Law is antecedent to the state and it exited even before states came into existence.

3.     Law is independent of political authority and enforcement.

4.     Law rests on Social pressure.

5.     In construing a statute judges should consider the history of legislation in question.

6.     The typical law is custom.

7.     Emphasis is on comparative method.

8.     Leaders :Savigny and Puchta.

9.     “Law is the spirit of people (Valksgiest) i.e., custom” is the concept of this school.

10.   The Jurisprudents of this school strongly opine that custom is superior than legislation.

11.   The Analysis of the first principle is that law is the result of historical reasons and circumstances and the spirit of the people.

12.   There is a offshoot of this school, known as ‘Anthropological Approach’.

13.   It deals with all branches of law.

14.   It enquires into part and finds the elements of legal liability.

15.   Acc to this school ‘law is found’.   The Jurisprudents give the preference to ‘Ought’ fascinating new interpretations.

16.   This approach depends upon present and part.

17.   Acc to this school, custom is the formal source of law.   It is transcendent law and other methods of legal evolution like legislation and precedent, derive their authority from custom.

18.   In Historical School, law rests on the social pressure behind the rules of conduct which it enjoins.

19.   Acc to Historical School, in constructing a statute Judges should consider the history of legislation in question.

20.   It proceeds to examine the manner, circumstances and factors responsible for the growth of law and takes account of the social forces operating in the process of the evolution of law.



Q.No.3 What is meant by Administration of Justice? Whatis it’s necessity and distinguish civil and criminal justice.
Answer:-                                                                                       
  Justice and its kinds (Civil and Criminal) Administration of Justice

       Theories of punishment and secondary functions of the Court.

       The 2 most essential functions of a state are

1.   War
2.   Administration of Justice.

       It a state is incapable of performing these functions cannot be rightly called a ‘state’.

       It implies the maintenance of peace and order within a political community by means of physical force of the state.

       Administration of justice and command will help obedience of law.   They include social sanction, public opinion, custom, convenience etc.,

       Acc to Salmond, “law is the body of principles recognized or applied by the State in the administration of justice”.

       Acc to pound, “law is the body of principles recognized or enforced by public and regular courts in the administration of justice.

Meaning:-

Salmond “the Administration of justice is the maintenance of right within a political community by means of the physical force of the state.   It is the application by the State of the sanction of force to the rule of right”.

Acc Black Stone :- Justice is a reservoir from where the concept of right, duty    and equity evolves.
      
         Justice is expressed in terms of  “Justice according to law”
        Dicey called as “Rule of law”. “No one is above law”.

Importance (necessity) of Administration of Justice.

       It is true that unlimited and unrestrained liberty leads to a state of anarchy, therefore some kind of external coercive authority is needed to keep man within his limits and restrain his unfettered liberty.

       Herbeart Spencer, “every man is true to do what he desires provided he infringers not with the equal freedom of any other man”.

       Hobbes believed that a common power was necessary to keep people within controle in the community.

       Force is necessary to prevent the recalcitrant minority from gaining unfair advantage over law abiding people in general.   Therefore, state force is inevitable for protection of rights of individuals in society.

       Origin of the Administration of Justice :-

       It has evolved 3 stages.

1.     When Society was primitive and Private Vengeance and Self-help were the Only remedies available to the wronged person against the wrongdoer he could get his wrongs redressed with the help of his friends and relatives.

2.     It rise of political states took place, but they were hardly powerful to regulate crime and to inflict punishment on the criminal.

        The law of private vengeance and self help continued.
        Eg.In the days of the Saxons.
        Vegeance was not totally absent but it was merely regulated and restricted.

3.     The state began to act as a Judge to assess liability and to impose penalty.
        There was a transformation from private justice to public justice through the agency of state with the growth of the state’s power, private vengeance and violent self help were substituted by the administration of civil and criminal justice.

        Advantages of Administration of Justice.

i)      Administration of justice brings uniformity.
ii)     As the law is know to the citizens, it enables them to regulate their conduct in accordance with it. 
iii)    As the rules are fixed, it helps judges in applying the law uniformly.
iv)    As justice is done according to the principles of law, it ensures impartiality and equality.
v)     The rules of law represents the collective wisdom of the community, therefore, in following them there are little chances of going wrong.
vi)    The administration of justice brings uniformity and consistency in the law sit causes a systematic development of law.

Disadvantages.

i)      It makes law rigid.   When same rules are applied to all the cases of similar nature, sometimes it may causes hardship and injustice.
ii)     Law, tends to become conservative because it does not keep pace with the changed conditions.
iii)    Law becomes more formal.
iv)    Law becomes very complex.

        Kinds of Justice : 2 kinds.
1.     Natural Justice (Normal Justice).
2.     Legal Justice.

*       Moral Justice is implanted in the human mind by the divine power.
*       Legal Justice is the body of the Principles framed and recognized by the state.

        Legal Justice is divided 2 kinds.


1.     Civil Justice.
2.     Criminal Justice.

*       Criminal Wrongs are – Public wrongs.
        Civil wrongs are – Private wrongs.
*       The former are an infringement or deprivation of private or civil rights belonging to individuals considered as individuals, and
        are frequently terms civil injuries ; the latter are a breach and violation of public rights and duties which affect the whole community, considered as a community ; and are distinguished by the harsher appellation.

Distinction  Between

Criminal Justice
Civil Justice
1. All criminal wrongs are administrated by criminal justice.
1.  All civil wrongs are administrated by civil justice.
2. Eg. Theft, murder, rape, forgery etc.
2.  Eg. Breach of contract, Irespass to land etc.,.
3.  All crimes are public wrongs.
3.  All civil wrongs are private wrongs.
4.  All criminal proceedings are instituted by the state.
4.  The aggrieved person institutes the civil proceedings.
5.  A Crime is treated a harmful Act to the entire Society.
Eg.  Murder, killing a person primarily affects the deceased, but it badly affects on his family and also entire society.
5.  Civil wrongs are deemed only to infringe the rights of the individual.
6.  The object of the criminal justice is to ‘punish’ the wrongdoer, ranging from death to fine. 
6.   The object of the civil Justice is to provide ‘compensation’ to the aggrieved and sufferer by wrong – does.
7.   Criminal Justice is administered according to the set of criminal procedures.
7.  Civil justice is administered Acc to the set of Civil Procedures. 
8.  The doctrine of estoppel does not apply to criminal Justice.
8.  The doctrine of estoppel applies only Civil Justice.
9.   “It is better that several guilty men should escape rather than one innocent should punished”.
    The guilt must be proved beyond the doubt.
9.   This Principle does not apply to civil proceedings.
10.   The rules of evidence cannot be relaxed by the consent of the parties.
10.   Te rules of evidence may be relaxed by the consent of the parties.
11.   The cases once instituted cant be compounded or withdrawn in the criminal Justice.  There are very few exceptions.
11.   The proceedings may be withdrawn by the parties with their own consent.
12.   The burden of proof lies on the prosecution.
    The guilt must be proved beyond the doubt.
12.   The burden of proof dies on both the Petitioner and the Defendant.
13.  In the criminal cases, the obligation lies on the Court to bring all relevant evidence on the record so that justice is done.
13.   In the Civil, it is the duty of the parties to place their case as they think best.

14.   ‘Benefit of doubt’ is given to the Accused in criminal Justice.
14.  ‘Benefit of doubt’ principle does not arises in civil justice.
15.  The criminal justice deals with remedial and breaches of duties.  It is a corrective Justice.
15.  It deals with the distribution of wealth and honour.  It is distributive Justice.
16.  Criminal Courts administer the criminal justice.
16.   Civil Courts administer the Civil Justice.

Purpose of Criminal Justice : Punishments

There are 2 aspects of Punishments.

i)      It can be a method of protecting society by reducing the occurrence of criminal behaviour or it can be an end in itself.
ii)     It can protect society by deterring potential offenders, by preventing the actual offender from committing further offences and by turning and reforming him into a law – abiding citizen.

Various theories of punishment have been propounded to Justify ends of criminal Justice and Punishment.

1.   Deterrent.
2.   Preventive
3.   Reformative
4.   Retributive
5.   Compensation.

1.     Deterrent Theory:-
        The evil – doer should be given such a punishment that he becomes an example and warning to others that might similarly feel inclined to deviate from the straight path of duty.
        It should serve as a warning to others.
        It not only dissuades the offender from repeating the crime but also deters others from indulging in criminal activities.

Eg.   Mutilation, beheading, flogging, branding etc.,

2.     Preventive theory:-
        It is based on the idea of preventing repetition of crime by disabling the offender through measures such as imprisonment, dealth sentences etc.

        It is to deprive the offender, either temporarily or permanently of the power to repeat the offence.

        Death Punishment – Most effective Mode.

       When offence are very grave nature, such as murder or treason.
       In modern times, certain preventive measures have been adopted in various offences such as, forfeiture, suspension or cancellation of licence etc.

3.     Reformative Theory.
       Punishment should serve as a means of social education.   It emphasizes on reformation of criminals through the methods of individuaisation.  It says that offences are committed under the influence of motive upon character.   Therefore, they can be checked either by a change of motive or by change of character.

       Acc this, crime is the result of a disease and the criminal is a patient who should be given proper treatment.

       This theory is to reform the character of the wrong does so that he will desire to do what is right instead of yearing to do what is wrong.

4.     Retributive Theory
       It was accorded exclusive recognition in ancient penology.   “An eye for an eye and a tooth for a tooth” is the maxim on which primitive society proceeds.  This involves 2 conceptions:

i)     That punishment is an end it in itself ;
        ii)    That the primary Justification of punishment is found in the fact that an offence has been committed and not in any future advantages to be gained by its infliction, whether for society or for the offender as an individual.

5.     Compensation:-
       The object of punishment must not be merely to prevent further crimes but also to compensate the victim of the crime.






Q.No.4  Question of Law and question of Act.

Marks: 5


Questions of Law, Fact and Discretion

       The determination of cases by the court involves enquiry and consideration of various questions that arise in the suit or trail.

       These questions may be of 2 kinds.
i)     Question of law,
ii)   Question of fact.

       In a court of justice 2 kinds of questions arise, both these terms are ambiguous and possess more than one meaning.

Question of Law:-

       This term has 3 distinct meanings.

1.     It means that a question is to be answered in accordance with the already established rules of law and not in accordance with the evidence that is laid before the court.

        Every question which has not been predetermined and authoritatively answered by the law is a question of law.

Eg.  In a suit for damages,
The question as to whether damages are at all recoverable, in the circumstances of the case, is a question of law while the question of quantum of damages would be a question of fact.

Eg.  Whether a contractor has been guilty of unreasonable delay in building a house is a question of fact but whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonour is a question of law to be determined in accordance with certain fixed principles laid in the bills of exchange Act.

2.     A question of law is a question as to what the law is.  In this sense questions of law arise out of law’s uncertainty.
        When in a court of justice any question arises as to the meaning of an ambiguous statutory provision, this question is a question of law in the second sense and not in the 1st sense but a question of fact.

3.     The general rule is that questions of law in both the senses are for the Judge but that questions of fact are for the jury.

        Questions of fact

       Questions of fact in its general sense includes all questions which are not questions of law.   Everything which is not a matter of law is matter of fact.  It has these meanings.

1.     Any question which is not predetermined by a rule of law.
2.     Any question except a question as to what the law is ; or
3.     Any question that is to be answered by the jury instead of by the Judge.




Question of Judicial discretion

       A question of fact in a narrow and more specific sense is opposed to a question of judicial discretion.

       It pertains to the sphere of right and includes all questions as to what is right, just, equitable or reasonable.   In determining the question of fact the court ascertains the truth of the matter which in determining questions of judicial discretion it seeks to discover the right or justice of the matter.

For eg.  When an Accused charged with a criminal act, that question, which considered whether he has committed the criminal act with which he is charged, is a question of fact but when proved guilty should he be punished by way of imprisonment or by way of fine only, is a question of judicial discretion or of right.



UNIT-III

Q.No.5    Delegated legislation and Sub delegation.                                      

Marks: 5

       Delegated legislation.

       When law making power is conferred by the legislature upon some other body and that other body declare laws, it is known as delegated legislation and the legislative power is said to be delegated.

       The Committee on minister’s power said that the term ‘delegated legislation” has 2 meanings.

1.     It means the exercise of power that is delegated to the executive to make rules.
2.     It means the output or the rules or regulations etc. made under the power so given.

        Reasons for delegated legislation.

1.     Want of time :-  The Parliament is  so much occupied with matters concerning foreign policy and other political issues that it has no time to enact social legislation in all its details.

2.     Technicality of the matters :- Society things have become more technical.   All the legislators may not know them fully and hence, they cant make any useful discussion on it.

3.     Emergency :- During the time of emergency quick and decisive action is very necessary at the same time, it is to be kept confidential.
        Therefore, the executive is delegated the power to make rules to deal with situations.

4.     Flexibility :-Amendming Acts will become necessary Acc to future contingencies and that would cause wastage of time and money.   Therefore delegation to the departments becomes necessary.

5.     Local matters :- Which concern only a particular locality, group or profession, needs consultation with the people on these matters, regarding such legislation the departments are give power to make changes or rules with interested in it.

6.     Experimentation :-   For some Acts needs operation in different localities on different dates according to their suitability and as a matter of experiment.

        Dangers of delegated Legislation.

1.     Legislation may be passed in too skeleton a form and wide powers of action to make new laws and to impose tax may be given to executive.
2.     Parliament gets inadequate time to scrutinize regulations.
3.     Some of the regulations attempt to deprive the subjects of recourse to the law courts for protection.
4.     Illegal actions done under the authority of delegated legislation.

        Control of delegated legislation,

1.     Procedural control.
2.     Parliamentary control.
3.     Judicial control.

1.     Procedural control :-  Certain safeguards are necessary to keep vigil over the exercise of power by the executive or administrative  authorities.
        Methods:
        a)    Prior consultation of interest.
        b)    Prior publicity of proposed rules and regulations.
        c)    Publication of delegated legislation.

        In India, “previous publication” is necessary under Section 23 of the general clauses Act 1987.

2.     Parliamentary Control :-

        When a bill that provides for the delegation of power is before the house, the house may modify, amend or refuse altogether the powers proposed to be delegated in the bill.

        In India, such control is exercised through the committee on subordinate legislation on both the houses of parliament.

3.     Judicial Control :-
        Whenever a law made by the executive is found to be i) inconsistent with the constitution or ii) ultra vires the parent Act from which the law – making power has been derived, it is declared null and void by the Court.

       Sub – Delegation

        It is not uncommon for a body or a person to receive delegated powers indirectly under a statute.  The legislation so produced is in known is sub – delegated legislation.





Q.No.6 What is a Precedent? Explain circumstances which weaken the binding force of a precedent.

Marks:15

Precedent

Judicial precedent is another imp source of law.  It have a binding force on Judicial Tribunals for deciding similar cases in future.

Acc to Salmond, the doctrine of Precendent has 2 meanings.

1.     In a loose sense precedent includes merely reported case law which may be cited and followed by the Courts.

2.     In a strict sense, it means that case – law which not only has a great binding authority but must also be followed.

*       A statement of law made by a Judge in a Case can become binding on later Judges and other subordinate courts and in this way may becomes the law for every one to follow.

*       Precedent become binding depends on 2 main factors

1)     It must have been pronounced by a court which is sufficiently senior.
2)     It is only the retiodecidendi, i.e., reasoning behind the decision which is binding.

        Authority of precedent in India :

*       The privy Council’s Made Authoritative influence by its decisions on Indian judicial legal system.

*       The principles of equity, justice and good conscience in India a were the result of privy council’s various decisions.  Still it’s decisions are binding force in all the courts in India.

*       After independence, the supreme court occupied the place of the privy council.

        Acc to Jeremy Bentham, precedent is a Judge – Made law.

        Austin call it as judiciary’s law.

        Keeton holds precependents as those judicial pronouncements of the court which carry with them certain authority having a binding force.

*       A precedent may be defined as a statement of law found in the decision of a superior court, which has to be followed by that court and by courts inferior to it.

*       Meant to be followed a judicial decision of a High Court or superior court by the same court as also by subordinate courts.

*       Black stone has pointed out that it is an established rule to abide by the former precedents where the same points came again in litigation.

*       The process of Judicial decision making may be either deductive pr inductive.

*       Deductive method is associated with codified system of law.  It assumes that the legal rule applicable to any particular case is fixed and certain and the Judge us required to apply this rule as justice acc to the law without any reference to his personal view.

*       Inductive Method starts with the same primary object of finding the general principles applicable to the particular case, but it does not conceive the rule as being applicable to the particular case, but it does not conceive the rule as being applicable directly by simple method of deduction.  It rather moves from particular to general.

        Kinds of precedents

1.     Declaratory and original precedents
2.     Persuasive precedents
3.     Absolutely Authoritative precedents,
4.     Conditionally Authorities precedents.
Persuasive Precedents may be of various Kinds

1.     Foreign Judgments
2.     Decision of superior courts to other parts of British empire.
3.     Judgments of the privy council when sitting as the final court of appeal from the colonies.
4.     Judicial dicta (obiter dicta)
5.     Authoritative text books and commentaries. 

Art 141 -> Law declared by Supreme Court to be binding on all Courts

Supreme Court is not bound by its own decisions. The expression ‘all Courts’ used in Art 141 refers only to the Courts other than the Supreme Court. Therefore, the Supreme Court is not bound by its own decisions except to the extent that a smaller bench is bound by the decision of a larger bench and that of a co-equal bench.

Ratio decidendi:

·        Precedents carry some legal principles. The legal principle on which a case is decided is called the ratio decidendi of that case.
·        The ratio decidendi means the reasoning factor behind the decision.
It is that principle of law on which a judicial decision is based. It is the very heart of a precedent
OBITER DICTA:

Judges often express legal opinion on issues which they are not asked to decide. These statements of law, in fact, not necessary for the decision, are termed obiter dicta.

·        It is what the judge said unwontedly, just by the way.
·        Goodhart defined obiter dicta as “a conclusion based on a fact the existence of which has not been determined by the Court”
Circumstances which destroy the binding force of Judicial Precedents:

1)  Ignore of statute:
It is not binding if it be rendered in ignorance of any statute or any other rule having the force of stature.
2)  Inconsistency between earlier decision of higher Court:
It loses its binding force completely, if it is inconsistent with the decision of a higher Court.
3)  Inconsistency between earlier decision of the Court of the same Rank:
A Court is not bound by its own earlier decisions which are conflicting with each other.
The conflict may raise due to inadvertence, ignorance in earlier decisions before the Court.

4)  Precedent sub silentio:
A decision is said to be sub silentio when the point of law involved in it is not fully argued or not perceived by the Court.

5)  Decision of equally divided Court:
There may be cases where the Judges of the Appellate court are equally divided. In such a case practice is to dismiss the appeal and hold that the decision appealed against is correctly decided.

6)  Erroneous decisions: The decisions which are founded on misconceived principles or in conflict with the fundamental principles of law lose their binding force totally.

7)  Abrogated decisions: A decision ceases to be binding if statute inconsistent with it is subsequently enacted. So also, it ceases to be binding if it is reserved, overrules or abrogated.

8)  Affirmation or reversal on a different ground:
When a higher Court either affirms or reverses the judgment of the Lower Court on a ground different from that on which the judgment rests, the original Judgment is not deprived of all the authority, but the subsequent Court may take a view that a particular point which the higher Court did not touch, is rightly decided.

Advantages of Precedent:

1)  Jurists like Coke & Blackstone have supported the doctrine of precedents because it shows respect for the opinion of one’s ancestors.

2)  It enable the judges to re-shape the law according to the needs of the time, binding authority of precedents pouts check on the arbitrary decision of the judges.

3)  Precedents provide flexibility to the law to adopt itself to mew environments.

4)  It is based on customs and therefore, they are followed. In following precedents we follow customs which in their turn have been a general practice or conduct of the people for a long time, and not only the opinion of a Judge.

5)  Laws contained in the case laws are certain and simple. They being certainty in law.

6)  They provide useful guidelines to the Judges for decisions.

7)  Precedents give raise to practical and perfect laws because they are the result of concrete actually happened problems.

8)  It will save the Labour of the Judges and the Lawyers. At the same time, it will cause a great impediment in the way of the administration of justice.

Disadvantages of Precedent:

1)  Bentham has not recognized precedent as law because it lacks binding force of the state.

2)  It overlooks the fundamental rule of natural justice that law must be known before it is actually enforced.

3)  Acc to Frederick Pollock, the law based on case – Law is incomplete because the Judges take into consideration only those facts which are involved in the cases before them.

4)  Major setback of precedent is that the development of law through case-law more or less depends upon chance.

5)  Sometimes erroneous decisions of Supreme Court create practical problems for the sub-ordinate Judges.

6)  One practical difficulty which arises in Judicial Precedent is that what should be the test for determining the validity of law made by case Law?





UNIT-IV

Q.No.7   Discuss the idea of legal personality and examine the statusofDead man.

Marks:15
LEGAL PERSONALITY
              

The main object of law is to regulate the relationship between individuals in the society. The law imposes certain duties on individuals for the protection of interests of mankind. The law being concerned with regulating the human conduct, the concept of legal personality constitutes an important subject-matter of jurisprudence because there cannot be rights and duties without a person.

Origin of the concept of legal personality

The word “ person” is derived from the Latin word persona which meant a mask worn by actors playing different roles in a drama.
Generally, there are 2 types of person which the law recognizes, namely,
Natural and artificial.
One of the most recognized artificial person is corporation.

Definition of ‘’legal person’’

Salmond defines, “ any being to whom the law regards as capable of rights or duties. Any being that is so capable, is a person whether human being or not and nothing that is not so capable is a person even though he a man.”

Gray ,’’ entity to which rights and duties may be attributed”.

Paton, legal personality is a medium through which some such units are created in whom right scan be vested.

Kinds of Persons

1.Natural Persons- A Natural person is a human being capable of rights and duties. They are both persons in fact and in law.

2.Legal persons- “ legal persons are being, real or imaginary, who for the purpose of legal reasoning are treated in greater or less degree in the same way as human beings.” they are persons in law, but not in fact. Legal persons are also termed fictitious, juristic, artificial or moral.

i) Corporation – a corporation is a group or series of persons which, by a legal fiction, is regarded and treated as a person.

ii) Institution – the object selected for personification is not a group or series of persons, but an institution, for eg., a church or university.

i)            Fund or Estate- the corpus is some fund or estate devoted to special of uses, for eg., a charitable fund or a trust estate.





LEGAL STATUS OF LOWER ANIMALS

        The only natural persons are human beings. Accsalmond beasts are not persons, either natural or legal. They are merely tings – often the objects of legal rights
And duties but never the subject of them.
Although the beasts are in cable of legal rights and duties and their interests are not recognized by law but the legal history reveals that archaic codes contained provisions regarding punishment to animals if they were found guilty of homicide. Sutherland refers to certain instances where bulls were punished. Ïf an ox gore a man or a woman that they die: then the ox shall be surely stoned and flesh shall not be eaten”.
In the ancient Hindu jurisprudence, killing of harmless animals like swans, squirrels, cows , bulls, etc. was made punishable with fine.

Today, an animal cannot be punished but if it is extremely dangerous then only certain laws allow shooting down. In India, the cattle trespass act has been passed for animals doing trespass.

A beast is incapable of legal rights as of legal duties, for its interests receive no recognition from the law. However, there are two cases in which beasts may poses legal rights. In the first place, cruelty to animals is a criminal offence, and the second place, a trust for the benefit of particular classes of animals, as opposed to one for individual animals, is valid and enforceable as a public and charitable trust.
For e.g., a provision can be made for the establishment and maintenance of a home for stray dogs or broken – down horses.

Salmond says that the duties towards animals are in fact duties towards the society itself. The society does have an interest in the protection and well-being of animals.

LEGAL STATUS OF UNBORN PERSONS

Unborn persons have given the legal status by law. There is nothing in law to prevent a man from owning property before he is born. His ownership is real and present ownership but it is contingent because he may never be born at all.
Paton has observed that, “the child in womb is not a legal personality and can have no rights”. this view is based upon the fact that the child should be born alive and should be completely extruded from the mother’s body before it can have any benefits under the law. It is submitted that this view is not tenable. Now only children in utero, but even unborn children in the sense of children not yet conceived have legal personality. Thus, in the law of property, there is a fiction that a child en ventresa mere is a person in being for the purposes of-

i)            The acquisition of property by the child itself, or
ii)          being a life chosen to form part of the period in the rule against perpetuities.

The Hindu law of partition requires a share to be allotted to a child in mother’s womb along with the other living heirs. But if the child is not born alive, his share will be equally partitioned between the surviving heirs. Thus, proprietary rights of children in utero are fully recognized by the law. Injury to the child in womb has been made a punishable offence by the criminal law. Causing death of a child in womb has been made a punishable offence by the Indian penal code a punishable offence. Thus, children in the womb have rights protected by law and have legal personality. Criminal law also protects the unborn child.
The personality of an unborn person is contingent to his birth because if he dies in the womb or is still- born, no right will be deemed to have been vested in such a child.

LEGAL STATUS OF DEAD MAN

Accsalmond,“Dead man are no longer persons in the eye of the law. They have laid down their legal personality with their lives, and are now as destitute of rights as of liabilities. They have no rights because they have no interests. They do not even remain the owner of their property until their successors enter upon their inheritance.”

Ïn law dead men are ‘ things’’ and not ‘persons’’. They have no rights and no interests. The criminal law provides that any imputation against a deceased peson, if it harms the reputation of that person, if living, and is intended to hurt the feelings of his family or other near relatives, shall be an offence of defamation under section 499 of the indian penal code.
Salmond says that there are three things, more especially, in respect of which the anxieties of living men extend beyond the period of their death in such sort that the law will take notice of them. These are a man’s body, his reputation and his estate.

Dead persons are not recognized as legal persons but the testamentary dispositions of the dead are carried out by law. A person can, by his will, made a valid trust for repairs and maintenance of the graveyard because it amounts to a charitable or public trust but he cannot, by a direction in his will, provide that certain part of his estate shall be permanently used for the maintenance of his own grave.

Williams v. Williams it was laid down that a person cannot during his lifetime make a will disposing of his body, for e.g., giving his brain to the museum or giving any part of his body to the medical college. However, now a days one can legally donate his eyes during his lifetime for another person after his death.

DOUBLE CAPACITY AND DOUBLE PERSONALITY

Law recognizes many different capacities in which a man may act. A man may have power to act in an official or representative capacity or he may act in his private capacity or on his own account.
The fact to be noticed is that if a man has two or more capacities it does not give him the power to enter into a legal transaction with himself. Double capacity must not cannot double personality. Law does not recognize double personality of the individual. For e.g. At common law, a man could not sue himself or contract with himself or convey property to himself even if he was acting on each side in a different capacity.




Q.No.8  sole corporation

Marks :5

Corporations

A corporation is an artificial person. It is a group or series of persons, which by legal fiction are treated as a person and it has capacity to have rights and duties and holding property.
Corporation are of 2 kinds—

Kinds of corporation
i)            corporation aggregate
a corporation aggregate is an incorporated group of co-existing persons. Corporations aggregate have several members at a time.
E.g., a registered company, consisting of all the shareholders  and a municipal corporation consisting of all the inhabitants of the borough, limited companies are the best example of a corporation aggregate. 
The partnership firm is not a person because it is a person because it is only  an aggregate of individuals but is not incorporated. The existing partners own the property and the debts.

ii)          Corporation -sole
A corporation sole is an incorporated series of successive persons. Corporation sole has only one member at a time. According to salmond, corporation sole is found only when the successive holders of some public office are incorporated so as to constitute a single, permanent and legal person.
E.g., the secretary of state for war, the postmaster- general, the solicitor to the treasury, attorney- general of India.


                Advantages of incorporation

1.Corporate personality- a partnership firm, which has no existence apart form its members a company is a distinct legal or juristic person independent of its members.under the law, an incorporated company is a distinct entity, even the one man company. Eg.,salomon v Solomon and co. it was held that the company has its existence separate and distinct from its members.

2.Limited liability- in the case of limited companies, no member is bound to contribute anything more than the nominal value of the shares held by him

3.Perpetual succession- an incorporated company has perpetual succession which means that ‘’ members may come and members may go but the company can go on forever’’

4.Transferable shares- shares of the companies are movable property, transferable in the manner provided by the articles of the company.           
       
5.Restriction on purchase by a company of its own shares- the companies have been prohibited, with some exceptions, the purchase of their own shares, especially by companies with liabilities limited by shares or guarantee.

6.Separate property- a company as a legal entity is  capable of owning its funds and others assets. The property of the company is not the property of the shareholders.
       
7.Capacity to sue- as a juristic legal person, a company can sue in its name and        be sued by others.

8. Flexibility and autonomy- the company has an autonomy and independence to form its own policies and implement them, subject to the general principles of law, equity and good conscience and in accordance with the provisions contained in the companies act, memorandum and articles of association.

Disadvantages of incorporation

1.Formalities and expenses- incorporation of a company is coupled with complex, cumbersome and detailed legal formalities and expenses, involving considerable time and money.

2.Corporate disclosures- notwithstanding the elaborate legal framework designed to ensure maximum disclosure of corporate information, the members of a company are having comparatively restricted accessibility to its internal management and day-to- day administration of corporate working.

3. Divorce of control from ownership- members of a company are no having as effective and intimate control over its working as one can have in other forms of business organization.

4.Greater social responsibility- having regard to the enormous powers wielded by the companies and the impact they have on society, the companies are called upon to show greater social responsibility in their working and for that purpose, are subject to greater control and regulation than that by which other forms of business organization are governed and regulated.

5. Greater tax burden in certain cases- in certain circumstances, the tax burden on a company is more than that on others forms of business organization.

6. Detailed winding – up procedure—the companies act provides elaborate and detailed procedure for winding up of companies which is more expensive and time consuming than that which is applicable to other forms of business organization. 



UNIT-V

Q.No.9 Explain the theory of strict liability and vicarious liability.

Marks:15
LIABILITY

Liability is responsibility for an act or omission. Whoever commits a wrong is said to be liable for it.

Acc salmond, “ liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wronged”.

Acc to Austin,”’liability consists in those which a wrongdoer must do or suffer. It is the ultimatum of law and has its source in the supreme will of the state.

Liability arises from a breach of duty which may be in the form of an act or omission.he prefers to call liability as ‘imputability’’.

Liability can be classified in to
1.it can be civil or criminal.
2.it can be remedial or penal.
3.it can be absolute or vicarious.

Civil liability consisits in enforcement of the right of the plaintiff against the defendant in civil proceedings,
Criminal liability –the purpose of the law is to punish the wrongdoer.

Difference b/w civil and criminal liability:

        1.Crime is a wrong against the society but a civil wrong is a wrong against a private individual.
          2. The remedy for a crime is punishment but the remedy for civil wrongs is damages.
        3. The proceedings in case of crime are criminal proceedings but in case of a civil wrong they are civil proceedings.
        4. In a civil  wrong, the liability is measured by the wrongful act and the liability depends upon the act and not on the  intention while liability in a crime is measured by the intention of the wrongdoer .

        The defendant is asked to pay damages or to pay a debt, or to make a specific performance,etc the liability is called Remedial liability.
        When after a successful proceeding the wrongdoer is awarded punishment, fine, imprisonment, etc., the liability is called penal liability.

STRICT LIABILIY
        Generally a man is held liable for his wrongful acts but there is an exception to this general rule which is known as wrongs of strict liability. These are the acts for which a man is responsible irrespective of the existence of either wrongful intent or negligence. They are exceptions to the general requirement of fault.
Wrong of strict liability are also known as wrong of absolute liability. The wrong arises from the breach of an absolute duty. An “absolute duty’’ may be defined as a ‘ duty which renders  a man liable without any fault of his and irrespective of any consideration of intention or negligence on his part”.
It is absolute liability in the sense that it is not necessary for the injured party to prove any intention or negligence on the part of the injuring party. Wrongs of absolute liability can be classified into 4 kinds:
i)            Cases relating to escape of dangerous things;
ii)          Cases relating to escape of animals.
iii)        Cases relating to the use of things which in their nature are specially dangerous such as fire, fire-arms, explosives, poisonous drugs etc.

Acc to salmond, it can be put into 3 groups-
1)  Mistake of law
2)  Mistake of fact
3)  Inevitable accident


1)  Mistake of law- it is expressed in legal presumption that everyone knows the law. If a person has committed a wrong under mistake of law, the law will not hear him say that he had no guilty mind and that but for his ignorance of law, he would not have done it. This presumption is irrefutable.
2)  Mistake of fact- which means that ignorance of the fact is excuse. It means that a person is not liable for a wrongful act if he has done it under a mistake of fact. Mistake of fact is a valid defense against wrongful acts.
In R. v Prince – a person who abducted a girl under the legal age of consent was held criminally liable, although he honestly believed her to be of that age because the act of taking away the girl itself is a wrongful act.
3)  Inevitable accident- it is commonly recognized as a ground of exemption from liability. Accsalmond, every act which is not done intentionally is either done accidentally or by mistake. It is done accidentally when the consequences are unintended and it is done by mistake when the consequences are intended but the actor is ignorant of some material circumstances.
In Ryan v Youngs the sudden death of the driver of a motor vehicle due to heart- failure as a result of which the accident was caused, was held to be a mere inevitable accident and the defendants were held not liable.

VICARIOUS LIABILITY

        Normally, the person who does the wrong is liable for that wrongful act but there are certain circumstances when the liability of the wrongdoer is imposed on some other person than the wrongdoer himself. Therefore, in vicarious liability one man is made answerable for the acts of another. Modern civil law recognized vicarious liability in 2 chief classes:
i)            Masters are responsible for the acts of their servants done in the course of their employment,
ii)          Representatives of dead men are liable for the acts of the deceased whom they represent.
1)  Master’s liability for the acts of his servants
Vicarious liability means liability which is incurred for, or instead of, another. Every person is responsible for his own acts, but in certain circumstances liability attaches to him the wrongs committed by others. Liability of the master for the acts of his servant is both joint as well as several.
A servant is that person who voluntarily agrees, whether for wages or not, to subject himself at all times during the period of service to the lawful orders and directions of another in respect of certain work to be done. While the master is that person who is legally entitled to give such orders and to have them obeyed by others.

        3 reasons for holding a master liable for the wrongs of his servant:
i)            Qui facit per aliumfacit per se
ii)          Respondeat superior
iii)        Financial considerations
iv)          
2)   Living representatives for the acts of the dead
A man cannot be punished in his grave and, therefore, it was held that all actions for penal redress must be brought against the living offender and must die with him. This old rule has been abrogated by law to a great extent. A personal action does not survive on the death, either of the person who sustained or the person who committed, the wrong.
        At common law, in the case of the death of the person wronged, his executors or administrators could not maintain an action for-

a)   Personal wrongs committed during his life- time, such as assault, libel, false imprisonment, negligence not causing death, reduction; or
b)  Trespass to his goods and chattels; or
c)   Damages for his death.

Vicarious liability in criminal law
 The general principle is that a person is not responsible for the act of another. A master is not criminally liable for the unauthorized acts of his servant. However, there are certain exceptions  of this rule. The legislature may prohibit an act or enforce a duty to make them absolute. In such a case the principle will be liable for the act of his servant as if he did that act himself. If a principle neglects the performance of an act which is likely to cause dangers to others and entrusts it to unskilled hands, he will be made criminally liable in certain cases.





Q.No.10 Mens Rea

Marks:5

Mens Rea
Meaning of mensrea is guilty mind. Any act alone does not constitute a crime. It requires a guilty mind behind it. Mensrea is defined as the ‘mental element’’ necessary to constitute criminal liability’’. Slamond says that criminal liability may require the wrongful act to be done intentionally or with some further wrongful purpose in mind, or it may suffice that it was done recklessly; and in each cae the mental attitude of the doer is such as to make punishment effective. If a person does a wrongful act intentionally or even if committed the forbidden act without wrongful intent but knowing the harmful consequence of the act, he will be punished.
Mensrea must extend to all three parts of the act;
i)            the physical doing or not doing;
ii)          the circumstances
iii)        the consequences
wrongs may be divided into three types;
i)            intentional or Reckless wrongs—in which mensrea is intention, purpose, or design.
ii)          Wrongs of Negligence—in which the mensrea is mere carelessness, as opposed to wrongful intent or foresight.
iii)        Wrongs of Strict liability – in which mensrea is not required. These wrongful acts by themselves are wrongs and punishable.

 Exceptions to mensrea
i)            When the law imposes strict liability, the requirement of guilty mind or mensrea is dispensed with. In the interest of public safety, health, and social welfare, many measures imposing strict liability have been legislated. In matters concerning DSFSDFpublic health, food, drugs etc.,such  strict liability is imposed.
ii)          Where mensrea is difficult to be proved,  a guilty mind need not be proved in such cases; provided that the penalties are petty fines.
iii)        In the interest of public safety, in deciding cases relating to public nuisance, it is not necessary to take mensrea into consideration.
iv)         In those cases which are criminal in form but in fact they are only summary mode of enforcing a civil rights, mensrea is not necessary.
v)           Ignorance of law is no excuse is the maxim of another exception.    






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