JURISPRUDENCE-I

Q. 1 "The simple model of law as sovereign's coercive order failed

to reproduce some of the salient features of a legal system".
Who gave he theory of law as sovereigns coercive order?
Explain the theory in detail. What are the salient features of a legal
system that this theory failed to provide for? Explain the criticism of
this theory with specific reference to Prof.
Hart. How far is this theory applicable in India's legal system as it is
existing today.

Ans. John Austin was born in the United Kingdom. He is considered

as the founder and father of the Analytical School of Law, widely
recognized for his theory of sovereignty and legal positivisim
mentioned in his book "The Province of Jurisprudence Determined".

Austin's Positive Law

Positive law, according to Austin, comprises the commands of a
political sovereign supported by sanctions on those who disobey.
There are three key elements of this concept of law -
(1) A political sovereign;
(2) Command; and
(3) Sanction.
In Austin's theory, a society which does not have a political sovereign
does not have law in the strict sense of positive law.
Instead, it will have "laws improperly so called" or positive morality.
Thus, the law was defined by Austin as "Law is a command of the
sovereign backed by a sanction." This is also called as Austin's
Command Theory of Law, or CDS Model.

Salient features of Austin's theory

(i) Every law is a species of command.
(ii) It is laid down by a sovereign authority either directly or
indirectly.
(iii) Every law prescribes a course of conduct i.e. duty. (iv) Every law
has for its sanction the physical force of the State.
The essential elements of this concept have been explained as
follows:
(a) Sovereign - According to Austin, the sovereign is a determinate
human superior. It may consist of a single person, as in an absolute
monarchy, i.e., King/Queen, or a group of persons such as the crown,
lords and common in the United Kingdom, whom the bulk of a political
society habitually obeys, and who does not himself habitually obey
some other person or persons.
However, in every case the persons who make up the sovereign must
be identifiable. This is why Austin opined that customary law is not
positive law as it is a product of generally held opinion of an
indeterminate community of persons.
Austin also stated that the powers of the sovereign are indivisible, i.e.,
the sovereign will make laws, the sovereign will execute laws and the
sovereign alone will administer the law. The sovereign's power cannot
be legally limited as he is the sole source of legal authority.
(b) Command - Commands are expressions of desire given by political
superiors, i.e., sovereign, to political inferior, ie., general public. There
are commands which are laws which are not. Austin distinguished law
from other commands by their generality. Laws are general
commands, unlike commands given on parade grounds and obeyed
there are then by the troops.
A command involves :
(i) a wish or desire conceived by a rational being that another rational
being shall do or forebear; (ii) on evil in case of non-compliance; and
(ii) intimation of the wish by words or other signs.
Where there is a duty, there is a command and vice-versa.
Laws producing commands may be general, in the sense that they
constitute rules of conduct applying to classes of persons or events.
The rules of criminal law for instance in the Indian Penal Code, 1860
are general commands. They are impersonal and not directed to
particular individuals. In each case, the command creates a positive
law. For eg. IPC lays down rules (command), it was passed by a
sovereign and the sovereign authority imposes a duty and violations
of IPC are met with penalties i.e., sanction.
(c) Sanction - According to Salmond, sanction is the instrument of
coercion by which any system of imperatives law is enforced. Austin
describes sanction as some evil, harm or pain which follows if a
individual fails to obey the command issued by the sovereign and is
intended as a motivation for the subjects of the sovereign to comply
with its commands.
The sanction is a necessary element of command and there must be a
realistic possibility that it will be imposed in the event of breach of
duty.
Austin's theory describe sanction as more of a physical forcer applied
by the State to suppress the non-abiders and for administration of
justices.
There are, however, certain exceptions to Austin's theory of law,
explained by Austin as follows:
i) Declaratory laws : There do not create new duties but simply clarify
or interpret existing legal relations. These are not imperative in nature
but Austin conceded that imperative rules may be enacted under the
guise of a declaration, and judgments in their violation are per
incuriam. For eg. General Clauses Act, 1897 (laws of authentic
interpretation).
(ii) Repealing laws : Laws to repeal are not imperative commands. It
should be noted that the repeal of some laws may create new duties
or revive old ones. For eg. the repeal of a law exempting some part of
a person's income from tax creates a liability to the tax. il) Imperfect
laws : Laws of imperfect obligation lay down rules without attaching a
sanction for their breach. For eg., the statutory duty of the city council
to keep the streets clean. Such a law lacks a sanction, and is thus not
binding in the absence of sanction, the expression of a desire by the
sovereign is not a command. An example of this is "Directive Principles
of State Policy" provided in Part IV of the Constitution of India, as well
as "fundamental duties" in Part IVA.

Criticism of Austin's Theory

(i) Prof. Hart's Criticism of Austin's Command theory: Prof.
Hart equated the command duty. Sanction model (CDS model) with
the "gunman situation" where a gunman says to his victim, "Give me
your money or your life." Thus, a person may compel another to obey
a command by threatening evil but the robber or gumman is not
making law but is rather violating it. Bentham and Austin would have
agreed that the robber's command is not law because the robber is
not sovereign but according to Hart, a sovereign is no different from a
robber if people obey their commands solely due to fear of sanction.
Thus, Austin's theory merely obligates the subjects, threatens them
only with physical sanction / coercion unmindful of the legitimate
moral and social obligations of the sovereign towards his object, thus
putting a terrible pressure on the politically inferior subject even to the
breaking point.
Furthermore, the command theory is based on the existence of a
sovereign command whose power is unlimited and cannot be legally
limited. Hart argued that in many legal systems, including that of
Britain, there is no such sovereign. The British sovereign is a creation
of law, including the rules of royal succession. It would be
unreasonable to say that there rules are rules of morality but not law.
Hart further argued that Austin's theory does not consider whether
the command given by the sovereign is just or unjust. The separation
between 'is' and 'ought' is law and morality, the central theme of
Austin's theory of positive law, is rejected by Hart who insisted that
law necessarily has some moral content. 'Is' indicates factual content
and 'ought' indicates moral content. Austin failed to take into account
the ethical and moral content of the law. Hart described 'minimum
content of natural law' wherein ethical and moral elements have an
important place in the sphere of law in the name of justice, equity and
good faith. The origin of the words
'right', 'wrong' and 'duty' etc. can be traced to certain ethical notions
and standards. Austin overlooked this aspect of law.
(ii) Usage of the expression 'command': Olivercrona criticized Austin's
theory for overemphasizing 'command' as an essential element of law.
A command is always an which one person seeks to influence the will
be another but in modern progressive democracies, law is nothing but
an expression of the general will of the people. Therefore, the
command theory has lost its significance in the modern day
democratic set up.
(iii) Over emphasis on 'sanction': Austin states that it is sanction alone
which induces a man to obey law. However, his critics believe that
there are other reasons or natives such as fear, sympathy, deterrence
etc. which may induce a person to obey law. Obedience to law is a
matter of habit for bulk of society whereas sanctions are required to
punish a selfish minority from gaining an unfair advantage and not to
coerce the law abiding majority. Thus, the power of the State is only
the last force to secure the obedience of law.
(iv) Conventions: England has an unwritten Constitution and the
constitutional law in England is mainly derived from conventions
which are habitually obeyed and operate imperatively, though not
enforceable by court. Such law would not be called law according to
Austin's theory even though they are laws which are the basis of the
legal system in England. Thus, Austin's theory failed to provide for this
legal system.
(v) International law: Austin categorized laws in a way as to put
international law under positive morality (laws improperly so called).
This is because he could not locate a specific sovereign as being the
author of its rules and also because obedience to these rules is a
matter of choice for various states. Since there is no determinate
sovereign, there is no command to be obeyed by the States and thus
it lacks sanction.
This view of Austin was severely criticized for ignoring such an
important branch of law especially in the light of increasing role of
international law in achieving world peace. Though it is assumed that
there are no sanctions in international law, it cannot be said that it is
not law. Even the states that violate international law do not deny its
existence and rather attempt to defend their actions within the rules
of international law.
Furthermore, there are international bodies like UNSC, WTO, ELL that
have been conferred with sanction imposing power and the European
court or IC] have several judges, one each from a specified region, and
the laws interpreted by them are binding on all member States.
(vi) Over emphasis on the term 'sovereign': Austin assumed that the
sovereign is some determinate person or body of person who
commands. However, in modern times, there is no determinate person
but rather a machinery of State which is run by a number of persons
and institutions, which keeps changing continuously.
(vii) Ignored other kinds or sources of law: Austin ignored the
historical evolution of law when customs played a significant role in
regulating human conduct. His theory also failed to take into account
judge made laws i.e, precedents, which are the main source of law in
English legal system. For eg Vishakha's case in India is an example
where Supreme Court created law indirectly by laying down guidelines
to curb sexual harassment against women.
Austin's theory cannot be accepted if it maintains that all laws
emanate from a sovereign. However, it may be accepted if it states that
must laws come from a sovereign.

Applicability of Austin's theory in India

Austin's command theory cannot be applied in the modern
Indian legal system because of the following reasons :
(1) The Constitution prescribes doctrine of separation of powers :
Austin's theory states that the sovereign's powers are indivisible,
however, in most modern democracies based on Constitution, there
are three organs of the State, i.e., legislative, executive and judiciary,
independent of each other with separate jurisdictions and powers. All
these organs of the State derive their respective powers from a written
Constitution which also limit the scope thereof. It is the Constitution
that is supreme and sovereign, and not some determinate person.
(2) Divisibility of sovereign power - The Constitution of India provides
for a quasi federal structures of governance where the legislative
power is divided between the Union / Centre and the States, which
means that there is decentralization of power and there is no one
determinate sovereign.
(3) Limitation on Sovereign's powers - Although the Constitution is
supreme, it cannot be held to be sovereign because it owes its
existence to and has its source of validity in the people of India that
had adopted and given to themselves the Constitution, as stated in the
Preamble. Non are the people sovereign in the practical sense because
once they have elected their government, they cannot do anything for
the next 5 years.
The Parliament has unlimited power to make laws and even amend
the Constitution but it is not also sovereign as its powers has been
restricted to some extent by the judiciary. In Kesavananda Bharti case,
the Apex Court held that the Parliament cannot amend the basic
structure of the Constitution, i.e., both is legislative and amending
powers are limited and subject to judicial review.
(4) Replacement of one sovereign by another by means of democratic
elections every 5 years.
(5) Customary law is an important source of law, unlike in Austin's
Command Theory.
(6) Indian laws and based on ethical and moral standards, justice,
equity and good faith.
Q. 2 Explain Kelsen's pure theory of law? Why is the legal order
referred to as the social normative coercive order? Where will you
place Constitution of India in the Kelson's theory.

Ans. Hans Kelsen (1881-1973) was a leading German-American legal

positivist. This major works on legal positivism were the General
Theory of Law and State and the Pure Theory of Law. He explained the
nature of his pure theory, as a "It seeks to preclude from the cognition
of positive law all elements foreign thereto. The limits of this subject
and its cognition must be clearly fixed in two directions : the specific
science of law (jurisprudence) must be distinguished from the
philosophy of justice on the one hand, and from sociology (cognition
of social reality) on the other." Thus, he distinguished pure theory of
law from the philosophy of justice. He opined that while the pure
theory of law is a science, justice is an irrational ideal and a judgment
of value, determined by emotional factors, and thus subjective in
character.
The pure theory of laws studies norms ie, propositions that State "how
men should behave" whereas sociological jurisprudence studies what
is', i.., how people actually behave. Kelsen agreed with neither the
natural law theorists, who viewed law and morality as sharing the
same basis, nor the legal positivists/realists who believed that law
consists solely of the actually decisions of courts that people must live
with.

Law as a Coercive Order

According to Kelsen, law is a coercive order of human behaviour.
Laws command a certain human behaviour by attaching a coercive act
to the opposite behaviour. However, unlike John Austin, who
considered law as a species of commands, Kelsen stated that a
command is essentially a willing and its expression and it is not clean
that some laws embody the true will of anyone.
Thus, Kelsen preferred to describe laws as norms or rules stating that
an individual ought to behave in a certain way, but not asserting that
such behaviour is the actual will of anyone.
He further distinguished between legal norms and moral norms
wherein the moral norm only prescribes what a person should do or
not do whereas the legal norm says "if a person does any act against
the norm, then he will be punished by the State." Thus, Kelsen also
considered 'sanction' as an essential element of law that he preferred
to call it the norm.
Kelsen's theory of law is an analysis free of all ethical and political
judgments or values-hence the name 'pure theory of law!' According
to Kelsen, in order to assign legal meaning to an act, we take into
account the legal norms. Norm is the meaning of an act of will by
which certain behaviour is commanded or permitted or authorized.
Validity of Norms - It has been described as follows :
(i) Validity means the specific existence of a norm.
(i) Validity of a norm means that a norm is binding and an individual
ought to behave in the manner determined. by the norm.
(iii) Every two norms that ultimately derive their validity from
(iv)one basic norm belong to the same legal system.
All legal norms of a given legal system ultimately derive their validity
from one have norm i.e. grundnorm.
(v) The reasons for the validity of a norm can only be the validity of
another norm.

(vi) A legal order does not lose its validity when a single norm loses to
be effective nor does a single norm lose its validity if it is only
ineffective from time to time.
(vii) Effectiveness is a condition for validity of a norm but not vice
versa. The question of the validity of a norm precedes the question of
its effectiveness.
(viii) The reason why a norm is valid and why an individual
'ought to behave in a certain way, cannot be ascertained by a fact i.e.
by a statement that something is'.

Fig: LEGAL ORDER (TREE OF NORMS)

Kelsen's pure theory of law is based on a paramedical structure of
hierarchy of norms which derive their validity from the basic norm or
'grundnorm'. If the other norms are against the grundnorm, then
those norms will be invalid. In the paramedical structure of hierarchy,
the Grundnorm is at the top, fully independent of all other norms. The
subordinate norms are regulated by their superior norms.
Thus, all the legal norms in a legal system can be traced to the final
source i.., grundnorm which is present in every State; however, it may
vary in nature. For eg. the Constitution of India is our grundnorm and
all the other laws like the Indian Penal Code, Criminal Procedure Code,
etc. check this validity from the Grundnorm ie., the Constitution of
India. If there is a law in IPC which violates any Constitutional
provision, then such law will be held to be invalid.

Legal order as a normative coercive order

Kelsen, like other legal/positivists, denied that there was a necessary
connection between law and morality. A law that gives affect to a
moral rule is law not because of its moral content but because it has
been constituted in a particular manner by following a definite
procedure and rule of law. A norm in the sense of 'ought could be legal
or moral or both. For eg. rule against theft is moral as well as legal.
However, law is not the only regulative system in the society. Moral
norms too play an important role in guiding on individual's behaviour.
Moral norms, like legal norms, have both subjective and objective
existence. For eg. a vegetarian may say, that all persons ought to stop
eating animal products. Thus is subjectively true for the vegetarian but
it has no objective existence in a society of meat eaters, thus it is not
a moral norm of that society. Whereas if an individual believes that
people ought not to inflict cruelty on animals, it will be objectively true
in most civilized societies, and thus be a moral norm in those societies.
Kelsen also argued that laws and morals cannot be distinguished
according to their respective content. The only kind of moral norm that
cannot be a legal norm is one that is addressed wholly to a person's
own mind, as stated above. Kelsen regarded such morals/ moral rules
as incomplete. A complete/positive moral rule deals with both internal
and external behaviour, just like a positive legal rule.
It is also not possible to distinguish between moral and legal rules by
the way they are created. Legal rules are created either by customs or
by the will of a law making authority. Positive moral rules are also
established by customs or by the will of moral authority, such as a
divine being, a prophet or a church. Moral rules or norms derived
purely from philosophical speculation have no force as rules unless
they gain relevance in society which can only happen by force of
custom or authority.
Furthermore, moral rules and legal rules are similar in their method of
application. Moral systems lack the specialized enforcement agencies
(eg. courts, police, etc.) that we associate with legal systems.
This was also observed by Kelsen in many of the primitive legal
systems. The only way these two can be differentiated was explained
by Kelsen based on the fact that legal order is a coercive order where
as moral order is not. He stated:-
... law is a coercive order, that is, a normative order that attempts to
bring about a certain behaviour by attaching to the opposite behaviour
a socially organized coercive act; whereas morals is a social order
without such sanctions. The sanctions of the moral order are merely
the approval of the behav conforming and the disapproval of the
normapposing Thus, what is needed for society to have law is the
means of applying a socially organized coercion, even if there is no
sovereign, by courts and governments. Thus, Kelsen rejected Austin's
theory of sovereignty and held that even the primitive law/ customs
and international law are also law. He also stated that a law may exist
even if no coercion is actually applied. The thief may not get caught,
or if caught and tried, may be acquitted for want of evidence beyond
reasonable doubt. The moral norm states - "a person ought not to
commit theft." The legal norm states - "If a person commits theft, they
ought to be punished." Thus, the Igal norm, like the moral norm, is not
a statement of fact, nor does it assure that what ought to happen will
in fact happen.

Critical Analysis of Kelsen's Theory

(i) The pure theory of law suggests that grundnorm is the concept of
the Constitution that ought to be followed. The Constitution of a
country is a sociological and political document. Therefore, grundnorm
is not pure.
(ii) Kelsen stated that law should be kept free of morality. How feasible
is this requirement? Kelsen insisted on the law to be effective, and thus
he accepted indirectly morality as a part of effectiveness.
(iii) Kelsen attempted to change law into a science, a theory to be
understood through logic, but on the other hand, he emphasized the
validity of the grundnorm to be 'assumed' rather than based on some
logic.
(iv) Kelsen did not explain where grundnorm derives its validity from.
The grundnorm in this theory is vague and confusing.
(v) The pure theory of law is without any sociological foundation as it
excludes all social facts and needs of the society.

Pure Theory of Law & Indian Construction

According to Kelsen, in every country there is a hierarchy of legal
norms, headed by, 'grundnorm' or basic norm. In India, the grundorm
is the Constitution (as held in Sq. Leader HS Kulshreshtha case).
In the Indian context, the Constitution is the supreme law of the land
which will always prevail over any other law. However, it must be noted
that the Constitution of India is not actually the grundnorm.
The grundorm is the premise that the Indian Constitution ought to be
obeyed. Thus, the pyramid will place the Constitution in the manner
shown below:

Thus, the Constitution of India derives its validity from the basic norm
that the Constitution must be obeyed. However, the Constitution is
amenable to amendment depending o the sociological and political
situation and is a dynamic and organic political document, therefore,
it cannot be considered to be grundnorm i.e. a norm independent of
all other factors and norms. But for all practical purposes, the
Constitution enjoys the some importance as the basic norm for the
following reasons:-
(i) The other laws assume validity because they are in conformity with
the Constitution by virtue of Article 13 of the Constitution - which
provides that any law made in violation of its provisions is unlawful
and liable to be struck down.
(ii) The institutions established under the Constitution i.e., the
legislature, executive and the judiciary are in fact subordinate in the
Constitution, and have to act in conformity with its provisions.
(iji) The legislative powers to the Parliament and those of the State
legislatures are subject to certain limitations and are derived from
Articles 245 and 246. Thus, the legal system for all the laws enacted
trace their validity from a single source of law i.e., the Constitution.
(iv) Although the Constitution can be amended, the procedure under
Article 368 to amend it is lengthy and technical. In Kesavananda
Bharati Case (1973), the Apex Court held that even amendments made
under Article 368 cannot change the basic structure of the
Constitution i.e., the amendments cannot be made to alter the
framework and basic structure of the Constitution to the extent of
changing its identity.
In Sunil v. State of MP (2016), the MP High Court held that the
Constitution of India is the grundnorm - the paramount law of the
country. All other laws derive their origin and are supplementary and
incidental to the principles laid down in the Constitution.
In Gout. of Andhra Pradesh & Ors. v. Smt. P. Laxmi Devi (......), the Apex
Court observed that -
"According to Kelsen, in every country there is a hierarchy of legal
norms, headed by what he call as the 'Grundnorm'.
If a legal norm in a higher layer of this hierarchy conflicts with a norm
in a lower layer, the former will prevail. In India, the Grundnorm is the
Indian Constitution."

Q. 3 Briefly explain Hohfeld's concept of jural relations.

Ans. Wesley Newcomb Hohfeld was Professor of Law at Stanford
University when he published his articles titled
"some fundamental legal conceptions as applied in judicial reasoning.
The distinguished between rights in rem and rights in personam in
relation to equitable interests. A right in rem is traditionally thought to
exist with respect to a thing and is applicable against the world at
large, whereas a right in personam exists in relation to particular
individuals. For eg. the rights a person has over his house and land are
rights in rem that he may assert against the world at large, whereas
the right to be paid the agreed salary is a right in personam one has
against his employer.
Thus, rights in rem are separate rights that a person has in relation to
every other person individually and severally. Hohfeld argued that in
order to clear confusions regarding the fundamental conceptions and
jural relations, we must dissolve the artificial dichotomies and
constructs. According to Hohfeld, the most serious impediment in
understanding all legal problems was the tacit assumption that all legal
relations can be reduced to rights 'and duties', which is why it is
difficult to analyse the complex legal interests such as trusts, options,
future interests, etc.
Therefore, Hohfeld broke the term right into four distinct basic
conceptions :-
(i) Claim/Right in the strict sense ii) Privilege/Liberty
(i) Power
(iv) Immunity
Hohfeld also set out the jural relations between these conceptions and
their respective correlatives and opposites.

(a) Jural Correlatives - It is defined as follows-

"In any legal relation between two parties concerning a single act or
omission, the presence of one conception in one party entails the
presence of the correlative in the other party."

For eg. if X has a right that Y pays him Rs.100/-under the contract, then
Y has a duty to pay X Rs.100/-

(b) Jural Opposites - It is defined as follows -

"In any legal relation between two parties concerning a single act or
omission, the presence of one conception in one party means the
absence of the jural opposite in that party."

Thus, X who has a right that Y pays him Rs. 100/- does not have a no-
right in that regard. Y who has a duty to pay X Rs. 100/-does not have
liberty privilege not to pay. Aristotle opined that "it is impossible for
the same mean to suppose that the same thing is not is not." Thus, X
has a right or no-right, but no both. Y has a duty or liberty but not both.
(c) Jural Contradictories - This third set was given by Glanville
Williams wherein he defined it as follows -
"In any legal relation between two parties concerning a single act or
omission, the presence of one conception in one party means the
absence of contradictory in the other party."

Thus, if X has a right that Y pays him Rs. 100/-, Y cannot have a liberty
not to pay X because Y has a duty to pay X. The jural contradictory
follows logically from the jural opposites.

Inter-relation of the sets:

All Jural Relations

These jural relations have been discussed in detail below:
Jural correlatives-
(i) Claim/Right and Duty ("You Ought") - A right is a legal claim of one
person that another person acts or omits to act in a certain way. The
position of the other is described by saying that he has a duty.
According to Hohfeld, the term
"right" is incorrectly used for denoting something that in a certain
case, might be a privilege, a power or immunity and not right in the
strict sense. He pointed out that due to right his in duty, which is a
prescriptive pattern of behaviour. A claim is thus a sign that some
person ought to behave in a certain way. For eg. X has a claim that Y
ought to pay him Rs. 100/-•
(ii) Privilege/Liberty and No-Right Relation (1 May) - Just as legal
rights of one person are the benefits which he derives from legal duties
imposed upon another, the legal liberties are benefits a person derives
from the absence of legal duties imposed upon him. For eg. X has a
liberty whether to wear a bowler's hat or not. Privileges/Liberties may
be accompanied with rights that impose duties on another person not
to interfere. For eg. Y has a duty not to interfere with X's liberty to wear
the hat or not. However, privileges can sometimes exist without the
existence of a right.
Distinction between Claim and Liberty
A claim implies a correlative duty but a liberty does not. Thus, x's
liberty to wear a bowler hat is not correlative to a duty in anyone.
There indeed a duty in Y not to interfere, but Y's duty not to interfere
is correlative to X's claim against Y that he shall not interfere and not
against his liberty. Let us say that X enters into a valid contract with Y
where X gives Y permission to interfere to prevent X from wearing the
hat but X says he will nevertheless try to wear it. If X succeeds in
evading Y and wears the hat, he has exercised his liberty to wear it and
Y has no cause for complaint. If Y had prevented X from wearing the
hat, Y could not complain either, for he had given up his claim against
Y not to interfere by entering into the contract.
This shows that liberty and claim are two separate kinds of rights or
interests, as the claim can be extinguished without affecting liberty.
(iii) Power and Liability Relation (I can) - Power denotes ability in a
person to after the existing legal condition whether of oneself or
another, for better or worse. Liability means the position of a person
whose legal condition can be so altered. For eg. Power to make a Will,
power to take a legal action against someone, the power to sell a
property if the mortgages does not receive the money from the
mortgages etc. power determines legal relations and gives rise to
either authority or capacity wherein authority is the exertion of power
over others eg. power of a police officer to arrest a person, whereas
capacity is power exerted over oneself.
Powers and rights/claims are different because a corresponding duty
is absent in the former - for eg. right to create a Will does not result in
a corresponding obligation for someone else.
Powers may be private or public. Private powers are exercised by
individuals, and public powers tie with State instruments which carry
out public functions. For eg. - powers exercised by the judiciary,
legislature and executive. A corresponding liability would be on
someone again whom a judgment has been passed and is liable to
have a decree of execution, etc.
Liability is not concerned with the fruitful or unfruitful result in a given
case. For eg. A person committing a tort is duty bound to pay
compensation and is liable for an action to be brought against him as
well. However, someone who has not committed the tort is not under
a duty to pay compensation but is equally liable for an action to be
instituted, that in all probability will fail, as no grounds exist.
Liability may also be for someone's advantage or benefit. For eg X
makes a Will to transfer his property to Y. Here, X has exercised his
power to make Will, and through this exercise of power by X, Y entitled
to the property has a liability to receive it.
(iv) Immunity and Disability Relation ('You Cannot) - Immunity is a
State of being safe from modification or alteration or one's
entitlements by another. The correlative of immunity is disability. It is
the lack or absence of power to change legal position of another. For
eg. Diplomats have diplomatic immunity, i.e., if they have committed
a crime in their host country, they are immune against arrests and legal
prosecution.

Significance of Hohfeld's Analysis

Hohfeld explains exactly how several conceptions commonly called as
legal rights are related, thereby providing conceptual clarity in
determining and understanding the legal relations.
However, Hohfeld's analysis has still not been incorporated to remove
the confusion which continues even today but could have been
avoided by applying the same, thus saving judges and lawyers from
conceptual errors they are otherwise prove to commit.
Furthermore, the influence of Hohfeld's analysis although persuasive
must not be exaggerated. In practice, the language of rights in almost
every context especially in the context of judicial reasoning, has
developed without regard to Hohfeldian imperatives to discriminate
among different types of rights. For eg, the long standing
constitutional provisions relating to rights in USA the Bill of Rights - are
stated more in terms of immunities and disabilities, than claim rights.
For eg. the First Amendment to the American Constitution in providing
that "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abiding the
freedom of speech, or of the press, etc. creates an immunity for
individuals with a correlative disability on the part of the government.
Hohfeld not only failed to make an impact on constitutional structures
existing before and during his time but also modern constitutions have
not been entirely as rigorous as Hohfeld proposes.
The practice in most legal systems is to mix up rights, privileges and
immunities under the legal protection of rights. For eg. in Indian
Constitution, the word 'right has been used to denote claim, privilege,
power as well as liberty.
Part IlI of the Indian Constitution indicates that it broadly deals with
two kinds of legal interests -
(i) Freedom or liberty of citizens/persons i.e., under Articles 19, 21, 25
and 26.
(ii) Prohibition on government from acting contrary to certain
principles - eg. the rule of equality under Articles 14, 15 and 16.
Thus, the protection under Articles 19 and 21 is only against
interference by the government in a citizen's exercise of rights. The
State is not under a duty to secure to all its citizens the enjoyment of
rights provided therein but only that the State must not act in a
manner which infringes their rights. Thus, Hohfeld's distinction
between claim, liberty and immunity has been ignored in framing
these constitutional provisions.

Q.4 Discuss the salient features of major legal systems of the world.
What model does India follow? Give an outline of the development
and the constituents of the Indian legal system.

Ans. A legal system is a Act of legal principles and norms to protect

and promote a secure living to its subjects in a cultured society. It
recognizes rights of the peoples prescribes their duties and provides
the ways and means of enforcing the same. In order to achieve this
goal, the legal system evolves a set of principles, rules or laws which
help the society to grow according to its sociological, economic and
political conditions.
The major legal system of the world may be classified as follows:—
1. Civil Law
2. Common Law
3. Socialist Legality
4. Religious Law
5. Mixed System
However, the predominant among these are civil law, common law and
socialist law and are discussed below.
(I) CIVIL LAW
It is a legal system that originated as the Roman law and sets out a
comprehensive system of rules, usually codified that are applied and
interpreted by judges. The main source of law in this system is
legislative statutes which are strictly followed whereas case laws are
subordinate and secondary to statutory laws.
The expression 'Civil Law' is derived from the Latin terms Jus Civile
which means 'Citizens law' wherein the rule of law are conceived as
rules of conduct intimately linked to the ideas of justice and morality.
The civil law system is the most widespread system of law in the world
in force in various forms in about 150 countries. It shows heavily from
Roman Law and is known as Romano-Germanic legal system.
The Romano-Germanic family of laws originated in Europe as the code
of Habumurabi by King of Babylon (1750 BC) based on the principle
eye for an eye but also demanded trial by judges. However, modern
civil law was found on the basis of the complications of Emperor
Justinian (483-565 AD) which evolved and developed a Juridical
science common to all and adopted to condition of the modern world.
Salient Features of Civil Law :-
1. It is a systematic and comprehensive compilation of legal rules and
principles which act as a blueprint of social regulations that guides
individuals through society from birth to death.
2. It distinguishes between private and public law, private law includes
the rule governing civil and commercial relationships such as marriage,
divorce, contractual agreements, whereas public law consists of
matters related to the government, such as constitutional law, criminal
law and administrative law.
3. It gives less power to judges who are bound to follow the express
provisions, enactments, codified laws, etc. The judges are not
expected to exercise judicial discretion or to apply their own
interpretations.
4. The courts follow an inquisitional system where evidence is
collected in the supervisor of judges and the witnesses are examined
in private.
5. The laws are mainly based on the advice of legal scholars and are
formulated by the legislators.
(II) COMMON LAW
It is a system based on customs, traditions and precedents wherein the
judgements are based on the laws of natural justice and equity. The
law is not in a codified form. This system is found in countries like
United Kingdom, Australia, India, Pakistan, etc.
It first originated in England after Norman conquest of 1066 AD, before
the conquest, courts were run by bishops and sheriffs who had both
civil and criminal jurisdiction.
It is the body of law created mainly by judges and similar Quasi-Judicial
tribunals by virtue of being stated in written opinions, and are based
on jury system.
SALIENT FEATURES OF COMMON LAW SYSTEMS
1. Common law system is based on the rights of individuals specially
property rights and balances them against the best interest of the
society.
2. It relies on adversarial model of trial, wherein both the parties in an
adverse position to each other argue before the judge who acts the
mental umpire to give the decision.
3. It represents the law followed in courts as precedents which are
binding on the lower courts.
4. It allows legislators to enact flexible statutes instead of making
complex legislation with difficult combination of facts and laws on a
particular issue. Any gaps in the legislation can be filled by the judges.
5. It allows law to evolves with a changing society.
6. It gives an idea to the parties involved in a dispute as to how their
case will be treated in the court of law in absence of express statutory
provisions.
7. Judges are given wide discretionary powers to decide the matters
before them.
(III) SOCIALIST LEGAL SYSTEM
It is mainly derived from the civil law system along with major
modifications based on Marxist - Leninist ideology. It is similar to the
civil law but with a greatly increased public law character which aims
to greatly increased public law character which aims to overturn
society and create the conditions of a new social order. It originated in
the Union of Soviet Socialist Republics around the 19th Century, and
has been prevalent in socialist countries in Eastern Europe.
1. The judicial process lacks an adversarial character, and public
prosecution is considered as provider of justice.
2. It provides for abolition of private property and aims for
nationalization of the means of production.
3. Law is strictly subordinate to the task of creating a new economic
structure.
4. It provided for total expulsion of the former ruling classes from the
public life at early stages of existence of each socialist state, which
gradually changed into the policy of one socialist nation without
classes.
5. The field of private law relationship between citizens is
extraordinarily limited - private law has lost its pre-eminence and all
law has now become public law.
INDIAN LEGAL SYSTEM
It follows a unified, electric legal order wherein three streams join
together to form the Indian legal system. The Indian legal system is
basically a common law system, but it contains elements of the other
three systems as well. Thus, it is a mixture of -
(1) Common Law System
(2) Civil Law System
(3) Religious Law System
(1) Common Law Base
The British rule introduced this system in India. The legislations or
statutory rules may provide for certain individual rights and social
activities however, the society is regulated by customs, general
principles of morality, equity, justice and good conscience.
In ADM Jabalpur v. Shivakant Shukla, (1976) the court held that even
though Fundamental Rights can be suspended during emergency
Article 21 - Right to life will continue to prevail.
Other features of common law observed in Indian legal system
are.
(a) Rule of Law - It implies that the government authority may only be
exercised in accordance with written laws which are adopted through
an established procedure.
(b) Rule of the Constitution - The Constitution of India, 1950 is the
Supreme Law of the land which is based on the ideals of justice - social,
economic and political, liberty of thought, expression, belief, faith and
worship, equality of status and of opportunity and fraternity assuring
the dignity of the Individual. This rule of law has been placed on a
higher footing than ordinary legislation.
(c) Independence of Judiciary - Indian judiciary owes its origin to the
judicial system which existed in the British India.
After independence, the constitution makers provided for the
establishment of a three tier judiciary which is completely
independent of the other two organs of the State i.e., executive and
legislature.
(d) Adversarial system - The principal aim is to put justice before truth.
In this system, equal protection of law is given to the accused under
Article 21 and 22 (1) and (2) of the Constitution. It relies on the skill of
the different advocates representing their parties positions and not on
the judge buying to ascertain the truth of the matter.
(e) Interpretation of law and judicial review are the wide powers
enjoyed by the superior courts in India which enables them to set
precedents which are binding on the lower courts.
(2) Civil Law Base
The statutory corpus juris of India is analogous to the codes of civil law
operating in France and Germany. The influence of civil law in India can
be found in the fact that much of the common law has been codified
in India. Law needs to be certain, precise and predictable. The Indian
Penal Code, 1860, the Indian Evidence Act, 1872, the Indian Contract
Act, 1872 are some instances of codified laws which reflect the civil
law system.
Furthermore, there is a fixed procedure established by law for both
civil and criminal proceedings. The cases in courts are fought with
forensic skill and learning based on a sophisticated system of
legislations and codes such as the Code of Civil Procedure, 1908 and
the Criminal Procedure Code, 1973. It provides a sense of fairness to a
rather large population in a comparatively poor country involving an
enormous amount of litigation in contract with the litigation
conducted in advanced countries like the United Kingdom and the
United States.
(3) Socialist Law Base
Indian legal system envisions a welfare State which takes case of the
society as a whole including the individuals as opposed to a laissez
faire or private law system. The directive principles of State policy in
Part - IV of the Constitution provide that the States have an obligation
to bring about a just society. Article 41 of the Constitution particularly
requires the State within the limits of its economic capacity to make
effective provisions for securing the light to work, to education, and to
public assistance in cases of unemployment, old age, sickness, etc, as
held in Delhi Development Horticulture Employees Union v. Delhi
Administration, (1992).
(4) Personal Laws/ Religious Law Base
India is a land of diverse religious consisting of Hindus, Buddhists,
Sikhs, Muslims, Christian, Parsis, etc. Each community has its own
personal laws, such as :-
a. Hindu Marriage Act, 1955
b. Muslim Women Protection Act, 1986
c. Hindu Succession Act, 1956
d. Indian Christian Marriage Act, 1872
Article 44 of the Constitution envisages that the State shall endeavour
to secure for the citizens a uniform civil code throughout the territory
of India. The framers of the Constitution apparently fact that national
integration would not be complete unless everyone in India is
governed by uniform laws which do not distinguish between
individuals on the grounds of religion.
The Supreme Court has suggested a common Civil Code to be enacted
by the legislature to provide for a uniform code of marriage, divorce
and other family matters across all religious. However, despite this, the
legislature has not yet provided a uniform code, except in Goa where
it was enacted in 1960.
When India adopts a civil code under Article 44, it is likely to be electic
in character and may have in it a harmonious admixture of various laws
based on the religious and customary laws as well as provisions
derived from western codes and the English common law.

Q.5 What do you understand by the Dicey's concept of 'Rule of Law'

and Montesquieu's doctrine of 'Separation of Powers'
applicable in India? Critically evaluate the theories and discuss
whether they are

Ans. The issues under consideration are the concepts of rule in India.
of law and the doctrine of separation of powers and their application
(1) Rule of Law
The term rule of law is derived from the French phrase La Principle de
legalite which means the principle of legality, it refers to a government
base de inciple of law as opposed to the rule of men. According to Dier
award Coke, "Rule of Law" means the absence of arbitrary poler on
the part of Government means This rule was developed further by A.V.
Dicey, a British jurist in his book, "The Law of the constitution" (1885)
wherein he identified three principles which form the pillar of the rule
of law.
(1) Supremacy of Law
It refers to the lack of arbitrariness or wide discretionary power on the
part of the State. Dicey stated that wherever there is discretion, there
is room for arbitrariness; which may lead to insecurity of legal freedom
of the citizen.
It means that the law in supreme and every man is governed by the
law, not as per whim of a man, it further states that no one should be
punished except for the breach of law.
(2) Equality before Law
Dicey stated that there must be equality of law or equal subjection of
all classes to the ordinary law of the land. It is based on the maxim that
no man is above the law." He criticized the French system of "Droit
Administratif' in which there were separate tribunals for deciding the
cases of State officials and citizens separately.
It also means that law should not discriminate against people on the
basis of race, gender, religion, caste, social background, sex, etc and it
should apply equally to ordinary citizens as well as to government
officials.
(3) Predominance of legal spirit
According to this, rights are the result of the judicial decisions in
particular cases which have actually arisen between the parties. The
law of the constitution is a consequence of the rights of individuals as
defined and enforced by the courts. Therefore, the courts, play the
role of guarantors of liberty and interpreters of the Constitution as well
as other laws.
Criticism of Dicey's Concept of Rule of Law
1. Dicey ignored the wide discretionary powers enjoyed by the crown
as well as the privileges and immunities enjoyed under the maxim that
'king can do no wrong.
2. He also ignored the growth of administrative tribunals which were
already in existence in 1885.
3. Dicey failed to distinguish between the discretionary power of
administrative authorities and the arbitrary power of the king in the
form of prerogative power to issue writs.
4. His dislike of discretionary power was due to the fear of abuse and
the belief that judicial function consists in applying the settled
principle of law and not in exercise of discretionary power. He failed to
recognize the discretion enjoyed by the Courts to admit or reject an
appeal or prescribing quantum of publishment. The ultimate
guarantee against abuse of discretionary power lies in the political or
legal safeguards, in the vigilant public opinion and in a sense of justice
among the people, and not in the exclusion of administrative
discretion on the part of the government.
5. Dicey completely misunderstood the real nature of the French Droit
Administrative. He thought that this system was designed to protect
the officials but it was later discovered that these administrative
tribunals played an important role in controlling the administrative
authorities and providing quick and effective remedies to the ordinary
citizens against the illegal or arbitrary action of the administration.
Rule of Law and Indian Constitution
The Constitution of India provides that the Constitution shall be the
Supreme Law of the land and that the legislature and the executive
derive then authority from the Constitution.
• Article 13 provides that any law made by the legislative has to be in
conformity with the Constitution, otherwise it will be declared invalid.
• The Preamble of our Constitution clearly sets out of the principle of
rule of law when it lays down the objectives of social, economic and
political justice, equality of status in India.
and opportunity, and fraternity and dignity of individuals
• Article 14 provides for equality before law and equal protection of
the laws to all individuals, and that no person
race, place of birth, etc.
shall be discriminated against on the grounds of sex, religion,
• Article 21 provides a further check against the arbitrary executive
action by stating that no person shall be deprived of his life or personal
liberty except in accordance with the established by law.
The Indian judiciary has played an instrumental rule in shaping the rule
of law in India, as is evident in the following cases -
1. Indira Nehru Gandhi v. Raj Narain (1975)
The court held that the rule of law postulates the pervasiveness of the
spirit of law throughout the whole range of government in the sense
of excluding arbitrary official action in any sphere.
2. A.K. Kraipek v. Union of India (1970)
The Supreme Court observed that the Rule of Law runs like a golden
thread through every provision of the Constitution and indisputably
constitutes one of its basic features, which requires that every organ
of the State must act within the confines of powers conferred upon it
by the Constitution and the law. The rule of law pervades over the
entire field of administration.
3. Bachan Singh v. State of Punjab (1982)
Also known as 'Death Penalty Case'. In this case, Bhagwati ] held that
'rule of law' is free from arbitrary action. He stated -
"Wherever we find arbitrariness or unreasonableness, there is denial
of the rule of law. "The Rule of Law permeates the entire fabric of the
Constitution and indeed forms one of its basic features.
Doctrine of Separation of Powers
This doctrine postulates that a democratic government is divided into
three branches -
1. The legislative, which is responsible for approval of legislation and
taxation and the scrutiny of the executive.
2. Executive, which is responsible for the formulation and execution of
policy.
3. Judiciary, which is responsible for securing the observance of the
law.
Though the doctrine owes its origin to Aristotle in his book
'Politics', but the writings of John Locke in 17" Century and Baron de
Montesquieu in the 18 Century gave it a scientific formulation.
Locke, in his book 'The Two Treaties on Civil Government' distinguished
between what he called -
1. Discontinuous legislative power
2. Continuous executive power
3. Federative power
Montesquieu further developed this concept in his book I'spirit des
lois' (The Spirit of Laws), 1748 and stated -
"There would be an end of everything, were the same man, or the
some body, whether of the nobles or of the people, to exercise those
three powers, that of enacting laws, that of executing the public
resolutions, and of frying the case of individuals."
Wade and Philips have defined the doctrine as follows :-
(a) The same person should act form part of more than one of the
three organs of the State.
(b) One organ of the government should not interfere with the
functioning of other organ.
(c) One organ should not exercise the function of belonging to another
organ. For instance, the executive should not discharge the function of
the judiciary and vice versa.
Thus, the rationale underlying the doctrine is that if all power is
concentrated in one organ, it may give rise to danger, as that organ
may enact tyrannical laws, execute them in a despotic manner and
interpret it in an arbitrary fashion without any external control. It is
therefore a safe ground against tyrannical and arbitrary powers of the
State.
In countries with presidential congressional system of Government,
e.g., the United States of America, the separation of powers is clear
and well defined. The power of the legislative are vested in the
congress, the executive power is vested in the president and the
judicial power in the Supreme Court. However, the American
Constitution allows some interference between the three organs in
practice which is justified on the basis of the doctrine of checks and
balances, wherein the functioning of one organ is checked by the
organs of the government (as recognized in Panams Refining Co. v.
Ryan, (1935) by Justice Cardozo.
In countries with a parliamentary form of governments like the United
Kingdom and India, the doctrine is not followed in strict sense and is
not accorded a constitutional status. In this system, the executive is a
very important part of the legislature and the final abiters of the Cons,
inhion ise, the Law Lords are the members of the House of Lord,s, erich
is the upper house of the Paniment in the UK. Therefore, there is a
fusion of powers instead of separation of powers.
Separation of Powers and Indian Constitution
The Indian Constitution has not indeed recognized the doctrine of
separation of powers in its absolute rigidity but the essential functions
have been sufficiently diferentiated and they are expected to perform
their functions within the limits laid down in the Constitution. For
instance :-
• Article 50 enjoins separation of judiciary from the executive.
• Article 53(1) provides that the executive power of the union shall be
vested in the President.
• However, functional overlapping is permissible under constitutional
limits; for e.g.,
• Article 74 provides that the President is to exercise Ram Jawaya v.
State of Punjab (1955) his powers and discharge his functions with the
aid and advice of the Council of Ministers.
The Council of Ministers is a subset of the legislative i.e., the
Parliament, and the council is headed by the Prince Minister who is
the real executive head of the Government.
• Article 124 provides that the Judges of the Supreme Court and High
Courts are appointed by the President, who is an integral part of the
Parliament, as provided in Article 79.
In Asif Hameed v. State of J8K, (1989), the court held -
"Although the doctrine of separation of powers has not been
recognized under the constitution, its makers have meticulously
defined the various organs of the State. Thus, the legislature, executive
and judiciary have to function within their own spheres demarcated
under the Constitution. No organ can usurp the functions assigned to
another.
Criticism of the doctrine of separation of powers
The doctrine in its theory as propounded by Montesquieu was very
sound however its implementation was riddled with several
defects, namely:—
(1) Legislative, executive and judiciary are not waterigno
compartments. They cannot be demarcated with respect to their
functions with a mathematical precision.
(2) In a modern welfare State, the executive and other organs have to
solve complex Socio-economic problems. The legislative cannot
legislature on every single need or issue therefore, it is permitted to
delegate legislative powers to the executive to enable it to apply the
laws according to the particular circumstances in the society.
(3) The object of the doctrine is liberty and freedom of an individual.
It cannot be achieved by mechanical division of powers. Rather it
needs to be achieved by the exercise of these powers in a spirit of co-
operation among the various organs of the State in the interest of
people.
(4) It is important to put checks and balances on the function of one
organ by the others which would ensure a fair and just system of law
and safe-guard against arbitrary exercise of power by that body or
person. The application of the doctrine in the strict sense does not
provide for the doctrine of checks and balances or restraint which are
instrumental in preventing the abuse of enormous power of the
executive.

Q.6 Law is social engineering which means a balance between the

competing interests in society! Critically analyse the statement with
examples in the light of 'Interest Theory' propounded by Roscoe
Pound

Ans.6Society and human life always go together. From childhood to

old age, every human being expects his or her desires to be fulfilled,
which gives rise to conflicts of desires and respective claims which are
also called 'interests'. In order to fulfill all the desires of a human being
for the welfare of the society at large, the concept of social
engineering was developed by Roscoe Pound.
Social engineering is based on the theory the laws are created with the
aim of bringing about and maintaining a maximum strength and
efficiency in an organized society.
According to Roscoe Pound, "Law is social engineering which means a
balance between the competing interests in the society "in which
applied sciences are used for resolving individuals and social problem.
Thus, Pound identified legal and judicial activity as a from social
and smoothly.
I compared legal task to that of a problem solving
design engineer who tries to wake the machine run more efficiently
various interests to be protected by law.
For facilitating the tasks of social engineering, Pound classified
are of different types -
Interests are claims that persons make of the legal system. They
1. Private interests or Individual interests
These relate to a person, property, personal relations, such as
marriage, divorce, contract, ete along with dignity and freedom of will
and expression.
2. Public interests
These relate to the dignity of the state as a juristic entity and include
protection, and interests of state as a guardian of social interest.
3. Social interest
These are the claims or demands in terms of social life and are
generalized as claims of social groups. They include the interest in
public safety, peace, order and public health. These interests overlap
with individual interest.
There are also social interests in the security of social, domestic,
religious and economic affairs, general morals.
These interests are frequently in conflict, for instance, labour claims
for minimum wages conflict with claims for contractual freedom. A
factory owner's claim to operate machinery may conflict with a
neighbour's claim against noise.
Pound emphases that there are incessant efforts by individuals and
groups to gain recognition of new rights and to defend established
rights. The resulting conflicts have to be resolved by the legislature,
and in the absence of legislation, by the courts.
Therefore, law is based on interest theory wherein different types of
interests are required to be balanced against each other, Which is the
aim of sociological jurisprudence.
Pound's interest theory demands that in order to achieve the purpose
of legal order and to determine the scope and subject matter of the
legal system, the following things must be done.
1. Preparation of an inventory of interests and classifying them as
individual public and social
2. Selection of the interests which can be legally recognized.
3. Demarcation of or definition of the limits within which such
interests will be legally recognized and enforced and secured.
4. Consideration of the means whereby laws might secure the interests
when these have been acknowledged and delimited.
5. Evolution of the principles of violation of these interests.
How should the differing or competing interests be valued?
Pound offered the practical commonsense advice i.e., that the courts
should secure as much as possible the scheme of interests as a whole
with the least friction and waste. Thus, the courts should try to satisfy
as many interests as possible with the least sacrifice.
The interests must be weighed on the same plane for the purpose of
balancing. This is done by transforming the individual institution into
public or social institution and then applying a utilitarian balance to
both so as to achieve greatest good for greatest number of people.
Law is therefore a harmonizing force and finds a peaceful solution.
For example:- Article 19(1)(a) and 19(2) of the Indian Constitution.
The conflict between these two Articles is a classic case of conflict
between individual and social interests and is a good example of
application of this theory by the makers of the Constitution.
Article 19(1)(a) confers fundamental right of freedom of speech and
expression on every citizen of India. They realized that absolute
freedom could be dangerous and, therefore, provided in Article 19(2)
that on the ground of security or morality, contempt of court
defamation and incitement to an offence, reasonable restrictions can
be imposed on the right conferred by Article 19(1)(a). For example:
child pornography has been banned by the government on the ground
of morality and public policy by enacting the POCSO Act, 2012
(Protection of Children from Sextual Offences Act).
grounds -
The social engineering theory has been civilized on following
1. The classification of interests as suggested by Pound is in the nature
of a catalog in which additions and modifications must be made
continuously that are neutral in relation to the value and priority
relative to the neutral value.
2. Pound used the term 'engineering which equates society to a
factory like mechanism. Law is a social process rather than the result
of applied engineering.
3. It is not right to equate society with a factory because the former is
changing and dynamic in nature while the latter is more or less stable.
4. Pound's emphasis on engineering ignores the fact that law evolves
and develops in society according to social needs and desires which
are required to be recognized or rejected accordingly.
5. This theory shifts the centre of gravity in the legal order from
legislation to court judgments, but the Judiciary has its limitations. It
does not have the machinery of enforcing its decisions and therefore,
cannot really do effective engineering. Moreover, in a scientific society,
the law must conform to a scientific plan which can be prepared only
by legislators for restructuring society.
Despite these criticisms, it has been recognized that his work theory
stands on a practical and firm ground and has inspired great practical
field work. His emphasis on studying the actual working of the legal
rules in the society, importance for social research for good law
making, role of the responsible and creative task of lawyers, especially
the judges and jurists gives a comprehensive picture of scope and field
of the subject. The heavy emphasis on the existence of varied and
competing interests and the need for adjustment between them will
have an enduring value as it strikes a fine synthesis between liberty
and equality, and between freedom and social control through the
instrumentality of law.

Q 7 Write a brief note on any two of the following

(a) Lok Adalat and legal services in India

Ans. (a) India is a young and developing country where about 70%
of the people are living in rural areas and many of them are extremely
poor. It is very different for them to across the benefits of the legal
process and seek protection against injustice. Therefore, it was
considered that there was an urgent need to introduce a
comprehensive legal service programme with a view to deliver justice
to the needy and poor.
Legal and is the provision of assistance to people otherwise unable to
afford legal representation and access to the court system.
In Hussainara Khatoon V. State of Bihar, (1979), the Supreme Court
observed that "it was not possible to reach the benefits of the legal
process to the poor unless there was a nationwide legal service
programme to provide legal services to them. That is not only a
mandate of equal justice implicit in Article 14 and right to the
constitutional directive embodied in Article 39A.
Artice 39A emphasis that free legal service is an inalienable element
of reasonable, for and just procedure which is implicit in Article 21. It
provides that the state shall ensure that the operation of the legal
system promotes justice on a basis of equal opportunity and shall in
particular provide free legal and by suitable legislation or schemes in
any other way to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disability.
In pursuance of this judgment, the parliament enacted the Legal
Services Authority Act, 1987 to give statutory base to legal aid
programmes throughout the country on a uniform pattern, based on
the review of the working of the CILAS (Committee for Implementing
Legal Aid Schemes), 1980 which was chaired by Justice P.N. Bhagwati.
This Act aimed to constitute legal services authorities at National,
State and District levels, to provide free and competent legal services
to the weaker sections of the society, especially to the vulnerable
sections like
• Members of scheduled caste/ scheduled tribe
• Victims of human trafficking or beggar
• Women and children.
• Industrial workers.
• Mentally ill or otherwise disabled persons, etc.
Authorities under the Legal Services Authority Act, 1987

National Legal Services Authority (NALSA)

State Legal Services Authority

District Legal Services Authority

Taluk Legal Services Authority

Lok Adalat
It is a system of conciliation or negotiation. It literally means people's
court. This system was visualized as an alternative dispute settlement
mechanism evolved as a part of the CILAS programme with the aim of
taking justice to the doorsteps of the poor and to give speedy and
cheap justice to those who cannot afford the expensive formal legal
battles.
It was accorded statutory recognition under the Legal Services
Authorities Act, 1987 as well as Section 89 CPC as amended in 1989.
Section 15(1) of the Act states "Every State Authority or District
Authority under the 1987 Act has the discretion to organize Lok
Adalats." Lok Adalats consist of three members -
1. A sitting or retired judicial officer;
2. A member of the legal profession of i.e., an advocate, law officer or
law teacher;
3. A social worker, preferably a woman. [Section 19(2)].
Section 20 provides for the working of Lok Adalats. It states that -
(a) If any party desires to settle his case by Lok Adalat, then such
parties may appeal to the court for the same.
(b) On such appeal, the court will observe and if it is satisfied that
i. There is possibility of compromise between parties, or ii. The case is
worthy of hearing by Lok Adalats then the court will refer the case to
Lok Adalats. It further provides that Lok Adalat shall hear the matter
and keep in mind the following at the time of settlement
(a) Principles of equity, justice and good conscience
(b) Principles of natural justice.
Jurisdiction of Lok Adalats (Section 19(5)
Section 19(5) provides that Lok Adalats can decide cases compromise
or settlement. These cases are
(a) Any case pending before any court for which the Lok Adalat is
organized, or
(b) Any matter which is falling within the jurisdiction of, and is not
brough before, any court for which the Lok Adalat is organized.
However, the proviso states that Lok Adalats cannot exercise their
jurisdiction in respect of non-compoundable offences in outside
section 320, Cr.PC, 1973.
Section 22 provide that the Lok Adalat shall have the power of a civil
court under CPC, 1908 while trying a suit, such as.
1. Summoning and examining witnesses
2. Discovery of evidence on affidavits,
3. Requestioning of public records
Furthermore, it is open to Lok Adalat the specify its own procedure
and all proceedings before it are deemed to be judicial proceedings.
Section 21 provides that an award of the Lok Adalat shall be deemed
to be a decree of civil court on order of any court, and where a
compromise or settlement is reached, by a Lok Adalat in a case
referred to it, the Court Fees paid in such case shall be refunded to the
plaintiff according to the provisions of the Court Fees Act, 1870.
An award made by a Lok Adalat shall be final and binding on all parties
to the dispute, and shall be non-appealable if no compromise is
reached, the case is referred back to the court for hearing.
Section 22A to 226 of the Act provide for the constitution of
permanent Lok Adalats for pre-litigation conciliation and settlement of
disputes concerning public utility services and to decide them no
merits if no settlement is forth-coming.
Advantages of Lok Adalats
1. Simple and indigenous justice
2. Speedy/ expeditious justice
3. It is cheap and inexpensive
4. It provides for effective and just settlement
5. Free, unformal and flexible organization
6. Reduction of workload on the judiciary
7. More conducive to harmony and social justice.

Q.7.(b) Legislation or Precedent as a source of Law

Ans. (b) Legislation as a source of Law.
The term legislation is derived from two Latin words 'legis
meaning law and 'latin' meaning to make. It means the making or the
setting of law.
Salmond defines legislation as "that source of law which consists in the
declaration of legal rules by a competent authority."
legislator.
It is the laying down of legal rules by a sovereign or subordinate
There are different kinds of legislation -
1. Supreme legislation - which is enacted by the sovereign power of
the State.
Example:- The Indian Parliament is supreme. Though there are certain
constitutional restrictions upon its power, it is not subject to any other
authority within the State.
2. Subordinate legislation - is legislation which proceeds from any
authority other than the sovereign power, made under the powers
delegated by the supreme authority. It is, therefore, dependent for its
continued existence and validity upon the supreme authority.
It is further classified as -
a. Colonial legislation - Powers of self government entrusted to the
columns.
b. Executive legislation - Parliament delegates its rule waking powers
to departments of the executive organ after laying down the broad
policies and guidelines.
c. Judicial legislation - Superior courts i.e., Supreme Court and the High
Courts making rules for regulation of their own procedure.
d. Municipal - Municipal authorities are delegated powers to frame
bye laws to carry out various activities entrusted to them.
e. Autonomous - Power given to certain groups of private individuals
to enact laws touching matters which concern themselves. For
example - a University may enact statutes binding on its own
members.
3. Delegated Legislation - When law making powers is conferred by
the legislative upon some other body such as the departments of the
executive government. It is a normal feature of the administrative law
in the present day and is supply inevitable and indispensable.
Factors responsible for growth of delegated legislation-
a. Concept of welfare State - requires more work and greater amount
of legislation, there is greater pressure and lack of time for Parliament.
b. Technical matters requiring consultation with experts make it
difficult to the parliament to lay down rules.
c. Delegated legislation is necessary to meet unforeseen
contingencies.
d. Provides flexibility and expediency, therefore, it is a tool for good
governance.
c. le can net the casshe pere to due to war, insurrection,
4. Conditional legislation - when the legislature itself enacts the law
but gives the power of determining when it should come into force, or
where and when it should be applied, then the legislation is said to be
conditional legislation.
Legislation is the most recent and powerful source of law. The reasons
for this are as follows.
1. Legislation is both constitutive and abrogative
2. Law is in certain and simple terms, and is easily accessible.
3. The authority of legislation lies in the express will of the State.
4. Legislation is coherent and complete; and general in application.
5. Codes enacted by legislation - codification, unification and
consolidation - are useful in unifying diverse jurisdictions.
Precedent as a source of law
Black's Law Dictionary defines precedent as a rule of law established
for the first time by a court for a particular type of case and thereafter
inferred to in deciding similar cases.
Precedent is the reasoning behind a judge's decision the establishes
the principle or rule of law that must be followed by other courts lower
in the hierarchy when deciding future similar cases.
Kinds of Precedents
1. Original and Declaratory Precedents
According to Salmond, original precedents are those which create and
apply a new rule while declaratory precedents are those which merely
apply an already established rule of law to the particular facts of a
case. Both of these serve as a good source of law for the future cases.
2. Authoritative and Persuasive Precedents
Authoritative precedents are those which the judges must follow
whether they approve of it or not. They establish law in pursuance of
a definite rule of law which confers upon them that effect. They are
the legal sources of law.
Persuasive precedents are those which the judges are under no
obligation to follow but which they will take into consideration.
They are of various kinds -
a. Foreign judgements
b. The judgements of the Privy Council
c. Obiter dicta
d. Authoritative text books.
Authoritative precedents are the decisions of the superior court of
justice which are binding on the subordinate court. They are of two
types -
a. Absolutely Authoritative.
b. Conditionally Authoritative.
a. Absolutely authoritative precedent - Doctrine of stare decisis They
are absolutely binding and must be followed without question as to
however unreasonable and erroneous it may seem.
It has a legal claim to implicit and unquestioning obedience.
For example - in Maharashtra, a judge of the High Court must follow
the decisions of judges of the Supreme Court. And the decisions of the
Bombay High Court are binding on all the courts below it within the
limits of the State of Maharasthra.
[Stare decisis (Latin) means to stand by decided cases]
Article 141 provides that the decisions of the Supreme Court are
binding on all courts in India and form authoritative precedents as the
law of the land. However the Supreme Court is not bound by its own
previous decisions.
b. Conditionally authoritative precedents.
Though these precedent are normally binding on the court to Which it
is cited, they are liable to be disregarded in particular limited
circumstances, either by dissenting or overruling. This is done when
the precedent is not merely wrong but is so clearly and seriously
wrong that its reversal is demanded in the interest of justice.
Advantages of precedents as a source of law
1. It provides flexibility, stability, fairness and better ethica content,
and is of higher educative value.
2. It promotes the expectation that the law is just.
3. It saves time, money, energy and brings an element of convenience.
4. It is more practical and harmonious.
5. It provides a sense of certainty and calculability as it brings about a
final settlement of an issue.
Disadvantages
1. It is intelligible to only the competent lawyers, not to the
common man.
2. The precedents/case laws are bulky and voluminous
3. Conflicting or erroneous decisions of superior tribunals in case of
more than one ratio laid down in the case.
4. It is always prospective in nature. Therefore, using it as a source of
law violates the rules of natural justice which require that the law
should be known before it is enforced Thus, it cannot be applied
retrospectively.
5. It is case - specific and not comprehensive, as the judges take into
consideration only those facts which are involved in the case before
them.

Q.7(c) Hierarchy of courts and their jurisdiction in India

Ans.(c) Administration of justice is the most essential function of the
State exercised by the judiciary to enforce rights of the citizen and
punish wrongs.
The Indian judiciary is an independent body diverted from the
executive and legislative organs of the State, as enshrined in Article 50
of the Constitution of India. It is the watchdog of democrac and the
guardian of the Constitution as well as the protector of our
fundamental rights: In order to perform a fair and uniform judicial
functions, the judiciary is structurally and hierarchically organized.
The Indian Judiciary is a single integrated system of courts as
India, as represented below :-
Structure of Judiciary in India (Three Tier Division)
1. Supreme Court of India
2. High Court (In each of the States)
3. District & Sessions Judges Court (in districts)
4. Subordinate judges court (civil)
5. Court of sessions (criminal)
6. Subordinate Magistrates courts

1. Supreme Court -
(a) Article 131 - Original jurisdiction
(b) Article 132-134A - Appellate Jurisdiction (Higher Coun of Appeal).
(c) Article 136 - Special leave to appeal (SLP)
(d) Article 137 - Review jurisdiction
(e) Article 32 & 139 - writ jurisdiction
(1) Article 143 - advisory jurisdiction
(g) Other miscellaneous powers
(i) Article 129 - Court of record. Has power to punish for contempt
(ii) Article 139A - Power to withdraw and transfer of
cases
(iii) Article 141 Law declared by the Supreme Court to be
the law of the land.
(iv) Article 142 - power to make appropriate orders to deliver complete
justice in a given case
2. High Courts [Territorial Jurisdiction)
(a) Article 226 - Writ Jurisdiction
(b) Article 227 - Supervisory Jurisdiction and administrative jurisdiction
over subordinate courts.
(c) Article 228 - Power to interpret the constitution
(d) Original jurisdiction - civil suits for more than Rs. 20
Lakhs
(e) Appellate jurisdiction
(f) Revisional jurisdiction conferred under CPC and Cr.PC.
(g) Article 215 - Court of record. Has power to punish for contempt of
itself and of subordinate courts.
3. Civil courts subordinate to the High Court [Pecuniary
Jurisdiction]
(a) Appellate Jurisdiction - against orders passed by civil judge,
(b) Original jurisdiction - civil suits for sum of Rs.3 to 20 lakhs.
(c) Civil Judicial Magistrates - Civil suits for a sum upto Rs.3 lakhs.
4. Criminal courts subordinate to the High Court [ Subjectorial
Jurisdiction].
(a) Appellate jurisdiction - District & Sessions Courts (against orders
passed by magistrates).
(b) Original jurisdiction of District & sessions courts in cases where
minimum sentence is above 3 years
(c) Magistrates - in cases involving punishment for upto 3 years.
5. Tribunals/commissions e.g., in case of consumer courts -
(Pecuniary Jurisdiction)
Q8. Critically analyse the idea of Volksgeist given by Karl Von
Savingy.

Ans Savigny emphasized that the muddled and outmoded nature of

a legal system was usually due to a failure to understand its history and
evolution.
According to Savigny, law is not an "artificial lifeless mechanical
device". He said that the nature of any particular system of law was a
reflection of the spirit of the people who evolved it. Law is a product
of the people's life. Law is the result of the genius of the people. Law
has its source in the general or common or popular consciousness
(Volksgeist) of the people. As law is a reflection of people's spirit, it can
only be understood by tracing their history.
He wrote that law grows with the growth and strengthens with the
strength of the people, and finally dies away as the nation loses its
nationality.
He said that the law, like language, grows with the growth of social
consciousness and organization: the law can only be evolutionary, and
not revolutionary. Law is a matter of unconscious organic growth.
Savigny opposed the codification of law on several grounds.
In the first place, he pointed to the defects of contemporary codes.
Secondly, in matters on which there is no Volksgeist, a code might
introduce new and unadaptable provisions. Thirdly, he argued that
codification could never cater exhaustively for all problems that arise
in the future and hence, was not suitable instrument for the
development of law. Fourthly, he argued that codification would
highlight the loopholes and weaknesses of the law and so encourage
evasion.
Savigny ways, however, not totally against codification of law. He
opposed codification of the German law on the French pattern, He
considered Roman law as an inevitable tool for the development of
unified system of laws in Germany. Thus, according to Savigny s theory,
the law is a matter of unconscious organic growth. Therefore, law is
found and not made. Further, law is not universal in nature.
Like language, it varies with people and age and, custom not only
precedes legislation but it is superior to it. Law should always conform
to the popular consciousness i.e. Volksgeist. The Volksgeist cannot be
criticized for being what it is. It is the standard by which laws, which
are the conscious product of the will as distinct from popular
conviction, are to be judged.
Criticism
Savigny's thesis and the idea of Volksgeist have been criticized on a
number of grounds:
(1) Inconsistency in the theory: - On the one hand, he asserted that
the origin of law is in the popular consciousness, and on the other
hand, argued that some of the Roman law principles were of universal
application.
(2) Volksgeist not the exclusive source of law: - Savigny's view that
popular consciousness is the source of all law is not true.
There are many technical legal rules which never existed in nor has any
connection with popular consciousness.
(3) Customs not always based on popular consciousness:-Many
customs are adopted due to limitation and not on the ground of their
righteousness or any conviction of the community.
(4)He ignored other factors that influence law:- Savigny was
"so occupied with the source of law that he almost forgot the stream.
He overlooked the forces and factors which influence and determine
the growth of law.
(5) Limitations of 'Volksgeist':- Modern Volksgeist is that of modifying
and adapting rather than creating. Far from the law being a reflection
of the Volksgeist, it would seem that the Volksgeist had been shaped
by the law.
(6) Judicial pessimism:- Savigny's contention was that legislation
should conform to existing traditional law, or it is doomed.
Such a view will not find favor in modern times. The creative function
of the judge has also been ignored in Savigny’s theory