JEREMY BENTHAM & ANALYTICAL POSITIVISM

Bentham theory is also called “Utilitarian Individualism”.

Bentham defined law as ‘an assemblage of signs, declarative of violation conceived or adopted by a sovereign in a state which means that law is an expression of the will of the sovereign in a state.’ He believed that every law may be considered in the light of eight different as:

• Source- law is the will of the sovereign.

• Subject- person or thing.

• Object- act, situation, forbearance.

• Extent- law covers a portion of land on which act is done.

• Aspect- may be directive or sanctioned.

• Force- to produce the effect.

• Remedial state appendages- something attached with the state.

• Expression- of will.

So, the source of law is the will of the sovereign who may concede laws which he personally issues as law or adopts previously issued laws by the former sovereign.

Bentham was the supporter of individuals and believed that the function of law is to make the individuals free from all the bondage and restrictions. He favored the economic principle of “Laissez Faire” which means minimum interference of the state in the economic activities of the individual. Once the individual is free, they will be looking after their own welfare.

Individualism:

Based on the principle of ‘Laissez-Faire’ means minimum interference of the state in the economic activities of the individual. And this should be resulting in the happiness and welfare of society.

According to Bentham, the purpose of the law is to bring pleasure and avoid pain (Pain and Pleasure theory) and the legislation came to an end on the greatest happiness of the greatest number.

According to this theory, the right aim of the legislation is to carry out the principle of utility. The legislation developed the law on the basis of the utility of individuals.

Utility:

Bentham defines it in two terms:

• To provide pleasure property/tendency of a thing, to provide some pleasure, benefits, advantages, happiness.

• To prevent pain, to prevent the happening of mischief, pain, evil or unhappiness.

The utility is based on the greatest number of happiness of the greatest number (maximum happiness to the maximum number of people). That’s why this theory is also known as “greatest happiness principle”, which means any law is good/bad depending upon the general happiness of the majority of the population. When we conclude Bentham’s theory or when we co-relate these two terms, it’s clear that the interest of the community is attached with the interest of the individuals. Society is just a collection of individuals and the interest of an individual is related to the interest of society.

The main function of Bentham’s theory:

Bentham desired to ensure the happiness of the community by attaining four major goals:

• To provide substance.

• To produce fullness (abundance).

• To favor equality.

• To maintain security.

Criticism against Bentham:

The weakness of Bentham theory are as follows:

1. According to Friedman; Bentham’s theory mainly suffers from two weaknesses:

• Bentham mingled materialism with ideas.

• His theory fails to balance the individual interest with the interest of the community.

2. The main concept of pleasure and pain is not the final test of the adequacy of law or we can only say they’re not the ultimate goal of law or legislation.

3. Bentham theory states that the interest of an unlimited number of individuals shall be contributed to the interest of the community but in practice, because of the inequality it is not possible.

4. The concept of “Laissez Faire” which provides a complete framework of freedom to the individuals and provide them the opportunities for development was not completely right and even in the later time ‘legislation was used to restrict individuals in economic matters’.

Importance:

1. Bentham’s contribution to the legal theory and legislation is so much that his era is known as “Benthanite Era” in the legal history of England. He introduced legal positivism and treated the study of law as a science of investigation through scientific methods of experiments and reasoning. This philosophy that “justice is nothing but social happiness or the happiness of the majority of people” seems like a great moral of ideal for the welfare of states.

2. He agreed with Kelson who said absolute justice is an irrational ideal, an illusion- one of the eternal illusions of mankind. Bentham’s perception of justice is based on the system of values i.e. morals. The individuals living in society have to conform to the set values or norms and rationalize their conduct/behavior accordingly.

3. Bentham defined law as an “assemblage of signs declarative of a violation conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons; who in the case in question are/are supposed to be subject of his power.

4. Expression- where the expression of law is completely in unequivocal terms, the judge must adopt liberal interpretation. It is only where the expression of law is incomplete that the judge may resort to liberal interpretation.

John Austin ’was the greatest exponent of this School ,who is the father of English Jurisprudence .He was born in 1790 .At a very age he entered the army in which he served for five year .In1826 he appointed to the Chair of jurisprudence in the University of London .His lectures delivered in London University were published under the volume entitled “The Province of Jurisprudence Determined”. In his lectures he discusses the nature of law and its proper bounds. He also discusses the sources of law and presents an analysis of the English legal system. 

Austin defined law as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him Austin ‘s definition of law: -Austin is the father of English jurisprudence.he confined his only to the positive law. Austin defined law as “A rule laid down for the guidance of an intelligent being by an intelligent being having power over him. He also stated that “Law is the command of the Sovereign”. Austin believed that in the society, subjects are bound by the command issued by the sovereign from time to time. Classification of law

According to Austin law are two type – 1) Laws properly so called 2) Laws improperly so called

1) Laws properly so called: –

These laws are commands which are backed by sanctions of the state, are called law properly so called. Law properly so called is the positive law, which means law “as it is” rather than law “as it ought to be” with which he is not at all concerned. It is divided in two part. A) Laws of God B) Human laws

A) Laws of God: -these are the laws which are made by God for men.

B) Human laws: -These are the laws which are made by one human being for other human beings.

They may be further divided into two parts.   a) Positive Laws b) Other Laws

a) Positive Laws: – These are the laws set by political superiors as such, or by men not acting as political superiors but acting in pursuance of legal rights conferred by political superiors, only these laws are the proper subject matter of jurisprudence.

b) Other Laws: – Other laws is known as positive Morality, other laws which are not set by political superiors or by men in pursuance of legal rights. This class includes International Law.

2) Laws improperly so called

These laws are not commanding and thus, are not backed by sanctions. These laws are not obligatory. Austin’s Imperative Theory of Law or Analytical Positivism: This theory is known as Positive theory of law, Command theory, Imperative theory of law. Austin opined that only positive law is the proper subject matter of the study of jurisprudence. He defined” the jurisprudence is the philosophy of positive law.

According to Austin, the law is the command of the sovereign imposing a duty which is enforceable by sanction. The study and analysis of positive law are based upon the law which is strictly applied by political superiors to political inferiors.

he basic features of Command theory are:

• Command (by political superiors).

• Duty (imposing duty on political inferiors).

• Sanction.

• Sovereignty.

1) Sovereign 2) Command 3) Sanction 4) Duty 1) Sovereign: – Law is the command of a sovereign which obliges a person or persons to a course of conduct. Sovereign means ,such a person who is superior ,nobody can interfere. He is the supreme, irresistible, absolute and uncontrolled authority. There are some importance salient features of sovereignty :- a) Indivisibility b) Illimitability c) Essentiality d) Inalienability 2) Command :-A command means a wish or desire conceived by a rational being to another rational being who shall do or forbear .it is an evil to proceed from the former to be incurred by the latter in case of non -compliance and it is an expression or intimation of will by word or otherwise Command are two type a) General Command b) Particular or specific Command

a) General Command: – A general command is a law or rule where it is obliges generally to acts so forbearance of a class. All command is not law, it is only the general command.  

b) Particular Command: -It is particular when it obliges to a specific individual act.

3) Sanction: -Sanction is an evil which will be incurred if a command is disobeyed and is the means by which a command or duty is enforced. It is a wider sense of punishment. A reward for obeying the command can scarcely be called a sanction.

4) Duty: -when the party commanded and threatened is under an obligation to obey it. It is called duty. Thus, in Austin’s theory duty and command are co-relative and fear of sanction is the motive for obedience of such command i.e law .The chief characteristics of positive law are Sovereign Command ,Duty and Sanctions . 

Austin says, “every law is a command imposing a duty enforced by a sanction, however, all the commands are not law”. It is only the general command which is a law. Austin, though, accepts that there are three kinds of laws which are not commands but may be included within the purview of law by way of exception. They are:

1. Declaratory/Explanatory laws: They’re not commands because they are already in existence and are passed only to explain the law which is already enforced.

2. Law of Repeals: Austin doesn’t treat such laws as commands because they’re in for the revocation of a command.

3. Law of Imperfect obligations: They’re not treated as commands because there’s no sanction to them. Austin holds that a command to become law must be accompanied by duty and sanction for its enforcement.

Criticism:

Austin’s trilogy implicit in the concept of law has invoked criticism.

1. Customs are overlooked/ignored: Customs are always to regulate the conduct of human beings and therefore, customs should also be included in the study of jurisprudence but Austin ignored them.

2. Law conferring privileges: The law which is pure of permissive character and confers wholly privileges such as ‘The Wills Act’ which lays down the method of joining a testamentary document is not covered by Austin’s definition of law.

3. No place for judge-made law: Austin avoids the creative function of judiciary like applying of the precedents and in the interpretation of laws.

4. Austin theory treats international law as morality: Austin doesn’t treat international law as lacking sanction and this view of Austin neglects the increasing role of international law in achieving world peace.

5. Command Overemphasised: Austin’s theory of law overemphasizes on command and in modern progressive democracies, the law is nothing but an expression of the general will of the people, therefore the idea of command doesn’t apply in present systems.

6. The interrelation between law and morality is completely ignored: The greatest shortcoming of Austin’s theory is that it completely ignores the relationship between law and morality and law can never be completely divorced from morals and ethics.

7. Sanction alone is not the means to induce obedience: Auston’s theory that it’s the sanction who alone governs the people or induce the persons to obey the law is not correct. There are so many other factors like fear (of society), reason (of inner conscience), etc. are helpful to induce a person to obey the law.

Apart from these criticisms, Austin’s contribution of law has been greatly admired by other thinkers like Bentham, JS Mill, etc. The merits of Austin’s theory lie in its simplicity and it’s clear expression of separation law and morality. Thus, we can say that Austin made a great contribution to the law of Jurisprudence.

Jurisprudence can be called the philosophy of law. Numbers of jurists have explained it in the general form for a better understanding of the lawmaking process. As we know that law has an unpredictable arena. Its understanding differs from one particular individual to the others. Everybody has their own perception of the law. These different perceptions can be clubbed under different schools of Jurisprudence.

• Analytical School
• Historical School
• Realist School
• Sociological School
• Philosophical School

Analytical School

John Austin is said to have set up this methodology which is sometimes referred to as Austinian School. This school believes in law is a direction from the supreme power (Sovereign). According to this School, Law is the Command of the Sovereign and owes its existence to the state and is posterior to it. The exponent of this school regards Legislation as the most important source of law. According to them, Custom has no place in law.

Austin was the one who propounded the theory of positive law but Bentham was the one who laid down its establishment. one of mainly five Schools of Jurisprudence.

Jeremy Bentham

Bentham appears to be the founder of this approach. He was a firm supporter of Lassez’s fair principle of economy. He wrote a book, “Limits of Jurisprudence defined” which was published in 1945. He was against Judge made law; according to him, the law should be made only by the legislature. He was an individualist. He said that the function of law is to emancipate the individual from the bondage and restraint upon his freedom. The purpose of the law is to bring pleasure and avoid pain. His legal philosophy is called “Utilitarian individualism”.

John Austin

Austin is known as the father of the English Jurisprudence and Analytical School. He wrote a book, “Province of Jurisprudence Determined”. He defined law as “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”.  Law is the command of a sovereign backed by Sanction.

Historical School

According to this School, Law is a matter of unconscious and organic growth. Therefore, the law is found and not made. This school says that Law is anterior to the state and does not owe its existence to it.  They say custom is the all-important source of law and is superior to legislation. This School discourages creative activities and legal reform.

Savigny

He is regarded as the originator of the Historical School. He has propounded the Volkgeist Theory. Law has its source in the general consciousness (Volkgeist) of the people. He says law develops like a language and has a national character. Law is a product of the people’s life- it is a manifestation of its spirit.

Volksgeist Theory

Savigny takes a shot at the law of ownership (Das Recht Des Vestiges) which was distributed in 1803 and is said to be the beginning stage of Savigny’s historical jurisprudence. He solidly trusted that all law is the confirmation of ordinary mindfulness (an indication of regular cognizance) of the general population which develops with the development and reinforces the quality of the general population and thus diminishes as the country loses its nationality. The beginning of law lies in the well-known soul of the general population which Savigny named ‘Volksgeist‘.

Regardless of specific criticisms, Savigny’s legal theory denoted the start of the cutting edge jurisprudence. His theory of Volksgeist translated jurisprudence as far as individuals’ will as it laid more noteworthy accentuation on the connection of law and society. What’s more, is that this theory came as a rebel against the eighteenth-century natural law theory and explanatory positivism.

The other eminent supporters of this School are Sir Henry Maine and Edmund Burke.

Realist School

Roscoe Pound has defined ‘realism’ as “Fidelity to nature, accurate reordering of the things as they are, as contrasted to things as they are imagined to be, or wished to be or as one feels they ought to be.” Basically, the evolution of the Realist school lies in the English Jurisprudence. It is regarded as a branch of the Sociological approach. Gray and O.W. Holmes were the two great jurists from whom the origin of this realist approach has been traced. Gray defined law as “What Judges Declare”.  Coming on to the Llewellyn, he said that Realist School is not a separate school of Jurisprudence instead it should be called Sociological Jurisprudence.

Coming on to the factors responsible for this approach are numerous. The most important one is pragmatic philosophy. They started dealing with the law with a practical approach rather than constraining them with the principles. The second most important factor which seems to have led to this thought is the organization of the judiciary in America. Eminent supporters of this School are Holmes, Gray, Jerome Frank, Llewellyn, and many more.

Sociological School

This School takes law as an instrument of social progress and treats law as a social wonder. This school studies the effect of law and society on each other. According to this school, the law is the product of the general will of society. The reasons which brought about this kind of approach are many. The historical school, the philosophical movement, and the comparative study of legal systems all in different ways contributed to the emergence of this method.

Some of the eminent supporters of this view have been discussed below:

Auguste Comte

He was the first individual who used the term “Sociology”. His method may be called “Scientific Positivism”. Coming onto the field of legal theory it was Comte whose ideas inspired Durkheim, and who in his turn, inspired Duguit, a great sociological jurist.

Eugen Ehrlich

The core point of his thesis was that the law of community is to be found in social facts and not in the formal sources of law. According to him ‘Living Law’ is the fact that governs social life. His use of the term ‘Sociological Jurisprudence’ means that the law in a society should be made and administered with the utmost regard to its requirements.

Roscoe Pound

He is regarded as an ‘American leader’ in the field of Sociological Jurisprudence. He concentrates more on functional aspects of law due to which some writers named his approach a ‘functional school’. His main thesis is that the task of law is ‘Social Engineering’. Here ‘Social Engineering’ means a balance between the competing interests in the society.

Philosophical School

This school is also known as Moral School. The basic aim of this school is that it tries to extract the reasons why particular law has been established. Immanuel Kant, Hegel, and Grotius are some of the eminent law specialists in this School. They basically think that law is the product of human reason and its ultimate aim is to raise and praise human identity.  Hegel seems to be the most persuasive scholar in the philosophical school. According to him “The state and law both are developmental”. Coming on to Maine, he made a comparative study of the legal institutions of various communities and laid down a theory of the evolution of law.

Conclusion

As discussed above, Jurisprudence is a systematic study of law. It basically investigates various theories and methods of insight in respect to the law.

There are five different schools of jurisprudence, each has its own philosophy and importance in the field of law. Each has been criticized by many eminent scholars. A practical approach should be taken into consideration while studying law rather than going for a theoretical one.

Hart was a British philosopher who was a professor of jurisprudence. Hart modifies the theory of Austin and Kelsen. He defined the legal system as such in his book “The Concept of Law”.

In his book The Concept of Law, Hart has analyzed the relation between law, coercion, and morality, and has also attempted to clarify the question of whether all laws may be properly conceptualized as coercive orders or as moral commands.

A legal system is a system of rules which are social in nature because firstly they regulate the conduct of a member of society and secondly, they drive from human social practices”.

The Second reason in his definition gives an idea that in a legal system not only legal rules but also non-legal rules also exist, e.g. morality, customary practices, ethics, values, etc. “Where there is a law, their human conduct is made in some non-optional or obligatory.” Thus the idea of obligation is at the core of the rule.

Austin rejected the content of morality but for Heart, rules are derived from the social practices. Prof. Hart maintains the difference between the source and the relationship between law and morality. He directly accepted the relationship between law and morality, which Kelson tries to keep the Purity of law: Prof. Hart accepted the content of some other elements in law.

Kinds of rules:-

According to Heart, Rules of Obligation are distinguishable from other rules in that they are supported by great social pressure because they are felt to be necessary to maintain society. Our conscience also imposes an obligation.

Having said this he talked about two kinds of rules;

1. Primary rules and 

2. Secondary rules

Primary rules:-

Primary Rules are those rules which impose ‘duty’ on a member of society like criminal laws, tort, etc.

Primary rules are one which tells people to do things, or not to do things. Primary rules are ‘duty imposing’ rules. They impose certain specific duties on the citizens of the state to act in a certain manner, or they may be subject to certain legal sanctions. Hart characterizes primary rules as “basic” rules. They tell the citizen what one can and cannot do under the law. They lay down duties. These rules are to do with physical matters.

Secondary rules:-

Secondary rules are ones which let people, by doing certain things, introduce new rules of the first kind, or alter them. They give people (private individuals or public bodies) the power to introduce or vary the first kind of rule. Secondary rules are not duty-imposing rules. They are what Hart calls power-conferring rules.

Secondary rules are those rules which confirm ‘powers’ like Contract, Marriage, Will, Delegated Legislation – the power to make law.

In the Indian Constitution, Schedule VII gives a list namely State, Centre, and Concurrent List, which conferred power to respective organs to make laws. There is a link between these primary and secondary rules. There is a specific relationship between these rules which rather systematically comprises a legal system and legal order.

Secondary rules have been divided into three more types, these are as follows;

1. Rule of Adjudication

2. Rule of Change

3. Rule of Recognition

Rule of Adjudication:-

It mainly represents those rules, which confer a direct power to adjudicate the matter in dispute, e.g. Article 32, which empowers Supreme Court to issue prerogative writ: Article 131, 132, 134, 133 that empower Supreme Court the original and Appellate jurisdiction. Article 323A and 323 B empower tribunals to adjudicate matters in dispute. All those articles in the Constitution are power conferring. They enable a court to decide a particular dispute.

Rule of change:-

Law-making power is to be accompanied by modification when a competent legislative body derived its power to make law and should have the power to change the law. This power is necessary to affect any kind of notification, e.g. Article 368 gives power to Parliament to amend the Constitution and procedure thereof. Thus it gives the power to amend the Constitution. This power includes the power to repeal, and remove difficulties. It is equally applicable to delegated legislation.

Rules of recognition:-

The rule of recognition is the criterion of existence and validity of the rule of the legal system. Hart believes that the rule of recognition is the most important. The rule of recognition tells us how to identify a law. In the modern system with multiple sources of law such as a written constitution, legislative enactments, and judicial precedents, the rules of recognition can be quite complex and require a hierarchy where some types of rules overrule others. Hart holds this out as the remedy for uncertainty.

 Criticism by professor Dwarkin

Prof. Hart called a legal system a system of Rules. Whether a legal system is a system of rules only? Prof. Ronald Dwarkin criticized Prof. Heart on this point. Dwarkin pointed out that the legal system does not comprise only rules but it consists of principles also. So to call the legal system of rules is not proper. Sometimes those principles are more important than those rules, e.g. Principle of Natural Justice, which is elaborated in Maneka Gandhi vs. Union of India. The judiciary positively incorporates the Principle of Natural Justice. So what Dwarkin says is also an important one. If rules and principles come into conflict then principle gets primacy with overriding effect overrules.

Justice Coke in Bohman’s Case (1610), contended that “if it is found that the law made by Parliament is contrary to certain moral principle then such law could be null and void”.

The pure theory of law was propounded by Austrian jurist and philosopher Hans Kelsen in California (1881-1973). Kelsen began his long career as a legal theorist at the beginning of the 20th century.

 He developed and redefined Austin’s Positivism theory in the 20th-century his book, entitled “Pure Theory of Law”, was published in two editions, one in Europe in 1934, and a second extended edition after he joined the faculty at the University of California at Berkeley in 1960. The pure theory of law was expounded by Hans Kelsen and is a part of analytical positivism.

 According to Kelsen, laws are scattered in the society which creates ambiguity in the source of the law. There are a variety of laws and regulations which have created inequality among the class. There is a kind of confusion in the legal system. Therefore, Kelsen went to develop his pure principle of law to achieve uniformity.

  According to him a theory of law should be uniform. It should be applicable at all times and in all places. 

 Kelsen’s theory of law must be free from all social sciences viz., ethics, history, politics, sociology, economics, etc. In other words, It must be in pure form and completely divorced from other social sciences.

He defined law as normative science and not a natural science.  Basically, the theory of Kelsen is about the concept of norms. According to him, Knowledge of the law is a Knowledge of “norms’ ‘. Norm is a rule forbidding a certain behavior.  His theory is based on the pyramid structure of the hierarchy of norms which derives their validity from the basic norm which is known as Grundnorm.  In this superior norms have control over the norms subordinate to them.  He rejected Austin’s view that ‘law is a command’ because Austin introduces subjective consideration whereas he wanted it as an objective

Key Features of Kelsen’s Pure Theory 

1. Law as Science:

Kelsen tried to present a theory that could be attempted to change Law in science, a theory that could be understood through logic.

2. As a positive law: 

In the first paragraph of the pure theory of law, Kelsen introduces his theory as a theory of positive theory. This principle of positive law is then presented by Kelson as a hierarchy of laws that begins with one basic norm, i.e. Grundnorm ‘, where all other norms are related to each other either being inferior norms.

3. Law “As it is”

 Kelsen emphasized that analysis should focus on the law as ‘it is in fact laid down, not as ‘it ought to be’.

4. Law and morality: 

   Kelsen’s strict separation of law and morality is an integral part of his pure theory of law.

5. The theory of law should be uniform; According to Kelsen, the theory of law should be applied at all times and in all places.

6. Static Aspect of Law:

 Kelsey distinguished the static theory of law from the dynamic theory of law. The static theory of law represented the law as a hierarchy of laws where individual laws were related to each other either being inferior, the one to other, or superior with respect to each other.

THEORY PURE SCIENCE OF LAW.

Kelsen emphasizes on separation of law from politics, sociology, metaphysics, and all other extra-legal disciplines.  He defines ‘science’ as a system of knowledge or a ‘totality of cognitions’ systematically arranged according to logical principles.  Kelsen named his theory “Pure Science of Law” because science is called rational. It must stand in a two-fold relation to its object: 1. Theoretical: It determines the conception of the object. 2. Practical: It establishes its reality.  This theory of Pure Science of law is also known as the “Theory of Interpretation” because it was a reaction against a cruel ideology which was corrupting the legal theory and the jurisprudence of a totalitarian state.  He derives pure science of law from ‘ought propositions’ of juristic science.

LAW AS NORMATIVE SCIENCE.

Kelsen described the law as ‘normative science’ as distinguished from natural science that is based on cause and effect such as the law of gravitation.  In the words of Kelsen, “The principle according to which nature describes its object is a casualty, the principle according to which the science of law describes its object is normativity”.  According to him, the Science of law is knowledge of what law ought to be (das sollen) or not law is (das- sein). It is the ought character that provides normative character to law. E.g. If “A” commits theft he ought to be punished.  Like Austin, Kelsen also considers sanction as an essential element but he prefers to call it the norm. Norm is a rule forbidding a certain behavior.

THE GRUNDNORM

Basically, the theory of Kelsen is about the concept of norms. According to him, Knowledge of the law is a Knowledge of “norms’ ‘.  Kelsen termed his basic norm as Grundnorm. His theory is based on the pyramid structure of the hierarchy of norms which derive their validity from the basic norm or Grundnorm.  According to Kelsen, the Grundnorm may not be the same in every legal system but it is always there, either in the form of a written Constitution or the will of the superior.  Grundnorm is no longer a hypothesis but a fiction of law.  We cannot say whether Grundnorm is good or bad without testing it politically, religiously, and ethnically.

HIERARCHY OF NORMS

According to this theory, Kelsen considered legal science as a pyramid of norms with (Grundnorm) basic norms at the apex.

 In this hierarchical order superior norms have control over the norms subordinate to them. 

In this process norms proceed from downwards to upwards and derive their power from the norm immediately superior to it until it reaches the grundnorm, which has been termed as “concretization” of the legal system.

For e.g.: a statute or law is valid because it derives its legal authority from the legislative body, and the legislative body derives its authority from a norm i.e., the Constitution.

Merits of the Pure Theory of Law 

(1) Kelson recognized International Law as a law

(2) Pure theory of law is best for peaceful change

(3) It makes the most refined development of analytical positivism

(4) Kelson’s concept of the legal system is clearly original and striking

(5) Kelson has explained that no law can prevail country to grundnorm or constitution

(6) Kelson’s Pure Theory of Law is considered to be the most outstanding theory of law

Critical Analysis:-

1. The theory of Kelsen suggests that Grunderm is the concept of the Constitution that ought to be followed. The Constitution of a country is a sociological, political document, and therefore Grundnorm is not pure.

2. Kelsen also said that the law should be kept free from ethics/morality. A general question should be raised here, whether it is possible to keep the law free of ethics/morality? Kelsen insisted on the law to be effective and thus he accepted indirect ethics as a part of effectiveness.

3. Kelsey attempted to change the law into a science, a theory that could be understood through logic, but on the other hand, he emphasized the validity of the Grundnorm to “assumed”, rather than based on some “logic”.

4. Kelsen tried to find the law and legal norms in a middle realm between absolute ethical values and social facts. Therefore, rejection of the relevance of ethics ideas makes the legal science sterile and useless and rejects the factual nature of law that separates it from reality.

 Law is organized through the maintenance of the system stability through the broadness and simplification of its various parts principles and ideological compartments and, in a nutshell, though tending to become a logical system, a perfect and complete logical system.

Realist School is a type of school which focuses on decisions. It is a branch of sociological approach. They believe that law is only on official action. Roscoe Pound has defined Realist School as “Fidelity to nature, accurate reordering of the things as they are, as contrasted to things as they are imagined to be, or wished to be or as one feels they ought to be.” Basically, the evolution of the Realist school lies in the English Jurisprudence. It is regarded as a branch of the Sociological approach. Gray and O.W. Holmes were the two great jurists from whom the origin of this realist approach has been traced. Gray defined law as “What Judges Declare”.  Coming on to the Llewellyn, he said that Realist School is not a separate school of Jurisprudence instead it should be called Sociological Jurisprudence.

The most important one is pragmatic philosophy. They started dealing with the law with a practical approach rather than constraining them with the principles. The second most important factor which seems to have led to this thought is the organization of the judiciary in America. Eminent supporters of this School are Holmes, Gray, Jerome Frank, Llewellyn, and many more.

Characteristics of Realist School

These are some of the points that are clearly mentioning about the characteristics of the Realistic School or Realism Movement: –

1. In actual sense, there is no realistic school. It is known as ‘realism’ that is actually a movement which consists of thought and works in law.
2. Realism means a conceptual thesis on law in chunks and as a means of some social ends. It is implied in a particular society where changes are seen faster than the law.
3. It also assumes a type of divorce which is temporary in nature of ‘is’ and ‘ought’ so as to achieve the purpose of a study. It means all the purposes that are ethical in nature for the observer must underline the law are ignored and are not at all allowed to blur the vision of observer.
4. It also creates a sense of distrust in the traditional legal values and also the concepts designed so far as they appear to be described what either courts or common people are actually doing.
5. Lastly, it also focuses largely on the evaluations of any parts of law in respect to its effect

According to this School, Law is a matter of unconscious and organic growth. Therefore, the law is found and not made. This school says that Law is anterior to the state and does not owe its existence to it.  They say custom is an all-important source of law and is superior to legislation. This School discourages creative activities and legal reform.

Savigny

He is regarded as the originator of the Historical School. He has propounded the Volkgeist Theory. Law has its source in the general consciousness (Volkgeist) of the people. He says law develops like a language and has a national character. Law is a product of the people’s life- it is a manifestation of its spirit.

The other eminent supporters of this School are Sir Henry Maine and Edmund Burke.

Salient features of Historical School of Jurisprudence

1. With the changing needs and nature of persons, the law should be changed. The historical school follows the concept of man-made laws. ‘Law is formulated for the people and by the people’ means that the law should be according to the changing needs of the people. And everyone understands their own needs better than anyone else.
2. The basic source of the Historical School of Jurisprudence is the habits and customs of people which change according to their needs and requirements. It is also called the continental school of Jurisprudence.
3. This school rejects the ideas of the formation of law by judges and the origin from some divine relevance.

• 4) It opposes the ideology of the analytical school of jurisprudence.  

5) Analytical school of jurisprudence is also called the Austinian School. It was established by John Austin. The subject matter of the Analytical school of Jurisprudence is positive law. It focuses on the origin of law, the judges, states, and legislators. Historical School laid emphasis on the formation of law by people through customs and habits, not by the judges and superior authority.

6). Historical School of Jurisprudence describes the origin of law. This school argues that the law was found not made. The main source of law is King’s Judgment, Customs, and habits. Jurists like Montesquieu, Savigny, Sir Henry Maine, and Georg Friedrich Puchta are supporters of the Historical School of Jurisprudence.

7) Savigny was the father of the Historical school. He argued that Law is like language and has a national character. Law is not universal. Puchta improved the ideas of Savigny and argued that both state and people are equally important and the source of law.

John Austin is said to have set up this methodology which is sometimes referred to as Austinian School. This school believes in law as a direction from the supreme power (Sovereign). According to this School, Law is the Command of the Sovereign and owes its existence to the state and is posterior to it. The exponent of this school regards Legislation as the most important source of law. According to them, Custom has no place in law.

Austin was the one who propounded the theory of positive law but Bentham was the one who laid down its establishment.one of mainly five Schools of Jurisprudence.

Jeremy Bentham

Bentham appears to be the founder of this approach. He was a firm supporter of Lassez’s fair principle of economy. He wrote a book, “Limits of Jurisprudence defined” which was published in 1945. He was against Judge made law; according to him, the law should be made only by the legislature. He was an individualist. He said that the function of law is to emancipate the individual from the bondage and restraint upon his freedom. The purpose of the law is to bring pleasure and avoid pain. His legal philosophy is called “Utilitarian individualism”.

John Austin

Austin is known as the father of the English Jurisprudence and Analytical School. He wrote a book, “Province of Jurisprudence Determined”. He defined law as “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”.  Law is the command of a sovereign backed by Sanction.

Salient features of the analytical school of jurisprudence

1)founder of the analytical school is john Austin who was a professor of jurisprudence at the University of London.

2).the jurists of the analytical school consider that the most important aspect of the law is its relation to the state.

3).the proponents of this school are concerned neither with the past nor with the future of the law, but with the law as it exists. as it is (present form).for this reason, this school is termed as a positive school.

4).the law is treated as an imperative or command emanating from the state. for this reason, this school is known as the imperative school.

5)the positive school takes for granted the developed legal system proceeds to logically analyze its basic concepts and classify them and bring out their relations to one another. this concentration of the systematic analysis of the legal concepts has given the name analytical school of jurisprudence. 

6).the purpose of analytical jurisprudence is to analyze without reference either to historical origin or development, but its main thing starts from actual facts of law as it sees them today.

7). Analytical jurisprudence is the study of logical relations within the law

8)The chief proponents of the analytical school are Jeremy Bentham, John Austin, prof, H.L.A Hart, Hans Kelsen & others.

Judgment is defined in section 2(9) of the C.P.C. which says judgment is the statement given by the Judge on the grounds of a decree or order. Judgment refers to what the judge writes regarding all the issues in the matter and the decision on each of the issues. Hence every judgment consists of facts, evidence, findings, etc., and the conclusion of the court.

The court, after the completion of the hearing, either at that moment or one other day pronounces the judgment. The judgment forms the concluding part of the civil suit and determines the rights and liabilities of the parties. In the legal world, the judgment given by any court followed by its decree plays a vital role to define the scope and limitations of the individual.

The Court, after the case has been heard, shall pronounce judgment, and on such judgment, a decree shall follow. Sec. 33 of the C.P.C describes the term ‘Judgement and Decree’ together.

According to Rule 4 Order XXof C.P.C, 1908:

• Judgments of a Court of Small Causes are satisfactory if they contain the points for determination and the decision thereon.
• Judgments of other Courts shall contain:

1. Summary of the pleadings which is a concise statement of the case;
2. Issues which are the points for determination;
3. Findings on each issue and the decision thereon;
4. Ratio decidendi (reasons for such a decision); and
5. The remedy is the relief granted.

Alteration of a judgment

Once a judgment is dated and signed by the judge it can only be altered or amended if:

• There are arithmetical or clerical errors. (clerical errors refer to the errors made by clerks and arithmetical errors refer to errors made in numbers such as addition, subtraction, multiplication, and division).
• There are errors due to accidental slips or omissions (these errors take place when some essential element is left unnoticed) (Sec.152) on a review (Sec. 114).

Copy of the judgment

Once the judgment is pronounced the copies of that particular judgment should be immediately made available to the parties on payment of costs as specified, by the party applying for such copy, of such charges as may be specified in the rules and orders made by the High Court (H.C.) Such a rule is specified in Order XX Ruloe 6-B of the Code of Civil Procedure, 1908

If a judgment is not pronounced immediately then it must be pronounced within 30 days from the date of the conclusion of the hearing. However, sometimes it so happens that due to exceptional and extraordinary reasons like a bank holiday, strike, or some other situation it may be delivered within 60 days from the conclusion of the hearing. It is not mandatory for a judge to read out the whole judgment and it would be enough if only the final order is pronounced. The judge shall put the date on which the judgment was pronounced along with his signature. Rule 2 Order XX of the Code of Civil Procedure, 1908 provides a judge with the right to pronounce the judgment which is already written but is not pronounced by his predecessor.

Difference between Judgment and Decree

 a written statement confirmed by oath or affirmation, for use as evidence in court.

 An Affidavit is a declaration of facts made in writing and sworn before a person having the authority to administer an oath. All affidavits need to be drawn up in the first person and should contain facts and not inferences. A person who makes an affidavit is called a Deponent .The person who has authority to attest a certificate may be a Magistrate who may in turn be either a Judicial or an Executive Magistrate

Who Can Create An Affidavit?

In order to create an affidavit, an individual should have attained majority and should be in a position to understand the nature of the contents sworn. In other words, the person should not be insane or incapacitated to the extent of not knowing the meaning of the statements mentioned in the affidavit.

The affidavit is a written statement sworn before a person having authority to administer an oath. In India, an affidavit can be sworn or affirmed before:

• Any Judge or any Judicial or Executive Magistrate;
• Any Commissioner of Oaths appointed by a High Court or Court of Sessions;
• Any Notary appointed under the Notaries Act, 1952;

Essential Features Of An Affidavit

• An Affidavit should be in writing
  Since an Affidavit is used as a record in court, it has to be in writing. This is to make the person who makes the affidavit accountable for the contents sworn in the affidavit. It also deters people from making false claims since they amount to punishable offenses.
• It must be a declaration made by an individual
  An Affidavit can be created only by an individual, and not by any artificial persons like Companies and other associations or Groups of individuals.
• It must relate to facts alone
  An Affidavit should mention only the facts according to the best knowledge and belief of the deponent. It should not be based on mere inferences or assumptions.
• It must be made in the first person
  Affidavits cannot be created on behalf of other persons. The purpose is to prevent declaring things beyond the reasonable knowledge of a person.  It is the duty of the deponent to state facts which are known to him/her. However it is subject to the exception where affidavits are sworn on behalf of minor children or insane individuals.

It must be sworn before an officer or magistrate who is authorized to administer an oath.
An affidavit can be sworn only before a person having authority to attest it. For example, a name change affidavit may be attested either by a Notary Public or by an Executive or Judicial magistrate for documents created in India; while an affidavit for lost or damaged passport can be attested only by a Judicial or Executive Magistrate and it is beyond the authority of a Notary Public.

Contents Of An Affidavit

An affidavit should include only those facts that a deponent is able to prove to his personal knowledge. It should not contain assumptions and vague beliefs. The only exception to this rule is Interlocutory Applications submitted in civil proceedings which may be based on the belief of the deponent.

 An affidavit contains plain facts listed one after the other and a verification clause which is to be attested by the prescribed officer with authority.

Circumstances For Creating An Affidavit

Affidavits are used whenever there is a reason to swear an oath of any nature, for instance- in passport requirements, divorce proceedings, property disputes, debt cases among others. It is also used in the event of loss of certificates or original documents of any nature, for purposes of changing names of individuals and for a number of different reasons.

According to the Indian Laws, an affidavit can be used to prove a fact in a court of law provided the court orders it. Since affidavits are not included in the definition of ‘Evidence’ in the Indian Evidence Act, they can be used as evidence only when the court finds it reasonable to invoke the provisions of order 19 of the Civil Procedure Code. This provision is however subject to the right of the opposite party to produce the deponent for cross verification.

What Happens On Filing Of A False Affidavit?

Swearing of a false affidavit can make a person liable to be charged under the Indian Penal Code for the offense of Perjury. It is a grave matter which warrants strict action. Such provisions ensure that persons who swear untruths in affidavits are aware of the consequences and to prevent them from committing such offenses.

What documents are required for an affidavit?

Documents required to execute affidavit as below,

• Any of your government approved ID proof like Adhara, passport or driving license.
• Any of the specific supporting documents for your intended purpose to execute an affidavit like degree certificate, mark sheet, employment letter, marriage certificate, bank statement etc. It is important that we consider the different terms and components that are common in any affidavit.

Written statement: All affidavits must be by writing. Any oral statements that

are taken as oath before the law does not in any way equals an affidavit. For an affidavit to be used as evidence before the court must be written.

Affirmation or oath: A solemn promise by the deponent regarding his action must be found in this document.

Voluntarily. Affidavit is very binding on the fellow who has sworn to it and this must be his personal decision. Any affidavit that is taken forcefully shall be

• Deponent or affiant: this is the person who is making the affidavit.

Notarization: All affidavits must be notarized before the notary office which is authorized by the state or Central government.

HOW CAN AN AFFIDAVIT BE DRAFTED?

The first person should be used in the drafting of an affidavit.

• It should be divided into paragraphs which are given a specific number.

• Each paragraph of the document should be specific on each subject.

• It should mention the names, age, religion, re, residence and occupation of the deponent.

Where anv alterations are to be made in the document, it must be authenticated by the authority.