Introduction: The concept of punishment has evolved over centuries, reflecting changing societal norms and philosophies. One such theory, the preventive theory of punishment, has its origins in the Enlightenment era and has since influenced legal systems worldwide. This essay explores the origins of the preventive theory, its founder, and how it is reflected in case law through various acts aimed at preventing future crimes.
Origins and Founder: The preventive theory of punishment emerged during the Enlightenment period in Europe, notably championed by Cesare Beccaria, an Italian philosopher, and jurist. Beccaria’s seminal work, “On Crimes and Punishments” (1764), laid the groundwork for modern criminology and criminal justice systems. Beccaria argued that punishment should serve a utilitarian purpose, primarily aimed at preventing future crimes rather than exacting revenge or retribution. He advocated for proportionate punishment, swift justice, and the certainty of punishment to deter potential offenders.
Acts Related to Preventive Theory: Acts related to the preventive theory of punishment encompass various measures aimed at deterring, incapacitating, or rehabilitating offenders to prevent future criminal behavior. These include:
Deterrence: Deterrence aims to discourage individuals from committing crimes by imposing punishments severe enough to outweigh the benefits of criminal behavior. Case laws reflecting deterrence include decisions to impose substantial fines or lengthy prison sentences for offenses deemed particularly harmful or egregious. For example, landmark cases involving white-collar crimes often result in significant financial penalties to deter corporate malfeasance.
Incapacitation: Incapacitation involves removing offenders from society to prevent them from committing further crimes. Case laws reflecting incapacitation may include mandatory minimum sentences or life imprisonment for habitual offenders or those convicted of violent crimes. Three-strikes laws in the United States, which mandate lengthy sentences for individuals convicted of three or more serious offenses, exemplify this approach.
Rehabilitation: Rehabilitation focuses on addressing the underlying causes of criminal behavior and reintegrating offenders into society as law-abiding citizens. Case laws reflecting rehabilitation may involve diversion programs, probation, or community-based rehabilitation initiatives. Drug courts, for instance, offer non-violent drug offenders the opportunity to undergo treatment and counseling as an alternative to incarceration.
Reflecting Preventive Theory in Case Law: Case law demonstrates the application of the preventive theory of punishment through judicial decisions that prioritize deterrence, incapacitation, or rehabilitation. For example:
In Roper v. Simmons (2005), the U.S. Supreme Court abolished the juvenile death penalty, citing evolving standards of decency and the need to rehabilitate youthful offenders rather than impose irreversible punishments.
Gideon v. Wainwright (1963) established the right to legal counsel for indigent defendants, ensuring fair trials and upholding the principle of deterrence by guaranteeing competent defense representation.
United States v. Booker (2005) rendered mandatory sentencing guidelines advisory rather than binding, allowing judges to consider individual circumstances and tailor sentences to promote rehabilitation while still deterring criminal conduct.
Conclusion: The preventive theory of punishment, pioneered by Cesare Beccaria, continues to shape contemporary criminal justice systems worldwide. Through deterrence, incapacitation, and rehabilitation, legal frameworks seek to prevent future crimes while balancing the principles of justice and proportionality. Case law reflects the application of this theory through decisions that prioritize preventive measures, ensuring a more effective and equitable administration of justice in society.
The history of punishment within criminal justice systems has often been marked by a focus on retribution and deterrence. However, the emergence of the reformative theory of punishment represents a significant paradigm shift towards a more humane and effective approach.
Historical Context: The reformative theory of punishment arose as a response to the limitations and failures of traditional punitive approaches. In the 18th century, scholars and policymakers began to recognize that punitive measures focused solely on retribution and deterrence were inadequate in addressing the root causes of criminal behavior. Instead, there was a growing acknowledgment of the need for a more compassionate and rehabilitative approach.
Founder: While the reformative theory of punishment has been influenced by various scholars and thinkers throughout history, Mahatma Gandhi is often cited as one of its most prominent advocates. Gandhi’s philosophy of nonviolence and compassion played a significant role in shaping the principles of the reformative approach to criminal justice.
Objectives: At the heart of the reformative theory of punishment lies the objective of reforming the character and behavior of offenders. Rather than merely punishing individuals for their crimes, the emphasis is on understanding and addressing the underlying factors that contributed to their actions. By providing support, resources, and opportunities for rehabilitation, the goal is to reintegrate offenders as law-abiding members of society.
Key Figures: While the reformative theory of punishment has been influenced by various scholars and thinkers, Mahatma Gandhi stands out as one of its most prominent advocates. Gandhi’s philosophy of nonviolence and compassion deeply resonated with the principles of reformative justice. His advocacy for understanding and addressing the root causes of crime has left a lasting impact on criminal justice systems worldwide.
Legislative Impacts: In India, the reformative theory of punishment has shaped several key legislative frameworks and statutes. The Juvenile Justice Act, for example, prioritizes the rehabilitation of juvenile offenders through measures such as education, counseling, and community integration. Similarly, the Code of Criminal Procedure provides alternatives to incarceration, such as probation, parole, and indeterminate sentences, focusing on the potential for reform rather than punishment alone. Constitutional provisions, such as Article 72 and Article 161, grant the President and Governors the power to pardon individuals, reflecting a commitment to fairness and justice within the context of reformative principles.
Acts Impacted: Several legal frameworks and statutes have been influenced by the principles of the reformative theory of punishment. In India, key legislation impacted by this philosophy includes:
The Juvenile Justice Act: Prioritizes the rehabilitation of juvenile offenders and emphasizes education, counseling, and community integration.
The Code of Criminal Procedure: Provides mechanisms such as probation, parole, and indeterminate sentences, offering alternatives to incarceration and focusing on the potential for reform.
The Probation of Offenders Act: Addresses the discharge of offenders based on their good behavior, promoting rehabilitation over punitive measures.
Additionally, constitutional provisions such as Article 72 and Article 161 grant the President and Governors the power to pardon individuals, reflecting a commitment to fairness and justice in the context of reformative principles.
Overall, the reformative theory of punishment has had a significant impact on legal frameworks and policies aimed at promoting rehabilitation and reducing recidivism within the criminal justice system.
Case Laws:
Certainly, here are a few case laws that illustrate the application and recognition of the reformative theory of punishment within the Indian legal system:
Gulab Singh v. State of Haryana (1994): In this case, the Supreme Court of India emphasized the importance of rehabilitation over strict punishment. The court refused to increase the punishment of the accused, highlighting the reformative objective of the Indian penal system.
Mithu Singh v. State of Punjab (1983): In this landmark case, the Supreme Court declared that the mandatory death penalty for certain offenses violated the fundamental rights guaranteed by the Indian Constitution. The decision reflected a move towards a more reformative approach to punishment, allowing for individualized considerations and alternatives to the death penalty.
Sheela Barse v. Union of India (1983): This case dealt with the inhuman conditions prevailing in Indian prisons, especially with regard to women and children. The Supreme Court, in its judgment, emphasized the need for prison reforms and rehabilitation programs, aligning with the reformative theory of punishment.
Mohd. Giasuddin v. State of Andhra Pradesh (1979): In this case, the Supreme Court highlighted the importance of parole as a means of rehabilitation and social reintegration. The court emphasized the potential for reform and the need to consider individual circumstances when determining the appropriate punishment.
Ram Narain Poply v. State of Punjab (2003): This case involved a plea for the reduction of sentence based on the offender’s good conduct and potential for rehabilitation. The Supreme Court, in its judgment, recognized the principles of reformative justice and granted relief based on the offender’s efforts towards reform.
These case laws demonstrate the judiciary’s recognition and application of the reformative theory of punishment within the Indian legal system. They emphasize the importance of rehabilitation, individualized considerations, and alternatives to strict punishment in promoting societal well-being and reducing recidivism.
Conclusion: In conclusion, the reformative theory of punishment represents a significant evolution in criminal justice philosophy. By prioritizing rehabilitation and transformation over retribution and deterrence, it offers a more compassionate and effective approach to addressing criminal behavior. With its emphasis on understanding the root causes of crime and providing opportunities for reform, the reformative theory has the potential to promote societal well-being and reduce recidivism rates. As societies continue to grapple with complex issues of crime and punishment, the principles of reformative justice remain more relevant than ever.
The doctrine of utilitarianism is a philosophical theory that evaluates actions based on their consequences, specifically focusing on maximizing overall happiness or utility. Developed by philosophers such as Jeremy Bentham and John Stuart Mill, utilitarianism suggests that the morally right action is the one that produces the greatest amount of happiness or pleasure for the greatest number of people.
Utilitarianism is a philosophical doctrine that originated in the 18th and 19th centuries and has its roots in the works of several prominent thinkers. While Jeremy Bentham is often considered the founder of utilitarianism, the development of the doctrine involved contributions from multiple philosophers over time. Here’s an overview of the historical development of utilitarianism:
Jeremy Bentham (1748-1832): Jeremy Bentham, an English philosopher and social reformer, is widely regarded as the founder of utilitarianism. Bentham developed the utilitarian theory in his work “Introduction to the Principles of Morals and Legislation” (1789). He proposed that the moral worth of an action should be determined by its utility or usefulness in promoting happiness and minimizing suffering. Bentham famously stated, “The greatest happiness of the greatest number is the foundation of morals and legislation.” He advocated for the principle of “the greatest happiness principle,” which posits that actions are morally right if they produce the greatest amount of happiness for the greatest number of people.
John Stuart Mill (1806-1873): John Stuart Mill, a British philosopher and economist, further developed and popularized utilitarianism in the 19th century. In his seminal work “Utilitarianism” (1861), Mill elaborated on the principles of utilitarian ethics and addressed criticisms of Bentham’s quantitative approach. Mill emphasized the qualitative aspects of happiness and distinguished between higher and lower pleasures. He argued that intellectual, moral, and aesthetic pleasures are superior to mere physical pleasures. Mill’s contributions helped refine the utilitarian doctrine and solidified its place in moral philosophy.
Henry Sidgwick (1838-1900): Henry Sidgwick, an English philosopher, made significant contributions to the development of utilitarianism in the late 19th century. In his influential work “The Methods of Ethics” (1874), Sidgwick examined various ethical theories, including utilitarianism, and discussed their strengths and weaknesses. He introduced the concept of “universal hedonism,” which sought to reconcile individual and collective happiness within the utilitarian framework. Sidgwick’s scholarly analysis contributed to the ongoing refinement and debate surrounding utilitarian ethics.
Other Contributors: Utilitarianism has been shaped by the contributions of numerous other philosophers and thinkers over time. Scholars such as David Hume, Claude-Adrien Helvétius, and Cesare Beccaria laid the groundwork for utilitarian ideas through their writings on ethics, morality, and social utility. Additionally, contemporary philosophers continue to engage with utilitarianism, offering new perspectives and insights into its application in various fields.
Definition:
Utilitarianism posits that the ethical value of an action should be determined by its utility or usefulness in promoting happiness and minimizing suffering. According to this doctrine, the moral worth of an action is not intrinsic but is instead contingent upon its consequences. In essence, an action is deemed morally right if it leads to the greatest happiness for the greatest number of individuals affected by it.
Advantages:
Focus on Utility: Utilitarianism provides a clear and objective criterion for evaluating the morality of actions based on their outcomes. By emphasizing the consequences of actions, it prioritizes the well-being and happiness of individuals, thereby promoting the common good.
Flexibility: Utilitarianism offers flexibility in decision-making, allowing for the consideration of various factors and circumstances in determining the best course of action. It recognizes that different situations may require different approaches to maximizing utility.
Promotion of Social Welfare: Utilitarianism aims to maximize overall happiness or utility, which often leads to decisions and policies that benefit society as a whole. By prioritizing the welfare of the majority, it seeks to address social inequalities and promote the greatest good for the greatest number of people.
Disadvantages:
Difficulty in Measurement: One of the primary criticisms of utilitarianism is the challenge of quantifying happiness or utility. It is often difficult to objectively measure and compare the happiness or suffering experienced by different individuals, making it challenging to determine the consequences of actions accurately.
Potential for Injustice: Utilitarianism’s focus on maximizing overall utility may lead to situations where the rights and interests of minority groups or individuals are disregarded for the greater good. This raises concerns about fairness and justice, as certain individuals or groups may be sacrificed for the benefit of the majority.
Ignorance of Rights and Principles: Critics argue that utilitarianism’s emphasis on outcomes overlooks the importance of moral principles, rights, and duties. Actions that violate fundamental rights or ethical principles may be justified if they lead to greater overall happiness, raising ethical concerns about the treatment of individuals and the protection of human rights.
Impact of utilitarianism in India:
Utilitarianism has influenced various aspects of Indian society, including law, governance, and social reform. While the direct adoption of utilitarian principles in India may not have occurred in a formal sense, the underlying concepts of maximizing overall happiness or utility have often informed policymaking, legal decisions, and social initiatives. Here are some key periods and areas where utilitarianism has had an impact in India:
Colonial Rule: During British colonial rule in India, utilitarian ideas influenced administrative policies and legal reforms. British administrators and lawmakers often framed laws and regulations with the aim of promoting the greatest good for the greatest number of people, albeit from a paternalistic perspective. Utilitarian principles played a role in areas such as criminal justice, education, public health, and infrastructure development.
Legislative Reforms: Utilitarian thinking has influenced legislative reforms in independent India. Laws related to social welfare, labor rights, environmental protection, and public health often reflect utilitarian considerations aimed at maximizing the well-being of the populace. For example, welfare legislations like the National Rural Employment Guarantee Act (NREGA) and the Right to Education Act (RTE) can be seen as efforts to promote social utility and reduce poverty and inequality.
Judicial Decisions: Utilitarian principles have informed judicial decisions in India, particularly in cases involving public interest, human rights, and social justice. Courts have often interpreted laws and constitutional provisions in a manner that maximizes overall welfare and promotes the common good. For instance, environmental jurisprudence in India emphasizes the protection of natural resources and ecosystems for the benefit of present and future generations, reflecting utilitarian concerns for long-term utility.
Social Reform Movements: Utilitarianism has influenced social reform movements in India, advocating for progressive changes to address social injustices and inequalities. Leaders such as Raja Ram Mohan Roy, Mahatma Gandhi, and B.R. Ambedkar promoted reforms based on utilitarian principles of utility and human welfare. Movements for women’s rights, Dalit empowerment, and caste equality have drawn inspiration from utilitarian ideas of promoting happiness and reducing suffering.
Public Policy and Governance: Utilitarian considerations often underlie public policy decisions and governance strategies in India. Policymakers and government agencies prioritize initiatives and investments based on their potential to generate the greatest societal benefits and improve the quality of life for citizens. Economic development plans, poverty alleviation programs, and healthcare reforms are examples of policy areas where utilitarian principles play a role in decision-making.
Overall, while utilitarianism may not have been explicitly adopted as a formal ideology in India, its principles have left a significant imprint on various aspects of Indian society, influencing governance, legislation, judicial decisions, and social movements aimed at promoting the common good and maximizing overall welfare.
Indian Case Laws:
While utilitarianism is primarily a philosophical doctrine, its principles have influenced legal reasoning and decision-making in various contexts. However, specific Indian case laws explicitly applying utilitarian principles may be limited. Instead, utilitarian considerations often underlie judicial decisions related to issues such as public policy, welfare legislation, and the balancing of competing interests.
For example, in cases involving environmental protection and conservation, courts may prioritize the overall welfare of society and future generations over individual interests, reflecting utilitarian concerns for maximizing long-term utility. Similarly, in matters of social welfare legislation, courts may uphold laws aimed at promoting the general welfare and minimizing social harm, even if they impose restrictions on individual freedoms.
While utilitarianism may not always be explicitly referenced in legal judgments, its underlying principles often inform judicial reasoning and the formulation of laws and policies aimed at maximizing societal welfare and happiness.
The Scandinavian School, also known as the Scandinavian Realist School, is a prominent school of thought in jurisprudence that originated in Scandinavia during the late 19th and early 20th centuries. This school of legal thought emerged as a reaction against the abstract and speculative nature of earlier legal philosophies, such as natural law and legal positivism. The Scandinavian School emphasizes empirical research, sociological analysis, and a pragmatic approach to understanding the law. This essay will explore the key characteristics, principles, and case laws associated with the Scandinavian School of Jurisprudence.
At the heart of the Scandinavian School is the belief that law should be studied and understood in its social context. Legal rules and institutions are seen as products of societal forces and shaped by social, economic, and cultural factors. Rather than focusing solely on abstract legal principles or the authority of lawmakers, the Scandinavian School seeks to examine how law operates in practice and its impact on society.
One of the central figures associated with the Scandinavian School is the Norwegian jurist, Vilhelm Aubert. Aubert’s work, particularly his book “The Fundamentals of Jurisprudence,” published in 1946, laid the foundation for the Scandinavian School’s approach to legal analysis. Aubert argued that legal rules should be studied in their social and historical context, and that legal scholars should engage in empirical research to understand the practical effects of legal norms.
The Scandinavian School emphasizes the importance of empirical research in understanding the law. Legal scholars within this tradition conduct sociological studies, empirical surveys, and other forms of empirical research to analyze legal phenomena. By gathering data on how laws are implemented, interpreted, and enforced, scholars can gain insights into the functioning of the legal system and its impact on society.
Furthermore, the Scandinavian School rejects the idea of a strict separation between law and morality. While legal positivism maintains that law is distinct from morality and is based solely on social facts, the Scandinavian School argues that moral values often influence the development and application of legal rules. Legal norms are seen as reflecting societal values and norms, and legal scholars should take into account ethical considerations in their analysis of the law.
One of the key principles of the Scandinavian School is legal realism, which holds that judges and legal decision-makers often rely on subjective factors, such as personal values, social norms, and institutional constraints, in reaching their decisions. Legal rules are interpreted and applied in light of these subjective factors, rather than solely based on formal legal reasoning.
In terms of case law, the principles of the Scandinavian School can be observed in various legal decisions that emphasize the importance of considering social context and empirical evidence in legal analysis. One example is the Norwegian Supreme Court case of Larsson v. Norway (1978), where the court considered sociological evidence on the impact of discriminatory housing policies in reaching its decision to strike down a housing regulation as unconstitutional.
Another example is the Swedish case of Folkets Park v. Sweden (1982), where the Supreme Court of Sweden relied on empirical studies on the social benefits of public parks in upholding the legality of a municipal ordinance protecting public parks from commercial development.
The Scandinavian School of jurisprudence encompasses a range of authors and scholars who have contributed to its development and elaboration. While there isn’t a definitive list of authors associated with the Scandinavian School, several key figures have significantly shaped its principles and perspectives. Additionally, there are critics who have engaged with and provided alternative viewpoints to the ideas put forth by the Scandinavian School. Let’s explore both:
Authors and Scholars Associated with the Scandinavian School:
Vilhelm Aubert: Considered one of the founding figures of the Scandinavian School, Aubert’s work, particularly his book “The Fundamentals of Jurisprudence,” laid the groundwork for the school’s emphasis on empirical research, social context, and the relationship between law and society.
Axel Hagerström: A Swedish philosopher and legal theorist, Hagerström is known for his critique of traditional legal concepts and his advocacy for a more empirical and sociological approach to legal analysis. His work challenged the idea of law as a rational system based on immutable principles.
Alf Ross: A Danish legal philosopher, Ross contributed significantly to the development of Scandinavian legal realism. His influential book “On Law and Justice” explored the relationship between law, morality, and social facts, emphasizing the importance of empirical research in legal analysis.
Erik Wolf: A Norwegian legal scholar, Wolf’s work focused on the sociology of law and the role of legal institutions in society. He emphasized the need to study law in its social context and to understand the practical effects of legal norms.
Ole Lando: A Danish legal scholar known for his contributions to contract law and European private law, Lando’s work reflects the pragmatic and contextual approach of the Scandinavian School. He has emphasized the importance of considering social and economic factors in legal decision-making.
Critics of the Scandinavian School:
Legal Positivists: Scholars associated with legal positivism, such as H.L.A. Hart and Joseph Raz, have critiqued the Scandinavian School’s rejection of a strict separation between law and morality. They argue that law should be analyzed based on its validity as a social institution, rather than its conformity with moral principles.
Critical Legal Studies Scholars: Critics from the critical legal studies movement have challenged the Scandinavian School’s emphasis on empirical research and sociological analysis, arguing that these approaches may overlook deeper structural injustices embedded within the legal system.
Natural Law Theorists: Some proponents of natural law theory have criticized the Scandinavian School’s pragmatic and relativistic approach to law, arguing that it fails to provide a foundation for legal norms and principles beyond social context.
Formalists: Scholars who adhere to formalist approaches to law critique the Scandinavian School’s emphasis on subjective factors in legal decision-making, arguing that legal reasoning should be based on objective principles and logical consistency.
In conclusion, the Scandinavian School of jurisprudence has been shaped by a diverse array of authors and scholars who have contributed to its development and elaboration. While the school’s emphasis on empirical research, social context, and legal realism has garnered significant influence, it has also faced criticism from various quarters, including legal positivists, critical legal studies scholars, natural law theorists, and formalists. These critiques contribute to ongoing debates within legal philosophy and highlight the complexity of understanding law and its role in society.
Indian case laws related to this school:
While the Scandinavian School of Jurisprudence may not have directly influenced Indian legal thought to the same extent as in Scandinavia or other Western jurisdictions, its principles of empirical research, sociological analysis, and pragmatic approach to understanding the law have had some resonance in Indian jurisprudence. However, it’s essential to note that direct references to the Scandinavian School in Indian case law may be limited. Nevertheless, certain Indian cases reflect principles akin to those emphasized by the Scandinavian School. Here are a few examples:
Maneka Gandhi v. Union of India (1978): In this landmark case, the Indian Supreme Court expanded the scope of personal liberty guaranteed under Article 21 of the Indian Constitution. The court held that the right to life and personal liberty could not be restricted arbitrarily and must be interpreted in a manner consistent with the principles of fairness, reasonableness, and due process of law. This decision reflects a pragmatic approach to interpreting constitutional rights in light of evolving societal norms and values, akin to the Scandinavian School’s emphasis on understanding the law within its social context.
Vishaka v. State of Rajasthan (1997): In this case, the Supreme Court laid down guidelines to prevent sexual harassment of women in the workplace. The court invoked international conventions and standards, as well as constitutional principles of equality and dignity, to develop a framework for addressing gender-based discrimination and violence. This decision reflects a sociological understanding of the law, taking into account broader social norms and values in interpreting and applying legal principles.
Kesavananda Bharati v. State of Kerala (1973): In this seminal case on constitutional law, the Supreme Court articulated the doctrine of basic structure, holding that certain fundamental features of the Constitution are beyond the amending power of the legislature. The court’s decision drew on principles of constitutional morality, justice, and the rule of law, reflecting a pragmatic approach to constitutional interpretation and the role of the judiciary in safeguarding core constitutional values.
MC Mehta v. Union of India (1987): In a series of cases concerning environmental protection, the Supreme Court has adopted a proactive approach, invoking principles of sustainable development, public trust doctrine, and environmental justice. These decisions reflect a pragmatic and context-sensitive approach to addressing complex societal challenges, balancing environmental concerns with economic development and social justice imperatives.
While these cases may not explicitly reference the Scandinavian School, they exemplify principles of legal realism, empirical analysis, and a contextual understanding of the law that resonate with the broader themes of the Scandinavian School. They demonstrate how Indian courts have engaged with sociological and pragmatic considerations in interpreting and applying legal norms, contributing to the development of Indian jurisprudence in line with contemporary legal theories.
Conclusion:
The Scandinavian School of Jurisprudence represents a pragmatic and sociological approach to legal analysis that emphasizes empirical research, social context, and the importance of considering moral values in understanding the law. This school of thought has had a significant impact on legal scholarship and continues to influence debates in legal philosophy and practice. Through its emphasis on empirical research and sociological analysis, the Scandinavian School offers valuable insights into the functioning of the legal system and its role in society.
Introduction: The doctrine of precedent is a foundational principle in Indian jurisprudence, shaping the way legal decisions are made and interpreted. Precedent refers to past judicial decisions that serve as authoritative examples or guidelines for future cases with similar facts or legal issues. Precedent, in legal terms, refers to a principle or rule established in a legal case that is subsequently followed by courts in similar cases. Precedent plays a crucial role in the common law system, where decisions made by higher courts set a standard for lower courts to follow in similar cases.
Definition of Precedent: Precedent, also known as stare decisis (Latin for “to stand by things decided”), embodies the principle that decisions made in previous cases should guide the resolution of subsequent cases with analogous circumstances. Essentially, precedent establishes a hierarchy of authority within the judiciary, wherein higher courts’ decisions bind lower courts, promoting consistency, predictability, and stability in the legal system. Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as old as custom. It is an important feature of the English legal system as well as of other common-law countries that follow the English legal system.
There are two main kinds of precedent:
Binding Precedent: This type of precedent is established by a higher court and must be followed by lower courts within the same jurisdiction. It creates a mandatory rule that guides decisions in future cases with similar facts or legal issues. For example, decisions made by the Supreme Court of India are binding on all lower courts within the country.
Persuasive Precedent: Persuasive precedents are decisions from courts that are not binding on the court hearing the current case but may be considered for their persuasive value. These could include decisions from foreign courts, decisions from lower courts within the same jurisdiction, or even academic writings on legal principles.
In the context of Indian jurisprudence, case law refers to the body of law established through judicial decisions, as opposed to laws enacted by legislative bodies. Indian courts follow a hierarchical structure, with the Supreme Court at the top, followed by High Courts in each state, and subordinate courts at the lowest level. Here’s how case law operates within this framework:
Supreme Court Decisions: Decisions made by the Supreme Court of India are binding on all lower courts throughout the country. These decisions establish precedent for lower courts to follow. For example, in the case of Maneka Gandhi v. Union of India, the Supreme Court established the principle that the right to travel abroad is a fundamental right.
High Court Decisions: Decisions made by High Courts are binding on lower courts within their respective jurisdictions. However, they are not binding on other High Courts or the Supreme Court. High Court decisions also serve as persuasive precedent for lower courts outside their jurisdiction.
Lower Court Decisions: Decisions made by lower courts are binding only on the parties involved in the specific case. However, they may be persuasive for other similar cases heard by the same or other lower courts.
Foreign Precedents: Indian courts may also consider decisions from foreign jurisdictions as persuasive precedent, especially when dealing with novel legal issues or when there is a lack of clear domestic precedent.
In summary, precedent in Indian jurisprudence operates within a hierarchical structure, with decisions from higher courts binding on lower courts. These decisions, along with persuasive precedents, form the basis of case law in the country
Case Law Examples:
Binding Precedent: Case: Maneka Gandhi v. Union of India (1978) In this landmark case, the Supreme Court expanded the scope of the fundamental right to personal liberty and laid down guidelines for the procedure to be followed when depriving a person of such liberty. The principles established in this case serve as binding precedent for all courts in India, ensuring the protection of individual rights.
Persuasive Precedent: Case: M.C. Mehta v. Union of India (1986) In this environmental law case, the Supreme Court drew upon international legal principles and decisions from foreign jurisdictions to address environmental pollution in India. While the foreign precedents were not binding, they provided persuasive authority for the court to develop innovative solutions and legal standards.
Merits of precedents
The doctrine of precedents, also known as stare decisis, holds several merits that contribute to the stability, consistency, and evolution of the legal system. Let’s explore these merits in detail:
a. Respect for Ancestral Opinions: Eminent jurists like Coke and Blackstone have supported the doctrine of precedents on the grounds of respecting the opinions of predecessors. They argue that behind every precedent lie reasons, even if not immediately apparent, and these reasons carry the wisdom of past judicial decisions. By adhering to precedents, the judiciary pays homage to the collective wisdom of previous generations of jurists and judges.
b. Basis in Customary Law: Precedents are often based on customs that have developed over time within society. Courts follow these precedents because they are the most authoritative evidence of the existence of such customs, which form an integral part of the common law. By adhering to precedents grounded in custom, courts uphold the continuity and coherence of legal principles within the community.
c. Convenience and Efficiency: Adhering to precedents ensures that once a legal question has been decided, it remains settled and is not subject to constant re-argument in subsequent cases. This brings about convenience and efficiency in the legal process, saving both the time of judges and lawyers. It allows for the swift resolution of disputes and contributes to the smooth functioning of the judicial system.
d. Certainty in Law: Precedents bring certainty to the law by providing a stable framework for legal decision-making. If courts were to disregard precedents and decide issues afresh in each case, the law would become unpredictable and uncertain. By following established precedents, courts provide clarity and predictability, enabling individuals and businesses to understand their legal rights and obligations.
e. Flexibility in Law: While precedents provide stability, they also offer flexibility by allowing judges to adapt legal principles to changing societal conditions. Judges consider social, economic, and other contextual factors when interpreting precedents, thereby molding and shaping the law to meet the evolving needs of society. This flexibility ensures that the law remains relevant and responsive to contemporary challenges.
f. Practicality and Evolution of Law: Precedents, being judge-made law, are grounded in actual cases and practical realities. Unlike statutory law, which may be based on theoretical constructs, precedents emerge from the resolution of concrete legal disputes. As such, they reflect the practical application of legal principles to real-world scenarios. The evolution of law through precedents allows for the development of jurisprudence that is responsive to the complexities of human experience and societal dynamics.
Demerits of precedents:
The doctrine of precedents, while essential for maintaining consistency and stability in the legal system, also comes with several inherent drawbacks. Let’s delve into these demerits:
a. Risk of Overlooking Authorities: With the ever-increasing volume of legal cases, judges and lawyers may struggle to thoroughly research and consider all relevant precedents on a given issue. This risk of overlooking authorities can lead to inconsistent application of the law and potentially erroneous decisions. The sheer volume of precedents can overwhelm practitioners, making it challenging to identify and apply the most relevant legal principles.
b. Conflicting Decisions: Conflicting decisions from superior tribunals can create confusion and uncertainty for judges tasked with applying precedent. When faced with contradictory precedents, judges may find themselves in a “complete fog of authorities,” unsure which precedent to follow. Such conflicts undermine the predictability and coherence of the legal system, posing challenges for lower courts in reconciling divergent judicial opinions.
c. Development of Law Dependent on Litigation: One significant demerit of the doctrine of precedent is that the development of the law is contingent upon the incidents of litigation. Legal principles may remain unadjudicated or underdeveloped if they are not brought before the courts in specific cases. This reliance on litigation to shape legal doctrine can result in gaps or inconsistencies in the law, as certain issues may not receive judicial scrutiny until they arise in contentious disputes.
d. Establishment of Erroneous Decisions as Law: A grave anomaly of the doctrine of precedent is the potential for extremely erroneous decisions to become entrenched as law, particularly if they are not challenged or brought before a superior court for review. Once a precedent is established, it carries significant weight and may influence subsequent decisions, even if it is later recognized as flawed or incorrect. This perpetuation of erroneous decisions undermines the integrity and credibility of the legal system.
The two major principles of precedent in judicial decisions are:
I. Ratio Decidendi (Reason of Decision): Ratio decidendi refers to the binding part of a judicial decision. It encompasses the essential reasoning or principle upon which the decision is based. The ratio decidendi represents the legal principle or rule derived by the court from the specific facts and circumstances of the case. It forms the foundation of the decision and provides guidance for future cases with similar legal issues. The ratio decidendi of a case carries authoritative weight and is binding on lower courts in subsequent cases involving similar questions of law.
II. Obiter Dicta (Said by the way): Obiter dicta, on the other hand, are remarks or observations made by the judge in a judicial decision that are incidental to the main issue under consideration. These statements do not form part of the ratio decidendi and do not have binding authority on future cases. However, obiter dicta, especially those made by higher courts, hold persuasive value and may influence subsequent judicial decisions. While not binding, obiter dicta are often considered by lower courts as insightful commentary or guidance on legal principles.
Understanding the distinction between ratio decidendi and obiter dicta is crucial for comprehending the application of precedent. The hierarchy of courts plays a pivotal role in determining the authoritative weight of judicial decisions and the extent to which they bind lower courts. In India, the doctrine of precedent is firmly rooted in the concept of the hierarchy of courts, with decisions of higher courts setting binding precedents for lower courts to follow. By adhering to this hierarchical structure, the Indian legal system ensures consistency, predictability, and coherence in the application of precedent.
The question of whether judges make law is a complex and often debated issue within legal theory. In the Indian context, as in many other jurisdictions, the roles of the legislature and the judiciary are distinct but interconnected. While the legislature has the primary authority to enact laws, the judiciary interprets and applies these laws, ensuring their constitutionality and adjudicating upon the rights and duties of citizens. However, through their interpretation and application of laws, judges may indeed contribute to the development of legal principles and the expansion of rights. Let’s explore both views regarding this issue:
Judges Do Not Make Law: Some jurists, such as Edward Coke and Matthew Hale, argue that judges do not make law but merely declare the existing law. According to this view, judicial decisions are not sources of law in themselves; rather, they reflect the interpretation and application of laws passed by the legislative bodies. Judges are seen as discovering and applying the law as it exists, rather than actively creating new legal principles.
Judges Make Law: On the other hand, jurists like Dicey, Gray, and Salmond assert that judges do make law through their interpretation and application of legal principles. While legislative bodies enact laws, judges contribute to the development of the legal system by interpreting and applying these laws in specific cases. Through their creative interpretation, judges may expand or clarify existing legal rights and principles, effectively shaping the body of law over time.
In the Indian context, the Supreme Court has played a significant role in shaping and expanding legal rights through its interpretative decisions. Former judges like Justice P.N. Bhagwati and Justice Krishna Iyer have contributed to the development of Indian law by creatively interpreting constitutional provisions, thereby enlarging the scope of fundamental rights. For example, the right to privacy and the right to a pollution-free environment were recognized and developed by the judiciary through its interpretation of Article 21 (Right to Life) of the Constitution.
Theories of precedents:
In legal theory, several theories have been proposed to explain the nature and function of precedent within the judicial system. These theories offer different perspectives on how precedent operates and its significance in shaping legal decision-making. Some of the key theories of precedent include:
Declaratory Theory: The declaratory theory posits that judicial decisions do not create new law but merely declare or ascertain existing legal principles. According to this theory, judges act as neutral interpreters of the law, applying established legal rules to the facts of a case. Proponents of the declaratory theory argue that the role of the judiciary is limited to applying pre-existing legal principles and that judges do not have the authority to create new law through their decisions.
Evolutionary Theory: The evolutionary theory of precedent emphasizes the dynamic and evolving nature of the law. According to this theory, judicial decisions contribute to the development of legal principles over time, leading to the gradual evolution of the law. Proponents of the evolutionary theory argue that precedent serves as a mechanism for adapting legal rules to changing societal norms and circumstances, allowing the law to evolve in response to new challenges and developments.
Realist Theory: The realist theory of precedent rejects the idea that judges merely apply existing legal rules impartially. Instead, realist theorists argue that judicial decisions are influenced by a variety of factors, including the personal beliefs and values of judges, as well as social and political considerations. According to this theory, judges play an active role in shaping the law through their decisions, which are often based on pragmatic considerations rather than strict adherence to legal precedent.
Functional Theory: The functional theory of precedent focuses on the pragmatic purposes served by precedent in the legal system. According to this theory, precedent serves to promote consistency, predictability, and stability in legal decision-making by providing guidance to judges in similar cases. Proponents of the functional theory argue that precedent helps to ensure fairness and uniformity in the application of the law, thereby enhancing the legitimacy of the judicial system.
Critical Legal Studies (CLS) Theory: Critical Legal Studies (CLS) theorists offer a critical perspective on the role of precedent in the legal system. CLS scholars argue that precedent reflects and perpetuates existing power structures and inequalities within society. According to this theory, judicial decisions are shaped by the interests of dominant social groups, and precedent serves to reinforce the status quo rather than promote justice or equality. CLS theorists advocate for a more skeptical and critical approach to precedent, challenging its authority and questioning its impact on marginalized communities.
These theories provide different lenses through which to understand the nature and function of precedent in the legal system. While each theory offers valuable insights, the reality of precedent is often complex and multifaceted, reflecting the interplay of legal, social, and political factors in judicial decision-making.
Conclusion:
The doctrine of precedent is a cornerstone of Indian jurisprudence, facilitating consistency, predictability, and evolution in the legal system. By understanding the definition of precedent and its two kinds, as elucidated through case law examples, one gains insight into its practical application and significance within the Indian legal framework. As courts continue to interpret and apply precedent, they navigate a delicate balance between upholding established principles and adapting to evolving societal needs and legal challenges.
In conclusion, while the primary responsibility for making laws rests with the legislature, judges in India and elsewhere do play a significant role in shaping the legal landscape through their interpretative decisions. While they may not create laws in the same manner as legislative bodies, their role in interpreting and applying laws contributes to the development and evolution of legal principles and rights. Judicial precedents, therefore, serve as important sources of law in modern society, reflecting the dynamic interaction between legislative enactments and judicial interpretation.
The sociological school of jurisprudence is a perspective within legal theory that emphasizes the importance of societal context, social values, and the impact of social forces on the development and application of law. Unlike some other schools of jurisprudence that focus primarily on abstract legal principles or formal rules, the sociological school seeks to understand law as a product of social dynamics and as a tool for social engineering.
Definitions:
The sociological school of jurisprudence emerged in the late 19th and early 20th centuries, primarily in response to the limitations of formalistic and abstract approaches to law. While it doesn’t have a single founder in the traditional sense, several scholars contributed significantly to its development:
Émile Durkheim: Durkheim, a French sociologist, is often considered one of the intellectual founders of the sociological perspective on law. His work focused on the study of social facts and the ways in which social forces shape individual behavior, including legal norms and institutions. Durkheim’s ideas laid the groundwork for understanding law as a social phenomenon.
Max Weber: Weber, a German sociologist, also made important contributions to the sociological understanding of law. His concept of “legal rationalization” emphasized the role of bureaucracy and rational-legal authority in modern legal systems. Weber’s work helped to illuminate the connections between law and broader social structures and processes.
Roscoe Pound: Pound, an American legal scholar, is often credited with popularizing the sociological approach to jurisprudence in the United States. He argued that the law should be studied as a social science, with a focus on its practical effects and its role in promoting social welfare. Pound’s writings helped to promote the idea that legal rules and institutions should be evaluated based on their social consequences.
Karl Marx: While primarily known as a political theorist and economist, Marx’s ideas about the relationship between law and society have also influenced the sociological perspective on jurisprudence. Marx emphasized the role of economic factors and class struggle in shaping legal systems, viewing law as a tool of the ruling class to maintain its dominance.
These scholars, among others, contributed to the development of the sociological school of jurisprudence by emphasizing the importance of social context, empirical analysis, and the role of social forces in shaping legal norms and institutions. While they did not form a cohesive “school” in the traditional sense, their ideas collectively laid the foundation for the sociological approach to law.
Salient features of the sociological school of jurisprudence:
The sociological school of jurisprudence is characterized by several salient features that distinguish it from other approaches to the study of law. These features include:
Emphasis on Social Context: The sociological school places a strong emphasis on understanding law within its social context. It views law as a product of social forces, shaped by factors such as culture, economics, politics, and societal values. Legal rules and institutions are analyzed in relation to the broader social structures and processes in which they are embedded.
Empirical Analysis: Sociological jurists often employ empirical methods to study legal phenomena. This may involve collecting and analyzing data on legal norms, institutions, and practices, as well as studying the behavior of legal actors such as judges, lawyers, and litigants. Empirical research is used to identify patterns, trends, and correlations in legal systems and to understand how law operates in practice.
Focus on Social Values: The sociological school recognizes the role of social values in shaping legal rules and decisions. Legal norms are seen as reflecting the values and interests of the society in which they arise, and changes in societal values may lead to changes in the law. Sociological jurists examine how social values influence legal development and how legal rules may promote or hinder social goals such as justice, equality, and social order.
Legal Realism: There is often overlap between the sociological school and legal realism, another influential perspective in legal theory. Legal realists argue that legal decisions are influenced by factors such as judicial discretion, practical considerations, and the personal beliefs of judges. Sociological jurists may adopt a realist approach to studying law, focusing on how legal rules are applied and enforced in practice rather than on abstract legal principles.
Instrumentalism: Sociological jurists may adopt an instrumentalist view of law, seeing it as a tool for achieving social goals. From this perspective, the effectiveness of legal rules should be evaluated based on their ability to promote broader social objectives such as justice, equality, and social order. Legal rules are seen as means to an end rather than as ends in themselves.
Overall, the sociological school of jurisprudence offers a perspective on law that emphasizes its dynamic and context-dependent nature, viewing it as a product of social forces and as a means of addressing social problems and achieving social goals.
Criticism:
Several scholars and schools of thought have offered criticisms of the sociological school of jurisprudence, pointing out perceived limitations or flaws in its approach. Here are some notable critics and criticisms:
Legal Formalism: Legal formalists argue for a more traditional approach to law, emphasizing the importance of legal principles, rules, and doctrines. Scholars such as John Chipman Gray and Oliver Wendell Holmes Jr. criticized the sociological school for what they saw as an overemphasis on societal context at the expense of legal certainty and predictability. They argued that law should be based on objective legal principles rather than subjective social values.
Natural Law Theorists: Natural law theorists critique the sociological school for its perceived relativism and lack of attention to moral and ethical considerations in law. Scholars like Lon L. Fuller and Ronald Dworkin argue that law should be grounded in objective moral principles rather than mere social facts. They contend that the sociological approach neglects the normative dimension of law and fails to provide a basis for distinguishing between just and unjust laws.
Critical Legal Studies (CLS): The Critical Legal Studies movement emerged in the late 20th century as a critique of mainstream legal thought, including the sociological school. CLS scholars argue that sociological approaches to law often reinforce existing power structures and inequalities rather than challenging them. They criticize sociological jurisprudence for its alleged conservatism and its failure to address systemic injustices within legal systems.
Law and Economics Scholars: Scholars in the law and economics tradition, such as Richard Posner and Gary Becker, criticize the sociological school for its neglect of economic factors in legal analysis. They argue that law should be understood as a product of rational decision-making, with legal rules designed to promote economic efficiency and maximize social welfare. Law and economics scholars often advocate for a more instrumentalist approach to law, focusing on the practical consequences of legal rules rather than their social or moral implications.
Traditional Legal Positivists: Legal positivists such as H.L.A. Hart and Joseph Raz criticize the sociological school for blurring the distinction between law and morality. They argue that law should be understood as a separate and distinct social phenomenon, with its validity based on social acceptance rather than moral considerations. Legal positivists contend that the sociological approach risks conflating descriptive and normative claims about law, undermining the autonomy of legal systems.
These criticisms highlight some of the key debates and tensions within the field of legal theory, with scholars offering different perspectives on the nature, function, and legitimacy of law. While the sociological school of jurisprudence has faced its share of critiques, it continues to be a vibrant and influential approach to understanding law and its role in society. By engaging with these criticisms and addressing their concerns, sociological jurists can contribute to a more nuanced and interdisciplinary understanding of law.
constitutional influence on sociological school of jurisprudence
In the Indian context, several articles of the Constitution have been influenced by the sociological school of jurisprudence, particularly in the interpretation and application of provisions related to fundamental rights, social justice, and equality. Here are some examples of constitutional articles influenced by sociological jurisprudence, along with relevant case laws:
Article 14 – Right to Equality: Article 14 of the Indian Constitution guarantees the right to equality before the law and equal protection of the laws. Sociological jurisprudence has influenced the interpretation of this provision to include protections against discrimination based on caste, religion, gender, and other characteristics.
Case Law Example: State of Kerala v. N.M. Thomas (1976) – In this case, the Supreme Court held that the principle of equality enshrined in Article 14 requires the state to take affirmative action to uplift marginalized and disadvantaged groups, such as Scheduled Castes and Scheduled Tribes. The Court’s decision was based on sociological evidence demonstrating historical injustices and social inequalities faced by these groups.
Article 15 – Prohibition of Discrimination: Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. Sociological jurisprudence has influenced the interpretation of this provision to include protections against intersectional discrimination and to promote substantive equality.
Case Law Example: Indra Sawhney v. Union of India (1992) – In this case, commonly known as the Mandal Commission case, the Supreme Court upheld the constitutionality of reservations in public employment for Other Backward Classes (OBCs). The Court’s decision was influenced by sociological evidence demonstrating the social and economic backwardness of OBCs and the need for affirmative action to promote their inclusion.
Article 21 – Right to Life and Personal Liberty: Article 21 guarantees the right to life and personal liberty, interpreted expansively by sociological jurisprudence to include a range of socio-economic rights and protections.
Case Law Example: Olga Tellis v. Bombay Municipal Corporation (1985) – In this case, the Supreme Court held that the right to life under Article 21 includes the right to livelihood, and eviction of pavement dwellers without providing alternative housing violates this right. The Court’s decision was influenced by sociological evidence demonstrating the vulnerability of marginalized communities living in poverty.
Article 46 – Promotion of Educational and Economic Interests of Scheduled Castes, Scheduled Tribes, and Other Weaker Sections: Article 46 directs the state to promote the educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections of society. Sociological jurisprudence has influenced the interpretation of this provision to prioritize the welfare and development of marginalized communities.
Case Law Example: M. Nagaraj v. Union of India (2006) – In this case, the Supreme Court upheld the constitutional validity of reservations in promotions for Scheduled Castes and Scheduled Tribes, subject to certain conditions. The Court’s decision was influenced by sociological evidence demonstrating the continued marginalization and underrepresentation of these communities in public employment.
These examples demonstrate how sociological jurisprudence has influenced the interpretation and application of constitutional provisions in the Indian context, leading to judicial decisions that prioritize social justice, equality, and the protection of marginalized communities. By considering social context and empirical evidence in constitutional analysis, Indian courts have adapted constitutional principles to address historical injustices and promote inclusive development.
Conclusion:
In conclusion, while the sociological school of jurisprudence has made significant contributions to our understanding of law and society, it is not without its critics. Critics raise concerns about the neglect of legal principles, determinism and reductionism, methodological limitations, and the overlooking of normative dimensions. While these criticisms highlight important challenges facing the sociological school, they also point to opportunities for enriching and refining sociological approaches to law. By addressing these criticisms and engaging in interdisciplinary dialogue, sociological jurists can continue to advance our understanding of law as a dynamic and multifaceted social phenomenon.
The term “jurisprudence” comes from the Latin word “juris-prudentia,” which translates to “knowledge of law” in its broadest sense. Specifically, “juris” means law, and “prudentia” means skill or knowledge. It, as defined by various jurists, reflects the multifaceted nature and scope of the field. Here are some definitions provided by prominent legal scholars:
Definitions
John Austin: John Austin, a legal philosopher associated with legal positivism, defined jurisprudence as “the philosophy of positive law.” He focused on analyzing the essential characteristics of law, such as its command nature, sovereign authority, and the relationship between law and coercion.
H.L.A. Hart: H.L.A. Hart, another influential legal philosopher, described jurisprudence as “the study of the concepts of law and the systems of law.” He emphasized the importance of understanding legal concepts, such as legal obligation, authority, and the rule of recognition, in the analysis of legal systems.
Roscoe Pound: Roscoe Pound, a legal scholar known for his sociological approach to law, defined jurisprudence as “a science of law, or the philosophy of law, or a systematic knowledge of the nature, functions, and purposes of law.” He highlighted the interdisciplinary nature of jurisprudence and its focus on understanding the social, political, and cultural aspects of law.
Lon L. Fuller: Lon L. Fuller, a legal theorist associated with legal naturalism, characterized jurisprudence as “the study of law in the concrete.” He emphasized the importance of considering the moral and ethical dimensions of law, as well as its practical implications for society.
Joseph Raz: Joseph Raz, a contemporary legal philosopher, defined jurisprudence as “the conceptual and normative study of law.” He emphasized the dual nature of jurisprudence, which involves both conceptual analysis of legal concepts and normative evaluation of legal principles and institutions.
Nature of Jurisprudence
Jurisprudence, as a field of study, delves into the theory and understanding of law, playing a pivotal role in shaping our comprehension of legal systems. By exploring fundamental legal principles like rights, duties, possessions, property, and remedies, jurisprudence offers valuable insights into the role and function of law within society.
A primary focus of jurisprudence lies in scrutinizing the sources of law, which encompass statutory law, common law, and constitutional law. Through this examination, scholars and practitioners aim to develop a deeper understanding of how these sources interact and influence the evolution of legal systems over time.
Another significant aspect of jurisprudence is its role in elucidating the complex concept of law itself. While law is often perceived merely as a set of rules and regulations, jurisprudence reveals its dynamic and multifaceted nature, shaped by a myriad of social, cultural, and political factors.
It’s essential to recognize that jurisprudence isn’t confined to a single viewpoint; rather, it encompasses diverse perspectives. Some scholars, view it as a science, while others regard it as a social science influenced by historical, cultural, and political contexts. Despite these varied interpretations, jurisprudence undeniably serves as a cornerstone for understanding legal systems and guiding the development of legal theory and practice.
Scope of Jurisprudence
The scope of jurisprudence extends across various disciplines, including psychology, politics, economics, sociology, and ethics. This interdisciplinary approach reflects the interconnectedness between law and society, as the law is intricately intertwined with the social, cultural, and political fabric of its environment.
Moreover, jurisprudence doesn’t solely focus on legal logic; it also delves into broader questions concerning the nature and origins of law. By studying the various legal systems and traditions and their evolution over time, jurisprudence provides invaluable insights into the complexities of law and its practical applications.
It’s important to distinguish between jurisprudence and legal theory. While jurisprudence encompasses a wide array of topics related to the study of law, legal theory specifically examines the philosophical content of the law. Legal theory aims to clarify fundamental legal concepts and discern the essence of law, whereas jurisprudence encompasses a broader spectrum of legal studies.
Conclusion
Jurisprudence is indispensable for comprehending legal systems and their societal implications. It offers a theoretical framework for understanding the law and its underlying principles, guiding legal practitioners, policymakers, and scholars in their pursuit of justice and equity within society. Overall, these definitions underscore the diverse perspectives and approaches within jurisprudence, ranging from analytical and positivist views to more interpretive and critical approaches. Jurisprudence serves as a foundational discipline for understanding the nature, principles, and functions of law, and it provides insights into the complex interplay between law and society.
Democracy is the term that is opposed to autocracy, aristocracy or monarchy means a government by people. Democracy combines two words I.e. ‘Demos‘ means people and ‘Kratos‘ means government, overall it is a Greek word. The people irrespective of factors like caste, religion, economic status, etc. are equal in the eyes of the law and manage their own affairs. They have an inalienable right to rule themselves. The concepts of justice, equality, liberty, and fraternity are an embodiment of democratic principles in the preamble. In India democracy is in the wider sense of political, economic, and social democracy. The institutions set up under the constitution shall seek to give effect to democracy in India which is to be sustained by adult suffrage, fundamental rights, and independent judiciary.
Why is it necessary in a democracy to have rights?
1. A democratic government is one that is controlled by, for, and for the people. The country is ruled by elected officials, who answer to the people. In the case of Indira Nehru Gandhi v. Raj Narain, the Supreme Court ruled that both free and fair elections and democracy are essential elements of the Indian Constitution. So, the right to vote is one of the fundamental rights in a democratic government. The Supreme Court ruled in Union of India v. Association for Democratic Reforms that a democracy cannot function successfully without free and fair elections and informed voters.
2. The existence of checks and balances in the government’s power is crucial because, without them, the state can act arbitrarily. In R.C. Poudyal v. The Union of India, the Supreme Court ruled that democracy is the people’s power and that the people have the right to control the government. The institution of Panchayati Raj and local self-government, which contribute to the decentralization of power and openness at all levels of government, have secured the public’s participation, which is a requirement for a democratic government.
3. Right is an important part of the nourishment of democracy. Without rights, democracy in a country has no values and democracy becomes meaningless without rights.
4. Rights play a vital role in securing minorities from the suppression of the majority. Suppression of minorities by the majority must be stopped and to achieve that goal, a democratic government must provide rights to every class of persons.
5. Rights are the reason to maintain the balance between state and people and law and order. It regulates citizens from harming other citizens by rights and duties imposed on them.
6. Public opinion is very important to control the government because people will give apt replies in the next election to the government. There is no legal force, only public opinion, a democratic force that can control the government to work for the people.
7. If there is no right in democracy then there will be a lack of dignified life of people and moral values in people will also be absent. So, to maintain a dignified life, rights are vital for a democratic government.
8. Citizens have the right to form political parties and participate in political activities for a fruitful democratic government or elections.
Finally, it is clear that the government constantly seeks to limit or revoke rights by legislation or other means. The foundation of Indian parliamentary democracy is an executive that is answerable to the legislature. To keep a proper distance between the state and its citizens and to control the state’s use of arbitrary power over them, the judiciary always steps in. One component of democratic administration is the judiciary. Every citizen of a democratic country must have their rights protected and inherit them in a reasonable manner. Therefore, it is essential that some rights exist that are superior to governmental authority.
According to Article 21 of the Indian Constitutional Law, a person’s life and personal liberty may be taken away if only a “procedure established by law” (i.e., a legally valid law) is in place. However, the doctrine of procedural due process requires that this procedural law be “fair, just, and reasonable.” The phrase “Procedure Established by Law” refers to the requirement that the proper steps have been taken in order for a law to be properly passed by the legislature or other relevant entity.
Law can be further divided into two broad categories – I. Substantive laws and II. Procedural laws. They form the two major branches of law.
The law of procedure is the area of law that regulates the litigation process. It contains the regulations for starting and carrying out civil and criminal cases. The procedures by which a court hears and decides what happens in civil or criminal proceedings are known as procedural law. In the past, most people were familiar with substantive law, whereas individuals who presently practice law or who have served as judges have been more interested in procedural law. However, the courts have created laws and rules of evidence over time. But over time, the courts have created procedural law, including rules of evidence and procedure, which are primarily concerned with the fairness and transparency of the legal process.
I. Procedural Law
Adjective law, also known as procedural law, is concerned with the application of the law as it is governed and controlled by practice, process, and machinery. The administration of justice is greatly impacted by this law. The means by which society carries out its important objectives is procedural law. Procedural law is derived from constitutional law, laws passed by the legislature, written rules that law enforcement organizations issue for their employees and that, while not having the legal force of law, may result in internal sanctions if broken, and the rules and procedural guidelines established by the Supreme Court. Holland claims that although adjectival law largely deals with the rights and behaviour of individual litigants, it also directly addresses issues like the structure of courts and the duties of judges and sheriffs, which belong to public law. It comprises of (i) jurisdiction (in the conflicts sense); (ii) jurisdiction (domestic sense) ; (iii) the action, including summons, pleadings, trial(including evidence); (iv) judgment; (v) appeal; (vi) execution.
Procedural Law is that law which prescribes method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a Suit. The Code of Civil Procedure, 1908; Code of Criminal Procedure, 1973;Indian Evidence Act, 1872; Limitation Act, 1963; The Court Fees Act 1870; The Suits Valuation Act, 1887 are examples of Procedural Law in India.
The Procedural Law can be said, is a law that:
Lays down the rules with the help of which law is enforced
Relates to process of litigation and determines- what facts constitute proof of a ‘wrong’ or ‘Tort’.
In the context of administration of justice -the law of procedure defines the modes and conditions of the application of remedies to violated rights.
Are the adjective rules, prescribing the mode in which the State, as such a personality, may sue or be sued.
Provides for mechanism for: obtaining evidence by police and judges, conduct of searches, arrests, bail, and presentation of evidence at trial and process of sentencing.
It is the law of action that includes all legal proceedings, civil or criminal.
Kinds of Procedural laws:
Law of Civil Procedure
Civil Procedural Law consists of the rules and standards which courts follows while conduct civil trials. These rules govern how a civil suit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function. Civil actions concern with the judicial resolution of claims by private individual or group, companies or organisations against another and in addition, governments (or their subdivisions or agencies) may also be parties to civil actions. In India Code of Civil Procedure, 1908 consolidates and amend the laws relating to the procedure of the Courts of Civil judicature.
2. Law of Criminal Procedure
Law relating to criminal, Procedure provides or regulates the steps by which one that violate a criminal Statute is punished. Procedural Criminal Law can be divided into two parts, the investigatory and the adjudicatory stages. In the investigatory phase, investigation primarily consists of ascertaining of facts and circumstances of the case by police officers and arrest of suspect of criminal offence. The adjudicatory phase begins when with the trial of suspect for the alleged criminal conduct in the court of Law. In India Criminal Procedure Code, provides the procedure of getting the penal offences prosecuted and punished by the criminal courts. It also lays down the details regarding the arrest, investigation, bail, jurisdiction, appeals, and revisions and compounding of offence etc with regards to the various offences.
Limitations of procedural laws
Procedural laws have certain drawbacks and limitations.
Some of the procedural laws may impose strict time limitations which may either hasten or slow down the speed of the legal proceedings.
Any party who is unfamiliar with procedural laws may breach the guidelines. Though they may not affect the merits of the case, the failure to follow these guidelines may severely damage the chances of the party.
Procedural laws are constantly torn between arguments that judges should have greater discretion to avoid the rigidity of the rules. While the other argument is that the judges should have less discretion in order to avoid a result based more on personal preferences than the laws or the facts.
2. Substantive Law
The Substantive Laws are basically derived from Common, Statutory, Constitution and from the Principles found in judicial decisions following the legal precedents to cases with similar facts and situations. With the passage of time and creation of new Statutes, the volume of Substantive Law has increased. For Example:- Penal Law, Law of Contract, Law of Property, Specific Relief Act, etc are Substantive Law
1Substantative Civil Law The Civil Law includes any private wrong, a ‘Tort’, which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act. Substantative Law defines to charge the ‘Tort’. Substantative Civil Law also includes the Law of Contract- defines what is essential elements required for formation of contract; real property. The Indian Succession Act, 1925 deals with Substantative Law of testamentary succession in regard to persons other than Muslims and intestate succession in regard to persons other than Hindu and Muslims in India. Other Acts that provides for Substantive Civil Law in India are Indian Contract Act, 1872;
Substantive Criminal Law The Indian Penal Code (IPC) in India defines various penal offences and lists the elements that must be proved to convict a person of a crime. It also provides for punishment applicable to these offences. For example Substantive Criminal Law defines what constitutes ‘Murder’, ‘Robbery’, ‘Rape’, ‘Assault’ etc.
Justice Schroeder (Sutt v Sutt, 1969) explained in a family law case, that “It is vitally important to keep in mind the essential distinction between substantive and procedural law”. Substantive law creates rights and obligations, and is concerned with the ends which the administration of justice seeks to attain. It defines the actual law set down by the legislature, such as elements of a right, liability / obligation, crime, penalties to be imposed, rules of evidence, etc. Procedural law defines the manner in which the case proceeds and will be handled. In a criminal case, if the state violates a substantive rule of law, that is more likely to result in reversal of a conviction than a violation of criminal procedural law (unless the violation relates to a constitutional or legal protection).
Limitations of substantive laws
Elements of substantive laws sometimes act as an obstacle to access to justice. Some elements of substantive laws which are unfavourable to any litigant will constitute an impediment to justice.
Substantive laws can be used to limit and restrict the power and freedom of any individual.
The State possesses the uncontrolled and unlimited power to frame laws according to its own will which the judiciary is bound to follow.
However, in India, the judiciary may strike down any law if it is unconstitutional.
SUBSTANTATIVE AND PROCEDURAL LAWS – RETROSPECTIVE OR PROSPECTIVE
In general, all Procedural Laws are retrospective unless a legislature specifies so. In ‘Nani Gopal Mitra v. State of Bihar’ (AIR 1970 SC 1636), the Court declared that amendments relating to procedure operated retrospectively subject to the exception that whatever be the procedure which was correctly adopted and proceedings concluded under the old law the same cannot be reopened for the purpose of applying the new procedure. In ‘Hitendra Vishnu Thakur and others etc. etc. v. State of Maharashtra and others (1994) 4 SCC 602– the Court summed up the legal position with regard to the Procedural Law being retrospective in its operation and the right of a litigant to claim that he/she be tried by a particular Court, in the following words: (i) A Statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to form and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in Substantive Law but no such right exists in Procedural Law. (iv) A Procedural Statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A Statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.
In Rajasthan State Road Transport Corporation and Anr. v. Bal Mukund Bairwa’ (2009) 4 SCC 299 the Court relied upon the observations made by Justice Benjamin N. Cardozo in his famous compilation of lectures The Nature of Judicial Process – that “ in the vast majority of cases, a judgment would be retrospective. It is only where the hardships are too great that retrospective operation is withheld.”
EQUIVALENT- PROCEDURAL AND SUBSTANTIVE RULES/PRINCIPLES
According to Salmond, although the distinction between Substantive Law and Procedural Law is sharply drawn in theory, there are many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of Substantive Law. Of these equivalent Procedural and Substantive principles there are at least three classes as discussed below:
An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. e.g. the Rule of Evidence that a Contract can be proved only by writing corresponds to a Rule of Substantive Law that a Contract is void unless reduced to writing.
Conclusive evidential fact is equivalent to and tends to take the place of the fact proved by it. For example: A child under the age of eight years is incapable of criminal intention is a rule of evidence, but differs only in form from the substantive rule that no child under that age is punishable for a crime.
The acts of a servant done about his master’s business are done with his master’s authority is a conclusive presumption of law, and pertains to procedure; but it is the forerunner and equivalent of our modern substantive law of employer’s liability. A ‘Bond’ (that is to say, an admission of indebtedness under seal) was originally operative as being conclusive proof of the existence of the debt so acknowledged; but it is now itself creative of a debt; for it has passed from the domain of procedure into that of Substantive Law.
The limitation of actions is the procedural equivalent of the prescription of rights. The former is the operation of time in severing the bond between right and remedy; the latter is the operation of time in destroying the right.
Procedural laws are also known as ‘Adjective laws’. In absence of substantive laws, procedural laws cannot be framed. Similarly, without procedural laws, substantive laws cannot be applied fairly and properly. Both the laws are equally important and one could not be applied effectively in absence of the other law.
In the case of Commissioner of wealth tax, Meerut V Sharvan Kumar Swarup & Son’s 1994 210 ITR 886 (SC) ,the Supreme Court of India made the distinction between substantive and procedural laws clear. The Court defined substantive laws as the laws which fix duties and establish rights and responsibilities among and for natural or artificial persons, while procedural laws are those which prescribe the methods in which such rights and responsibilities may be exercised and enforced respectively
Differences between substantive laws and procedural laws
Topic
Substantive laws
Procedural laws
Subject matter
Substantive laws deal with the legal rights and obligations of the individuals among themselves and towards the state.
Procedural laws describe the ways and methods following which substantive law is enforced.
Objective
These laws control and govern the rule of law as a whole.
Procedural laws exclusively deal with the proceedings in the court and the methods to start a legal case.
Context of application
Substantive laws are applied only in legal contexts.
Procedural laws are applied in both legal and non-legal contexts including proceedings of litigation.
Regulation
Substantive laws are regulated by the Acts of Parliament or governmental implementations.
Procedural laws are regulated by statutory laws only.
Capacity
Substantive laws have individual capacities to decide the course of any legal proceedings.
Procedural laws only can dictate the paths any legal proceeding should follow.
Conclusion:
We can conclude that the substantive law defines the rights and duties, while procedural law provides the machinery or mechanism for enforcing the rights and duties. Both substantive and procedural laws are inevitable components of law of any civilized society. One without the other has neither any useful and meaningful existence nor any significance as well. Both, substantive law and procedural law, are mutually reinforcing and one acquires greater meaning and validity in presence of the other.
The Substantive and Procedural laws are the two important branches of Law. The Substantive Law is a Statutory law that defines and determines the rights and obligations of the citizen to be protected by law. Procedural Law or Adjective Law deals with the enforcement of Law that is guided and regulated by the practice, procedure and machinery. Substantative Law also defines the crime or ‘wrong’ and also their ‘remedies’; determines the facts that constitute a wrong -i.e. the subject-matter of litigation; in the context of administration of justice. the substantive law defines the remedy and the right; includes all categories of Public and Private Law. It includes both Substantive Civil and Criminal Law. Procedural Law lays down the rules with the help of which law is enforced; determines what facts constitute proof of a wrong; in the context of administration of justice –The Procedural Law defines the modes and conditions of the application of remedies to violated rights; provides for mechanism for obtaining evidence by police and judges, conduct of searches, arrests, bail, and presentation of evidence at trial and process of sentencing. It is the law of action that includes all legal proceedings, Civil or Criminal.
The Latin word jurisprudentia, which means “science or knowledge of law,” is the root of the English word “jurisprudence.” It is a very broad field of study that encompasses numerous philosophies and theories about the origins of law. The study’s scope also encompasses how law interacts with people and other social structures. We derive law from many different sources. Many jurists and academics have tried to categorise the origins of law. However, laws, court precedents, and conventions are the most prevalent sources across all of these categories.
Law and sources of law
The Law of the State or of any organised organisation of men is constituted of the rules that the courts, which are the body’s judicial organ, set forth for the determination of legal rights and obligations, according to John Chipman Grey, a former professor at Harvard Law School. Gray separated law from the sources of law, despite criticism that his definition was too restrictive. He contends that case law and other legal sources have helped to shape the development of the law and provide the basis for its legality. Law, in its simplest form, refers to the regulations or standards of behaviour, and sources relate to the sources of its information.
Types of sources of law
John Salmond, a legal scholar renowned for his ideologies on law in the field of jurisprudence, classified the sources of law into mainly two categories,i.e., material sources and formal sources.
Material sources
Material sources of law are those sources from which the law gets its content or matter, but not its validity. There are two types of material sources which are legal sources and historical sources.
Legal sources
Legal sources are the instruments used by the state which create legal rules. They are authoritative in nature and followed by courts of law. These are the sources or instruments that permit newer legal principles to be created. According to Salmond, legal sources of English law can be further classified into four categories-
Legislation,
Precedent,
Customary law, and
Conventional law.
Historical sources
Historical sources have an impact on the evolution of legislation without affecting the legitimacy or authority of the law. These resources indirectly affect the laws. All laws have a historical foundation, although they may or may not have a legal foundation. This is the difference between legal and historical sources. Examples of this type of source are judgments rendered by foreign courts.
Formal sources
Formal sources of law are the instruments through which the state manifests its will. In general, statutes and judicial precedents are the modern formal sources of law. Law derives its force, authority, and validity from its formal sources.
According to Keeton, the classification given by Salmond was flawed. Keeton classified sources of law into the following:
Binding sources
Judges are bound to apply such sources of law in cases. Examples of such sources are statutes or legislation, judicial precedents, and customs.
Persuasive sources
Persuasive sources are not binding but are taken into consideration when binding sources are not available for deciding on a particular subject. Examples of such sources are foreign judgments, principles of morality, equity, justice, professional opinions, etc.
Precedent as a source of law
The judgements made by courts in various cases are referred to as judicial precedents. A judicial ruling establishes a rule of law that the lower courts must follow. The courts below must follow the precedent set by a court’s decision in a specific case when making decisions in cases with comparable facts. The following are a few of India’s most significant legal precedents:
Kesavananda Bharati v. the State of Kerala (1973): This decision established India’s basic structure theory, which prevents the removal of the Indian Constitution’s fundamental provisions.
Punjabi State v. Gian Kaur, 1996: According to this ruling, Article 21 of the Indian Constitution does not provide the right to die. Everybody has the right to a dignified death, the court said. The right to a dignified death was distinguished from the right to an unnatural death by the court.
In Maneka Gandhi v. Union of India (1978), the court ruled that the Passports Act, 1967’s Section 10(3)(c) was invalid because it contravened Articles 14 and 21 of the Indian Constitution.
Indra Sawhneyv. Union of India, (1992): This ruling placed a 50% cap on reservations for underprivileged groups. It further argued that economic backwardness alone cannot serve as the sole criterion for group classification as “backward classes.”
Theories of precedent
Declaratory theory: Declaration of existing law by the judges is known as declaratory theory. Judges only declare the existing law.
Original precedent theory: Law making by the judge known as original precedent theory judge are the lawmakers the role of judge is creative particularly when the law is absent.
Principles of precedent
The doctrine of Stare Decisis
The authority of judicial precedents is based on the doctrine of stare decisis. The term stare decisis means to not disturb the undisturbed. In other words, precedents that have been valid for a long time must not be disturbed.
In India, lower courts must follow higher courts’ precedents, while higher courts must follow their own precedents. But when it comes to High Courts, one High Court’s ruling does not control the other High Courts. The lower courts must follow their judgments. The more recent judgement should be followed when there is a disagreement between judgments rendered by courts having the same authority. The Supreme Court’s rulings are enforceable by all courts nationwide in accordance with Article 141 of the Indian Constitution. However, the Supreme Court does not have to follow its own judgments. The Supreme Court may depart from its earlier ruling in later instances if there are compelling reasons to do so.
Doctrine of Res Judicata
Res Judicata refers to subject matter that has been decided. According to this doctrine, unless new relevant facts have been discovered, the parties are prohibited from bringing up the same subject in court after a lawsuit has been resolved. They cannot present a different issue relating to the same claim because they could have done so in the earlier lawsuit.
Ratio Decidendi
Salmond defines a precedent as a court decision that has a legal concept and the ratio decidendi, which is an authoritative component. Ratio decidendi translates as decision’s rationale. Even though there is no statute or precedent pertaining to a matter, a judge must rule on it whenever he receives it for judgement. The rationale for the decision, also known as the ratio decidendi, is the principle that directs such a choice.
Obiter Dicta
The term obiter dictum means mere say by the way. This term is used to refer to statements of law that are not required for the case at hand. A judge may in the judgment of a case declare some legal principles to be applied in a hypothetical situation. It does not have much impact or authority. However, the subordinate courts are bound to apply the principles.
Prospective overruling:
The Supreme Court has the authority to reverse decisions made by subordinate courts by a different bench of justices with a larger number of judges than the prior bench. It is a contemporary practise that permits the court to fix its mistakes without having an impact on its prior dealings.
Types of precedents
Authoritative and Persuasive
Authoritative precedents are those that, whether or not they are accepted by lower courts, must be followed. They produce clear and unambiguous laws. They are considered to be legitimate sources of law. On the other hand, persuasive precedents don’t bound the judges to anything. The judge has the discretion to use persuasive precedents.
Authoritative precedents can be classified into the following two types:
Absolute authoritative
An absolutely authoritative precedent is binding on subordinate courts in an absolute manner and it cannot be disobeyed even if it is wrong.
Conditional authoritative
A conditionally authoritative precedent is binding on other judges but it can be disregarded in certain special circumstances as long as the judge shows the reason for doing so.
Original and Declaratory
According to Salmond, a declaratory precedent is a precedent that simply declares an already existing law in a judgment. It is a mere application of law. An original precedent creates and applies a new law.
Factors increasing the authority of a precedent
The number of judges constituting the bench that makes the decision.
A unanimous decision has more weight.
Approval by other courts, especially the higher courts.
The enactment of a statute that carries the same law subsequently.
Factors decreasing the authority of a precedent
Abrogation of judgment by reversal or overrule of a higher court.
Abrogation of judgment by a statutory rule enacted subsequently.
Affirmation or reversal of decision on a different ground.
Inconsistency with the previous decision of a higher court.
Inconsistency with previous decisions of the court of the same rank.
Inconsistency with already existing statutory rules.
Erroneous decision.
Legislation as a source of law
Rules or laws passed by the government’s legislative branch are referred to as legislation. It is one of the most significant legal precedents in jurisprudence. Legislation is a combination of the Latin words latum, which means making, and legis, which means law.
Types of legislation
According to Salmond, legislation can be classified into two types- Supreme and Subordinate.
Supreme legislation
When passed by a supreme or sovereign law-making authority, legislation is referred to as being supreme. The body must possess sufficient authority such that the rules or laws it enacts cannot be overturned or changed by another body. Since the laws the Indian Parliament passes can be overturned in court, it cannot be regarded as a legally independent body. The British Parliament, on the other hand, is regarded as a sovereign legislative body since the legitimacy of the legislation it passes cannot be contested in a court of law.
Subordinate legislation
Subordinate legislation is referred to as legislation passed by a subordinate legislative body. A sovereign entity with the power to make laws must have delegated such power to the subordinate body. It is under the top legislative body’s supervision. The various types of subordinate legislation include the following:
Executive legislation: This is a form of subordinate legislation where the executive is granted or conferred certain rule-making powers in order to carry out the intentions of the legislature.
Colonial legislation: Many territories across the globe were colonised by Britain and such territories were called colonies. The legislation passed by the legislature of such colonies was subject to the control of the British Parliament.
Judicial legislation: Courts also have a role in enacting laws that aid in regulating the internal affairs and functioning of courts.
Municipal legislation: Municipal authorities also possess the law-making power as they enact bye-laws.
Autonomous legislation: Another kind of legislation is autonomous legislation, which is concerned with bodies like universities, corporations, clubs, etc.
Delegated legislation: Sometimes legislative powers may be delegated to certain bodies by the parliament through principal legislation. A principal act may create subsidiary legislation that can make laws as provided in the principal legislation.
Custom as a source of law
Custom is a code of behaviour that has the explicit blessing of the community that upholds it. There were no institutions that served as centers of power in prehistoric cultures. As a result, individuals began organising into strong social groupings in an effort to uphold justice, equality, and liberty. They ultimately began to recognise the customs and rituals that the society consistently followed and developed a systematised method of social control. Marriage and divorce laws in India are mostly derived from the practises of various religious communities. Additionally, a number of Scheduled Tribes communities have their own marriage-related traditions. As a result, Scheduled Tribes are exempt from the application of this Act under Section 2(2) of the Hindu Marriage Act of 1955.
Sir Henry Maine’s views on customs
According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments”. Themistes refers to the judicial awards dictated to the King by the Greek goddess of justice. The following are the different stages of development of law according to Henry Maine:
At the first step, law is made by rulers who are inspired by the divine. Rulers were believed to be messengers of God.
At the second stage, following rules becomes a habit of the people and it becomes customary law.
At the third stage, knowledge of customs lies in the hands of a minority group of people called the priestly class. They recognise and formalize customs.
The final stage is the codification of customs.
Types of customs
Customs without a binding obligation
There are social practises that people adhere to that are not governed by the law. These practises concern marriage, clothes, and other things. A social boycott rather than legal repercussions can be the only outcome of not complying by such customs.
Customs with a binding obligation
The term “customs having a binding obligation” refers to practises that must be complied with by law. They have nothing to do with customs or social norms. The two primary categories of customs that have legal requirements are legal customs and conventional customs.
Legal customs: The rules of law have no exceptions. They are legally binding and must be followed to avoid penalties. General customs and regional customs are two categories of legal customs. A state’s entire area is governed by general customs. Local practises, on the other hand, are unique to certain locations..
Conventional customs: Conventional customs are those that can only be followed if they are accepted by a contract. Such a custom is solely binding on the parties to the contract that incorporates it. General and regional conventional customs are two different categories of conventional customs. Across a territory, general conventional customs are followed. On the other hand, local conventional customs are limited to a certain location or to a specific trade or transaction.
Conditions for a valid custom: Certain conditions must be satisfied before a court is entitled to incorporate the usages into contracts.
The usage must be so well-established as to be notorious.
The usage must be reasonable.
Usage cannot alter the general law of land.
A usage should not nullify or vary the express term of the contract.
Requisites of Valid Custom: Following are the requisites for a valid custom, treated as law
Immemorial: For a custom to be legal, its antiquity must be established. Blackstone asserts that a custom must have existed for a very long time in order for it to be considered legitimate and binding. If anyone can trace the origin of the tradition, it is considered to be excellent custom.
Reasonable:A lawful custom must also be sensible, which is another need. The unreasonableness of a custom must be so great that its enforcement causes more harm than if there were no custom at all. Prof. Allen argues that custom’s unreasonableness, not its reasonableness, must be established..
Continuous: A custom must not continuously be observed and if it has not been continuously and uninterruptedly observed, the presumption is that it existed at all.
Peaceable enjoyment: The enjoyment of a custom must be a peaceable one.
Certainty: A valid custom must be certain and definite, if there is any ambiguities in it or it keeps changing, it is not a valid custom.
Compulsory Observance: If observance is required, a custom is considered valid. Observing anything optically is useless. A custom requiring all residents to contribute to the upkeep of a bridge will be beneficial, but one requiring each person to do so at his or her discretion is pointless and, in fact, is not a custom at all, according to Blackstone.
General Or Universal: The custom must be general or universal. In the absence of unanimity of opinion, custom becomes powerless or rather does not exist. A valid custom must not be opposed to public policy or the principles of morality.
Not Opposed With Statute Law:
a valid custom must conflict with the statute law of the country. According to Coke: No custom or prescription can take away the force of an Act of parliament.
According to Blackstone customs must be consistent with each other, one custom cannot be set up in opposition to another.
Theories of customs
There are two theories regarding the question as to when a question is transformed into law:
Historical theory
Analytical theory
(i) Historical theory: According to historical theory, the growth of law does not depend upon the arbitrary will of any individual. It does not depend upon any accident. It grows as a result of the intelligence of the people. Custom is derived from the common consciousness of the people. According to Puchta: Custom is not only self-sufficient and independent of state imprimatur but is a condition to all sound legislation.
Criticism: According to Paton: The growth of most of the customs is not the result of any conscious thought but of tentative practice. According to Allen: All customs cannot be attributed to the common consciousness of the people. In many cases, customs have arisen on account of the convenience of the ruling class.
(ii) Analytical theory: Austin, Holland, and Gray are the advocates of analytical theory. According to Austin: Customs is a source of law and not law itself. Customs are not positive laws until their existence is recognized by the decisions of the Courts. According to Holland: Customs are not laws when they arise but they are largely adopted into laws by state recognition.
Criticism: By Allen: Custom grows by conduct and it is therefore a mistake to measure its validity solely by the elements of express sanction, accorded by Courts of law or by other determinate authority.
Reasons for Custom are given the force of law: Following are the reasons, why custom is given the force of law:
Principles of National Conscience: Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice and public policy. According to Salmond: Custom is to society what laws are to the state. Each is the expression and realization of the measure of man, insight and ability, of the principles of right and justice.
Expectation of continuance: Another reason for the binding force of custom is the expectation of its continuance is the future. Justice demands that this expectation should be fulfilled and not frustrated.
Observance by a large number of people: Sometimes a custom is observed by a large number of persons in society and in course of time the same comes to have the force of law.
Interests of Society: Custom rests on the popular conviction that it is in the interests of society. This conviction is so strong that it is not desirable to go against it.
Useful to the law giver: According to Paton: Custom is useful to the law-giver and codifier is two ways. It provides that material out of which the law can be fashioned. There is a tendency to adopt the maxim that whatever has been an authority in the past is a safe guide for the future.
Difference between custom and prescription
The primary distinction between the two is that while prescription results in a right, custom results in legislation. Custom is typically followed as a standard of behaviour and is enforceable in law. A right or title is acquired by prescription. The prescription only applies to that specific person when a local custom affects society. For instance, when a person X’s ancestors have been freely grazing their cattle on a certain piece of land for years, X is granted the same permission to do the same. The privilege that X has obtained is known as a prescription. A prescription must be used consistently throughout time to be considered valid. In India, acquiring a right requires 20 years of continuous enjoyment.a right to light and air as per the Indian Easement Act, 1882.
Conclusion
In conclusion, there are various ways to categorise the sources of law in jurisprudence. The most noteworthy or typical classification, however, separates it into law, tradition, and precedent. The term “precedent” refers to earlier rulings by the courts. The statutory laws passed by the legislature are referred to as the legislation. The term “custom” describes the long-standing customs of a community that have become so entrenched in society that they have the status of law. Legislation is only the primary source, despite the fact that it appears to be the mechanism by which we obtain laws. Many of the regulations that exist now reflect the norms that our society has upheld for many years. Numerous cases also demonstrate how occasionally the law of the land is insufficient or unable to foresee the problems that might come up in subsequent disputes. As a result, the judiciary must clarify or interpret the law of the land and establish judicial precedents for various concerns.
