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PUBLICATION & ARTICLES  
- Mr. Saptarshi Dutt 

The Indian Judicial System

The Judiciary of India is an independent body and is separate from the Executive and Legislative bodies of the Indian Government. The judicial system of India is stratified into various levels. At the apex is the Supreme Court, which is followed by High Courts at the state level, District Courts at the district level and Lok Adalats at the Village and Panchayat Level. The judiciary of India takes care of maintenance of law and order in the country along with solving problems related to civil and criminal offences. 

The judiciary system that is followed in India is based on the British Legal System that was prevalent in the country during pre-independence era. Very few amendments have been made in the judicial system of the country.

• SUPREME COURT IN INDIA -

The Supreme Court is the highest judicial body in India. The Supreme Court came into power on 28th January 1950; just two days after the Constitution of India came to effect. In the initial stages, it had its office in a part of the Parliament House. The Supreme Court is endowed with many duties and responsibilities. The biggest responsibility is that it is the highest court of appeal and is also the protector of the Constitution in the country. 

The Chief Justice of India and 25 other judges make up the Supreme Court of India. The appointments are done directly by the President of India. There are certain criteria that have to be fulfilled by the advocates to become a judge of the Supreme Court. Being a citizen of India is one of the most important criteria. Apart from this, the person has to have an experience of minimum five years as a judge in the High Court or any other two courts one after another. He should also be a prominent jurist as per the President of the country, so that he can take up responsibilities well. The Chief Justice is also consulted at the time of appointment of the judges in the Supreme Court. 
The Judges of the Supreme Court are free to exercise their power as and when required. The process of removal of the Supreme Court judges is quite an interesting but lengthy process. An order from the President is mandatory in case of removal of the judges. A two-thirds majority has to be obtained from both the houses for the removal of the judges. 

The jurisdiction of the Supreme Court is divided into original jurisdiction, advisory jurisdiction and appellate jurisdiction. Original jurisdiction is required when there is a dispute between the Government and the states of India or any one state of India. The Supreme Court can also enforce fundamental Rights according to the Article 32 of the Constitution of India. 

The appellate jurisdiction is mentioned in Articles 132(1), 133(1) or 134 of the Constitution. The decision of the High Court can be questioned in the Supreme Court of the country. One can appeal to the Supreme Court, if he or she is not satisfied with the decision of the High Court. The Supreme Court has the provision of accepting or rejecting the case at its own discretion. There are also provisions of pardoning criminals and canceling their lifetime imprisonment or death sentence by the Supreme Court. 

Apart from the original and appellate jurisdiction of the Supreme Court, there is an advisory jurisdiction that needs special mention. There are many cases that are directly referred by the President of India and the Supreme Court has to look into those matters. This provision is mentioned in Article 143 of the Indian Constitution. 

The Supreme Court in India acts as an independent body and is free from any outer control. The contempt of law court in India is a punishable offence and the Supreme Court takes care of this immaculately.

 

 


• HIGH COURTS IN INDIA :

There are High Courts in almost all the states of India and the Union Territories. The High Courts work under the Supreme Court in the country. These courts are vested with lot of power. They decide on both civil as well as criminal cases. Most of the cases that are handled by the High Courts of the country are passed on from the district or lower courts. 

The judges of the High Courts are appointed by the President of India, in consultation with the Chief justice of India and the Governor of the state. The Chief Justice heads each of the High Courts in India. The numbers of judges vary from one court to other depending on the area that the High Court covers and the number of cases that it handles. There are also High Courts that serve more than one Indian state or Union Territory. Each of these courts have original and appellate jurisdiction under them. Summons can also be issued by the High Court. Revenue matters are dealt by original jurisdiction, while an eminent jury handles original criminal cases. 

Established in the year 1862, the Calcutta High Court is the oldest court in India. Apart from this, there are 18 total High Courts in the country, some of which are Bombay High Court, Delhi High Court, Chattisgarh High Court, Gujarat High Court, Jharkhand High Court, Madras High Court, Patna High Court and Sikkim High Court.


The Constitution Of India

 

The Constitution of India was enacted on 26th of January, 1950. The Constituent Assembly of India drafted the nation's Constitution.

Being drafted on 26th of November, 1949, the Indian Constitution laid the foundations for establishment of the Democratic Republic of I India.
India.

The Constitution of India was drafted over a period of 2 years, 11 months and 17 days. The members of Constituent Assembly of India met for the first time in the year 1946 on December 9. The next meeting of the Assembly took place on August 14th, 1947 for the dominion of India in which the proposal of forming various committees was presented. Such committees include Committee on Fundamental Rights, the Union Powers Committee and Union ConstitutionCommittee. One of the unique factors of this meeting was that the Assembly gathered as the Sovereign Constituent Assembly of India. 

On 29th August, 1947 a Drafting Committee, with Dr. Ambedkar as the Chairman, was formed on the basis of the various reports submitted by the previous committees. It was in the year 1948 that a Draft Constitutionincluding a range of proposals was formed by the concerned committee. The Constituent Assembly of India held two meetings in February 1948 and October 1949 to go through the clauses of the Draft. Finally, from 14th to 26th of November, 1949 the Constituent Assembly analyzed each and every provision of the Draft. The then President of the Constituent Assembly of India signed the Draft on November 26th, 1949. 

Today, there are 12 Schedules and 395 Articles in the Constitution of India. Amendments have been made to the Constitution time and again as per the need of the hour. Till 2006, there have been 94 Amendments made to the constitution.

 

 

 

 

A) CONSTITUENT ASSEMBLY -

The Constituent Assembly of India was formed by the elected members of the provincial assemblies of the country. Presided over by Dr. Sachidanand Sinha for the first time, the Indian Constituent Assembly played the most important role in creating the Constitution of India. After Dr. Sinha, Dr. Rajendra Prasad became the President of the Assembly. Comprising over 30 schedule class members, the Constituent Assembly also included sections of Christians, Anglo-Indians and Minority Community. Harendra Coomar Mookerjee, being the Minority Community Chairman, also successfully worked for the Christians. While H P Modi was the representative of the Parsi community, Frank Anthony headed the Anglo-Indian section of the country in the Constituent Assembly. 

Some of the prominent female personalities of the Constituent Assembly were Vijaylakshmi Pandit and Sarojini Naidu. From Shyama Prasad Mukherjee, B N Rau and Maulana Abdul Kalam Azad to K M Munshi, Sardar Patel and Alladi Krishnaswami Aiyer, each one had a major contribution towards the present form of the Constituent Assembly.

 

 

 

 

B) PREAMBLE -

The Preamble is one of the most significant parts of the Constitution of India. Focusing on the core objective of the Indian Constitution, the Preamble includes the following:

1) Equality - which connotes equal opportunity for one and all
2) Justice - which means fair judgment in the fields of politics, society and economy
3) Fraternity - which works towards keeping the integrity and strength of the country intact along with special stress on individual dignity
4) Liberty - which assures every citizen of India the freedom of speech and expression, religious independence and choice of going by one's own belief

The Preamble, as it is presented in the Constitution of India, is mentioned below: "WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; 

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION."

 

 


C) PARTS OF THE CONSTITUTION-

• The Constitution of India covers a total of 395 Articles in 22 parts. The parts of the Indian Constitution are mentioned below:

• Part I - The Union and its Territory

• Part II - Citizenship

• Part III - Fundamental Rights

• Part IV - Directive Principles of State Policy

• Part IVA - Fundamental Duties

• Part V - The Union

• Part VI - The States

• Part VII - The States in Part B of the First Schedule

• Part VIII - The Union Territories

• Part IX - Panchayats

• Part IXA - Municipalities

• Part X - The Scheduled and Tribal Areas

• Part XI - Relations Between The Union and The States

• Part XII - Finance, Property, Contracts and Suits

• Part XIII - Trade, Commerce and Intercourse within The Territory of India

• Part XIV - Services Under The Union and The States

• Part XIVA - Tribunals

• Part XV- Elections

• Part XVI - Special Provisions Relating to Certain Classes

• Part XVII - Official Language

• Part XVIII - Emergency Provisions

• Part XIX - Miscellaneous

• Part XX - Amendment of the Constitution

• Part XXI - Temporary, Transitional and Special Provisions

• Part XXII - Short Title, Commencement, Authoritative Text in Hindi and Repeals


The Parliamentary form of Government of India was first introduced by the Constitution of the nation. Consisting of the President the Parliament of India has two Houses namely Lok Sabha and Rajya Sabha. The President leads the Executive of the Union as the Constitutional head. The Prime Minister heads the Council of Ministers as per the Article 74(1) of the Indian Constitution. The 7th Schedule of the Constitution of India indicates that the legislative powers are shared by both the State Legislatures and the Parliament of India.

 

 

 


D) SCHEDULES TO INDIAN CONSTITUTION -

Schedules to the Constitution of India can be added through the amendments to it. There are twelve schedules to Constitution of India,
which are effective at present, are given below:

• First Schedule: This schedule is about the States and Union Territories of India.

• Second Schedule: In this Schedule, provisions made to the President and the Governors of States, Speaker and the Deputy Speaker of the House of the People, the Chairman and the Deputy Chairman of the Council of States, the Speaker and the Deputy Speaker of the Legislative Assembly,
the Chairman and the Deputy Chairman of the Legislative Council of a State, the Judges of the Supreme Court and of the High Courts and the
Comptroller and Auditor-General of India.

• Third Schedule: Forms of Oaths or Affirmations are mentioned in this Schedule.

• Fourth Schedule: This Schedule specifies the allocation of seats in the
Council of States.

• Fifth Schedule: Provisions as to the Administration and Control of
Scheduled Areas and Scheduled Tribes are mentioned in this
Schedule. The amendment of the schedule is also included
in the Part D of the Schedule.

• Sixth Schedule: This Schedule deals with the provisions as to the
Administration of Tribal Areas in the States of Assam,
Meghalaya, Tripura and Mizoram.

• Seventh Schedule: The List I or the Union List, List II or the
State List and List III or the Concurrent List are
included in this Schedule.

• Eighth Schedule: The 22 languages selected as the official languages
of India are mentioned in this Schedule.

• Ninth Schedule: Validation of certain Acts and Regulations is dealt
with in this Schedule

• Tenth Schedule: Provisions as to disqualification on ground of
defection for the Members of Parliament and Members of the
State Legislatures are mentioned in this Schedule.

• Eleventh Schedule: This Schedule talks about the powers,
authority and responsibilities of Panchayats

• Twelfth Schedule: Powers, authority and responsibilities of
Municipalities are defined in this Schedule


Rule of Law

 

India is a Democratic. Secular and a Socialist Republic. The rule of law governs our country. 'Equality before law and 'Equal protection of law are the most fundamental right conferred on its citizens. We have a lengthy constitution and some other wonderful laws. Independence of judiciary and highly qualified bureaucrats are the need of the hour. In the present situation, many just exist on paper. The question is about our compliance with the Rule of Law.

Rules of law contains three principles or it has three meanings as stated below:
1. Supremacy of Iaw
2. Equality before law 
3. Predominance of Legal Spirit The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals of the Constitution, justice, liberty and equality are enshrined (embodied) in the preamble.

The Constitution of India has been made the supreme law of the country and other laws are required to be in conformity with the Constitution. Any law which is found in violation of any provision of the Constitution is declared invalid. In india, the meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by Parliament. It is also regarded as a part of natural justice. In Keshavanda Bharti vs. State of Kerala (1973) The Supreme Court enunciated the rule of law as one of the most important aspects of the doctrine of basic structure. In Menaka Gandhi vs. Union of India, AIR 1978 SC 597 The Supreme Court declared that Article 14 strikes against arbitrariness. How many people respect or pay heed to this fundamental principle? In our country, there are many innocent people who are held guilty only because of the malicious acts of a few hypocrites. We know of a number of members of legislature and parliament who are facing criminal prosecution. It is a farce to talk of a nation ruled by highly qualified excellent men. Politics has become the refuge of scoundrels, black marketers, corrupt and the mean to wield influence and for personal exaltation. It is really difficult to find good candidates during elections. Our leaders are law into themselves. There is neither justice to the victims nor fairness to the accused. Then what kind of Rule of law are we talking about. The judiciary is not above board, there have been abundant rumors about the adulterous and extravagant lives led by the judges from the lower to the highest judicial officers. The police just don’t care about the landmark judgment of D.K. Basu or Section 160 Criminal Procedure Code or any other judgment. The custodial violence has gone beyond description. Rape, molestation, murder are all becoming common occurrences in police custody. The injuries are not noted down scrupulously and valuable evidence is lost because of the neglect and lethargy of the medical profession. The most recent case being the Arushi Murder Case in which the investigation was done by the CBI. The actual vaginal swab was not sent for forensic examination. Is this acceptable negligence or voluntary negligence. We still do not have an answer. With the laws in favor of women, Is there a legal authority or sanction to check such a misuse? I am aware that the judiciary has tried to act in this regard but there is no formal structure to check such an abuse. The people including public servants just ignore the rule of Law, even if it is for acts or omissions which are not difficult to follow or that they should be a part of the normal routine. Everyone is in a rush without any kind of concern for the rest. Everyone wants to be first. Majority have a psyche to bend the law cross the barricades, whether it be on the road or in any other walk of life to carve out short cuts for them to pass through and a psyche to justify their wrongs with a expectation only for others to follow the law and wait for the day when all other subject themselves to the rule of law so that they could follow suit. There is no initiative by the government to check such a breach. It is not the rules which are required for such acts but norms coupled with awareness will suffice. I am not talking about any kind of formal structure to this but an informal initiative is the need of the hour because people in India just don’t believe in formal initiatives. From the ordinary traffic constable to the man driving a bicycle on the road, the pedestrian to the richest all of us as Indian have one psyche to bend the Law, cross the barricades, whether it be on the road or in any other walk of life to carve out short cuts for them to pass through and a psyche to justify their wrongs with a expectation only for others to follow the Law and wait for the day when all other subject themselves to the rule of Law so that they could follow suit. So, we still are not ruled by Law and it will be a long wait without an initiative.

 

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Jurisprudence, Its Importance and Relevance in Today’s World:

 

 

• INTRODUCTION:
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists (including legal philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal system and of legal institutions.Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law, civil law, and the law of nations General jurisprudence can be broken into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best to be answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups:

• Problems internal to law and legal systems as such.
• Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.

Answers to these questions come from four primary schools of thought in general jurisprudence:

  1. Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human created laws gain whatever force they have.
  2. Legal Positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts although positivists differ on what those facts are.
  3. Legal Realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; the law has the force that it does because of what legislators, judges, and executives do with it. Similar approaches have been developed in many different ways in Sociology of law.
  4. Critical Legal Studies is a younger theory of jurisprudence that has developed since the 1970s which is primarily a negative thesis that the law is largely contradictory and can be best analyzed as an expression of the policy goals of the dominant social group.

Also of note is the work of the contemporary Philosopher of Law Ronald Dworkin who has advocated a constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence.

The English term is based on the Latin word jurisprudentiajuris is the genitive form of jus meaning "law", and prudentia means "knowledge". The word is first attested in English in 1628, at a time when the word prudence had the now obsolete meaning of "knowledge of or skill in a matter". The word may have come via the French jurisprudence, which is attested earlier.

 

 

• HISTORY OF JURISPRUDENCE :

Jurisprudence already had this meaning in Ancient Rome even if at its origins the discipline was a (periti) in the jus of mos maiorum (traditional law), a body of oral laws and customs verbally transmitted "by father to son". Praetors established a workable body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta, the annual pronunciation of prosecutable offense, or in extraordinary situations, additions made to the edicta. An iudex then would judge a remedy according to the facts of the case.

Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more equitable interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evolutiveInstitutiones (legal concepts), while remaining in the traditional scheme. Praetors were replaced in 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience.

In ancient Indian vedic society, the law or Dharma, as followed by Hindus was interpreted by use of "Manu Smrti" - a set of poems which defined sin and the remedies. They were said to be written between 200 BC - 200 AD. In fact, these were not codes of law but norms related to social obligations and ritual requirements of the era.

Under the Roman Empire, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including the Proculians and Sabinians.The scientific depth of the studies was unprecedented in ancient times.

After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian's Corpus Juris Civilis was born.

 

 

• NATURAL LAW

Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarised by the maxim an unjust law is not a true law , lex iniusta non est lex, in which 'unjust' is defined as contrary to natural law. Natural law is closely associated with morality and, in historically influential versions, with the intentions of God. To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state and to promote 'the good'. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused upon. Natural law is sometimes identified with the maxim that "an unjust law is no law at all", but as John Finnis, the most important of modern natural lawyers has argued, this maxim is a poor guide to the classical Thomist position.


1. Aristotle-

Aristotle is often said to be the father of natural law  Like his philosophical forefathers, Socrates and Plato, Aristotle posited the existence of natural justice or natural right (dikaion physikon,δικαίον φυσικόν, Latin ius naturale). His association with natural law is due largely to the interpretation given to him by Thomas Aquinas This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (= Book IV of the Eudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages though more recent translations render them more literally

Aristotle's theory of justice is bound up in his idea of the golden mean. Indeed his treatment of what he calls "political justice" derives from his discussion of "the just" as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice. When a person's actions are completely virtuous in all matters in relation to others, Aristotle calls her "just" in the sense of "general justice;" as such this idea of justice is more or less coextensive with virtue"Particular" or "Partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature here are about the grounding of the morality enacted as law not the laws themselves. The passage here is silent as to that question.

The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature.  The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of ones' own city was adverse to the case being made, not that there actually was such a law; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law suggested in this passage to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.


2. Sharia and Fiqh in Islam-

Sharia refers to the body of Islamic law. The term means "way" or "path"; it is the legal framework within which public and most private aspects of life are regulated for those living in a legal system based on Islamic principles of jurisprudence. Fiqh is the term for Islamic jurisprudence, made up of the rulings of Islamic jurists. A component of Islamic studies, Fiqh expounds the methodology by which Islamic law is derived from primary and secondary sources.

Mainstream Islam distinguish fiqh, which means understanding details and inferences drawn by scholars, from sharia that refers to principles that lie behind the fiqh. Scholars hope that fiqh andsharia are in harmony in any given case, but this cannot be assured.

Early forms of logic in Islamic philosophy were introduced in Islamic jurisprudence from the 7th century with the process of Qiyas. During the Islamic Golden Age, there was a logical debate among Islamic philosophers and jurists whether the term Qiyas refers to analogical reasoning,inductive reasoning or categorical syllogism. Some Islamic scholars argued that Qiyas refers to reasoning, which Ibn Hazm (994-1064) disagreed with, arguing that Qiyas does not refer to inductive reasoning, but refers to categorical syllogism in a real sense and analogical reasoning in a metaphorical sense. On the other hand, al-Ghazali (1058–1111) (and in modern times, Abu Muhammad Asem al-Maqdisi) argued that Qiyas refers to analogical reasoning in a real sense and categorical syllogism in a metaphorical sense. Other Islamic scholars at the time, however, argued that the term Qiyas refers to both analogical reasoning and categorical syllogism in a real sense.

 


3. Thomas Aquinas-

Saint Thomas Aquinas [Thomas of Aquin, or Aquino] (c. 1225 – 7 March 1274) was a philosopher and theologian in the scholastic tradition, known as "Doctor Angelicus, Doctor Universalis". He is the foremost classical proponent of natural theology, and the father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church. The work for which he is best-known is the Summa Theologica. One of the thirty-three Doctors of the Church, he is considered by many Catholics to be the Church's greatest theologian. Consequently, many institutions of learning have been named after him.

Aquinas distinguished four kinds of law: eternal, natural, human and divine. Eternal law refers to divine reason, known only to God, God's plan for the universe; man needs this, without which he would totally lack direction. Natural law is the human "participation" in the eternal law in rational creatures and is discovered by reason. Divine law is revealed in the scriptures and is Gods positive law for mankind. Human law is supported by reason and enacted for the common good. Natural law, of course, is based on "first principles":

. . . this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this . . .
The desires to live and to procreate are counted by Aquinas among those basic (natural) human values on which all other human values are based.


4. Thomas Hobbes-

In his treatise Leviathan, (1651), Hobbes expresses a view of natural law as a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved. Hobbes was a social contractarian and believed that the law gained peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war between mankind that exists otherwise. Life is, without an ordered society, "solitary, poor, nasty, brutish and short". It is commonly commented that Hobbes' views about the core of human nature were influenced by his times. The English Civil War and the Cromwellian dictatorship had taken place, and he felt absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society.

 

5. Lon Fuller-

Writing after World War II, Lon L. Fuller notably emphasised that the law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argues, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, law has an internal morality that goes beyond the social rules by which valid laws are made. Fuller and scholar H. L. A. Hart were colleagues at Harvard University. One of the disagreements between Fuller, a natural lawyer, and Hart, a positivist, was whether Nazi law was so bad that it could no longer be considered law.

 

6. John Finnis -

Sophisticated positivist and natural law theories sometimes resemble each other more than the above descriptions might suggest, and they may concede certain points to the other "side". Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on the theorist's work. In particular, the older natural lawyers, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence. But modern natural lawyers, such as John Finnis claim to be positivists, while still arguing that law is a basically moral creature.

 

 

 

ANALYTIC JURISPRUDENCE

Analytic, or 'clarificatory', jurisprudence means the use of a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be.David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is must be treated as a strictly separate question to normative and evaluative ought questions.

The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power/sociology?” and "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.

 

 

1) Legal positivists:

Positivism simply means that law is something that is "posited": laws are validly made in accordance with socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.

  1. What the law is - is determined by historical social practice (resulting in rules)
  2. What the law ought to be" - is determined by moral considerations.

      a) Bentham and Austin-
One of the earliest legal positivists was Jeremy Bentham. Bentham was an early and staunch supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate for democracy, and strongly atheist. Bentham's views about law and jurisprudence were popularized by his student, John Austin. Austin was the first chair of law at the new University of London from 1829. Austin's utilitarian answer to "what is law?" was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Contemporary legal positivists have long abandoned this view, and have criticised its oversimplification, H. L. A. Hart particularly.

      b) Hans Kelsen-

Hans Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential in Europe and Latin America, although less so in common-law countries. His Pure Theory of Law aims to describe law as binding norms while at the same time refusing, itself, to evaluate those norms. That is, 'legal science' is to be separated from 'legal politics'. Central to the Pure Theory of Law is the notion of a 'basic norm (Grundnorm)' - a hypothetical norm, presupposed by the jurist, from which in a hierarchy all 'lower' norms in a legal system, beginning with constitutional law, are understood to derive their authority or 'bindingness'. In this way, Kelsen contends, the bindingness of legal norms, their specifically 'legal' character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or - of great importance in his time - a personified State or Nation.

      c) H. L. A. Hart-

In the Anglophone world, the pivotal writer was H. L. A. Hart, who argued that the law should be understood as a system of social rules. Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, cannot be grounded in non-normative social facts. Hart revived analytical jurisprudence as an important theoretical debate in the twentieth century through his book The Concept of Law.As the professor of jurisprudence at Oxford University, Hart argued that law is a 'system of rules'.

Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). The "rule of recognition", a customary practice of the officials (especially judges) that identifies certain acts and decisions as sources of law. A pivotal book on Hart was written by Neil MacCormick in 1981 (second edition due in 2007), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his recently published Institutions of Law, 2007). Other important critiques have included that of Ronald Dworkin, John Finnis, and Joseph Raz.

In recent years, debates about the nature of law have become increasingly fine-grained. One important debate is within legal positivism. One school is sometimes called exclusive legal positivism, and it is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled inclusive legal positivism, a major proponent of which is Wil Waluchow, and it is associated with the view that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case.

      d) Joseph Raz-

Some philosophers used to contend that positivism was the theory that there is "no necessary connection" between law and morality; but influential contemporary positivists, including Joseph Raz, John Gardner, and Leslie Green, reject that view. As Raz points out, it is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder).

Joseph Raz defends the positivist outlook, but criticised Hart's "soft social thesis" approach in The Authority of Law.  Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorisation of rules beyond their role as authoritative is best left to sociology, rather than jurisprudence


2) Ronald Dworkin:

In his book Law's Empire Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an 'interpretive' concept that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. According to him, law is not entirely based on social facts, but includes the morally best justification for the institutional facts and practices that we intuitively regard as legal. It follows on Dworkin's view that one cannot know whether a society has a legal system in force, or what any of its laws are, until one knows some moral truths about the justifications for the practices in that society. It is consistent with Dworkin's view—in contrast with the views of legal positivists or legal realists—that *no one* in a society may know what its laws are (because no one may know the best justification for its practices.)

Interpretation, according to Dworkin's law as integrity theory, has two dimensions. To count as an interpretation, the reading of a text must meet the criterion of fit. But of those interpretations that fit, Dworkin maintains that the correct interpretation is the one that puts the political practices of the community in their best light, or makes of them the best that they can be. But many writers have doubted whether there is a single best justification for the complex practices of any given community, and others have doubted whether, even if there are, they should be counted as part of the law of that community.


3) Legal realism:

Legal realism was a view popular with some Scandinavian and American writers. Skeptical in tone, it held that the law should be understood and determined by the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. It had some affinities with the sociology of law. The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.

It has become quite common today to identify Justice Oliver Wendell Holmes, Jr., as the main precursor of American Legal Realism (other influences include Roscoe Pound, Karl Llewellyn and Justice Benjamin Cardozo). Karl Llewellyn, another founder of the U.S. legal realism movement, similarly believed that the law is little more than putty in the hands of a judge who is able to shape the outcome of a case based on personal biasesThe chief inspiration for Scandinavian legal realism many consider to be the works of Axel Hägerström. Despite its decline in facial popularity, realists continue to influence a wide spectrum of jurisprudential schools today, including critical legal studies (scholars such as Duncan Kennedy and Roberto Unger), feminist legal theory,critical race theory, sociology of law and law and economics.


4) The Historical School:

Historical jurisprudence came to prominence during the German debate over the proposed codification of German law. In his book On the Vocation of Our Age for Legislation and Jurisprudence, Friedrich Carl von Savigny argued that Germany did not have a legal language that would support codification because the traditions, customs and beliefs of the German people did not include a belief in a code. The Historicists believe that the law originates with society.

 

 

• NORMATIVE JURISPRUDENCE

In addition to the question, "What is law?", legal philosophy is also concerned with normative, or "evaluative" theories of law. What is the goal or purpose of law? What moral or political theories provide a foundation for the law? What is the proper function of law? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law? Some of the different schools and leading thinkers are as follows.


1) Virtue jurisprudence-

Aretaic moral theories such as contemporary virtue ethics emphasize the role of character in morality. Virtue jurisprudence is the view that the laws should promote the development of virtuous characters by citizens. Historically, this approach is associated mainly with Aristotle or Thomas Aquinas later. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.


2) Deontology-

Deontology is "the theory of duty or moral obligation.
" The philosopher Immanuel Kant formulated one influential deontological theory of law. He argued that any rule we follow must be universalisable: we must be willing to will everyone to follow that rule. A contemporary deontological approach can be found in the work of the legal philosopher Ronald Dworkin.


3) Utilitarianism-

Utilitarianism is the view that the laws should be crafted so as to produce the best consequences for the greatest number of people possible. Historically, utilitarian thinking about law is associated with the great philosopher, Jeremy Bentham. John Stuart Mill was a pupil of Bentham's and was the torch bearer for utilitarian philosophy through the late nineteenth century. In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition. Also see Lysander Spooner

 

 

 

4) John Rawls-

John Rawls was an American philosopher, a professor of political philosophy at 
Harvard University and author of  A Theory of Justice (1971), Political LiberalismJustice as Fairness: A Restatement, andThe Law of Peoples. He is widely considered one of the most important English-language political philosophers of the 20th century. His theory of justice uses a device called the original position to ask us which principles of justice we would choose to regulate the basic institutions of our society if we were behind a 'veil of ignorance.' Imagine we do not know who we are - our race, sex, wealth status, class, or any distinguishing feature - so that we would not be biased in our own favour. Rawls argues from this 'original position' that we would choose exactly the same political liberties for everyone, like freedom of speech, the right to vote and so on. Also, we would choose a system where there is only inequality because that produces incentives enough for the economic well-being of all society, especially the poorest. This is Rawls's famous 'difference principle'. Justice is fairness, in the sense that the fairness of the original position of choice guarantees the fairness of the principles chosen in that position.

There are many other normative approaches to the philosophy of law, including critical legal studies and libertarian theories of law.

 

 
 
 
 
 
 
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