Jurisprudence Legal Theory Sharmila Ghuge 2011-2012.
-
Upload
jeffrey-leonard -
Category
Documents
-
view
236 -
download
8
Transcript of Jurisprudence Legal Theory Sharmila Ghuge 2011-2012.
JurisprudenceLegal Theory
Sharmila Ghuge
2011-2012
Books for Reference
• Jurisprudence by-
• Holland
• Roscoe Pound
• V. D. Mahajan
• Friedmann
• Dr. Mani Tripathi
• Rohinton Mehta
Introduction
• Juris- means law
• Prudence- means knowledge
• juris+ prudence= Knowledge of law
• Alphabets + grammar = English
• Jurisprudence + Law = Legal System
• Jurisprudence is to law what grammar is to English.
Definitions
• Ulpian Knowledge of things divine and human. (Knowledge of Right and wrong)
• Gray Systematic arrangement of rules, which are followed by the courts.
• Dr. Allen Scientific synthesis of essential principles of law.
• R. Pound Science of law.
• Salmond Investigation into law.
What is Jurisprudence??????
IPC Torts ContractEnviron-
mentLaw
IPR
Sociology, Ethics, Psychology, Economics, Politics, Logic, Mathematics, Science, etc.
Jurisprudence
Purpose and Use of Jurisprudence
• Purpose Analysis, synthesis and improvement in legal concepts.
• Uses Understand law, scientific development, fundamental concept, helps in interpretation to ascertain meaning.
Stages of Development• Roman thought Law & Morality
• Greek Eternal/ natural Justice
• Asia Dharma
• Dark Ages Domination of Church
• Reformation Line between religion and law
• Developments Analytical School, Historical School, Sociological School, Realist School.
Sources of Law• Source origin
• Different opinions source of law
• Austin law originates from the sovereign
• Savigny origin in “volksgeist”
• Pound numerous factors
• Theologians law originates from God
• Legal theory classifies sources of law
Sources of Law
Formal SourcesSources from which law
derives its force and validity
Material SourcesSources from which law derives
not its validity but the matter of which it is composed
Legal Sources1. Enacted laws2. Case laws3. Customary laws4. Conventional laws
Historical SourcesUnauthoritative
No legal recognitionEx: juristic writing, foreign decisions
Sources of Law
• Customs Source of law
• A common imitation by group of people for a certain period.
• Any particular conduct followed for long period becomes custom.
• Salmond Customs commended to the national conscience as principles of justice and public utility.
Customs Various Legal System
RomeYes, accepted CustomsBeforecodification
IndiaManusmrutiMuslim RulePrivy CouncilStrong influenceOf customs
EnglandVery Imp
Common Law
Judge made laws
Strong influence
FranceNever accepted
But indirectly
Followed customs
Customs
Legal Customs Conventional Customs
General Custom
Prevail throughoutLocal Custom
Only specific
section
Geographical Personal
Agreement
Established by parties
As per law
Essentials of Valid Customs• Antiquity (year 1189)
• Continuance of customs
• Peaceful enjoyment
• Certainty
• Reasonableness (Public policy)
• Conformity with statute
• When does a custom become law?
Custom – Law ?
• Analytical view- Austin-Customs not law until so declared by the sovereign. Gray- Customs not law until approved by judge.
• Historical- Puchta- Recognition by State not necessary.
• Correct position- Synthesis of both the views.
• Custom base of legal systems but in accordance to law.
Precedent• Definition “a previous instance or a case
which is, or may be taken as an example of rule for subsequent cases, or by which some similar act or circumstances may be supported or justified”
• Role of judges
• Inductive method
• Deductive method
Various Legal System & Precedent
Roman LawJustinansDeclarationNo evidence
French Law
Court de cassation
Followed precedent
German Law
Completely
Followed
precedents
English Law
Followed since ages
Bracton in 14th
Century reported
500 cases.
Lower courts bound
By precedent of
House of Lords.
Operation of Precedents
• Hierarchy of Courts• Supreme Court
• High Courts
• Divisional Courts
Precedent in India• Precedents in English legal system• India Ancient times (Mahabharata) Agranian
Society (no disputes) medieval period (Muslim Rule) British Rule Reporting since 1773 Privy Council- Supreme Court (Calcutta)- High Court.
• Presently Article 141 of Constitution- Law Binding on lower courts.
• Sajjan Singh v. State of Rajasthan• Golaknath v. State of Punjab• Keshwanand Bharti v. State of Kerela
Application of Precedent
• Ratio Decendi Material Element (a guide for similar cases)
• Obiter Dictum Observation (No principle laid down)
• Declaratory theory judges make law or declare law?
• Blackstone- Custom- Common Law- judge made law
Continued…• J. Cardozo Creative role of judges
• Creativity + Law + intelligent application= proper interpretation of law (prospective over ruling)
• Legislation makes law (skeleton)- ex: 14, 19, & 21.
• Judiciary interpretation of law (adding life to the skeleton) Eg: Vishaka v. State of Rajathan.
Legislation
• Definition “The promulgation of legal rules by an authority which has the power to do so”
• Legislation the best source of law.
• Statute law is definite, brief, clear and easily understandable.
• Authority dejure + express will of State
• Advanced and systematic method
• Supreme source of law.
Supreme & Subordinate legislation
• Supreme legislation is the power of State
• Subordinate legislation is law made by any other authority than the supreme authority.
• Executive made law Delegated legislation.
• 20th century (social solidarity I World War)
• Post war reconstruction
• 1929- Lord Hewart
• 1932- Committee on Ministers Powers
Supreme & Subordinate legislation
• Necessity to have subordinate legislation
• Reasons Want of time, technicality, emergency, flexibility, etc.
• Safeguards (parliamentary, judicial, procedural control)
• Queen v. Burah
• In re Delhi Laws Act
• Ram Javaya Kapur v. State of Punjab
Legal Concept of Person
• What is personality
• Derived from Greek word “Persona”
• “Rational subtraction of human being”
• Legal meaning Right and duty bearing unit.
Persons
Natural Legal
UnbornRight to life
Living (Born)
Normal Abnormal(Lunatic)
Corporation Sole
Corporation aggregate
Continued…• Rights of Animals Ancient period-King
Jehangir.
• Present era- Under Article 48 A protection of animals but no legal personality.
• Status & rights of dead man
• Status & rights of lunatic- S. 82-84 IPC- immunity from criminal liability
Legal Person
• Legal person is nay subject matter other than a human being to which law attributes personality.
• It includes an object, a mass of property, institution, company, etc.
• Corporate personality• Origin form Roman and ancient Hindu law
• English law- Juristic persons Corporation Sole and corporation Aggregate
Legal Person• Corporation Sole is defined as an incorporated
series of successive persons.
• Corporation aggregate means an incorporated group of co-existing persons.
• Corporation can be created by a royal charter, some special statute, by registration under Companies Act.
Theories of Corporate Personality• Fiction Theory only human beings can be
called persons, groups may be regarded as persons for certain purposes only by fiction but no real personality.
• Concession theory Corporate bodies have legal personality only to the extent granted by law.
• Realist Theory organic theory- Group has real will, real mind and power of action. Legal personality not fictious.
Theories of Corporate Personality
• Bracket Theory Symbolist theory- members of corporation are the only persons who have rights and duties. Juristic personality is only a symbol which helps effectuating the interest or purpose of the group.
• Salomon v. Salomon, People’s Pleasure Park Co. v. Rohleder, Daimler co. v. Continental Tyre Co.
Liability of Corporation
• Liability of Corporations in Contract.
• Liability of Corporations for torts.
• Liability of Corporations for criminal acts.
Rights and Duties
• What is a Right????
• Fundamental Right??
• Legal Right?
Theories of Right
Will TheoryHolland, Austin
Interest Theory
Salmond
Self expression
Birth Right(Natural)
Lack of interest
eg: infants, lunatics,
corporate
Synthesis Will + Interest= Right
Definitions of Right
• Salmond Right is an interest recognized and protected by law.
• Holland Capacity residing in one man of controlling with assent and assistance of the State the actions of others.
• Austin Right is a faculty which resides in a determinate party by virtue of a given law and which bounds other party with corresponding duty.
Elements of Legal Right
• The Subject Subject means the holder of the right. (There can be no right without holder).
• The act Right relates to some act. It obliges a person to act in favour of the person who is entitled to the right.
• The Object It is the thing in respect of which the right exists or is exercised.
• The Duty It means the person upon whom falls the correlative duty.
Elements of Legal Right
• Title added by Salmond- Every legal right has a title.
• Ex: If A buys a piece of land from B.• A is the subject (owner of the right acquired).• Transfer of land is the act.• Piece of land is the object.• B’s Duty to transfer the land in A’s name• After the transfer A gains a title as owner of the
land.
LandA…..B
Wider Sense of Right [Hohfeld’s Theory]
• Rights (generic) eg: Monkey (generic)
• Liberty Guerilla
• Power Ape
• Immunity Human
Species Species
Jural Opposites & Jural Correlatives
Right Liberty
Duty No Right
Power Immunity
Liability Disability
Right Liberty
Duty No Right
Power Immunity
Liability Disability
Jural Corelatives• Right ---------------------------------------Duty• Ex: Fundamental Rights……Reasonable restrictions• Liberty--------------------------No Right• Ex: Damnum Sine Injuria (Glouester Grammer
School) Also, U/A 19 (1) (g)• Power-------------------------Liability• Ex: Making will……..Will….Beneficial Liability• Immunity----------------------Disability• Ex: Freedom from subjection…….Absence of Power• President cannot be arrested………Policemen
Kinds of Rights
• Antecedent & Remedial Rights(Primary & secondary)• Principal & Accessory• Perfect & Imperfect Rights• Positive & Negative Rights• Rights in Rem & Rights in Persona• Rights inpropria & Rights in realiena• Proprietary & Personal Rights• Vested & Contignet Rights
Possession
• Possession A polymorphous term
• Evidence of ownership
• Why law protects possession??
• Rouseu & Kant Human born free individual will possession is desire.
• Savigny To avoid violence.
• Ihering possessors are owners.
• Holland Preservation of peace.
Definitions
• Holmes man + Physical relation to object + intent + exclude rest of the world
• Salmond Continuing exercise of claim to the exclusive use of it.
• Pollock control over object + excluding others
• Relation to person + Relation to things + to exclude others= Possession
Analysis of Possession
• Salmond Corpus possessionis (Physical contact) + Animus domini (intention)
• Rights of Possessor• Possession is root of title Nine points in law.
• Transfer of possession transfer of ownership.
• Better claim against the whole world except real owner
Types of Possession
• Corporeal Possession & Incorporeal Possession.
• Immediate Possession & Mediate Possession.
• Defacto Possession & Dejure Possession.
• Adverse Possession & Constructive Possession.
Modes of Acquiring Possession
• Taking Res-Nullius (no original owner)
Res-Derelictae (Abandoned property)
• Delivery Transfer, sell, contrcat, gift, etc.• Constructive Delivery Traditio (surrender)
Constitum (auction) Attornment (Transfer)
• By Operation of Law eg: wills
Ownership
• Akin to possession possession came into existence and then ownership.
• Nomadic to agricultural• Roman Law- Dominium- absolute right,
possessio- possession.
• Hindu Law- Distinct Conceptions
• English Law- owner 1340- ownership- 1583.
Ownership
• Custody Relation to object without animus.
• Detention Relation to hold back object.
• Possession Relation to object, law recognises.
• Ownership Relation to object, exclusive, absolute & ultimate.
Definitions
• Austin A right over a determinate thing+ indefinite use+ unrestricted disposition+ unlimited duration.
• Holland A plenary control over object + possession + enjoyment + disposition.
• Salmond It denotes the relation between a person and rights vested.
• Renner’s Theory Relation between man and things.
Ownership
• Rights of ownership• Right of possession.
• Right of enjoyment.
• Right of disposal.
Classification of Ownership
• Corporeal and Incorporeal
• Sole and Co-ownership
• Trust and Beneficial ownership
• Vested and Contingent ownership
• Absolute and limited ownership
Modes of Acquisition
original
Absolute
Extinctive
Accessory
Derivative
occupatio
Specificatio
Previous ownerInheritancePurchase
gift
ALL THE BEST!