*Note -1

Please go through the entire concepts and have an brief idea on these
concepts, so that points will be remembered. Some of the concepts are
discussed in a lengthy way, shorten them by reading full concept.

Ex-in some concepts different versions had been given upon the same
concept, you read and find the simple one.

*Note 2: Some of the concepts are lengthy, so that they may be useful for
essay type answers, extract the notes for short type from them.

*Note 3: Apart reading these concepts, read the already notes prepared by
You on these topics, this is my sincere advice.

Q.1.What is Jurisprudence?
There is no universal or uniform (constant) definition of Jurisprudence
since people have different ideologies (beliefs) and notions (ideas) throughout
the world. It is a very vast subject.

When an author talks about political conditions of his society, it reflects that
condition of law prevailing at that time in that particular society. It is believed that
Romans were the first who started to study what is law.
Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.
-Most of our law has been taken from Common Law System.
-Bentham is known as Father of Jurisprudence. Austin took his work further.

Austin- He said that “Science of Jurisprudence is concerned with Positive Laws

that is laws strictly so called. It has nothing to do with the goodness or
badness of law.
This has two aspects attached to it:
1. General Jurisprudence- It includes such subjects or ends of law as are
common to all system.
2. Particular Jurisprudence- It is the science of any actual system of law or any
portion of it.
Basically, in essence they are same but in scope they are different.
Salmond- He said that Jurisprudence is Science of Law. By law he meant law
of the land or civil law. He divided Jurisprudence into two parts:
1. Generic- This includes the entire body of legal doctrines. (Rule or Principles)
2. Specific- This deals with the particular department or any portion of the
doctrines.

‘Specific’ is further divided into three parts: is further divided into three parts:
1. Analytical,(systematic) Expository (the act of describing and discussing a
theory, problem, or proposal, or of commenting on a written text or Systematic)- It
deals with the contents of an actual legal system existing at any time, past or the
present.
2. Historical- It is concerned with the legal history and its development
3. Ethical- According to him, the purpose of any legislation is to set forth laws as it
ought to be. It deals with the ‘ideal’ of the legal system and the purpose for which it
exists.

Q.2. Explain the Concept of Law?

Ans. The actual definition of jurisprudence can vary, dependent on the context of
the usage. Jurisprudence can have different meanings for different people.
Theoretically, however, it is the science, philosophy and the study of the law.
Originally conceived by the College of Pontiffs in Ancient Rome, the indirect body of
laws created became the basis of what we today view as modern jurisprudence.
There are different aspect of jurisprudence which, when examined, help to clarify
post-modern concepts of the study of the law. The first dichotomy (separation)
is Legal Realists versus Formalists. Formalists believe that it is individual
judges are responsible for identifying the legal issues at the heart of a dispute and
applies them logically to the facts to determine the outcome of a case. Legal
Realists, in opposition, believe that judges must balance interests by using their
own psychological, economic and political inclinations to make
determinations. This perspective encourages judges to review all relevant facts
and then draw an arbitrary line on which to settle disputes.
Another set of opposing views of jurisprudence occurs with the Analytic
perspective versus the normative perspective . Analytics view jurisprudence as
how the law 'is' at the present time. Normativists look at jurisprudence as what the
law 'ought' to be. These two views are in direct contrast and if a judge rules under
the normative perspective, she could be accused as being an activist (modern)
judge - someone who wants to expand the law. Judges who rule under analytic
views are viewed often as conservative (traditional, old-fashioned) judges as
they apply the law as they believe it was written with the original intentions. They
do not like to expand jurisprudence beyond the clear, and sometimes limiting, rules
of law created by government. Also within activist jurisprudence can be sub-
categories. These can include Feminists (women’s libber) where they seek to
ensure that the law is written and applied fairly towards both sexes. Islamic
jurisprudence is another idea where the religion supersedes all other laws including
laws of man created by governments.
Positivists versus Naturalists are another set of contrasting views on
jurisprudence. Positivists believe that laws are dictated by government and
government alone. They see no connection between morality and the law. Laws are
man-made and to be applied in a consistent as opposed to fluid manner.
Naturalists believe that there can be laws made by governments but that there
can be other 'natural' laws as well. Morality, philosophy, individual conscience
and group reason can also be used to create laws to be followed. This perspective
puts humanity on the same par as government when it comes to writing and
enacting laws. From the writing of laws to the enacting of said laws, jurisprudence
studies the structure of the legal system and how it impacts the citizens.
Jurisprudence is not only the study and application of current laws; it is the
theoretical study of where the law ought to be headed. The study includes the
reviewing of how laws came to be and how they ought to develop into the future.
Another subdivision in jurisprudence is the ethics and ethical questions which arise
when the law is being applied. The best aspect of jurisprudence is that it a fluid,
changing, growing and expanding concept which can be as progressive (or
regressive) as judges, lawyers, legislators and governments choose it to be.

Q.3. Explain the Purpose and function of law?

Society is dynamic and not static in nature. Laws made for the people are also
not static in nature. Thus, purpose and function of law also cannot remain static.
There is no unanimity among theorists as to purpose and function of law. Thus, we
will study purpose and function of law in the context of advantages and
disadvantages.
1. Advantages of law-

a. Fixed principles of law

i. Laws provide uniformity (equality, regularity) and certainty (faith, confidence)

of administration of justice.

ii. Law is no respecter of personality (nature, behavior) and it has certain amount of
certainty attached to it.
iii. Law avoids the dangers of arbitrary,(chance, illogical, random) biased and
dishonest decisions because law is certain and it is known. It is not enough that
justice should be done but it is also important that it is seen to be
done.

iv. Law protects the Administration of Justice from the errors of individual
judgments. Individual whims and fancies are not reflected in the judgment of the
court that follow the Rule of Law.

b. Legislature represents the wisdom of the people and therefore a law made by the
legislature is much safer because collective decision making is better and more
reliable than individual decision making.

2. Disadvantages of law-

a. Rigidity of Law- An ideal legal system keeps on changing according to the

changing needs of the people. Therefore, law must adjust to the needs of the
people and it cannot isolate itself from them. However, in practice, law is not
usually changed to adjust itself to the needs of the people. Therefore, the
lack of flexibility results into hardship in several cases.

b. Conservative nature of law- Both lawyers and judges favour in continuation of

the existing laws. This creates a situation where very often laws become static and
they do not respond to the progressive (advanced, liberal) society because of the
conservative nature of law.
c. Formalism of law- Most of the times, people are concerned with the technical
operation of law and not the merits of every individual case. It creates delay in the
Justice Delivery system. It also leads to injustice in certain cases.
d. Complexity of law- Sometimes, the laws are immensely intricate and complex.
This causes difficulty in Interpretation of Statutes.

3. Therefore, advantages of law are many but disadvantages are too much-
Salmond.

Q.4. Explain Austin’s Theory of Law or Imperative Theory of Law?

As we know, according to Austin, there are three elements in law:

a. It is a type of command
b. It is laid down by a political superior
c. It is enforced by a sanction

He goes on to elaborate this theory. For him, Requests, wishes etc. are
expressions of desire. Command is also an expression of desire which is
given by a political superior to a political inferior. The relationship of superior
and inferior consists in the power which the superior enjoys over the
inferior because the superior has ability to punish the inferior for its disobedience.

He further said that there are certain commands that are laws and there are
certain commands that are not laws. Commands that are laws are general in
nature. Therefore, laws are general commands. Laws are like standing order in a
military station which is to be obeyed by everybody.

He goes on to define who is a sovereign. According to him, Sovereign is a

person or a body or persons whom a bulk of politically organized society
habitually obeys and who does not himself habitually obey some other
person or persons. Perfect obedience is not a requirement.

He further goes on to classify the types of laws:

1. Divine Law- Given by god to men

2. Human Law- Given by men to men
a. Positive Laws- Statutory Laws
b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.

Criticism of Austin’s Theory of Law

1. Laws before state- It is not necessary for the law to exist if the sovereign
exists. There were societies prior to existence of sovereign and there were rules
that were in prevalence. At that point of time, there was no political superior.
Law had its origin in custom, religion and public opinion. All these so called ‘laws’
were later enforced by the political superior. Thus, the belief that sovereign is a
requirement for law has received criticism by the Historical and Sociological
School of Thought.

However, the above mentioned criticism is not supported by Salmond. Salmond said
that the laws which were in existence prior to the existence of state were
something like primitive substitutes of law and not law. They only resembled
law. Salmond gave an example. He said that apes resemble human beings but
it is not necessary to include apes if we define human beings.

2. Generality of Law- The laws are also particular in nature. Sometimes, a Law is
applicable only to a particular domain. There are laws which are not universally
applicable. Thus, laws are not always general in nature.

3. Promulgation- It is not necessary for the existence of the law that the subjects
need to be communicated. But, Austin thought otherwise.

4. Law as Command- According to Austin, law is the command of the

sovereign. But, all laws cannot be expressed as commands. Greater part of law in
the system is not in the nature of command. There are customs, traditions, and
unspoken practices etc. that are equally effective.

5. Sanction- The phrase ‘sanction’ might be correct for a Monarchical state. But
for a Democratic state, laws exist not because of the force of the state but due to
willing of the people. Hence, the phrase ‘sanction’ is not appropriate in such
situations. Also, there exists no sanction in Civil Laws unlike Criminal Laws.

6. Not applicable to International Law- Austin’s definition is not applicable to

International Law. International Law represents law between sovereigns.
According to Austin, International Law is simply Positive Morality i.e. Soft Laws.

7. Not applicable to Constitutional Law- Constitutional Law defines powers of

the various organs of the state. It comprises of various doctrines such as separation
of power, division of power etc. Thus, no individual body of a state can act as
sovereign or command itself. Therefore, it is not applicable to constitutional law.

8. Not applicable to Hindu Law or Mohameddan Law or Cannon Law-

Personal Laws have their origin in religion, customs and traditions. Austin’s
definition strictly excludes religion. Therefore, it is not applicable to personal laws.

9. Disregard of Ethical elements- The moment law is devoid of ethics, the law
loses it colour and essence. Justice is considered an end of law or law is considered
a means to achieve Justice. However, Austin’s theory is silent about this special
relationship of Justice and Law. Salmond said that any definition of law which
is without reference to justice is imperfect in nature. He further said ‘Law is
not right alone, it is not might alone, it a perfect union of the two’ and Law is
justice speaking to men by the voice of the State. According to Salmond,
whatever Austin spoke about is ‘a law’ and not ‘the law’. By calling ‘the law’ we
are referring to justice, social welfare and law in the abstract sense. Austin’s
definition lacked this abstract sense. A perfect definition should include both ‘a
law’ and ‘the law’.

10. Purpose of law ignored- One of basic purposes of Law is to promote Social
Welfare. If we devoid law of ethics, the social welfare part is lost. Again, this part
has been ignored by Austin.

Merit in Austin’s Definition

,

Not everything is faulty about Austin’s theory of law. He gave a clear and simple
definition of law because he has excluded ethics and religion from the ambit law.
Thus, he gave a paramount truth that law is created and enforced by the state.
Q. 5. Explain the Concept of NORMATIVE SYSTEM? Or Kelson Pure
Theory of Law?

Ans. Kelsen's Pure Theory of Law is an important theory of Law related

to Jurisprudence.

 Henry Kelsen (1881 - 1973) was a Professor of Law at the University

of Vienna.
 He propounded the Theory of Law in his essay 'The Pure Theory of
Law' and contributed it to the Law Quarterly Review in 1934.
 This theory is an improvement of Austin's Positivism Theory
. This theory was further elaborated in 1945 in his 'General Theory of Law
and State'.
Postulates (Guesses, hypothesis)of Kelsen:-

Law is a norm of action

 Kelsen regards Jurisprudence as a normative science and not a natural

science.
 In natural sciences, laws are statements(speeches, announcements) of
the sequence of cause(reason, root, origin, base, source) and effect.
(result)
. If A is, B is.
 There can be no infraction (breach, violation) of such a law, for a
single infraction invalidates (cancels) the law.
 Jurisprudence according to Kelsen is a normative science.
. If A is, then B ought to B. Eg: If a person commits a murder, he ought to
be hanged.
 The law is valid irrespective of consequences.
'State' is a synonym for the legal order which is nothing but a
pyramid of norms

The basic problem in Kelson's Pure Theory of Law is the derivation (root,
source) of norms. The question of the criterion (standard, principle) of the
testing of lawness of these norms exists.

Kelsen answers this by his hypothesis of 'grundnorm' or fundamental

norm or basic norm or the base. The Grundnorm is a norm which is not
capable of dedication from any principles of the science of law. Hence, the
grundnorm is the fundamental norm and all other norms are derived from
grundnorms in a hierarchical structure.
'Purity' of Kelsen' Theory

Kelsen's Pure Theory of Law attempts to be a consistent theory of law

applicable to any legal system. He calls it pure because it is Universalist
and not confined to any particular legal system.

Understanding purpose.

Normative means relating to an ideal standard of or model, or being based on

what is considered to be the normal or correct way of doing something.

Normative has specialized meanings in different academic disciplines such as

philosophy, social sciences, and the law.

n philosophy, normative statements make claims about how things should

or ought to be, how to value them, which things are good or bad, and
which actions are right or wrong. Normative claims are usually contrasted
with positive (i.e. descriptive, explanatory, or constative) claims when describing
types of theories, beliefs, or propositions. Positive statements are (purportedly-)
factual statements that attempt to describe reality.

For example, "children should eat vegetables", and "those who would sacrifice
liberty for security deserve neither" are normative claims. On the other hand,
"vegetables contain a relatively high proportion of vitamins", "smoking causes
cancer", and "a common consequence of sacrificing liberty for security is a loss of
both" are positive claims. Whether or not a statement is normative is logically
independent of whether it is verified, verifiable, or popularly held.

There are several schools of thought regarding the status of normative statements
and whether they can be rationally discussed or defended. Among these schools are
the tradition of practical reason extending from Aristotle through Kant to Habermas,
which asserts that they can, and the tradition of emotivism, which maintains that
they are merely expressions of emotions and have no cognitive content.

Normative statements and norms, as well as their meanings, are an integral part
of human life. They are fundamental for prioritizing goals and organizing and
planning thought, belief, emotion and action and are the basis of much ethical and
political discourse; indeed, normativity is arguably the key feature distinguishing
ethical and political discourse from other discourses (such as natural science).

Much modern moral/ethical philosophy takes as its starting point the apparent
variance between peoples and cultures regarding the ways in which that which is
considered to be appropriate/desirable/praiseworthy/valuable/good etc. is defined.
(In other words, variance in how individuals, groups and societies define what is in
accordance with their normative standards.) This has led philosophers such as A.J.
Ayer and J.L. Mackie (for different reasons and in different ways) to cast doubt on
the meaningfulness of normative statements. However, other philosophers, such
as Christine Korsgaard, have argued for a source of normative value which is
independent of individuals' subjective morality and which consequently attains (a
lesser or greater degree of) objectivity.

Law

Normative jurisprudence

In law, as an academic discipline, the term "normative" is used to describe the way
something ought to be done according to a value position. As such, normative
arguments can be conflicting, insofar as different values can be inconsistent with
one another. For example, from one normative value position the purpose of the
criminal process may be to repress crime. From another value position, the purpose
of the criminal justice system could be to protect individuals from the moral harm
of wrongful conviction.

Essay type Questions

Under Types of Authorities:

Q.6. Explain the Concept of Custom, essentials of a Valid Custom and kinds
of Customs?

Answer: - Custom can simply be explained as those long established

practices or unwritten rules which have acquired binding or obligatory
character.
A custom, to be valid, must be observed continuously for a very long time
without any interruption. Further, a practice must be supported not only for a very
long time, but it must also be supported by the opinion of the general public and
morality. However, every custom need not become law. For example, the Hindu
Marriages Act, 1955 prohibits marriages which are within the prohibited degrees of
relationship. However, the Act still permits marriages within the prohibited degree
of relationship if there is a proven custom within a certain community.

In ancient societies, custom was considered as one of the most important sources
of law; In fact it was considered as the real source of law. With the passage of
time and the advent of modern civilization, the importance of custom as a source of
law diminished and other sources such as judicial precedents and legislation gained
importance.

Can Custom be law?

There is no doubt about the fact that custom is an important source of law.
Broadly, there are two views which prevail in this regard on whether custom is law.
Jurists such as Austin opposed custom as law because it did not originate from the
will of the sovereign. Jurists like Savigny consider custom as the main source of
law. According to him the real source of law is the will of the people and not the will
of the sovereign. The will of the people has always been reflected in the custom and
traditions of the society. Custom is hence a main source of law.
Saptapadi is an example of customs as a source of law. It is the most important
rite of a Hindu marriage ceremony. The word, Saptapadi means "Seven steps".
After tying the Mangalsutra, the newly-wed couple take seven steps around the
holy fire, which is called Saptapadi.

The customary practice of Saptapadi has been incorporated in Section 7 of the

Hindu Marriage Act, 1955.

Kinds of Customs:-

Customs can be broadly divided into two classes:

i. Customs without sanction: These kinds of customs are non-obligatory in

nature and are followed because of public opinion.

ii. Customs with sanction: These customs are binding in nature and are enforced
by the State. These customs may further be divided into the following categories:

(a) Legal Custom: Legal custom is a custom whose authority is absolute; it

possesses the force of law. It is recognized and enforced by the courts. Legal
custom may be further classified into the following two types:
General Customs: These types of customs prevail throughout the territory of the
State.
Local Customs: Local customs are applicable to a part of the State, or a particular
region of the country.
(b) Conventional Customs: Conventional customs are binding on the parties to an
agreement. When two or more persons enter into an agreement related to a trade,
it is presumed in law that they make the contract in accordance with established
convention or usage of that trade. For instance an agreement between landlord and
tenant regarding the payment of the rent will be governed by convention prevailing
in this regard.
Essentials of a valid custom:-

All customs cannot be accepted as sources of law, nor can all customs be
recognized and enforced by the courts. The jurists and courts have laid down some
essential tests for customs to be recognized as valid sources of law. These tests are
summarized as follows:

Antiquity (olden times, ancient) In order to be legally valid customs should have
been in existence for a long time, even beyond human memory. In England, the
year 1189 i.e. the reign of Richard I King of England has been fixed for the
determination of validity of customs. However, in India there is no such time limit
for deciding the antiquity of the customs. The only condition is that those should
have been in practice since time immemorial.
Continuous (constant): A custom to be valid should have been in continuous
practice. It must have been enjoyed without any kind of interruption. Long intervals
and disrupted practice of a custom raise doubts about the validity of the same.

Exercised as a matter of right: - Custom must be enjoyed openly and with the
knowledge of the community. It should not have been practiced secretly. A custom
must be proved to be a matter of right. A mere doubtful exercise of a right is not
sufficient to a claim as a valid custom.

Reasonableness (fairness) a custom must conform to the norms of justice and

public utility. A custom, to be valid, should be based on rationality and reason. If a
custom is likely to cause more inconvenience and mischief than convenience, such a
custom will not be valid.

Morality: A custom which is immoral or opposed to public policy cannot be a valid

custom. Courts have declared many customs as invalid as they were practiced for
immoral purpose

Status with regard to: In any modern State, when a new legislation is enacted, it
is generally preferred to the custom. Therefore, it is imperative that a custom must
not be opposed or contrary to legislation. Many customs have been abrogated by
laws enacted by the legislative bodies in India. For instance, the customary practice
of child marriage has been declared as an offence. Similarly, adoption laws have
been changed by legislation in India.

Importance of custom as a source of law in India:-

Custom was the most important source of law in ancient India. Even the British
initially adopted the policy of non-intervention in personal matters of Hindus and
Muslims. The British courts, in particular, the Privy Council, in cases such as
Mohammad Ibrahim v. Shaik Ibrahim, (AIR 1922 PC 59) observed and underlined
the importance of custom in moulding the law. At the same time, it is important to
note that customs were not uniform or universal throughout the country. Some
regions of the country had their own customs and usages.

These variances in customs were also considered a hindrance in the integration of

various communities of the country. During our freedom struggle, there were
parallel movements for social reform in the country. Social reformers raised many
issues related to women and children such as widow re-marriage and child
marriage.

After independence and the enactment of the Constitution, the Indian Parliament
took many steps and abrogated many old customary practices by some progressive
legislation. Hindu personal laws were codified and the Hindu Marriage Act, 1955 and
the Hindu Adoption Act, 1955, were adopted. The Constitution of India provided a
positive environment for these social changes. After independence, the importance
of custom has definitely diminished as a source of law and judicial precedent, and
legislation has gained a more significant place. A large part of Indian law, especially
personal laws, however, are still governed by the customs.

Hindu Personal Laws that have been codified are as follows:

Trace the developments relating to the Property Rights of Women with special
reference to the Hindu Women's Right to Property Act, 1937; Hindu Succession Act,
1956 and Hindu Succession (Amendment) Act, 2005.110
Hindu Personal Laws
a) Hindu Marriage Act, 1955
b) Hindu Succession Act, 1956,
c) Hindu Minority and Guardianship Act. 1956 and

d) Hindu Adoptions and Maintenance Act, 1956

Q. 7. Explain the Concept of Precedent? Kinds of Precedents and its Binding
Nature?
Ans : 1. Precedent : Precedent is meant by anything said or done which is quoted
and cited as authority for subsequent conduct. Precedent is created
by judicial decision pronounced by courts which may be given either by a superior
or a subordinate Court. A judicial decision is a precedent when is creates a new
rule; otherwise it is a judgment as between the parties.
2. Nature of Precedent
A precedent is purely constitutive and in no degree abrogation. This means that a
judicial decision can make a law but cannot alter it. Where there is a settled rule of
law, it is the duty of the judges to follow the same. They cannot substitute their
opinions for the established rule of law.
Precedent occupies in important position on English Law. Much of the English law
has been created by the Judges. It is only in the British legal system that precedent
is recognized as of binding authority if before the time of James. Precedents were
cited merely indicating true law.
3. Binding force of Precedent
Precedent has binding force because:-
,

 Administration of Justice has been concentrated in the hands of judges.

 The judges as a body of legal experts can properly law down the law for the
bar.
 When a case is decided, it is presumed that the decision is correct. A point
once decided between the parties become a re judicta and cannot again be litigated
upon, even if a decision be incorrect.
 The rule that the law as previously laid down must be followed induces
confidence in the minds of the litigants.
 Administration of justice becomes even handed and fair for a rule already
laid down is followed in all subsequent cases.

4. Classification of Precedent
Precedents may be classified into three divisions; (i) according to the nature of the
rule laid down, (ii) according to the influence exercised by them on the course of
future decisions, and (iii) according to the nature of the authority. Those under (i)
may be described as declaratory and original precedents, those under (ii) as
authoritative and persuasive precedents, and those under (iii) as precedents of
absolute authority and of condition authority. A seriatim description of these forms
is given below;
a. Declaratory and Original Precedents
i. Declaratory precedents
Declaratory precedents are those which do not lay down a new rule of law but only
declare a principle of law already existing. When the law is already sufficiently well
evidence, as when it is embodied in a statute or set forth with fullness and
clearness is some comparatively modern case, the reporting of declaratory
decisions is merely a needless addition to the great bulk of our case law. Such
precedents merely declare the law.

ii. Original Precedents

Original precedents are those which lay down a new rule of law. These are the
outcome of the internal exercise by the courts of their privilege of developing the
law while sitting to administer it. Such precedents make the law.
b. Authoritative and persuasive precedents
i. Authoritative precedents
Authoritative precedents are those which must be followed whether the Judge
deems the principle laid down as correct or not. Thus, the decisions of the High
Court are authoritative precedents for the subordinate Courts and the decisions of
the Supreme Court are authoritative precedents for the High Courts and all other
subordinate Courts.
ii. Persuasive precedents
Persuasive precedents are those which the Courts may or may not follow. Thus,
judgments of Indian high courts and the Supreme Court of India or of other Foreign
Courts are merely persuasive precedents for the Courts in Pakistan.
c. Precedent of absolute authority and of conditional authority
i. Precedents of absolute authority
Precedents of absolute authority are those which are absolutely binding, however,
unreasonable or erroneous they may appear to be. In this sense also the
precedents of superior Courts are precedents of absolute authority for the inferior
or subordinate courts. Similarly, a decision of the Full Bench is binding on a Bench
consisting of two or more judges of the same and subordinate courts.
ii. Precedents of conditional authority
Precedents of conditional authority are those which are binding but not absolutely.
Thus, a decision of a single judge of the High Court is only a conditional
authoritative precedent for a Judge of the same or another High Court.

Q.8. what is legislation? Kinds of legislation and its binding nature

explain?
Legislation- ‘Legis’ means law and ‘latum’ means making. Let us understand how
various jurists have defined legislation.

1. Salmond- Legislation is that source of law which consists in the declaration of

legal rules by a competent authority.
2. Horace Gray- Legislation means the forma utterance of the legislative organs of
the society.

3. John Austin- There can be no law without a legislative act.

Analytical Positivist School of Thought- This school believes that typical law is a
statute and legislation is the normal source of law making. The majority of
exponents of this school do not approve that the courts also can formulate
law. They do not admit the claim of customs and traditions as a source of law.
Thus, they regard only legislation as the source of law.
,

Historical School of Thought- This group of gentlemen believe that Legislation

is the least creative of the sources of law. Legislative purpose of any legislation
is to give better form and effectuate the customs and traditions that are
spontaneously developed by the people. Thus, they do not regard legislation as
source of law.

Types of Legislation

1. Supreme Legislation- A Supreme or a Superior Legislation is that which

proceeds from the sovereign power of the state. It cannot be repealed, annulled or
controlled by any other legislative authority.
2. Subordinate Legislation- It is that which proceeds from any authority other
than the sovereign power and is dependant for its continual existence and
validity on some superior authority.

Chief forms of subordinate legislation

1. Colonial legislation: It means legislation by legislature of the colonies for
the self-government is subject to the control, alteration, repeal or
suppression by the legislation of the British parliament.
2. Executive legislation: - The legislative body enacts the fundamentals only
conferring upon the executive a rule making power for carrying out the
intentions of the legislature. The rules made in pursuance of this power of
delegated legislative have the force of law.
3. Judicial Legislation: - Law making power is also exercised by the law
courts for the regulation of their internal business proceedings of the courts
concerning their day to day functioning. This is known as judicial legislation
and is different from judicial precedent.
4. Municipal legislation:-The bye-law making power of municipal authorities
is another form of subordinate legislation. The municipal authorities have the
power to make rules for the areas under their jurisdiction concerning water,
land urban cess, house tax, etc.
5. Autonomous legislation:-Autonomous bodies like universities,
corporations, railway companies, clubs etc. have the power to make rules for
the conduct of their business. These rules too are made by them in
conformity with the Act of Parliament.

Delegated Legislation- This is a type of subordinate legislation. It is well-known

that the main function of the executive is to enforce the law. In case of Delegated
Legislation, executive frames the provisions of law. This is also known as executive
legislation. The executive makes laws in the form of orders, by laws etc.

Sub-Delegation of Power to make laws is also a case in Indian Legal system. In

India, the power to make subordinate legislation is usually derived from existing
enabling acts. It is fundamental that the delegate on whom such power is conferred
has to act within the limits of the enabling act.

The main purpose of such legislation is to supplant and not to supplement the law.
Its main justification is that sometimes legislature does not foresee the difficulties
that might come after enacting a law. Therefore, Delegated Legislation fills in those
gaps that are not seen while formulation of the enabling act. Delegated Legislation
gives flexibility to law and there is ample scope for adjustment in the light of
experiences gained during the working of legislation.

Controls over Delegated Legislation

Direct Forms of Control

1. Parliamentary Control
2. Parliamentary Supervision

Indirect Forms of Control

1. Judicial Control- This is an indirect form of control. Courts cannot annul

subordinate enactments but they can declare them inapplicable in special
circumstances. By doing so, the rules framed do not get repealed or abrogated but
they surely become dead letter as they become ultra vires and no responsible
authority attempts to implement it.

2. Trustworthy Body of Persons- Some form of indirect control can be exercised

by entrusting power to a trustworthy body of persons.

3. Public Opinion can also be a good check on arbitrary exercise of Delegated

Powers. It can be complemented by antecedent publicity of the Delegated Laws.

It is advisable that in matters of technical nature, opinion of experts must be taken.

It will definitely minimize the dangers of enacting a vague legislation.

Q. 9. Explain the Concept of Ratio Decidendi?

Ans: The literal meaning of ‘ratio decidendi’ is “the reason for deciding”. Black’s Law
Dictionary has provided many definitions of this term. Let us discuss some of them.
1. The principle or rule of law on which a court’s decision is founded.
2. The rule of law on which a later court thinks that a previous court founded its
decision.

3. It is a general rule without which a case must have been decided otherwise.
4. “The phrase ‘’the ratio decidendi of a case’ is slightly ambiguous. It may mean
either (1) the rule that the judge who decided the case intended to lay down and
apply to the facts, or (2) the rule that a later concedes him to have had the power
to lay down”.
5. “There are two steps involved in the ascertainment of ratio decidendi. First, it is
necessary to determine the facts of the case as seen by the judge; secondly, it is
necessary to discover which of those facts were treated as material by the judge”.

Goodhart’s View on ratio decidendi

However, Goodhart did not accept the classical definitions mentioned above. His
criticisms were:

a. That every case must contain an ascertainable principle of law, even though
there may be no opinion delivered by the judge.
b. That the statement of law may be too wide or too narrow.
While defending his definition, he said that “the whole point of my article was based
on the proposition that every case must contain a binding principle, but that
this binding principle is not necessarily to be found in the statement of the law
made by the judge”.

He also said that “the judges must interpret statutes, but it would be misleading to
say that they are therefore constructing them”.
He even said to the extent that “the phrase ‘ratio decidendi’ is misleading
because the reason which the judge gives for his decision is not binding and may
not correctly represent the principle”.

He suggested that the ‘principle of the case’ could be found by determining

(a) The facts treated by the judge as material, and
(b) His decision as based on them.

The judge, therefore, reaches a conclusion upon the facts as he sees them.
It is on these facts that he bases his judgment, and not on any others. It follows
that our task in analyzing a case is not to state the facts and the conclusion, but to
state the material facts as seen by the judge and his conclusion based on them. It
is by his choice of the material facts that the judge creates law..
Thus, Goodhart placed all the emphasis on the material facts as seen by the
judge, and not on the material facts as seen by anyone else.

Q. 10. Explain the Concept of Obiter dicta?

Ans: "Obiter" means " By the way"; "in passing"; "incidentally". Obiter dictum is the
expression of opinion stated in the judgement by a judge on a question immaterial
to the ratio decidendi. They are unnecessary for the decision of a particular case.
An obiter dictum is an observation which is either not necessary for the
decision of the case or does not relate to the material facts in issue The
Concept of Obiter dicta are not binding Word [see K. Jayarama Iyer v. State of
Hyderabad AIR 1954 Hyd.56] A case is a precedent and binding for what is
explicitly decided and no more. It would be too much to imply and read into the
propositions that may seem to flow even incidentally or logically from it. [See CIT v.
K. Ramakrishnan (1993) 202 ITR 997 (Ker.)] It would be incorrect to say that every
opinion of the Supreme Court would be binding on the High Courts in India. Only
the opinion expressed on a question that arose for the determination of a case is
binding. [See Mohandas Issardas v.Santhanam(A.N.)AIR 1955 Bom 113]

Some suggestions for avoiding conflicting decisions No doubt the doctrine of stare
decisis or binding precedent has brought about some certainty and consistency in
judicial decisions in India, still the inconsistent and conflicting decisions particularly
in respect of the Income-tax Act between the different High Courts and the different
benches of the same High Court or the Supreme Court has been the bane of the
Indian Judicial system. The problem could be mitigated to a great extent if the
procedure followed in U.S.A. is adopted where the entire court sits to decide a
question of law. But the problem in India is that while the cases go on mounting by
the day, the Government dithers to fill even the normal vacancies in the courts. If
the faith of the common man in the judiciary is to be maintained, at least the
practical suggestions that the hon'ble courts themselves have given should be
adhered to. In Union of India v. Raghubir Singh (1989) 178 ITR 548, hon'ble
Supreme Court suggested that for the purpose of imparting certainty and endowing
due authority, decision of this court in future should be rendered by Division
Benches of at least three judges unless, for compelling reasons, the matter cannot
be referred to the full Court or a Constitution Bench. Views of the Allahabad High
Court in CIT v. HariNath & Co. (1987) 168 ITR 440 are also worth taking note of.
"Though it is queer, it is bound to happen in a federal union that a central statute,
like the Income-tax Act, operates differently in various states on account of varying
interpretations of the High Courts. This can be obviated only if the cases involving
divergent views are decided out of turn by the Supreme Court. Serious thought is
required to devise a method to achieve unanimity on the provisions of a central
statute".

Review of Judicial Precedents Doctrine of Judicial Precedents or Stare

decisis, which imparts stability and security in the judicial system, has been
recognized the world over. Highest /higher courts in a country not only interpret law
or deliver justice but also make law in the sense that the ratio decidendi of their
judgements has the binding force of the law. One question that plagued the judicial
fraternity around the world is - Does the doctrine of stare decisis deter the court
from overruling an earlier decision? Though the answer to this is certainly a
resounding no, the question has elicited some highly felicitous responses from the
learned judges. Lord Denning, one of the most revered judge of the last century
observes in Ostime v. Australian Mutual Provident Society [1960] AC 459 (HL). "The
doctrine of precedent does not compel their Lordships to follow the wrong path until
you fall over the edge of the cliff". Justice Jackson dissenting from other judges in
Massachusetts v. United States [1947]333 US 611 says " I see no reason why I
should be consciously wrong today because I was unconsciously wrong yesterday".
Take this from the Indian Judiciary- " To perpetuate an error is no heroism. To
rectify it, is the compulsion of judicial conscience. A judge ought to be wise enough
to know that he is fallible". [Supreme Court in Umed v. Raj Singh AIR 1975 SC 43]
" A judge-made change in law rarely comes out of a blue sky. Rumblings from
Olympus in the form of Obiter dicta will give warning of unsettled weather.
Unsettled weather is itself, of course, bound to cause uncertainty, but inevitably it
precedes the acceptance of a change". [Supreme Court in Surrinder Singh v.
Hardayal Singh AIR 1985 SC 89]

Q.11. Law as Volksgeist:-

Ans. Volksgeist is a German loanword (literally meaning "spirit of the

people" or "National character") for a unique "spirit" possessed collectively
by each people or nation.
The concept of the Volksgeist, or “the spirit of the Volk,” was developed by
German philosopher Johann Gottfried von Herder (1744–1803). The
application of Herder’s theory to law was made by German jurist and legal
historian Friedrich Karl von Savigny (1779–1861).
Herder’s Volksgeist is a manifestation (expression) of the people; it animates
(inspire somebody) the nation. Every Volk (People or nation) is, as an
empirical matter, different from every other Volk, each nationality
characterized by its own unique spirit. Every people possesses its own
cultural traits shaped by ancestral history and the experience of a specific
physical environment, and mentally constructs its social life through
language, law, literature, religion, the arts, customs, and folklore inherited
from earlier generations. The Volk, in other words, is the family writ large.

Laws, too, must be adapted to the spirit of each nation, for rules applied to
one nation are not valid for another. The only legitimate governments are
those that develop naturally among particular nations and reflect, in their
differences from other polities, the cultures of the people they govern.

Law is the unique creation of a race, a people, a Volk. Like language or

values, it is the result of collective human action and reason over
generations, not the result of human design. Language and law were never
consciously invented at a specific moment in time. Rather, they represent
slow accumulations, organic emanations of discrete peoples.
To cite but one example, European law and values and Jewish law and
values are as different as night and day. In adopting torture, assassination,
criminalization of free speech, thought, and association, genocide, and the
abolition of formal restraints on tyranny, whites overnight lost half a
millennium or more of slow, painful moral and legal progress.

Savigny’s theories of law are in accord with Hayek’s belief that social
phenomena such as language, law, the family, morality, the free market,
etc., objectively are (and normatively ought to be) the “results of human
action but not of human design.” To attempt conscious, rationalistic
constructions in such areas of life is an error characteristic of the totalitarian
mind.

Savigny considered law to be an emanation of a people’s spiritual and

historical experience. It “is first developed by custom and popular
acceptance, next by judicial decisions—everywhere, therefore, by internal
silently operating powers, not by the arbitrary will of the law-giver.” The
essential prerequisite was a deep and far-reaching appreciation of the genius
of a particular Volk; the prescriptive content of the law must accord with
the Volksgeist.

For Savigny, German law was an expression of the Volksgeist of the German
people. Law is only properly understood in the light of past and present
history, and reflects the inner convictions of Volk psychology and shared
moral values. The Volksgeist, constantly changing and evolving as the
German people changed and evolved, drove the slow evolution of law over
the course of history. Savigny believed that the Volk of every land had a
similar effect on each nation’s law.

Legal institutions and values, like music, art, or language, are an

indigenous expression of the culture. Savigny, like Herder, thought that there
was “an organic connection of law with the being and character of the
people. . . . Law grows with the growth, and strengthens with the strength
of the people, and finally dies away as the nation loses its nationality.”

Again like Herder, the Volksgeist is best understood through careful

examination of historical data. That is why Savigny is considered a
pillar of the historical school of jurisprudence. Time and again he
traced the natural history of law, its organic growth as a living thing, and
indicated the processes by which it adjusted to the needs of successive
generations.
It is agreed that the true rule must somehow be found [note he says
found, not made]. Judge and advocates, all together, engage in the search.
Cases more or less nearly approaching the one in controversy are adduced.
Analogies are referred to. The customs and habits of men are appealed to.
Principles already settled as fundamental are invoked and run out to their
consequences; and finally a rule is deduced which is declared to be the one
which the existing law requires to be applied to the case.
4

Although law initially manifests through custom, as social activity and rules
grow more complex a specialist body of lawyers emerges. The lawyers who
formulate law for an advanced culture serve as the representatives of
the Volksgeist. Combining historical knowledge of law with a conceptual,
systematic understanding of how rules interrelate with one another and with
the whole, jurists separate what still has validity from that which is lifeless
“and only belongs to history,” arriving thereby at a “living customary law.”

Q.1 2. CONCEPT OF DHARMA AND CONNECTION BETWEEN LAW AND

MORALITY:­

Ans. Dharma is an ancient Sanskrit term first found in the Ṛ

Ṛ g Veda, the
oldest Sanskrit text, for the underlying laws of the universe, not only of
matter but of life, mind and consciousness as well. It can refer to natural
law, social rules and regulations, the principles of art or philosophy, and
above all, the ways of truth behind religion and spirituality.

It is perhaps the most complicated concept in the entire history of Indian

thought and it is very difficult to find one single definition of dharma.
Dharma stands for nature, intrinsic quality, moral law justice, virtue, merit,
duty and morality. According to some philosophers, dharma is the socially
approved conduct in relation to one’s fellowmen or super human powers.
Law, social uses, morality and most of what is ordinarily meant by religion all
fall under this head. In short, dharma is a far reaching concept that
embraces whole human life and one must avoid identification of dharma as
directly equivalent to any of the various components of its meaning, such as
law, duty, morality, justice, virtue or religion. Also dharma implies the law or
principle on which society is based.

Dharma is sometimes spoken of as the needs of requirements of the social

order, but this idea is not related to the idea of dharma as eternal principle
underlying all social order. As Radhakrishnan said “Dharma gives coherence
and direction to the different activities of life.”2 According to Van Buitennan,
“Dharma is the observance of innate or neutral function or essential
property.”3 Dharma means law or duty governing man’s relationship to man
and to other creatures and his relationship to divine power.

“Dharma is the innermost nature, the essence, the implicit truth of all
things,” as for example, “only when the tree begins to take shape that you
can come to see its dharma.”4 The desire for the welfare of all beings
without doing any harm to them is also dharma. Dharma of human beings
keeps alive a weaker person in the society among strong people. For having
dharma in mankind there are social qualities. Without dharma we never
think of social equality or benevolent mind. We are born with taking some
dharma from the very beginning. We cannot deny that because each and
every individual possesses some dharma by which he or she is bearing life
orderly and systematically. Whenever, he or she is losing that dharma, he or
she faces problem in every walk of life. We know dharma brings patience,
tolerance and sense of non-violence. In modern time we are seeing men are
losing their patience, men are being angrier for the nominal matter. These
are all taken place due to least use of dharma. Moreover, we cannot think
existence in this world without maintaining dharma in our life for that
reason. One question if we always see that our society maintains morality in
our life smoothly then why should we go to maintain dharma? Where is the
differentiation between dharma and morality?

In responding of that above mentioned questions we may say dharma is

the subtle matter of morality and more we can say sense of dharma is the
software of morality. Morality may be hardware because it is outer part of
dharma, per formative and active in the sense that one child sees and watches
every ritualistic part of dharma in his or her family, gradually that child becomes
a moral being, and otherwise he or she could never be moral. Hence we may
say dharma and morality cannot serve his act independently. In the contrary,
they always depend on each other. Though in the broad sense they are
depending on each other but when we see in the narrow sense they can
perform independently. In connection with this discussion we can say Ethics is
an engineering course and ‘dharma and morality’ is like computer and man as
the user of that computer takes computer engineering course in this world’s
technical institute. By the above discussion we may understand relevance of
dharma in modern world scenario.
Natural law holds that law and morality are connected. Law is not simply
what is enacted in statutes, and if legislation is not moral, then it is not law,
and has no authority.

Q.13. EXPLAIN THE CONCEPT OF NATURAL LAW OR NATURAL LAW

SCHOOL:-
Ans. Natural law is generally explained as the 'law of nature, divine law, a
law which is eternal and universal'. However, it has been given different
meanings at different points in time. For instance, it was considered to be
associated with theology but at the same time it was also used for secular
purposes. Natural law is believed to exist independent of human will.

It is considered natural in the sense that it is not created by man but is

found through nature.
Natural law theory varies in its aims and content but there is one central
idea. This central idea states that, there is a higher law based on morality
against which the moral or legal validity of human law can be measured. At
the heart of the natural law theory is a belief that there are certain universal
moral laws that human laws may not go against, without losing legal or
moral force.
Natural law theory asserts that there is an essential connection between law
and morality. The law is not simply what is enacted in statutes, and if
legislation is not moral, then it is not law. St. Thomas Aquinas called law
without moral content, as 'perversion of law'.

Exponents of natural law believe that law and morality are linked. This view
is expressed by the maxim Lex iniusta non est lex(an unjust law is not a true
law). It was also asserted that, if it is not a true law then there is no need to
follow it. According to this view, the notion of law cannot befully articulated
without some reference to morality.
While it appears that the classical naturalists believed that the law
necessarily includes all moral principles, this argument does not mean that
the law is all about moral principles. This is only to substantiate that the
legal norms that are promulgated by human beings are valid only if they are
consistent with morality.

The principles of Natural law were rejected by Jurists such as Bentham and
Austin in the nineteenth century because of its vague and ambiguous
character. However, undue emphasis on positivism and rejection of morality
as an element of law reduced the law into a command of a gunman and
therefore, failed to satisfy the aspirations of the people. It was realised that
over-emphasis on the historical approaches to law had led to the rise of
fascism in Italy and Nazism in Germany.

The change in socio-political conditions of the world, like the rise of

materialism after the First World War, shook the conscience of the western
society. It compelled the twentieth century western legal thinkers to ponder
over the existing legal regimes, so as to provide some
alternatives based on value-oriented ideology and to check moral
degradation of the society. These factors led to the revival of natural law
theory in its modified form, which is different from its traditional form.
Natural law in its new form is value-oriented and value conscious. It is
neither permanent nor everlasting in character and it is relative, not absolute
in nature. For instance, in modern times procedural as well as substantive
laws have to be just, fair and reasonable. Generally, the 'rule of law' and
'due process of law' are considered as new incarnations of natural justice in
the twentieth century. Rudolf Stammler (1856-1938), a
German jurist, John Rawls (1921 - 2002), an American philosopher Kohler
(1849 -1919), a German Jurist, and others, contributed to the revival of
natural law in the twentieth century. The principles of natural law have also
been inspired by the emergence of the modern philosophy of human rights.

Q.14. Explain the Concept of Positivism or Analytical School or

Positive School or Imperative School:

Ans:-This school mainly aims to create a scientifically valid system of law, by

analyzing legal concepts and ideas on the basis of empirical or scientific
methods. It is also referred to, as the positive or imperative school of
jurisprudence. It came as a reaction against the school of natural law. Most
of the founders of this school like Jeremy Bentham (1748-1832), an English
philosopher and jurist and John Austin (1790-1859), an English jurist and a
student of Bentham (also popularly credited for founding the analytical
school of jurisprudence) discarded and rejected natural law as 'vague and
abstract ideas'.

The idea of positivism emphasizes the separation of law and morality.

According to the exponents of this school, law is man-made, or enacted by
the legislature. Natural law thinkers proposed that if a law is not moral, no
one is under any duty to obey it, while positivists believe that a duly enacted
law, until changed, remains law and should be so obeyed.

Jeremy Bentham propounded the Utilitarian Principle whereby the law

should aim at "the greatest happiness of the greatest number". In his work,
"Introduction to the Principles of Morals and Legislation", Bentham
expressed his views about morality and argued that the principle of utility
should be the basis of morality and law. According to him 'utility' promotes
pleasure and prevents pain. He further held that all questions of right and
wrong should be decided on the touchstone of utility.

John Austin propounded that law is the command of the sovereign, backed
by threat of punishment. In his work, 'The Province of Jurisprudence
Determined' published in 1832, Austin made an effort to explain the
distinction between law and morality. According to him, natural law doctrines
were responsible for blurring the distinction between law and morality. To get
rid of this confusion he defined law as 'species of command of sovereign'.

Austin held that command is an expression of desire by a political superior

(e.g. king, parliament etc.) to a political inferior (eg. subjects, citizens). The
political inferior shall commit or omit an act, under an obligation to obey the
command and if, the command is disobeyed, then, the political inferior is
liable for punishment. Commands are prescribed modes of conduct by the
'sovereign'. He further viewed sovereign as a person or group of persons, to
whom a society gives habitual obedience and who gives no such obedience
to others.

This idea of command and punishment for disobeying the command is the
most prominent and distinctive character of 'positive law'. It differentiates
positive law from the 'principles of morality', which consider law as 'law of
God', and from 'positive morality', which considers law as man-made rules of
conduct, such as customary rules and international law, etc. 'Principles of
morality' and 'positive morality' do not originate from a sovereign.

Q. 15. DEFINE CONCEPT OF HISTORICAL SCHOOL

Ans. History is considered as the foundation of knowledge in the

contemporary era. According to the followers of the historical school, laws
are the creation of interactions between the, local situation and conditions of
the people. The historical school suggests that the law should conform to the
local needs and feelings of the society. It started as a reaction against
natural law and positivism to grow as a form of law that emphasized the
irrational, racial and evolutionary character of law.

Friedrich Carl von Savigny (21 February 1779 - 25 October 1861),a

respected and influential jurist and historian of the 19th century, is
considered as the main German proponent of this school. Hpropounded that
the nature of any particular system of law was a reflection of the spirit of the
people. This was later characterized as 'volksgeist' (German word meaning
'spirit of the people' or 'national character') by Georg Friedrich Puchta (1798
- 1846, a German jurist).

According to Friedman, a noted jurist, the main features of Savigny's

historical school of jurisprudence can be summarized as follows:

1. Law should be a reflection of the common spirit of the people and their
custom.
2. Law is not universal; it is particular like the language of a particular
society.
3. Law is not static; it has relationship with the development of the
society.
4. Law is not given by a political superior, but is found or given by the
people.

Sir Henry James Sumner Maine (August 15, 1822 - February 3, 1888), a
British jurist and legal historian, who pioneered the study of comparative
law, primitive law and anthropological jurisprudence, is the main exponent of
British Historical School of Jurisprudence. He was a Professor of civil law at
the University of Cambridge. He was a member of the Council of the
Governor General of India (1863-69) and he substantially contributed to
codification of the Historical School Indian law. He is famous for his notable
work, Ancient Law: Its Connection with the Early History of Society, and Its
Relation to Modern Ideas (1861). To trace and define such concepts, he drew
upon Roman law, western and eastern European legal systems, Indian law,
and Primitive law.

Maine explained that the growth of law took place gradually in various
stages under a static society in the following sequence:
1. Divine law (law of God/Themis Judgments of the Goddess of justice)
2. Custom- Priestly class as sole repository of customary law
3. Era of codification
However, in a progressive society, law evolved through three stages,
namely:
Fiction
Equity
Legislation
Even the historical approach is not free from criticism. There are many
problems with this approach and it was rejected on the ground of its vague,
parochial and unscientific explanation of the law.

Q. 16. MEANING OF LAW , IMPORTANCE OF LAW AND FUNCTIONS

OF LAW:-

Ans. The law and the legal system are very important in any civilization. In
modern times, no one can imagine a society without law and a legal system.
Law is not only important for an orderly social life but also essential for the
very existence of mankind. Therefore, it is important for everyone to
understand the meaning of law. In a layman's language, law can be
described as' a system of rules and regulations which a country or
society recognizes as binding on its citizens, which the authorities
may enforce, and violation of which attracts punitive action. These
laws are generally contained in the constitutions, legislations,
judicial decisions etc.

Jurists and legal scholars have not arrived at a unanimous definition of law.
The problem of defining law is not new as it goes back centuries. Some
jurists consider law as a 'divinely ordered rule' or as 'a reflection of
divine reasons'. Law has also been defined from philosophical, theological,
historical, social and realistic angles.

It is because of these different approaches that different concepts of law

and consequently various schools of law have emerged. Jurists hold different
perceptions and understanding of what constitutes the law and legal
systems. This chapter examines the various definitions of law as provided by
different jurists.

There are many definitions of law given by various jurists. Some of the
important definitions of law are as follows:

1. The ancient Greek Philosopher Aristotle defined law 'as an

embodiment of reasons whether in individual or the community'.

2. British philosopher Jereny Benthan defined the as 'A collection of signs

declarative of a volition conceived or adopted by the sovereign'

3. Noted British Jurist John Austin says law is -A body of rules determined
and enforced by a sovereign political authority.

4. Well known British ugal philosopher Herbert Lionel Adolph’s Hant

defines law as: A system of rules, a union of primary and secondary rules.
The Primary rules impose duties on people to behave in certain ways.
Secondary rules, by contrast, pertain to the primary rules.

FUNCTION AND PURPOSES OF LAW:-

After discussing and understanding the meaning of the term 'law', it is a

natural question to ask the following questions: Why is there law in the
society? What is the need for law? Can a society be governed smoothly
without any kind of law? What is the function and purpose of law? etc.

Functions and purpose of law have been changing with time and place. They
depend on the nature of the state. However, at present in a welfare and
democratic state, there are several important functions of law.

It can be stated that law starts regulating the welfare and other aspects of
human life, from the moment a child is conceived in her mother's womb. In
fact, the State interacts with and protects its citizens throughout their lives,
with the help of law.

Some of the major functions and purposes of law are listed below:

i. To deliver justice.
ii. To provide equality and uniformity.

iii. To maintain impartiality.

iv. To maintain law and order.

v. To maintain social control.

vi. To resolve conflicts.

vii. To bring orderly change through law and social reform.

Q.17. Free will theory-Carl Rogers:-

Rogers rejected the deterministic nature of both psychoanalysis and

behaviorism and maintained that we behave as we do because of the way
we perceive our situation. "As no one else can know how we perceive, we
are the best experts on ourselves."

Carl Rogers (1959) believed that humans have one basic motive, that is
the tendency to self-actualize - i.e. to fulfill one's potential and achieve the
highest level of 'human-beingness' we can. Like a flower that will grow to its
full potential if the conditions are right, but which is constrained by its
environment, so people will flourish and reach their potential if their
environment is good enough.

However, unlike a flower, the potential of the individual human is unique,

(sole, single) and we are meant to develop in different ways according to our
personality. Rogers believed that people are inherently good and creative.
They become destructive only when a poor self-concept or external
constraints override the valuing process. Carl Rogers believed that for a
person to achieve self-actualization they must be in a state of congruence.

This means that self-actualization occurs when a person’s “ideal self” (i.e.
who they would like to be) is congruent with their actual behavior (self-
image). Rogers describes an individual who is actualizing as a fully
functioning person. The main determinant of whether we will become self-
actualized is childhood experience.
The Fully Functioning Person

Rogers believed that every person could achieve their goals wishes, and
desires in life. When they did so self-actualization took place. For Rogers
(1961) people who are able be self-actualize, and that is not all of us, are
called fully functioning persons. This means that the person is in touch with
the here and now, his or her subjective experiences and feelings, continually
growing and changing.

In many ways Rogers regarded the fully functioning person as an ideal and
one that people do not ultimately achieve.

It is wrong to think of this as an end or completion of life’s journey; rather it

is a process of always becoming and changing.

Rogers identified five characteristics of the fully functioning person:

1. Open to experience: both positive and negative emotions accepted.

Negative feelings are not denied, but worked through (rather than resort
to ego defence mechanisms).

2. Existential living: in touch with different experiences as they occur in

life, avoiding prejudging and preconceptions. Being able to live and fully
appreciate the present, not always looking back to the past or forward to
the future (i.e. living for the moment).

3. Trust feelings: feeling, instincts and gut-reactions are paid attention

to and trusted. People’s own decisions are the right ones and we should
trust ourselves to make the right choices.

4. Creativity: creative thinking and risk taking are features of a person’s

life. Person does not play safe all the time. This involves the ability to
adjust and change and seek new experiences.

5. Fulfilled life: person is happy and satisfied with life, and always
looking for new challenges and experiences.

For Rogers, fully functioning people are well adjusted, well balanced and
interesting to know. Often such people are high achievers in society. Critics
claim that the fully functioning person is a product of Western culture. In
other cultures, such as Eastern cultures, the achievement of the group is
valued more highly than the achievement of any one person.

Personality Development

Central to Rogers' personality theory is the notion of self or self-concept.

This is defined as "the organized, consistent set of perceptions and beliefs
about oneself".
The self is the humanistic term for who we really are as a person. The self is
our inner personality, and can be likened to the soul, or Freud's psyche. The
self is influenced by the experiences a person has in their life, and out
interpretations of those experiences. Two primary sources that influence our
self-concept are childhood experiences and evaluation by others.

According to Rogers (1959), we want to feel, experience and behave in ways

which are consistent with our self-image and which reflect what we would
like to be like, our ideal-self. The closer our self-image and ideal-self are to
each other, the more consistent or congruent we are and the higher our
sense of self-worth. A person is said to be in a state of incongruence if some
of the totality of their experience is unacceptable to them and is denied or
distorted in the self-image.

The humanistic approach states that the self is composed of concepts unique
to ourselves.The self-concept includes three components:

Self worth (or self-esteem) – what we think about ourselves. Rogers

believed feelings of self-worth developed in early childhood and were
formed from the interaction of the child with the mother and father.

Self-image – How we see ourselves, which is important to good

psychological health. Self-image includes the influence of our body image
on inner personality. At a simple level, we might perceive ourselves as a
good or bad person, beautiful or ugly. Self-image has an affect on how a
person thinks feels and behaves in the world.

Ideal self – This is the person who we would like to be. It consists of our
goals and ambitions in life, and is dynamic – i.e. forever changing. The
ideal self in childhood is not the ideal self in our teens or late twenties
etc.

Q.18. Define and discuss the basic legal concept of reasonableness with
reference to Indian cases:

State of Madras Vs. V.G.Row(1952 SC 196)

ACT:

Indian Criminal Law Amendment Act (XIV of 1908) as amended by Indian Criminal
Law Amendment (Madras) Act, 1950, ss. 15 (2)(b), 16–Law empowering State to
declare associations illegal by notification-No provision for judicial inquiry or for
service of notification on association or office-bearers–Validity of law–Unreasonable
restriction on right to form associations–Constitution of India, art. 19 (1) (c), (4).
HEADNOTE:

Section 15 (2) (b) of the Indian Criminal Law Amendment Act, 1908, as amended
by the Indian Criminal Law Amendment (Madras) Act, 1950, included within the
definition of an “unlawful association” an association

“which has been declared by the State by notification in the Official Gazette to be
unlawful on the ground (to be specified in the notification) that such association (i)
constitutes a danger to the public peace, or (ii) has interfered or interferes with the
maintenance of public order or has such interference for its object, or (iii) has
interfered or interferes with the administration of the law, or has such interference
for its object.”

Section 16 of the Act as amended provided that a notification under s. 15 (2) (b)
shall (i) specify the ground on which it is issued and such other particulars, if any,
as may have a bearing on the necessity therefore and (ii) fix a reasonable period
for any office bearer or member of the association or any other person interested to
make a representation to the State Government in respect of the issue of the
notification. Under s. 16 A the Government was required after the expiry of the
time fixed in the notification for making representation to place the matter before
an Advisory Board and to cancel the notification if the Board finds that’ there was
no sufficient cause for the issue of such notification. There was however no
provision for adequate communication of the notification to the association and its
members or office bearers. It was conceded that the test under s. 15(2)(b) as
amended was, as it was under s. 16 as it stood before the amendment, a subjective
one and the factual existence or otherwise of the grounds was not a justiciable
issue and the question was whether s. 15(2)(b) was unconstitutional and void:

Held, (for reasons stated below) that s. 15 (2) (b) imposed restrictions on the
fundamental right to form associations guaranteed by art. 19 (1) (c), which were
not reasonable within the meaning of art. 19 (4) and was therefore unconstitutional
and void. The fundamental right to form associations or unions guaranteed by art.
19 (1) (c) of the Constitution has such a wide and varied scope for its exercise, and
its curtailment is fraught with such potential reactions in the religious, political and
economic field this, that the vesting of the authority in the executive Government to
impose restrictions on such right, without allowing the grounds of such imposition,
both in their factual and legal aspects to be duly tested in a judicial inquiry, is a
strong element which should be taken into account in judging the reasonableness of
restrictions imposed on the fundamental right under art. 19(1) (c). The absence of
a provision for adequate communication of the Government’s notification under s.
15(2) (b). By personal service or service by affixture to the association and its
members and office-bearers was also a serious defect. The formula of subjective
satisfaction of the Government or of its officers with an advisory Board to review
the materials on which the Government seeks to override a basic freedom
guaranteed to the citizen, may be viewed as reasonable only in very exceptional
circumstances and within the narrowest limits.

In considering the reasonableness of laws imposing restrictions on fundamental

right, both the substantive and procedural aspects of the impugned law should be
examined from the point of view of reasonableness and the test of reasonableness,
wherever prescribed, should be applied to each individual statute impugned and no
abstract standard or general pattern of reasonableness can be laid down as
applicable to all cases. The nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and urgency of the evil
sought to be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time should all enter into the judicial verdict. In evaluating such
elusive factors and forming their own conception of what is reasonable, in all the
circumstances of a given case, it is inevitable that the social philosophy and the
scale of values of the judges participating in the decision should play an important
part, and the limit to their interference with legislative judgment in such cases can
only be dictated by their sense of responsibility and self-restraint and the sobering
reflection that the Constitution is meant not only for people of their way of thinking
but for all, and that the majority of the elected representatives of the people have,
in authorising the imposition of the restrictions, considered them to be reasonable.

Q.19. Need to Study Jurisprudence-its relationship with political and power

structures and just society:
Scope of Jurisprudence- After reading all the above mentioned definitions, we
would find that Austin was the only one who tried to limit the scope of
jurisprudence. He tried to segregate morals and theology from the study of
jurisprudence.
However, the study of jurisprudence cannot be circumscribed because it includes all
human conduct in the State and the Society.
Approaches to the study of Jurisprudence-
There are two ways
1. Empirical-Facts to Generalization. (Overview)
2. A Priori- Start with Generalization in light of which the facts are examined.

Significance and Utility of the Study of Jurisprudence :

1. This subject has its own intrinsic(essential) interest and value because this is a
subject of serious scholarship and research; researchers in Jurisprudence contribute
to the development of society by having repercussions(result of action) in the whole
legal, political and social school of thoughts. One of the tasks of this subject is to
construct and elucidate concepts serving to render the complexity (difficulty) of law
more manageable and more rational.(normal) It is the belief of this subject that the
theory can help to improve practice.
2. Jurisprudence also has an educational value. It helps in the logical analysis of the
legal concepts and it sharpens the logical techniques of the lawyer. The study of
jurisprudence helps to combat the lawyer’s occupational view of formalism which
leads to excessive concentration on legal rules for their own sake and disregard of
the social function of the law.
3. The study of jurisprudence helps to put law in its proper context by considering
the needs of the society and by taking note of the advances in related and relevant
disciplines.
4. Jurisprudence can teach the people to look if not forward, at least sideways and
around them and realize that answers to a new legal problem must be found by a
consideration of present social needs and not in the wisdom of the past.
5. Jurisprudence is the eye of law and the grammar of law because it throws light
on basic ideas and fundamental principles of law. Therefore, by understanding the
nature of law, its concepts and distinctions, a lawyer can find out the actual rule of
law. It also helps in knowing the language, grammar, the basis of treatment and
assumptions upon which the subject rests. Therefore, some logical training is
necessary for a lawyer which he can find from the study of Jurisprudence.
6. It trains the critical faculties of the mind of the students so that they can dictate
fallacies and use accurate legal terminology and expression.
7. It helps a lawyer in his practical work. A lawyer always has to tackle new
problems every day. This he can handle through his knowledge of Jurisprudence
which trains his mind to find alternative legal channels of thought.
8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of
the laws passed by the legislators by providing the rules of interpretation.
Therefore, the study of jurisprudence should not be confined to the study of
positive laws but also must include normative study i.e. that study should deal
with the improvement of law in the context of prevailing socio-economic
and political philosophies of time, place and circumstances.

The Philosophy of Politics and the Philosophy of Law (jurisprudence) are often
studied separately, but they both come back to the same thing: the study of force.
Politics is the study of political force in the general community and jurisprudence is
the study of how laws can and should be used to achieve political and social goals.
Many religious theists believe that both law and politics should be based on a
religious foundation, and in particular on the commands of some alleged god.
Without that foundation, they argue, both law and politics will be illegitimate uses
of force.

What is Political Philosophy?: Political Philosophy is primarily constrained to

the workings of governments and nations — how they developed, why they
developed, which systems are better than others, what the purpose of government
should be, etc. All of this is closely related to Ethics, because so much is dependent
upon what actions are right; but there is the added element of what actions can
and should be constrained by outside human forces. There is much debate in
America over how much separation there can or should be between politics and
people's religious beliefs. Can people, for example, base public policy on private
religiousrevelation?(surprise,shock)
Definition: A power structure is the distribution of power among individuals, or
among social categories or entire social systems such as groups, organizations,
communities, or societies. Sociologists are most concerned with how power
structures vary in the degree of inequality in the distribution. In a democracy, for
example, power is distributed evenly. The more authoritarian the system is, the
more concentrated power is in the hands of the relatively few.

What is Legal Philosophy or the Philosophy of Law?:

Legal Philosophy focuses on laws and legal systems: how laws came to be, what
laws are better than others, what the purpose of law should be, whether or not laws
should be obeyed, etc. Because political systems are dependent upon the law, legal
philosophy is at the heart of political philosophy. Legal Philosophy is often studied in
an effort to elucidate the way in which human nature and social nature need to be
expressed and controlled through the law. There is significant effort from some
Christians, especially Christian Reconstructionist, to re-make American law along
the lines of Old Testament religious law.

(1) Man is essentially a benign creature. He was born good, or with the potentiality
for goodness, but has been corrupted by the habits and institutions of authority.
Religion, education, politics, and economic life have all served to warp the natural
goodness that inheres in mankind.
(2) Man is a social animal, and men reach their fulfillment when voluntarily and
spontaneously cooperating with one another. Society is natural, the state is not;
and the quest for the communal life is instinctive to all men.
(3) Prevailing institutions of society - particularly private property and the state -
are artificial agencies through which men exploit and corrupt each other. Authority
in any form, even democratic government or socialist economy, stultifies the
individual.
(4) Social change must be spontaneous, direct and mass-based. Political parties,
trade unions - indeed, all organized movements - are themselves creatures of
authority. While pursuing reform or even revolution, they are so constituted as
ultimately to replace one evil with another of a similar sort. Significant change,
then, must express the natural sentiments of a mass of autonomous individuals
acting without outside direction.
(5) Industrial civilization, no matter what the form of ownership of the means of
production, warps the human spirit. Machines master men, narrowing their
personalities and blocking creativity. Any society built on an industrial structure is
bound to debase the motives and impulses of those who live it.
Questions asked in Political and Legal Philosophy:
Why do governments and laws exist?
Why should we obey governments or laws?
Are laws created by humans, or derived from natural laws?
Should ethics and laws be the same or separate?
Is anyone above the law?
Should religious and civil authority be separated? What role should intention play in
legal judgments?

In social science and politics, power is the ability to influence or control the
behavior of people. The term "authority" is often used for power perceived as
legitimate by the social structure. Power can be seen as evil or unjust, but the
exercise of power is accepted as endemic to humans as social beings. In business,
power is often expressed as being "upward" or "downward". With downward power,
a company's superior influences subordinates. When a company exerts upward
power, it is the subordinates who influence the decisions of their leader or leaders.

The use of power need not involve force or the threat of force (coercion). At one
extreme, it more closely resembles what English-speaking people might term
"influence", although some authors distinguish "influence" as a means by which
power is used.

Much of the recent sociological debate about power revolves around the issue of its
means to enable – in other words, power as a means to make social
actions possible as much as it may constrain or prevent them. The philosopher
Michel Foucault saw power as a structural expression of "a complex strategic
situation in a given social setting" that requires both constraint and enablement.

Understanding power structures

JANUARY 9, 2012 14 COMMENTS

If you’re going to study any isms, the first thing you should really look at is power
structures – how society has traditionally structured itself and evolved. In feminism,
this is often called the “Patriarchy” (rule of the father/male role models). In terms
of intersectionality – which is about where feminism meets anti-racism, meets class
issues, etc (ie minorities in different categories) – this is called the Kyriarchy… The
interaction between different systems of domination and submission.
I start with the Patriarchy as this is the one I most commonly can relate to. This is
the idea that in western society most things are geared towards men – that society
values the role of men much more than the role of women, and denies women the
same opportunities and equality. There are lots of stats around but what is most
well-accepted is that there are more CEOs who are men than women, and more
MPs who are men, than women. Why is this? There is nothing in the requirement of
being a CEO or an MP that inherently discounts women – it is not an explicit
requirement, for example, to have a beard or a penis, or any other thing which we
dictate to be ‘male’. Levels of testosterone or maleness should not dictate that you
cannot be a CEO or an MP. Yet women continue to be under-represented in these
fields. Women are also paid much less in work – again, there are statistics and
reports on this out there, should you wish to find them. Yet women are over-
represented in the public sector – why is this? This is what feminists talk about as
the Patriarchy – that “men” as a group are generally dominating, and much better
off than women are. That is entirely different to saying that individual men hold
power – although some do, this is clearly an inaccurate generalisation.
It’s a fairly simple concept, once you understand it, and one you can apply to any
arbitrary category of society – for example, with regards to sexuality,
‘heterosexuality’ is the dominant group and ‘homosexuality’ is the oppressed. It
follows thusly:
– Cisgender people are dominant, transgender people are the oppressed.
– White people are dominant, non-white people are oppressed.
– Men are dominant, women are oppressed.
– Middle class is dominant, working class are oppressed and exploited. You could
even take this one further and look at the ‘ruling classes’ (ie politicians, nobility,
etc) as dominating over all, including the middle classes. Then the middle class
dominate over those below them, and so on – so the lowest class in society is
oppressed by all of those above it.
That is not to say that anyone who happens to fit into one or all of these dominant
groups is a horrible person – just that society is automatically geared towards
giving them an advantage. They are privileged. These are social structures of
power. It is easy for one person in the dominant group to have power over someone
in the oppressed group. And while it is possible for someone in the oppressed group
to be horrible to, or not like, those in the dominant group, I maintain that it is
impossible for there to be ‘isms’ in this context. It is in fact entirely understandable
why people in the subordinate group may hate those who have been oppressing
them. Allan Johnson explains this in The Gender Knot (2005):
“Given the reality of women’s oppression, male privilege, and men’s enforcement of
both, it’s hardly surprising that every woman should have moments when she
resents, or even hates, ‘men’.”

It is not possible for women to be ‘sexist’ against men. It is not possible for non-
whites to be ‘racist’ against white people. There is a distinct difference between
group interactions (ie systematic oppression from society and its rulers – who are,
incidentally, mainly cisgender, straight, white, middle class men) and individual
interactions. There is a difference between me growing up in society, feeling that
the message I’ve heard is “as a woman you are worth less than a man” – and me
insulting an individual man, telling him he is not good at something/making
generalisations. That might be wrong and not-very-nice, but it is not sexist; it is not
misandrist (I have already argued that misandry doesn’t exist here and here). It is
me disliking an individual man. Whereas a man doing the same thing to me, does
so in a generally anti-women and hostile environment that affects me to a large
extent and has a negative effect on my behaviour and the way I perceive myself
(see street harassment that happens worryingly regularly if you happen to be a
woman and go outside your own house). That’s sexism, and that’s why women
need to fight back.
The reason that women – and other oppressed groups – feel the need to have
women-only safe spaces, and should be allowed them, is that they can achieve
much more without the interference of the aggressors. Some women feel deeply
uncomfortable discussing feminist ideas in front of men, because they feel that men
will dominate the conversation – this aggressive hijacking of the conversational
thread or debate happens all the time in every day life where the dominant groups
take over. It’s called derailing, and as a ‘privileged’ member, it takes a while to see
that you’re doing it. This is why, when people discuss racial issues, I fully support
them and I add my two cents if need be – but I’m more intrigued about following
what the people who have to live with abuse due to their skin colour, have to say
about it.

*Read out for Understanding purpose about this area

Q.20.Salient Features of Legislation over Court Precedents

1. Abrogation- By exercising the power to repeal any legislation, the legislature

can abrogate any legislative measure or provision that has become meaningless or
ineffective in the changed circumstances. Legislature can repeal a law with ease.
However, this is not the situation with courts because the process of litigation is a
necessary as well as a time-consuming process.

2. Division of function- Legislation is advantageous because of division of

functions. Legislature can make a law by gathering all the relevant material and
linking it with the legislative measures that are needed. In such a process,
legislature takes help of the public and opinion of the experts. Thus, public opinion
also gets represented in the legislature. This cannot be done by the judiciary since
Judiciary does not have the resources and the expertise to gather all the relevant
material regarding enforcement of particular principles.

3. Prospective Nature of Legislation- Legislations are always prospective in

nature. This is because legislations are made applicable to only those that come
into existence once the said legislation has been enacted. Thus, once a legislation
gets enacted, the public can shape its conduct accordingly. However, Judgments are
mostly retrospective. The legality of any action can be pronounced by the court only
when that action has taken place. Bentham once said that “Do you know how they
make it; just as man makes for his dog. When your dog does something, you want
to break him off, you wait till he does it and beat him and this is how the judge
makes law for men”.

4. Nature of assignment- The nature of job and assignment of a legislator is such

that he/she is in constant interaction with all sections of the society. Thereby,
opportunities are available to him correct the failed necessities of time. Also, the
decisions taken by the legislators in the Legislature are collective in nature. This is
not so in the case of Judiciary. Sometimes, judgments are based on bias and
prejudices of the judge who is passing the judgment thereby making it uncertain.

5. Form- Enacted Legislation is an abstract proposition with necessary exceptions

and explanations whereas Judicial Pronouncements are usually circumscribed by the
facts of a particular case for which the judgment has been passed. Critics say that
when a Judge gives Judgment, he makes elephantiasis of law.

Read out for understanding purpose only.

,
Q.21.Advantages of Court Precedents over Legislation

1. Dicey said that “the morality of courts is higher than the morality of the
politicians”. A judge is impartial. Therefore, he performs his work in an unbiased
manner.

2. Salmond said that “Case laws enjoys greater flexibility than statutory
law. Statutory law suffers from the defect of rigidity. Courts are bound by the letter
of law and are not allowed to ignore the law.”

Also, in the case of precedent, analogical extension is allowed. It is true that

legislation as an instrument of reform is necessary but it cannot be denied that
precedent has its own importance as a constitutive element in the making of law
although it cannot abrogate the law.

3. Horace Gray said that “Case law is not only superior to statutory law but all law
is judge made law. In truth all the law is judge made law, the shape in which a
statute is imposed on the community as a guide for conduct is the statute as
interpreted by the courts. The courts put life into the dead words of the statute”.

4. Sir Edward Coke said that “the function of a court is to interpret the statute
that is a document having a form according to the intent of them that made it”.

5. Salmond said that “the expression will of the legislature represents short hand
reference to the meaning of the words used in the legislature objectively
determined with the guidance furnished by the accepted principles of
interpretation”.

Q.22*Read the Differences between Legislation and Customary Law

1. Legislation has its source in theory whereas customary law grows out of practice.

2. The existence of Legislation is essentially de Jure whereas existence of

customary law is essentially de Facto.

3. Legislation is the latest development in the Law-making tendency whereas

customary law is the oldest form of law.

4. Legislation is a mark of an advanced society and a mature legal system whereas

absolute reliance on customary law is a mark of primitive society and under-
developed legal system.

5. Legislation expresses relationship between man and state whereas customary

law expresses relationship between man and man.
6. Legislation is precise, complete and easily accessible but the same cannot be
said about customary law. Legislation is jus scriptum.

7. Legislation is the result of a deliberate positive process. But customary law is the
outcome of necessity, utility and imitation.

Q. 23. Explain the Concept of Doctrine of Stare decisis? Or Judicial

precedents and its binding Nature?

Ans: 1) The Concept of Doctrine of Stare decisis “Stare decisis" is a latin

phrase which means "to stand by decided cases" or "to uphold precedents".
Doctrine of Stare decisis is a general maxim which states that when a point of law
has been decided, it takes the form of a precedent which is to be followed
subsequently and should not normally be departed from. The hon'ble Madras High
Court in Peirce Leslie & Co. v. CIT [1995] 216 ITR 176 observed that the doctrine of
stare decisis is one of the policy grounded on the theory that security and certainty
require that accepted and established legal principal, under which rights may
accrue, be recognized and followed, though later found to be not legally sound, but
whether a previous holding of the court shall be adhered to, or modified, or
overruled is within the Court's discretion under the circumstances of case before it.

The above observation of the Madras High Court underscores two important
aspects of the doctrine of stare decisis. One, it imparts security and certainty in the
legal system of the country in the sense that it becomes more stable and
predictable. Non observance of this doctrine would, in fact, lead to chaos.
(confusion) Everybody would be than seen interpreting the law according to his
whims and fancies. Lawyers would be a confused lot not knowing how to advise
their clients. Courts would be in quandary (dilemma) while delivering judgements
and the general public would be in a dilemma as to what is the correct position of
law whether to obey or not to obey it and ultimately the whole judiciary would lose
its credibility. The other aspect that is highlighted is the limitation of this doctrine.
Hon'ble High Court states that a judicial precedent may in certain circumstances,
more particularly when it is not based on legally sound principals, be departed from
at the discretion of the court.

2) Decisions of the Supreme Court By virtue of Article 141 of the Constitution of

India, the judgements pronounced by the hon'ble Supreme Court have the force of
law and are binding on all courts in India. However, the Supreme Court itself is free
to review its earlier decision and depart from it if the situation so warrants.

3) High Court decisions- whether binding in nature and binding on whom

Though there is no express provision in the Constitution like article 141, in respect
of the High Courts, the Tribunals within the jurisdiction of a High Court are bound to
follow its judgements as the High Court has the power of superintendence over
them under article 227 of the Constitution. The hon'ble Supreme Court in East India
Commercial Co. Ltd. v. Collector of Customs AIR 1962 SC 1893 observes - “We
therefore, hold that the law declared by the highest court in the state is binding on
authorities or Tribunals under its superintendence and they cannot ignore it." The
Apex Court reiterated the afore stated position once again in Baradakanta Mishra v.
Bhimsen Dixit AIR 1972 SC 2466 where it stated that it would be anomalous to
suggest that a Tribunal over which a High Court has superintendence can ignore the
law declared by it and if a Tribunal can do so, all the subordinate courts can equally
do so, for there is no specific provision as in respect of Supreme Court, making the
law declared by the High Court binding on subordinate Courts. The court further
observed that it is implicit in the power of supervision conferred on a superior
Tribunal that all the Tribunals subject to its supervision should confirm to the law
laid down by it. If the Tribunals defy their jurisdictional High Court, there would be
confusion in the administration of law and respect for law would irretrievably suffer.
Emphasising the need of following the judgements of the High Courts by the
Assessing Officers, the Allahabad High Court in K. N. Agarwal v. CIT [1991] 189 ITR
769 observes- "Indeed, the orders of the Tribunal and the High Court are binding
upon the Assessing officer and since he acts in a quasi-judicial capacity, the
discipline of such functioning demands that he should follow the decision of the
Tribunal or the High Court, as the case may be. He cannot ignore merely on the
ground that the Tribunal's order is the subject matter of revision in the High Court
or the High Court's decision is under appeal before the Supreme Court. Permitting
him to take such a view would introduce judicial indiscipline, which is not called for
even in such cases. It would lead to a chaotic situation".

The hon'ble A.P. High Court went a step further in State of A.P. v. CTO (1988) 169
ITR 564, where it pronounced that it is not permissible for the authorities and the
Tribunals to ignore the decisions of the High Court or to refuse to follow the
decisions of the High Court on the pretext that an appeal is pending in the Supreme
Court or that steps are being taken to file an appeal. The court then made the
following important and bold observations- “If any authority or the Tribunal refuses
to follow any decision of the High Court on the above grounds, it would be clearly
guilty of committing contempt of the High Court and is liable to be proceeded
against."

4) Position in regard to different benches of the same High court the

position is as follows- -A single Judge or a Division Bench order of a High Court is
binding on the single judge of the same High Court. -It is obligatory on the part of a
Division Bench to follow the decision of another Division Bench of equal strength or
a full Bench of the same High Court. -Where a Single Judge does not subscribe to
the views expressed in a Single Judge's order or Division Bench's order of the same
HC, he should place the papers before the Chief Justice to enable him to constitute
a larger Bench to examine the question. -Similarly where a Division bench differs
from another Division Bench of the same High Court, it should refer the case to a
larger Bench. The above summerised position has been culled out from CIT v.
Thana Electricity supply Ltd. [1994] 206 ITR 727 (Bom.) Other High Courts and the
Supreme Court have expressed similar views. -Law of precedents is that a decision
of the Division Bench given in an earlier case is binding on a subsequent Bench. CIT
v. Hari Nath & Co. (1987) 168 ITR 440 (All.) -Judicial propriety requires single
Judge to follow and apply earlier Division bench Judgement of same court which is
very much binding on him sitting as a single Judge of the same High Court Super
spinning Mills Ltd. v. CIT (1993) 199 ITR 832 (Mad.) -So long as the Full Bench
Judgement stands, the dicta laid down therein are binding on all courts including
single judges and Division benches of that High Court Koduru Venkata Reddy v. LAO
[1988] 170 ITR 15 (AP) -Judicial decorum and legal propriety demand that where a
learned single judge or a Division Bench does not agree with the decision of the
Bench of Co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It
is subversion of judicial process not to follow this procedure.

Sundarjas Kanyalal Bhatija v. Collector [1990] 183 ITR 130 (SC)

5)Whether binding force of decision of a High Court extends beyond its

territorial jurisdiction:-The Bombay High Court in CIT v. Thana Electricity Supply
Ltd. (Supra) had the occasion to examine this question, more particularly in the
light of confusion created by the judgement rendered by the same court in CIT v.
Jayantilal Ramanlal & Co.[1982] 137 ITR 257 wherein it was observed- "We are
aware that the practice is not uniform among the High Courts, but nevertheless we
are of the opinion that it is a desirable one. Unless the judgement of another High
Court dealing with an identical or comparable provision can be regarded as per
incuriam it should be ordinarily followed". ( Note:A decision of a court is per
incuriam when it is given without its attention having been drawn to the relevant
authorities or statutes). The Court held that the observations in Jayantilal's case
leave no scope for doubt that the court merely observed what according to it is
desirable and did not intend to lay down any principle of law making the decisions
of other High Courts binding precedents for another Court. Any other construction
of these observations in the above cases will lead to anomalous situation as it will
have the effect of giving the decisions of any other High Court the status of law
binding on all Courts or Tribunals throughout the country- a status which the
Constitution by virtue of article 141, has conferred only on the judgements of the
Supreme Court. If for the sake of the uniformity, the decisions of any High Court
are to be accepted as a binding precedent by all courts including other High Courts
and Tribunals in the country, the very distinction between the precedent value of
Supreme Court decisions and the High Court decisions will be obliterated. Such a
situation is neither contemplated by the constitution nor it is in consonance with the
principles laid down by the Supreme Court and the doctrine of stare decisis. In Patil
Vijay kumar v. Union of India [1985] 151 ITR 48, the Karnataka High Court made
the following observations- " We wish to add that although a decision of another
High Court is not binding on this court, we see no reason for not accepting with
respectful caution, any help they can give in the elucidation of question which arise
before this court." Thus it is now a well settled position that decision rendered by a
High Court is not binding on other High Courts or the Tribunals or authorities
beyond its territorial jurisdiction. At best, its decision can have persuasive value.
Even the fact that there is only one decision of a High Court available on the issue
in question or that a number of other High Courts have taken identical views in that
regard, this settled position does not alter. However, the courts have also held that
normally, more so in regard to Income -tax Act, which is a piece of all India
legislation, if any High Court has construed any section or rule, that interpretation
should be followed by the other High Court unless there as compelling reasons to
depart from that view [Please see Peirce Leslie & Co. v. CIT (Supra); CIT v. Deepak
family Trust No. 1(1994) 72 Taxman 406 (Guj.); CIT v. Alcock Ashdown & Co. Ltd.
(1979) 119 ITR 164 (Bom); Sarupchand Hukamchand, In re [1945] 13 ITR 245
(Bom.)]

6) Conflicting decisions of the same court:- Where there are conflicting

decisions of courts of co-ordinate jurisdiction (read same rank), the later decision is
to be preferred if reached after full consideration of the earlier decisions.[See CIT v.
Thana Electricity Supply Ltd. (Supra)]

7)When a precedent ceases to be binding:- The A.P.High Court in CIT v. B.R.

Constructions [1993] 202 ITR 222 states that a precedent ceases to have a binding
force in the following situations- (i) if it is reversed or overruled by a higher court;
(ii) when it is affirmed or reversed on a different ground; (iii) when it is inconsistent
with the earlier decisions of the same rank; (iv) when it is sub silentio (Latin term
for "Under Silence". Here it means nonspeaking judgement). (v) When it is
rendered per incur am.