Jurisprudence Notes 1

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WHAT IS ADMINISTRATION OF JUSTICE? EXPLAIN ITS KINDS. DISTINGUISH BETWEEN CIVIL AND CRIMINAL JUSTICE.INTRODUCTION:-Administration of Justice:- According to Salmond : -The administration of justice implies the maintenance of right within a political community by civilized substitute for the primitive practice of private vengeance and violent self-help. This has been criticized on the ground that it is not the force of the state alone that secures the obedience of law. There are a number of other factors such as the social sanctions, habit and convenience which help in the obedience of law. In civilized societies, obedience to law becomes a matter of habit and in very rare cases the force of the state is used to secure itAccording to Austin: Law is the aggregate of rule set by men as politically superior, or sovereign, to men as politically subject. It means law is command of sovereign. In his definition Command, duty and sanction are the three elements of law. The fundamental difference between the definitions of the two jurists is that whereas in the definition of Austin, the central point of law is sovereign, in the definition of Salmond, the central point is Court. In fact, both the definitions are not perfect and present two aspects of law.Salmond : Points out that men do-not have one reason in them and each is moved by his own interest and passions. The only alternative is one power over men. Men is by nature a fighting animal and force is the ultima ratio of all mankind. As Hobbes puts it without a common power to keep them all in awe, it is not possible for individuals o live in society. Without it injustice is unchecked and triumphant and the life of the people is solitary, poor, nasty, brutish and short. Salmond says however orderly a society may be, the element of force is always present and operative. It may become latent but still exists. KINDS OF ADMINISTRATION OF JUSTICE The administrative of justice may be divided into two parts:-1)Civil.2)Criminal.1. Administration of Civil Justice: The wrongs which are the subject-matter of civil proceedings are called civil wrongs. The rights enforced by civil proceedings are of two kinds (1) Primary and (2) Sanctioning or remedial rights. Primary right are those rights which exists as such and do not have their source in some wrong. Sanctioning or remedial rights are those which come in to existence after the violation of the primary rights. The object of the civil administration of justice is to ascertain the rights of the parties and the party who suffers from the breach of such rights is to be helped by way of paying damages or getting injunction, restitution and specific performance of contract etc.2. Administration of Criminal Justice:- The object of the criminal justice is to determine the crime of a person who is charged with the doing of an offence. The criminal court after proving that the offender is guilty of the offence charged awards him the punishment of fine, imprisonment as prescribed by criminal law. A convicted person is awarded physical pain. Thus the main purpose of the criminal justice is to punish the wrongdoer.DIFFERENCE BETWEEN CIVIL AND CRIMINAL ADMINISTRATION OF JUSTICECivil Administration of JusticeIn the civil case the suit is Filed in the civil court.Criminal Administration of JusticeIn the criminal cases the proceedings Is filed in the criminal court.The main remedy in civil Cases is damages.The main remedy in criminal cases is to Punish the offender.In the civil cases, the court Follows the procedure Prescribed in Civil Procedure Code.In the criminal cases, the court follows the procedure laid down in criminal Procedure Code.In civil cases the action is taken By the injured party and the Suit is established by himself By giving evidence.In criminal cases the proceeding is taken by the state and the injured party is called out as a witness by the state.

2 What is Law? Discuss. Definition given by various jurists?INTRODUCTION: It is easier to explain than to define it. It means that things are easy to explain than to define it. Definition is very necessary for the study of the subject, because the beginning and in one sense it ends is also its definition. To give a definition of Law is comparatively a hard task due to many reasons :1.In Hindu :- Dharma2.In France :- Droit3.In Rome :- Jur.4.In Muslim :- HukmaAll these above words conveys different meaning. And we can say that a definition which contain all the above meaning and all elements would be a good definition of law. Endlly definition given by every person is always different. Because definition given by a lawyer a philosopher, a student or a lecturer is always different. A definition which doesnt cover all these elements would be an in-perfect definition.DEFINITION OF LAW:- The word, Law has been taken from the latin word which means The body of Rules various scholars has attempted to define this term according to their own prospective. Some of them are as under:-According to Roman Scholars:- The law is concerned with the parameters which is right or wrong, fair and unfair.ULPIAN:- The famous Roman scholars and a Juries, he defined the term , Law as standard of what is just and unjust.According to Salmond:- The law is the body of principals recognised and applied by the state in the administration of justice.According to Positivist Definition :- They are known as a modern thinkers and they propounded a new school in the Law namely, Analytical School. This school is also known as a scientific school. Benthem, Austin and Kelson define the term of Law in the following manners:-1.AUSTIN:- Austin is the father of English Jurisprudence and according to him, Law is the command of sovereign There are three elements of law according to Austin :a)Command )b)Duty ) = LAWc)Sanction ) According to him every law have a command and due to this command we have the duty to obey this command and if we dont obey this duty then there is a sanction.2.As per Benthem:- The law is the violaion of some declarations by the political head with utiity ensuring maximum happiness of he maximum people in the society. Benthm concept of law revolves around individual utilitarianism and its concern with the theory of pain and pleasure, which means that the purpose of Law to reduce the pain and harms and pleasure in the society.3.According to Kelson:- The law is depsycholigically command. He is concern with those commands which purely rest upon the formal expression of law.3. Sociological Definition: The sociological approach is not a single approach but it includes a number of thoughts, but all these thought related to society, that is why heading is given them to sociological. And we shall discuss some of true definitions :-DUGUID :- According to him the law is a set of sosme formal norms aiming an creation of soliditary in society.IHERING :- According to Ihering the Law is a form of guarantees of the conditions of life in society which are assured by the states power of constraint.EHRLICH :- Ehrlich lays down, that the law consists of norms coverings social life. But only the living Law is the actual law.ROSCUEPOUND :- According to him Law is an instrument for balancing, conflict or completing interest of people in the society. REQUIREMENTS FOR LAW The followings are some requirements for the definitions of law :-i)Before the law there is a State.ii)Before the State there must be a society.iii)State & society develop a legal order to be followed.iv)And finally law always has a purpose. CONCLUSION:- In end we can say that law is the important and necessary part of the state and developing the human beings. Law gives rights and duties to human beings. And law is the essential part of a State. Law is an instrument of social control as well as social change.

3 Define Right and discuss the essential elements of legal right. ORWhat is a Legal Right? Discuss the characteristics of a legal right.INTRODUCTION: Right generally means an interest or facility or a privilege or immunity or a freedom. In this way right for the purpose of jurisprudence is called legal right. Austin in his theory has separated the subject matter of jurisprudence from morality or materiality. He gave the concept of positive law. So here also right means positive law right only, which is term of legal right. Legal right is recognised by law. It is different from moral right. Moral right if violated is called moral wrong. The violatin of natural right is called natural wrong. But these wrongs are not remedial under law while if a legal right is violated then it will be legal wrong which is remedial under law. The different jurists have defined legal right in different ways:- According to Austin : Right is a faculty which resides in a determinate party or parties by virtue of a given law and which avails against a party or parties other than the party or parties in whom it resides. According to Salmond :- Right is an interest recognised and protected by the rule of right. Here rule of right means rule of law or law of country. When an interest of a person is protected by the rule of law then it is called right. Salmond definition involves two points, firstly that right is an interest and secondly it is protected by rule of right. It means that it relates to his (person) interest i.e., life liberty, heath and reputation etc. Grey has criticised the interest theory propounded by Salmond, Ihering and Heck and he has supported the view that right is not an interest but that means by which the interest is secured. According to Holland, right is as a capacity residing in one man of controlling, with the assent and assistance of the state the action of others.According to Paton : That legal right is that it should be enforceable by the legal process of the st