Category: Jurisprudence

Victims of Crime- Restoration and Legal Care under Indian Criminal Jurisprudence
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This article has been written by Nashrah Fatma, a third-year law student at the Faculty of Law, Jamia Millia Islamia. This article aims to discuss the various aspects of victim restoration under Indian law. 1. INTRODUCTION 2. ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA 3. WHO IS A VICTIM? 4. COMPENSATION TO VICTIMS 5. VICTIM RIGHTS AND VICTIMOLOGY IN INDIA 6. RIGHT OF PRIVACY OF RAPE VICTIMS 7. CONCLUSION INTRODUCTION Crime affects a large number of people. It is a violation of interpersonal relationships. The criminals or perpetrators are punished for their criminal acts but the plight of the sufferers or victims of the crime cannot be ignored. Victimization refers to any form of pain endured by the victim of a crime experienced by a victim of an assault. When a victim reports a crime, law enforcement acts, and the victim’s journey through the criminal justice system begins. The trauma may worsen due to all these procedures in the criminal justice system, and re-victimization may also play a role. Victimology is the study of victimization, which includes a scientific analysis of the connection between the victim’s physical and psychological distress and the crime. Benjamin Mendelsohn, a criminologist, is credited with being the first to use the term “victimology”. Between the 1940s and 1950s, he and his colleague Hans von Hentig examined victimology with a focus on what types of behaviours or qualities the victim exhibited that drew the attention of the offender and resulted in the victimization. They are regarded as the “Father of Victimology Study.” Von Henting examined homicide victims and found that they were more likely to be of the “depressive type”, who were easy prey for criminals. Following this approach, another victimologist postulated that “many victims precipitate homicide was in reality caused by the unconscious inclinations of the victims to commit suicide”. The criminal justice system has largely ignored the victims of crime, despite the fact that they frequently get support and help from their families, tribe, or community. Only recently have criminal law jurisdictions come to the realization that victims must be treated with empathy and that their basic rights and dignity must be safeguarded. The scientific study of victimization, including the interactions between victims and offenders, the criminal justice system, the police, courts, correctional personnel, and victims, can be roughly referred to as victimology. However, the study of victimology is not just defined by these relations but also by other forms of human rights violations that are not necessarily crimes. ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA The goal of the criminal justice system in India during the early Vedic era was not only to punish offenders but also to make amends for the victims. Throughout the Mughal and British periods of Indian history, the focus was more on punishing perpetrators than providing victims with compensation. The only things the criminal justice system cared about were guiding offenders and attempting to change them. However, since the 1980s, and mainly as a result of legal action, the protection of victims has garnered more attention.[1] WHO IS A VICTIM? The victim as defined by Section 2(wa) of the Code of Criminal Procedure is as follows: ‘Victim’ refers to a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged, and the victim includes his or her guardian or legal heirs. The concept of victim includes any person who experiences an injury, loss, or hardship due to any cause.[2] The primary victims are those who are most directly impacted by the offence, but there are also other victims, including witnesses, members of the affected community, and family members of both the victims and the offenders. It is imperative to address the relationships that were impacted by the crime. Responses to the variety of needs and damages felt by victims, offenders, and the community constitute restoration. COMPENSATION TO VICTIMS Traditionally, compensation was awarded according to the principle “Ubi remedium ibi jus” (where there is a remedy, there is a right principle. Criminal law was not a concept in any prehistoric culture. Every crime, including murder, might be made up for financially. Every crime was, in fact, a civil wrong rather than an offence against society as a whole. The phrase “Ubi Jus ibi remedium” -where there is a right, there is a remedy” holds true in the present times. The idea of compensation nowadays is that no one should go without compensation.[3] There are some general and specialized laws with provisions relating to compensatory relief in India. Sections 357 (1) and (2) of Cr.P.C. empower the trial court to award compensation to the victims of crime. The compensation provided in S. 357(1) includes costs, damage, or injury, suffered or loss caused due to death or monetary loss incurred due to theft or destruction of property, etc. Similarly, Sec.357-A is inserted by Amendment Act 2008 in Cr.P.C. and it provides a scheme relating to victim compensation. Accordingly, every State Government is required to prepare a scheme for providing funds for the purpose of payment of compensation to a victim or his dependent who has suffered any loss or injury due to the crime. The current criminal justice system is predicated on the idea that the conviction of the offender is sufficient to recognize the rights of a crime victim. The Ministry of Home Affairs Committee on Reforms of the Criminal Justice System, chaired by Justice Dr. V.S. Malimath, recognized “justice to victims” as one of the core principles of Indian criminal law in its Report presented to the Government of India in March 2003. By permitting, among other things, involvement in criminal processes as well as compensation for any loss or injury, it suggests a comprehensive justice system for the victims. Victimology was not formally acknowledged as a branch of criminology until the 1970s. The founding of the World Society of Victimology by criminologist Hans Schneider in 1979 was one of the significant turning pointsRead More

Conceptualization of Feminism & Relevancy with Law
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INTRODUCTION The explicitness of doctrinal assumptions about differences at the turn of the century fairly clearly defined the early feminist project in law. Women were regarded as being appropriately excluded from the practice of law and other positions of public power due to their perceived biological or “natural” characteristics. They were confined to “private” or familial circles. The foundation of feminist legal theory also referred to as feminist jurisprudence, is the idea that the legal system has played a significant role in the historical subordination of women. Feminist legal theory has two goals in mind. First, feminist jurisprudence aims to illuminate how the legal system contributed to women’s historical subordination. Second, feminist legal theory is devoted to reworking the law and its treatment of gender in order to improve the status of women. FEMINIST JURISPRUDENCE A legal philosophy known as feminist jurisprudence is based on the political, economic, and social equality of the sexes. Feminist jurisprudence as a branch of legal scholarship first emerged in the 1960s. It has an impact on numerous discussions of gender-based discrimination, workplace inequality, and sexual and domestic violence. Feminists have uncovered the implications of seemingly neutral laws and practices using a variety of strategies. Feminist jurisprudence’s analysis and wisdom have been applied to laws pertaining to sexual harassment, rape, domestic violence, divorce, and reproductive rights. Rather than suggesting that women should be exempted from these laws and practices, or suggesting that the law itself should be changed to provide additional protections for women, many feminist thinkers point out how the sex-neutral language of the law belies gender-based disadvantages and discrimination, and that women, therefore, need to be provided with specific accommodations in the law so that they can level the playing field. This type of legal feminism, which predominated until recently, focused primarily on equality. It presupposed that there were no legally significant differences between men and women, an emphasis that was determined by the numerous ways that the law historically both approved of and made it easier for women to be excluded from the public (and thus, overtly powerful) spheres of society. This exclusion was justified on the basis of difference, which was based on the idea that women’s particular biological role in reproduction required protection from the rigors of public life. Therefore, when significant numbers of women started to enter public institutions like the legal system, they sought to overthrow the ideology that had excluded them. Assimilation became the target, and equality became the established norm. The feminist project in law should adapt to this evolution because our perspectives on differences and the value we place on them have changed over time. When such voices are heard, things like the current generation of diverse feminist legal theories can result. Feminist theorists present a variety of change-related strategies. Feminist-styled legal proposals aim to use the law to enhance the position of women. These proposals range from continued adherence to the equality model to concepts of accommodation and acceptance of “special” needs. Concepts of difference have been successfully introduced and broadly embraced by the larger legal community in some particular areas, such as the emergence of “battered woman’s syndrome.” However, in most areas of legal regulation, concepts that do not take into account or take into account differences are not easily overturned, and it is assumed that the law is appropriately gender-neutral, at least in theory. RELATION WITH LAW “Law” and “feminism” are two concepts that sound a lot alike to us. They both play important roles in our lives. The fact that they are connected is the most crucial fact, though. Both endeavor to guarantee gender equality in all spheres of life—social, political, and economic. Let’s first clarify what they mean in reality. The concept of “feminism” can be defined as the freedom to choose one’s identity without hindrance Now, if we define “law” simply, we can say that it is a set of guidelines for behavior that are established by a supreme authority and have legal force. The main goals of the law are to uphold law and order, settle disputes, and defend individual rights and liberties. It might surprise you to learn that the word “law” comes from the Latin word “jurisprudential,” which means “knowledge of the law” or “skill in law.” The theoretical study of law is known as jurisprudence. Before the advent of law, people used to work or judge with a sense of moral principles and ethics, which is also a source of law. The common ground of law, in the words of great Juris, is the Salmond Philosophical Legal Theory. Even if you don’t know what jurisprudence means, the meaning of this word should be clear after reading the first three sentences of the text. There has been a shift away from equality as one of the guiding principles of legal thought for many American feminist legal scholars. The dominant abstract principles that have supported business as usual at most levels of society are questioned by feminist theory in law, which also questions the status quo and the legal system’s alleged neutrality. But despite the fact that feminists agree on this fundamental first step, differences start to appear. While some scholars see positive changes resulting from a deeper analysis of women’s perspectives and experiences in the law, others maintain that things are not getting better for most women and things are not getting better for most women, despite claims to the contrary. There is an unspoken trend in contemporary critical thought toward an overreliance on the speaker’s unique personality traits to validate discourse. This emphasis falsely promotes the notion that individuals are the agents of social action and change and conceals the numerous ways in which oppression occurs and is supported within the prevailing structures and ideologies of our society. It works by putting some discourse beyond criticism; discourse is regarded as authentic not because of the rhetoric’s nature but rather because of the personality of the speaker. For example, if we say that a woman’sRead More

Feminist Philosophy of Law
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INTRODUCTION ‘Femina’, a Latin word for a woman, is the root of the English word “feminist.” But what exactly does feminism suggest? Due to individual people’s views, there are various responses to this question. The fundamental definition of feminism is a compilation of movements to determine, create, and protect equal rights for women in the fields of economy, education, politics, and other fields, as well as social rights for women with equal possibilities. An advocate of feminism may be a male, woman, or transgender person because it is a gender equality ideology. What is feminism jurisprudence, though, is a completely different subject that needs to be addressed. Feminist jurisprudence, commonly referred to as feminist legal theory, is founded on the idea that the legal system has played a significant role in the historical subordination of women. Feminist legal theory has two objectives. First, feminist jurisprudence tries to explain how the law contributed to women’s past inferior status. Second, feminist legal theory is dedicated to enhancing the situation of women through a revision of the law and its treatment of gender. THREE MAJOR SCHOOLS Feminism promotes equal rights for both men and women. Feminist legal systems differ from one another. There are three major schools of feminist jurisprudence – Traditional or Liberal Feminism It says that women are just as reasonable as men. Hence, they should also be given equal opportunities to make choices. 2. Cultural Feminist In this type of school of feminism, the main focus is on the variances between the two genders. The thinkers appreciate those variances and propound that Women place more value on interpersonal connections, whilst males place more value on legal and logical abstractions. Giving women’s moral voices of compassion and communal ideals equal recognition is the aim of this school. 3. Radical or Dominant Feminism The main focus of this school is on inequality. They propounded that the men dominated the women’s class and this results in the situation of gender inequality. Radical feminists see gender as a matter of power. Radical feminists admonish us to reject conventional methods that use maleness as their point of reference. They contend that women’s differences from men must be taken into consideration while constructing sexual equality. APPROACHES TO FEMINIST PHILOSOPHY OF LAW The Liberal Equality Theory Liberal feminism is a particular philosophy that deals with achieving equality between men and women and primarily emphasizes the ability of an individual to end discrimination against women. Liberal feminists want to empower people to follow their intuition and use their skills to make men and women equal in the eyes of the law and society. Their views on freedom are the main distinction between modern liberals and bygone liberal feminism.  To attain equality in democratic liberal countries, a contemporary liberal feminist maintains that women’s freedom and political autonomy must be promoted. A former liberal feminist, on the other hand, asserts that feminism’s political duty is limited to opposing laws that treat men and women differently, and that they have already succeeded in this objective. Despite this catfight, their ultimate goal is to unite women together so they may speak up and create enormous amounts of awareness. The Sexual Difference Theory Arguments for gender feminism are included in the theory of sexual difference. It makes the case that the causes of women’s mistreatment are intertwined with nature, psychology, and culture. It claims that there are many ways in which the cultural traits associated with femininity are superior and more potent than those associated with masculinity and that men and women should thus weave their reasoned webs. 2. The Dominance Theory Dominance feminism is a philosophy held by feminists that reject the perspectives of difference feminism and equality feminism. The feminists who scream for equality want women to be given systematic equal access to all social, cultural, and legal male privileges. Feminists, on the other hand, promote gender diversity and call for women to get distinct legal and social protection in order to make up for historical injustices. The dominance theory, which contends that male social power is the outcome of well-documented disparity between men and women, in some respects supports feminists who fight for gender discrimination. Dominance feminism condemns men’s concerted efforts for women’s subordinate status in society. It asserts that men physically, sexually, and socially dominated women. They subjugated women socially by objectifying them, enforcing patriarchal rules on them, and denying them any legal rights. In terms of sexual harassment, they threatened to force them into sex, used catcalls, took advantage of them at work, and shaped them into simple sex objects. According to a Hindu shloka, “naari taran ki Adhikari”—which means that males should physically abuse women more—a woman is deserving of being beaten. The term “dominance feminism” is sometimes used to refer to Catharine A. MacKinnon. 3. The Anti-Essential Theory  A cluster of fundamental qualities that are both sufficient and necessary for objects to be identical might be referred to as essentialism. To further comprehend essentialism, it includes two steps: the first is summarizing the things inside a single concept in order to distinguish between objects by taking into account their distinctive parts, and the second is classifying them as belonging to that concept. A loose definition of feminist essentialism is the belief that all women share certain psychological and biological characteristics, such as attractiveness, sympathy, fostering, and supportiveness, which are the origins of the idea that all women are fundamentally the same. According to essentialism, every woman has the same innate qualities. Simple opposition to this presumption is anti-essentialism. Anti-essentialists reject the idea that the definition of women should be based on fixed characteristics like genetics and psychology since doing so prevents women from changing and makes it harder for society to recognize them as individuals. 4. The Post-Modern Theory Other feminist views are unique from postmodern feminism. It starts with the assumption that contemporary feminists have overlooked acknowledging differences within each gender because they are too preoccupied with the distinctions between men and women. Furthermore,Read More

Kelsen’s Pure Theory of Law
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INTRODUCTION Kelsen belonged to the Analytical school of thought and was one of the jurists responsible for reviving the original analytical thought in the 20th century. Kelsen through his Pure Theory of Law aimed to present Law in its purest form, free from all the ideologies. His theory addressed the shortcomings of the theories propounded by the ones before him. Kelsen claimed that the theory is pure on two counts, it distinguishes Law from (1) morals and (2) faith Assumptions Pure Theory of Law is based on various basic assumptions. Some of them are listed below: – Law must always be “what it is” and not “as it ought to be”. Law is normative not a natural science. He believed that the application of Law shall be uniform, shall apply to all places at all times. The legal theory does not concern itself with the effectiveness of legal norms. This theory reduces the chaos and confusion created by Natural Law philosophy and makes way for order. This theory is based on Kelsen’s belief that a theory of Law must be free from extra-legal disciplines, contrary to Austin’s concept of command that introduces a psychological element. The Grundnorm Grundnorm is a German origin word that means “fundamental norm”. Kelson’s theory is based on a hierarchy of norms in a pyramidical structure with Grundnorm at the top. From that, as it progresses, a legal system broadens becoming more detailed and specific. He defines Grundnorm as the ultimate rule from which other rules are derived or annulled, receives, or lose their validity. A Grundnorm exists due to its popularity as it establishes when it has got a minimum level of effectiveness for itself and when it loses that support, it becomes ineffective and a new Grundnorm is established. This is what we call “revolution” Kelson states that in every legal system, there will always be a Grundnorm of some sorts. Kelsen characterizes Grundnorm to be a mere fiction. Implications of Pure Theory Public Law and Private Law are not to be treated as that of different characters as all Laws derive force from the Grundnorm and there shouldn’t be any distinction just because of some dissimilarities. The Pure Theory of Law does not define Law and State as two different things, they are rather similar. Kelson negates the concept of “sovereign” as a personal entity. It defines “personality” as the entity capable of being endowed with certain rights and duties. It holds no difference between natural and juristic persons. Reason being that all legal personalities are artificial and derive their validity from superior norms. It holds that there is no difference between the 3 organs of the Government i.e. Legislative, Executive, and Judiciary as all 3 are “norm-creating agencies”. Kelson does not consider the concept of rights as essential for a legal system and hence the theory denies individual rights. On the other hand idea of duty seems essential. Criticism of Pure Theory of Law Kelson’s Pure Theory of Law happens to address a lot of shortcomings of the theories given by the ones before him and he attempted to devise a logically consistent theory. To some extent, he did achieve his goal but even his theory was not criticism-proofed! Grundnorm being characterized as vague and confusing. Reasons given- no minimum criteria given by Kelsen for it, depends on sociological factors which are however rejected by Kelsen himself. Kelsen states that a theory of Law shall be free from extra-legal disciplines but he somehow misses on the point that in modern times, the interaction of Law with disciplines like economics, psychology, etc is necessary. Kelson altogether ignored the importance and application of customs. The weakest link of Kelson’s theory is International Law as to when the theory is applied to it, it shows many limitations. Besides customs, Kelson also in entirety ignored Natural Law and Morality. Theory’s application and usefulness is somewhat limited to only legal scientists and not of much use to legal judges. The theory does not address the part that purity of Norms is difficult to maintain. Application of Pure Theory of Law in India Tracing the application of the theory, Grundnorm in ancient times was Dharma. The scriptures show that it enshrined a duty on the King to rule and administer justice following Dharma. And it was accepted by the masses too for the survival of the society. British rule in India rejected the ancient Indian legal system and made a place for Positivism by initiating codification and introducing the British justice system through equity, justice, and good conscience. Post Independence- Basic structure of the Constitution can be regarded as the Grundnorm of the present time. Reason being that Laws derive their validity from it, meaning that for a Law to be valid, has to be consistent with the basic structure. Basic structure majorly comprises of: – Supremacy of the constitution as a sovereign, socialist, democratic, republic as enshrined in the Preamble A welfare State The federal character of the Constitution Separation of powers between the organs Fundamental Rights (Part III) Kesavananda Bharati v. State of Kerala (1973) SC Legal issue- Extent of amending power under Article 368 Decision- A Special Bench13 Judges held that the power to amend does not include amending the basic structure of the Constitution so as to result in changing its identity. Indira Gandhi v. Raj Narain (1975) SC Article 329A (4) was struck down as it was beyond amending power of the Parliament. Hence the doctrine of basic structure was followed. Minerva Mills Ltd. & Ors. v. UOI (1980) SC The Hon’ble Court stated- Limited powers of Parliament to amend the Constitution, Harmony between Fundamental Rights and Directive Principles and Fundamental Rights in certain cases as a part of  basic structure of the Constitution. CONCLUSION Even though most of us know Austin as the Father of Positive Law School (honestly, it is rather debatable as Bentham seems to be the founder) but once you come across Kelson’s work, you realize how creativelyRead More

Analytical Positivism
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INTRODUCTION Jurisprudence is defined as the science or philosophy of law. The origin of this term can be traced back to a Latin term, ‘Jurisprudential,’ translated to the ‘study, knowledge or science of law.’ There are five primary schools of thought in jurisprudence. They are: Philosophical School. Historical School. Realist School. Sociological School. Analytical School. This article attempts to explain the analytical positivism of the analytical school of thought. The analytical school of thought is also known as the positivist law or the positive school. This is mainly because the proponents of this theory focused on what the law is rather than what it should be. For example, if there is a law that punishes anyone murdering with a death sentence, then according to the positivist law, people must follow this rule without questioning if anyone should be given a death sentence. Analytical positivism calls for consideration of empirical facts, rejecting any moral or value-based theories.    ORIGIN Through the 18th century, the natural law theory was more prominent in practice. According to the natural law theory, there are some laws common to all societies irrespective of their cultural or ethnic backgrounds. Natural law theory is based on the premise of the human conscience of what is good and what is evil. Anything morally wrong is considered to conflict with the law according to this theory. It was only around the beginning of the 19th century when the positivist school of thought emerged, rejecting the unclear assumptions of the natural law school.  As proposed by Jeremy Bentham and John Austin, the theory of utility and analytical positivism contributes majorly to the analytical school of thought. Analytical positivism also found support in the works or ideas of philosophers like Salmond, Hart, and Holland. Auguste Comte, a French thinker, was the first one to coin the term positivism. The term ‘positivism’ has five meanings: Law commands.  Legal concept analysis differs from social and historical investigations and critical evaluation. Decisions can be made based on predetermined guidelines. Moral judgments cannot be accepted or defended by rational arguments. Law, as it is, must be kept separate from the law that ought to be. JEREMY BENTHAM’S CONTRIBUTION In England, Jeremy Bentham became the flag-bearer of a new era of history in legal thought. His theories on positivism later led to the establishment of a new school of thought (Analytical School of thought). Around the late 18th century, the law that existed in England was mainly developed through customs. The then prevailing English legal system lacked organization. At this point, Bentham, with his robust positivist approach, gave a new direction for legal research and lawmaking. His ideas laid the building blocks for a phase of transformation from Blackstone’s Natural Law Theory to the Analytical School of thought. In Bentham’s belief, every law must be considered concerning eight aspects, namely: The source of the law The subject of the law could be either persons or things. The object for the enactment of the law. The extent of the applicability of the law The aspect of the law, i.e., whether it is directive or sanctioned. Force Expression and Remedial State Appendages This was a first-of-its-kind proposition and further laid the foundations of a new approach. Bentham’s theory might have some shortcomings, but no one can deny his importance in shaping the positivist approach of the Modern English law and laying the bedrock for the emergence of new schools of thought, the Analytical school being one of the most important of them. Needless to say, John Austin also owed much to Jeremy Bentham for his works on Analytical Positivism. JOHN AUSTIN’S CONTRIBUTION English legal theorist John Austin has extensively used the analytical method in his works, and hence the analytical school founded by him became famous with different names like positivism or analytical-positivism. For his significant contribution in this field, he came to be known as the father of the analytical school of thought (the law of positivism). Austin believed the law to be the command of the sovereign (imperative concept of law), imposed by politically superior to politically inferior. Austin was the first one who had set out to differentiate between positive law and positive morality through his works. A positive morality, according to him, is a law by analogy and hence not an appropriate subject matter to be discussed under jurisprudence. In his theory, Austin did not include laws of inanimate objects or improper laws.  He had a firm idea of law being rules set by men for men. He divided law into two parts: Human law Laws of God Human law can be further divided into two kinds: Positive law – Laws set by persons acting as political superiors in pursuance of legal rights. (According to Austin, positive law was the proper subject matter to be dealt with under jurisprudence.) Other laws – Several rules or opinions which have moral and sentimental undertones. (International law is classified under this category by John Austin.) Austin’s theory was clear, simple, and consistent in regards to what it wanted to explain. This made his proposed school of thought quite famous, and many other jurists and schools of thought have followed after it. However, many theorists have later classified John Austin’s school as the Imperative school. This is because positivism is a term that failed to define the idea of Austin’s school single-handedly. Similarly, the word ‘analysis’ was not confined to this school and hence could create confusion. Austin is given the credits for opening a new era of approach to law. Even the flaws of his theory paved the way for new ideas to follow. Later many jurists and philosophers such as Salmond and Gray took inspiration from his thoughts and improved upon his approach. CONCLUSION In conclusion, we can say, the analytical school of jurisprudence believes that the most significant feature of the law is its relationship to the state. As a result, the school is also known as the obligatory school. In the United States, prominent jurists like Gray, Hohfeld, and KocourekRead More

Economics & Realist School of Jurisprudence
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Introduction The economics of law and the economics of law are two connected ideas with a broad scope. The methodological approach to the economics of law is to analyze law from an economics viewpoint while also introspecting on the area of economics. Realism varies from the sociological school in that, unlike the latter, it is more concerned with the scientific observation of law and its real functioning than the objectives of the law. Realists argue that judicial decisions are not made solely on the basis of abstract formal law; rather, the human component of the Judge and the lawyer has an influence on the court’s choices. What is Realism? The antithesis of idealism is realism. Some jurists hesitate to recognize realism as a distinct school of law, claiming that it is best described as a branch of sociological law. Law, according to realists, is a myth. Realism has evolved as a natural progression in sociological law. It has been described as a reaction to analytical jurists’ formalistic mentality. Traditional legal principles and notions are rejected in favor of a focus on what the courts actually do in obtaining a final judgment on the issue at hand. Law, according to realists, is a generalized forecast of what the courts will do. Basic Principles of Realism: Realists believe that there can be no certainty in law since its predictability is dependent on the facts in front of the court. They oppose formal, logical, and conceptual approaches to the law since the court, in resolving the issue, makes decisions based on emotions rather than logic. They place a greater emphasis on a psychological approach to understanding law as it pertains to human behavior and the convictions of attorneys and judges. Realists deny the utility of legal language because they believe it is a covert means of hiding the law’s uncertainty. Because realists see the law as what the courts do with a given set of facts to make a decision, they place a higher value on the case law approach of legal study. Karl Llewellyn Karl Llewellyn admitted that there is no such thing as a realist school; rather, it is a specific approach taken by a group of philosophers in the field of sociological jurisprudence. He saw the law as a tool for achieving a social goal, and he advocated evaluating it in terms of its real consequences rather than strict conceptual principles. According to him, the conventional viewpoint that rules determine cases and so should be researched in law books has become obsolete, and the focus of attention should instead be on the behavior and thinking of the determining Judges or the Court. The features of Llewellyn’s realism are; Llewellyn observed that case law has a high degree of predictability that may be attributed to the general art of decision-making. He put his faith in the judiciary’s knowledge and judgment, which allows judges to meet objective standards and come up with acceptable legal answers. This ensures uniformity in the handling of cases, furthering the cause of Justice. Law, according to Llewellyn, is “what authorities do about conflicts,” and it should be judged in terms of its effects. As a result, the judicial formation of legislation is crucial. He maintained that because society develops quicker than law, there is a continual need to review how the law responds to current social issues. He could not observe harm in separating is from ought for the sake of studying the judicial process and focusing on the need to examine how the law really works in society. In line with emerging conditions, he highlighted the importance of ongoing and systematic assessment and scrutiny of legislation through the judicial process. Jerome N. Frank Frank was a practicing lawyer who also served as a visiting professor at Yale School of Law. In his landmark work, Law and the Modern Mind, Frank outlined his ideas on a realistic approach to jurisprudence. He debunked the idea that law is constant, consistent, definite, and invariable, claiming that judges do not produce law but rather find it. According to him, the Judge’s unique decision is law par excellence. He emphasized that legislation is made up of judgments and human convictions, likes and dislikes, and feelings. The temperament of the judge has a significant impact on the legal system. Frank emphasizes that law is more than a set of abstract principles and that it is living with uncertainty. John Chipan Gray According to Gray, the law is what judges proclaim, and it comprises the standards that judges of the courts established for determining the legal rights and responsibilities of individuals. For him, laws enacted by lawmakers are only lifeless words in statutes, which are given life by courts through judicial interpretation. Scandinavian Legal Realism A parallel wave of realism emerged in Sweden, which was pioneered by Professor Hagerstorm, in addition to the American realist movement. However, there was one significant difference between the Scandinavian realism might be defined as metaphysical skeptical; whereas American realism is ruled skeptical. All a priori concepts of natural law, abstract conceptions, and idealism are rejected by Scandinavian realists from the law since they are all merely theoretical principles with no practical utility. A perspective that law, in all its manifestations, is a social reality free of doctrinal concepts such as morality, idealism, law, and theoretical precepts such as justice, obligation, and sovereignty supports this claim. Contribution of Realist School to Jurisprudence Realists’ primary contribution to jurisprudence is that they approached law with a positive attitude and proved the futility of theoretical conceptions of justice and natural law. Realists, in contrast to positivists, believe that law is inherently ambiguous and indeterminable, and that certainty of law is an illusion. The realist movement aims to rationalize and modernize the law, both in terms of its administration and the material for legislative reform, by employing scientific methods and taking into consideration the facts of social reality. Realism is a fusion of positivist and sociological approaches to law. It is positivist inRead More

Hart on Jurisprudence
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The present article is written by Vanshika Samir. Jurisprudence is the name given to a specific form of legal study, one that is abstract, general, and theoretical in nature and aims to reveal the fundamental principles of law and legal systems. The word jurisprudence comes from the Latin word jurisprudentia, which meaning “legal understanding.” Juris is the Latin word for law, and Prudentia is the Latin word for skill or knowledge. Jurisprudence so denotes legal knowledge and application. The study of fundamental legal principles is known as jurisprudence. Professor H.L.A. Hart (Herbert Lionel Adolphus Hart) is a well-known legal scholar. Hart made a significant contribution to jurisprudence and legal philosophy. He wrote ‘The Concept of Law’ and contributed significantly to political philosophy. He is recognized as the most prominent representation of British positivism in the modern era. He is a linguist, philosopher, barrister, and jurist, according to his book. Law, according to Hart, is a set of rules. “Where there is law, human behavior is non-optional or obligatory,” he claims. Obligation rules are backed by strong social pressures because they are thought to be vital for society’s survival. The legal system, according to Hart, is identical to the concept of law. According to Hart, rules of law are divided into logical categories with distinct legal and social functions. He divided basic rules from subsidiary rules, as well as duty-imposing rules from power-granting regulations. Primary rules are those that direct the behavior of individuals and other legal entities, whereas secondary rules are those that govern how primary rules are produced and recognized. Rules such as the Income Tax Act, the Wealth Tax Act, and others that compel taxes to be paid are examples of duty imposing rules. Power to enter into a contract, form a will, and so on are instances of power bestowing rules.  Hart examines the relationship between law, coercion, and morality in his book The Concept of Law, as well as the question of whether all laws are correctly understood as coercive orders or moral precepts. According to Hart, there is no rationally required relationship between law and compulsion or law and morality. He believes that categorizing all laws as coercive orders or moral commandments simplifies the relationship between law, coercion, and morality. He further explains that viewing all laws as coercive mandates or moral commandments creates a deceptive impression of uniformity by imposing a deceptive appearance of uniformity on diverse types of laws and social roles that laws may serve. This will lead to the misplaced characterization of the application of laws. There are laws that prohibit people from doing certain things and put a variety of obligations on them. Some laws may impose penalties or punishments for damaging others or failing to fulfill various types of tasks or obligations.  Law can be broken down into rules, which is based on Hart’s theory of law. Rules, he claims, are concerned with what should be done rather than what happens. Rather than being indicative or descriptive, rules are mandatory or prescriptive. Rules have a self-legitimizing or independent quality to them. Rules are not the same as orders. Rules have a broad application and require recurrent activity, whereas commands typically call for a single unique performance. In certain circumstances, such as rules of a game, rules are constitutive and define the action in question, whereas, in others, such as rules of grammar, morals, and law, rules regulate activities that would occur regardless of whether the rules existed or not. Insofar as they are formal in nature, open to revision by authorities authorized for this purpose, and have some sort of adjudicating process when there is any dispute with the meaning or implementation of these rules, rules of game, clubs, and societies have the feature of rule of law. Rules of morality cannot be changed by legislation and cannot be resolved by adjudication. As per Hart, law consists of rules and it is mandatory for individuals to follow the law. At the same time, the law can be subject to amendment and adjudication. Law consists of rules and rules can be divided into two- primary rules and secondary rules. The behavior of men in society is governed by primary rules. These rules either confer privileges or impose obligations on society’s members. Secondary rules specify how and by whom main rules may be made, acknowledged, updated, or repealed. Human beings are obligated to conduct or refrain from specific activities under basic rules; secondary rules are parasitic on or secondary to the first. People are bound by basic rules whether they like it or not, whether they wish it or not; secondary rules provide them with opportunities to realize their wishes. Primary rules are vital for social interaction, whereas secondary rules are required for growth. Hart’s depiction of a legal system as a combination of main and secondary rules is unquestionably useful as a tool for analyzing many issues that have perplexed both jurists and political theorists. The rule of recognition is a secondary rule, according to Hart, although it appears to some jurists to be more like the acceptance of a special kind of rule than a power. Hart’s approach is predicated on the distinction between laws that create responsibilities and rules that create powers on a legal system being established by their union, while others believe that such a strong separation is unnecessary. LATEST POSTS ARCHIVES

Historical School of Jurisprudence
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This article is written by Saba Banu, a 3rd year law student, from Pendekanti Law College, Hyderabad. INTRODUCTION The study of jurisprudence, as other branches of law, was started among Romans first. The word ‘jurisprudence’ springs from the Latin word ‘jurisprudentia’ which suggests the knowledge of law. Jurisprudence is that the theory and therefore the study of law. Law is a very complex subject. The understanding of an idea differs from one person to different person. Historical school of jurisprudence deals with the origin and development of the overall principles of law. The origin of the law is a continuous process and it does not stop by any command or anything. Reasons for the Evolution of Historical School The reasons for the origination of the historical school are that; a) Reaction to the natural school: As the believers of the natural school believes that the origin of law is by the divine power. The believers say that it has been already in existence, and it is not the same as of the historical school of law. Under, the historical school of law, the believers think that it is not originated by the divine power, but has formulated by the people, which is not as same to the natural school. b) The historical school of law, opposes the ideology of the analytical school of law. Austin is considered to be the father of analytical school of thought, the method which Austin applied, and he confined his field of study only to be the positive law. On the basis of Austin’s conception of law. It shall be convenient to discuss Austin’s theory under two main heads:-     1) Austin’s conception of law.     2) His method. Jurists of Historical School of Law Montesquieu: Maine described him as the first jurist who proceeded on the historical school of law. This particular jurist made researches into the institutions and laws of the various societies and made a conclusion on the researches made by him that “that laws are the creation of climate, local situations, accident or imposture”. The suggestion of relativity of law, and that the law should answer the needs as according to the time and place, is a step in the directions of new thinking. Savigny: Savigny is considered as the father of the historical school of law. The Law has source within the general consciousness of the people. He said that Law develops like language and Law features a national character. Law, language, customs and government haven’t any separate existence. There’s one force and power in people and it underlies all the institutions. The law, language, develops with the lifetime of people. Savigny’s theory is often  summarized as follows: 1) That law may be a matter of unconscious and organic growth. Therefore, according to him law is found and not made. 2) The law is universal in nature, like language, people and lots of  other things within the world. 3) Custom not only precedes legislation, but it’s superior thereto. The Law should  conform the favored consciousness  4) Legislation is that  the last stage of law-making and thus, the lawyer or the jurist is more important than the legislator. Criticism of Savigny’s theory    1)  Inconsistency within the theory: He emphasized the national character of law, but at the equivalent time he recommended a way how the Roman law are often adapted. 2) Customs not always supported on popular consciousness: Savigny’s view is whole not perfectly sound, because many customs originated just for the convenience of a powerful minority. Sometimes, customs completely against one  another exist within the different parts of the country which can’t be reflecting the spirit of the whole community. 3) He ignored other factors that influence law: Another criticism against him was ‘so occupied with the source of law that nearly forgot the stream’. The creative function of the judge was also ignored by the Savigny’s theory. 4) Many things were unexplained: Certain traits, like mode of evolution and development weren’t explained by the Savigny. Savigny’s Influence Very Wide The theory of school, later on, influenced many jurists. It had been after Savigny that the worth of historical method was fully understood. His method was followed in England by Maine, Lord Bryce, and lots of others who made studies of various legal systems on historical lines. Puchta’s Contribution Puchta made a valuable contribution to jurisprudence by giving the two-fold aspects of the human will and origin of the state. On some points, Puchta made improvements upon the ideas of Savigny and made it more logical. Main Doctrines of Historical School The principle doctrines of the school, by Savigny’s and a number of his followers, maybe summarized as follows: (1) ‘Law is found, not made’. A special view is taken of the facility of act. The evolution of law is actually biological process. (2) As law develops from a couple of easily grasped legal relations within the communities to the greater complexity of law in modern society. The lawyer, is therefore a comparatively more important law-making agency than the legislator. (3) Laws aren’t of universal validity or application. Each individual develops its own legal habits, because it has language, manners and a constitution. Savigny insists on the parallel between language and law. Stages of Evolution of Law 1) Law made by the ruler: Laws are the command of the ruler, back in those days. The decisions rendered by them are the decisions of god. 2) Customary laws: The laws were used as precedents as ordered by the courts. 3) Knowledge of law in minorities: The law was controlled by the priests, the power of the ruler weakened and the believe in the priests and customs took in their hand.  4) Codification: The law was codified. CONCLUSION The historical school deals with the past and the present, Historical school of jurisprudence describes the origin of law. Many jurists like, Montesiqueu, Puchta, Savigny were the supporters of the historical school. According to maine, Montesquiue was the first jurist of the school. Savigny wasRead More

Rights and Duties- Jurisprudence
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This article is written by K.Lasya Charitha pursuing BA LLB in Damodaram Sanjivayya National Law University, Visakhapatnam. In this article, the researcher discusses theories and the  classification of rights and duties in Jurisprudence.  INTRODUCTION Rights and Duties are interrelated, because where there are rights, there are duties, and people are given rights to protect them and fulfill their duties to the state. Duties and  rights go hand in hand. It is not wrong to say that both twins grew up from one root. Both concepts of rights and duties have been thoroughly discussed under the  Jurisprudence. Many internationally renowned lawyers and scholars try to define their  ideas and criticize the ideas of others.  Meaning of Rights  The Rights in the general sense mean different things, but it is usually understood as the standard of actions allowed in a given area. As a legal term, it refers to the standard of conduct permitted by law. Such permitted action of the people is called their legal right. The Legal right should be distinguished from the moral right or natural right. Legal rights are the interests recognized and protected by law. Violation  of this interest is a violation of the law and respect for that is a legal duty. Moral law  or natural law refers to the interests recognized and protected by natural justice.  Violating this interest would be moral evil and respect, for that is, a sense of moral duty.  Definitions of Rights  Broadly speaking, it means that actions permitted by law are called legal rights, or  actions recognized or protected by the state are called legal rights. The definition is  given by many lawyers such as Holland, Austin, Pollock, etc.  As per Austin, right is personnel which lives in a determinate party or parties by  temperance of a given law and which profits against a party or parties (or answers to  an obligation lying on a party or parties) other than the party or parties in whom it  lives. As indicated by him, an individual can be said to have a privilege just when  another or others are bound or obliged by law to accomplish something or hold back  concerning him. It implies that a right has consistently a relating duty. This definition,  as it shows up on its very face, is defective on the grounds that in this definition there  is no place for blemished rights. Holland in one way or another follows the definition given by Austin. As per him,  “capacity residing in one man of controlling, with the assent and assistance of the  state the actions of others.”  Salmond characterizes directly from an alternate point. He says, “A right is an interest  recognized and protected by a rule of right’. It is an interest in respect for which is a duty,  and disregard of which is wrong.”   According to Gray: A legitimate right is “that power which the man has, to make an individual or people to do to or limit from doing a specific demonstration or acts so  particularly far as the power emerges from society forcing a lawful duty upon the  individual or people.” He expresses that the “right isn’t simply the interest, it is the  way to appreciate the interest got.”  In the case of the State of Rajasthan versus Union of India, the Supreme Court  expressed that “Legal rights in the exact sense are correlatives of legitimate duties and  lawful rights are characterized as the interests which the law ensures by forcing duties  on different people. In any case, the lawful right in the exacting sense implies right is  the insusceptibility from the legal power of another. Immunity is no subjection by any  means.”  Rights Guaranteed under the Constitution of India  The Constitution of India has ensured certain rights to the residents of India which are  known as Fundamental Rights which are viewed as the main rights. On the off chance  that these rights get disregarded, the individual has the option to move to the Supreme  Court of India or the High Court of any state for enforcement of these rights.  The fundamental rights guaranteed by the Constitution of India are: ✓ Article 14: Right to Equality  ✓ Article 19: Right to Freedom  ✓ Article 21: Right to life  ✓ Article 23 and 24: Right against Exploitation  ✓ Article 25: Right to Freedom of Religion  ✓ Article 32: Right to Constitutional Remedies  Theories of Rights  ❖ Interest Theory  The interest theory was developed by Rudolf Von Jhering. Rudolf Von Jhering said that  legal rights are interests protected by law, and he emphasizes the interests of the  people, not the will of the people. The main goal is to protect people’s interests and avoid conflicts between personal interests. You are interested in the life of the  community itself, and you are not bound by any laws.  Salmond’s opinion: He Supports the theory, but he states that compliance with the  theory is an important condition. He Criticized the theory of interests on the ground  that interests are not protected by the state. In order to confer a legal right, the  important thing is to protect the interests and be recognized by the state.  Gray‘s point of view: He said that the theory is partly correct because the lawful right  itself is not an interest, it is only to protect the personal interests. He also pointed out  that legal rights impose legal obligations on individuals through “state” laws, thereby giving them the right to take certain actions/temperance.  Dr. Allen‘s point of view: It can be said that the two theories are not contradictory, but  this is a combination of the two theories. He tried to combine these two theories and pointed out that the essence of a legal right is not the right protected by law, nor the  right protected by itself, but the right to exercise legal protection of interests. It can be  concluded that both theories are an important part of the legal right.  ❖ Will Theory  This theory is supported by Kant, Hagel,Read More

Meaning, Nature and Concept of Jurisprudence
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Vanshika Arora, is a first-year B.A. LL.B student at Army Institute of Law, Mohali. This article is an introductory guide to jurisprudence.  INTRODUCTION Jurisprudence has been defined and studied by various thinkers and jurists over a long period of time. Hence, it is not possible to single out a common, widely accepted definition of jurisprudence. Law is dynamic, society and societal changes are dynamic in nature, therefore, the subject matter of jurisprudence inevitably evolves. Simply put, jurisprudence helps one understand the concept of law, investigate the nature of legal rules, and reflect upon the meaning of underlying legal systems. It answers questions that scrutinize legal relationships with morality, ethics, and other social phenomena. Jurisprudence finds its origin in the classical Greek period, wherein Roman jurists started delving into the concept of law.  Meaning The word Jurisprudence originated from the Latin word ‘Juris Prudentia’, which can be broken down into ‘Juris’ and ‘prudence’, which respectively mean ‘law’ and ‘forethought’. Jurisprudence hence means ‘knowledge of the law’ or ‘legal theory’ or ‘study of the law’. Lord Tennyson calls it the ‘topic of Lawless Law’ since it is not derived from any legislative statute or state assembly. Moreover, jurisprudence discusses related principles such as rule of law, need, and importance of law, etc.  Bentham, regarded as the ‘Father of Jurisprudence’, was the first one to study law. He divided his study into two parts,  Expositorial Approach: This approach stated that law is to be followed ‘as it is’. Law is the command of the sovereign, hence this command should be followed without any discourse.  Censorial Approach: This approach stated that law is ‘as it ought to be’. It focused on the morality of law and its latent objectives. Instead of law being merely an instrument of power and enforcement, it should also reflect what is right in terms of ethics.  Definitions Ulpian, the Roman Jurist, defined Jurisprudence as the observation of things, human and divine,  the knowledge of the just and the unjust. Austin, defined jurisprudence within the limits of ‘command of the sovereign’, and did not believe in Bentham’s censorial approach. Moreover, he regarded jurisprudence as the ‘philosophy of positive law (jus positivum). As stated earlier, he believed law was an instrument of the political superior to practice command over his inferior subjects. He further divided jurisprudence into two categories,  General Jurisprudence: law that is common to all. Specific Jurisprudence: law that concerns itself with a specific section of the society.  Holland regarded jurisprudence as ‘the formal science of positive law’, which is analytical in nature. He defined positive law as the general rule of external human action enforced by sovereign political authority. He further elaborated that jurisprudence is not concerned with the contents of the law, but only fundamental conceptions, making it a formal law.  Salmond defined jurisprudence as the ‘science of law’, wherein law is civil law and law of the land. Moreover, he divided jurisprudence into two sections:  General: Dealt with the entire body of legal doctrines. Specific: Dealt with a particular portion of the doctrines. Specific jurisprudence was also divided into three more sections: Expository/ Systematic/Analytical: Dealt with contents of the actual legal system at any point in time, past, present, or future.  Legal History: Concerned with historical legal developments  Science of Legislation: Ideal future of the legal system and the purpose that it may serve.   Keeton defined jurisprudence as the study and scientific synthesis of the essential principles of law.  Roscoe Pound attempted to define jurisprudence as the science of law, wherein law should strictly be understood in its judicial sense, which would mean the body of principles recognized and enforced by public and regular tribunals in the administration of justice.  Relationship with Other Social Sciences  Social science, in its truest form, is the science of society, its people, and its nuances. Within the broad niche of social sciences, one may discover a separate science dealing with every aspect of society. May it be economics, politics, sociology, ethics, law, and so on. Jurisprudence, which loosely stated, is the knowledge of the law, relates itself to different social sciences in the following manner,  Sociology: While a legal professional is predominantly concerned with rules and regulations that constitute law, sociology steps in to relate the ramifications of these rules within the society and serve the actual purpose behind law. Sociology concerns itself with the influence of law on society and human behavior.  Psychology: Jurisprudence is concerned with man’s external behavior, while psychology helps legal professionals turn an eye towards mental processes, behavior, and bodily reactions to benefit the field of penology. Criminology and the process of punishment and sanction, in law, should always take into consideration, questions like, ‘the motive of a crime, ‘personality nuances of criminals’, ‘biological nuances of criminals’, etc.  Ethics: Ethics is the science of moral, and positive human conduct. Law intends to control human conduct in a manner that is not disadvantageous to the rest of society. Hence, ethics and law cannot be divorced. Largely, all that is not ethical finds itself prohibited under the law, inviting punishment and sanction. But, morality too is subjective and changes its scope with time, making ethics and law a dynamic sect of human life.  Economics: The relationship between economics and law is vivid. Economics is the science of production and distribution of wealth, the equitable enforcement of which, is the responsibility of law. Therefore, every legislation, legal premise, and argument focuses on economic welfare.  Scope of Jurisprudence In the words of Karl Lwellyn, ‘Jurisprudence is as big as law and bigger’, hinting at its vast scope. Justice PB Mukherjee stated, ‘Jurisprudence is both an intellectual and idealistic abstraction as well as the behavioral study of man in society. It includes political, social, economic, and cultural ideas. It covers that study of man in relation to state and society.’ Jurisprudence is often regarded as ‘the eye of law’ and covers a vast spectrum that cannot be limited to a particular area concerning law. It extends to the practicalRead More