JURISPRUDENCE AND LEGAL THEORY
Q. 1 (a). Define jurisprudence and assess its scope.
Ans. Definition of jurisprudence.- The term “Jurisprudence” has been derived from the Latin term “juris prudentia”. Juris means law and prudentia means knowledge. The term literally means the knowledge of law. But in fact jurisprudence is not merely the knowledge of law, but it is a systematic knowledge of law. Therefore Austin calls jurisprudence as “philosophy of positive law”.
It was probably not until the publication of John Austin’s The Province of Jurisprudence Determined in 1832 that the word ‘jurisprudence’ began to acquire a technical significance among English lawyers. Austin was the first Professor of jurisprudence in the University of London, and the most important part of his work consisted of a formal analysis of the structure and concept of English law.
By the term ‘positive law’ Austin meant ‘jus positivism”, that is, law laid down by a political superior for commanding obedience from his subjects. According to Austin, science of law is concerned with law as it is and not as it ought to be, which he considers as science of legislation. In order to determine the meaning and scope of jurisprudence, Austin distinguishes law from custom and ethical abstract ideas.
The analytical positivist approach of Austin was a symptom of the rationalizing analytical spirit of the 19th century and that is why Austin is treated as one of the glamorous leaders of Analytical School of Jurisprudence. Austin is often spoken of as the “father of English jurisprudence”, and his approach to the subject has dominated English legal thought almost to the present. It was therefore inevitable that the word “jurisprudence” comes to mean almost exclusively the formal analysis of legal concepts. If the word ever came near to having a precise meaning, it was surely this.
Holland has defined jurisprudence as “formal science of positive law”. A formal science, as distinguished from material science, is one which deals not with concrete details but with the fundamental principles underlying it. It concerns itself with the general portion of legal doctrine. Holland emphatically says that jurisprudence is not the material science of those portions of the law which various nations have in common, but the formal science of those relations of mankind which are generally recognized as having legal consequences.
Salmond defines jurisprudence as “the science of the first principles of civil law”. It is the study of the laws of the world and the general notion of law. Every law is based on certain fundamental principles and those principles are common to all legal systems. Jurisprudence is the study of those principles. It is that body of rules which is recognized and acted upon by the courts of justice.
Salmond calls the study of jurisprudence in its generic sense as theoretical jurisprudence. The object of theoretical jurisprudence is to study the theory of law and its fundamental principles and conceptions, rather than its practical and concrete details. It does not deal with the outlines of the law. The general jurisprudence is also called the philosophy of law- the term ‘philosophy means in the sense of an inquiry into the first principles of any department of thought or jurisprudence simpliciter, without any qualifying adjective to distinguish it from the residue of legal doctrine
According to Roscoe Pound jurisprudence is the science of law using the term ‘law’ in the juridical sense, as denoting the body of principles recognized or enforced d by public and regular tribunals in the administration of justice. He was of the view that there is an inevitable correlationship between jurisprudence and other social sciences. Thus, he opined that jurisprudence, ethics economics, politics and sociology are distinct enough as the core, but shade out into each other. He made a suggestion for establishing separate branch of sociological jurisprudence, which is concerned with the influence of law on society at large. According to him. in the study of jurisprudence, the emphasis should be on the relationship between law and society.
Again, in jurisprudence, we are not to study law of one country or the other. We are to study the basic principles underlying them all. The legal relations between different persons may be different and the laws prevailing may also differ from State to State, yet the fundamental principles remain the same. The basic legal conceptions of right and duty, redress and punishment, possession and ownership are all identical to different legal systems. These identical fundamental legal conceptions form the backbone of jurisprudence. Paton calls it a particular method of study, not of law of one country, but of the general notion of law itself. According to Paul Vinogradoff. “in contrast to the simple rules and divisions of positive law which strike across the history of all nations, there arises a science of law, a jurisprudence which aims at discovering the general principles underlying legal enactments and judicial decisions.”
Scope and importance of jurisprudence
The jurisprudence studies the nature and contents of law. What are the sources of law is the main content of jurisprudence. According to the analytical jurists like Austin and Salmond, jurisprudence covers the civil law and legal concepts such as, State, sovereignty and administration of justice. Possession, ownership, rights, duties, obligation and immunities are also analyzed by the jurisprudence.
Sociological jurisprudence deals with the complex interplay of values, both social and individual, underlying the law, with the impact of social changes on law and vice-versa, with the effectiveness of law, how far it is obeyed, the causes of disobedience and so forth. In the light of this kind of study law appears as a living thing, changing, growing, and sensitive to its environment.
The use of productive means in such a way that it serves the maximum needs of the society by the help of the law, makes society and law complementary to cach other and as such law becomes indispensable for an organised society.
The importance of jurisprudence cannot be over-exaggerated. Being a social science it confers all benefits that a social science can.
As language needs grammar so also law needs jurisprudence to throw light on the basic ideas and the fundamental principles
Q. 1 (b). “Jurisprudence is the eye of the Law” -Explain.
Ans. Jurisprudence is the eye of the law.- It is said that Law regulates the behaviour of living persons in an organised civil society and even protects the dead person through keeping his/her reputation intact. Thus it may be said that law is the actual working element in keeping a society orderly. If any given accepted principle is violated, law imposes punishment of different kinds as per needs. Law may be customary, or it may be made by the legislature or it may be made by the judiciary through its pronouncements. In a society, which desires to develop under a democratic set up within the principle of rule of law to achieve welfare of people giving them social justice must adhere to observance of general principles of good governance under an accepted series of law.
Law under a dictatorial set up has a different role sans natural justice and its various aspects, wherein, it serves the needs and defined purpose of the dictator, thus becoming short of its many elements as are necessary in a modern society having prime emphasis on the freedom of individuals. If law is to be treated as a concrete form regulating external behaviour, its presence in different branches of activity may be ascertained in different legislations to cope with its different needs. It is well-known that ‘law’ being a dynamic concept changes with the evolution of society under different socio-economic and political conditions.
The jurisprudence, it may be said, is like the Kelsen’s ‘Grund Norm’, that is, the basic principles which regulate every law. The presence of these basic principles make law acceptable and enforceable. Absence of these basic principles in a law, will make it unacceptable and unenforceable. These basic principles come into existence as per needs of the society, how those needs are to be achieved and in case of violation, what remedial procedure and process has been suggested through the concurrence of the people.
Whether these basic principles acceptable to the majority of the people in a given civilized society, are also present in a dictatorial set up ? It may be pointed out that basic principles of law in a dictatorial society happen to be quite different from the basic principles of law present in a civilized society. The purpose and needs in a civilised society are also different from those in a dictatorial society. The observance of law in a dictatorial society is because of fear of punishment not as a matter of devotion and faith; loyalty and sincerety. As such, the dictatorial set up is not liked by the people in general. The function of eyes is to present the photostat copy of the matter observed and seen to the mind. Without eyes, the world becomes dark and by perception, the things are visualised. But, it may be said that eyes are the very important part of the body. The eyes are one of the most important parts of the human body. Almost all human activities and movements are possible only through them. No person can do anything properly unless he is able to see. The jurisprudence functions for law in the same manner as the eyes do in the human body.
How jurisprudence is the eye of law, can be understood when we visualise that for every need and branch of activity, to cope with this needs of the society and regulate the problem connected therewith in context to the need and branch of activity a law comes into existence. It is supposed that to frame, legislate, promulgate a law on the subject of need, controversy or problem, the solution will come out and be solved in a sophisticated and lawful manner to bury the hatchet. But, uncontrollable and mammoth number of laws make it, for a Lawyer or Judge rather impossible or very difficult to know the all law and its location where it can be traced and found. Moreover where, in a situation the provisions of law are silent, to do justice, the help of basic principles of law are sought for by the lawyers and judges. These basic principles are the subject-matter and content of jurisprudence. Again, in every Act, passed by the legislature (Parliament or State legislature) certain items connected with that Act, are defined in the interpretation clause but those terms which have settled meaning in the jurisprudence are usually left out and one can through the application of jurisprudence can very easily find out the meaning of those undefined terms.
Law is concerned with civil life. A law-obeying person is known as civilised person, and a person who is guilty of violation of law is liable to punishment. It follows, therefore, that sound knowledge of law is necessary and desirable for all the persons living in a State. Thus, we may conclude that jurisprudence, having very much importance for society has rightly been called by the learned Scholar Lasky the eye of law.
The observation that ‘jurisprudence is the eye of the law’ may be treated as correct as we have seen that basic principles of law are perennial and omnipresent in context to law.
For example basic principle is to protect the institution of marriage to keep peace and curb unauthorised sexual relationship, but where a society accepts presentation of living as wife and husband (without actual marriage) the living-in-relationship bars criminality and grants the status of wife-husband relationship if it lasts properly. In case couple desires to separate themselves, they can easily do so provided both agree and feel satisfied.
Likewise, the basic principle is to protect the weaker person of the society and unmarried mother and her child are protected by law through its eye i.e. jurisprudence through various agencies of the State
Q. 2 (a). Define jurisprudence and discuss its utility and importance.
OR
How would you define jurisprudence? Discuss the nature and importance of jurisprudence.
Ans. Definition of jurisprudence [Please see answer to Q. No. 1(a)]
Utility and importance of Jurisprudence-There is a great confusion about practical utility of jurisprudence as a subject. It is said that ‘jurisprudence as a subject has no practical utility’, because it is an abstract and theoretical subject. Saimond, however, is opposed to this view and points out that jurisprudence has its own intrinsic interest like any other subject of serious scholarship. Just as a mathematician investigates the number theory not with the aim of seeing his findings put to practical use, but by reason of the fascination which it holds for him, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest. The legal researches on jurisprudence may well have their effect on contemporary socio-political thought and at the same time themselves be influenced by these ideologies.
Jurisprudence also has its practical applicability. It seeks to rationalize the concepts of law which enable us to solve the different problems involving intricacies of law. In other words, it serves to render the complexities of law more manageable and rationale and in this way this can help to improve practice actice in the field of law making problems easy to understand and helping in finding its solutions.
That apart, jurisprudence also has great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in sheding aside their rigidity and formalism and trains them to concentrate on social realities and the functional aspects of law. It is not the form of law but the social function of law which has relevance in modern jurisprudence. Law has to take note of the needs of society and also of the advances in the related and relevant disciplines such as sociology, economics, philosophy, psychiatry etc. For example, a proper understanding of law of contract may perhaps require some knowledge of economics or economic theory or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and perhaps also of sociology.
Commenting on the utility of jurisprudence, Holland observes, “the ever renewed complexity of human relations calls for an increasing complexity of legal details, till a merely empirical knowledge of law becomes impossible”. Thus, jurisprudence throws light on the basic ideas and the fundamental principles of law in a given society. This is why it has been characterized as ‘the eye of law’ by some jurists.
Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the laws passed by the legislature by providing the rules of interpretation. It also furnishes them opportunity to pin-point the lacuna, shortcomings and defects in the laws framed by the legislature and improve them through their judicial interpretation.
The study of jurisprudence helps in rationalizing the thinking of the students and prepares them for an upright civil life. The knowledge of law and legal precepts also helps them to face exigencies of human life boldly and courageously.
Jurisprudence may also be helpful to legislators who play a crucial role in the process of law making. The study of jurisprudence may familiarise them with technicalities of law and legal precepts thus making their job fairly easy as also interesting.
According to R.W.M. Dias, the history of jurisprudence provides an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence.
The utility of jurisprudence should be tested in the light of its functional role and in the context of the prevailing socio, economic and political philosophies of the time, place and circumstances. The law should serve the purpose of ‘social engineering by preserving societal values and eliminating conflicting interests of individuals in society for peaceful and perpetual development.
Q. 2 (b). “Jurisprudence is lawyer’s extra version” (Stone). Comment.
Ans. Law can not be placed as a distinct entity devoid of all other social forces because working field of law is society, its needs and imparting impart justice for keeping peace. Even if the law exists for a particular branch, by its proper interpretation, it can be utilized to solve general problems also. As such, integrative aspect of law whereby different aspects of society intermixed with each other are taken into consideration to tackle a social problem.
Lawyers while arguing a case through interpretation put before the Court not only the visible meaning of the law or its provisions but also hidden meaning of the provision by which the legislature intended to solve a given social problem. In dowry cases that is why, not only the demand of dowry at the time of marriage is prohibited but also during the first 7 years of existence of marriage by analogy any demand by the bride-groom or his relations concerning dowry is treated as dowry demand. The exposition of law with its different aspects though not specifically provided in its provisions but through arguments by lawyers may be termed as lawyers extra-version for the purpose of dispensation of justice. A pedantic exposition for establishing one’s versatile knowledge if not to be used for tackling social needs would be treated as accumulation of wisdom concerning a legal branch of law, but it would be like an Article of Museum.
Integrated exposition of law covers many branches of social studies and it is important because law also covers many branches of social studies. By keeping law as separate will isolate it as against its purpose and its power of tackling every conceivable social problems.
Through interpretative skill, judges also expound law and expose out the hidden or concealed provision of a legal provision. For example the provision of Article 21 of Constitution of India ‘freedom of life’ has been expounded by the Supreme Court not only freedom of physical body but also all necessary things like good living conditions, good education, adequate medical facility, a roof on the head and adequate food to get rid of hunger.
Jurisprudentist Julius Stone has aptly observed that study of jurisprudence should be integrative and synthetic as also purposive keeping in view the need for humanistic justice through humane and just law. Не. therefore, believed that jurisprudence is lawyer’s extra-version. It is the lawyer’s examination of precepts and techniques of the law in the light derived from present knowledge in the disciplines other than law. It covers explosion of scientific knowledge, information technology and scientific bent of mind where thinking pattern becomes logical.
The extra-legal version approach to, as an instrument of social change and reforms has found favour with the judges of the Supreme Court notably Mr. Justice S.N. Gajendragadkar, Mr. Justice Y.V. Chandrachud, Mr. Justice M.C. Chagla, Mr. Justice P.N. Bhagwati, Mr Justice Krishna Iyer and others.
For interpretation of Constitution Mr. Justice Y.V. Chandrachud in Vishnu Agencies (P) Ltd. v. C.T.O., AIR 1978 S.C. 449, has cautioned that legal fraternity should not construe the provisions of the Constitution in a narrow and pedantic sense instead a broad and liberal spirit should inspire those whose duty it is to interpret law.
Disapproving rigid and mechanical approach to industrial law and legislation Mr. Justice S.N. Gajendragadkar was of the view that in constitutional disputes, the fundamental rights are to be weighed against the public good whereas in industrial disputes the employer’s statutory rights of freedom of contract has to be weighed against the valid requirement of social justice and in each case reasonable adjustment has to be made.
The confiscation of passport of Smt. Menaka Gandhi was held by the Supreme Court not only the violation of Article 19 of Constitution of India but also of Article 21 because of wide and broad interpretation with a liberal setup of mind. It can be said that this result was possible only because of exposition of legal provisions through arguments by the lawyer’s extra-version of law.
As such it seems correct that bare provisions of law by their exposition and interpretation may be given a different meaning suitable for solving a problem by the lawyer’s extra version of legal provisions. This is also applicable to Hon’ble Judges of the Courts who by their exposition of a legal provision give a new meaning to a legal precept, provision or concept of law. Some times Judges through their directions give the procedural and substantive law for removing a drawback or filling up the vacuum of legal provisions for reformation and prevalent drawbacks of the society. The Supreme Court in Laksmi Kant Pandey v. UOI, AIR 1984 SC 469, has given full procedure of adoption of Indian children by the foreigners to banish misuse of Indian children at foreign soil by the so called legal parents of the child through adoption.
Q. 3 (a). “Jurisprudence is the science of the first principle of civil law.” Comment.
Ans. Jurisprudence whether science of civil law-This is a quotation from Salmond’s book on jurisprudence. Salmond defines jurisprudence as the science of civil law.
Science -Jurisprudence is a science and not an art. A systematic and formulated knowledge is called a science. Since the ideas, principles and conceptions underlying various systems of law are dealt with in jurisprudence and form a systematized branch of learning, jurisprudence is a science. Moreover, jurisprudence does not concern itself with any particular system of law, prevailing in a particular State. According to Paton, it is a particular method of study not of law of one country but of the general notion of law itself, Clark calls it “the science of law in general.” According to Stammler also ‘jurisprudence is a formal science’.
Salmond uses the word ‘Science’ as he says that in its widest permissible sense, science includes the systematised knowledge of any subject of intellectual enquiry. In a limited sense, one may call Physics. Chemistry and Biology as sciences distinguished from History. Economics, Philosophy, etc. as arts. But in a wide (and proper) sense whenever in any branch of knowledge, the subject-matter thereof is properly classified, analyzed and systhesized so as to systematize it, the branch of knowledge is called a science because matter of the study is kept in a coherent and logical order.
“Civil Law”- By “Civil law”, Salmond says. “is meant the law of land, as opposed to other bodies of rules to which the name of law has been extended by analogy.” He further says, “such law is termed civil as being that of the civitas or states”. The name is derived from the jus civile of the Romans.
It may, however, be noted that Salmond intentionally omitted the word ‘positive’ and preferred the word ‘civil’ while defining jurisprudence as a science. He says, “The term civil law, as indicating the law of the land, has been partially superseded in recent times by the improper substitute, positive law. Jus positum was a title invented by Medieval jurists to denote law made or established (positum) by human authority, as opposed to the jus naturale, which was uncreated and immutable. It is from these contrasts that the term ‘positive’ derives all its point and significance. It is not permissible, therefore, to confine positive law to the law of the land. All law is positive that is not natural. International law for example, is a kind of jus positum no less than civil law itself.
Hence the word ‘civil law’ does not include International Law, and since jurisprudence is science of civil law, International Law goes out of the ‘orbit of jurisprudence’. Salmond, himself says, “Consequently it is no objection to the definition that it (civil law) does not cover International Law, for it is not meant to do so. It is a definition of the civil law, that is to say, the law with which ordinary lawyers are professionally concerned.”
It may, however, be noted that even according to the positivists International Law does not strictly fall within the province of jurisprudence since such jurists do not strictly recognize the claim of International Law to be positive law.
Salmond’s definition which includes the term ‘civil law’ is considered a good definition of law. But as the terms ‘civil law’ and ‘positive law’ do not always carry with them the distinction drawn by Salmond, it matters little which term we use so long as we do not mistake the content of jurisprudence. As per narration given above, it may be said that Martial Law or Military Law is a distinct category and is excluded from the orbit of Civil Law as understood by the followers of Salmond.
Q. 3 (b). “Law is an instrument of suppression”. Comment.
Ans. Law as instrument of oppression.-Law has many facets in its working. To solve different problems of the society it takes different shapes according to the need. The law may be different for different branches of social activities for the purpose of dispensation of justice and keeping peace and good social order in the society. It may be an instrument of social change and an instrument of dispensing of social justice, as well as equal or equitable distribution of production acquired by a given society. In a welfare State, the law gives adequate opportunities of protection to weaker section of the society as well as their development for attaining an adequate standard of living in a given civil society.
Likewise, through law monopolistic activities of business, industry and production of goods for upper section of society are curbed so that prices may not go high. By allowing healthy competition the law curbs monopolistic trends to give benefit of production to all by controlling through competition the higher trends of prices so that things so produced may be within the reach of all and sundry.
The law is an instrument of suppression for controlling mutiny. sedition and are organised armed attack on an established government of the country or on a friendly country of the native State.
The law is an instrument of suppression for every kind of crime and criminal activities. If crimes are not suppressed properly there will be no peace in a given society and such society will not find opportunities of the development and creative activities of the people, because creative endevour requires peace and good social order so that people should be allowed to dedicate their labour and innovative skills for creative activities instead of protecting their life and property from the criminals. As such suppression of crime and criminal activities becomes essential and necessary for the peaceful living conditions.
The family for peaceful living condition requires monogamy. The institution of marriage has been established to curb illegal sexual relations and to fix correctly the paternity of the child. To protect the institution of marriage, the law punishes invaders to this pious institution and bigamy or polyandry is suppressed by the law.
To protect women, the law suppresses all attempts or commission of crime on their physical body and their sexual virginity is protected by law and if the sexual act has been committed without the consent of the woman or when she happens to be under a defined age the offender is liable to punishment. After divorce or after her marriage where a woman has been left by the husband or by her husband’s relations any unsocial activity to her is suppressed by the law.
The atrocities on children, women and other weaker sections of the Society is suppressed by law to protect them from the BEGAR ie. taking of work from some person without giving him proper payment. Work without payment is suppressed by law in different capacities, it covers every age group of workers. In our Constitution under Article 23 Begar has been prohibited and taking of BEGAR is treated as violation of Fundamental Rights of the victim and action is allowed not only against the State but also against the private parties who have taken Begar.
Likewise law suppresses double punishment for the same crime, committed by the same person. This is also provided in our Constitution in Article 22 and is said to be protection from double jeopardy. A person cannot be punished twice for one crime he has committed. Any attempt to do so is suppressed by the law so that there may be an end to the criminal punishment.
Likewise, to curb the legal process against the poor by the rich, if an action by a person has been finally decided by a competent Court, a fresh action on the same facts between the same parties cannot be started and initiated. This has been provided in Section 11 of the Code of Civil Procedure and is known as doctrine of res judicata. Thus, law suppresses double action on the same cause between the same parties.
The law suppresses physical violence against a married woman by her husband and his relations for any reason including exracting of dowry. To suppress these activities a legislation-Domestic Violence (Prevention) Act, 2005 has been passed.
To suppress immoral sexual activities the Immoral Traffic (Prevention) Act, 1956 has been passed. To suppress the incidents of sexual assault, our judiciary has held that modesty of a woman cannot be violated and the culprit cannot be saved on the argument that modesty, comes to a woman when she becomes fully grown up, hence ‘she-child has no modesty and the culprit has committed no crime. As such it can be said that law is an instrument of suppression though it covers only some facets of the law.
Q. 3 (c). Write critical note on Living Law and its relevance in Indian context and its Legal System.
Ans. Theory of ‘living law’ propounded by Eugen Ehrlich.- The theory of ‘Living Law’ was propounded by Eugen Ehrlich (1862-1922) who was a Professor of Roman Law at the University of Czernowitz in Austria. He believed in spontaneous evolution of Law without hanging on the past but Conceived Law in the context of existing society and thus evolved the theory of ‘Living Law’. According to him, the institution of marriage, domestic life, inheritance, possession, contract etc. govern the society through ‘living law’ which dominates the human life. He considers ‘Living Law’ wider in scope than the statutory law enacted by the State. Frequently a community ignores that enacted law and lives according to rules created by mutual consent. The dowry system prevalent in India provides the best illustration of ‘Living Law’.
The essence of Ehrlich’s Theory of Living Law is that law need not be necessarily framed by the State or applied by the Courts or have a coercive legal compulsion behind but it is created by life of groups living within the society. Thus, Living Law is the fact which governs social life and a proper study of law requires the study of all the social conditions in which the law functions in the society. A statute which is habitually disregarded is no part of Living Law.
Expounding of ‘Living Law’ with other facets in context to India, ‘Living Law’ means law in action, law in operation, law in use, law in practice. A law may also be in theory and abstract form containing some concept. That concept may have some progeny which acts in practice. For example, in Constitution of India Article 21 provides protection of life and liberty. This has been interpreted by the Supreme Court of India as covering a living condition where a roof on head, bread, medicine and education and good environment to live in is assured. As such the provision of Article 21, if read as it is will convey simple protection of life and limb but the concept of living law manifests all features of a good living as intended by the Constitution.
Again in Hindu Law, one of the grounds of ‘Divorce is Cruelty perpetrated by any of the couple to other partner. The living law makes cruelty alive by describing how and in which form it has been committed There may be innumerable kinds of perpetrating cruelty and this practical use of transformation of concept of cruelty into action would constitute as example of cruelty as illustration of Living Law. Law in theory remains dormant and Living Law is an alive law having its impact on persons practically.
If so happens that law comes into existence by legislation, by promulgation, by new and innovative interpretation given by the judiciary or/and by following and accepting a practice by majority of people as Customary Law. The formation of law by all these means constituted every year, comes to a large number of laws coming into existence and the figure every year goes higher and higher to tackle the needs of the current living society. After passage of time, the old laws become in disuse or go to hibernation or become dormant and there number also increases.
The Law Commission of India, which exists permanently with its members changing after every three years having their tenure of 3 years, examines the efficacy of laws existing at the statute books and recommends the Government for repeal of those laws which have lost their utility because of change in the society and having new laws for their changed needs and norms. Recently, the Commission has recommended for repeal of a large number of laws which have lost their relevancy.
In classification of Laws given by many jurists, there has been no place for living law as a category. This is so because every law, which remains in operation is a living law, it cannot be categorised as a separate unit. Any law or every law which is alive for action is a living law, so if more than one law is in operation, all are living law with their contents and their separate category will create confusions. Because of this reason our jurists have not categorised living law as a separate kind.
In Indian context, the Law Commission is doing its duty in recognising living law by allowing them to continue and on the other hand it recommends repeal of dead laws which are in disuse and have lost their utility for the changed needs of the society.
Only the living law should be allowed to exist and continue in the statute books, making the use of the laws in the Courts confussionless. From the large numbers of laws which particular law is applicable and efficacious for a particular case will be easier to select, if only living laws are allowed to exist in the statute books repealing or vanishing the laws which are dormant, in disuse and have lost their utility because their relevancy no more exists in the changed social conditions.
A question arises whether living law is applicable and efficacious to living persons and for dead persons, there should be another kind of law? This is not so. Because living law means a law in operation, in practice, in use and alive and as such it can be applied to any set of people whether dead or alive. For dead persons their reputation, their succession, their property has to be protected and in case of women their dead body has also to be secured from dishonour and misuse as a special care, though misuse and dishonour of any person’s body is treated as an offence in Indian criminal law delivery system.
No separate law is needed for dead persons generally as ‘laws for deads’ in contrast to living law. As a living law, which happens to be in operation, it can take care of dead persons by applying its relevant provisions to them as well as to living persons to cater their needs as provided in a particular law.
As such, living law may be said to be fully applicable as working law to Indian legal system by practically solving the problems, needs and future dreams of the people in an organised civil society as it exists in Indian context. Likewise, a dormant law if it is found relevant and is put to use even after a gap of a large number of years, will become a living law and a living law put to disuse for a sufficient period of time will become a dormant law, a law not in use, not in practice and not a living law.
The greatest contribution of Ehrlich to sociological school of jurisprudence lies in scientific approach to study of law in its social context and his emphasis on relation between law and the life of the society. His theory of ‘living-law’ came as a vigorous reaction against the analytical positivism. Ehrlich adopted a more practical approach and focussed his attention on the social function of law. The purpose of law, according to him, was attainment of social justice.
Q. 3 (d). “Law is a Social Institution and study of law is a social science”. Explain this statement in Indian Context.
Ans. Law-a Social Institution.- Primarily Law functions in a Civil Society whose members obey law as a facilitative base of behaviour. Law makes things easy to operate and easy to get it. Example is making of a ‘Q’ (queue) to obtain tickets of Railways etc. at the window from where the tickets are being sold. In absence of a ‘Q’ one can imagine the situation where ‘might is right’ will become the rule of the day and rowdism, pick-pocketing, indecent crowdy behaviour, loss of money, time, limb may/shall be the ultimate consequences. Thus, study of law makes people wise as how they have to behave in an organised civil society. Since law makes people competent to behave in a society lawfully, one can say that law is a social institution.
Suppose many groups of people are living at a place which is capable of supporting them with enough space and food materials but there is no law and order acceptable by them. In absence of law the condition prevailing there naturally would be choatic and strongest among them will rule over all of them whimsically, having no place of any rightful claim of the weaker.
A society, if it is organised irrespective of its rural or urban location, will function as per its needs and priorities, because of existence of some regulating force which will come through law. As such, it may be said that law is a social institution for regulating the society, irrespective of its kind and variety. As for example for controlling the sex behaviour and locating the paternity of the child, the institution of Marriage was established, preferring monogamy (one husband one wife) and deprecating bigamy and polyandry. The Institution of Marriage is functioning upto the mark, though in urban living standards, ‘Live in relationship’ is also being recognised where a man and a woman began to live together without actual marriage but showing and behaving before the society as a wife and husband. In some cases, the judiciary has given them recognition and has held their progeny to be their rightful successor and rightful claimant of maintenance.
A society which is at primary stage of development if it is properly guided, assisted and ruled by law, it will develop speedly conquering the hurdles by imposing the rule of law. Law will create some system through which development will become easier and isolation will come to an end. Proper application of law will make and transform an uncivilized society into a civilized society. It proves that law is a social institution capable of making rude persons to behave like a gentle person by enforcing laws with sanction or where people themselves agree to behave as per guidelines given by the law.
The study of law is a social science because by it practical functioning of law in society is regulated by controlling the human behaviour in the society. The modern trend of reforming of prisons and correctional services for the treatment of prisoners and offenders have been devised keeping in view the socialogical backgrounds and factors of the offenders. The main purpose of law in modern context including Indian Scenerio is to ensure social justice. As such without social interaction law would remain merely a theoretical perception devoid of any practical utility.
In the Indian Scenerio, we have conceived rule of a welfare State where socialistic pattern of society has been chosen as model of rule and development. The production of society should not be allowed to be grabbed by a few but it should be distributed equally or equitably, as the need be, so that no section of society should feel neglected, by-passed or ignored. The gap between the poor and weaker section of the society should be abridged and be elevated to the rich and be made equal to the people of upper strata of society and capitalists.
The sociological jurisprudence as propounded by G.W. Paton has insisted to utilize scarce means to largest number of people so that distribution of produce made by the society may not be grabbed by the capitalists who are lesser in numbers and production so obtained by the hard labour of labourers or workers who are larger in numbers may not be exploited by them (capitalists) and labourers and workers stand as deprived class and poor. To wipe out capitalists, the model of public sector was initiated in India where Government controls the investment of capital and management of the production unit. The private sector has also been allowed to exist in India but through labour legislation, the private sector is controlled so that injustices to the labour class may not be perpetuated. The timely payment to the labourer not in kind but in cash is insured. The labour disputes, their retrenchment, strike, lockout, their punishment etc. is regulated by different legislation. The working condition and safety at the factory place, the security of women workers, children and other safety measures have been ensured. The accidents, their consequences. compensation and remedial measures are also ensured by different legislations.
The public and private sectors combined together the Public-Private Partner Model (PPP Model) is also nowadays being encouraged to enthuse technical expertise of private sectors for common production, so that society as a whole may gain from the combined efforts of both the sectors. All this has become possible by the law having a social approach to give social justice to deprived class of the society as a matter of right.
The law relating to reservation to ‘deprived classes’ consisting of Scheduled Castes, Scheduled Tribes (S.C., S.T.) and Other Backward Classes (OBC) also tries to uplift their social condition by providing them jobs in Governmental Sector.
Thus, study of law is a social science by which it is tried to have some equilibrium in the society.
Thus we can say that purpose and function of law is to regulate social interests, arbitrate conflicting claims and ensure security of persons and property of people, protection of people against criminals by imposing of appropriate sentence which can be possible by an effective criminal law and procedure.
If the law is to play its role of serving the needs of the society, it must reflect the ideas and ideologies of that society. As the society changes law also cannot remain immutable, it also changes. It must, therefore, march in tune with the changing norms of the society [See Central In Land Water Transport Corporation Ltd. v. Brajo Nath Ganguly. AIR 1986 SC 1571].
Thus, it becomes clear that study of law is a social science.