QUAID-E-AZAM LAW COLLEGE LAHORE LLB-PART-I ENGLISH JURISPRUDENCE ADMINISTRATION OF JUSTICE 1. INTRODUCTI INTRODUCTION: ON: "Administration of Justice is the firmest pillar of the Government. It is sovereign and "Administration cannot be violated with impunity." (George Washington) The most essential functions of a state are primarily two, war and administra administration tion of justice. If a state state is not capable capable of performing performing either either or both of these functions, it cannot be called a state The most important and primary purpose of law is to achieve justice and justice can be achieved through administration. 2. DEFINITION OF ADMINISTRATION OF JUSTICE: >> By Salmond: "The administration of justice implies the maintenance of rights within a political community by means of the physical force of the state." 3. NECESSITY OF ADMINISTRATION OF JUSTICE: In primitive times might was the sole right Every man was his own judge. A person wronged would seek revenge by his own hands. To stop this loot it appears necessary that some strong tribunal should hold administration and now a state perform this function. > According to Jeremy Taylor: "A herd of wolves is quieter and more at one than So many men, unless they all have one reason in them or have one power over them." > According to Hobbes: "Without a common power to keep them all in awe, it is not possible for individuals individuals to live in society." I. REASONS FOR ADMINISTRATION OF JUSTICE: Following are the reasons for the necessity of administration of justice. (i) No common reason among men: According to Salmond, men do not have one reason in them and each is moved by his own interests and passions. The only alterna alternative tive is one power over men. (ii) Man is fighting animal: COURTESY BY: MIAN ASHHAD ALI AZHAR ROLL NO: 12109 LLB-I MORNING
Man is by nature a fighting animal and force is the ultima ratio of all mankind. (iii) To stop criminal minority: Force is necessary to stop the criminal minority and prevent them from gaining an unfair advantage over the law-abiding majority in the state. (iv) Check on Injustice: Without physical force, injustice is unchecked, and the life of the people is solitary, poor, nasty and short (v) Man is a social animal: The social nature of the man demands that he must live in society. While living so, man must have experienced a conflict of interests and that created the necessity for providing the administ administration ration of justice. 4. ORIGIN OF ADMINISTRATION OF JUSTICE: The origin and growth of administrat administration ion of justice j ustice is identical with the origin and growth of man. The social nature of man demands that he must live in society. While living so, he must have experienced a conflict of interests and that created the necessity for providing for the administration of justice. The origin and growth of administration administrat ion of justice may be divided into three stages. I. FIRST STAGE: At the first stage personal vengeance was allowed every man carried his life in his hands. He was liable to be attacked at any time and he could resist by overpowering his opponent. At that stage, every man was a judge in his own cause and might was the sole measure of right. II. SECOND STAGE: The second stage started with the rise of political states. However those states were not strong enough to regulate crime and inflict punishment on the criminals. The state merely regulated private vengeance and violent self-help. The state enforced the concept of "a tooth for a tooth", "an eye for an eye", "a l ife for a life". The state provided that a life shall not be taken for a tooth or for an eye. III. THIRD STAGE: With the growth of the power of the state, the state began to act as a judge to assess liability and impose penalty. It provided punishment for private vengeance. The civil law and administration of civil justice helped the wronged and became a substitute substitut e for the violent self-help of the primitive days. At present administration of justice is a natural natural corollary corollary to the growth growth in power of political political state. state. 5. CLASSIFICATION OF ADMINISTRATION OF JUSTICE: Administration Administrat ion of justice is divided into two parts: I. Administration of civil justice II. Administration of criminal justice
COURTESY BY: MIAN ASHHAD ALI AZHAR ROLL NO: 12109 LLB-I MORNING
I. ADMINISTRATION OF CIVIL JUSTICE: Administration Administrat ion of civil justice is dealt with in civil proceedings. The object of civil justice is to enforce rights. rights. > Kinds of rights: There are two rights connected with the civil justice: (i) Primary (ii) Secondary (i) Primary Rights: Primary rights are those rights which exist as such. It arises out of a conduct. All fundamental rights are primary rights. A primary right may be enforced by specific enforcement. (ii) Sanctioning or secondary rights: Sanctioning rights are those rights which come into being after the violation of primary right. Sanctioning rights are: > the right to the compensated by damages by the wrong-doer > the right to exact the imposition of pecuniary penalty on the wrong doer by penal action. > Illustration: 'A' enters into a contract his right to have the contract performed is primary right. If contract is broke, his right to damages for the loss caused to him for the breach of contract is sanctioning right. II. ADMINISTRATION OF CRIMINAL JUSTICE: Administration of criminal justice is dealt with in criminal proceedings. The object of Administration criminal justice is to punish the wrong-doer. From very ancient time, a number of theories have been given concerning the purpose of punishment which may be broadly divided into two classes. classes. The view of one class is that, the end of criminal justice is to protect and and add to welfare of the state and society. society. The view of other class is that the purpose of punishment is retribution. 5. DISTINCTION BETWEEN CIVIL AND CRIMINAL JUSTICE: The difference between criminal justice and civil justice cannot be considered in terms of natural acts or the physical consequences of the act. Following are the differences between civil and criminal justice. j ustice. COURTESY BY: MIAN ASHHAD ALI AZHAR ROLL NO: 12109 LLB-I MORNING
(i) As to Administration: Civil justice is administered according to one set of forms. forms . > Criminal justice according to another set of forms. (ii) Place of Administration: > Civil justice is administered in one set of Courts i.e., civil Courts. > Criminal justice is administered administered in different set of Courts i.e., criminal Courts. (iii) As to object: > The object of civil justice is to enforce rights, > The object of criminal justice is to punish the wrongs. (iv) Proceedin Proceedings: gs: > Civil justice is dealt with in civil proceedings. > Criminal justice is dealt with in criminal proceedings. (v) Dealing: > Civil justice deals with private wrongs. > Criminal justice deals with public wrongs i.e., crimes against society. (vi) As to Parties: > In civil proceedin proceedings, gs, private individuals are parties i.e., plaintiff vs. defendant. > In criminal proceedings proceedings state constitutes itself as a party i.e., state vs. accused. (vii) Consequences: > Civil wrongs are less harmful. > Crimes are more harmful. (viii) As to outcome: > Civil proceedings result in judgment for damages etc. > Criminal proceedings proceedings result in one or a number of punishment punishments. s. (ix) As to t o Institution of Proceedings: > In a civil wrong, the injured person need not sue the wrong-doer. > In a crime, the person injured cannot prevent proceedings proceedings being taken to punish the wrongdoer for the state controls the procedure. 6. ADVANTAGES AND DISADVANTAGES OF LEGAL JUSTICE: The legal justice has many advantages as well as disadvantages. I. ADVANTAGES: (i) Legal justice ensures uniformity and certainty in the administration of justice, (iii) Everyone knows what the law is and there is no scope of arbitrary action, COURTESY BY: MIAN ASHHAD ALI AZHAR ROLL NO: 12109 LLB-I MORNING
(iv) The judges have to give decisions according to the declared law of the country. (v) There is impartiality in administration of justice. (vi) Impartiality is secured in the administration of justice (viii) Judges are required to give their decisions according to the pre-determined legal principles and they cannot go beyond them (viii) Law is already laid down and judges have to act accordingly. x) Legal justice represents the collective wisdom of the community and that is always to be preferred to the wisdom of any one individual. II. DISADVANTAGES: (i) One disadvantage is that it is rigid. (ii) Law has already been laid down in precedents. (iii) It is not always possible possible to adjust it to the changing needs of society, (iv) Society may change more rapidly than legal justice and may result in hardship and injustice in certain cases, (v) Another defects of legal justice is its formalism or technical technicalities, ities, (vi) Judges attach more importance to legal technicalities than they deserve. (vii) The legal justice is complex. Modern society is becoming more and more complicated if law is to serve its needs it has to be complicated. 7. CONCLUSION: To conclude, I can say, in the words of Prof. Sidgwick "In determining a nation's rank in political civilization, no test is more decisive than the degree in which justice as defined defined by the law is actually actually realized realized in its judicial judicial administration." administration." The modern administration administration of justice is a natural corollary to the growth in power of political state, which began to act as a judge to assess liability and impose penalty.
COURTESY BY: MIAN ASHHAD ALI AZHAR ROLL NO: 12109 LLB-I MORNING
