(vI)Per Incurium Literally translated as "through lack of care", per incuriam refers to a judgment of a court which has been decided decided without reference reference to a statutory provision or earlier judgment which would have been been relevant. The significance of a judgment j udgment having been decided per decided per incuriam is that it does not then have to be followed as precedent precedent by a lower court. Ordinarily, in the common law, the rationes of a judgment must must be followed thereafter thereafter by lower lower courts hearing hearing similar cases. cases. A lower court court is free, however, to depart from an earlier judgment of a superior court where that earlier judgment was decided per decided per incuriam. incuriam. The Court of Appeal in Morelle Ltd v. Wakeling [1955] 1 All ER 708, [1955] 2 QB 379 stated that as a general rule the only cases in which decisions should be held to have been given per given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on t hat account, to be demonstrably wrong. In R v. Northumberland Compensation Appeal Tribunal, ex parte Shaw [1951], 1 All ER 268, a divisional court of the King's Bench Division declined to follow a Court of Appeal decision on the ground that the decision had been reached per reached per incuriam as a relevant House of Lords decision had not been cited to the Court of Appeal. Appeal. Some academic critics have suggested that Polemis [1921] 3 KB 560 was decided per decided per incuriam as it did not rely upon the earlier decision in Hadley v. Baxendale
(ii)Theory of pleasure and pain A remarkable theory proposed by psychological researcher Richard L. Solomon can help us understand how most acquired motives, like love, sensory cravings and thrill-seeking behavior, as well as needs for power, achievement and affiliation, operate by obeying empirical laws for addictions. His major article on what he calls the 'opponent-process 'opponent-process theory of acquired motivation' has the subtitle, "The costs of pleasure and the benefits of pain." Solomon's theory states that emotional states of the opposite valence occur following the ending of an initial emotional state. Thus the ending of one emotion (e.g., happiness) automatically brings on the start of the opposite emotion (e.g., sadness), and vice versa.1 Solomon quotes Plato in his dialogue Phaedo: "How strange would appear to be this thing that men call pleasure! And how curiously it is related to what is thought to be its opposite, pain! The two will never be found together in a man, and yet if you seek he one and obtain it, you are almost bound always to get the other as well, just as though they were both attached to one and the same head. . . Wherever the one is found, the other follows up behind. So, in my case, since I had pain in my leg as a result of the fetters, pleasure seems to have come to follow it up." While it is neither widely known nor appreciated, what begins as a pleasure, if persisted in long enough, usually becomes a pain; and what starts as a pain, if protracted, usually becomes a pleasure. Addictive behavior is a classic example of the former, while sado-masochistic behavior is a notable instance of the latter. Here's an all-too-human portrait of the opponent-process theory in a laughable, although self defeating and destructive, case in point.
(VIII) Custom as source of law A central puzzle in jurisprudence has been the role of custom in law. Custom is simply the practices and usages of distinctive communities. But are such customs legally binding? Can custom be law, even before it is recognized by authoritative legislation or precedent? And, assuming that custom is a source of law, what are its constituent elements? Is proof of a consistent and long-standing practice sufficient, or must there be an extra ingredient - that the usage is pursued out of a sense of legal obligation, or, at least, that the custom is reasonable and efficacious? And, most tantalizing of all, is custom a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today? This volume answers these questions through a rigorous multidisciplinary, historical, and comparative approach, offering a fresh perspective on custom's enduring place in both domestic and international law.
(IX) Thomas Acquinas Aquinas bases his doctine on the natural law, as one would expect, on his understanding of God and His relation to His creation. He grounds his theory of natural law in the notion of an eternal law (in God). In asking whether there is an eternal law, he begins by stating a general definition of all law: Law is a dictate of reason from the ruler for the community he rules. This dictate of reason is first and foremost within the reason or intellect of the ruler. It is the idea of what should be done to insure the well ordered functioning of whatever community the ruler has care for. (It is a fundamental tenet of Aquinas' political theory that rulers rule for the sake of the governed, i.e. for the good and well-being of those subject to the ruler.) Since he has elsewhere shown that God rules the world with his reason (since he is the cause of its being (cf. ST Ia 22, 1-2), Aquinas concludes that God has in His intellect an idea by which He governs the world. This Idea, in God, for the governance of things is the eternal law. Next, Aquinas asks whether there is in us a natural law. First, he makes a distinction: A law is not only in the reason of a ruler, but may also be in the thing that is ruled. In the case of the Eternal Law, the things of creation that are ruled by that Law have it imprinted on the them through their nature or essence. Since things act according to their nature, they derive t heir proper acts and ends (final cause) according to the law that is written into their nature. Everything in nature, insofar as they reflects the order by which God directs them through their nature for their own benefit, reflects the Eternal Law in their own natures. The Natural Law, as applied to the case of human beings, requires greater precision because of the fact that we have reason and free will. It is the our nature humans to act freely (i.e. to be provident for ourselves and others) by being inclined toward our proper acts and end. That is, we human beings must exercise our natural reason to discover what is best for us in order to acheive the end to which their nature inclines. Furhtermore, we must exercise our freedom, by choosing what reason determines to naturally suited to us, i.e. what is best for our nature. The natural inclination of humans to acheive their proper end through reason and free will is the natural law. Formally defined, the Natural Law is humans' participation in the Eternal Law, through reason and will. Humans actively participate in the eternal law of God (the governance of the world) by using reason in conformity with the Natural Law to discern what is good and evil. In applying this universal notion of Natural Law to the human person, one first must decide what it is that God has ordained human nature to be inclined toward. Since each thing has a nature given it by God, and each thing has a natural end, so there is a fulfillment to human activity of living. When a person discovers by reason what the purpose of living is, he or she discover his or her natural end is. Accepting the medieval dictum "happiness is what all desire" a person is happy when he or she achieves this natural end.
Aquinas distinguishes different levels of precepts or commands that the Natural Law entails. The most universal is the command "Good is to be done and pursued and evil avoided." This applies to everything and everyone, so much so that some consider it to be more of a description or definition of what we mean by "good." For these philosophers, a thing i s "good" just in case it is pursued or done by someone. Aquinas would agree with this to a certain extent; but he would say that that is a definition of an apparent good. Thus, this position of Aquinas has a certain phenomenological appeal: a person does anything and everything he or she does only because that thing at least "appears" to be good. Even when I choose something that I know is bad for myself, I nevertheless chooses it under some aspect of good, i.e. as some kind of good. I know the cake is fattening, for example, and I don't choose to eat it as fattening. I do, however, choose to eat it as tasty (which is an apparent, though not a true, good). On the level that we share with all substances, the Natural Law commands that we preserve ourselves in being. Therefore, one of the most basic precepts of the Natural Law is to not commit suicide. (Nevertheless, suicide can, sadly, be chosen as an apparent good, e.g. as the sessation of pain.) On the level we share with all living things, the Natural Law commands that we take care of our life, and transmit that life to the next generation. Thus, almost as basic as the preservation of our lives, the Natural Law commands us to rear and care for offspring. On the level that is most specific to humans, the fulfillment of the Natural Law consists in the exercize those activities that are unique of humans, i.e. knowledge and love, and in a state that is also natural to human persons, i.e. society. The Natural Law, thus, commands us to develop our rational and moral capacities by growing in the virtues of intellect (prudence, art, and science) and will (justice, courage, temperance). Natural law also commands those things that make for the harmonious functioning of society ("Thou shalt not kill," "Thou shalt not steal.") Human nature also shows that each of us have a destiny beyond this world, too. Man's infinite capacity to know and love shows that he is destined to know and love an infinite being, God.
(X) Sactioning Right Primary Rights
1. Salmond defines: “A sanctioning right is one which arises out of the violation of another right. All other are primary. They rights which have some other source than wrongs”. 2. Example: I have a primary right not to be assaulted by any one. 3. Enforcement: the enforcement by which, primary rights are enforced, is called as “specific enforcement”. 4. The primary right can either a right in rem or a right in personam. Sanctioning Rights
1. 1. “A SANCTIONING RIGHT IS ONE WHICH ARISES OUT OF THE VIOLATION OF ANOTHER RIGHT”. 2. Example: if X assaulted me, then I have a right to get compensation from X. this “right to compensation” is a sanctioning right. 3. Enforcement: the enforcement by which, secondary rights are enforced, is called as “sanction enforcement”. 4. The sanctioning right always is a right in personam. 5. The sanctioning right is always positive.
(VII) Autonomous legislation This refers to law which is entrusted by the State to a private body. For example, a University may make rules which bind its members.
Not controlled by others or by outside forces; independent: an autonomous judiciary; an autonomous division of a corporate conglomerate. 2. Independent in mind or judgment; self-directed. 3. a. Independent of the laws of another state or government; self-governing. b. Of or relating to a self-governing entity: an autonomous legislature. c. Self-governing with respect to local or internal affairs: an autonomous region of a country. 4. Autonomic.
Q1. Define Jurisprudence? Explain practical value of jurisprudence . (2000), (1997),(1993) 1. Introduction: The study of jurisprudence started with the Romans. The definitions gives by the Roman jurists are vague and inadequate but they put forth the idea of a legal science. Every jurist has its own notion of the subject matter and the proper limits of jurisprudence depends upon his ideology and the nature of society. The world jurisprudence used is different languages in different senses. In French it refers “case law”. These has been a shift during the last one century and jurisprudence today is envisaged in more broader sense than it had understood in Australia age. 2. Meaning Of Jurisprudence: The term jurisprudence is derived from the Latin word “Jurisprudentia” which means either “Knowledge of law” or “skill in law” . 3. Definition Of Jurisprudence: It is definition to give a universal and uniform definition of jurisprudence. Following definitions have been givens by the leading jurists. I. Austin’ s Definition: Austin defines jurisprudence as “ the philosophy of positive law” positive law laid down by a political superior for controlling the conduct of those subjects to his authority. A. Divisions Of Jurisprudence By Austin: Austin divided the jurisprudence into following: (i) General Jurisprudence (ii) Particular Jurisprudence (i) General Jurisprudence: General Jurisprudence includes such subject or ends of law as are common to all systems. (ii) Particular Jurisprudence: Particular Jurisprudence is the science of any actual system of law or any portion of it. B. Criticism On Austin’ s Definition: Salmond’ s criticism: The error in Austin’ s idea of general jurisprudence lies in the fact that he assumes that unless a legal principal is common to many legal systems, it cannot be dealt within general jurisprudence. There may be many schools of jurisprudence but not different kinds of it. Holland’ s Criticism
Holland’ s points out that it is only the material which is particular and not the science itself. II. Holland’ s Definition Of Jurisprudence: Sir Thomas Erskine Holland defines Jurisprudence as “The formal science of positive law”. A. Analysis Of Holland’ s Definition: According to Holland, Jurisprudence is not a material science. Holland follows the Austin’s definition but he adds the term “formal” which means “that which concerns only the form and not its essence”. He says that jurisprudence is only a formal science i.e., a science which describes only the form or the external side of the subject and not its internal contents. B. Criticism: By Gray: The real relation of jurisprudence to law is treated but how law is treated By Dr.Jenks: He observed that jurist can only recognize a law by its form, for it is the form which causes the manifold matter of the phenomena to be perceived but having got the form as it were, on the operating table, has to dissect it and ascertain its meaning Jurisprudence is concerned with means rather than with ends, though some of its means are ends in themselves. III. Salmond’ s Definition: Salmond defines Jurisprudence as “The Science of Law”. By law he means the “law of the land” Or “civil”. Salmond uses the term Jurisprudence is two senses. (i) Generic sense: Generic jurisprudence includes the entire body of legal doctrines. In that sense, jurisprudence is of 3 kinds. (a) Expository or Systematic Jurisprudence: It deals with the contents of an actual legal system as existing law at any time, whether in past or in presents. (b) Legal History: It deals with the history of development of law. (c) Science of legislation: The purpose of the science of legislation is to set forth law as it be. It deals with the ideal of the legal system and the purpose for which it exists. (ii) Specific Sense: Specific jurisprudence deals with a particular department of legal doctrines. In this sense, it is also called theoretical or general jurisprudence . it is also defined as “the science of the first principal of the Civil Law.” In this sense, he divides the subject into 3 branches: (a) Analytical Jurisprudence (b) Historical Jurisprudence (c) Ethical Jurisprudence A. Criticism: It is submitted that Salmond had failed to give an accurate and scientific and also the divisions made
by him of jurisprudence into general and particular raises a great deal of criticism as the Holland observes that these expressions should be discarded, as the science should be treated as incapable of being divided into these two branches. IV. Definition Of Jurisprudence At Present Juncture: The term jurisprudence may tentatively be described as any thought or writing about law and its relation to other disciplines such as philosophy, economics, anthropology and money others. 4. Scope Of Jurisprudence: There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed under the following three heads. I. Early Period: In the early period, jurisprudence has been so defined as to cover moral and religious percepts also and that has created confusion. II. Austinian Period: It was the Austin, who distinguished law form morality and theology and restricted the term to the body of rules set and enforced by the sovereign or supreme law-making authority within the realm. So the scope of jurisprudence was limited to t he study of the concept of positive law only. III. Modern Period: At present, there is a tendency to widen the scope of jurisprudence. The present view is that the limited. It includes all concepts human order and human conduct is state and society. View of P.B Mukherji : Jurisprudence includes political social, economic and cultural ideas. It covers the study of man in relation to state and society. View of Lord Redcliffe: Jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life. 5. Importance And Utility Of Jurisprudence: Jurisprudence in basically a theoretical subject but it also has a practical and educational value. The enumerated as under. (i) Remove the complexities of law: One of the task of jurisprudence is to construct concepts and make law more manageable and rational. (ii) Answers the new problems: Jurisprudence can teach people to look around them and realize that answers to new l egal problems must be found by a consideration of the present social needs and not in the wisdom of the past. (iii) Grammar of Mind: Jurisprudence is the grammar of law. It throws light on the basic ideas and the fundamental principles of law e.g., negligence, liability etc. (iv) Training of Mind: Jurisprudence trains the mind to solve the difficult legal provisions in legal way. (v) Grasp on the subject: It helps is knowing and grasping the language, grammar, the basis of treatment and assumption upon which subject rests.
(vi) Useful in Art of pleading and legislation: It helps legislators and the lawyer the proper use of legal terminology. It relieves them of the botheration creation of defining again and again certain expressions e.g., right, duty etc. (vii) To Interpret law: It helps the judges and the lawyers in ascertaining the true meanings of the law passed by the legislatures by providing the rules of interpretation. (viii) To study foreign law. It enable a lawyer to study foreign law because the fundamental principal are generally common to all systems of law. (ix) Importance under the light of different jurists: By Dr. M.J Sethna: The value of jurisprudence lies in examining the consequences of law and its administration on social welfare and suggesting changes for the betterment of the superstructure of laws. By M. Dias: The study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence
Natural Law School Natural Law The School of Natural Law Philosophy was an intellectual group of philosophers. They developed new ways of thinking about religion and government. Natural law was based on moral principles, but the overall outlook changed with the times. John Locke was a great philosopher from the middle of the 17th century. He was a primary contributor to the new ideas concerning natural law of that time. He argued that humans in the state of nature are free and equal, yet insecure in their freedom. When they enter society, they surrender only such rights as are necessary for their security and for the common good. He also believed that each individual retains fundamental prerogatives drawn from natural law relating to the integrity of the person and property. This natural rights theory was the basis of not only the American, but also the French revolution. 1 During his lifetime, he wrote many essays and letters to his colleagues on a variety of topics:2 - Letter on Toleration (1689) Second Letter on Toleration (1690) - Two Treatises of Government (1690) - Essay Concerning Human Understanding (1690) - Some Considerations of the Consequences of Lowering of Interest, and Raising the Value of Money (1691) - Third Letter on Toleration (1692) - Some Thoughts Concerning Education (1693) - Further Considerations Concerning Raising the Value of Money (1693) - The Reasonableness of Christianity (1695) - A Vindication of the Reasonableness of Christianity (1695) - A Second Vindication of the Reasonableness of Christianity (1695) - A Letter to the Bishop of Worcester (1697) - Discourse on Miracles - Fourth Letter for Toleration - An Examination of Father Malebranche's Opinion of Seeing All Things in God - Remarks on Some of Mr Norris's Books - Conduct of the Understanding Locke's greatest philosophical contribution is his Essay Concerning Human Understanding. In the winter of 1670, five or six friends were talking in his room, probably in London. The topic was the "principles of morality and revealed religion," but arguments arose and no real progress or serious discussion took place. Then, he goes on to say, "it came into my thoughts that we took a wrong course, and that before we set ourselves upon inquiries of that nature, it was necessary to examine our own abilities, and see what objects our understandings were, or were not, fitted to deal with." At the request of his friends, Locke agreed to write down his thoughts on this question at their next meeting, and he expected that a single sheet of paper would suffice for the purpose. Little did he realize the importance of the issue which he raised, and that it would take up his free time for nearly twenty years. The Essay is divided into four books; the first is a debate against the doctrine of innate principles and ideas of that time. The second deals with ideas, the
third with words, and the fourth with knowledge. Locke's ideas center on traditional philosophical topics: the nature of the self, the world, God, and the grounds of our knowledge of them. He addresses these questions at the end of his Essay. The first three sections are an i ntroduction, and Locke saw that they had an importance of their own. His opening statements make this plain: Since it is the understanding that sets man above the rest of sensible beings, and gives him all the advantage and dominion which he has over them; it is certainly a subject, even for its nobleness, worth our labour to inquire into. The understanding, like the eye, while it makes us see and perceive all other things, takes no notice of itself; and it requires art and pains to set it at a distance and make it its own object. But whatever be the difficulties that lie in the way of this inquiry; whatever it be that keeps us so much in the dark to ourselves; sure I am that all the light we can let in upon our minds, all the acquaintance we can make with our own understandings, will not only be very pleasant, but bring us great advantage, in directing our thoughts in the search of other things.
