01
Introduction
Jurisprudence is is a st study of of fu fundamental le legal pr principles, th thoughts, wr writings ab about la law in its relation with philosophy, psychology, psychology, economics, anthropology and other social sciences.
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Liter teral Mea Meani nin ngs of of English Jurisprudence
The word Jurisprudence is derived from the Latin Term, JURIS which means legal and PRUDENT PRUDENTIA IA means means Knowledge Knowledge.. Therefor Thereforee Jurisprude Jurisprudence nce is Science Science which which gives us knowledge about law
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Defi Defini niti tion onss of of Eng Engli lish sh Jurisprudence
Jurispru dence is a science of law i. Black’s law Dictionary:- Jurisprudence ii. Salmond:- Jurisprudence Jurispru dence is a science of law. Jurispru dence is science of just and unjust. iii. Ulpain:- Jurisprudence Jurisprud ence is philosophy of positive law iv. Austin:- Jurisprudence
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Scop Scopee and and app appli lica cati tion onss of English Jurisprudence
The Scope of Jurisprudence is very wide and vast and it includes all concepts of human order and human conduct. Jurisprudence applies on social, social, moral, economic economic and religious values of human beings. Jurisprudence consists of the study of the nature of law and its related ideas. Austin has distinguished the laws from morality and theology. theology. Jurisprude Jurisprudence nce is about the nature of law and justice. justice. It embraces embraces studies and theories from a range of disciplines such as history, sociology, political science, philosophy, psychology and even economics.
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Prac Practi tica call val value ue of Engl Englis ish h Jurisprudence
Jurisprudence is the eye of law and it has very great practical value. i. ii. iii. iv. v.
Jurisprud Jurisprudence ence provides provides the legal terminolo terminology gy to legis legislatu lature. re. It provi provides des skel skeleto eton n to the cons constit tituti ution. on. Jurisprudence fills the gaps of law or removes legal legal mistakes mistakes or fallacies. It gives gives detailed detailed interp interpreta retation tion to statue statue of laws. laws. Jurisprud Jurisprudence ence helps helps judges judges and lawye lawyers rs in understa understanding ndingss the true true meanings meanings of laws framed by the legislatures. vi. Jurisprud Jurisprudence ence has great education educational al value in logical logical conclusion conclusion or analysis analysis of legal concepts. vii. The study of jurisprude jurisprudence nce helps the students students in adjusting adjusting themselves themselves in society without causing injuries to the interests of other citizens. 08
Kinds of of En English Jurisprudence
There are three kinds of jurisprudence: Historical Jurisprudence:Historica Historicall Jurisprude Jurisprudence nce gives the answers of the questions, questions, origin origin of law, the development of law, evolution of law and philosophy of law. Analytical Jurisprudence:The branch of jurisprudence gives analysis to basic principles of civil and their interpretation. The most importan importantt questions questions of analytic analytic jurisprudenc jurisprudencee are: "What are laws?"; "What is the relationship between law and power/sociology?"; and, "What is the relationship between law and morality?" Ethical Jurisprudence: The branch of jurisprudence deals with basic principles of ethics and moral values. Ethical jurisprudence is a branch of legal philosophy which approaches the law from the viewpoint of its ethical significance and adequacy. It deals with the law as it ought ought to be an ideal ideal state. state. This area of study study brings brings togeth together er moral moral and legal philosophy.
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Engl Englis ish h Juri Jurisp spru rude denc ncee in relation with social sciences
a. Sociology and jurisprudence: Socio Sociolog logy y is the study study of societ society y with with its relat relation ion with with human human beings beings.. Jurisprudence and sociology has greater connection with each other. Sociology helps the jurisprudence in solving the social problems and social wrongs/ civil wrongs without having the knowledge of society, the jurisprudence cannot be understood. b. Jurisprudence and Psychology:Psychology means science of human behaviour, mind and conduct. Psychology has close close connec connectio tion n with with the jurisp jurisprud rudenc ence. e. For For exampl examplee in study study of crimin criminal al jurisprud jurisprudence ence,, there there is great scope for study of human psychology psychology.. In order to understand criminal mind behind the crime. Similarly intention to commit crime is also study of psychology as well as study of jurisprudence. Jurisprudence and Ethics:Ethics means anything relating to moral action or conduct. We can say Ethics is the science of moral conduct. Ethics are two types. A. Ideal Moral Code B. Positive Moral CodeThis cannot be made with the help of any legislature but its legislature is God. It is present in the hearts of man. Positive Moral Code deals with the rules, regulation formed by legislatures to the human beings of the society. Jurisprudence and Economics:Econom Economics ics means means scienc sciencee of wealt wealth. h. It is univer universal sal truth truth that that bad econom economics ics condition gives birth to many crimes and offences because due to poverty people break laws. Karl Marx, has shows that there is good relation between jurisprudence. For example labour laws, factory laws, mercantile laws, company laws, association laws depend upon jurisprudence. As economics improve standard of life of people, simila similarly rly jurisp jurisprud rudenc encee gives gives such such econom economics ics laws laws which which promot promotee social social and economics just. Jurisprudence and Politics:Politics is science of government. Its main subject is relation between citizen, state and control of the state. There is very close relationship between jurisprudence and politics. Because government is directly depend upon good laws to run the state machinery.
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Conclusion
It is is ri rightly sa said th that ju jurisprudence is is sc science of of la laws. Ju Jurisprudence ha has ve very cl close relationship with all social sciences like sociology, history, economics, ethics, and politics. It has practical educational and legal value with a lot of purpose.
What is civil Justice and Criminal Justice? What are differences between them?
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Introduction
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Aspects of Justice
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Definition of Justice Kinds of Justice
Justice means proper administration of laws and its strict enforcement. Without enforcement of law a secure, safe and balance life is not possible. Good administration of justice shows the good efficiency of the Government. It is the duty of the Government to implement justice and rule of law. There are two kinds of justice civil and criminal. Civil justice deals with private wrongs, whereas criminal justice deals with public wrongs. Although both are kinds of justice but still there is a lot of difference between them on the basis of nature and object. There are three aspects of justice. i. fair procedure of law It means everyone should be treated in same way and there should be no discrimination on the basis of gender, creed or wealth. ii. balance of interest It is the duty of state and justice to keep balance of interests of public like freedom of speech, life, property etc. iii. Equality in decisions It means everyone is equal before law and there should not be any discrimination on the basis of standards. Justice means proper administration of law, justice is an important ingredient of law. There are two kinds of justice a. Civil Justice b. Criminal Justice a. Civil Justice:- Civil Justice means such justice which addresses rights of private and civil nature.
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Object of civil Justice
Object of civil justice is ensure and enforce the infringe rights of private and civil nature. Examples:- 1. All the civil wrongs or infringement of civil and private rights. 2. Breach of contract:- Non payment of debt and non payment of rent
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Kinds of civil wrongs and their results
i. ii. iii. iv. v.
breach of contract assault, battery, defamation false imprisonment, Nuisance trespass to land, person and property negligence and fraud vi. Embezzlement and corruption, maladministration, mismanagement, bribery etc. Results of Civil Wrongs: i. Civil proceedings result in judgement for damages ii. compensation iv. payment of debt, v. penalty, fine, injunction, decree, restitution or stay order.
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Criminal Justice
By criminal justice means such justice deals with public wrongs and punishments.
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Examples of criminal wrongs and their results
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Characteristics of criminal wrongs
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Difference between criminal justice and civil justice
Objects of criminal justice:Object of criminal justice is to punish the offenders Create law and order in the society. Examples of public wrongs:Public wrongs mean such wrongs which are due to breach of public rights and duties as a result of whole society suffer e.g theft, murder and rape etc. Criminals may awarded punishments, imprisonment rigorous or soft, fine, death, exile, flogging. a. Criminal justice addresses the public wrongs. b. Object of criminal justice is to punish the wrongdoers and to create a peaceful and law abiding citizens. c. Criminal Justice is dealt with in criminal proceedings. d. victims file petition in the criminal courts. e. Pakistan Penal Code/ Cr PC apply during the prosecution. f. Parties name State Vs Accused Civil Justice Criminal Justice Civil Justice means justice which Criminal Justice means justice addresses the rights of private which addresses the public wrong individuals or of civil nature or wrongs of public nature Rights in rem are preserved Rights in personam is preserved In civil justice civil rights are In criminal justice public rights are protected protected Civil justice deals within the civil Pakistan Penal Code, CrPC apply proceedings of CPC or statute law during prosecution Victim party file a suit State file a petition or file a Civil wrongs are of no much harmful complaint and they effect only individuals Criminal Wrongs are harmful to the Plaintiff Vs Defendant society and whole society suffers a Judgement or results are in the form lot of injunctions, Specific performance State Vs Accused or damages Death penalty, imprisonment, fine, flogging and other rigours punishments or exemplary punishments
Q. Define Punishments. What are different theories of Punishments and which theory is most suitable for society?
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Introduction
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Definitions of the Punishment
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Characteristics o f Punishments
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Objective of the Punishment
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Approaches t owards crimes
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Theories of the Punishment
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Retributive Theory
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Deterrent Theory
For balance, safe and secure society some theories of the punishments have been introduced. Theories of the Punishments has been remain the subject of debate for many centuries. With the passage o time, the various theories have been proposed with special reference to the contemporary legal system and each theory having its particular merits and demerits. There is no single theory which is considered as the most suitable and idle for the country or for the society to implement in letter and spirit. Law Lexicon:- Punishment is penalty for Transgression of the Law. Black’s Law Dictionary: Any fine, penalty or confinement inflicted upon a person by the authority of law as a result of the judgement and sentence on account of the crime or offence which he has committed proved during prosecution. It must be involve pain/injury or any other consequences to the victim which are not pleasant or harmful to the victim. It must be an offence and should against the legal rules and falls under the definition or section of PPC. The offence must be against public or state. The object/purpose of the punishment is to prevent the society from the crimes. b. To prevent the person who has committed any offence from repeating the same acts or omission or offence again. d. to prevent the other members of the community from committing similar crimes on the part of the offenders. e. creation of peaceful and law and order in the society. Reaction to crimes has been different at different stages of human civilization and even at a given time. ii. It has been different in different societies. However there are three approaches or reactions towards the crimes. a. Punitive Approachi. In this approach the punishment is inflicted with the object to protect the society from the offender to repeat his crime. ii. In this category the punishment of imprisonment is awarded who has committed serious or rigorous offences. b. Therapeutic approach:i. in this approach, the criminal considered as sick person and require treatment. ii. In this case the circumstances of the criminal or offender is considered which is product or cause him to commit any offence and those circumstances are treated which compel him to commit any crime. c. Preventive Approach:In this approach, instead of giving punishments to the offenders, those conditions are eliminated which are responsible which compel him to commit crime or offence. All the above mentioned approaches not exist independently but they overlap each other. Following are some theories of the punishments i. Retributive Theory ii. Deterrent Theory. iii. Preventive Theory iv. Reformative Theory. v. Compensation Theory According to this theory, punishment means, repairing an injustice or making a wrong into right. In this principle of tooth for tooth, eye for an eye. In primitive societies the punishment was retributive. The victim or family of the victim was allowed to take revenge. Islamic punishments are of also retributive type. Comments/Criticism Kent argues that it is the responsibility of the society to punish the person who commits any crime. He is of the opinion that principle of the justice requires that we must punish the blameworthy. Benthen is against the retributive theory. He says that retributive theory is based upon the assumption of revenge and revenge remains unsatisfied through such type of punishments. Most ancient law developed on the base of retributive theory. Laws are based on tit for tat or life for life. Retributive theory of punishment creates the passion of hate towards law. This theory sometimes base on very cruel punishments. Not applicable in modern days. Punishment is not itself remedy and punishment is itself an evil. In the late 16th century the theory was opposed by the church. It is said that forgiveness is great virtue than revenge. Retributive theory of punishment is against the cannons of morality and ethics. Retributive theory considers the crime and not the circumstances of crimes. It means to stop and discourage crime and criminal by producing fear or terror.Basic idea behind is to create fear and horror though exemplary punishments and makes the wrongdoers an example for the others persons who want to commit such type of crime or warning to criminal minded persons. Salamond considers the deterrent punishment very important. It gives warnings to all the criminal minded persons to rectify themselves.In Deterrent theory punishment intensity or proportion is more than the intensity of crime or offence. Criticism:The Deterrent Theory proved unsuccessful in checking crimes. Even though there is provision of severe or rigorous punishments in PPC, people still commit crimes.Excessive harsh punishments create sympathy of the public towards those who has done something wrong.
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Preventive Theory
In this theory the offender is prevented to repeat the crime again Or The offender are disabled to repeat the same crime by punishment of imprisonment, death, exile and forfeiture. Criticism:The Preventive theory concentrated on the prisoner but seeks to prevent him offending again in future. For example of preventive punishment is the cancellation of driving licence of a person for violation of traffic rules so that he may be prevented from driving in order to avoid further accidents.When an offender is detained or disabled the family members also suffer as a result, especially in the case where the offender is the sole earning member of the family.When the offenders are sent to jail under this theory, he turned into crime school and after acquittal the turned into more notorious criminal.Preventive Punishments are of temporary nature and they don’t have impact on his inner conscious, rather force him to commit crime again.
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Reformative Theory
In reformative theory the offender is given some psychological treatment or therapeutic approach of his mind and conduct. This theory believes that an offender is a product of the circumstances and it was due to circumstances which compel him to commit such crime. Therefore those circumstances are removed or rectified.The object of the punishment is to transform the criminal person into good human beings and good citizen. The advocates of reformative theory contend that by a sympathetic tactful and loving treatment of the offender a revolutionary changes may be brought into the character. CRITICISM:- Habitual and hardened criminals cannot be reformed because they don’t commit crimes unintentionally rather intentionally and deliberately.
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Compensation Theory
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Conclusion
According to this theory the victims are given compensation or fine which he pays to aggrieved party. The object of the compensation theory is to compensate the victim or victim family. To deprive the offender of his property or possession or seize his bank account as a punishment. Taking away property is worse than isolating him or killing him, physical torture or humiliation. CRITICISM:- It can be fruitful in common crimes but in serious or sever crimes this theory is not implementable. If the offender is rich person, he can pay easily and there will be no punishment. the offender who has no property movable or immovable cannot be punished. Taking away property may lead to frustration and more crimes may be committed out of this frustration. Keeping in various theories of punishment we can say that perfect system of criminal justice is not base on any one theory of punishment. Every theory has its own merits and demerits. Therefore it depends upon nature of crime and the circumstances or evidence of the crime.
Define Customs. What are its kinds and what are its essentials? 01
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Introduction
Custom is the oldest source of law making. Nobody can say about its origin. Customs are as old as the history of mankind. The custom is habitual course of conduct which is performed again and again uniformly and voluntary by the people. Every act in society which is considered good and beneficial for all, repeated again and again and it become customs and whole community or society accepts it. In the ancient societies people were regulated by customs which develop spontaneously according to prevailing circumstances of the time. When one thing or act was done again and again in particular way, it was assumed as customs. Meanings of Customs Customs means such habits or course of conducts which observed or done uniformly and voluntarily again and again by the people concerned. AUSTIN:- custom is the rule of the conduct which governed, observed spontaneously and not in pursuance of law set by political. CARTER:- Custom is uniformity of conduct of all person under like circumstances. HOLLAND:- Custom is generally observe cause of conduct Theories of the There are two theories of customs. Historical Theory b. Analytical Theory customs HISTORICAL THEORY:i. According to this theory growth of law from the customs is due to or a result of the intelligence of people. ii. Custom is derived from the common consciousness of people. iii. Customs springs from the inner sense of people iv. Customs does not need recognition from the state
Essentials of valid customs
Kinds of customs Legal Customs
ANALYTICAL THEORY i. According to this theory custom is the source of law and not law itself. ii. A custom becomes law when it is covered with acts and state enforces it. iii. Customs are not positive laws until they are recognized by state or country. iv. Customs becomes law when it takes cover or dress up with the acts. v. Customs is not binding upon people. vi. A custom is law when the sovereign allows doing it. ESSENTIAL OF VALID CUSTOMS i.
Reasonableness:- the custom must be useful and acceptable for the society ii. Reflection of justice:- a custom should not reflect the injustice. If it reflects injustice then it is not valid custom iii. Immemorial:- the valid custom should not be temporary and have long history. iv. Continuity: Custom must be repeated again and again v. Peaceful enjoyment: - The custom must be enjoyed peacefully. No danger to life vi. Certainty: - there should not be ambiguity in the custom and it should be clear and definite. vii. Compulsory observance:- Custom must be observe regularly at definite or specific time viii. General and universal:- custom should observe generally viii. Not opposed to public policy: it should not be against public laws ix. Conformity with state law;- must be according to law there are two kinds of customs i. Legal Customs and Conventional customs Legal customs are such customs whose legal authority is recognized by law of state. Salmond:- Legal custom is such custom which has force of law and it is binding as rule of law.
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Conventional Customs
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Conclusion
Characteristics of Legal Customs: i. It has absolute authority. ii. It has binding force. iii. It has force of law Kinds of Legal Custom:There are two kinds of legal customs 1. Local Customs 2. General Customs i. Local Customs: i. Local customs are such customs which are observed or operates in specific or particular area. It has force of law in that area. For example basant is local custom because it operates in particular area. Characteristics of Local Customs:i. It has conformity with the statute of laws ii. It base on peaceful enjoyment iii. Authority of local custom is higher than that of common law iv. It operates in particular area ii. General Customs:i. General Custom is that which prevails throughout country and it constitutes on of sources of law of land. ii. Once a general custom is recognized by the courts of law, it cannot be set aside by another custom. iii. For example most of UK laws consist on general customary law. Characteristics of General Customs:i. These are such customs which are not for a particular area. ii. These customs prevail throughout the country. iii. These are immemorial customs. iv. There must be continuity in these customs Conventional custom means such custom which operated under an established rule. Conventional customs means such custom whose authority is conditional on its acceptance. USAGE:- Other name of conventional custom is usage. The conventional custom is based upon agreement between two parties. Characteristics of conventional custom:i. Conventional customs arise as a result of agreement between two groups. ii. Authority of conventional custom is conditional on its acceptance and incorporation between the parties. A conventional custom is an establish practices. iii. Conventional custom is legally binding because it expressly or impliedly incorporates in contract between the parties. Conditions for conventional Customs:Well establish ,No alternate of general law, Reasonable, Some agreement between two parties
Custom is the oldest source of law-making. But with the passage of time its importance is diminishing with growth of legal system. The law relating to succession, inheritance, property, contract etc are evolved from customary rules.
Legislation
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Introduction
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Meanings of Legislation
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Senses of legislation
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Kinds of legislation
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Supreme Legislation
Legislation means the power to make laws. We can say that legislation is most potent and sovereign source of law making. This is first gate of law. There can be no law without legislative act. The legislation has powers to enact laws, repeal the old laws or modify or make amendments in law according to changing political and social conditions of the country. Judiciary only can interpret the laws but legislation has powers to make laws. Legislation also called "statutory law") is law which has been promulgated (or "enacted") by a legislature or other governing body, or the process of making. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred to as "legislation" while it remains under consideration to distinguish it from other business. Legislation can have many purposes: to regulate, to authorize, to proscribe, to provide (funds), to sanction, to grant, to declare or to restrict. Legislation is usually proposed by a member of the legislature (e.g. a member of Congress or Parliament), or by the executive, whereupon it is debated by members of the legislature and is often amended before passage. Those who have the formal power to create legislation are known as legislators; a judicial branch of government will have the formal power to interpret legislation (see statutory interpretation); the executive branch of government can act only within the powers and limits set by the law. Black’s Law Dictionary:Legislation means power to make laws or powers to enactment of laws. Gray:Legislation means the formal utterances of legislative organs of society Salmond;Legislation has three senses Austin: there can be no law without legislative act i. Widest sense: In widest sense it means to make new rules for human conduct and includes all rules or laws for executive and judicial system ii. Technical sense:In technical sense it mean a statute which is enacted by legislative organ and which is distinguished from other organs Legislation are of two types 1. Supreme Legislation 2. Subordinate Legislation i.
Legislation which proceeds from the supreme or sovereign power in the state is supreme legislation. ii. The supreme legislation cannot be repealed, annulled or controlled by any other legislative
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Subordinate Legislation
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Kinds of Subordinate Legislation
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Forms of Legislation
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Control of legislation
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Advantages of legislation
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Disadvantages
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Conclusion
authority. Subordinate legislation is that legislation which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority. Salmond: Subordinate legislation is such legislations which proceed from any authority other than sovereign power. Characteristics of subordinate legislation i. It is not independent legislation ii. It has no political force iii. It proceeds from any authority other than sovereign power iv. It depends on continuous existence v. It may repeal vi. It can change i. Colonial Legislation: Legislation by legislature for the colonies or other dependent states or functioning under Crown. Imperial legislature or supreme legislature can suspend, supersede, and alter any colonial enactment. ii. Judicial Legislation:The superior courts have the power of making rules for the regulation of their own procedure; these rules are termed judicial legislation. iii. Municipal Legislation:-Municipal authorities are entrusted by the law with powers to make their special laws for the districts under their control. This is also called bye-laws iv. Autonomous legislation:The autonomous bodies or corporations, associations, trade unions, railway companies and universities can make their own rules. v. Delegated legislation or Executive Legislation: The supreme legislation or legislature quite often delegates its powers to other organs e.g executive. The rules made in pursuance of this delegated powers are executive or delegated legislatures but they may be repealed or supersede by the legislatures whenever required. Direct Legislation:The framing of laws by the legislature is direct legislation. Colonial legislation is a type of direct legislation because here law making power is exercised by a legislative body. Indirect Legislation:When legal principles are declared by some other sources to whom law making power is confided by the legislature, it is known as indirect legislation. Except colonial legislation all other forms of subordinate legislation are instances of indirect legislation. Parliamentary control. Parliament can refuse, amend or alter or approve the bill being supreme legislative body Parliamentary supervision ; where parliament directly supervise the legislatures Judicial control: While parliamentary control is direct, the control of courts is direct. Courts cannot annual subordinate enactments but they can declare them inapplicable in particular circumstances. Trustworthy body Publicity. Expert’s opinion are controlled factors over legislation. i. Legislation cannot be repealed except by Supreme Court ii. Legislation is constitutive and abrogative means that it can make laws and repeal own laws iii. Legislation creates statute law iv. Legislation removes ambiguity and vagueness in the laws v. Legislation brings efficiency in the administration of the government and judiciary vi. Legislation satisfies the natural justice phenomena vii. Legislation provides skeleton or frame work for other constitutions viii. Legislation has power of self criticism and self revision ix. The aim of the legislation to protect and progress of the society. x. It brings uniformity in territory and creates close relationship b/w man and the state i. Legislations are rigid, courts and executive bodies cannot perform duties out of enactment or framed laws ii. Since legislatures are associated with some party so they frame legislatures of their own choice which full fill their own desires. iii. Layman cannot understand the technical language. iv. Statues laws or laws framed by legislatures are not self explained and ambiguity remains. Legislation is most recent and powerful source of law. In a wider sense it includes all methods of law. According to Dicey, Legislation is necessary instrument for the growth and reformation of law.
Question of fact and Question of Law
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Introduction
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Question of fact
During the course of prosecution in the courts, two types of questions arise, one is question of law and other is question of fact. Question of law is such question whose answers is already described or mention in the law. While on the other hand question of the fact is such question which relates to the factual or actual position of the case and whose answers has not already been answered by some law. Although both are kinds of questions yet there are some differences between them on the basis of nature, concepts and object. If the question relates to factual position or whose answer is not prescribed or mention in the law, then such question will be question of fact. Question of fact is factual position of case or actual incidents or happenings of the case.It are not matter of opinion. Evidence is given to find out the true facts of the case. Question of facts can
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Characteristics o f Question of fact
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Question of law
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Characteristics o f Question of Law
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Difference between Question of Fact and Question of Law
be proved by means of demonstration. i. It relates to factual position of the case ii. The answer of Question of fact is not prescribed by any law iii. Judicial discretion has a lot of importance in it iv. Question of fact always decide by the jury v. There is no need to prove the Question of fact. vi. Opinion of the judge has great importance in respect of question of fact. vii. Question of fact can be prove through evidence and demonstrations viii. In question of fact court finds the actual truth ix. In question of fact important thing is how an incident or accident happens x. In question of fact the decisions are not clear. If a question relates to legal affairs or if answer of question is already prescribed by any aw then such question will be question of law. i. Question of law relates to legal affairs. ii. Answer of question of law always prescribed by law. iii. Judicial discretion has not any importance in the question of law. iv. Question of law decides by the judge v. There is no need to prove the question of law because it is already proved vi. Opinion of judge has no importance in respect of question of law. vii. In the case of the question of law there is codified law so there is no ambiguity or complexity viii. In question of law priority is that what law says ix. In question of law decisions are clear. In law, a question of fact (also known as a point of fact) is a question which must be answered by reference to facts and evidence, and inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") is usually dependent on particular and circumstances or factual situations. To illustrate the difference: Question of fact: Did Mr. and Mrs. Jones leave their 10-year-old child home alone with their baby for 4 days? Question of law: Does leaving a baby with a 10-year old child for 4 days fit the legal definition of child neglect? All questions of fact are capable of proof or disproof, by reference to a certain standard of proof. Depending on the nature of the matter, the standard of proof may require that a fact be proven to be "more likely than not", that is there is barely more evidence for the fact than against, as established by a preponderance of the evidence; or true beyond reasonable doubt. Answers to questions of fact are determined by a trier of fact, such as a jury,
Administration of Justice 01
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War and administration of justice are two most essential functions of the state. If State is incapable of performing these two functions, it cannot be called as state. Administration of justice means the maintenance of peace and order within political community by means of physical force of the state. The good administration of justice mans the Govt. and its institutions are working properly and there is good coordination b/w them. Good and efficient judiciary system guarantees good governance and administration. Administration of justice means the maintenance of peace and order within the political community by means of physical force of the state. Throughout history, man has sought some kind of revenge or remedy for wrongs done against his person or property. Administration of justice is the modern and clinical treatment for all the evils and wrong practices in the society. For sound administration of justice physical force of the state is the prime requirement. Other factors which help administration of justice and command obedience of law include social sanction, public opinion, convenience etc. Definition and Salmond:Administration of justice means the maintenance of right within the political community by means of criticism physical force of the state. Criticism: This is not only force of the state which guarantee the administration of justice and ensures the obedience of law. There are number of other factors such as social sanctions, habit and convenience which help in the obedience of law. The supporters of definition says that if the force of the state is not used for obedience then the control of the state has disappeared Origin and Growth First stage:of Administration of Firstly there was the concept of private system of punishment and violent self help. In primitive times might was the sole right. Every man was his own judge. A person wronged would take revenge by his Justice own hands. Second Stage:With the rise of political states, the private system of punishment converted into state punishments and regulated by the state and state provided the rules eye for an eye and tooth for tooth. Third Stage:Lastly a stage arrived when enactment rules and laws formed and concept . private punishment Introduction
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Need of administration of Justice
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Kinds of Justice
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Difference between Civil Justice and Criminal Justice
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Disadvantages of Justice Conclusion
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converted into administration of civil and criminal justice. Without administration of justice, life of man living in the society would be insecure, poor and nasty. Administration of justice is necessary due to following reasons. Uniformity and equality in the society. For protection of civil and public rights For peace and stability. Integration of the society. Smooth running of the state machinery Necessary to check the injustice. Necessary to avoid lawlessness. To educate the people. To promote justice and fair play. To promote welfare. To promote equality There are 4 types of justice Public Private Civil Criminal Public Justice:Public Justice is administered by the state by establishing it own tribunals and courts e.g Labor Courts, Service Tribunals, Appellate Tribunals etc Private Justice:Private Justice is justice between individuals. It is the end for which the courts exist and public justice is the means through which this end is fulfilled Civil Justice Civil Justice results from the infringement of private right. If a right of a person is violated and it only concerns or directly affects him. Criminal Justice:Criminal justice results from the infringement of a public right. Even if the offence is committed against one person but the nature of the offence is such that the state steps in and considers it to be an infringement of a public right. Civil Justice Criminal Justice Civil Justice means justice which addresses Criminal Justice means justice which the rights of private individuals or of civil addresses the public wrong or wrongs nature of public nature Rights in rem and trespass are preserved Rights in personam is preserved In civil justice civil rights are protected In criminal justice public rights are protected Civil justice deals within the civil proceedings Pakistan Penal Code, CrPC apply of CPC or statute law during prosecution Victim party file a suit State file a petition or file a complaint Civil wrongs are of no much harmful and they Criminal Wrongs are harmful to the effect only individuals society and whole society suffers a lot Plaintiff Vs Defendant State Vs Accused Judgement or results are in the form of Death penalty, imprisonment, fine, injunctions, Specific performance or damages flogging and other rigours punishments or exemplary punishments In civil justice no benefit of doubt is given to In Criminal Justice benefit of doubt go accused to accused In civil justice only a plaintiff can pardon Criminal justice wali or state can pardon The object of civil justice is to enforce right The object of criminal justice is to punish wrongdoers Rigidity Complexity Formalities Unable to keep up with changing social needs. To conclude it is right to say that justice is permanent feature of the society and basic function of the state. Because it maintains the peace in the society and obedience of law and it gives protection to the primary rights and without there would not be supremacy of the Govt. administration of the justice is the excellent test of the efficiency of the Govt. according to Lord Bryce an efficient judicial system is a sign of good political society.
What is law, what are its kinds what is imperative law and Natural Law 01
Introduction
02
Meanings and definition
03
Kinds of Law
The term law is derived from German word Lag which mean fixed or evenly. Law is body of principles recognized and applied by state in administration of justice.Acts of nature are also known as laws and these laws called natural law. In every society there exist rules that regulate human conduct and thus customary rules are formed and such customary rules are transformed into laws when state gives them legal recognition and take the responsibility to enforce them. Acts of human conduct are known as positive laws and these laws can be change by legislation. Meanings of law:Body of rules promulgated by Government. Definition of law. Austin:Law is command. It imposes duty and is backed by sanction Green;Law is system of rights and obligation which state enforces. Holland: Law is general rule of the external human action enforced by political sovereign. Salmond:Body of principles recognized and applied by state in the administration of justice Laws in wide sense are divisible into following categories. Imperative law:Imperative law means a rule which prescribes a general course of action imposed by authority which enforces it by superior power either by physical force or any other forms of compulsion Physical law:All laws are physical in which natural or general principles of the universe are functioning and there is uniformity and harmony in the universe as a result. Such as laws of astronomy, chemical reactions Natural and moral law:By natural law mean principles of natural right and wrong, the principles of natural justice. Natural
laws also called divine law, the law of reasons or universal laws Conventional law:Conventional law means any rule or system of rules agreed upon by persons for regulation of their conduct towards each other. It is type of special law Customary law: Customary law means any rule of action or conduct of human beings which is actually observed again and again in uniformity and voluntary. Technical law:Such rules which create for solutions of technical or practical problems e.g laws of health, laws of architecture, music laws, rules of manufacturing. International law:Those rules which govern sovereign states in their relations and conduct towards each other. Constitutional law; It includes all rules and regulations create by legislative bodies and provide framework for all other pillars of the state. Sovereign body makes such laws and enforces them. Civil law:civil law is the law of state or law of the land, the law of the lawyers and the law of courts. Civil law protect the rights of individuals i.e rights in rem Criminal law: Criminal law protects rights in personam Conventional law: Conventional law originates as a result of the agreement b/w two parties and it is law only for those who have agreed to be bound by it. Even they are not recognized by state, they constitute law in generic sense. When they are recognized by the state it is enforceable by law Local law:Local law is the body of law which are for specific territory of the state e.g municipal corporation laws, district government law. All bye laws fall under the definition of local law. Special law:Special laws are those legal rules which are formed for specific time of period for specific purpose and when target or purpose achieved they become null and void. General law;General Law means territorial law or ordinary law of the land. Its application is thought of the country and is recognized by courts and there is no special condition for their enforcement. Private law: Private law deals with the inter-relationship b/w citizens Administration law:Administrative law defines the powers, organizations and duties of administration or executive. Constitutional law:Constitutionally law defines the all rules and regulations which are necessary for smooth functioning of government and judiciary machinery. It also provides frame work or skeleton to other laws such as civil criminal etc. Autonomic law:Laws form by autonomous bodies like railway, PIA, Universities etc Martial law:Law form by military dictator when he occupied the realm or snatch by force. It is also called military law and thus suspends the constitutional or democratic law. Mercantile law:It is also kind of special law and it apply in working business trade and commerce Prize law; prize law is part of international law in which law apply on pirates, who capture ships and cargos at sea in time of war 04
Conclusion
To conclude it is right said that law is system of rights and obligations which state enforces. And every law is gift of God and decisions of sages. There are many forms of law. Acts of nature are known as laws of nature. Acts of human conduct are known as positive laws. Laws of nature cannot be change while positive laws can be change.
Austin Theory of Law or Imperative Theory of Law 01
Introduction
02
Three elements of law in Austin Theory
03
A command
04
Austin Theory of Law
05
Law is type of command
06
All commands are
Austin theory revolves around that command is only for sovereign. Austin separates morality and law. He considers no similarity b/w morality and law.His theory does not relate to the nature of law rather it relates to the machinery and mechanism thorough which it is enforced. He presented imperative theory of law and denounce the theory of naturalist. Law is the command of the Sovereign. John Austin belongs to the analytical school of law and is widely considered to be the founder of positive law. Thus, the three elements of law are: 1. A command 2. A sovereign 3. A sanction According to Austin, law is not the same as morality. It deals with what is and not with what should be. It is imperative. It is the command of the king. The coercive force behind law is its essence. Jurisprudence is not the same as ethics. It is an independent discipline. The theory has often been criticized for not including moral considerations but this was apparently not what Hobbes had intended – the way he saw it, such an analysis was preliminary to critical assessment which was, through utility, to help reveal heretofore unrevealed divine laws. Every positive law or every law simply and strictly so called is set by sovereign individual or sovereign body of individuals to a person or persons in a state of subjection to its author. Ingredients of Austin Positive Law: It is a type of command It is laid down by a political sovereign. It is enforceable by sanction. According to Austin every law is in the form of command. A command is an expression of desire given by superiors to inferiors. The superior enjoy the powers and he has ability to punish inferiors who disobey him. Austin distinguishes laws from other commands by their generality. Laws are general commands.
07
not laws Law is given by sovereign
Laws are standing orders of military station which remains in force. Austin second requirement of law is that only that command should be given by some sovereign or some supreme power. To Austin, a sovereign is any person or body of persons whom the bulk of political society habitually obeys and who does not obey him he punishes them. According to Austin there is no sovereign there is no law. He says that the relation b/w the sovereign and law is the relation b/w the centre and the circumference. According to sovereign the powers of sovereign cannot be divided and sovereign is continuous. According to Austin, law is law until it is effective and generally obeyed. However perfect obedience is not necessary.
08
Sanctioned by law
09
Criticism of Imperative Theory of Law
In case of non compliance with the command, one has to face the consequence in the form of sanctions. There must be law enforcing agencies who implement the law in letter and spirit. Laws before the state;The laws which were existed before the creation of state or government were not in the form of commands from sovereign body. It had its source in customs, religion, ethics or public opinion and was not vested in some authority or sovereign or some political superior. Therefore Austin theory that there must be sovereign who give command fails. Generality of Law; According to Austin Law is general and for every individual and they must obey but it is not happens so. All persons don’t obey the laws in their full sense. Law as command: According to Austin, law is command of sovereign but all laws cannot be expressed in terms of command. The greater part of the legal system consist of laws which neither command nor forbid things to done. Laws not only define duties but also give rights. Not applicable in modern democratic societies. Austin theory of law may be true in monarchy or state where there is dictatorship but not applicable in true democratic states. Not applicable to international law;Since the world has become global village. Austin theory of law does not apply to constitutional law which cannot say command of sovereign. The constitutional law defines the powers of various organs of the state. Austin theory is against the ethical element;There is smell of dictatorship and against the ethics. End of law is justice and not the punishment. End of justice gives you rights and it is bonafide and gives you rights.
10
Conclusion
According to Austin every law is in the form of command. A command is an expression of desire given by superiors to inferiors. The superior enjoy the powers and he has ability to punish inferiors who disobey him.
Primary and Secondary functions of the Court 01
Introduction
02
Primary functions of the court
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Secondary Functions of the courts
04
List of secondary functions
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Actions against state
Court is an organ of the Government belonging judicial department. Basically court performs two types of functions, primary functions and secondary functions. In primary functions court acts as a form through state administer the justice. Secondary functions are in facts the functions of the state but delegate to the courts for the convenience of state. Examples of the Secondary functions are Actions against State, Declaration of rights etc. i. The primary function of the court is to administer the justice. ii. To ensure that justice is done iii. To adjudge the case according to the laws of land. iv. To enforce the laws of land by the application of sanctions. v. It is primary function of court to enforce the rights. vi. It is primary function of court to punish the wrongdoers. i.
Secondary functions means such functions which in reality are the functions of the state itself but state delegate to the courts of law for the convenience of state. ii. Secondary functions can change with the passage of time or can be different society to society. Secondary functions of courts of law are based on practical implication. i. Actions against state ii. Declaration of rights iii. Administration iv. Title of rights This is main secondary function of court. It means that courts of law exercise in the first place, the function of adjudicating upon the claims made by the subjects or people against the state. In the past when some person wanted to claim against state then in such situation there was only a way of complaint for him was petition of right. Now a day if a subject claims against state then he is at liberty to take proceedings in a court of law by an ordinary action for the determination of his right in the matter. Examples:
i.
If some person claims that a debt is due to him from the crown has broken a contract with him or wrongfully detains his property then he is at liberty to take proceedings in court by an ordinary action for the determination of his right. ii. Practice in Pakistan: article 99 of the Constitution of Islamic Republic of Pakistan 1973 lays down these matters may go directly to the High Court. Following are claims in the form of petitions against state i. Habeas Corpus ii. Prohibition iii. Mandamus iv. Certiorari v. Quo Warranto It is called writ petition in Pakistan. The enforcement of writ is secondary functions of the courts. 06
Declaration of rights
In certain cases the plaintiff does not ask for the enforcement of any right but ask for declaration of such right which does exist and such declaration know as a declaration of right. When a plaintiff can ask or claim for declaration A plaintiff can claim for the declaration when the rights are uncertain then in such condition the court gives authoritative declaration of right of the person concerned. i. Object:The object of declaration of right is not punishment but only declaration. ii. Declaratory Suit: When a person wants the declaration then for this he files a suit and this suit is called Declaratory Suit. iii. Examples; i. Declaration of legitimacy ii. Declaration of nullify of marriage iii. Authoritative interpretation of wills
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Administration
08
Title of rights
It means a procedure where right of an individual created and transferred and extinguished. Examples i. A decree of divorce or judicial separation ii. An adjudication of bankruptcy. iii. An order of discharge in bankruptcy iv. An order of appointing or removing trustees v. Vesting or charging orders vi. A grant of letters of administration
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Conclusion
To conclude it is right to said that court performs two types of functions. Primary functions of the is the administration of justice and to ensure that justice is done whereas secondary function are actually functions of the sate but state has delegated its powers to the Court.
In this functions all those cases involve in which the court of justice undertake the management and the distribution of the property. Examples Liquidation of company:- If a company winds up then in this situation, the court will distribute shares among the partners of company. Administration of property of deceased person:- in such case court will appoint guardian court appoints him only for the safety and administration of deceased’s property.
Liability and its Kinds 01
Introduction
02
Definition of
Liability is the ultimatum of law. In fact this word is used to describe the condition of a person who has a duty to perform. Liability is responsibility for on act or omission. Whosoever commits a wrong is said to be liable for it.Liability arises from a breach of duty which may be in the form of an act or omission.There are many kinds of liability such as civil, criminal, penal, remedial, and constructive. Wrongdoers may be punished by imprisonment, fine etc. i.
Black’s Law Dictionary:
liability
03
List of liability
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Civil liability
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Criminal liability
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Remedial Liability
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Penal liability
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Vicarious l iability
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Strict Liability
10
Conclusion
An obligation one is bound in law or justice to perform ii. Salmond:Liability is the bond of necessity that exists b/w the wrongdoer and remedy of wrong. iii. Markby: The worked liability is used to describe condition of a person who has violated right or acted contrary to duty. i. Civil Liability ii. Criminal liability iii. Remedial liability iv. Penal liability v. Vicarious liability vi. Absolute or strait liability Civil liability is enforcement of the right of plaintiff against defendant in civil proceedings. Civil liability is measured by the magnitude of wrong do ne Examples:- examples of civil proceedings are an action of recovery of a debt, restoration of property, recovery of damages, injunctions. A criminal liability gives rise to criminal proceedings whose purpose is to punish wrongdoer. The criminal liability is measured by motive, intention, character of offender and magnitude of offence consider. It may be happen in assault, defamation, theft, malicious injury in property. When same wrong give rise to both civil and criminal proceedings then in such situation wrongdoer may be punished by imprisonment or he may be ordered to pay compensation to injured party. Examples:- Imprisonment of life, death plenty and fine If after successful proceeding, the defendant is asked to pay damages or pay a debt or to make specific performance etc, the liability is called remedial liability Penal liability is such liability in which punishment awards to wrongdoer for wrong. For examples death penalty, imprisonment for life etc. Penal labiality can arise either from a criminal or civil wrong. Conditions: there are two conditions of penal liability i. Actus Rea; It is material condition of penal liability. It is physical condition of liability ii. Mens REA. It is mental condition of liability. It is formal condition of penal liability This is such liability in which a person is made liable for the wrongs committed by another.Usually a person is liable for his own wrong but in vicarious another becomes liable for wrong of the wrongdoer. Situations when vicarious liability arises Vicarious liability occurs in two cases i. Master and servant ii. Representatives of a dead man It is kind of liability in which a person becomes liable whether he has committed an offence or not or without his fault. Nature:Law does not inquire whether guilty person has committed wrong intentionally, negligently or innocently. It merely presumes formal conditions of the liability. Wrong of absolute or strict liability Mistake of law Mistake of act Inevitable accident Mistake of law: It is based on legal mexim that ignorance of law has no excuse. This wrong shows that if a person commits or offers an account of mistake of law, then it would be no excuse in the eye of law and he is liable to punished although he had no guilty mind at the time of committing offence. It the duty of e very citizen to get knowledge of law of that part which is concerns to him. Mistake of fact Mistake of fact is good defiance but in the criminal cases but in civil law is involves absolute liability. Inevitable accident: Inevitable accident is good defense or ground of exemption from liability in civil and criminal cases. Liability is ultimatum of law. And it is bond of legal necessity. It is ultimate object of law because by this the wrongdoer suffers. It can be avoided. There are many kinds of liability such as penal, strict liability and civil liability etc.
Possession 01
Introduction
02
Definitions of possession
03
Importance of possession
04
Elements of possession
In law the possession is the physical control of a person over some material or immaterial thing intentionally. In all cases, to possess something, a person must have an intention to possess it. Possession means acquire, detention, taking over the right of property or some material thing. Possession is also claim of right over something and the person in possession enjoys its benefits. A person has possession of something if the person knows of its presence a nd has physical control of it, or has the power and intention to control it. [More than one person can be in possession of something if each knows of its presence and has the power and intention to control it.] The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may also have sole possession or joint possession. A person who has direct physical control of something on or around his person is then in actual possession of it. A person who is not in actual possession, but who has both the power and the intention to later take control over something either alone or together with someone else, is in constructive possession of it. If one person alone has possession of something, possession is sole. If two or more persons share possession, possession is joint. Salmond; Possession reflects a relation of a person with a material object which a person continues claim of its ownership and exclusively use it and enjoy all the benefits attached with it. Possession is prima facie evidence of title of ownership The long possession is also sufficient proof of ownership The person in possession is presumed to be the owner. The first possession constitutes a good title to it. The person in possession can enjoy the benefits of it. Possession is one of the most important concepts in property law. In common law countries, possession is itself a property right. Absent evidence to the contrary, it provides evidence of ownership. Possession of a thing for long enough can become ownership. In the same way, the passage of time can bring to an end the owner's right to recover possession of a thing. In civil law countries, possession is not a right but a (legal) fact which enjoys certain protection by the law. It can provide evidence of ownership but it does not in itself satisfy the burden of proof. For example, ownership of a house is never proven by mere possession of a house. Possession is a factual state of exercising control over an object, whether owning the object or not. Only a legal (possessor has legal ground), bona fide (possessor does not know he has no right to possess) and regular possession (not acquired through force or by deceit) can become ownership over passage of time. A possessor enjoys certain judicial protection against third parties even if he is not the owner.There may be varying degrees of rights to possession. For example, if you leave a book that belongs to you at a cafe and the waiter picks it up, you have lost possession. When you return to recover the book, even though the waiter has possession, you have a better right to possession and the book should be returned. This example demonstrates the distinction between ownership and possession: throughout the process you have not lost ownership of the book although you have lost possession at some point. There are two elements of possession i. Corpus Possession ii. Animus possidendi Corpus Possession Complete control or complete physical control over something possession. A person having possession must enjoy its benefits.
is called corpus
Animus Possidendi An intention to possess something is called Animus Possidendi. Normally, it is proved by the acts of control and surrounding circumstances. Thus animus possidendi have following important points The possessor must have exclusive claim over the thing which he has possessed The possessor must use and enjoy the possessed thing
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Modes of acquiring of possession
The possessor must have intention to claim over its possession. Possession is acquired and complete whenever there is union of two elements of possession i.e animus and corpus. There are three modes of acquisition of possession By taking It is the act of acquiring possession with or without the consent of previous possessor. Kinds of taking Rightful taking Rightful taking possession is acquired by the consent of a person already holding that thing. E.g Shopkeeper gets the money and customer gets possession of the things. Original acquisition It is such possession of property where nobody claims over it as ownership or possession. For example capturing of wild animal which does not belong to any one. Wrongful taking It is one which is acquired wrongfully without the consent of its previous possessor or already who possessed it. E.g stealing of things
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Legal consequences of possession
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Kinds of possession
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Corporeal and incorporeal possession
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Immediate and mediate possession
By delivery It is the act of acquiring possession with the consent of previous possessor. It may be of two kinds Actual Delivery Actual delivery is the transfer of immediate possession from its previous possessor to new possessor. Constructive delivery Constructive delivery is the mode of acquiring possession to two pe rsons jointly. By operation of law This acquiring of possession takes place when court passes orders or gives some injunctions or directions for possession. For example in the case of death of the possession of property passes from the deceased person to his legal heirs or representatives. Possession is prima facie or ample proof or evidence of ownership Transfer of possession is one of the chief modes of transfereing ownership Long adverse possession shows title of ownership The first possession of thing has advantage over the second possession.
Following are types of possession i. Corporeal and incorporeal possession ii. Immediate and mediate possession iii. Concurrent possession iv. Possession in fact and possession in law v. Constructive possession vi. Adverse possession Corporal possession is the possession of a material object whereas the incorporeal possession anything other than a material objects. Corporeal possession is commonly called the possession of a thing and incorporeal possession is commonly known as the possession of right. The person who directly acquire or detain the possession of property or thing is called immediate possession and the person who acquire things or attain its possession through another person is called mediate possession. The other person may be agent or servant. In such case actual possessor authorize his agent or servant to attain its possession on his behalf. Salmond instances three types of mediate possession: firstly, that acquired through an agent or servant; secondly, that held through a borrower, hirer, or tenant where the res can be demanded at will; thirdly, where the chattel is lent for a fixed time or delivered as security for the repayment of a debt.
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Concurrent possession
It is not actual possession. It is possession in law but no possession in fact. A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. For example the owner of jewelry in a deposits that box with someone else but he himself has the key to that box, he is said to be in constructive possession of it.
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Adverse possession
Adverse possession is such possession, in which a person holds, detains or claim that he has initially holds the land on behalf of some other person and for very long period and no one claim of right of possession for the last 20 years or so. If adverse
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Actual possession
possession continues peacefully for a prescribed time of period, then title of true owner is extinguished and the person in possession becomes true owner of the land.. A person who knowingly has direct physical control ove r a thing, at a given time, is then in actual possession of it.
Sr. No. 01
Subject
Legal rights
Introduction
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory. Rights are of essential importance in such disciplines as law and ethics, especially theories of justice and deontology. Rights are often considered fundamental to civilization, being regarded as established pillars of society and culture, and the history of social conflictsThe purpose of administration of justice is to maintain peace, law and order and overall the protection of rights of people or public by use of physical force and punishing the wrongdoers or who violate or infringe the rights. Now question arise what are legal rights. Legal rights are those which are granted by any statute of laws. Rights are interests of the individual or person protected by law. Where there are wrongs, there will be interests and where there are interests, there will be rights. These rights may be moral or legal.
02
Kinds of Rights
There are two kinds of rights a. Moral Rights b. Legal Rights a)Moral Rights A moral right is also called natural rights and such rights are recognized and protected by rule of morality and the violation of moral right would be moral wrongs and it is moral duty to protect the moral right. b)Legal Rights A legal rights are such rights which are recognized by rule of law and its violation is legal wrong and it is legal duty to protect the legal rights.
3
Characteristics legal Rights
of Legal rights are freedom of speech, freedom of movement, freedom of worship. These are all fundamental rights of people which are granted by state through statue of laws. Title holder, object, and context are essentials of legal rights. In the legal right there are three parties first is state, second is person or persons on whom the right confer and third person on whom duty imposes. Legal rights are enforcing by way of damages, injunctions or we can say it is primary functions of the courts to preserve the legal rights of citizens. There are many kinds of legal rights such as perfect and imperfect, positive and negative rights. There are a number of distinguishing features of rights. Some of these are: (i) A right is always vested in a person but not in an inanimate being or animal or even a dead person. (ii) A right is generally correlative of a duty in relation to the fulfillment of a right. (iii) The right must relate to a subject matter, namely the objects, which in a given case may relate to a person or property, place or a thing. (iv)The nature of a right may be to get something done from another or to refrain him to do something. Thus, there may be a right to get back the money lent, or to get the house built as per agreement, or to prevent a person to trespass upon your property. (v) Every right can be traced to a source which may be a contract, a custom, a natural law, etc.
4
Essentials of legal Title
05
rights
Title of legal right is important essential. Facts must show how right vests in owner of right. For example if a person purchases house then he gets the title of house now it is the duty of others to admit his right of ownership. Title Holder There should be a person who is owner of right. He is main role of legal right. Object Object of right should be positive and effective and lawful. Context Context is an act which subject of incidence is bound to do or it may be a forbearance on his part. Subject of duty A legal right arises against another person who is bound to perform the duty. The duty of one person is the right of other person.
Kinds of legal rights
Perfect and imperfect:Perfect rights are enforceable through court action but imperfect rights are not.Perfect right arise in case of perfect duty and imperfect right arise in case of imperfect duty. Perfect right is recognized by law and imperfect does not recognize by law. Positive and negative:Positive right arises in case of positive duty and negative right arises in case of negative duty. Philosophers and political scientists make a distinction between negative and positive rights (not to be confused with the distinction between negative and positive liberties). According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character. Likewise, the notion of positive and negative rights may be applied to either liberty rights or claim rights, either permitting one to act or refrain from acting, o r obliging others to act or refrain from acting. Rights considered negative rights may include civil and political rights such as freedom of speech, private property, freedom from violent crime, freedom of worship, habeas corpus, a fair trial, freedom from slavery and the right to bear arms. Rights considered positive rights, as initially proposed in 1979 by the Czech jurist Karel Vasak, may include other civil and political rights such as police protection of person and property and the right to counsel, as well as economic, social and cultural rights such as public education, national security, military, health care, social security, and a minimum standard of living. In the "three generations" account of human rights, negative rights are often associated with the first generation of rights, while positive rights are associated with the second and third generations. Real and personal A real right corresponds to a duty imposed upon person in general and this right is available against the whole world. For example right of possession is a real right and right of ownership is real right. Personal right corresponds to a duty imposed upon determinate individual and this right is available only against a particular person. Rights in rem and rights in personam Rights in rem are rights against the whole world. For example right of possession or ownership. Rights in personam against the specific persons who has violated some offence. For example murder, false imprisonment etc Proprietary and personal Proprietary rights are those rights which are associated with property or wealth. These rights are economic value. For example rights of loan and good will. Personal rights are not economic nature but they are of social types. For example right of freedom and speech. Proprietary Rights are rights in relation to one’s own property, which consists of things, assets, belonging in possession and ownership rights of a person or entity. The personal rights are relating to the body of the concerned person which may affect his /her character, liberty, and status in the society. Inheritable and inheritable Inheritable rights are those rights survives its owner e.g proprietary rights are the inheritable rights. Inheritable rights cannot transfer to legal heirs. For
example personal rights of deceased person cannot transfer to the legal heirs. Rights in properia and in re aliena Rights of owner his own property know as right in re properia. Right in re aliena in such right which limits from some more general right belonging to some other person. Principal and accessory These rights which exist independently called principals rights and accessory rights does not exist independently. Public and private Public rights are those rights which possess by every member of public e.g right to vote. Private right is such right which enjoy by individuals. Vested and contingent Vested right is right in respect of which all events necessary to vest it in the owner. Continginent rights are such rights which depend on happening and not happening of a future event. No time is specified as to when it is take effect or2) According to the terms thereof it is take effect immediately 3) It is to take effect on the happening of an event which must happen Death of transferee before possession does not divest a vested interest. There is no presumption against a vested interest by reason of : a) The enjoyment having been postponed to a future date, or b) A prior interest is given or reserved to another in the same property, or c) Income is to be accumulated till the arrival of the date of enjoyment, or d) The interest is to pass to another on the happening of a particular event Section 21 ± Contingent Interest Scope of application On a transfer of property an interest is said to be contingent when it is take effect only if a specified uncertain event a)Shall happen, or b)Shall not happen Scope 1. On transfer in case a specified uncertain event shall happen does not vest until the event happens. 2. On transfer in case a specified uncertain event shall not happen does not vest until the happening of that event becomes impossible. 3. In either case until a condition has been fulfilled the interest is contingent. Vested Contingent Not dependent upon happening or not happening of any uncertain event. Enjoyment of property is dependent on happening or unhappening of some uncertain event. Vesting may depend on happening of certain event. Transfer is conditional. Transfer is not subject to any uncertain conditions. When condition fulfilled transfer is complete. No uncertainty in vesting. So long the condition is not fulfilled it is contingent ± as soon as the condition is fulfilled - it becomes vested. Vesting present ± enjoyment may remain postponed. The transfer with no present enjoyment. Transfer is subject to fulfillment of conditions. There is uncertainty in the right of enjoyment Right of enjoyment may remain postponed. Vesting - future. Municipal and international Municipal rights are granted by municipalities of big cities whereas international rights are enforced by international law. At rest and in motion When a right is studied with reference to its orbit and its infringement, it would be called at rest. Ordinary and fundamental Servient and dominant Legal and equitable 06
Extinction of rights performance; when rights or obligations has been performed agreement:- when parties are on agreement impossibility to perform death operation of law; when the law or court has passed orders to peform time period; when time period or limitations act passed or time barred right
Ownership 01
Introduction
02
Meaning of ownership Definitions of ownership
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04
Essentials of ownership
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Characteristics of ownership
06
Theories of ownership
Ownership means collection of rights to use and enjoy the property including right to transfer, sell and dispose off. The idea of ownership develop with the growth of civilization when human beings started plantation, vegetation, cultivation and building their homes. Power of transferring, disposing and selling are elements of ownership. Ownership can be acquired by original and derivative way. Trus and beneficial ownership, legal ownerhip and equitable ownership are some of its kinds. Ownership means collection of rights to use and enjoy property inclufing right to transit it to others. Salmond:- ownership means the relation between a person and right vested to him. Austin:- ownership is a right indefinite in point of user, unresisting and unlimited in point of duration. i. Indefinite is point of user:- this element shows that owner is at liberty to use the property in any way he like. He is no under any obligation or no one can interfere. This right of ownership does not terminate even with his own death. In case of his death, the property and all benefits associated with it transfer to legal heris. ii. Unrestricted in point of disposition The owner can disposed of , sell it , transfer it , gift it to any one or even destroy iii. Unlimited in point of duration It means the owner can retain property as long as he wished till death and can enjoy all the benefits associated with it iv. Right to posses Ownership means real possession or actually owned v. Right to exhaust It the property is perishable or exhaustible or consumable, he can do them. vi. Residuary character It means all the easement of rights attached with that property, he (owner) can enjoy i.
The rights of ownership is limited or restricted subject to paying taxes and other dues chargeable on property ii. The owner cannot exercise the right of ownership by infringing right of others iii. Owner cannot transfer his property to defraud hi creditors. iv. Ownership does not terminate with the death of owner v. The right of ownership become limited or restricted during natinalemergency or contry at war. There are two theories of ownership i. Ist theory describes that ownership is a relation which subsist between a person and that thing which is object of owner. ii. 2nd theory prescribes that ownership is realtion between a person and a right that is
07
08
vested in him Modes of acquiring of There are two modes of acuquistion of ownership ownership Derivative and original Derivative It means coming from another. This way has not its origin itself. Original Original ownership may be acquired by long and continousous and undisputed possession of a thing as a owner. The principle of adverse possession works in this connection. There are three modes of original mode of acquisition I. Absolute Ownership is absolute when the same is acquired over previously owneries objects. II. Extinctive Ownership is extinctive if ownership of a previous person is finished on account of adverse possession by the acquirer. III. Accessory Ownership is accessory if the ownership is acquired as result of accession. Kinds of ownership
i. Corporeal and incorporeal Corporeal ownership means ownership of a material subject e.g ownership of house or car. It is ownership of the tangible things. Things can be perceived and can be felt. Incorporeal ownership means ownership of right e.g debt, good will . the things cannot be perceive and intangible. ii. Sole and co-ownership If the right is vested in single person then such ownership would be sole ownership wherase if there are more than one person having owner is called co-owners and such ownership is called co-ownership e.g partnership iii. Equitable ownership Equitable ownership is such ownership which proceeds from rules of equity e.g A debt sign by X to Y, X remains legal owner of it but here Y becomes its equitable
owner. Equitable rights are rights in personame. iv. Vested and continengent ownership If the title of owner is already perfect then such ownership would be vested ownership. E.g A makes a gift to B for life and then to C. Here possession on basis of gift is postponed during the intervention of a prior interest in favour of B, but nevertheless C has vested right. Contingent ownership It means such ownership in which title of owner is yet imperfect and its perfections depends upon the fulfilment of condition. A says to B that when yhou shall become a doctor, I shall give you a Car. v. Absoulute ownership and limited ownership Absoulute ownership has all rights over a thing vest to owner. E.g A is absoultue owner of a house but cannto use it for gambling When owner has limited rights such ownership known as limited ownership. E.g life tenancy is its example because in it estate hold only for a life. vi. Trust and Beneficial ownership In trust and beneficial ownership relation b/w two owners is such that one of them is under an obligatiohn to use his ownership for benefit of others. The former is called trustee and later called beneficiary. For example if a property is give to Y on trust for Y then X would be trustee and Y would be beneficiary. X would be legal owner and aY would be befinficial owner. 09
Conclusion
EVIDENCE 01
Introduction
02
Meanings
03
Definition of Evidence
04
Modes of evidence
05
Distinction between proof and evidence Kinds of evidence
04
Evidence is information upon which court decides the balance of convenience for particular fact or set of facts.Evidence means and includes all statements that a court requires by a witness. All the documents which a court requires to prove a cases fact and to see what is truth and what is false. When a dispute, whether relating to a civil or criminal matter, reaches the court there will always be a number of issues which one party will have to prove in order to persuade the court to find in his or her favour. The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy. The law of evidence governs the use of testimony (e.g., oral or written statements, such as an affidavit) and exhibits (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law). All questions of fact are answered by the evidence. Literal sense The proof of question of fact. The material subject of the case is called evidence Legal sense Something that tends to prove and disapprove the existing of alleged fact Salmond Evidence may be defined as any fact which possesses probative force. One fact is evidence of another fact Phipson:- evidence is the term used in judicial proceedings in order to find true aspects of the case or inquiry. According to QSO 1984 Article:- Evidence means and includes all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry. Oral evidence The evidence which are made by a witness before court of law thourgh oral statment is called oral evidence. Documentary Evidence All documents which are exhibited for proof and inspection are called documentary evidence. Real evidence The material objects which are produced before the court in course of judicial proceedings are called real evidence Proof consists of all immediate and mediate facts which tends to convince the mind about the truth or falsehood of the case whereas evidence is the medium of proof. Just like evidence is bricks, cement or other materials and proof is house. There are two kinds of evidence. Judicial and Extra-Judicial. 1. Judicial evidence
05
Rules of evidence
06
The probative force of evidence Rules of probative force of evidence
07
08
Judicial evidence is that which is produced before the court. It consists of all facts which are brought into the knowledge of court. It may be either oral, testimony, oath, pledge, documents produced before the court. 2. Extra-Judicial Extra judicial evidence consists of facts and not directly proved in the court. 3. Personal evidence It includes all kinds of statements by a witness. Personal evidence may be oral or written. It may be judicial as well as extra judicial. 4. Real Evidence: Any evidence which is believed to be true for any other reason is called real evidence 5. Primary evidence Primary evidence is the immediate evidence for the question of act. For example document is primary evidence. 6. Secondary evidence Secondary evidence requires which may be given in the absence of better of evidence which the law requires to be given first. 7. Direct evidence Direct evidence is testimony relating immediately to the principle fact. It is the evidence of fact perceived by a witness his own senses 8. Circumstantial evidence It is such evidence which relates to a series of other facts than the fact in issue, but which is closely related with that fact. 9. Original evidence Original evidence is that which is independent of probative force of its own e.g witness with his own eyes or ears. 10. Hearsay evidence Hearsay evidence is which is not perceived by a witness with his own senses but by some other person. General rule:- there is no role of hearsay evidence in QSO Article 17. Rules of best evidence is that evidence which is of the highest quality available, as measured by the nature of the case rather than the thing being offered as evidence. For example original document rather than the photo copy. This is base on maxim Res Ipsa Loquitar i.e things must speaks itself. The probative force of evidence is that every evidence is an evidence of different effect Conclusion, conditional, insufficient, exclusive, facts which are not evidence i. Conclusive It means the acceptance and recognition of fact by law as conclusive proof. It consists of facts which have such probative force that they cannot be contradicted. ii. Conditional It means such proof which may be considered insufficient, if there is no proved fact to the contrary. iii. Insufficient If law prescribed a certain amount of evidence to be absoulutely necessary and evidence produced does not come up to the necessary standard. iv. Facts which are not evidence There are certain facts which have absolutely no probative force at all. They can neither produced in the court acted upon.
Conclusion
Law of property, definition and its kinds and acquisition of property 01
Introduction
02
Concepts of property
The substantive civil law has three main parts i.e law of property, law of obligations and law of status. Here we discuss its first part i.e law of property. In modern times, the law of property includes all kinds of rights associated with person including his rights of life, reputations, liberty and all other claims which he might have against all other persons. Following are concepts of property i. All legal rights Salmond says property includes all personal legal rights of what ever descriptions in its widest sense ii. Concept of proprietary rights Proprietary rights includes all person’s rights associated or attached with his property. In this sense, a man’s chattels, land, shares and all the debts due to him are his property but do not include his personal rights such as reputation, life or liberty. iii. Concept of Proprietary rights in rem According to this concept it includes all rights of property except free hold property, leasehold property, debt or benefit attached to the property iv. Concept of corporal property According to this concept property includes only materialistic or physical things or object.
03
Kinds of property
Following are kinds of property i. Corporeal and incorporeal property Corporal property has its existence and its ownership and they are visible and tangible. e.g land, houses, money, ornaments, gold etc incorporeal property have no physical existence and they are invisible and abstract from e.g logo, title, intellectual property, brand name etc. ii. moveable and immovable Corporeal property may further divided into movable and immovable property. In englsih law moveable are called chattels and immovable called land. Salmond says immoveable property must have following elements a. It must some portions of earth’s surface. b. The ground beneath the surface down to the centre of the earth.
c. The space above the earth d. All objects attached to the earth whether natural or unnatural. e. All objects placed on that piece of earth e.g walls, doors, bricks etc ii. Real and personal property Real property is recoverable in a real action while personal property is that which is recoverable in a personal action. iii. Rights in re properia in immaterial things Following are immaterial things Patents, copy rights, literary copy rights, logo, trade mark, brand name, artistic copy right, commercial good will. iv. Right in re aliena These are rights of property which is in possession of other person rather its actual owner e.g a. Lease of land actual owner of the property transfer the right to another person called lessee for some period of time b.servitudes the limited use of land without having its possession e.g right of way or access or easement right c.securities Security is kind of advance/ deposit of material things vested in a creditor over the property of his debtor for the purpose of recovering his debt. There are two kinds of securities i. Mortgages When immoveable property is secured to another for obtaining debt, consideration or transactions is called mortgages, if the property is moveable it is called pledge. ii. Lien
Lien mean right to detain or retain any thing or object which belong to other until certain demands fulfilled c.trusts Trust is a kind of re aliena. In trust the ownership of property is limited. The owner only can dealt to the extent that benefits enjoy by the other.
04
Modes of acquisition of property
05 Modes in which property may be divest
i.
Possession The possession of a material object is a title to the ownership of it by possessing a material object. ii. Prescription Prescription means continuous possession and no one claim against that possession. It is the operation of time as vestitive fact. iii. Agreement Agreement is an expression by two or more person communicated to each other under common intention to create legal relationship between them. IV. Inheritance A right is inheritable when its real owner dies, all rights or property transferred to its real or legal heirs or according to will of deceased person.
Following are modes in which property is divested or extinguished. a. By contract or sale b. By giving in trust c. By operation of law d. By forfeiture or attachment or acquisition under the law.
PERSON
Law takes all human beings as person who has rights and duties towards each other but in broader term all kind of institutions, organizations, firms, partnership or associations are also considered as person in their individual capacity and being a separate legal entity or identity. Person is also kind of unit which has claims, duties, liberties and obligations. Salmond Person is any being whom the law has given rights and duties. Any being which is capable to perform duties and enjoy the rights are called person whether human being or not. Gray A person is separate entity to which rights and duties may be attributed There are two kinds of person i. Natural person ii. Legal person i. Natural Person A natural person is a human being which is capable of rights and duties. They may be person in fact or persons in law. ii. Legal person Legal persons are being real or imaginary whom the law has recognized or his authority has been recognized in the same way as that of human beings. They are persons in law but not in fact. Kinds of legal persons There are three kinds of legal persons a. Corporations A corporation is a group or series of person which are recognized by law and treated as person. b. Institutions Institutions are legal persons created for accomplishment of some legal, social, political or economic purpose. E.g university or church c. Fund or estate To run corporations or institutions funds are corpus person e.g charitable fund or trust estate
01
Introduction
02
Definition of person
03
Kinds of person
04
Legal status of lower animals
05
Legal status of unborn persons
06
Legal status of dead person
07
Double personality
According to salmond only human beings are person and beasts are not persons because they don’t have natural or legal rights. They are merely things or objects. However law in some countries have recognized their separate entity and they have legal rights as law has granted them. For example cruel treatment to the animals is a criminal offence Unborn persons have some legal rights. Law does not prevent a man from owing property before he is born. His ownership is real and present ownership but it is contingent until he or she born. In law dead person are things and not persons and they have no rights. However dead person has some rights such as he may be buried in respect and honor and his will may be honoured. He may not be defamed or his reputation may not be defamed through libel. His left property may be distributed among his legal heirs according to law or according to his will. There are persons who have double personality in different set of circumstances. Sometime he acts as in personal capacity and sometimes acts as official or judicial capacity.
Kinds of precedent Original precedent i. 1. Such precedents establish original or new rules of law ii. 2. Original precedent creates a new principle of law. iii. 3. Their numbers are very small but their importance is very good.
Declaratory precedent 1. 1. Such precedents reaffirm an already existing rule of law.
Persuasive precedent 1. 1. Such precedents
2. 2. Good source
of law. 3.
2.
3.
upon which the judges are under no obligation to follow but only they take into consideration. These are historical source of law 2. Historical source of law and have no legal effects. E.g. judgements of foreign courts and experts view
Authoritative precedent 1. 1. Such precedents which
the judges must have to follow without question 2. 2. Important legal source
3.
of law. 3. There are two kinds of authoritative precedents
4. a. Absolute authoritative
precedent. 5. The precedents which have to be followed by the judges even if they don’t approve of them. These decisions are absolutely followed. 6. B. Conditional
7.
authoritative precedent The precedents which are normally binding upon the court but court may or may not follow.
8. 9.
Example A decision give by double bench is more authoritative than single bench.
10. 11. Factors which reduce binding authorities 1. Abrogated decisions The decision or precedent of lower courts abrogated by the higher courts. For example the precedent of high court may be abrogated by the Supreme Court. 2. Split decisions When the decisions is divided among the judges and there is no unanimous decision among judges, it binding force will be reduce. State vs Zulfiqar Ali Bhutto 3. Reversal or affirmation on a different ground Precedents or judgement which the lower court reverses on different points of view. 4. Inconsistency between earlier decision of same rank courts A court is not bound by its own previous decision that is in conflict with one another. 5. Erroneous decisions Such precedents which have basic errors or which conflict with basic or fundamental principles of common law. 6. Ignorance of statutes Such precedents are agisnt the basic statues law and loses its binding force. 7. Decisions not followed for a long time Though lapse of time does not extinguish precedent but reduce its binding force if not followed by long time. 8. Decisions of equally divided courts All such decisions where tie of judges decisions come across also loses their binding force. 9. Decision based on compromise If both parties make compromise outside of the court and there is no argument in the case and such decisions or precents lose its authority. 10. Decisions which create anarchy Those decisions which create anarchy in the state or citizens 11. Decisions which create injustice If the decisions are not based on justice it will weaken the binding force of a precedent. 12. Decisions which badly criticized Criticised by jurist/ lawyers / students of law or public 13. Decisions given in haste by summary proceedings 14. Decisions based on doubts or uncertain. 15. Ex-parte decision Factors which enhance the binding force 1. Unanimous decision BB Vs Federation of Pakistan 2. Affirmation by superior courts A decision made by high courts and affirmed by supreme courts 3. Participation of eminent judges 4. Support by enacted law or codified law. 5. Decisions made on learned arguments and reasoning and possess scholarly angles add to the value of precedent. 6. Absence of criticism and hesitation and followed by other courts. 7. Decisions which are without ambiguity 8. Approval of the earlier decisions of superior courts 9. Approval of the earlier decisions of same rank courts. 10. Fully argued decisions. 11. Appreciation by the people 12. Fully contested case 13. Frequently followed. 14. Number of judge’s full bench than single bench. 15. Eminent lawyers 16. Lapse of time Merits of Precedents 1. Proper interpretation of statutes Precedents interpret the statues and its principles 2. In harmony with the law 3. Practical law 4. More flexible 5. More concrete
6.
Best preparation for statutes law
7. Review of social law’
8. 9.
Basis of common law Scientific development of law.
10. 11. 12. 13. 14.
Natural means of getting justice certainty easily understandable Creates confidence in the minds of litigants. Provide better results Demerits 1. Uncertain and unknown and require great efforts for lawyers to search them.
2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.
They are undetermined They are complicated They are less accessible Clash with logical interpretation of law No test of validity Confusion in selection No abrogative power Made in haste Not comprehensive Causes inconvenience Judges mistakes cannot be set right.
