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- benthams theory Jeremy Bentham was born in 1748 and died in 1832 in London. Jeremy Bentham, the English jurist, and utilitarian philosopher and social reformer, is regarded as the greatest figure in the history of British Legal positivism. Besides being a jurist he was reformer and legislation, a moralist, philosopher, and a hedonist who thought of good (generally as happiness) by reference to which he praised and blamed all action and activities. He was a leading theorist in Anglo-American philosophy of law and one of the founders of utilitarianism. His most important theoretical work is the Introduction to the Principles of Morals and Legislation (1789), in this, he described and developed the theory of the greatest happiness principle. Principle of Hedonistic:- Bentham advocates a doctrine of Hedonistic in two forms namely 1. Psychological Hedonism, which means all human actions are motivated by the desire to enjoy pleasure or prevent pain, and that is the only rational aim of human action, 2. Ethical Hedonism, which means rightness or wrongness of an action is determined by whether the action creates happiness or unhappiness. The principle of sympathy and antipathy (i.e. the feeling of seamless acceptance or rejection for the expected results of
action) is not enough basis to identify the moral rightness or wrongness of an action. In Bentham’s theory, an action conforming to the principle of utility is right or at least not wrong, it ought to be done, or at least it is not the case that it ought not to be done. Pleasure and Pain:- Bentham has classified the pleasure and pain on the basis of human psychology which illustrates as psychological hedonism. Pleasures a. Pleasure of riches b. Pleasure of good reputation c. Pleasure of friendship d. Pleasure of knowledge e. Pleasure of social affection f. Pleasure of relief from pain which might vary with various kinds of pain, and g. Pleasure of good friendship and social affection. Pain a. Pain of privation, b. Pain of sense including diseases of all kinds, c. Pain of skill, d. Pain of enmity, e. Pain of piety including feat of divine punishment, and
The “greatest happiness principle”, or the principle of utility, build the cornerstone of all Bentham’s thought. He wrote in The Principle of Morals and Legislation: ‘ Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the other hand, the standard of right and wrong, on the other the chain of causes and effects, ate fastened to their throne. They govern us in all we do, in all we say, in all we think.’ Seven Dimensions of Pleasure or Pain:-
- Intensity,
- Duration,
- Certainty (probability),
- Propinquity,
- Fecundity,
- Purity, (not leading to further pleasure or pain),
- Extent (the number of people affected), Critical Analysis of the theory:- Bentham’s theory has been criticised by many jurists in their different ways, here we will discuss all these. The theory propounded by the Bentham has its weaknesses. Criticised by Friedman:-
He says about the weakness of the Bentham’s work in two ways. One is Bentham’s abstract and doctrinaire rationalism which prevents him from seeing a man in all his complexity, in his blend of materialism and idealism, of nobility and baseness, of egoism and altruism. This means Bentham overestimate of the legislator and an underestimate of the need for individual discretion and flexibility in the application of the law. The second basic weakness comes from the failure of the Bentham is to develop clearly his own conception of the balance between individual and community interest. According to him, the interests of an unlimited number of individuals shall be automatically conducive to the interests of the community, as the freedom of enterprise will automatically lead to greater equality. But it gave just the reverse results when it was put in practice later on. In the same way, pleasure and pain alone cannot be the test to judge the law. No discussion about the legal system: Bentham, in his theory, emphasized only on the pleasure and pain, the principle of utility, and the greatest happiness of the greatest number, etc. But he never talked about the legal system which prevalent almost all over the world in the modern era. The concept of a legal system was never discussed by him.
Jurisprudence throws light on the basic principles of law. It shows us the correct path of finding the reason behind the rules of law and understanding their concept. It also helps the judges and lawyers in deriving the proper interpretation of the laws. The study of jurisprudence brings out clarity in understanding the concept of law. Significance of Jurisprudence It gives a multidimensional approach to the system of law. At times, a huge gap is observed between the law and its application in society. Jurisprudence helps in such cases. It helps in bringing logic to the rules of law so that the application in society can be beneficial for the people. It also shows us the connection of law with subjects such as philosophy, economics, psychology, politics, etc. People, especially judges and lawyers, get a better understanding of the concept of law through the study of jurisprudence. It also helps the authorities to understand how and when any reformation is required. Lord Tennyson, considers jurisprudence as ‘the lawless subject of law’. Conclusion The study of jurisprudence helps one remove the complications in the understanding of legal concepts. It helps the mind in creating logic and understanding the reason behind such legal concepts. Even the lawyers and judges take the help of jurisprudence for the interpretation of some rules. A law student must read jurisprudence to understand the depth of
the concept of law and create a solid foundation in one’s mind. Jurisprudence is also known as the ‘eye ‘ of the law.
- Theories of state
- Introduction
- The word ‘state’ has been derived from the Latin word ‘status’, which
- means ‘standing’ i.e., position of a person or a body of person. The state
- is the highest form of human association. It is necessary because it comes
- in to existence out of the basic needs of life. The most important purpose
- of state is to make life possible and to protect the life.
- It is difficult to give a precise definition of state because different political
- thinkers and jurists have defined it in different ways.
- Salmond- “State as an association, of human beings established for the
- attainment of certain ends by certain means”.
- Goodhart- “The purpose of State is to maintain peace and order within a
- particular society. Therefore, the most essential purpose of state is to
- make life possible.”
- Aristotle – “State is a union of families and villages having for its end, a
- perfect and self-sufficing life, by which we mean happy and honourable
Introduction The word state has been derived from the Latin word ‘status’, which implies standing. So, in the etymological sense, the word state denotes position or standing of a person or of a body of person. The state is the highest form of human association. It is necessary because it comes in to existence out of the basic needs of life. The most important purpose of state is to make life possible and to protect the life. Article 12 of the Indian Constitution states that, “Definition in this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” In other words, for the purposes of Part III of the constitution, the state comprises of the following:
- Government and Parliament of India i.e the Executive and Legislature of the Union
- Government and Legislature of each State i.e the Executive and Legislature of the various States of India
- All local or other authorities within the territory of India
- All local and other authorities who are under the control of the Government of India Definition Salmond- ‘State or political society is an association, of human beings established for the attainment of certain ends by certain means’ Goodhart- “The purpose of state is to maintain peace and order within a particular society. Therefore, the most essential purpose of state is to make life possible.” Aristotle – ‘State is a union of families and villages having for its end, a perfect and self-sufficing life, by which we mean happy and honourable
population there can be no state.
- Territory -it is a very important element of state. according to Laski ‘the territory of a state is the region over which it exercises sovereignty’
- Government- government is a organisation of machinery or agency or magistracy of the state which makes implements, enforces and adjudicates the law of the state .each government has three organs - legislature ,executive ,judiciary.
- Sovereignty-it is the most exclusive element of a state. Without sovereignty no state can exit. Sovereignty is the basis on which the state regulates all aspects of the life of the people living in its territory. Classification of state
- Ancient classification –According to Aristotle: - a) Monarchy
b) Aristocracy c) Democracy d) Polity
- Modern Classificationa) Independent and dependent state b) Unitary and federal state c) Confederation d) Imperial state Theories of origin and evolution of state- 1-The divine theory 2-The force theory 3-The social contract theory 4-The evolutionary theory 5-hereditary theory- a) patriarchal theory b) matriarchal theory
- Doctrine of stare decisis
decision of the Supreme court is persuasive in the same court. This is because SC doesn’t have any obligation to follow its own decision and can diverge from the previous decisions. The third type is the original precedent which involves the creation and application of the new rule. Thus, the new rule becomes a guide in deciding future cases. The last type of precedent is declaratory precedents. Salmond defines it as the mere implementation of the existing rule. The application of this principle of following the former path is known as the doctrine of precedent. The law of precedent is based on the doctrine of stare decisis which is derived from the maxim “Stare decisis et non-quieta movere” which can be described as “to stand by the decisions and not to disturb settled rules”. The doctrine of precedents is a significant mechanism coined by the English law in the medieval ages. At the time when the parliament had not evolved as legislation making body, the judges in the English court determined certain principles while deciding the cases. These principles made a notable contribution to the advancement of English law. Among the newly evolved legal systems existing across the globe, Anglo- American law is common law as it evolved from the decisions of the judges. The common law was also applied in India by a few modifications made by the courts which align with the Indian context.
As it is already discussed that ratio decidendi and obiter dictum are two contents of judgment, it is pertinent for us to understand which one of these parts is binding in case a precedent is raised in the court of law. Ratio Decidendi Ratio decidendi literally means ‘reason for deciding ’. In the judicial context, it is the reason which is cited for arriving at a decision in a case. Such reason is not the law that is getting attracted in the contemporary case but is the necessary notion which helps the court arrive at a particular decision. It is this part of the precedent which has to be followed by the courts in subsequent decisions but not the general observations of the court. There is a dispute of law involved with respect to the reasoning given by the judgment and not a dispute of fact. As the facts cannot be similar in other cases, the observations pertinent to the facts made by the judge cannot be binding in the other cases though the similar laws are attracted. But the reasons for arriving at a decision are binding. In case there are multiple reasons for deciding in a manner, all those reasons will be binding in the subsequent cases. Ratio decidendi can be determined by prioritizing the material facts and leaving the unimportant facts behind. Another way to identify ratio is to narrow down the precedents which could be applicable in determining the case. Even in this method, due importance must be given to the majority opinions and the crux of the cases.
England, the situation was different with respect to the effect of obiter dicta and it was not binding on any court. (As per Halsbury Laws of England, Volume 22, page. 797) Conclusion Precedents are major players in the legal field as they lessen the burden on courts to a larger extent. It helps the judges deciding the subsequent cases to understand the crux and jurisprudence behind a legal principle rather than just applying it. Moreover, as the ratio decidendi is the part that has to be identified from the whole judgment while using a precedent, the legal students, academicians, lawyers, and the judges would require skill in culling out the ratio and leaving behind general observations.
- Historical school of law Background of Historical School of Law
Study of Roman Law
The historical approach to law derived its inspiration from Roman law. Commentators of the Roman law attempted to relate roman law to the problems of their day. This accelerated the growth of various other branches of law. The study of Roman law was received in Germany in the fifteenth and sixteenth centuries. This contained the historical approach in its embryonic.
Eighteenth-Century Rationalism
The eighteenth century was the century of rationalism. The spirit of individualism pervaded the whole legal thought of this century. Revolution brought changes in the modes of governments. Thinkers and philosophers
thought of framing laws by deliberations which they considered would be unchangeable and having universal application because they were based on Natural law principles.
Science of Economics
Science of Economics influenced other branches of law, social philosophers had started preaching for the emancipation of the classes.
Formation of a new class
All these factors made the philosophers think in a new way for the solutions to the problems that arose. They turned to history and historic conception for guidance and enlightenment and this led to the birth of a school of thought known as Historical school of law. Introduction “ Law is founded and not made ”, the famous quote is the basis of the historical school of law. The historical school of law was founded by Friedrich Karl and Von Savigny. According to this school, the law is the creation of interactions between the local situations and conditions of people, the law is not founded by any political superior but found and given by people. Proponents of Historical schools place the customs of the people as the major source of law which should not be overlooked. The historical school of law owes its development to the historical school of jurisprudence which believes that as customs and habits of people change, the law should also develop accordingly. The historical school of law rejects the natural school of law and realist school of law which gives emphasis on God and judges as the major source of law. Reasons for the development of the historical school of law:
- It came as a reaction against the natural school of law which believed that there are certain principles that are universally applicable without taking into consideration any social, historical or any other factors.
- It also came as a reaction against the positivist school of law which believed that law is created by the sovereign and the people are bound to obey the laws even if the law made is oppressive.
