Category Archives: Jurisprudence

The Value of Precedents

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Different legal systems treat judicial precedents as either evidence of law or as sources of law.

Roman Law, and systems of law based on it, treat legal precedent as having nothing more than high persuasive value. They are treated as belonging to the same category as expert legal opinion: they are not authoritative and Courts are not bound by them.

However, in the Common Law system, precedents have far more value – Common Law has itself been created by the decisions of judges. They are authoritative and Courts are bound to follow them.

There are thus two theories with regard to precedents: the first is that reported decisions can be cited by lawyer and may be followed by Courts and the second is that precedents are authoritative and will be followed by Courts.

There has been much debate about whether or not precedents should be treated as being binding. The arguments in favour of treating precedents as being binding are that they ensure uniformity and predictability in the application of law while the argument against the binding authority of precedents is that they make the law far too rigid and difficult to reform.

There are safeguards to ensure that precedents do not become too rigid though:
1. A higher Court can always reverse the decision of any of its subordinate courts
2. A Court need not follow a precedent established by another Court of co-ordinate jurisdiction e.g. one High Court need not follow a precedent established by another High Court
3. Any Court can cast aside a precedent by ‘restrictively distinguishing’ it i.e. by limiting its application to the case which established it by saying that it is limited to that case because of its peculiar facts.

There is also a theory called the Declaratory Theory which states that Common Law is customary law but case law is not – precedents are merely declaratory in nature. As such, they do not create law and all decisions are nothing more than statements of existing law.

The Declaratory Theory obviously never held sway in the Court of Chancery – the history of the Court was too well known for anyone even to be able to pretend that the principles of equity which it applied originated wither in custom or in statute.

Reference: Salmond on Jurisprudence

The Classification of Legislation

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Supreme and Subordinate Legislation

Legislation may be either Supreme or Subordinate depending on from where it proceeds. Legislation which proceeds from the State’s supreme authority or Sovereign is called Supreme Legislation, while Subordinate Legislation proceeds from other authorities.

Therefore, Supreme Legislation, proceeding from an unrivalled Sovereign or supreme authority, is not capable of being repealed, annulled or amended by any other authority while Subordinate Legislation, having been the creation or a non-sovereign authority depends on the sovereign authority for it continued existence and validity.

Subordinate Legislation is usually of a derivative nature and comes into being by the delegation of the power to legislate by the sovereign to a subordinate authority. There are five main kinds of subordinate legislation:
1. Colonial Legislation
2. Executive Legislation
3. Judicial Legislation
4. Municipal Legislation
5. Autonomous Legislation

1. Colonial Legislation
Colonial Legislation is primarily of academic interest now. It was said that the maxim ‘delegatus non potest delegare’ did not apply to a colonial legislature which could delegate its power to other bodies which it controlled.

2. Executive Legislation
Legislation is not the primary function of the legislature. Nonetheless, legislatures frequently delegate legislative powers to the executive particularly to fill lacunae in its Acts.

3. Judicial Legislation
There are two types of judicial legislation: the first comprises ‘true’ legislation using delegated power by which higher Courts can frame rules to regulate their own procedure etc. and the second is the ‘pseudo’ legislative power by which Courts create law by setting precedents.

4. Municipal Legislation
Municipalities are delegated with limited powers to enact special laws within their territories.

5. Autonomous Legislation
This refers to law which is entrusted by the State to a private body. For example, a University may make rules which bind its members.

Reference: Salmond on Jurisprudence

Sources of Law

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The sources of law may be either legal or they may be historical.

Legal Sources Historical Sources
e.g. Statutes e.g. The writings of philosophers
They are authoritative. They are not authoritative.
They are followed by Courts as of right. They influence legal development but need not be recognised by Courts.
They become law immediately. They are persuasive.
New principles directly become law through them. They are links to some earlier legal source which introduced a new principle although the chain may be so long that it may not be possible to identify the legal source.

However, the distinction between legal and historical sources is not always clear-cut. For example, consider decisions of the Privy Council. They are not really legal sources of law but they are held in extremely high regard.

Legal sources of law include:
1. The Constitution
2. Statutes
3. Precedents
4. The work of jurists
5. Special Law

(a) Conventional Law (originating in agreement)
(b) Customary Law
(c) Local Law
(d) Autonomic Law (originating in subordinate legislation of some private body e.g. University rules)

According to Article 38 of the ICJ Statute the sources of international law are:
1. International customs
2. General principles of law
3. Judicial decisions
4. The teachings of highly qualified jurists
5. Equity

Depending on its source, law can be classified as being:
1. Written or unwritten
2. Enacted or customary
3. Statutory Law or Common Law

Enacted, written and statutory law are very similar, as are customary, unwritten and Common Law, but there are subtle differences between them.

The Romans used the terms ‘jus non scriptum’ and ‘jus scriptum’: unwritten and written law. To the Romans, jus non scriptum meant customary law and all other laws were called jus scriptum. Following this tradition, since Common Law was customary, it was referred to as unwritten law and the remainder was considered to be enacted law. This enacted law later came to be referred to as Statutory Law, however, the term Statutory Law is slightly defective because it consists only of Acts of Parliament.

Reference: Salmond on Jurisprudence

Primary and Sanctioning Rights

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A primary right is a right which does not have its source in a wrong while a sanctioning right arises from the violation of another right.

Primary Rights Sanctioning Rights
May be either in rem e.g. a right not to be defamed, or in personam e.g. a right to have a contract performed by another party Always in personam
Originates in something other than a wrong e.g. a contract Originates in a wrong

The Administration of Civil Justice

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The administration of civil justice is divided into the enforcement of primary and sanctioning rights.
An action for the enforcement of a primary right may be called an action for ‘specific enforcement’. In such cases, the law insists on the existence of a state of things which are a matter of right such as the performance of a contract.

An action for the enforcement of a sanctioning right is almost always an action for damages. In such cases, the law substitutes the existence of a state of things which are a matter of right with something which is considered to be its equivalent such as the payment of compensation for damage to property.

Sanctions and Theories of Punishment

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Punishment is the sanction imposed on persons who commit crimes. It is sometimes considered an end in itself but nowadays it is usually considered a means to an end with the end being to protect society from the incidence of criminal behaviour. Different jurists have put forth a number of theories which deal with punishment and each one of them has a different focus. These theories include:
1. The Deterrent Theory
2. The Preventive Theory
3. The Retributive Theory
4. The Reformative Theory

1. The Deterrent Theory

The primary aim of this theory is, as its name suggests, deterring persons from committing crimes. It assumes that crimes are committed because:
1. Those who commit crimes derive benefits from doing so
2. The existence of a conflict of interest between those who commit crimes and society as a whole.
The deterrent theory seeks to ensure that the result of committing a crime is such that it causes ‘an ill bargain to the offender’ (in the words of Locke) and thus discourages the commission of crimes.

This theory has, however, been criticised because:
1. It leads to extremely harsh and inhuman punishments being inflicted on offenders, and can sometimes focus more on deterring those who have not committed a crime to refrain from doing so rather than on the offender who has committed an offence.
2. It tends to harden criminals instead of creating a respect for the law in them.
3. It had proven to be ineffective.
4. It does not make any allowances for first time offenders, offences committed under extraordinary circumstances or offences which are merely technical.
The ultimate goal of this theory is to protect society from the commission of crimes.

2. The Preventive Theory

The preventive theory focuses on preventing an offender from repeating a crime by taking away his ability to do so. This is usually done by imprisoning the offender or otherwise disabling him.
The ultimate goal of this theory, like that of the deterrent theory, is to protect society from the commission of crimes.

3. The Retributive Theory

The retributive theory focuses on exacting revenge and its application could be seen in most primitive societies. It aims to restore the balance which the offender disturbed by inflicting suffering on him and is also closely connected with the desire to ensure that offenders do not profit from their crimes particularly at the expense of their victims.

In the Middle Ages, this theory, however, developed strong religious overtones – expiation made a guilty person innocent.

Critics of this theory, however, point out that retribution does nothing to remedy a wrong, it merely enhances it.

The retributive theory has no goal apart from inflicting a punishment on the offender. An eye for an eye, a tooth for a tooth, as the Old Testament says. While it makes sense to require an offender to compensate his victims to the extent possible, it is not easy to morally justify requiring an offender to restore an abstract balance for in doing so, we bestow on ourselves functions which are not ours – vengeance belongs to God.

Nonetheless, the theory is not completely without value:
1. If retribution can be inflicted only on an offender, by extension, no punishment can be inflicted on anyone who has not committed a crime.
2. If expiation makes a guilty person innocent, by extension, once he undergoes his punishment, he should be allowed to begin anew with a fresh slate.

4. The Reformative Theory

The Reformative Theory is one of the most widely accepted theories today. It focuses on the individual offender and aims to reform and, usually, rehabilitate him.

It is sensitive to first time offenders, those who have committed offences under extraordinary circumstances and those who have committed offences which are merely technical.

Salmond has criticised this theory though by pointing out that there are some incorrigible individuals in society who cannot be reformed.

Naturally, considering how different the foci of these theories are, none of them can be uncompromisingly followed.

The Definition of Crime

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The difference between criminal and civil wrongs is not clear-cut. Broadly, crimes are broadly offences against the public while offences against private persons are civil wrongs. There are some offences against the public and the State (such as the non-payment of taxes) which are not considered to be criminal offences though, and there are offences against individuals (such as murder) which are considered to be criminal. Further, some acts like defamation are both civil wrongs and criminal offences.

Austin said that a wrong which is pursued by the sovereign or his subordinates is a crime while a wrong which is pursued at the discretion of the injured party and his representative is a civil injury.

The Indian Penal Code does not define what a crime is. It merely says that the word ‘offence’ denotes a thing made punishable by the Code in Section 40. Different scholars have defined ‘crime’ from different perspectives.

Crime as a public wrong:

Initially, Blackstone defined crime as ‘an act committed or omitted in violation of a public of a public law forbidding or commanding it’. He later modified his definition to ‘crime is a violation of public rights and duties due to the whole community considered as a community’.

James Stephen modified this definition as follows:
A crime is a violation of rights considered in reference to the evil tendency of such violation as regards the community at large.

Crime as a social wrong:

John Gillin defined crime as ‘an act that has been shown to be actually harmful to society or that is believed to be socially harmful by a group of people that has power to enforce its beliefs and places such an act under the ban of positive penalties.

Crime as a procedural wrong:

Russel said that criminal offences are basically the creation of a criminal policy adopted from time to time by those sections of community who are powerful enough to safeguard their own security and comfort by sovereign power.
Other scholars have defined crime by simply listing its characteristics. For example, Edwin Sutherland defined crime as a body of specific rules regarding human conduct which have been promulgated by political authority which apply uniformly to all members of classes.
And Roscoe Pound solved the problem of defining crime by simply saying that it is impossible to define crime because ‘law is a living, changing thing which may at one time be based on sovereign will and at another time on juristic science, which may at one time be uniform, and at another time give much room for judicial discretion, which may at one time be more specific in its prescription and at another time much more general’.