Positive School of Law 04.08.2015
Content
JURISPRUDENCE
Law is the highest reason, implanted in nature, which commands what ought to be done
and forbids the opposite. True law is right reason in agreement with nature. To curtail
this law is unholy, to amend it illicit, to repeal it impossible……Cicero.
Arvind Nath tripathi
dsnlu
Inherent powers of the Supreme
Court under the Constitution
Article 142 is one such provision in our
Constitution which empowers the
Supreme Court to pass such "decree or
order as may be necessary for doing
complete justice between the parties".
K. Ramaswamy, J. in Ashok Kumar Gupta v.
State of U.P., (1997) 5 SCC 201, p. 250, para
60.
"The phrase 'complete justice' engrafted
in Article 142(1) is the word of width
couched with elasticity to meet myriad
situations created by human ingenuity or
cause or result of operation of statute
law or law declared under Articles 32,
136 and 141 of the Constitution and
cannot be cribbed or cabined within any
limitations or phraseology."
S. Nagaraj v. State of Karnataka, 1993
Supp (4) SCC 595, p. 618, para 18
Justice is a virtue which transcends all barriers.
Neither the rules of procedure nor technicalities
of law can stand in its way." This wide definition
of "justice" ensures that the Court can exercise
its powers under Article 142 to do "complete
justice" in a range of cases each decided by the
Court based on its facts and circumstances.
Article 142 also lays down no limitations
regarding causes or the circumstances in which
the power is to be exercised. The exercise of
such power is left completely to the discretion
of the highest court.
Sanchalakshri v. Vijayakumar Raghuvirprasad
Mehta, (1998) 8 SCC 245 (para 8)
Moreover, such power of passing any
order or decree in the interest of justice
has been conferred upon the Supreme
Court only vide Article 142 and in the
absence of analogous provisions, the
High Courts or the tribunals do not have
similar powers.
Delhi Judicial Service Assn. v. State of Gujarat,
(1991) 4 SCC 406, SCC at p. 463, para 51
No enactment made by the legislature
can limit or restrict the constitutional
power of the Supreme Court under
Article 142, though the Court generally
take into consideration the statutory
provisions regulating the matter in
dispute.
Courts and its endeavor to
do Complete Justice
Article 142 can override any statutory
provision. But, in practice, the Court
does not use its powers under Article
142 in direct confrontation with any
express statutory provisions applicable
to the case at hand. This is a selfimposed restriction but the Court can
bypass the same if equitable
considerations demand.
Courts and its endeavor to
do Complete Justice
Article 142 was introduced in our
Constitution to serve the interests of
justice. The Supreme Court is the highest
court from which no appeal lies. Its
decisions are final and binding. Thus this
article was included in our Constitution
with a view to ensure that the interests
of justice are paramount and in doing so
the Supreme Court can disregard any
provision which prevents the court from
performing its constitutional obligations.
S. P. Gupta v. President of
India( AIR 1982 SC 149)
In S. P. Gupta v. President of India the
court observed"...law does not operate
in a vacuum. It is therefore intended to
serve a social purpose and it cannot be
interpreted without taking into account
the social, economic and political setting
in which it is intended to operate. It is
here that the Judge is called upon to
perform a creative function.”
Vishaka and others V. State of Rajasthan
and others.
(AIR 1997 SUPREME COURT 3011)
“the absence of enacted law to provide for the
effective enforcement of the basic human right of
gender equality and guarantee against sexual
harassment and abuse, more particularly against
sexual harassment at work places, we lay down the
guidelines and norms specified hereinafter for due
observance at all work places or other institutions,
until a legislation is enacted for the purpose. This
is done in exercise of the power available under
Art.32 of the Constitution for enforcement of the
fundamental rights and it is further emphasized
that this would be treated as the law declared by
this Court under Art. 141 of the”.
Dr. Virendra Singh
Respondent :Banaras Hindu University, Varanasi And 3 Others WRIT A No. - 35877 of 2015
“rules of 'natural justice' cannot remain the
same under all conditions and that girls, in
cases of sexual harassment, may not give
evidence if a regular enquiry is held. Under
since circumstance, the Committee of teachers
that is constituted can record statements and
no opportunity of cross-examination is
required to be given nor a copy of the enquiry
report is required to be supplied. The
dispensation of a regular enquiry, therefore,
under such circumstance does not result in
violation of the principles of natural justice”.
The Dilemma of the
Child
Let’s suppose that a fair-haired child returns from school
one day and says to his father Child: Mr. Smith (the head
master of the school) has made a new rule. No children
with fair hair are to get arithmetic lessons. They are to
do extra woodwork instead. I think it’s stupid, Father:
Wow Child: After all, we’re at school to learn aren’t we?
How can I do what I’m there for if I get arithmetic?
Father: Well, it seems unfortunate, I agree. But Mr. Smith
is the head master. He makes the rules. What he says
goes. Child: But surely, he can’t make a rule like that? I
mean, it goes against what the school is for. The school
governors wouldn’t allow it. It can’t really be a rule at all,
can it? Father: Um! Child: Well, I don’t think it is a rule. It
can’t be. Father: And do you intend to disobey it? Child:
Um!
The Rise of Legal
Positivism in Germany
The nineteenth century saw a series of
significant events such as the French
revolution
and
the
scientific
and
industrial developments, Technological,
economic and scientific progress saw a
human
endeavour
to
pursue
enlightenment
through
a
scientific,
objective approach.
John Austin (1790-1859)
John Austin was born in 1790. In 1818 ,he
practiced law
for seven year but without
success. In 1819, he married Sarah Taylor a
women of great intelligence and energy. When
the university of London was founded, Austin
was appointed as professor of jurisprudence
and he spent the two years in preparing his
lectures.
His publications had a profound influence on
English
jurisprudence.
They
include
The Province of Jurisprudence Determined
(1832), and Lectures on Jurisprudence.
The Command Theory: John
Austin’s Positivism
The word positivism is related to the
English word ‘posit’ which means put
something firmly, or imposing something
on somebody. The idea is that since
positivists believe that law is made by an
authority and imposed on the people for
obedience, the name positivism stems
from this root word. Positivism is also
known in two other names: Imperative,
and Analytical Jurisprudence.
Definition –
Austin
Austin’s definition of law: a “rule laid down
for the guidance of an intelligent being
by an intelligent being having power over
him.”
Austin, then, defends two ideas:
i) the command theory of law, and
ii) the separation thesis. (“The existence
of law is one thing; its merit or demerit
is another.”)
Definition Austin
Law is a command of the sovereign
enforced by sanction.. Austin.
According to Austin positive law has 3
elements
Sovereignty
Command
Sanction
The Separation
Thesis
The existence of law is one thing, its
merit or demerit is another... Austin
The determination of what the law is. ‘Is’
and ‘Ought’ must be kept separate.
Sovereignty
Sovereign may be a king or a parliament;
Society must obey the sovereign;
Obedience only to Sovereign;
Sovereign obeys no one else;
Supreme in power
Sovereignty
According to Salmond,Austin’s theory of
sovereignty may be reduced to the
following 3 fundamental propositions.
Sovereign power is essential in every
state
Sovereign power is indivisible
Sovereign power is unlimited
Command
According to Austin, law is a command
given by a determinate common superior
to whom the bulk of a society is in the
habit of obedience and who is not in the
habit of obedience to a determinate
human superior, enforced by sanction. It
is the element of command that is crucial
to Austin's thinking, and the concept of
law expressed by Austin is described as
‘the command theory’ or ‘the imperative
theory’ of law.
Command
However all the command are not laws,
it is only the general command which
obliges to a course of conduct is law.
Austin provides some exceptions which
though are not commands are still in the
province of jurisprudence.
Declaratory or explanatory laws
Laws to repeal law
Laws of imperfect obligation
Sanction
Sanctions are essential for the existence
of commands, they are, for Austin,
essential to the existence of laws. There
must be, he said, ‘a power to inflict an
evil to the party’ in case of non
compliance. A sanction can also be a
further legal obligation. Thus, breach of
one law (say, a traffic offence) might lead
to a further obligation (to appear in court
to answer charges). A chain of legal
obligation is possible.
Sanction
Prof.
Dias point out that distinction
drawn by Austin was entirely arbitrary.
He adds that the case of sanction is not
the sole or even the principle motive for
obedience. There are many objections to
the association of duty with sanctions.
Supreme in power
The power of the sovereign is incapable of
legal limitation. Austin says: ‘Supreme power
limited by positive law is a flat contradiction in
terms.’ One may ask what about his position in
relation to the constitution? May a body be
sovereign yet subject to the constitutional law?
Austin answers, no. A sovereign is subject to
no legal limitation. He explains that whenever
there is a conflict between the principles of the
constitution and the act of the sovereign, the
latter must thwart the former.
Species of law ‘in the strict sense:
According to Austin laws are two kindsLaw of God
Human laws
A class of prescriptions and proscriptions “closely
analogous” above but“improperly termed laws”:
these are “rules set and enforced by mere
opinion, that is, by the opinions and sentiments
held or felt by an indeterminate body of men in
regard to human conduct” . Examples: “the law of
honor”; “the law set by fashion”; “much of what is
usually termed ‘International Law”.
Criticism against Austin’s
theory
Relation of law and morals overlooked;
Sanction is not the only means to induce
obedience;
Customs ignored;
Law conferring privileges;
Judge- made Law;
International Law;
Bentham
Bentham’s
legal philosophy is called
“Utilitarian Individualism”.
According to him, the end of legislation
is the “greatest
happiness of the
greatest number”.
Utility as the “property or tendency of a
thing to prevent some evil or to produce
some good”.
The purpose of law is to bring pleasure
and avoid pain. Pleasure and pain are
the ultimate standards on which a law
Bentham
‘Expositorial’
jurisprudence-(what
the
law is).
‘Censorial’
jurisprudence-(what
law
ought to be).
An Introduction to the Principles of
Morals and Legislation-book
Law is the highest reason, implanted in nature, which commands what ought to be done
and forbids the opposite. True law is right reason in agreement with nature. To curtail
this law is unholy, to amend it illicit, to repeal it impossible……Cicero.
Arvind Nath tripathi
dsnlu
Inherent powers of the Supreme
Court under the Constitution
Article 142 is one such provision in our
Constitution which empowers the
Supreme Court to pass such "decree or
order as may be necessary for doing
complete justice between the parties".
K. Ramaswamy, J. in Ashok Kumar Gupta v.
State of U.P., (1997) 5 SCC 201, p. 250, para
60.
"The phrase 'complete justice' engrafted
in Article 142(1) is the word of width
couched with elasticity to meet myriad
situations created by human ingenuity or
cause or result of operation of statute
law or law declared under Articles 32,
136 and 141 of the Constitution and
cannot be cribbed or cabined within any
limitations or phraseology."
S. Nagaraj v. State of Karnataka, 1993
Supp (4) SCC 595, p. 618, para 18
Justice is a virtue which transcends all barriers.
Neither the rules of procedure nor technicalities
of law can stand in its way." This wide definition
of "justice" ensures that the Court can exercise
its powers under Article 142 to do "complete
justice" in a range of cases each decided by the
Court based on its facts and circumstances.
Article 142 also lays down no limitations
regarding causes or the circumstances in which
the power is to be exercised. The exercise of
such power is left completely to the discretion
of the highest court.
Sanchalakshri v. Vijayakumar Raghuvirprasad
Mehta, (1998) 8 SCC 245 (para 8)
Moreover, such power of passing any
order or decree in the interest of justice
has been conferred upon the Supreme
Court only vide Article 142 and in the
absence of analogous provisions, the
High Courts or the tribunals do not have
similar powers.
Delhi Judicial Service Assn. v. State of Gujarat,
(1991) 4 SCC 406, SCC at p. 463, para 51
No enactment made by the legislature
can limit or restrict the constitutional
power of the Supreme Court under
Article 142, though the Court generally
take into consideration the statutory
provisions regulating the matter in
dispute.
Courts and its endeavor to
do Complete Justice
Article 142 can override any statutory
provision. But, in practice, the Court
does not use its powers under Article
142 in direct confrontation with any
express statutory provisions applicable
to the case at hand. This is a selfimposed restriction but the Court can
bypass the same if equitable
considerations demand.
Courts and its endeavor to
do Complete Justice
Article 142 was introduced in our
Constitution to serve the interests of
justice. The Supreme Court is the highest
court from which no appeal lies. Its
decisions are final and binding. Thus this
article was included in our Constitution
with a view to ensure that the interests
of justice are paramount and in doing so
the Supreme Court can disregard any
provision which prevents the court from
performing its constitutional obligations.
S. P. Gupta v. President of
India( AIR 1982 SC 149)
In S. P. Gupta v. President of India the
court observed"...law does not operate
in a vacuum. It is therefore intended to
serve a social purpose and it cannot be
interpreted without taking into account
the social, economic and political setting
in which it is intended to operate. It is
here that the Judge is called upon to
perform a creative function.”
Vishaka and others V. State of Rajasthan
and others.
(AIR 1997 SUPREME COURT 3011)
“the absence of enacted law to provide for the
effective enforcement of the basic human right of
gender equality and guarantee against sexual
harassment and abuse, more particularly against
sexual harassment at work places, we lay down the
guidelines and norms specified hereinafter for due
observance at all work places or other institutions,
until a legislation is enacted for the purpose. This
is done in exercise of the power available under
Art.32 of the Constitution for enforcement of the
fundamental rights and it is further emphasized
that this would be treated as the law declared by
this Court under Art. 141 of the”.
Dr. Virendra Singh
Respondent :Banaras Hindu University, Varanasi And 3 Others WRIT A No. - 35877 of 2015
“rules of 'natural justice' cannot remain the
same under all conditions and that girls, in
cases of sexual harassment, may not give
evidence if a regular enquiry is held. Under
since circumstance, the Committee of teachers
that is constituted can record statements and
no opportunity of cross-examination is
required to be given nor a copy of the enquiry
report is required to be supplied. The
dispensation of a regular enquiry, therefore,
under such circumstance does not result in
violation of the principles of natural justice”.
The Dilemma of the
Child
Let’s suppose that a fair-haired child returns from school
one day and says to his father Child: Mr. Smith (the head
master of the school) has made a new rule. No children
with fair hair are to get arithmetic lessons. They are to
do extra woodwork instead. I think it’s stupid, Father:
Wow Child: After all, we’re at school to learn aren’t we?
How can I do what I’m there for if I get arithmetic?
Father: Well, it seems unfortunate, I agree. But Mr. Smith
is the head master. He makes the rules. What he says
goes. Child: But surely, he can’t make a rule like that? I
mean, it goes against what the school is for. The school
governors wouldn’t allow it. It can’t really be a rule at all,
can it? Father: Um! Child: Well, I don’t think it is a rule. It
can’t be. Father: And do you intend to disobey it? Child:
Um!
The Rise of Legal
Positivism in Germany
The nineteenth century saw a series of
significant events such as the French
revolution
and
the
scientific
and
industrial developments, Technological,
economic and scientific progress saw a
human
endeavour
to
pursue
enlightenment
through
a
scientific,
objective approach.
John Austin (1790-1859)
John Austin was born in 1790. In 1818 ,he
practiced law
for seven year but without
success. In 1819, he married Sarah Taylor a
women of great intelligence and energy. When
the university of London was founded, Austin
was appointed as professor of jurisprudence
and he spent the two years in preparing his
lectures.
His publications had a profound influence on
English
jurisprudence.
They
include
The Province of Jurisprudence Determined
(1832), and Lectures on Jurisprudence.
The Command Theory: John
Austin’s Positivism
The word positivism is related to the
English word ‘posit’ which means put
something firmly, or imposing something
on somebody. The idea is that since
positivists believe that law is made by an
authority and imposed on the people for
obedience, the name positivism stems
from this root word. Positivism is also
known in two other names: Imperative,
and Analytical Jurisprudence.
Definition –
Austin
Austin’s definition of law: a “rule laid down
for the guidance of an intelligent being
by an intelligent being having power over
him.”
Austin, then, defends two ideas:
i) the command theory of law, and
ii) the separation thesis. (“The existence
of law is one thing; its merit or demerit
is another.”)
Definition Austin
Law is a command of the sovereign
enforced by sanction.. Austin.
According to Austin positive law has 3
elements
Sovereignty
Command
Sanction
The Separation
Thesis
The existence of law is one thing, its
merit or demerit is another... Austin
The determination of what the law is. ‘Is’
and ‘Ought’ must be kept separate.
Sovereignty
Sovereign may be a king or a parliament;
Society must obey the sovereign;
Obedience only to Sovereign;
Sovereign obeys no one else;
Supreme in power
Sovereignty
According to Salmond,Austin’s theory of
sovereignty may be reduced to the
following 3 fundamental propositions.
Sovereign power is essential in every
state
Sovereign power is indivisible
Sovereign power is unlimited
Command
According to Austin, law is a command
given by a determinate common superior
to whom the bulk of a society is in the
habit of obedience and who is not in the
habit of obedience to a determinate
human superior, enforced by sanction. It
is the element of command that is crucial
to Austin's thinking, and the concept of
law expressed by Austin is described as
‘the command theory’ or ‘the imperative
theory’ of law.
Command
However all the command are not laws,
it is only the general command which
obliges to a course of conduct is law.
Austin provides some exceptions which
though are not commands are still in the
province of jurisprudence.
Declaratory or explanatory laws
Laws to repeal law
Laws of imperfect obligation
Sanction
Sanctions are essential for the existence
of commands, they are, for Austin,
essential to the existence of laws. There
must be, he said, ‘a power to inflict an
evil to the party’ in case of non
compliance. A sanction can also be a
further legal obligation. Thus, breach of
one law (say, a traffic offence) might lead
to a further obligation (to appear in court
to answer charges). A chain of legal
obligation is possible.
Sanction
Prof.
Dias point out that distinction
drawn by Austin was entirely arbitrary.
He adds that the case of sanction is not
the sole or even the principle motive for
obedience. There are many objections to
the association of duty with sanctions.
Supreme in power
The power of the sovereign is incapable of
legal limitation. Austin says: ‘Supreme power
limited by positive law is a flat contradiction in
terms.’ One may ask what about his position in
relation to the constitution? May a body be
sovereign yet subject to the constitutional law?
Austin answers, no. A sovereign is subject to
no legal limitation. He explains that whenever
there is a conflict between the principles of the
constitution and the act of the sovereign, the
latter must thwart the former.
Species of law ‘in the strict sense:
According to Austin laws are two kindsLaw of God
Human laws
A class of prescriptions and proscriptions “closely
analogous” above but“improperly termed laws”:
these are “rules set and enforced by mere
opinion, that is, by the opinions and sentiments
held or felt by an indeterminate body of men in
regard to human conduct” . Examples: “the law of
honor”; “the law set by fashion”; “much of what is
usually termed ‘International Law”.
Criticism against Austin’s
theory
Relation of law and morals overlooked;
Sanction is not the only means to induce
obedience;
Customs ignored;
Law conferring privileges;
Judge- made Law;
International Law;
Bentham
Bentham’s
legal philosophy is called
“Utilitarian Individualism”.
According to him, the end of legislation
is the “greatest
happiness of the
greatest number”.
Utility as the “property or tendency of a
thing to prevent some evil or to produce
some good”.
The purpose of law is to bring pleasure
and avoid pain. Pleasure and pain are
the ultimate standards on which a law
Bentham
‘Expositorial’
jurisprudence-(what
the
law is).
‘Censorial’
jurisprudence-(what
law
ought to be).
An Introduction to the Principles of
Morals and Legislation-book
