Thursday, 4 May 2023

Why Paucity of Funds is NOT a valid Defence against Attachment of Property in a Consumer Forum in India?

 The reason why Paucity of Funds is not a valid defence is not a valid defence against attachment of property in India is that apart from being simply impractical, the power granted to the Consumer Forum under Section 25 of the new Consumer Protection Act 2019 empowers it to attach properties if its orders are not complied with. 

Even prior to the new Act, its very well established by the Hobble Supreme Court of India that 

In Shashikant Laxman Kale v. Union of India & Ors., (2014) 4 SCC 425 - the Hon' SC Held that Lack of funds cannot be a valid defence against non compliance of order. 

Kiran Singh & Ors. v. Chaman Paswan & Ors., (2015) SCC OnLine SC 1454 - Held that merely financial constraints is not a valid defence against attachment of property. 

Punjab National Bank v. Surendra Prasad Sinha, (1992) 1 SCC 7 - held that an order for attachment and sale of property can be passed against a judgment debtor who does not comply with the order of the Consumer Forum.

Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622 - Held that the judgment debtor cannot avoid attachment and sale of the property on the ground that he has no other property except the one sought to be attached.

National Small Industries Corporation Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330 - In this case, the Supreme Court held that a plea of financial difficulty cannot be considered as a valid defense against attachment of property.

Under Section 27 of the Old Consumer Protection Act, 1986 the decrees passed by Consumer Forum would be executed in the same manner as if it had been passed by a Civil Court. 


Can Properties be Attached by Consumer Forum in India if order not complied with (New Consumer Protection Act 2019)?

In an execution petition in consumer forum in India, the grounds for attachment of property of a judgment debtor may include:

1. Non-payment of the awarded amount by the judgment debtor despite the expiry of the time limit for payment as mentioned in the order.

2. Willful disobedience of the order by the judgment debtor.

3. Refusal to comply with the order by the judgment debtor.

4. Lack of assets or property that can be used to satisfy the awarded amount.

Under the new Consumer Protection Act, 2019,  Section 25 states:

"25. Enforcement of orders.-
(1) Where an interim order made under this Act is not complied with, the District Commission or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order, to be attached.

(2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Commission or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto.

(3) Where any amount is due from any person under an order made by a District Commission or a State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Commission or the State Commission or the National Commission, as the case may be, and such Commission may order that the said amount be recovered as an arrear of land revenue."

Case Laws
1. Union of India v. Oswal Agro Furane Ltd. (2005) 5 SCC 227: In this case, the Supreme Court held that attachment of the judgment debtor's property can be ordered by the consumer forum if there is a failure to pay the awarded amount.

2. Mathew Varghese v. Rosamma Sebastian & Ors. (2010) 1 SCC 141: In this case, the Supreme Court held that attachment of the judgment debtor's property can be ordered by the consumer forum if there is willful disobedience of the order by the judgment debtor.

3. Sita Ram Gupta v. Punjab National Bank & Ors. (2011) 2 SCC 721: In this case, the Supreme Court held that attachment of the judgment debtor's property can be ordered by the consumer forum if the judgment debtor refuses to comply with the order.

4. Natraj Studios (P) Ltd. v. Navrang Studios & Ors. (2019) SCC OnLine SC 1433: In this case, the Supreme Court held that attachment of the judgment debtor's property can be ordered by the consumer forum if the judgment debtor does not have sufficient assets or property to satisfy the awarded amount.

In essence Section 25 of the Consumer Protection Act 2019 is self explanatory and the Consumer Court can enforce their orders like any other Civil Court of Laws in India. 

Friday, 10 November 2017

Procedure for Bail under the Code of Criminal Procedure, 1973


Procedure for approaching a Court for Bail in case of Non Bailable Offense. 

1. Write an application for Bail. Bail application is usually accompanied with a Vakalatnama signed by the accused/under trial and in case the under trial is in Jail then it is also attested by the Jail Superintendent/concerned Police authority. An affidavit is also required to be filed along with the bail application especially if the Bail application is being filed in the Delhi High Court.

2, Submit Application to the appropriate Court / i.e. at the Filing Counter. Usually the bail application is submitted with two copies along with original. Many courts require a Bail proforma to be filled and submitted, this proforma is attached on top of the file. These proforma are usually available with the stationery shops situated in the Court premises. Some of the formats and procedures are court specific and information for the same can be sought from the Filing Counter(1st search for an Enquiry Counter and if no such counter is there then approach the Filing Counter.)  

3. If the Court admits the Bail application it will issue notice to the State/Police/PP/IO. Usually in the district courts, the IO is given notice at the stage of filing and he is present at the first hearing, so the Counsel/Party seeking bail should be ready for arguments at the first hearing itself.

4. Court hears both the sides, the Investigating Officer/Public Prosecutor and the accused/ Counsel.

5. Either the Court grants or refuses bail., usually the Courts grant a conditional bail with surety.

6. Once bail is granted then the Bail bond is submitted, with details of surety and the appropriate Court sends the Release Orders to the Jail Authorities or Police Custody where the under trial or prisoner is held.

7. Where the person is indigent the Court may do away with the need for any surety.

Surety is a person who takes the guarantee that  the person shall appear before the Court and if he fails to do so then the surety shall be bound to pay X amount to the Court i.e. the amount he had stood guarantee for.

The application should contain

  • The section under which bail is sought depending upon whether anticipatory or regular bail, and depending upon the offence/court in which bail is sought. 
  • The grounds of Bail, i.e. why bail should be granted.
  • An undertaking that the Accused will be available and shall cooperate with the investigation authorities and attend the court hearings etc etc.
On grant of bail by the Court, the Bail bond is filled with details of surety and submitted to the Court.


The main issue in grant or non granting of bail is
- Whether an under trial can influence the investigation of a case, i.e. intimidate, influence or coerce the witness,complainant and/or the Investigation Officers, etc.
- Whether the under trial is likely to repeat the offence or commit a greater offence.
- Whether the accused/under trial is likely to evade or flee the procedure of the court/investigation. 

The general meaning of bail is "temporary release of an accused awaiting trial subject to fulfillment of certain conditions". Conditions here may (and usually )mean a certain sum of money is either deposited or promised to be promised, in order to guarantee the appearance of the accused in Court and/or for investigation.

The Code of Criminal Procedure as such does not define the term bail, it only defines the terms bailable offence and non-bailable offence under Section 2(a) of the Code of Criminal Procedure, 1973.

In Siddharam Satlingappa Mhetre vs State Of Maharashtra & Ors (Crl Appeal No. 2271 of 2010), it was observed inter alia by the Supreme Court that :-

"The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty."



Sunday, 24 April 2016

Bailable and Non Bailable Offences

Section 2(a) of the Code of Criminal Procedure, 1973 defines bailable offence and non bailable offence as :-

"bailable offence" means an offense which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non bailable offence" means any other offence;

So essentially the Cr.P.C defines bailable offence; and thus by inference non bailable offence includes any other offence other than the one which is specified as bailable. Thus in essence non-bailable offence is the norm and bailable offence is an exception in terms of the definition. Hence when in doubt the Court may and should consider the offence as non-bailable.

However it does not mean that bail cannot be granted in non-bailable offences. Just the consideration for grant of bail in a non-bailable offence is more stringent as compared to bailable offences, more so in case of grievious offences. Section 437 of the CrPC lays down conditions in which bail may be taken in case of non-bailable offence.

In The State v Captain Jagjit Singh 1962 AIR 253: 1962 SCR (3) 622 the respondent who was a Captain in the Indian Army was charged along with two others under section 3 and 5 of the Official Secrets Act, 1923 for passing official secrets to a Foreign Agency.

His bail application was rejected by the Sessions judge but was allowed by the High Court on the grounds that the offence under section 5 was bailable and under section 3 was non-bailable and it was likely that his offence only falls under section 5 which is bailable.

The Supreme Court reversing the order of the High Court cancelled the bail of the Respondent and observed inter alia (among other things) -

"...Among other considerations, which a court has to take into account in deciding whether bail should be granted in a non-bailable offence, is the nature of the offence; and if the offence is of a kind in which bail should not be granted considering its seriousness, the court should refuse bail even though it has very wide powers under s. 498 of the Code of Criminal Procedure."

(*the section 498 of the Code refers to the CrPC 1898 nevertheless the observation of the court stands with respect to non-bailable offences).

Thus where a person is charged under a bailable and a non-bailable offence the Court while granting bail has to consider primarily the charge under the non-bailable offence and not under the bailable one. Logically it makes sense as a bailable offence is not a benefit one can undertake in order to take bail in a non-bailable offence. Thus it is absurd to assume that a person who has committed an offence under a Non-Bailable Offence say Section 121 of the IPC (abetting war against the state) gets bail on the ground that he also committed a related offence under Section 120B (any other criminal conspiracy) which is bailable.

Also when an offence is a bailable offence under one act and non bailable under another, the Court will consider the offence as a non-bailable offence as when in doubt as it can be inferred from the Judgment of the Supreme Court in State v Captain Jagjit Singh (Supra). 

Thursday, 4 June 2015

How to write a Terms & Conditions Page for your Website

Before writing the terms and conditions page ask yourself is it really important to have Terms and Conditions for the use of the website. If you have a single page website where there is no two way interaction between the website and the user and you are not really selling any product or service, then all you might really need is this line "(c) Your name. All right reserved." basically to indicate that the content is owned by you. So if you have taken the content from someplace else i.e. you are not the original owner or a licensee it may not be valid.

But if you decide that there are legal requirements for you to have a terms and conditions for your website then the followings are some of the things you might want to keep in mind before you go ahead and type out the document.

Introduction - Identify Yourself i.e. the First Party
First part ideally should be the introduction. The introduction should define you (the website) as a legal entity, how you define yourself is extremely important as it will be used to legally interpret the rest of the terms & conditions. The introduction should also make the users and customers feel welcome and at ease.

Identify the Second Party
Like all other agreements, the terms and conditions of your website must define / identify as to who are the parties to the same. So you need to make it clear as to who are users(those who browse your site) and who are customers (those who buy or avail services from your site) and what applies to each of them. Example the shipping policy may not apply to all users but to only those purchase from your website, but incase of Intellectual Property Claims the terms will be applicable to both users and customers.

Eligibility
Specify the eligibility - If you are selling products or services then ideally you want to restrict the sale of goods to children under 18 years of age because they are not eligible to contract under the Indian Contract Act. If you are based in another country then you might want to look at the governing act applicable to you.


Jurisdiction
Its good to spell out where the disputes will be resolved. It might save you considerable cost in terms of litigation if you make clear the place of litigation. Note that it is the discretion of the judge and the governing law as to whether your jurisdiction clause will hold in court or not but nevertheless it will add weight to your argument to dismiss the suit on ground of lack of jurisdiction.

Intellectual Property Rights
Establish your claims and ensure a channel where in you can address the claims of any one who disputes your claims to the content of your website.

Dispute Resolution
Anticipate the disputes that can arise from the usage of the website and make your position clear before with respect to those points. It is wise to have a dispute resolution mechanism in place, e.g. a grieviance officer.

Shipping & Delivery
Specify the terms of shipping, liability of goods during the period of shipping, whether transit insurance is available to the customer etc.

Exchange, Returns & Refunds
Set out your policy beforehand with respect to defective goods, goods damaged during transit, goods which are not according to specification, etc. Usually the more successful businesses have liberal policies with respect to the customer, so that the customer can trust you more.

Indemnification
Indemnify yourself against any third party acts, such as hacking, viruses, i.e. acts which you are not responsible for but might be held liable for. For example if someone hacks your website, etc and steals customer data.

Privacy Policy
Make a list of all user and customer related data and information that you will be storing and make it clear to the user as to how is it going to be used. Ideally there should not be any misuse of the user data. The user data should not be shared except in aid of any government investigation and / or any other legal purpose, etc. In India it is necessary to have a grievance officer for every website. There are no legal guidelines as to the qualifications for the same but it is necessary as per the Information Technology (Intermediaries Guidelines) Rules, 2011 Rule 3 Sub Rule 11 for every website in India to have the contact details of atleast one grievance office and the mechanism by which the user or victim can notify their complaints against harmful access or usage.

As per Rule 3 Sub Rule 11 mentioned above "The intermediary shall publish on its website the name of the Grievance Officer and his contact details as well as mechanism by which users or any victim who suffers as a result of access or usage of computer resource by any person in violation of rule 3 can notify their complaints against such access or usage of computer resource of the intermediary or other matters pertaining to the computer resources made available by it. The Grievance Officer shall redress the complaints within one month from the date of receipt of complaint."

Thursday, 12 December 2013

Section 377 of the Indian Penal Code: Position of the Supreme Court

Legislation is not the repertoire of the Hon'ble Supreme Court of.India. Appalled to see how the ruling Council of Ministers & the leader of the ruling party are hiding their inactions and running away from their responsibility by hiding behind the decision of the Supreme Court i.e. making it appear that the Supreme Court has always been somehow responsible for the Section 377 of the Indian Penal Code.

Its not for the Supreme Court to decide policy, it will be going beyond its constitutional powers if it decides what is morally wrong or morally right or whether same gender sex is moral or not moral. That is the prerogative of the legislature. There is nothing wrong or right about the decision of the Supreme Court, its just that the legislature should have brought out an amendment to accommodate the changes that take place with the progress of society. It is beyond the judicial capacity of the Supreme Court to decide whether same gender sexual intercourse is okay or not okay.

What the infamous 377 is all about ..

Section 377. Unnatural offences
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation

Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

If we look closely
  • the law may be poorly written in today's context and perhaps is grossly insufficient but is not unconstitutional per se even though it may be partially immoral and also offensive. (we must remember that unconstitutional does not equate to immoral, it just means whether it is constitutionally acceptable or not and similarly just because a law is constitutional does not always mean it is morally right.) 
  • There is no mention about mutual consent.
  • This section is not only related to same gender sexual intercourse, it covers other aspects as sex with animals, curbing sexual assaults on men and children, etc. 
  • This section if struck down will need to be replaced with some other law to prevent same gender sexual assaults.
  • Does the Supreme Court have the power to write an alternate law?
  • Also is there any part of the law that the Supreme Court can partially strike down and retain the protective elements of this section?
We must remember that the Supreme Court cannot write laws, it cannot amend Section 377 . The decision however seemingly harsh is right in place and a very sensible decision. The legislative void which will be created by striking down this law will need to be replaced by another law, which cannot be forced by the court upon the legislature. It is very well settled that no Court in this country can direct a legislative body to enact laws.

In Union of India & Anr. vs. Deoki Nandan Aggarwal AIR 1992 SC 96 a three Judge Bench of the Apex Court observed (vide paragraph 14): "It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme will not also come under the principle of affirmative action adopted by courts sometimes in order to avoid discrimination."

It is amazingly funny how the media and the politicians are taking a high moral ground without understanding the basics of how the constitution of India has divided the power amongst the judiciary, executive and the legislature. What is even more funny is that senior advocates like Indira Jaisingh are overlooking this fact and are criticizing the judgement perhaps in order to get brownie points from the Government or perhaps in an emotional reaction.

The entire episode is a failure of our legislature and not the failure of the Supreme Court. And the entire hype by the media is just because of total ignorance of the division of powers among the three pillars by the Constitution of India.

What is conveniently ignored by everyone is that the Hon'ble bench has held that the legislature is free to bring about necessary legislation on this issue.

And finally a tip on how to effectively criticize a Supreme Court Judgement.
" ............................Read it first.............................

Sunday, 1 December 2013

LB 502 Jurisprudence - 1 (without Kelsen)

Jurisprudence Notes


  1. Austin (Analytical School) – John Austin (1790 – 1859) – analytical method – law carefully studied – principle lying therein – (matter of jurisprudence is positive law)
    1. Austin’s  Concept of Law
                                                               i.      Law properly so called (General commands)
1.       Law set by God
2.       Law set by men to men
a.       Positive Law – law set by men to men as political superiors or in pursuance of rights conferred by such superiors.
b.       Positive Morality – law set by men to men not as political superiors, nor in pursuance of rights conferred by such superiors. Positive morality is still law properly so called because they are commands e.g. set by a master to a servant, etc.
                                                              ii.      Law improperly so called
1.       Law by analogy – laws set by mere opinion e.g. laws of fashion, international law, etc
2.       Law by metaphor – expressions of the uniformity of nature.

    1. Law as a Command – A command is an expression of a wish by a determinate person or body of persons that another person shall do or forbear from doing some act subject to an evil(sanction) in the event of disobedience.
                                                               i.      General commands –  which obliges generally
                                                              ii.      Occasional or particular commands – obliges to a specific act or forbearance or to acts or forbearance which it determines specifically or individually.
                Examples – Essential Commodities Act(General) , Export Onions, Judicial commands etc.

Difficulty in drawing distinct boundary between laws and occasional commands because of
-                          Commands which oblige generally the members of given community(or persons of given classes) are not always laws or rules.
-                          Command which obliges exclusively persons to individually determined, may amount to a law or rule.

Command is express when expressed in words, written or spoken.
A command is tacit if desire be signified by conduct.

    1. All Laws are not commands –
                                                               i.      There are objects which don’t have an imperative character and thus improperly termed laws and yet properly included within the province of jurisprudence.
1.       Declaratory laws – laws enacted to clarify an existing statute
2.       Repealing laws
3.       Imperfect laws (no sanction)
                                                              ii.      There are also certain laws properly so called which may seem not imperative and are thus not commands.
1.       Laws which merely create rights – not imperative.
2.       Customary laws – customs à considered as rules of positive morality. Customary law à customs established as statute by State. Positive morality à positive law.
    1. Criticism of command theory
                                                               i.      Association of duty with commands – Prof Olivercona à duty – ought propositions. Non Sequitur to suppose that such phraseology itself implies command.
                                                              ii.      Ideas of command inapplicable in modern society.
                                                            iii.      Law & command – Law à std to judge deviance – Commands à directed to specific individual or individuals with reference to a particular act or forbearance and does not serve as a general standard of judgement. – Laws of permissive nature – (Buckland defends Austin theory i.e. Statute are commands not provisions). 
                                                            iv.      Inapplicability to modern social legislations
                                                             v.      Conventions of the Constitution (e.g. Directive principles, Preamble etc)
                                                            vi.      Judge-made law
                                                          vii.      Commands of a sovereign – parliamentary procedure – difficult to square them with commands.
                                                         viii.      Sanction not the only means to induce obedience.
                                                            ix.      Relation of law and morals over-looked.

    1. Concept of Sovereignty
Contrast between positive law & positive morality – theory of sovereignty.
Sovereign may have Moral obligations – but may not always have legal obligations.

Sovereignty involves two marks– positive & negative mark.

Positive mark – Bulk of a given society was in the habit of obedience to some other superior. Such determinate superior is sovereign in that society, and the society including the superior is a society political & independent and the other members of the society are subjects & dependent on that superior. Sovereign’s power is unlimited & indivisible.

Negative mark - That individual or body of individuals is not in a habit of obedience to a determinate human superior.

It is the union of the positive mark with the negative mark which renders that sovereign supreme and the society political and independent.

- If the generality of the population obey the commands, but this obedience is only rare or transient and not habitual, then the relationship (between sovereignty & subjection) is not established. E.g. Allied forces occupied France, 1815. Commands rare & transient – not sufficient to constitute sovereignty.

- Society in Anarchy (or in a state of nature) – Obedience not to one & the same superior.

- When superior habitually obeys command of a certain body then society not independent although it may be political. E.g. Vice Roy.

- International law

If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent. Or to that superior, the other members of the society are subject. When we say that society is independent, we really mean that the sovereign portion of it is.”

    1. Criticism of Austin’s Sovereignty Theory
                                                               i.      Dias à “sovereignty cannot be defined in terms of obedience”. E.g. cannot be said that habitual obedience of the judges established the sovereignty of the Crown in Parliament.
                                                              ii.      Negative mark of sovereignty is not so much the concern of municipal lawyers as of international lawyers.
                                                            iii.      Attribute of continuity of sovereignty – e.g. dissolution of Parliament.
                                                            iv.      Attribute of indivisibility – (India example)
                                                             v.      Illimitability – Can the sovereign limit itself. Debatable. (India example)
                                                            vi.      Law as a command of the sovereign.
                                                          vii.      International law – WTO DSU

    1. Sovereignty under Indian Legal Order/Constitution
                                                               i.      Limitability – basic structure- Kesavananda case
                                                              ii.      Indivisibility – ordinance – rules – administrative discretion.

    1. India: Quasi Federal Constitution
                                                               i.      Legislative power divided between States and Center
                                                              ii.      Executive, Legislative & Judicial Sovereignty
    1. Sovereignty under Ancient Hindu Law
                                                               i.      No concept of sovereignty
                                                              ii.      Lay with God was delegated to the King.
                                                            iii.      King could not make or unmake laws.
    1. Is Sovereignty essential in Modern State
                                                               i.      Dominant group within every independent political society whose will prevails.
                                                              ii.      Salmond agrees with Austin “It seems clear that every political society involves the presence of a supreme power.
                                                            iii.      Jenks challenged the notion of essentiality of sovereignty within the state – law as all pervading harmony that will regulate human existence without primitive assistance of organized force applied by the sovereignty.
    1. Austin’s Contribution
                                                               i.      Father of English jurisprudence.
                                                              ii.      Though inadequate in modern times
                                                            iii.      Helped removing confusion created by abstract theories about the scope & method of jurisprudence.
                                                            iv.      Prof Olivercona (one of his greatest critics) acknowledges him as the pioneer of modern positivist approach to law.
                                                             v.      Applied fully to English law – but no universal application.
                                                            vi.      Lead to many other theories e.g. Kelsen’s pure theory, Salmond & Gray. H.L.A Hart built his theory on criticism of Austin.

  1. Hart: Analytical School
    1. Law is a system of rules – rule is that which creates obligation & a standard to judge morality of people’s action (e.g. deviance) –Rules sprung from strong social pressure to impose stringent liabilities for offences -- Law is a system of social rules which acquire the character of legal rules – body of publicly ascertainable rules. Law equivalent to a legal system.
    2. The Idea of Obligation – rule accepted by people (internalized) and not habitually obeyed.  Agreed with Austin that theory of Law à coercive orders.
                                                               i.      Being obliged v/s Having an Obligation
1.       Being obliged – Handing over money to Gunman
2.       Having an obligation – Money to tax officer.
3.       Gave reasons for rejecting Austin viewpoint that fear & motives are not relevant to the question that he had an obligation.
a.       Austin neglected internal aspect of rules.
b.       If it were true that the statement that a person had an obligation meant that he was likely to suffer in the event of disobedience, it would be a contradiction to say that he had an obligation e.g. to report for the military service but that, owing to the fact that he had escaped from the jurisdiction, or bribed the police or the court, there was not the slightest chance of his being caught or made to suffer.
                                                              ii.      Rules Impose/Create Obligation – Rules are conceived & spoken of as imposing obligations when the general demand for conformity is insistent & the social pressure brought to bear upon those who deviate is great. The seriousness of social pressure behind the rules is the primary factor which determines whether the rules would give rise to obligations. Two other characteristics of obligation go naturally with this primary one.
1.       Firstly the rules supported by this serious pressure are thought important because they are believed to be necessary to the maintenance of social life. – Eg restriction of free use of violence & honesty.
2.       It is generally recognized that the conduct required by those rules may, while benefitting others conflict with what the person who owes the duty may wish to do.
    1. Internal & External Aspect of Rule
External Aspect
Internal Aspect
Descriptive pattern of behaviour.
Prescriptive patter of behaviour.
Merely an observer who does not accept the rules
Obeys law with a sense of obligation (not compulsion). Accepts & uses the rules as guides to conduct.
Description will be in terms of observable regularities of conduct, predictions, probabilities & signs.
Description will be in terms of rule dependent notions of obligations or duty.
For such an observer, deviations by a member of the group from normal conduct will be a sign that hostile reaction is likely to follow & nothing more. (No participation in system itself i.e. detached observer) e.g. traffic red light – natural sign others will stop.
View their own regular behaviour (not of others) & a process of internalization (a process of mind where no compulsion is involved). E.g. traffic red light – I ought to stop,
Only concerned with rules because they judge the unpleasant consequences that are likely to follow any violation.
Violation of rule is not merely a prediction that a hostile reaction will follow but a reason for hostility.
According to Hart the predictive theory (Austin) failed because it excluded the internal aspect of the rules & dealt with external aspect of rules.

    1. Primary & Secondary Rules
                                                               i.      Primary rules – Require or forbid certain actions. (Those imposing duties)
                                                              ii.      Secondary rules – Instructions for adding or altering primary rules.
    1. Deficiencies of a Simple Social Structure (Weakness of primary rules)
                                                               i.      Uncertainty - First, if doubts arise as to the actual nature of these rules, there would be no authority to turn to, to settle those doubts. Thus, the rules would always be subject to an element of uncertainty.
                                                              ii.      Static - Second, “there will be no means, in such a society, of deliberately adapting the rules to changing circumstances, either by eliminating old rules or introducing new ones.” Thus, the second defect of these primary rules would be that they are static.
                                                            iii.      Inefficiency - Third, these primary rules would inevitably be applied inefficiently, because there is no one who can authoritatively discern if a rule has been broken. There is no way to diffuse the responsibility for enforcing them. For this reason, the third defect in these primary rules would be that they are inefficient.

    1. Remedies: Union of Primary & Secondary Rules – remedy lies in supplementing the primary rules of obligation with secondary rules.
                                                               i.      Rules of recognition - The secondary rules that remedy uncertainty in primary rules are called rules of recognition. These rules describe the means by which rules become authoritative. In primitive societies, Hart explains, these may simply be that the rules are listed in a book, or a stone tablet. “In a developed legal system,” he continued, “This may be the fact of their having been enacted by a specific body, or their long customary practice, or their relation to judicial decisions.”
                                                              ii.      Rules of change - The secondary rules that remedy the static quality of primary rules are called rules of change. “The simplest form of such a rule,” said Hart “is that which empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group … and to eliminate old rules.” These rules are closely connected with the first set of secondary rules, because the changes made in accordance with the rules of change must be authoritative according to the rules of recognition.
                                                            iii.      Rules of adjudication - The secondary rules which remedy the inefficiency in primary rules are called rules of adjudication. These rules empower “individuals to make authoritative determinations of the question whether, on a particular occasion, a primary rule has been broken.” The reason these are secondary rules is because they don’t “impose duties” as primary rules do, but instead “confer judicial powers and a special status on judicial declarations about the breach of obligations.”

    1. Foundations of a Legal System: Rules of recognition & legal validity – Rules of recognition are rules of a higher order i.e. transfer a static set of unrelated rules into a unified dynamic legal system capable of adoption to social change. Complexities of rules of recognition in modern legal system i.e. multiple criteria for identifying law – written Constitution, enactment, judicial precedents.
Relative subordination of one to another e.g. customs subordinate to enactments
Day-to day life – rules of recognition very seldom expressed (e.g. Art 41 CoI ) –
For most part rules of recognition are unstated but its existence is shown in the way in which particular rules are identified.

    1. Validity and Efficacy of Rules - The validity of a legal system is independent from its efficacy. A completely ineffective rule may be a valid one - as long as it emanates from the rule of recognition. But to be a valid rule, the legal system of which the rule is a component must, as a whole, be effective.

    1. Ultimate Rule of Recognition - Because the rule of recognition is a social rule, it is capable of being an ultimate rule. It is ultimate in the sense that it does not exist in virtue of any other rule. Its existence is secured simply because of its acceptance and practice. The primary rules of the legal system, by contrast, are not ultimate because they exist in virtue of the rule of recognition. The rule of recognition validates, but is not itself validated.
    2. Existence of a Legal System: Necessary Conditions
According to Hart, a legal system exists for a group G just in case (1) the bulk of G obeys the primary rules and (2) officials of G accept the secondary rules of recognition, change and adjudication from the internal point of view and follow them in most cases.42 Thus, even if it turned out that most of the citizens of Rhode Island obey most of the rules of Roman law, it would not be true that Roman law still exists today, given that the Rhode Island State officials would not be following the secondary rules of the (extinct) Roman legal system.

“There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials.

    1. Evaluation of Hart’s Theory
                                                               i.      Hart’s Criticism of Austin’s Command Theory
1.       Rule v/s Command – Rules are concerned not with what happens but with but with what ought to be done, they are imperative or prescriptive, rather than indicative or descriptive. This characteristic they share with commands. But command à one unique performance whereas rule à demands repeated activity.
2.       Rule v/s Habit – Rule à systematic quality. Compliance with a rule differs from mere acting out of habit or a mere regular patter of behaviour.
3.       Idea of command fails to explain continuity of law.
4.       Law & rules are concerned with obligation rather than coercion. Thus even a person who cannot be compelled to obey the law is still reckoned as having an obligation to obey. Law still remains as a standard demanding obedience.
5.       Hart à variety of laws. Austin à failed to take notion of rights. E.g. Art 32 CoI.
6.       Legal system may well contain rules which cannot be attributed directly or indirectly to any act by the sovereign. The rules identifying the sovereign are a case in point.
                                                              ii.      Criticism of Hart’s Theory
1.       Distinction b/w rules creating duties & rules creating powers.
2.       Distinction b/w legal & pre legal state of affairs.
3.       Ignorance of sociological foundations of a legal system.
4.       Oversimplification: inner aspect of law
5.       Nature of ultimate rule of recognition.
6.       Law is simply not a system of rule  -
7.       Exclusion of morality from law.- failed to separate law from morals.
8.       International law – no basic rule providing general criteria of validity.

Finnis argues that when Hart uses the idea of primary and secondary rules to distinguish a developed legal system from a primitive legal system, he is using a philosophical tool called “the central case” (an idea bearing close resemblance to the Weberian ideal type). The central case is one which, within a certain paradigm, best fulfills the characteristics of that paradigm. Finnis then argues that Hart should not have stopped at the level of the existence of the internal aspect of rules as a means of differentiating the central case from other, peripheral cases. He should have further differentiated the notion of the internal aspect itself. What this means is that there are many reasons or motivations behind people viewing rules as standards (using the internal point of view), including self-interest, a detached interest in the well-being of others etc. Finnis argues that all these are “watered-down” notions of the internal aspect of rules: the central case is the viewpoint of the moral man, the one who views the law as a moral standard.

Raz argues that Hart’s dichotomy between internal and external aspects of rules commits him to a position where either one must be a detached observer commenting upon the efficacy of the legal system, or an internal actor who is endorsing the law’s moral authority. According to Raz, however, there is a third category of statements, that of lawyers, or law teachers explaining the law to others. This allows an internal statement to be made without espousing it as a normative standard; for instance, I may be a vehement opponent of capital punishment, but within the framework of my country’s legal system, I may end up writing a legal opinion with the statement, “Given the law on this point, he ought to be hanged.” The use of the word ought in this sentence does not commit me to an endorsement of the moral content of the rule itself.

    1. Hart’s Contribution – Hart’s picture of law is incomplete in certain respects. Less definitive and suggestive than that unfolded by Kelsen’s conception. Hart himself cautions that union of primary & secondary rules explains many aspects of law but this cannot by itself illuminate every problem. However, his approach is important for its emphasis on the socially constructive function of law.

  1. Hans Kelsen: Analytical School

  1. Roscoe Pound: (1870 – 1964) father of sociological jurisprudence in AmericaSociological School (also functional school) – Main trend  in the 20th century western legal thought is sociological jurisprudence. 19th Century positivist jurisprudence regarded law as a set of rules enforced by the State. This was a correct view of law, since law has a normative structure but the defect in it was that it refused to consider the social and economic circumstances which gave rise to these rules.  Sociological jurisprudence arose as a reaction to positivism and its main contribution was broadening the scope of jurisprudence. According to it, law is not an isolated phenomenon but is part of the social reality.
    1. The task of law is social engineering – harmonize these interests so as to satisfy the maximum of wants and eliminate friction and waste. By Social engineering Pound means balance of interests in society. Thus law is a means of social control. Example polluting factory – environmental interests v labour interests, jobs, residents, etc. Jurist à study(should acc to Pound) actual social effects of legal institutions & legal doctrines, study the means of making legal rules effective, sociological study in preparation of law-making, study of judicial method, etc. Thus a jurist must prepare an inventory of social investigation.
    2. Interests as the main subject matter of law – Duty of law to make ‘valuation of interests’, in other words ‘to make them a selection of socially most valuable objectives and to secure them’. Prof Allen describes Pound’s approach as Experiminetal Jurisprudence.
Pound defined interests as claims or wants or desires which men assert de facto, about which the law must do something if organised societies are to endure. He classified the interests under three heads: Individual, Public, Social.
                                                               i.      Individual Interests
1.       Personality:-  This includes interests in (a) the physical person, (b) freedom of will, (c)honour and reputation, (d) privacy, and (e) belief and opinion.
2.       Domestic Relations:- It is important to distinguish between the interest of individuals in domestic relationships and that of society in such institutions as family and marriage. Individual interests include those of (a) parents, (b) children, (c) husbands, and (d) wives.
3.       Interest of Substance:- This includes interests of (a) property, (b) freedom of industry and contract, (c) promised advantages, (d) advantageous relations with others, (e) freedom of association, and (f) continuity of employment.
                                                              ii.      Public Interests:- demands of individuals from the stand point of political life.
1.       Interests of the State as a Juristic Person
2.       Interests of the State as a Guardian of Social Interests
In India public interest is synonymous with social interest.
                                                            iii.      Social Interests
1.       Social Interests in the general security: - ‘The claim or want or demand, asserted in title of social life in civilized society and through the social group, to be secure against those forms of action and courses of conduct which threaten its existence.’ This embraces those branches of the law which relate to (a) general safety, (b) general health, (c) peace and order, (d) security of acquisitions, and (e) security of transactions.
2.       Social Interests in the security of social institutions: The claim or want or demand involved in life in civilised society that its fundamental institutions be secure from those forms of action and courses of conduct which threaten their existence or impair their efficient functioning.’ This comprises (a) domestic institutions, (b) religious institutions, (c) political institutions, and (d) economic institutions. Divorce legislation might be adduced as an example of the conflict between the social interest in the security of the institution of the marriage and the individual interests of the unhappy spouses. Pound pointed out that the law has at times attached disabilities to the children of illegitimate and adulterous unions with the object of preserving the sanctity of marriage. The example is not altogether fortunate, since the extent to which such vicarious suffering has deterred would-be offenders is minimal. Then again, there is tension between the individual interest in religious freedom and the social interest, at any rate in some countries, in preserving the dominance of an established church.
3.       Social Interests in the general morals – The claim or want or demand involved in social life in civilised society to be secured against acts or courses of conduct offensive to the moral sentiments of the general body of individuals therein for the time being.’ This conveys a variety of laws, for example, those dealing with prostitution, drunkenness and gambling.
4.       Social Interests in the conservation of social resources: ‘The claim or want or demand involved in social life in civilised society that the goods of existence shall not be wasted; that where all human wants may not be satisfied, in view of infinite individual desires and limited natural means of satisfying them, the latter may be made to go as far as possible; and, to that end, the acts or courses of conduct which tend needlessly to impair these goods shall be restrained.’ Thus this social interest clashes to some extent with the individual interest in dealing with one’s own property as one pleases. It covers (a) conservation of natural resources, and (b) protection and training of dependants and defectives, i.e. conservation of human resources.
5.       Social Interests in general progress – 'The claim or want or demand involved in social life in civilised society that the goods of  existence shall not be wasted; that where all human wants may not be satisfied, in view of infinite individual desires and limited natural means of satisfying them, the latter be made to go as far as possible; and, to that end, the acts or courses of conduct which tend needlessly to impair these goods shall be restrained.' This has three aspects, (a) Economic progress, which covers (i) freedom of use and sale of property, (ii) free trade, (iii) free industry, and (iv) encouragement of invention by the grant of patents. Now, (i) and (ii) are less marked today than they used to be. Indeed, it might even be said that progress has been achieved by a reversal of them. The policy of free trade, which has as its corollary the disapproval of monopolies, might appear to have been indorsed by legislation against restrictive practices. While this is true of private monopolies, it should be noted that there is an ever-growing demand for monopolies in the state or state-controlled institutions. The encouragement of invention by the grant of patents, too, is somewhat suspect, for it opens the possibility of acquiring patents in order to suppress inventions. On the whole, therefore, item (a) is the least happy The interest in general progress also includes (b) political progress, which covers (i) free speech, and (ii) free associations; and (c) cultural progress, which covers (i) free science, (ii) free letters, (iii) free arts, (iv) promotion of education and learning, and (v) aesthetics..
6.       Social Interests in individual life – ‘The claim or want or demand involved in social life in civilised society that each individual be able to live a human life therein according to the standards of the society.’ It involves (a) self-assertion, (b) opportunity, and (c) conditions of life..

To question how to evaluate the conflicting interests in due order of priority Pound’s answer is that every society has certain basic assumptions upon which its ordering rests. These assumptions are the Jural postulates of the legal system as embodying its fundamental purpose:-
1.       In civilized society men must be able to assume that others will commit no intentional aggressions upon them.
2.       In civilized society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use, what they have created by their own labour and what they have acquired under the existing social & economic circumstances.
3.       In civilized society men must be able to assume that those with whom they deal in the general intercourse of society will act in good faith.
4.       In civilized society men must be able to assume that those who engage in some course of conduct will act with due care not to cast an unreasonable risk of injury upon others.
5.       In civilized society men must be able to assume that others who maintain things or employ agencies, harmless in there sphere of their use but harmful in their normal action elsewhere, will refrain them or keep them within their proper bounds.
Pound also addressed to himself to the question of how in any given case the interests involved are to be balanced or weighed. Interets should be weighed on the same plane as it were i.e. one cannot balance an individual interest against a social interest.

While not denying that dispensing justice according to fixed rules has some advantages e.g. certainty and uniformity, Pound suggests that in order to harmonize conflicting interests in modern dynamic society the judge will often have to determine justice without law(i.e. precedents or prescribed rules)
    1. Critical analysis of Pound’s Theory – mainly emphasizes functional aspect of law – ignores nature & character of law. Imp to note that Pound is criticized for his classification paradigm & not for the basic issues regarding satisfaction of human needs.
                                                               i.      Pound is criticized for suggesting application of social "engineering" using much more a scientific word to solve social conflicts. It suggests mechanical application of the theory on social desires and interest which keep on changing from time to time.

                                                              ii.      Pound defined interest as, "claims or wants or desires which men assert de-facto about which the law must do something if organised society is to endure." Pound considers interest defector in­spires legislation, but this is not true always sometime law appears first and then interest enshrined protected therein is demanded.

                                                            iii.      Pounds Theory, ask for maximum gain with least friction and least waste "maximum satisfac­tion of human wants or expectations with-least sacrifice." Somewhere this theory gives prime impor­tance to interest of public at large over individual's interest and if interpreted strictly then may result in eliminating individual freedom.

                                                            iv.      Roscoe Pound advocates 'judicial activism' and expects that judge should themselves evolve yardstick for valuating interest involved in the case. Thus judiciary is given very wide power and some­time may not be able to find out effective yardstick because of its own constraints. By the available pleadings only one can not do "social engineering" unless some framework is done by legislators.

                                                             v.      Pound says one of the prime duties of the law is "to make a selection of socially most valuable objectives and to secure them." Value of interest may change from to time; it's hard to prepare any strict and efficient preference chart of various interests.
                                                                        v.
                                                            vi.      According to pound judges should see basic assumptions of society on which it rest, to frame preference chart of various interest. Now these days basic assumption of society cannot provide golden scale in itself. Basic assumption of society at large may be declared valueless if adjusted otherwise by intellectual mind, on various other considerations, which may not always be widely appreciated.

                                                          vii.      To adjust and reconcile interest pound suggest jural postulates which are ideal of society and which help in turning law as an instrument in social development. Jural postulates are based on basic assumption of western society, these basic assumption are not universal in nature and sometime legislators are required to nourish the interest which are not supported by basic assumption of the then society.
    1. Pound’s Contribution – More than anyone has helped to bring home the vital connection between laws, their administration & the life of society. He demonstrated the responsible & creative task of lawyers, especially the judges. His emphasis on studying the actual working of legal rules in the society, the importance of social research for good law-making and pointing out the great constructive function which the law is to perform (i.e. to protect interests) are very valuable to jurisprudence.

    1. Comparison between Historical, Analytical and Sociological School:

Analytical School
The chief exponent of Analytical school of jurisprudence was the English Jurist, John Austin. It is also called positivist school of jurisprudence because it considers law as it is and not as it ought to be. This viewpoint is based on two principles.
- Law is the command of the sovereign (that is law is made only by the sovereign authority of the stale)
- Force is the essence of law i.e. what cannot be enforced is not a law.
This theory was bitterly criticized in 19th century by the Pluralists and the sociological Jurists. Despite its shortcomings this theory has explained many too much about law. The Analytical school of jurisprudence says that laws must be made by the state in the interest of general welfare.

Historical School
Historical school of jurisprudence believes that law is an outcome of a long historical development of the society because it starts in the social custom, conventions religious principles and economic needs and relations of the people. According to this theory law is the product of the forces and influence of the past.

This theory has some defects. Being conservative in its outlook and rely on past, however its merit is that it shows that law must change with the changes in the society. It clearly says if a law is not according to the will of the people, it will never be obeyed. In this way supplemented the analytical school of law.

Sociological School
According to the supporters of sociological school of jurisprudence law has its source and sanction in social needs and necessity. They say men can fulfill all his wishes and desire only in a society which ails unity based on social rules. Every individual has to observe these rules because he understands that only by following these rules he can realize all his needs. The supporters of sociological school are of the view that the state does not create the laws but only formulates, so that social unity is preserved and social needs satisfy. So laws do not came from the state but from the society. According to them the sanction behind law is not the force of the state but the awareness on the part of the individual that his disobedience will meet with the disapproval of the society. In other words the members of the society obey laws because they serve their purposes. Some of the supporters say that law is sovereign and reject the sovereignty of the state.

These are the three theories of law. None of them fully explains the nature of law, yet each of them contains some truth. In some ways if all the three theories are put together, we will have the correct view of law. We all know law is a universal rule. It must be applied to all the people equally. The application must also have a sanction behind it. But we must remember that laws are to serve social needs and necessities.

  1. Savigny & Maine (Historical School)
    1. Rise of the Historical School
                                                               i.      Reaction against the unhistorical assumptions of the natural law theorists
                                                              ii.      Reaction against rationalism – reason without reference to past/existing circumstances à French revolution à disappointment instead of fulfilment of dreams à new classes in society.
                                                            iii.      French conquests under Napoleon aroused the nationalism of Europe.
                                                            iv.      Influence of certain early pioneers in new way of thinking: Montesquieu à law shaped by geographical & historical considerations. Burke à law is the product of gradual & organic process à emphasized tradition as a guide to social change.
                                                             v.      Codification on the controversy in Germany – Thibaut’s proposals provided an immediate stimulus for the rise of the historical school. Proposed that a code should be framed enunciating legal principles which would not require any modification and would be all comprehensive, applicable to all places and times. Law should be made by legislative enactment. Savigny strongly opposed these principles & laid down the propositions which became the thesis of the historical school.  

    1. Savigny -  (1779 – 1861) emphasized that the muddled and outmoded nature of a legal system was usually due to a failure to understand its history & evolution. Essential prerequisite to the reform of German law was for him a deep knowledge of its history. Essay ‘Vom Beruf’ (On the Vocation) (1814).
                                                               i.      Source of Law: Volksgeist - The concept of the Volksgeist, or “the spirit of the Volk,” was developed by German philosopher Johann Gottfried von Herder (1744–1803). The application of Herder’s theory to law was made by German jurist and legal historian Friedrich Karl von Savigny (1779–1861).
1.       Law a natural manifestation of popular life & by no means product of man’s free will. There is but one force and power in people and it underlies all these institutions.
2.       Law, language, customs & governments have no separate existence. Law like language develops with the life of the people. “Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality.”
3.       Law à unconscious & organic growth
4.       Law à found & not made.
5.       Opposed codification à pointed to defects of contemporary codes à might introduce new & un-adaptable provisions. à Could never cater exhaustively for all problems that could arise in the future à would highlight the loopholes & weaknesses of the law & so encourage evasion.

                                                              ii.      Criticism of Savigny’s Theory
1.       Inconsistency in the theory à emphasized national character of law & yet advocated acceptance of Roman law for Germany.
2.       Volksgeist not the exclusive source of law – Many technical legal rules which never existed in nor has any connection with people’s consciousness. Sometimes alien legal system successfully transplanted in another country. E.g. English law.
3.       Customs not always based on popular consciousness – Contradictory customs existing in different parts of the same country. Many customs based on imitations. Originate for convenience of a powerful minority e.g. Slavery.
4.       Ignored other factors that influence law –Many rules in modern times are a result of conscious effort e.g. law relating to trade unions & industry is an outcome of a long & violent struggle between conflicting interests within a society.
5.       Limitations of ‘Volksgeist’- Volksgeist manifests itself only in a few branches of law (e.g. family law) & even in these by way of modifying & adapting any innovations that may be introduced.
6.       Juristic pessimism – Pound said that Savigny encouraged ‘Juristic pessimism’. Savigny’s contention was that legislation should conform to existing traditional law, or it is doomed. E.g. no legal system would like to make compromises with abuses only because people are accustomed to it. (Child Marriage Restraint laws in India. Etc)
                                                            iii.      Savigny’s Contribution – Considered by many to be the greatest jurist of the 19th century. Great truth about Volksgeist that nations legal system is greatly influenced by the culture & character of the people. After Savigny that the value of the historical school was truly understood.
                                                            iv.      Applicability of Savigny’s Theory to India (Limited)
1.       Federal constitution – Union list, State list – Emergency à unitary character. Preamble à Sovereign, Socialist, Secular, Democratic Republic” i.e. Power in the hands of the people.
2.       Source of Indian Constitution – borrowed from various parts of the world – accepted by the people of India.
3.       Common law in India – law of torts etc, Hindu law never recognized any form of wills but British law introduced this principle into Hindu law.
4.       Deliberate legislation making – reservation, uniform civil code, etc. Conscious effort – Dowry prohibition act, Sati abolition, Untouchability Act, etc.
5.       Judicial Activism – Savigny ignored the creative function of the judges i.e. judicial precedents.

    1. Maine (1822 – 1888) (comparative & anthropological approaches to the study of law). More balanced view of history than is found in Savigny. He brought to bear a scientific urge to unify, classify & generalise the evolution of different legal orders. Unlike Savigny Maine favoured legislation & codification. 4 stages of development of law (as per Maine) (1) Commands made my ruler believed to be acting under divine inspiration (2) Commands crystallize into customary law (iii) Knowledge & administration of customs goes into hands of a minority, usually of a religious nature e.g. priests (4) Codification.
                                                               i.      Static & Progressive societies – Societies which do not progress beyond the 4th stage are static societies. Societies which go on developing their law are progressive societies. They develop their law by three methods:
1.       Legal fiction - Legal Fiction signify any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. Legal Fictions do their work in the infancy of society but should be abandoned in a society because they make law more difficult to understand & to harmonize legal order.
2.       Equity - Equity means “any body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles.”
3.       Legislation - Legislation, the enactments of a legislature which, whether it takes the form of an autocratic prince or of a parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating instrumentalities.

In early societies (both static & progressive) the legal condition of the individual is determined by status i.e. his claims, duties etc are determined by law. (March of progressive societies à disintegration of status and determination of legal condition by free negotiation on his part. “The movement of progressive societies has hitherto been a movement from status to contract”.

Status à according to Maine a fixed condition à found without reference to his will and of which he cannot divest himself by his own efforts. Indicative of social order in which the group, not the individual is the primary unit of social life.

With progression of civilization, this condition gradually gives way to a social system based on contract.

Maine’s theory correct on a general sense. Does not apply to certain laws in India like inheritance and personal laws in India, which is based always on status and not on contract.  Pollock à theory only limited to laws of property because personal laws like marriage, minor;s capacity to contract etc are still matters of status & not contract.

Maine’s theory holds good as long as capitalism has stronghold. In totalitarian states freedom of contract is hardly allowed and Maine’s theory does not apply there.

                                                              ii.      Maine’s Contribution – Chief contribution to legal theory are his analysis of the methods of legal changes and his ‘Status to Contract’ generalisation. In most European political societies, legal change to meet emergent social needs became difficult because of a superstitious reverence for traditional rules. Maine’s analysis of law provided a solution for such problems. The most conspicuous feature of Maine’s work is the breadth & brilliance of his generalisation made on basis of a comparative estimate of legal institutions in various societies at different levels of historic development. He made significant contribution to law by indicating that there had been a parallel and alike growth & development of legal institutions & law in the societies of East & West up to a certain stage.

    1. Difference between Historical and Analytical School

Analytical School
Historical School
1
Confines itself to mature legal systems
Concentrates on primitive legal institutions.
2
Law: Command of the sovereign.
Law is found & not made. It is the rule whereby the invisible borderline is fixed within which the individual and his activities obtain a secure & full space.
3
If there is no sovereign, there can be no law.
Law is antecedents to the State & exists even before a State organisation comes into being.
4
The hallmark of law is its enforcement by the sovereign.
Law is independent of political authority & its enforcement.
5
Law rests upon the force of politically organised society.
Law rests upon the social pressure behind the rules of conduct which it enjoins.
6
The typical law is statute.
The typical law is custom.
7
Custom is not law until its validity has not been established by a judicial decision or by an Act of legislature.
Custom is law by itself. It does not require State recognition to become a law.

    1. Historical Approach: Conclusion –
                                                               i.      Historical factors not as important as the factors of today. It is suggested that Historical approaches would find their appropriate setting as part of a general sociological approach.
                                                              ii.      Another weakness is the mystical, nationalistic flavour which it imparted to theories about law.
                                                            iii.      Again historical interpretation can so easily be made to lend its support to the particular ideology of the interpreter. Savigny’s theory evolved out of his strongly conservative, anti-revolutionary, civil law bias.
                                                            iv.      Nevertheless the historical school provided the great stimulus to the historical study of law & ingrained a sense of historical perspective in the outlook of lawyers. It has demonstrated the dangers of over-hasty legislative experiment and has taught the cautionary lesson that development should flow within the channels of tradition. It has demonstrated the connection between some parts of law and cultural evolution and the need to look into the past sometimes in order to obtain a full understanding of law as it is at present.

  1. Speluncean Explorers’ Case
    1. Facts –
                                                               i.      Five cave explorers got trapped underground, whilst on an expedition, following the collapse of a cave wall. Any scope of rescue was at least 10 days away and the last radio transmission received by them was from a doctor (following which the radio; their only means of communicating with the outside world ran out of battery), conveyed to them that the only manner in which they could survive till the arrival of the rescue team would be if they were to consume one of their own, given that they had run out of food and water supplies.
                                                              ii.      One of the explorers, Whetmore, suggested that they throw dice to determine (i.e. random probability) who amongst them should be the sacrifice. This was held as reasonable by everyone after which, they all agreed to follow through with the plan of action. However, just before the dice was thrown, Whetmore backed out of the agreement. He was outvoted, and a dice was thrown on his behalf. Whetmore lost.
                                                            iii.      About ten members of the rescue team also died while trying to remove the rocks from the opening of the cave and when they finally reached the explorers, they found that Whetmore had been killed and eaten.
                                                            iv.      The remaining explorers were put on trial for murder in the Supreme Court under the jurisdictions statute, "Whoever shall wilfully take the life of another shall be punished by death."

    1. Law:- “Whosoever shall wilfully take the life of another shall be punished by death” – N.E.S.A (N.S). Statute permits no exception applicable to this case.

    1. Truepenny J. (legalist/political) – Positive School – convicts – encourages clemency by the executive.

    1. Foster J. (Acquits – Rationalist – Natural & Realist School)
                                                               i.      Case governed not by positive law but by natural law of nature
                                                              ii.      Interpretation according to purpose and not according to words
                                                            iii.      Common wealth v Staymore – car parked for more than two hours – protest/demonstration – no part – no anticipation - held that a person cannot be held guilty for anything which was beyond his control.

    1. Tatting J. (Recuses – Union Carbide Case – Kania J. recuses – held shares in Co)
                                                               i.      Court of law can’t be transformed into a court of natural law
                                                              ii.      Purpose of criminal law is not only to deter, but also to retribute
1.       Commonwealth v Parry
2.       Commonwealth v Scape - held that the one of the objects of law is also to provide outlet for retribution.
3.       Commonwealth v Makeover - It has also been said that its object is the rehabilitation of the wrongdoer
4.       Commonwealth v Valjean – Charged – Larceny – loaf of bread theft – defence à starvation à Convicted – held à necessity not a defence to theft.

    1. Keen J. (Convicts – Legalist – Positive School )
                                                               i.      Law & Morals
                                                              ii.      No scope for judicial activism
                                                            iii.      Hard cases make bad law but this is not necessarily always so.
    1. Handy J. (Acquits - Populist – Sociological School)
                                                               i.      Judges must take public opinion into account
    1. Decision

    1. Rati Ram v Union of India – Morality does not have a well defined zone and should be regarded as separate from law in deciding cases.
    2. US v Holmes – Throwing people from life boat case – Necessity not a defence to murder – charge reduced to manslaughter – 6 months in prison & $20 fine - .
    3. Queen v Dudley & Stephens 1884
                                                               i.      Facts. The defendants, Mr. Brooks and the victim Mr. Parker were English seamen. The group was cast away in a storm on the high seas and was compelled to put into an open boat that had no supply of food or water. After the group had been without food for seven days and without water for five days, the Defendants spoke to Mr. Brooks about sacrificing the victim Mr. Parker to save the rest. Mr. Brooks dissented and the victim was not consulted. Mr. Dudley suggested that if no vessel was in sight the next morning, they would kill the victim. No vessel appeared the next day, so Mr. Dudley with the assent of Mr. Stephens killed the victim. The three remaining castaways fed upon the victim Mr. Parker for four days at which time a passing vessel rescued them.
                                                              ii.      Issue. Does the defence of necessity permit the killing of one person to save others?
                                                            iii.      Held. No. At the time of this case the doctrine of necessity was still largely unexplored. Much of the prevailing authority at the time spoke of necessity in terms of what is now called self-defense, i.e. taking another’s life to safeguard one’s own. Lord Bacon provided some authority for the existence of the defense of necessity to lesser crimes. For example, a hungry man is not guilty of larceny for stealing food. However, the Queen’s Bench acknowledged that no court has ever accepted necessity as a defense to murder and for good reason. Permitting such a defense to be asserted raises poignant questions such as how does one measure the comparative values of lives and who decides such things. Further, specific to the present case, Lord Coleridge asks, “Was it more necessary to kill [Parker] than one of the grown men?” While this murder was arguably not “devilish” and even though the men probably would not have survived otherwise, Lord Coleridge held that there is never any absolute or unqualified necessity to preserve one’s own life. Once such a defense is allowed, there is no telling what atrocious crimes may be justified by the excuse of necessity.