Q.1 What is Jurisprudence and explain its nature and scope.

The study of jurisprudence started with the Romans.The term Jurisprudence is derived from Latin word
'Jurisprudentia' which means either "Knowledge of Law" or "Skill of law". The word "juris" means law
and prudentia mean knowledge, science or skill.  Thus Jurisprudence signifies knowledge or science of
law and its application. In this sense, Jurisprudence covers the whole body of legal principles in the
world.

1) Jurisprudence: Meaning:

Jurisprudence in its widest sense means. " knowledge of the law" but in its limited sense evolution and
explanation of general principles upon which actual rules of law are based. It is mainly concerned with
the rules of external conduct which people are compelled to obey. Therefore sometimes it is said that
jurisprudence is that Jurisprudence is that science which gives us knowledge about "law" but the term
law we always use in its abstract sense i.e. not in the sense of concrete statutes but in the sense of
principles underlying law. Thus, for example, there are various branches of law existing in the modern
legal system such as contract, crime, trust, properties, companies, labour etc. In jurisprudence, we have
to study the basic principles of each of these branches and we are not concerned with the detailed rules
of these laws. We definitely study these laws in detail when we study those branches of law separately.
Jurisprudence examines the general principles of law, therefore, Jurisprudence may be considered to be
the study and systematic arrangements of the general principles of law.

2) Definition of Jurisprudence:

         It is very difficult to define term 'jurisprudence', However, several attempts were made in this
context to define the term.  Some of the definitions of the term "jurisprudence" given by various
eminent jurists as under -

I) Austin :

                     Austin was the first jurist to make jurisprudence as a science. He defines 'jurisprudence' as
"the philosophy of positive law." He opines that the appropriate subject to jurisprudence is a positive
law i.e. law as it is (existing law). In other words, jurisprudence is not a moral philosophy but it is a
scientific and systematic study of the existing, actual and positive law has distinguished from natural,
ideal or moral law.

              Austin divides jurisprudence into two classes. Viz 'general Jurisprudence and Particular
Jurisprudence. According to him 'General Jurisprudence is the philosophy of positive law. On the other
hand 'particular jurisprudence is the science of any such system of positive law as now actually obtains
or once actually obtained in a specifically determined nation or specifically determined nations.
 Criticism: 

             Austin's definition criticised by Salmond and Holland and other Jurists on the ground that it is not
proper and appropriate to classify as the general Jurisprudence and Particular Jurisprudence.

II) Holland: 

            An English Jurist Sir Thomas Erskine Holland defines, Jurisprudence as, " Jurisprudence is the
formal science of positive law'"  According to him jurisprudence should only concern itself with the basic
principles of concepts underlying in any natural system of law.

Nature of Jurisprudence
Jurisprudence analyses conceptions of law. It also seeks to figure out what the basic concepts of law are.
It not only analyses the already defined laws but also analyses and sets the foundation for new rules. It
is the product of Jurists ‘and Philosophers’ thought. They have the right to view, analyze and comment
about the legal system. As such, it can be viewed as an analytical exercise that does not have immediate
practical application. It sets the tone for legislative change.

Jurisprudence binds laws to other fields, such as psychology, politics, economics etc. The scale
constantly shifts. It is not derived from any legislative act or state assembly. Lord Tennyson calls it,
Lawless subject of law. Various concepts like Origin of law, need of the law, the utility of the law are
studied by various Jurists. This study of concepts of law is called Jurisprudence.

Jurisprudence offers answers to multidimensional legal questions. It helps in overall growth of society. It
enhances the capacity of the lawyer to justify rational reasoning. It blesses or hastens a lawyer’s skill
with a sense of philosophy, ethics and morality which helps them move forward in their discipline. There
are also occasions when there are loopholes in the rules; Judges choose the path of Jurisprudence at
those periods. Jurisprudence is the theoretical foundation of the law, and without it; it is not possible to
enforce the law in effect.

Schools of Jurisprudence

1) Analytical or Imperative School (Positivism)

The analytical school is constructive ‘in its approach to social legal issues. It focuses on things as they are
and not what they should be. The positivists’ main concern is the statute, which is currently
considered positum, and not the ideal Law. Legislation, judicial precedents and common law are the
most relevant legal sources.

Analytical school’s motto is “Ubi civitas ibI lex” i.e. “where there is State, there will be no anarchy”; State
is a necessary evil.

The main proponents of this school are: Bentham, Holland, Austin, Salmond, etc:
a) Bentham’s concept of Law:-

Bentham (1748-1832), the founder of Positivism, should be considered the father of analytical

positivism, and not Austin, as is generally assumed (Austin owes much to Bentham, in fact). He was a
codified law (Legislation) fighter. The purpose of Bentham’s work was to ensure the indispensable
implementation of a civil code.

Bentham differentiated expository jurisprudence from censorial jurisprudence (i.e., what the law should

be). His definition of law is imperative, i.e. law is the assembly of signs, statements of will conceived or
embraced in a state by a sovereign.

According to him, the role of law must be to achieve these ends, i.e. providing food, creating wealth,
fostering equality, and preserving security. Bentham’s philosophy of hedonism or pain and satisfaction
principle has been questioned on the basis that suffering and pain alone cannot be the only measure of
the law’s adequacy.

b) Austinian Concept of Law:

John Austin (1790-1859) was a professor at the University of London. He applied empirical method: Law
should be carefully examined and evaluated, and the underlying theory should be discovered and his
area of analysis limited only to the Positive Law (Jus positivism).

Law, so-called simply and strictly law, set by political superiors to inferiors. Thus, the school he founded
is called by different names, logical, positivistic and analytical positivism. Austin is believed to be the
founder of English jurisprudence.

Austin defined law as a rule set for an intelligent being’s guidance by an intelligent being having power
over him. According to him, so-called proper law includes: law of God, laws of man and rules of positive
nature.

According to him every rule, properly named, must have three elements, command, sanction and
sovereign elements. According to him, law is a sovereign’s order, which mandates his subjects to do or
refrain from such actions. If the order is not obeyed, an implicit threat of a punishment occurs.

c) Hart’s Concept of Law:

Professor Hart (1907) can be regarded as the leading representative of British positivism in the present
day. He wrote an important book “The Law’s Definition”, questioning the theory of Austin. According to
Hart, Law consists of laws that are broad-based and non-optional in nature, but at the same time
appropriate for formalization, regulation and adjudication. He said law is a set of social rules that acquire
the character of legal laws (laws arising from social pressure). Law is a set of laws which can be publicly
ascertained. In Hart’s opinion, law is analogous to a legal structure.

According to Hart, there are two types of rules where the primary rule establishes norms of conduct or
imposes duties (i.e. international law), while the secondary rule is the rule under which the primary rules
may be created, added, omitted or changed. The secondary rules are public or private (e.g. Laws,
Constitution) rules which impart power. From these the rules of recognition are derived and provide
authoritative criteria for the identification of primary rules of obligation.

2) Philosophical school or Natural law school

The school of philosophy or ethics is concerned primarily with the relationship of law to certain
principles the law is intended to achieve. It seeks to examine the reason for which it has passed a
specific law. It has no historical or analytical substance to it. This school’s most notable jurists
are Grotius (1583-1645), Immanuel Kant (1724-1804), and Hegel (1770-1831).These jurists do not
recognize law either as a ruler’s arbitrary order, or as the development of historical necessity. The law is
for them the product of human reason and its aim is to uplift and ennoble human personality.

3) Historical School

Law so closely touches real life that seeing the action of laws in their social setting is only normal.
The Functional Approach to Law (Historical and Sociological Schools) emphasizes actual social
circumstances as giving rise to law and legal structures, and is concerned not with the person but with
the associated man. The historical school arose as a response to legal theories promoted by logical
positivists (as they failed to meet people’s needs) and the thinkers of natural law. This school’s motto is
“Ubi societas ibi lex”, that is to say, “where there is culture, there is law.”

4) Sociological School

Auguste Comte was the first to use the term sociology, and is considered the father of
sociology research by some jurists. The approach used by Comte may be called scientific positivism. He
pleads for applying scientific method to sociological research. Society is like an organism and if it is
driven by scientific principles it will advance.

Herbert Spencer introduced the organic theory of society in a scientific analysis.

He applied sociology to the evolutionary pattern of society.

Duguit was influenced by Durkhiem who took inspiration from Comte himself. Durkhiem’s key
argument, on which Duguit focused himself, was that he made a distinction between two kinds of men’s
needs in society.

1. There are certain individual needs that are addressed by mutual assistance and

2. The needs of individuals are varied and met by the exchange of services.

Therefore the most critical aspect of social stability is the division of labor. He called it Unity with
society. This social cohesion grows through the creation of free individual activities.

5) Realist School

Sociological Jurisprudence in America formed an extreme wing under the realist school name. They are
concerned with researching the law as it operates and functions which means examining the social
forces that make a law on the one hand and the social consequences on the other. Instead of
abstracting logical deductions from general rules and the inarticulate conceptual premises underlying a
legal system, they focus more on what the courts can do.

Scope of Jurisprudence

                   There is no unanimity of opinion regarding the scope of jurisprudence. Different authorities

attribute different meanings and varying premises to law and that causes difference opinions with
regard to the exact limit of the field covered by jurisprudence . Jurisprudence has been so defined as to
cover moral and religious precepts also and that has created confusion . It goes to the credit to Austin
that he distinguished law from morality and theology and restricted the term to the body of the rules set
and enforced by the sovereign or supreme law making authority within the realm. Thus the scope of
jurisprudence was limited to the study of the concepts of positive law and ethics and theology fall
outside the province of jurisprudence.

        There is tendency to widen the scope of jurisprudence and at the present we include what was
previously considered to be beyond the provinces of jurisprudence.  The present view is that scope of
jurisprudence can not be circumcised or regimented. It includes all concepts of of human order and
human conduct in state ans society. Anything that concerns order in the state and society falls under the
domain jurisprudence. P.B. Mukharji writes that new jurisprudence is " both intellectual  and idealistic
abstraction as well as behavioristic study of man in society. It includes political , social, economic and
cultural ideas. It covers the study of man in relation to the state and society."

               Thurman W. Arnold defines jurisprudence " as the shining but unfulfilled dream of a world
governed by reason . For some , it lies buried in a system , the details of which they do not know. for
some, familiar with the details of the system, it lies in the depth of an unreal literature . for others ,
familiar with its literature , it lies in the hope of a future enlightenment. for all , it is just around the
corner "

  The view of lord radcliffe is that jurisprudence is a part of history , a part of economics and sociology, a
part of ethics and a philosophy of life.

Karl Llewellyn observes -

                  " Jurisprudence as big as law-and bigger".

Relations of Jurisprudence with other Social Sciences-

1) Jurisprudence &Sociology

2) Jurisprudence & Psychology

3) Jurisprudence & Ethics 

4) Jurisprudence & Economics 

5) Jurisprudence & History

6) Jurisprudence & Politics

Q.2 Austin’s theory of Law [http://wahabohidlegalaid.blogspot.com/2013/03/austins-theory-of-law.html]

AUSTIN'S THEORY OF LAW

1. Introduction:
The theory of legal realism, like positivism, looks on law as the expression of the will of the
state but sees it as made through the medium of Courts. Law no doubt is the command of the
sovereign, but the sovereign to the realist is not the Parliament but the Court. 

2. IMPERATIVE OR AUSTIN'S THEORY OF LAW:

Austin says that law is a command which obliges a person or persons to a course of conduct. It
is laid down by a political sovereign and enforceable by a sanction.

3. FEATURES OF IMPERATIVE THEORY:

According to Austin, positive law has three main features:
I.          Command
II.         Sovereign
III.        Sanction

I. COMMAND:
The first features of law is that it is a type of command.

> According to Austin:

Commands are expressions of desire given by superiors to inferiors.

(i) Laws are general commands:

There are commands which are laws and which are not, Austin distinguishes law from other
commands by their generality. Laws are general commands, unlike commands given on parade
grounds and obeyed there then by the troops.
II. SOVEREIGN:
According to Austin, a sovereign is any person or body  of persons,  whom  the bulk of a political
society habitually obeys  and who does not himself habitually obeys, some other persons or
persons.

>Characteristics of Sovereign:

(i) Source of Laws:

Sovereign is the source of law. Every law is set, by a sovereign persons or body of persons.

(ii) Source of Power:

Prof. Laski says that there are three implications of the definition of sovereignty given by
Austin. The state is a legal order in which there is a determinate authority acting as the ultimate
source of power.

(iii) Indivisible Power:

The power of sovereign is indivisible. It cannot be divided. Accordingly to Austin, there can only
be one sovereign in the state. The totality of sovereign is vested in one person or a body of
persons.

(iv) Habitual obedient by People:

The chief characteristic of sovereign lies in the power to exact habitual obedience from the bulk
of the member of the society.

III. SANCTION:
The term sanction is derived from Roman Law. According to Salmond "Sanction is the
instrument of coercion by which any system of imperative law is enforced. Physical force is the
sanction applied by the state in the administration of justice.

4. CRITICISM:
Austin's theory of law has been criticized on many grounds.

(i) Laws Before State:

According to Historical School, law is prior to and independent of political authority and
enforcement. A state enforces it because it is already law. It is not correct that it becomes law
because the state enforces it.
(ii) Gunman Law:
Some have criticized the positivist theory of law as a theory of gunman, as it makes no real
distinction between a law and the command of a bank-robber who points his gun at the bank
clerk and orders him to give him money.

Reply:
This criticism over looks Austin's second requirement of law which requires that only that
command is law which is given by political superior or sovereign.

(iii) Generality of Law:

According to Austin, law is a general rule of conduct, but that is not practicable in every sphere
of law. A law in the sense of the Act of the legislature. may be particular in the fullest sense of
the word. A Divorce Act is law even if it does not apply to all persons.

(iv) Promulgation:
According to Austin, law is a command and that has to be communicated to the people by
whom it is meant to be obeyed or followed but this is not essential for the validity of a rule of
law.
(v) Law as Command:
According to Austin, law is a command of the sovereign   but   the   greater  part   of a   legal  
system consists of laws which neither command nor forbid things to be done e.g., right to vote.

(vi) Existence of Personal Commander:

The term command suggests the existence of a personal commander. In modern legal systems,
it is impossible to identify any commander in the personal sense.

(vii) Refusal of Precedents as Laws:

The bulk of the English law has been created by the decisions of the Court. To describe the
judges as delegates by the positivists is misleading.

(viii) Sanction:
The concept of sanction is also misleading as in modern democratic country, the sanction
behind law is not the force of the state but the willingness of the people to obey the same.
(ix) Sanction is not essential elements:
Sanction is not an essential element of law, as in civil law no such sanction is to be found.
(x) Disregard of ethical elements:
According to salmond, Austin's theory of law is one-sided and inadequate. It disregards the
moral or ethical elements in law.
(xi) Not applicable to International Law:
Austin's definition of law cannot be applied to International law that is to say that International
Law is not an imperative law. The International law is not the command of any sovereign, yet it
is considered to be law by all concerned.
(xii) Not Applicable to constitutional law:
Austin's definition of law does not apply to constitutional law which cannot to called commands
of any sovereign. Constitutional law of a country defines the powers of various organs of the
state.

5. IS MORAL LAW IMPERATIVE:

Moral law has also been called the divine law, the law of reason, the universal or common law
or eternal law. It is called the command of God imposed upon men. Natural law appeals to the
reason of men. It does not possess physical compulsion. It embodies the principles of morality.
Natural or moral law exists only in an ideal state and differs from positive law of state. In Austin
view of law morality altogether ignores therefore moral law is not an imperative law.

6. CONCLUSION:
To conclude, I can say, that In spite of criticism of Austin's theory of law, it cannot be denied
that Austin rendered a great service by giving a clear and simple definition of law. He makes a
distinction between what law is and what it ought to be. It seeks to define law not be reference
to its contents but according to the formed criteria which differentiate legal rules from other
rules such as those of morals, etiquette etc.

Q.4 Explain the different sources of law.

The term "Sources of law" means the origin from which rules of human conduct came into existence.
The term has been used in different senses by different writers and different views have been expressed
from time to time. 

1) Definition :
          According to C. K. Allen " agencies through which the rules of conduct acquire the character of law
by becoming definite, uniform and compulsory".

          According to Keeton Source means "the material, out of which is eventually fashioned, through the
activity of judges".

          Oppenheim defines source of law as " the name for a historical fact out of which the rules of
conduct came into existence and acquire legal force".

2) Kinds of Sources of law:

         Sources of law may be classified into - Formal Sources and Material Sources

i) Formal sources:  

           The formal sources law also be called the Actual or ultimate Sources of law. According to Sir John
Salmond, that "sources " from which a rule of law derives its force and validity.

ii) Material Sources:           

            The material sources of law are those which gives the matter or content of a principal of law. As
the word material suggests, material sources deal with the substance, elements or constituent material
of law. Material sources of law tells us what is contained in the law.

        According to Salmond, material sources are of two kinds -                   

 Historical Sources and

  Legal Sources

 Historical Sources:

           Historical Sources of law are those which expresses the history or evolution for the principal of law
and the circumstances through which it attained the form of law. These Sources are unauthoritative,
they are Sources in fact but they have no legal recognition. And have only persuasive value. Historical
Sources may become legal if they are recognised by law.

Example: Acts of Parliament is a Legal source and the work of H. L. A Hart is a Historical Source...

Legal Sources:
            Legal Sources are those Sources which are the instruments or organs of the State by which legal
rules are created.

    Salmond has classified the Legal Sources of English Law into four divisions are as follows:

 
    a) Legislation

    b) Precedent

    c) Custom

    d) Agreement

A) Legislation :
      which gives rise to enacted law.  According to Salmond Legislation is that source of law which
consists in the declaration of legal rules by a competent authority.

B) Precedent :

       Precedents signify past judicial decisions. Judicial Precedents are an important source of law. They
have enjoyed high authority at all times and in all countries.

C) Custom :

      Custom is also an important source of law. Custom signifies the habits and practices of the people.
Custom gives rise to customary law.

      According to Salmond, Custom is the embodiment of those principles which have commended
themselves to the national conscience as principal of justice and public utility.

D) Agreement :

      An Agreement is the state of being in accord of conformity such as to agree to the details of a
transaction. An agreement may be defined as the expression by two or more persons communicated to
each other of a common intention to affect the legal relations.
SHORT NOTES:
Q. 1) Question of Law and Fact.
Meaning of Fact :  

       The term 'Fact' means an 'an existing thing'  But under Evidence Act , the meaning of the
word is not limited to only what is tangible and visible or, is in any way, the object of senses.

According to  Section 3 of The Indian Evidence Act, 1872 Fact means and includes : 

1) any thing, state of things or relation of things capable of being perceived by the senses. 

Illustrations : 

 a) That a man heard or saw something, is a fact.

 b)  That a man said certain words, is a fact.

2) any mental condition of which any person is conscious  

Illustrations :

a) A person has an intention to commit murder. 

b)That a man has a certain reputation, is a fact. 

Rights and liabilities in a judicial proceedings emerge out of fact. Section 3 of Indian Evidence
Act categories fact into - 

    1) Physical facts and 

    2)  Psychological facts.  

A) Physical facts - It means and includes anything, state of thing or relation of things, capable of
being perceived by senses. In other words, all facts which are subject to perception by bodily
senses are physical facts .  They are also called external facts. 

B) Psychological facts - Those facts, which cannot be perceived by senses are 'Psychological
Facts' They are also known as internal facts. Examples- Intention (Mens Rea) knowledge, good
faith, fraud etc. 

2) Facts in issue (Section.3) :

The expression “facts in issue” means and includes —

any fact from which, either by itself or in connection with other facts, the existence, non-
existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or
proceeding, necessarily follows.

Explanation.—

             Whenever, under the provisions of the law for the time being in force relating to Civil
Procedure,any Court records an issue of fact, the fact to be asserted or denied in the answer to
such issue, is a fact in issue.
 

Illustrations

'A' is accused of the murder of 'B'.

At his trial the following facts may be in issue:—

That A caused B’s death;

That A intended to cause B’s death;

That A had received grave and sudden provocation from B;

That A at the time of doing the act which caused B’s death, was, by reason of unsoundness of
mind, incapable of knowing its nature.
          'Fact in issue' are those facts, which are alleged by one party and denied by other party in
the pleading in a civil case or alleged by the prosecution and denied by the accused in a criminal
case.

Example - A is accused of murdering B. at trial, the following facts may be in issue.

That A caused B's Death. ( It refers to the question, whether A has caused the death of B. If the
answer is 'No', A is discharged/ acquitted. If the answer is 'Yes' the following questions will
arise)     

That A is intended to cause B's Death. (If A caused B's death, the next question arises is,
whether A had an intention to B's death or, not. If the intention(Mens Rea/Mental element) is
present, it is murder or culpable homicide and A is awarded serious punishment i.e. death or
life imprisonment. Otherwise (if intention/mens rea is absent) it amounts to an accident, which
is a defense Under Section 80 I.P.C. If the accident is by negligence, the punishment is up to two
years imprisonment or fine or both)

That A had received grave and sudden provocation from B (It refer to the question, whether B
is instrumental/responsible for such a grave and sudden provocation by A, accuating to cause
B's death.)

     That at the time of committing the act, whether A was incapable of knowing the nature and
extent of the consequences (of his act) by reason of unsoundness or other (Even if A caused B's
death intentionally, A may plead the defence, on the ground that he was incapable of knowing
the nature and extent of consequence of the act he was doing, due to insanity under Section
84 I.P.C. , drunkenness under Section 85 and 86 I.P.C etc.)

In short, the questions, which give rise to a right or liability are called Fact in Issue.  The
fact in issue is also known by its Latin name 'Factum Probandum' or that which is to be proved.
Relevant fact - 

     One fact is said to be relevant to another when the one is connected with the other in any of
the ways referred to in the provisions of Indian Evidence Act,  relating to the relevancy of facts.
(Section 3 of IEA).
  
      The word 'relevant' has two meanings.  in one sense, it means "connected" and another
sense "admissible". One fact is said to be relevant to another when the one is connected with
the other, in any of the way referred to in the provisions of the Evidence Act relating to the
relevancy of facts (Section 5 to 55 of IEA).

There are two kinds of relevancy -

    (i) Logical Relevancy -

    (ii) Legal Relevancy -

 (i) Logical Relevancy - A fact is said to be logically relevant to another when by application of
our logic it appears that one fact has a bearing on another fact.

(ii) Legal Relevancy - A fact is said to be legally relevant when it is expressed as relevant under
Section 5 to 55 (Relevancy of Fact).

Q.2) Administration of justice

1) Introduction -  

      State maintain law and order and establish peace and social security. Administration of
Justice is one of the primary functions of the State. The main function of the administration of
justice is the protection of individuals' rights, enforcement of laws and punishment of
wrongdoer. In determining a nation's rank in a political organization, no test is considered more
decisive than its administration of justice, for it has been conceived as one of the firmest
peelers of any government.

2) What is Administration of Justice 

     In simple words administration of Justice means justice according to law. Justice generally
means the quality of being just.  for example the awarding of what is due.  justice consists of
impartiality, integrity or rightness etc Administration of justice is generally divided into two
parts- viz Administration of Civil Justice and Administration of Criminal Justice.
      A State may not be called a State if it has failed to discharge its functions concerning the
administration of justice. Life may not be lived in a society in which there is no preservation of
the rights of man and no prevention of injustice.

3) Origin and Growth of Administration of Justice - 

        The origin and growth of administration of Justice is identical with the origin and growth of
man. In modern civilized societies, it has evolved through stages.

First Stage - 

          In early stage when society was primitive and private vengeance and self-help were the
only remedies available to the wronged person against the wrongdoer. He could get his wrong
addressed with the help of his friends or relatives.

Second Stage -

         The second stage of development of the society was characterized by the state coming
into existence in its rudimentary form when its functions where only persuasive in nature. It did
not have enforcing power by which it could punish the wrongdoer.

Third Stage -

         In the third Stage of development of society, wrongs could be redressed by payment of
compensation by the wrongdoer to the wronged(victim) who was affected by the wrongful act.

Thus up to this time, the justice remained private in nature without the compulsive force of the
State. 
 

4) Advantages of Administration of Justice - 

Advantages of Administration of Justice are as follows -

      Uniformity and certainty - Legal Justice ensures uniformity and certainty. Everybody knows
what the law is and there is no scope for arbitrary action. Even Judges have to give decisions
according to the declared law of the Country. As the law is certain, citizens can shape their
conduct accordingly.

Q. 3) Legislation:
What is Legislation ?

        Legislation is a law making body. Among all the sources of law, legislation is one of the
most patent and sovereign source law making. It has all the powers of enacting laws and
repealing old laws. The term "legislation" is derived from two Latin words, legis meaning law
and latum meaning to make, put or set. Entomologically legislation means the making or the
setting of law. There are two kinds of legislation-Supreme legislation and subordinate
legislation.

Definition of Legislation - 

Some important definitions of legislation are as follows -

Salmond- 

       According to Salmond, "Legislation is that source of law which consists in the declaration of
legal rules by a competent authority".

Austin -

       According to John Austin, legislation includes an activities, which results into law making or
amending,  transforming or inserting new provisions in the existing law. thus "there can be no
law without a legislative act.

Holland-

           According to  Holland, " the making of general orders by our judges is as true legislation
as is carried on by the Crown", but we confine ourselves to the use of them term legislation in
the sense which is commonly understood.

Kinds of Legislation - 
    According to Sir John Salmond, legislation is either Supreme or Subordinate.

         I) Supreme legislation -  

              Supreme legislation is that which proceeds from the sovereign power in the state. It
cannot be repealed, annulled or controlled by any other legislative authority. It is enacted by
the highest law-making authority in the state. For example parliament in India, USA and
England.
         In England, Supreme legislation cannot be questioned in a court of law. The British
Parliament is in every sense of sovereign law making body. In Britain, the doctrine of
parliamentary sovereignty implies supremacy and omnipotence of British Parliament.
Therefore. It possesses the power of Supreme legislation. In India and United States of America
however, the parliament is sovereign but not supreme because legislation can be declared ultra
vires or unconstitutional by a court of law.  It may therefore, be amended or altered.

         II) Subordinate legislation - 

   
          Subordinate legislation is legislation made by the authority or other than the supreme
authority in the state in the exercise of the power delegated to it by Supreme authority. This is
controlled by the supreme authority.  Thus legislative authority is dependent for its continued
existence and validity on the supreme authority. It can be repealed. Subordinate or delegated
legislation increased in 19th and 20th century because of number of a reaction.
   

Kinds of subordinate legislation -

        According to Salmond,  delegated legislation is that which proceed from any authority
other than sovereign power. Salmond refers to five Kinds of Subordindte Legislation which are
as follows -

(1) Municipal legislation 

(2) Executive legislation

(3) Colonial legislation

(4) Autonomous legislation

(5) Judicial legislation

(1) Municipal legislation -

       The municipal authorities are given limited powers to enact laws for their governance. it is
called  Municipal legislation.  It also called bye-laws. The power is conferred by Supreme
legislation. for example, Bombay Municipal Corporation, Pune Municipal Corporation etc. 

(2) Executive legislation - 

         These powers are expressly delegated to the executive by the Parliament. Executive
consists of President, Prime Minister, Governor, and govt. officers, who are interested, with the
working administrative department of the State. Parliament simply delegates its functions to
the executive to make their own laws. E.g. Dfence of India Act. President can make a rule for
himself to regulate his office.

(3) Colonial legislation -

         It is the outcome of colony or colonies. by way of settlement. The colonies of British
Empire were delegated with certain legislative authority for their own government. Such
legislation is called colonial legislation. For example, laws passed by the Indian legislature
before independence

(4) Autonomous legislation - 
   
         Sometimes the state allows private persons like universities, Railway companies, etc to
make bye-laws which are recognized and enforced by law courts.Such legislation is usually
called autonomic. Railway Company may make bye-laws for the regulation of its undertaking.
Likewise, a University may take students for the Government of its members.

(5) Judicial legislation - 

          Judiciary is given powers to make certain rules to regulate the procedure. Such act of
court during judicial proceeding is called judicial legislation. Bombay High Court Rules, which
are rules governing Bombay High Court and matter coming before this Court.
Impartiality - Another Advantage of Administration of Justice, there is impartiality in the
administration of justice. Judges are required to give their decisions according to the pre-
determined legal principles and the cannot go beyond them. 

 
5) Disadvantages of Justice -
    Despite the aforesaid advantages there are certain disadvantages of Legal Justice which are
as follows -

     Rigidity - One Disadvantage of Legal Justice is that it is Rigid. Law has already been laid down
in precedents. It is not always possible to adjust it to the changing needs of society. Society may
change more rapidly than legal justice and may result in hardship and injustice in certain cases.
Judges act upon the principle that "hard cases should not make bad law".   

     Technicalities - Another disadvantage of legal justice is its technicalities  (formalism). Judges

attach more importance to legal technicalities than they deserve. They give importance to form
than to substance. 

     Complexity - Modern society is becoming more and more complicated and if made from
time to time to codify or simplify the legal system but very soon law becomes complicated 

6) Types of Administration of Justice - 

a) Criminal Administration of Justice -

         Administration of criminal justice deals with public wrongs. all offenses included in Indian
Penal Code(IPC) are public wrongs. The administration of criminal justice is to punish the
offender. Punishment may be described as the infliction by State Authority, of a consequence
normally regarded as an evil (for example imprisonment or death) on an individual found to be
legally guilty of a crime.
Importance and Purpose of Criminal Justice 

      The main purpose and object of criminal justice is to punish the wrongdoer (offender) and to
maintain law and order in society.   It is the State which punishes the Criminal. Punishment
necessarily implies some kinds of pain inflicted upon the offender or loss caused to him for his
criminal act which may either be intended to deter him from repeating the crime or maybe an
expression of society  disapprobation for his Anti Social conduct or it may also be directed to
reform and regenerate him and at the time ported the society from criminals.

b) Civil Administration of Justice - 

     The main object of the administration of civil justice is to provide relief by way of
compensation or other relief to the injured party. The rights enforced by Civil proceedings are
of two kinds viz., Primary rights and Sanctioning rights. Primary rights are those which exist as
such. They do not have their source in some wrong. Sanctioning or remedial rights are those
rights which come into being after the violation of a primary right. A primary right is right
arising out of conduct or as a jus in rem.
A sanctioning the right is one which arises out of the violation of another right.
         For example, if X enters into a valid contract, his right to have the contract performed is a
primary right. If the contract is broken, his right to damages for the loss caused to him for the
breach of contract is sanctioning right.
         A primary right may be enforced by specific enforcement. A sanctioning right is enforced
by sanctioning enforcement.

Purpose of Civil Administration of Justice

                The purpose of civil justice is the enforcement in civil proceedings, either a primary or
a sanctioning right.