Government Policy Notes Module 1 2

GOVERNMENT & POLICY BY SIR UMAR
MODULE 1
WHAT IS JURISPRUDENCE? & ITS NATURE OF JURISPRUDENCE
1. Introduction:
Jurisprudence is the theoretical and analytical study of law. It is often termed as the grammar and
philosophy of law. The study of jurisprudence started with the Romans. The definitions gives by
the Roman jurists are vague and inadequate but they put forth the idea of a legal science. Every
jurist has its own notion of the subject matter and the proper limits of jurisprudence depend upon
his ideology and the nature of society. Jurisprudence in its nature is entirely a difference subject
from other social science. The reason for this is that it is not codified but a growing and dynamic
subject having no limitation on itself. Its inquiry system is of different status from other
subjects. Every jurist does not base his study on the rules made but tries to understand their
utility after due deliberation Thus the jurisprudence has no limited scope being a growing
subject. Jurisprudence is the name given to a certain type of investigation into law, an
investigation of an abstract, general and theoretical nature which seeks to lay bare the essential
principles of law and legal systems.
JURISPRUDENCE IS AS BIG AS LAW AND BIGGER:
Actually it means elucidation of the general principles upon which actual rules of law are based.
It is a mansion having many rooms in it as it is as much interested in diversity as in uniformity.
2. Literal meaning:
Jurisprudence acquired a new term and meaning in the mid-18th century though its origin can be
traced back to a few decades before. The word jurisprudence is derived from the Latin word
―jurisprudentia‖ which means ―knowledge of law‖- ―Juris‖ means law and ―prudentia‖ means
skill or knowledge. Thus, jurisprudence signifies knowledge of law and its application.
3. Definition of Jurisprudence
Jurisprudence is generally defined as the theoretical and philosophical study of law. Various
jurists have defined Jurisprudence in their own terms:
Robert Keeton
According to Robert Keeton, an American lawyer, jurist, and legal scholar, Jurisprudence
is the study and scientific synthesis of the essential principle of law.‖
Dias and Hughes

According to Dias and Hughes, Jurisprudence is any thought or writing about law rather than
a technical exposition of a branch of law itself.‖
Ulpian
According to Ulpian, a Roman jurist, Jurisprudence is the knowledge of things divine and
human. The science of the just and unjust.‖
Bentham and Austin
John Austin, the student of Jeremy Bentham, popularized Bentham‘s views about law and
jurisprudence. According to Austin, The existence of law is one thing; its merit and demerit
another. Whether it be or be not is one enquiry; whether it be or be not conformable to an
assumed standard, is a different enquiry.‖
4. Nature of jurisprudence
One can find that each scholar defines jurisprudence in a different manner. When one scholar
defines this term, another criticizes it and provides another definition from his perspective.
Following is a short description of what some eminent scholars state about jurisprudence.
(i) John Austin
Austin made a significant contribution to the subject of jurisprudence. He analyzed English
law in detail and stated that ‗law is the command of the sovereign.‘ This eventually became
the framework of the legal system in England and adopted the Expository Approach. Further,
he defined jurisprudence as ‗the philosophy of positive law.‘ He divided it into two major
categories:
General Jurisprudence
It refers to the subjects of law as a standard in a system. It is generic and wider in scope.
Particular Jurisprudence
It refers to the science of any legal system or a part of the system. It is specific and
focuses only on one aspect.
(ii) Salmond
He criticized Austin‘s definition of jurisprudence as certain concepts do not fall in either of
the categories laid down by Austin. According to Salmond, jurisprudence is the ‗science of
law.‘ His division of law includes two parts:
Generic
All the legal doctrines are included in this part.
Specific
It refers to a part of a doctrine or a specific department. Specific jurisprudence is further
divided into analytical jurisprudence, legal history, and science of legislation.
(iii) Holland
Another eminent scholar who criticized Austin‘s theory was Holland. According to Holland,
jurisprudence is an analytical science and is ‗the formal science of positive laws.‘ He stated
that positive law is the general rule of human actions enforced by a sovereign body. He
added the word ‗formal‘ to Austin‘s definition because he referred to only the form and not
the essence. According to him, to study jurisprudence, it is alright to analyse the external
elements of a law and not go into detail. Jurisprudence is related to the fundamental aspects
of law and not the minor parts. Hence, it is known as a formal science. Jurisprudence
organizes details about intellectual property and other topics. Hence, it is known as a science.
(iv) Julius Stone
Julius Stone based his study on the lawyer‘s extraversion. According to him, it is the lawyer
who examines the ideas, concepts, and methods of a law.
5. Contents of Jurisprudence:
The following are the contents of jurisprudence:-
(i) Sources:
It is true that the basic features of a legal system are mainly to be found in its authoritative
sources and the nature and working of the legal authority behind these sources. Under this
head matters such as custom, legislation, precedent as a sources of law, prose and cone of
codification of laws, methods of judicial interpretation and reasoning, an inquiry into the
administration of justice etc., are included for study.
(ii) Legal Concepts:
Jurisprudence includes the analysis of legal concepts such as rights, title, property,
ownership, possession, obligations, acts, negligence, legal personality and related issues.
Although all these concepts are equally studied in the ordinary branches of law, but since
each of them functions in several different branches of law, jurisprudence tries to build a ore
comprehensive picture of each concept as a whole.
(iii)Legal theory
Legal theory is concerned with law as it exists and functions in the society and the manner in
which law is created and enforced as also the influence of social opinion and law on each
other. It is therefore necessary that while analyzing legal concepts and effort should be made
to present them in the background of social developments and changing economic and
political attitudes.
6. Branches of jurisprudence:
Jurisprudence can be divided into three branches.
(i) Historical Jurisprudence:
Historical jurisprudence deals with the general principles governing the origin and
development of law, with influences that affect law, with the origin and development of those
legal conceptions and principles which are so essential in their nature as to deserve a place in
the philosophy of law.
(ii) Analytical Jurisprudence:
Analytical jurisprudence analyses the first principles of law as they exist in a legal system.
(iii) Ethical or philosophical jurisprudence:
It deals with the first principles of ethical significance and adequacy of law.
7. Importance And Utility Of Jurisprudence:
Jurisprudence in basically a theoretical subject but it also has a practical and educational value.
The enumerated as under.
(i) Remove the complexities of law:
One of the tasks of jurisprudence is to construct concepts and make law more manageable
and rational.
(ii) Answers the new problems:
Jurisprudence can teach people to look around them and realize that answers to new legal
problems must be found by a consideration of the present social needs and not in the wisdom
of the past.
(iii) Grammar of Law:
Jurisprudence is the grammar of law. It throws light on the basic ideas and the fundamental
principles of law e.g., negligence, liability etc.
(iv)Great educational value:
Jurisprudence has great educational value. The logical analysis of legal concepts widens the
outlook of lawyers and sharpens their logical technique it helps in knowing and grasping the
language, grammar, the basis of treatment and assumption upon which subject rests.
(v)Useful in Art of pleading and legislation:
It helps legislators and the lawyer the proper use of legal terminology. It relieves them of the
botheration creation of defining again and again certain expressions e.g., right, duty etc.
(vi)To Interpret law:
It helps the judges and the lawyers in ascertaining the true meanings of the law passed by the
legislatures by providing the rules of interpretation.
(vii)To study foreign law.
It enables a lawyer to study foreign law because the fundamental principal is generally
common to all systems of law.
(viii)Jurisprudence is the eye of law:
On account of importance of jurisprudence in the field of law it is called, ―The eye of Law‖.
The eyes are one of the most important parts of human body. Almost all human activities
and the movements of body are possible only through them. Unless man can see anything
properly, he cannot do any work. The reason of calling jurisprudence the ‗the eye of law‘ is
that jurisprudence functions for law in the same manner as the eyes do in human body. For
example- the interpretation of law is a very difficult task it cannot be done without the help
of jurisprudence. ‗PATON‘ in this connection says that,‖ Jurisprudence is a particular
method of study, not the law of one particular county but of the general notions of law itself.‘
The main function of jurisprudence is to study the origin of law, its development and its
contribution towards society. The matters to birth, marriages, death, succession etc., are
equally controlled through laws. It is the well-known saying that, ―ignorance of law is no
excuse,‖ hence it is essential to know the correct basic principles of law which are contained
only in the jurisprudence. Law is also connected with civil life. A person who obeys laws is
known as a civilized citizen. A person who does not obey law is punished. It is therefore
necessary that all the people should have the sound knowledge of law which is possible only
with the help of jurisprudence. Therefore, jurisprudence, having so much importance for the
society, has rightly been called the eye of law.
8. Conclusion:
To conclude, I can say, that jurisprudence is the science of law and there are different methods of
approach to it. The true purpose of the study of jurisprudence should not be confined to the study
of positive law alone but must include normative study, that deal with the improvement of law
in the context of prevailing, socio-economic and political philosophies of time, place and
circumstances.
IMPERATIVE / COMMAND THEORY OF LAW
1. Introduction:
The work of the English jurist John Austin (1790-1859) remains the most comprehensive and
important attempt to formulate a system of analytical legal positivism in the context of modern
state. The first six lectures the most influential part of his work were published in 1832 under the
title of "The province of jurisprudence Determined" and the rest was published posthumously in
1861. After his death he achieved greater fame and became the founder of what was popularly
called the Analytical School. John Austin (1790–1859) was born in the United Kingdom. He was
the founder and father of the Analytical school of law. He is known for his theory of sovereignty
and legal positivism mentioned in his book ―Province of Jurisprudence‖. In his initial career, he
has served in the army for 5 years and also in the chancery bar of the UK. In 1826, he was
appointed as the professor of jurisprudence at the University of London.
Austin‘s theory of law revolves around command of a sovereign. Austin‘s aim is to distinguish
law from other phenomena, in particular from rules of morality. Basically his theory does not
relate to the nature of law rather it relates to the machinery and the mechanism through which it
is enforced. He found refuge in this theory when faced with the repugnant, idealistic natural law
theory. In fact he used positivism as the weapon to denounce the Naturalist. He demolished their
theory in the light of imperative theory.
2. Austin’s theory of law:
Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham‘s
utilitarianism is evident (though with some differences) in the work for which Austin is best
known today. On Austin‘s reading of utilitarianism, Divine will is equated with Utilitarian
principles: ―The commands which God has revealed we must gather from the terms wherein they
are promulgated. The command which he has not revealed, we must construe by the principle of
utility‖ (Austin 1873: Lecture IV, p. 160; see also Austin 1832: Lecture II, p. 41). This particular
reading of utilitarianism, however, has had little long-term influence, though it seems to have
been the part of his work that received the most attention in his own day (Rumble 1995: p. xx).
Some have also seen Austin as being one of the early advocates of ―rule utilitarianism‖ (e.g.,
Austin 1832: Lecture II, p. 42, where Austin urges that we analyze not the utility of particular
acts, but that of ―class[es] of action‖). Additionally, Austin early on shared many of the ideas of
the Benthamite philosophical radicals; he was ―a strong proponent of modern political economy,
a believer in Hartleian metaphysics, and a most enthusiastic Malthusian‖ (Rumble 1985: pp. 16–
17). Austin was to lose most of his ―radical‖ inclinations as he grew older.
According to Austin,
―Every positive law or every law simply and strictly so called, is set by a sovereign individual or
sovereign body of individuals to a person or person in a state of subjection to its author‖.
3. Distinguishing features of Austin’s positive law:
According to him, positive law has three characteristic features.
(i) It is a type of command
(ii) It is laid down by a political sovereign.
(iii) It is enforceable by a sanction.
(i) Law Is A Type of Command:
According to Austin every law is in the form of command. A command is an expression of
desire given by superiors to inferiors. The relationship of superior to inferior consists in the
power which the former enjoys over the other i.e. his ability to punish him for disobedience.
Thus he who will inflict an evil in case his desire be disregarded, utters a command by
expressing or intimating his desire. And he who is liable the evil in case he disregards the
desire, is bound or obliged by the command.
(a) All commands are not laws:
There are commands which are laws and there are commands which are not laws. Austin
distinguishes laws from other commands by their generality. Laws are general
commands. Laws are not like the transitory command given on parade grounds and
obeyed there are then by the troops. Laws are like the standing orders of a military station
which remains in force generally and continuously for all persons on the station.
(ii) Law is given by a sovereign:
Austin‘s second requirement of law is that only that command is law which is given by a
political superior or sovereign exclusively. 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 obey some other person or persons.
(a) A Gunman Is Not A Sovereign:
The difference between the order of a gunman and the decree of dictator is that the latter
enjoys a general measure of obedience while the former secures a much more limited
compliance.
(b) No sovereign, no law:
Law is the product of sovereign so according to Austin of there is no sovereign there can
be no law. Also the existence of law is an unmistakable indication of the existence of a
sovereign. The relation between the sovereign and law is the relation between the center
and the circumference.
(c) Sovereign is illimitable, indivisible and continuous:
According to Austin sovereign‘s powers cannot be limited in any way. Also powers of
sovereign cannot be divided. And a sovereign is continuous.
(d) Obedience - an inevitable element of law:
According to Austin, law is law only if it is effective and must be generally obeyed.
Perfect obedience is not necessary. Without general obedience, the commands of the law
makers are as empty as a language which is no longer spoken.
(iii) Sanction behind law:
In case of non-compliance with the command, one is to be visited with certain evil
consequences. The power to inflict evil must be there and it should be intended to be
exercised in case of non-compliance. The sanction behind law is the evil which is to be
inflicted in case of disobedience.
4. Criticism on Austin’s theory of law:'
Austin‘s theory of law has been criticized on many grounds which are as follows.
(i) Laws before state:
Critics concede that in modem societies where there are established states, laws may be in
nature of command but there existed laws even prior to the existence of state. The law which
existed prior to state was not command of sovereign. It had its source in custom, religion or
public opinion and not in any authority vested in a political superior.
(ii) Law as a command:
According to Austin, law is a command of sovereign but all laws cannot be expressed in
terms of a command. The greater part of legal system consists of laws which neither
command nor forbid things to be done. They empower people by certain means to achieve
certain results e.g. laws giving citizens the right to vote etc.
(iii)Not applicable to democratic societies:
Austin‘s definition of law may be true of a monarchical police state but it cannot be applied
to a modem democratic country whose machinery is employed for the service of the people,
not to punish the people. If we accept Austin‘s definition, the whole of civil law will have to
be excluded from the scope of positive law.
(iv) Not applicable to international law:
Austin‘s definition of law cannot be applied to international law. Although International law
is not the command of any sovereign, yet it is considered to be law by all concerned.
(v) Not applicable to constitutional law:
Austin‘s definition of law does not apply to constitutional law which cannot be called a
command of any sovereign. The constitutional law defines the powers of various organs of
state. Nobody can be said to command himself.
(vi) Disregard of ethical element:
The main criticism against Austin‘s theory of law is that it disregards moral or ethical
elements in law. End of law is justice. Law is not right alone or might alone but the perfect
union of the two. Excluding the ethical elements in law, Austin‘s theory cannot be accepted
as a complete definition of law.
(vii) Limited definition of law:
Salmond finds another defect in Austin‘s definition of law. Austin‘s definition attempts to
answer the question ―What is a law?‖ but the enquiry should be ―What is law‖?
5. Conclusion:
The spite of the 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. Though this theory leaves much to
be desired but it must be admitted that today this is one legal theory that is very close to reality.
As a matter of fact, far from sinning Austin has been sinned against.
NATURAL LAW THEORY
1. Introduction
A philosophical theory that states that humans have certain rights, moral values, and
responsibilities that is inherent in human nature. Natural law is a philosophical theory that states
that humans have certain rights, moral values, and responsibilities that are inherent in human
nature. Natural law theory is based on the idea that natural laws are universal concepts and are
not based on any culture or customs. Still, it is a way society acts naturally and inherently as
human beings.
2. Understanding Natural Law
The natural law theory is stated to have existed without even the requirement of human
understanding or any kind of political order or legislature. To be explained further, natural law
incorporates the idea that humans understand the difference between ―right‖ and ―wrong‖
inherently. Essentially, it concludes that human beings are not taught natural law; they initiate it
by making good and right decisions. Therefore, it is said to be discoverable through the exercise
of reason.
3. Origin of the theory

The theory of natural law was known to the ancient Greeks but then elaborated by many
philosophers. Some important philosophers who played a role in the development of natural law
include Aristotle, Plato, and Thomas Aquinas. Many difficulties and concerns have surrounded
natural law theory. For example, some believe that natural law theory is too simple as a concept
and that it breaks down in complicated scenarios. Throughout centuries, natural law theory has
been expanded on, critiqued, and applied to philosophy theory and even existing legal and
political structures.
4. Natural Law and Positive Law
It is important to underline that natural law is not to be confused with positive law as it does not
involve any kind of judicial decisions or legislative enactments. Natural law highlights human
behavior involving ethical standards and ways of being inherent.
On the other hand, positive law involves human-made law that incorporates rules that can be
applied to specific actions at certain times or places. Furthermore, positive law is enacted and
adopted for the appropriate government of society, to protect the rights of individuals, resolve
disputes, and maintain order and safety of society overall.
5. History of Natural Law
Natural law was initially defined by ancient Greek philosophers such as Aristotle and Plato.
Plato did not have a theory on natural law; however, some of his theories involved concepts of
natural law. On the other hand, Aristotle focused on the distinction between law and nature. It
then led to the introduction of natural justice, which can be attributed to the Stoics.
Following this, Cicero explained natural law as something that can contribute to the general good
of society, whereas positive law would contribute to the safety of society. Many contributions
continued to be made to natural law theory, such as during the Renaissance and Age of
Enlightenment. It led to the creation of more modern natural law theories that combined natural
law with other philosophical theories, such as the social contract theory.
It was also used to justify the establishment of positive law, and therefore, government and legal
rights. Overall, as philosophy theory grows, the coincidence of positive and natural law will
continue to be referenced, disputed, and analyzed.
6. Importance of Natural Law
Natural law is important because it is applied to moral, political, and ethical systems today. It has
played a large role in the history of political and philosophical theory and has been used to
understand and discuss human nature.
7. Practical Examples
The example of natural law includes the idea that it is universally accepted and understood that
killing a human being is wrong. However, it is also universally accepted that punishing someone
for killing that person is right. The idea demonstrates that without the requirement of legislation,
such beliefs are something that human beings understand inherently as wrong, without the
requirement of law.
Aristotle (384–322 BCE) is considered by many to be the founder of natural law. He argued
that what is ―just by nature‖ is not always the same as what is ―just by law.‖ Aristotle
believed that there is a natural justice that is valid everywhere with the same force. This
natural justice is positive and does not depend on the decisions or laws of any one group of
people.
For St. Thomas Aquinas (1224/25–1274 CE), natural law and religion were inextricably
connected. He believed that natural law "participates" in the divine "eternal" law. Aquinas
thought eternal law to be that rational plan by which all creation is ordered, and natural law is
the way that human beings participate in the eternal law. He further posited that the
fundamental principle of natural law is that we should do good and avoid evil.
Martin Luther King, Jr. (1929–1968) argued that people have an obligation to obey natural
laws over unjust positive laws that conflict with them, writing that "One has not only a legal
but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to
disobey unjust laws... To put it in the terms of St. Thomas Aquinas: An unjust law is a human
law that is not rooted in eternal law and natural law. Any law that uplifts human personality
is just. Any law that degrades human personality is unjust."
8. Two Kinds of Natural Law Theory
At the outset, it is important to distinguish two kinds of theory that go by the name of natural
law. The first is a theory of morality that is roughly characterized by the following theses. First,
moral propositions have what is sometimes called objective standing in the sense that such
propositions are the bearers of objective truth-value; that is, moral propositions can be
objectively true or false. Though moral objectivism is sometimes equated with moral realism
(see, e.g., Moore 1992, 190: ―the truth of any moral proposition lies in its correspondence with a
mind- and convention-independent moral reality‖), the relationship between the two theories is
controversial. Geoffrey Sayre-McCord (1988), for example, views moral objectivism as one
species of moral realism, but not the only form; on Sayre-McCord‘s view, moral subjectivism
and moral intersubjectivism are also forms of moral realism. Strictly speaking, then, natural law
moral theory is committed only to the objectivity of moral norms.
The second thesis constituting the core of natural law moral theory is the claim that standards of
morality are in some sense derived from, or entailed by, the nature of the world and the nature of
human beings. St. Thomas Aquinas, for example, identifies the rational nature of human beings
as that which defines moral law: ―the rule and measure of human acts is the reason, which is the
first principle of human acts‖ (Aquinas, ST I-II, Q.90, A.I). On this common view, since human
beings are by nature rational beings, it is morally appropriate that they should behave in a way
that conforms to their rational nature. Thus, Aquinas derives the moral law from the nature of
human beings (thus, ―natural law‖).
But there is another kind of natural law theory having to do with the relationship of morality to
law. According to natural law theory of law, there is no clean division between the notion of law
and the notion of morality. Though there are different versions of natural law theory, all
subscribe to the thesis that there are at least some laws that depend for their ―authority‖ not on
some pre-existing human convention, but on the logical relationship in which they stand to moral
standards. Otherwise put, some norms are authoritative in virtue of their moral content, even
when there is no convention that makes moral merit a criterion of legal validity. The idea that the
concepts of law and morality intersect in some way is called the Overlap Thesis.
As an empirical matter, many natural law moral theorists are also natural law legal theorists, but
the two theories, strictly speaking, are logically independent. One can deny natural law theory of
law but hold a natural law theory of morality. John Austin, the most influential of the early legal
positivists, for example, denied the Overlap Thesis but held something that resembles a natural
law ethical theory.
Indeed, Austin explicitly endorsed the view that it is not necessarily true that the legal validity of
a norm depends on whether its content conforms to morality. But while Austin thus denied the
Overlap Thesis, he accepted an objectivist moral theory; indeed, Austin inherited his
utilitarianism almost wholesale from J.S. Mill and Jeremy Bentham. Here it is worth noting that
utilitarians sometimes seem to suggest that they derive their utilitarianism from certain facts
about human nature; as Bentham once wrote, ―nature has placed mankind under the governance
of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to
do, as well as to determine what we shall do. On the one hand the standard of right and wrong,
on the other the chain of causes and effects, are fastened to their throne‖ (Bentham 1948, 1).
Thus, a commitment to natural law theory of morality is consistent with the denial of natural law
theory of law.
BRANCHES OF LAW
1. Introduction:
Law, the discipline and profession concerned with the customs, practices, and rules of conduct of
a community that are recognized as binding by the community. Enforcement of the body of rules
is through a controlling authority. Law is derived from the German word ‗Lag‘ means fixed or
evenly. Politically, as per regulation and rules, it is enforced by the State to regulate human
conduct for the administration of Justice.
2. Meaning of Law:
According to Merriam Webster Dictionary, the meaning of the law is; ―A binding custom or
practice of a community‖.
3. Definition of Law:
Definition of law is a rule of conduct developed by the government or society over a certain
territory. Law follows certain practices and customs in order to deal with crime, business, social
relationships, property, finance, etc. The Law is controlled and enforced by the controlling
authority. Let us explore the various definitions of law by different authors in detail.
According to Austin:
Law is defined as;
―Law is the command of a sovereign, it imposes a duty and is backed by Sanction‖. Or ―Law
is the aggregate of rules set by men as politically superior, or sovereign, to men as politically
subject‖.
According to Salmond:
―Law is the body of principles, recognized and applied by the state for the administration of
justice‖.
According to Prof. Polland:
Law is defined as;
―Law is a general rule of external human actions enforced by sovereign, the political
authority‖.
Law in Rem and Law in Personam:
Law in rem relates to enforcement of rights which a person has against the whole world or
against the people in general whereas law in personam deals with enforcement of right
available against a definite person or persons.
For example, the law of inheritance, succession, ownership etc., comprise the subject-matter
of law in rem while the law of contract, trust etc., are the species of law in personam.
4. Kinds of law by sir John Salmond
Sir John Salmond refers to eight kinds of law, Imperative Law, Physical (Scientific) Law,
Natural (Moral) Law, Conventional Law, Customary Law, Practical (Technical) Law,
International Law and Civil Law but this list is not completed without including the criminal law
i. Imperative Law
―Imperative Law means a rule of action imposed upon mere by some authority which enforces
obedience to it.‖ In other words it is a command enforced by some superior power either
physically or in any other form of compulsion.
 It must be a general rule;
 There must be some authority behind it; and
 It must be enforced by superior power by physical force or compulsion.
Kinds of Imperative Law
There are two kinds of imperative law, Divine or Human.
(i) Divine laws are consists of the commands imposed by God upon men either by threats of
punishments or by hope of his blessings.
(ii) Human laws are the laws by analogy.
Here Sir John Salmond classifies human Laws into four sub classes.
 Imperative Laws imposed and enforced by state (Civil Law).
 Imperative Law imposed & enforced by members of society (Moral Law).
 Those imposed & enforced by different institutions or autonomous bodies like universities,
Airline Companies etc. they are called ―autonomic law‖.
 Those imposed upon states by the society of states are called International Law.
ii. Physical or Scientific Law
Physical Laws are expressions of the Uniformities of nature and general principles expressing
the Regularity and Harmony observable in the activities and operations of universe. They are not
the creation of men and cannot be changed by them. Human laws change from time to time and
from country to country but physical laws are invariable forever. The uniform actions of human
beings, such as law of psychology, also fall into this class. They express not what man ought to
do, but what they do. For example, the law of motion, gravitation, and of chemical reactions.
iii. Practical or Technical Law
It consists of principles and rules for the attainment of certain ends, e.g. laws of health, laws of
architecture. These rules guide us as to what we ought to do in order to attain certain ends, within
this category the laws of music and laws of style.
iv. Natural or Moral Law
―By natural or moral law is meant the principles of natural right and wrong (the principles of
natural justice)‖. Natural laws have been called.
 Divine law i.e. commands of God imposed upon men
 Law of reason i.e. being established by that reason by which‘ the world is governed
 Unwritten law (as being written not on brazen tablets or on pillars of stone but by the
finger of nature in the hearts of people)
 Universal or common law (being of universal validity)
 Eternal law (being uncreated and invariable)
 Moral law (being the expression of the principles of morality)
v. Conventional Law
It is the body of rules agreed upon- and followed by the concerned parties to regulate their
mutual conduct. It is a form of special law and law for the parties which can be made valid or
enforced through an agreement. A good example of conventional law is the laws of cricket or
any other game, rules of a club. It has been further divided into two groups which are:
(i) Rules enforced by the parties themselves but not recognized by the state, e.g. the rules of
hokey.
(ii) Rules which are recognized and enforced by the state, e.g. contract etc.
vi. Customary Law
Customary laws are those rules of custom that are habitually followed by the majority of persons
subject to them in the belief of binding nature: According to Salmond, customary law means
―any rule of action which is actually observed by men (any rule which is the expression of some
actual uniformity of voluntary action).‖ When a custom is firmly established, it is enforced by
the authority of the state. Custom is not law by itself but an important source of law. Only those
customs acquired the force of law, which are recognized by the Courts.
Essentials of Customs:
 Reasonableness
 Unambiguous usage observed
 Peacefully
 Continuously
 Since immemorial antiquity
 As of right
 In conformity with the statute
vii. International Law
According to Hughes, ―International law is the body of principles and rules which civilized states
consider as binding upon them in their mutual relations.‖ It can be defined as ―the name for the
body of customary and conventional rules, which are considered legally binding by civilized
states in their intercourse with each other.‖ According to Salmond- it is consisted of those rules
which the sovereign states have agreed to observe in their dealings with one another.
International agreements are of two kinds. They are either expressed or implied. Express
agreements are contained in treaties and conventions, while implied agreements are to be found
in the custom or practice of the states. International law is of two kinds.
 Public International Law: It prevails universally in all over the world.
 Private International Law: It is enforced only between some of states.
viii. Civil Law
It is the law of the states regarding the land. Civil law according to Salmond is ―the law of the
state or the law of the land, the law of lawyers and the law of courts.‖ Civil law is the positive
law .or the land, which means the law as it exists. It is backed by the force and might of the state
for purposes of enforcement. Civil law differs from special law as the latter applies only in
special circumstances. The other term used for the civil law is municipal law and national law.
ix. Criminal Law
Criminal law, the body of law that defines criminal offenses, regulates the apprehension,
charging, and trial of suspected persons, and fixes penalties and modes of treatment applicable to
convicted offenders. Criminal law is only one of the devices by which organized societies protect
the security of individual interests and ensure the survival of the group. There are, in addition,
the standards of conduct instilled by family, school, and religion; the rules of the office and
factory; the regulations of civil life enforced by ordinary police powers; and the sanctions
available through tort actions. The distinction between criminal law and tort law is difficult to
draw with real precision, but in general one may say that a tort is a private injury whereas a
crime is conceived as an offense against the public, although the actual victim may be an
individual.
5. Conclusion:
It is concluded that the definition of Law is that it is the body of principles that are recognized
and enforced by the State for the administration of Justice. It is difficult to give it a
comprehensive and perfect definition. As it is a social science that grows and develops with the
growth and development of society.
FEMINIST PHILOSOPHY OF LAW
1. Introduction
Feminist philosophy of law identifies the pervasive influence of patriarchy and masculinist
norms on legal structures and demonstrates their effects on the material conditions of women and
girls and those who may not conform to cisgender norms. It also considers problems at the
intersection of sexuality and law and develops reforms to correct gender injustice, exploitation,
or restriction. To these ends, feminist philosophy of law applies insights from feminist
epistemology, relational metaphysics and progressive social ontology, feminist political theory,
and other developments in feminist philosophy to understand how legal institutions enforce
dominant gendered and masculinist norms. Contemporary feminist philosophy of law also draws
from diverse scholarly perspectives such as international human rights theory, postcolonial
theory, critical legal studies, critical race theory, queer theory, and disability studies.
Addressing the goals of feminist philosophy of law requires theory development, conceptual
analysis, and conceptual revision. Promoting freedom and equality for women reflects a
profound shift in basic assumptions about the nature of women and their proper place in the
world: a shift from inequality to equality of the sexes, along with re-examination of what
equality itself requires. It also requires re-examination of the understanding of sex, gender, and
gender roles. Given the scope and detail of this change, feminist legal theory proceeds on
multiple levels, from the pragmatic, concrete, and particular to the conceptual and ultimately
visionary. Some of this writing appears in philosophy journals and monographs, but much also
appears in journals in gender studies and feminism, generalist law reviews, and the many
specialist law journals devoted to issues of gender and justice. This article begins with a brief
overview of fundamental themes of feminist legal theory, followed by discussion of the
evolution of views about needed institutional changes in several substantive areas of law:
political equality, immigration, and citizenship; marriage, reproductive rights, and
commoditization of the body; protection from violence; and economic rights.
2. Some feminist legal theorists
sometimes called liberal feminist scholars—argue that women's lives will be most improved by
simply extending to women what are widely regarded as two of the central promises of law in a
liberal regime: first, the promise of "formal equality," the idea that the state's legal institutions
will "treat like causes alike"; and second, the promise to each individual of a wide a sphere of
individual autonomy. Women, liberal feminists argue, are "like men" in all the ways that should
matter to the state and accordingly should be treated, wherever possible, in precisely the same
way as men by the law. Women and men are the same in their abilities: Women, like men, can
engage in the professions and trades, wage war, fairly serve on juries, administer estates, and
vote responsibly, and the law must accordingly not discriminate on the basis of a false claim of
difference and must also forbid discrimination against women in the private sector on the basis
of such false claims (Williams 1984).
Similarly, women and men are the same in their needs: Women, like men, need protection
against violence, meaningful work and civic participation, and, most important, the freedom to
develop their individual life plans. The law should therefore extend to women the same
protection against private violence and the same sphere of autonomy it extends to men (McClain
1992). By pursuing the logic of these applications of fundamental liberal principles to the law's
treatment of women, liberal feminist legal theorists have contributed to widespread changes in
the relations of women, men, and the state, ranging from the institution of bans on private and
state discrimination on the basis of gender to the expansion of women's reproductive freedom
and choices so as to maximize their social and political autonomy.
3. Criticism on feminist theory
As critics of liberal feminism have pointed out, however, women are not "like men" in all ways,
and as a consequence a rigid application of liberal premises to the sometimes distinctive situation
of women will often backfire. Where women are unlike men, the blanket insistence on equal
treatment will sometimes impoverish actual women, albeit toward the admirable end of a gender-
blind utopian society (Becker 1987). Equal distribution of property at the time of divorce, for
example, will impoverish the majority of divorcing women who have less earning potential than
their husbands. The equal refusal of an employer to grant maternity or parental leave upon the
birth of a child will disproportionately hurt female workers, who, because of their greater
biological role in the process of reproduction, will need more time out of the workplace than will
men if they are to enjoy the same rights as men to be both workers and parents (Littleton 1987).
The refusal of the state to extend the protection of social security to career homemakers treats
women and men similarly but disproportionately harms women because women are
disproportionately represented in the ranks of unpaid domestic labor.
4. Types of Feminism: The Four Waves

The wave metaphor is the most common explanation for feminism‘s movements, though it‘s not
without flaws. It can oversimplify a complicated history of values, ideas, and people that are
often in conflict with each other. With this simplification, one might think feminism‘s history is
a straightforward arc. The reality is much messier. There are many sub-movements building on
(and fighting with) each other. That being said, the wave metaphor is a useful starting point. It
doesn‘t tell the whole story, but it helps outline it. There are four waves:
(i) The first wave
The first wave in the late 19th-century was not the first appearance of feminist ideals, but it
was the first real political movement for the Western world. In 1792, Mary Wollstonecraft
published the revolutionary Vindication of the Rights of Woman. In 1848, about 200 women
met in a church. They came up with 12 resolutions asking for specific rights, such as the right
to vote. Reproductive rights also became an important issue for early feminists. After years
of feminist activism, Congress finally passed the 19th amendment in 1920 and gave women
the vote. This was almost 30 years after New Zealand became the first country where women
could vote.
First-wave feminism had a fairly simple goal: have society recognize that women are
humans, not property. While the leaders of 1st-wave feminism were abolitionists, their focus
was on white women‘s rights. This exclusion would haunt feminism for years to come.
(ii) The second wave
Second-wave feminism took place in the 1960s and ‗70s. It built on first-wave feminism and
challenged what women‘s role in society should be. Inspired by the Civil Rights movement
and protests against the Vietnam War, activists focused on the institutions that held women
back. This meant taking a closer look at why women were oppressed. Traditional gender and
family roles were questioned. Queer theory became more established. There were major
victories in this era including the Equal Pay Act of 1963, Roe v. Wade in 1973, and other
Supreme Court cases.
Three main types of feminism emerged: mainstream/liberal, radical, and cultural.
Mainstream feminism focused on institutional reforms, which meant reducing gender
discrimination, giving women access to male-dominated spaces, and promoting equality.
Radical feminism wanted to reshape society entirely, saying that the system was inherently
patriarchal and only an overhaul would bring liberation. It resisted the belief that men and
women were basically the same. Cultural feminism had a similar view and taught that there‘s
a ―female essence‖ that‘s distinct from men.
(iii)The third wave
Thanks to the institutional victories of second-wave feminism, women enjoyed more rights
and power going into the 1990s. They were able to think about other aspects of their identity,
welcoming individuality and rebellion. This was an era of reclaiming. Important cultural
touchstones include Eve Ensler‘s The Vagina Monologues, the Guerilla Girls, and punk rock
riot grrls. Many women more freely expressed their sexuality in how they spoke, dressed,
and acted. This sometimes bewildered 2nd-wave feminists, many of whom had resisted
traditional femininity. While many ideas and mini-movements swirled around in this time,
the one ―rule‖ was that there weren‘t rules. A woman should choose how she lived her life.
Third-wave feminism also became more conscious of race. Kimberle Crenshaw, a gender and
critical-race scholar, coined the phrase ―intersectionality‖ in 1989. The term refers to how
different kinds of oppression – like those based on gender and race – intersect with each
other. While mainstream first and second-wave feminism had largely ignored or neglected
racial disparities within gender, the Third wave paid more attention. The phrase ―third-wave
feminism‖ was coined in 1992 by Rebecca Walker, a 23-year old Black bisexual woman.
When the internet became more commonplace, it was even easier to hear perspectives and
ideas from feminists around the world. Feminism was expanding.
(iv)The fourth wave
Some people think we‘re still in the third wave of feminism since the fourth wave isn‘t so
much of a shift as the continued growth of the movement. However, with the MeToo
movement and a resurgence of attacks on women‘s rights, many believe we‘re living in a
new wave. Social media activism has propelled the movement firmly into the technological
age. It builds on the third wave‘s emphasis on inclusivity and asks hard questions about what
empowerment, equality, and freedom really mean.
Fourth-wave feminism continues to reckon with intersectionality. Critics of ―white
feminism,‖ which ignores the unique struggles of women of color, expose how non-white
feminists and ideas have been – and continue to be – suppressed. Trans rights are a big part
of the conversation, too. Feminism has often been an unwelcoming and hostile place for trans
women and others who reject the gender binary. Many fourth-wave feminists are working to
combat this exclusion. As with every wave before it (and any wave that comes after it), the
fourth wave is complex. It encompasses many movements that both complement and clash
with each other. This tension is unavoidable. While some types of feminism can have
harmful impacts, having a variety of voices makes feminism more inclusive and successful.
5. Kinds of Feminism
These definitions are selected from a longer list of terms (compiled from a feminism news
group) at http://www.landfield.com/faqs/feminism/. The initials in parenthesis are the people
who contributed the definition to the news group.
(i) Liberal Feminism
This is the variety of feminism that works within the structure of mainstream society to
integrate women into that structure. Its roots stretch back to the social contract theory of
government instituted by the American Revolution. Abigail Adams and Mary Wollstonecraft
were there from the start, proposing equality for women. As is often the case with liberals,
they slog along inside the system, getting little done amongst the compromises until some
radical movement shows up and pulls those compromises left of center. This is how it
operated in the days of the suffragist movement and again with the emergence of the radical
feminists.
(ii) Radical Feminism
Provides the bulwark of theoretical thought in feminism. Radical feminism provides an
important foundation for the rest of "feminist flavors". Seen by many as the "undesirable"
element of feminism, Radical feminism is actually the breeding ground for many of the ideas
arising from feminism; ideas which get shaped and pounded out in various ways by other
(but not all) branches of feminism.
Radical feminism was the cutting edge of feminist theory from approximately 1967-1975. It
is no longer as universally accepted as it was then, nor does it provide a foundation for, for
example, cultural feminism.
This term refers to the feminist movement that sprung out of the civil rights and peace
movements in 1967-1968. The reason this group gets the "radical" label is that they view the
oppression of women as the most fundamental form of oppression, one that cuts across
boundaries of race, culture, and economic class. This is a movement intent on social change,
change of rather revolutionary proportions, in fact.
The best history of this movement is a book called Daring to be Bad, by Alice Echols (1989).
I consider that book a must! [JD] Another excellent book is simply titled Radical Feminism
and is an anthology edited by Anne Koedt, a well-known radical feminist [EE].
(iii)Marxist and Socialist Feminism
Marxism recognizes that women are oppressed, and attributes the oppression to the
capitalist/private property system. Thus they insist that the only way to end the oppression of
women is to overthrow the capitalist system. Socialist feminism is the result of Marxism
meeting radical feminism. Jaggar and Rothenberg [Feminist Frameworks: Alternative
Theoretical Accounts of the Relations Between Women and Men by Alison M. Jaggar and
Paula S. Rothenberg, 1993] point to significant differences between socialist feminism and
Marxism, but for our purposes I'll present the two together. Echols offers a description of
socialist feminism as a marriage between Marxism and radical feminism, with Marxism the
dominant partner. Marxists and socialists often call themselves "radical," but they use the
term to refer to a completely different "root" of society: the economic system. [JD]
(iv) Cultural Feminism
As radical feminism died out as a movement, cultural feminism got rolling. In fact, many of
the same people moved from the former to the latter. They carried the name "radical
feminism" with them, and some cultural feminists use that name still. (Jaggar and
Rothenberg [Feminist Frameworks] don't even list cultural feminism as a framework separate
from radical feminism, but Echols spells out the distinctions in great detail.) The difference
between the two is quite striking: whereas radical feminism was a movement to transform
society, cultural feminism retreated to vanguardism, working instead to build a women's
culture. Some of this effort has had some social benefit: rape crisis centers, for example; and
of course many cultural feminists have been active in social issues (but as individuals, not as
part of a movement).
As various 1960s movements for social change fell apart or got co-opted, folks got
pessimistic about the very possibility of social change. Many of then turned their attention to
building alternatives, so that if they couldn't change the dominant society, they could avoid it
as much as possible. That, in a nutshell, is what the shift from radical feminism to cultural
feminism was about. These alternative-building efforts were accompanied with reasons
explaining (perhaps justifying) the abandonment of working for social change. Notions that
women are "inherently kinder and gentler" are one of the foundations of cultural feminism,
and remain a major part of it. A similar concept held by some cultural feminists is that while
various sex differences might not be biologically determined, they are still so thoroughly
ingrained as to be intractable.
(v) Eco-Feminism
This branch of feminism is much more spiritual than political or theoretical in nature. It may
or may not be wrapped up with Goddess worship and vegetarianism. Its basic tenet is that a
patriarchal society will exploit its resources without regard to long term consequences as a
direct result of the attitudes fostered in a patriarchal/hierarchical society. Parallels are often
drawn between society's treatment of the environment, animals, or resources and its
treatment of women. In resisting patriarchal culture, eco-feminists feel that they are also
resisting plundering and destroying the Earth. And vice-versa.
ISLAMIC JURISPRUDENCE
1. Islamic Jurisprudence [FIQH]

Fiqh, the term for Islamic jurisprudence, is a process by means of which jurists derive sets
of guidelenes, rules and regulations from the rulings laid down in the Qur'an and the
teachings and living example of the Prophet Muhammad (pbuh), the Sunnah. Over the
centuries, these have been formulated and elaborated upon by successive generations of
learned jurists, through interpretation, analogy, consensus and disciplined research.
Islamic Jurisprudence [FIQH]
Islamic jurisprudence may be defined as a process by means of which jurists derive sets
guidelines, rules and regulations (the Shari'ah) from the principles of the Qur'an and the Sunnah.
Over the centuries, these have been formulated and elaborated upon by successive generations of
learned jurists, through interpretation, analogy, consensus and disciplined research.
While the principles of the Qur'an and the Sunnah are permanent, it is the nature of Islamic
jurisprudence to facilitate for human beings the application of those principles to their activities
and dealings.
The universality and permanence of Islam as a civilisation are intrinsically linked to the fact that
the Qur'an and the Sunnah have introduced general principles and guidelines. These give
Muslims the opportunity to develop practical solutions in order to regulate their continuous
changing environment. Besides the Qur'an and the Sunnah, the sources of law in Islam are qiyas
(analogy), ijma' (consensus) and ijtihad (disciplined, academic research).
2. Basic Terms in Fiqh [Islamic Jurisprudence]
(i)Fiqh
Linguistically, Fiqh implies having knowledge in depth.
As a juristic term, Fiqh has two meanings:
A. Having the knowledge of the rulings of Shariah (Islamic Law) which are extracted from
the legislative sources. As an example, a Faqih would know the ruling for the issue of
abortion; in addition, he would know how and from where this ruling was extracted.
B. All the Islamic laws. This definition is synonymous to the term Shariah.
(ii)Usul al Fiqh
Usul al Fiqh is the collection of principles pertaining to the methodology for the extraction of
Fiqh. The concept of Usul al Fiqh is comparable to adhering to a methodology when
conducting a scientific experiment. Similarly, adhering to a methodology in deriving Fiqh
(rulings) is referred to as Usul al Fiqh. This methodology provides a way for a person to
derive Islamic rulings from the legislative sources in Islam. The collection of principles
related to Usul al Fiqh is many:
(iii)Shariah
The linguistic meaning of the word Shariah is a non-exhaustive source of water from which
people satisfy their thirst. Thus, the linguistic significance of Shariah is that the Islamic laws
are effectively a source of guidance. As water is the fundamental basis for life, the Islamic
laws are an essential source for guiding human life. Shariah is composed of all the laws
derived from the legislative sources of Islam. These laws are not just limited to areas
covering marriage or divorce; rather, the Islamic laws cover every action performed by an
individual or a society. The term Shariah is also a synonym for Fiqh.
3. HUKUM SHARII
The text of both Quran and Sunnah address many topics such as, stories of previous Ummahs,
the Day of Judgment, and others. However, the text which specifically addresses our actions of
what to do or what not to do is referred to as Hukm Sharii. The term Hukm Sharii, in Arabic,
means the address of the Legislator related to our actions.
Types of Hukm Sharii
Not all commands in the legislative sources are Fard (compulsory) or Haram (prohibited).
The rules which are used to differentiate the types of Hukm Sharii are again related to Usul al
Fiqh. In reality, the Hukm Sharii can be understood in five general ways.
A. Fard (compulsory): If the request to do an action is decisive (Talab Jazim) then it is a
Fard or Wajib; both have the same meaning.
B Haram (prohibited): If the instruction is connected with a decisive command of
refraining from an action then it is Haram.
C. Mandub, Sunnah or Nafilah (recommended): If the instruction to do an action is not
firm, then it is considered Mandub, The one who performs it is praised and rewarded;
however, the one who abstains from it is neither blamed nor punished.
D. Makruh (disliked): If the instruction of refraining from an action is not firm, then it is
considered Makruh. The one who abstains is praised and rewarded while the one who does it
is neither punished nor blamed.
F. Mubah (permissible): If the choice to do or not to do an action is left up to the person,
then the action is called Mubah. One will neither be rewarded nor punished for an action
falling under this category.
4. Sources of Islamic Jurisprudence
(i)Quran
Using Quran to extract rulings indicates adherence to the Message. There are many Ayah in
the Quran which state that the Quran is a source of ruling, guidance and knowledge.
We have sent down to you the book in truth, that you may rule between men, as guided by
Allah, so be not (used) as an advocate by those who betray their trust.' [An-Nisa: 105]
(ii)Sunnah
Sunnah is a legislative source along with the Quran, and the Quran cannot be understood
without the application of Sunnah.
(iii)Ijma
Ijma is the verbal noun of the Arabic word Ajmaa, which has two meanings:
1) to determine
2) to agree upon something.
There are many types of Ijma discussed in the books of Usul al Fiqh. Some of these being,
Ijma al Ummah, Ijma al Mujtahideen, Ijma ahiel Bayet, Ijma al Madinah and ljma as
Sahabah.
(iv)Qiyas
The linguistic meaning of Qiyas is measurement. As a juristic term Qiyas is the extension of
a Shariah ruling from an original case to a new case because of the equivalence of the causes
underlying them (lila).
There are specific guidelines and requirements for Qiyas explained in the books of Usul al
Fiqh. One such guideline is that there should be no existing ruling from the Quran, Sunnah,
and Ijma as Sahabah for the new case.
Some of the other requirements for Qiyas are that the original ruling has to be from
Quran, Sunnah, and Ijma as Sahabah, not from another Qiyas. In addition, the texts of the
Quran, Sunnah, and Ijma as Sahabah must contain the justification for the ruling. We cannot
use our Aql (intellect) to come up with a cause (lila).
(v)Istihsan
Istihsan literally means to approve or to do something preferable. As a juristic term, Istihsan
is defined as shifting from one Qiyas to another Qiyas due to a reason or suspending a Qiyas
for a reason. A Mujtahid may take into consideration any of these options.
A. Istihsan by Qiyas - switching from a ruling of Qiyas to an other ruling of Qiyas
due to a stronger reason.
B. Istihsan by necessity - shifting to another Qiyas due to necessity.
C. Istihsan by Sunnah - Canceling the Qiyas due to a contradiction caused by the Hadith
D. Istihsan by Ijma as Sahabah - canceling a ruling from Qiyas due to a contradiction
caused by the Ijma as Sahabah
(vi)MASLAHA AL MURSALAH
Literally, Maslaha means benefit or interest. As a juristic term Maslaha Mursalah refers to
accepting public interest in the absence of ruling regarding an issue from the Quran or
Sunnah.
5.IJTIHAD
Ijtihad is derived from the root word Jahada. Linguistically, it means striving or self exertion in
any activity which entails a measure of hardship. As a juristic term, Ijtihad means exhausting all
of one's efforts in studying a problem thoroughly and seeking a solution for it from the sources of
Shariah.
A person who performs Ijtihad is a Mujtahid (pl. mujtahideen); whereas, a person who knows the
rules of Shariah in detail, but is unable to extract rules directly from their sources, is not a
Mujtahid but rather a Faqih, Mufti, or a Qaadi.
The text of Quran and Sunnah which are Qatai (conclusive) in meaning provide only one
understanding. Any Ijtihad on these types of text will render only one meaning. The texts related
to issues such as Riba or murder are clear in their prohibition of these things.
No Mujtahid can claim that Riba or murder is allowed because the text only offers one meaning.
Finally, he must have a comprehensive knowledge of the issue on which Ijtihad is being
performed. To extract any ruling one has to understand the subject thoroughly. If the Mujtahid
doesn't understand an issue, he is not allowed to do Ijtihad regardless of where he lives. To
understand the issue, the Mujtahid can go to experts. For instance, there might be an issue in
genetic engineering. To understand the process of genetic engineering, the Mujtahid can go to an
expert in this field. Therefore, these criteria are enough to qualify one to do Ijtihad, and it is
incorrect to say that each issue requires the Mujtahid to reside in that environment. The Mujtahid
can reside anywhere and do Ijtihad as long as he is familiar with the issue being dealt with. If the
Mujtahid is not familiar with the issue, he is not allowed to do Ijtihad, even if the issue occurs in
the same environment that the Mujtahid is residing in.
6.Main Schools of Islamic Jurisprudence
The schools originated in different places and it had some impact on their decisions and methods.
In the early Islamic periods the Governors would appoint qadis to judge the subjects of their
newly acquired territories. They had to base their decisions on the Qur'an and act according to
what they knew to be the Sunnah (sayings, teachings and practices of the Prophet Muhammad),
but when none of these sources were available, they had to judge themselves, whatever seemed
right to them personally. This usually included considerations of what was customary in the area.
Judgment based on own opinion became common practice of the early jurists, and a system of
logic to support the decisions was being formed.
There are four schools of thoughts in Islamic Jurisprudence. These four schools share most of
their rulings, but differ on the particular hadiths they accept as authentic and the weight they give
to analogy or reason (qiyas) in deciding difficulties.
(i)The Hanafi school was the earliest founded under the jurist Imam Abu Hanifa (700-768),
whose real name was Nu'man ibn Thabit, was born in the city of Kufa (modern day Iraq).The
Hanafi school based its rulings largely on the results of logic deduction of its scholars.
(ii)The Maliki school was founded under Imam Malik (713-797), whose real name was Abu
Abdullah Malik bin Anas, in Madinah which reflects the origin in its decisions too. The
Maliki school ruled heavily in favour of the practice of the local community of Madinah,
where the immediate descendants of the Prophet Muhammad's followers lived.
(iii)The Shafi'i school was founded under Imam Ash-Shafi'i ((767-820) who was the first
one to systematise Islamic law. Originally, he studied both in Iraq and in Madinah, but
disagreed with the methodology of those older schools, in favour of the Traditionists, but did
not fully accept their ideas either. In his tractate, the "Risala", balancing the two trends, he
laid down the sources of Law, Usul al-Fiqh and his system had become the basis of Islamic
jurisprudence that was subsequently used by all the schools. He fixed the four components
(in order of priority) to be:
A. The Qur'an
B. The Sunnah of the Prophet Muhammad
C. Ijma (consensus of the Umma - Muslim community)
D. Qiyas, (reasoning by analogy), but also istihsan.
(iv)The Hanbali school was founded under Imam Ahmad Ibn Hanbal (781-856), who had
followed Shafi'i school method with ever greater emphasis on the ahadith, avoiding
reasoning as far as possible, but not completely denying it. The difference between the
schools is primarily in the
(v)The school of Shi'ah Islam: The Jaferi or Ja'fari school (Iran, Iraq, Azerbaijan, Lebanon,
Bahrain, Pakistan, India and parts of Afghanistan and Saudi Arabia) is associated with Shi'ah
Islam. Though the Shi'ah Imamia is also called Jafariah, this does not mean that the sole
source of the Shi'ah Fiqh is Imam Jafar (700-768). It is mixed with others. The Jafariah
Madhab is composed of Fiqh from other people such as Qumi, Tousi and Qulani. Imam Jafar
also made great contributions to Fiqh and Hadith. The Fiqh of Imam Jafar is considered to be
one of the Fiqh from the Sunnah.
MODULE 2
RULE OF LAW
1. Introduction
The concept rule of law is a fundamental part of most modern legal systems. However, the
meaning of the concept varies across countries, depending on several factors. It is probably
impossible to define the meaning of rule of law outside the historical and geographical context of
a specific jurisdiction. While it may be well defined within one jurisdiction, the concept carries
different connotations across countries, and even more so, across legal cultures and traditions.
Accordingly, it seems impossible to find a universal meaning of the concept rule of law. The
entire base of administrative law rests on the concept of the Rule of Law. No constitution of any
country can function and no nation can march along the true democratic way .of life without a
true and continuous realization of the importance of the rule of law and judicial review of
legislative and executive actions.
2. Meaning of rule of law:-
General Meaning:
Generally it means law really rules and justice should prevail.
According to Black Law Dictionary:
Rule of law means the supremacy of law which provides that decisions should be made
by the application of known principles of laws without the intervention of discretion in
their application.
3. Definition of rule of law:
(i)According to Dicey:
―Men are ruled by the Law and by the Law alone, a man with us may be punished for a
breach of Law but cannot be punished for nothing else.‖
(ii)According to Blackstone:
―That the decisions should be made by the application of known principles or Laws without
the intervention of discretion in their application
4. Origin of term Rule of law
The concept of rule of law is of old origin. It roots can be traced in Magna Carta 1215, in which
it has been said ―No free men shall be taken or imprisoned or diseased or exiled or in any way
destroyed nor will we go or send for him, except under a lawful Judgment of his peers and by the
law of land. Since the days of Greek philosopher, Law has been considered as the primary means
of subjecting government‘s power to control.
5.Different names of the doctrine in different eras
The rule of Law was widely accepted and practicable in the past. But people changed its name
according to this own approach.
(i)Roman’s Approach:
Romans called it ―Jus Natrale‖.
(ii)Mediaevalists Approach:
They called rule of Laws as ―Law of God‖.
(iii)According to Hobbes, Locke & Roussueal:
They called rule of Law as ―Social Contract‖ or the ―Natural Law‖.
(iv)In Modern World
In modern world we called this doctrine as Rule of Law.
6. Concept of Rule of Law
The term rule of law is derived from the Latin phrase ―La Legalite‖ which refers to a government
based on principles of law and not of men. The concept of rule of law is of old origin and cannot
be discussed without mentioning the name of Prof. A.V. Dicey who wrote about the concept of
the rule of law at the end of the golden victorious era of laissez faire in England. The supremacy
of the law which supports the doctrine of, rule of law is the antithesis of the rule of law of
anarchy and fear. The doctrine of rule of law aims at the fair and honest administration of justice
solely for the public good. The criterion for the enforcement of the rule of law is stated to be:
(i) The power of decision should be in the hands of recognized and competent authorities.
(ii) The authorities must have foremost in their minds the public welfare.
(iii)They must be free from all bias.
(iv) They must hear the parties before giving any decision.
(v) They should give reasons for the decisions clearly.
(vi) They must follow guided principles of law and precedents.
(vii) The person who hears must also decide.
(viii) Decisions must be free from all executive pressure.
(ix) The aggrieved party should be given a further chance to be heard on appeal on points of
law only.
(x) The persons who have conflict of interests must not participate in hearings;
The above norms should be kept in clear view for administrative adjudication if the rule of law is
to govern such bodies.
7. Dicey’s exposition of Rule of Law
In the United Kingdom, the rule of law, at least historically, has been closely related to A.V.
Dicey. Dicey‘s perception of the rule of law was introduced in his book Introduction to the Study
of the Law of the Constitution. According to Dicey, in line with the concept of Parliamentary
Sovereignty, the rule of law is one of the twin pillars of the British Constitution. According to
A.V. Dicey, rule of law is the absolute supremacy or predominance of regular law as opposed to
the influence of arbitrary power and excludes the existence of arbitrariness of prerogatives on
part of government. The exposition was first published in 1885 in introduction to the ―Law of
Constitution‖. Dicey gave three principles of this doctrine.
(i) Absolute supremacy of Law
(ii) Equality before Law
(iii)Predominance of Legal spirit.
(i)Absolute Supremacy of Law
The first aspect indicates that no man is punishable or can be lawfully made to suffer in body
or deprived of their goods unless they had violated the law which has been established in an
ordinary way and applied by an ordinary court. There is also an absolute supremacy or
predominance of regular law over arbitrary power and the state could not act in an arbitrary
manner which was unlawful.
(a)Absence of Arbitrary Power:
Explaining the first principle Dicey states that rule of law means absolute supremacy or
predominance of regular Law as opposed to the influence of arbitrary power or wide
discretionary power.
(b)Form of Govt.:
The rule of Law requires that the government should be subject to the Law rather than the
Law subject to the Govt.
(c)Punishment According to Law:
No man can be punished, arrested or be lawfully made to suffer in body or goods except
by due process of Law.
(d)Principle of Natural Justice:
―Audi Alteram Partem‖ It is a basic principle of natural justice that no one should be
condemned unheard. Rule of Law also lays strees that the opportunity of being heard
should be given to all.
(ii) Equality Before Law:
The second aspect of Dicey‘s conception of the rule of law indicates that in terms of the
equality before the law, no man is above the law. Regardless of what an individual‘s rank or
condition is, he is subjected to the ordinary law of the realm and be bounded to the
jurisdiction of the ordinary tribunals. As a result, no matter an ordinary private citizen or a
state official breached the same law, they would be treated in the same way. It denoted that
the state officials were not given any special privileges or protections from the law of the
land. Thomas Fuller had also quoted that ―Be you ever so high, the law is above you.‖ Dicey
states that there must be equality before the Law or the equal subjection of all classes to the
ordinary Law of Land.
(a) One Law For all:
Dicey says that there should impartiality of Law, and there must be one Law for all and
treat everyone equality.
(iii) Predominance of Legal Spirit:
Dicey states that the general principles of the constitution are the result of judicial decisions
of the courts of England. He emphasized the role of the courts as guarantors of Liberty and
suggested that the right would be secured more adequately if they were enforceable in the
courts of Law than by mere declaration in the documents.
8. Criticism on Dicey’s exposition
The doctrine of rule of Law expounded by dicey was never fully accepted in England even his
days. Therefore the criticism was made on Dicey‘s exposition as under:
(i) Immunity of King from being sued under the maxim ―The king can do no wrong‖.
(ii) Protection to Govt. officials from being sued.
(iii)Immunity to foreign rulers and diplomats.
(iv)Growth of administrative justice (tribunals).
(v)Crown to terminate any contract of services.
Thus Dicey believes that liberty of action by the individual is conditioned by the regular rules of
law which the courts apply.
9. History of the Rule of Law

The Rule of Law has been an important ideal in our political tradition for millennia, and it is
impossible to grasp and evaluate modern understandings of it without fathoming that historical
heritage. The heritage of argument about the Rule of Law begins with Aristotle (c. 350 BC); it
proceeds with medieval theorists like Sir John Fortescue (1471), who sought to distinguish
lawful from despotic forms of kingship; it goes on through the early modern period in the work
of John Locke (1689), James Harrington (1656), and (oddly enough) Niccolò Machiavelli
(1517); in the European Enlightenment in the writings of Montesquieu (1748) and others; in
American constitutionalism in The Federalist Papers and (and even more forcefully) in the
writings of the Federalists‘ opponents; and, in the modern era, in Britain in the writings of A. V.
Dicey (1885), F.A. Hayek (1944, 1960, and 1973), Michael Oakeshott (1983), Joseph Raz
(1977), and John Finnis (1980), and in America in the writings of Lon Fuller (1964), Ronald
Dworkin (1985), and John Rawls (1971). Because the heritage of this idea is so much a part of its
modern application, a few highlights need to be mentioned.
(i) Aristotle
The work of Aristotle on the Rule of Law is still influential. Though he formulated the
question of whether it was better to be ruled by the best man or the best laws, he approached
that question realistically, noting that it depended not only on the type of law one was
considering but also on the type of regime that enacted and administered the law in question
(Politics 1282b).
There were, he conceded, some cases so fraught with difficulty that they could not be
handled by general rules—cases that required the focused insight of particular judges; he
used the term epieikeia (sometimes translated as equity). But these cases should be kept to a
minimum and legal training and legal institutions should continue to play a role in the way
they are disposed of. Aristotle‘s discussion of the general desirability of rules and his
treatment of epieikeia continue to influence modern jurisprudence (see Scalia 1989 and
Solum 1994).
(ii) John Locke
John Locke in the second of his Two Treatises of Government (1689) emphasized the
importance of governance through ―established standing Laws, promulgated and known to
the People‖. He contrasted this with rule by ―extemporary Arbitrary Decrees‖ (Locke 1689:
§§135–7). Now the term ―arbitrary‖ can mean many different things. Sometimes it means
―oppressive‖. But when Locke distinguished the rule of settled standing laws from arbitrary
decrees, it was not the oppressive sense of ―arbitrary‖ that he had in mind. In this context,
something is arbitrary because it is extemporary: there is no notice of it; the ruler just figures
it out as he goes along. It is the arbitrariness of unpredictability, not knowing what you can
rely on, being subject, as Locke put it (1689: §137), to someone‘s sudden thoughts, or
unrestrained, and till that moment unknown Wills without having any measures set down
which may guide and justifie their actions.
In Locke‘s story, one of the things that people wanted to get away from in the state of nature
was being subject to others‘ incalculable opinions—even when those others were thinking as
hard and rigorously as they could about natural law. Your thinking might be different from
my thinking, and it might turn out that your view of the relation between your interests and
my interests and your property and my interests might be quite different from my view of the
matter and quite different again from the view of the next person I came across. The whole
point of moving from a state of nature to a situation of positive law was to introduce some
predictability into this picture.
(iii) Montesquieu
Montesquieu‘s work on the Rule of Law is best known in connection with his insistence on
the separation of powers—particularly the separation of judicial power from executive and
legislative authority (see Montesquieu 1748: Bk. 11, Ch. 6). The judiciary has to be able to
do its work as the mouthpiece of the laws without being distracted from fresh decisions made
in the course of its considerations by legislators and policy-makers.
Elsewhere in The Spirit of the Laws, Montesquieu developed a theory of the value of
legalism. Noting that despotic governments tend to have very simple laws which they
administered peremptorily with little respect for procedural delicacy, Montesquieu argued
that legal and procedural complexity tended to be associated with respect for people‘s
dignity. He associated this sort of respect with a monarchy ruling by law, as opposed to
despotism:
In monarchies, the administering of a justice that hands down decisions not only about life
and goods, but also about honor, requires scrupulous inquiries. The fastidiousness of the
judge grows as more issues are deposited with him, and as he pronounces upon greater
interests. (Montesquieu 1748: Bk. VI, ch. 1, p. 72)
(iv) Hayek
F.A. Hayek was by training an economist, but he also nurtured an interest in the relation
between legal structures and forms of national economy. Hayek‘s work on the Rule of Law
proceeded in two phases: (1) from his wartime book The Road to Serfdom (1944) through to
The Constitution of Liberty (Hayek 1960); and (2) the somewhat different account presented
in his trilogy, Law, Legislation and Liberty (1973), an account which is more congenial to the
spirit of common law and hostile to the role of legislation.
(v) Fuller
Lon Fuller believed that government in accordance with the forms and procedures of law had
a distinctive value that could help close the gap of separation between positive law, on the
one hand, and morality and justice on the other. The conventional wisdom of the legal
positivists held that laws could be impeccably drafted and even-handedly administered and
still be hideously unjust: antebellum slave law in the United States and apartheid law in
South Africa were often cited as examples. But Fuller believed, as a matter of political
psychology, that there would be reluctance to use the forms of law—general and public
norms—to embody and inscribe injustice. He believed that ―coherence and goodness [had]
more affinity than coherence and evil‖, he thought bad things happened in the dark as
opposed to the sunlight of legality, and he maintained that ―even in the most perverted
regimes there is a certain hesitancy about writing cruelties, intolerances, and inhumanities
into law‖ (Fuller 1958: 636–7).
Fuller acknowledged that this link between legality and justice was tentative. It was certainly
controversial. But whether this connection held or not, he also wanted to insist that the
complete absence of respect for formal criteria of legality might deprive a system of power of
its status as law:
10. Modern Concepts of Rule of Law
The lecture entitled ‗The Rule of Law‘ was given by Lord Bingham in the House of Lords on 16
November 2006. Lord Bingham outlined 8 sub-rules which he believed comprised the rule of
law and these 8 principles enunciated by Lord Bingham had been regarded as the modern version
of the rule of law. Lord Bingham declared that ―the core of the existing doctrine of the rule of
law was that all public and private persons should be bound by and entitled to the benefit of laws
publicly and prospectively issued and publicly administered by the courts.‖ The view of Lord
Bingham could be said as filling in the gaps of Dicey‘s conception as it is more modern and
concerning the latest issue. The 8 principles are as below:
Sub-rule 1: The law must be accessible so far as possible, intelligible, clear and predictable.
Sub-rule 2: Questions of legal right and liability should generally be decided by application
of the law and not the exercise of the discretion.
Sub-rule 3: The law must apply equally to everyone, unless differences can be justified.
Sub-rule 4: The law must provide appropriate protection of essential and basic human rights.
Sub-rule 5: The parties in civil disputes must be able to resolve disputes without facing a
huge legal cost or excessive delays.
Sub-rule 6: The executive must use the powers given to them reasonably, in good faith, for
the proper purpose and must not exceed the limit s of these powers.
Sub-rule 7: There must be adjudicative procedural fairness.
Sub-rule 8: The state must comply with the obligations of international law which whether
deriving from treaty or international custom and practice governs the conduct of nations.
11. Conclusion
Rule of law is classical principle of administrative law. As a matter of fact this principle was one
of the principles that acted as impediment development of Administrative Law principles. The
irony further is that the rule of law is now an important part of modern Administrative Law.
Whereas the rule of law is still the one of the very important principles regulating in common
law countries and common law derived countries modern laws has denied some of the important
parts of rule of law as proposed by Dicey at the start of 19th Century.
SEPARATION OF POWER
1. Introduction
Separation of powers, also known as Trias Politica, is the idea that the government must be based
on ―three separate branches‖ where power is wielded, so they can keep a check on each other. In
essence, there are three organs in almost every state, entrusted with specific functions under the
Constitution; legislative, executive, and judiciary. The different tasks are assigned to them to run
the country. The distribution of powers among these three organs is not absolute. Under the
doctrine of Separation of Powers, a system of check and balance establishes to avoid tyranny
and abuse of power. This doctrine is adopted in the light of the fact that a single institution
holding all power may act arbitrarily as it would not be accountable to anyone for its actions,
which may affect the state negatively. This doctrine is a key feature of democracy.
In Pakistan, functions are separated from powers rather than the other way around. The idea of
the separation of powers is not properly followed in Pakistan, unlike in the US. The court has the
authority to overturn any unlawful legislation that the legislature passes.
Because it is unworkable, the majority of constitutional systems today do not have a tight
division of powers among the several organs in the traditional sense. Although the theory of
separation of powers is not expressly recognised in the Constitution in its absolute form, the
Constitution does provide provisions for a fair division of duties and authority among the three
branches of government.
2. Background
The term ―separation of powers‖ or ―trias–politica ― was initiated by Charles de Montesquieu.
For the first time, it was accepted by Greece and then it was widely used by the Roman Republic
as the Constitution of the Roman Republic. Its root is traceable in Aristotle and Plato when this
doctrine became a segment of their marvels. In 16th and 17th-century British politicians Locke
and Justice Bodin, a French philosopher also expressed their opinion regarding this doctrine.
Montesquieu was the first one who articulated this principle scientifically, accurately and
systemically n his book ― Esprit des Lois‖ (The Spirit Of Laws) which was published in the year
1785.
Montesquieu, a French scientist, originally proposed the doctrine of separation of powers in his
book ―Espirit des Louis‖ published in 1747. (The spirit of the laws). Montesquieu discovered
that when power is concentrated in the hands of a single person or a group of people, a despotic
government emerges. To avoid this predicament and to limit the government‘s arbitrary nature,
he argued that the three organs of the state, the Executive, Legislative, and Judiciary, should
have a clear distribution of power.
Montesquieu went on to clarify the idea in his own words:
―When the legislative and executive powers are united in the same person, or in the same
body or magistrates, there can be no liberty. Again, there is no liberty if the judicial
power is not separated from the legislative and executive powers. Where it joined with
the legislative power, the life and liberty of the subject would be exposed to arbitrary
control, for the Judge would then be the legislator. Where it joined with the executive
power, the Judge might behave with violence and oppression. There would be an end of
everything, were the same man or same body, whether of the nobles or of the people, to
exercise those three powers, that of enacting laws, that of executing the public
resolutions, and of trying the causes of individuals.”
Wade and Phillips provide three definitions of the separation of powers:
1. That one branch of government should not carry out the duties of another, such as giving
ministers legislative authority;
2. That one branch of the government should not exert control over or interfere with another
branch‘s performance of its duties, such as when the judiciary is separate from the
executive branch or when ministers are not answerable to Parliament;
3. That the same individuals should not serve in more than one of the three branches of
government, such as sitting as Ministers in Parliament.
Three formulations of structural classification of governmental powers are included in the
separation of powers theory:
 A single person should not serve in more than one of the government‘s three branches.
Ministers, for instance, should not be allowed to sit in the House of Commons.
 A government organ should not be allowed to meddle with another government organ.
 The functions of one organ of government should not be performed by another.
3. Meaning
The definition of separation of power is given by different authors. But in general, the meaning
of separation of power can be categorized into three features:
 A person forming a part of one organ should not form part of another organ.
 One organ should not interfere with the functioning of the other organs.
 One organ should not exercise the function belonging to another organ.
The separation of power is based on the concept of triaspolitica. This principle visualizes a
tripartite system where the powers are delegated and distributed among three organs outlining
their jurisdiction each.
4. Three-tier machinery of state government
It is impossible for any of the organs to perform all the functions systematically and
appropriately. So for the proper functioning of the powers, the powers are distributed among the
legislature, executive and judiciary. Now let‘s go into the further details of the functioning of
each organ.
(i) Legislative
The main function of the legislature is to enact a law. Enacting a law expresses the will of the
State and it also acts as the wain to the autonomy of the State. It is the basis for the
functioning of executive and judiciary. It is spotted as the first place among the three organs
because until and unless the law is framed the functioning of implementing and applying the
law can be exercised. The judiciary act as the advisory body which means that it can give the
suggestions to the legislature about the framing of new laws and amendment of certain
legislation but cannot function it.
(ii)Executive
It is the organs which are responsible for implementing, carrying out or enforcing the will of
the state as explicit by the constituent assembly and the legislature. The executive is the
administrative head of the government. It is called as the mainspring of the government
because if the executive crack-up, the government exhaust as it gets imbalanced. In the
limited sense, executive includes head of the minister, advisors, departmental head and his
ministers.
(iii)Judiciary
It refers to those public officers whose responsibility is to apply the law framed by the
legislature to individual cases by taking into consideration the principle of natural justice,
fairness.
5. Significance
As it is a very well known fact that whenever a large power is given in the hand of any
administering authority there are higher chances of maladministration, corruption and misuse of
power. This doctrine helps prevent the abuse of power. This doctrine protects the individual
from the arbitrary rule. The government is the violator and also protects individual liberty.
Summarily, the importance can be encapsulated in the following points:
 Ending the autocracy, it protects the liberty of the individual.
 It not only safeguards the liberty of the individual but also maintains the efficiency of the
administration.
 Focus on the requirement of independence of the judiciary
 Prevent the legislature from enacting an arbitrary rule.
6. Separation of Power in Pakistan
Going through the provisions of Constitution of Pakistan one may be ready to say that it has been
accepted in Pakistan but true separation of power is not possible in Pakistan because Pakistan is a
parliamentary democracy and in parliamentary form of government executive is part of
legislature hence to this extent the separation of power is not possible. Judiciary was also part of
executive at the time of promulgation of 1973 constitution but under the article 175 of
Constitution it was provided that The Judiciary shall be separated progressively from the
Executive within fourteen years from the commencing day and the powers were separated in
following manner
Legislature Parliament
Executive At the Federal level- President &
At the state level- Governor
Judiciary Supreme Court, High Court and all other subordinate courts
The Parliament is competent enough to make any law subject to the conditions of Constitution
and there are no restrictions on its law-making powers. The president power and functions are
given in the Constitution itself. The judiciary is self –dependent in its field and there is no
obstruction with its judicial functions either by Legislature or the Executive.
The doctrine of separation of power in a rigid sense means that when there is a proper
distinction between three organs and their functions and also there should be a system of check
and balance.
7. Global perspective
Separation of power has been accepted and adopted across the globe. The United States has one
of the most initially established versions of this doctrine, which finds its origin in its
constitution. The theory of separation of powers in various aspects has been included in certain
other constitutions around the world. The Australian Constitution favours the devolution of
legislative functions to the executive rather than judicial institutions. This idea is also believed to
be the foundation of the Sri Lankan Constitution. France is another country where this doctrine
has an effect, and this doctrine flows out of the French constitution. The United Kingdom too has
a separation of powers concept on an informal note. Some of the prominent countries that have
adopted this concept are as follows:
(i) United States
The concept of separation of powers is quite specifically stated in the US Constitution. It
gives Congress, which consists of the Senate and the House of Representatives, legislative
authority. The President has executive authority, and the Supreme Court and any further
Federal Courts that Congress may establish have judicial authority. The Constitution
specifically outlines the President‘s powers, and he is elected in a separate election for a
fixed term of four years. He is tasked by the Constitution with ensuring that the country‘s
laws are faithfully carried out. The President has the authority to nominate and dismiss the
executive officers known as the Cabinet, who are in charge of the major state departments.
This is done to maintain the separation between the executive and legislative branches of
government. Neither the President nor any of his secretaries may be members of the
Congress, and any member of the Congress may join the government only after resigning
from his membership. The President is normally irremovable from office, but the Senate has
the power to remove him through the process of impeachment if he commits high crimes and
misdemeanours such as bribery or treason. The after-effects of the Watergate scandal of 1972
on the President act as a prominent illustration of this. Once nominated, the Supreme Court‘s
judges are not subject to the authority of either Congress or the President. But they too could
be impeached and forced out of their positions.
The Supreme Court‘s authority was created in Marbury v. Madison in 1803 when it ruled that
the President‘s acts and the Acts of the legislature were both in violation of the Constitution.
The Supreme Court also found that any significant delegation of legislative authority by
Congress to executive agencies was in violation of the Constitution‘s tenet of the separation
of powers.
(ii) United Kingdom
Unlike the United States, the United Kingdom does have a separation of powers concept and
it exists in the country more on an informal note. The United Kingdom benefits more from
Black Stone‘s ―mixed government‖ with checks and balances doctrine. The U.K.
Constitution does not have separation of powers as an essential or defining principle.
Because there is no formal division of powers in the United Kingdom due to the lack of a
written constitution, any Act of Parliament that grants any power in violation of the concept
may be deemed unconstitutional. The Parliament continues to have undisputed authority, and
as a result, the Crown rules through ministers who are elected by and answerable to the
Parliament. The Act of Settlement, 1700, effectively cemented the judiciary‘s independence.
The Supreme Court operates with its powers separated from those of Parliament. The
Constitutional Reforms Act of 2005‗s Section 61 outlines the structure for judicial
appointments. Commission responsible for choosing judges for the Supreme Court and the
court of appeals. Thus, the Constitutional Reforms Act of 2005 has generally ensured the
independence of the court.
The three branches continue to significantly overlap and are not properly divided.
Administrative tribunals rather than regular courts handle many issues that emerge during the
course of government. However, by preserving key components of ―fair judicial procedure―,
the impartiality of the tribunals is kept intact. Senior justices have frequently stated that a
division of powers is the foundation of the British Constitution. It cannot be emphasised
enough how deeply rooted in the separation of powers the British Constitution is while being
mostly unwritten. Parliament makes the laws, and the judiciary interprets them.
(iii) Australia
The separation of powers in Australia is achieved by the partition of the Australian organs of
government into the legislative, executive, and judicial branches. According to this theory,
laws are created by the legislative, implemented by the executive branch, and then
interpreted by the court. The word and its use in Australia are a result of the Australian
Constitution‘s language and structure, which draws its inspiration from democratic ideas
ingrained in the Westminster system, the idea of a ‗responsible government‘, and the
American interpretation of the separation of powers.
The Australian political system does not always exhibit a strong separation of powers,
however, as a result of the Westminster system‘s norms. The executive is required to be
chosen from the legislative and must uphold its trust, resulting in a fusion between the two.
The Parliament, the executive government, and the judiciary are the respective headings of
the first three chapters of the Australian Constitution. Parliaments serve as the legislative
branch of government. Ministers and the departments and agencies they oversee make up the
executive branch. Judges and courts make up the judicial branch of government. Each of
these chapters starts with a section that vests the applicable power of the Commonwealth to
the proper people or organisations. On the other hand, responsible governance, in which the
legislative and the administration are essentially one, is a feature of the Constitution.
However, there is a lot of overlap in terms of both individuals and activities because the
ministry (executive) is chosen from and answerable to the parliament (legislature). The
distinction between the judiciary‘s divisions is clearer.
(iv) Canada
According to the Constitution Act of 1867, there shall be a legislative branch, an executive
branch, and a judicial branch. The monarch of Canada, working through their representative,
the Governor General of Canada, is granted executive authority at the federal level. The
Canadian Parliament, which consists of the monarch, the Senate, and the House of
Commons, is given the responsibility of passing laws. Although Parliament approved
provisions for the establishment of federal courts, the judicial authority is generally delegated
to the provincial superior courts. The Federal Court of Appeal, the Federal Court of Canada,
and the Supreme Court of Canada are currently considered to be federal courts.
The Prime Minister and other Cabinet ministers are members of Parliament, and Canada, like
other parliamentary nations utilising the Westminster system, combines the executive and
legislative departments. The two branches, however, play different roles and occasionally
even clash with one another. The judicial branch and the elected legislative and executive
branches fall under a considerably stricter definition of the separation of powers. According
to the Supreme Court of Canada, the Constitution of Canada‘s core value is judicial
independence. When it comes to carrying out their responsibilities and making decisions, the
courts are separate from the elected branches. Similar institutional features, such as the sharp
division between the judicial and elected institutions, also apply to provincial and territorial
governments.
(v) French
Despite the fact that France is credited with creating the theory of separation of powers, its
Constitution recognises it in a flexible way. The legislative branch is defined as distinct from
the executive branch in Articles 1 and 2 of the French constitution. Its dual court system is a
crucial element that preserves the separation of powers.
In France, there are two different types of courts: one handles all civil cases, while the other
handles administrative ones. The legislative, the executive branch, and the judiciary are the
other three separate branches that make up the French government. The laws are made by the
legislature. These laws are carried out by the executive branch. The executive branch can,
however, use its veto power to block the passage of a particular statute. This is a method of
controlling the legislature. Additionally, the judiciary has the authority to judge whether a
law approved by the legislature is constitutional. If a president or judge isn‘t carrying out
their responsibilities properly, the legislative branch has the authority to have them removed.
The legislative branch gives its approval to the judges chosen by the executive branch.
8. Demerits of separation of power
Although most nations have adopted this approach, it has not been without criticism. It has been
decried as undesirable in addition to being impossible. ―Montes was guilty of oversimplification.
He united his theory to a hasty and superficial analysis of the constitutional principles of
liberty.‖ Sabine said. According to Finer, it is useless to rigorously apply the doctrine of the
division of powers to contemporary circumstances. The following arguments have been used to
refute the separation of powers doctrine.
(i) Unrealistic in and of itself
It hasn‘t been discovered that concentrating one sort of power in one organ alone is
conceivable in practice. In addition to being a body that makes laws, the legislature also has
oversight responsibilities for the executive, which is an administrative entity. The judiciary
has some rule-making authority in addition to performing judicial duties.
(ii) Deadlocks and inefficiencies can result from the separation of powers:
The division of powers might result in impasses and ineffective government operations. It
could lead to circumstances where each organ engages in combat and becomes stuck with the
other two organs.
(iii) Not completely achievable
This notion is not entirely achievable. The legislature also has some judicial duties, while the
executive plays a little part in rulemaking. The legislature, for instance, carries out judicial
actions like impeachment.
Separation of powers causes administrative challenges, which is number three. Making the
government‘s organs cooperate, coordinate, and live in harmony becomes challenging.
Modern governments must ―coordinate‖ their powers rather than strictly separate them in
order to function effectively.
(iv) Could cause confusion and deadlock
The division of powers can occasionally cause rivalry, mistrust, and conflict amongst the
several branches of government. It might cripple the government while causing discord and
uncertainty. As a result, even in times of emergency, the government frequently makes poor
judgments. The principle of the separation of powers, in Finer‘s words, ―throws governments
into alternate phases of coma and convulsion.‖ According to a different academic, ―division
of powers equals confusion of powers.‖
(v) Power inequality
Although this theory is founded on the equality of powers assumption, this premise has
flaws. While the administration is most powerful under a presidential system, the legislature,
which represents the people, is most powerful in a parliamentary one.
Separation of powers is one of the factors that contribute to liberty, but it is not the only one.
Liberty also heavily depends on people‘s minds, perspectives, political awareness, customs
and traditions, basic rights, the rule of law, the independence of the judiciary, economic
equality, and other factors.
(vi) Could upset the balance of power
As it carries out several crucial tasks, the government has become stronger. It is necessary to
offer welfare to the people in addition to solving problems and managing crises. All of this
has increased the executive‘s authority and thrown off the balance between the three
branches of government. Not so much the ―division‖ of authorities as their ―fusion‖ is

necessary for planning, security, and welfare.
As a result, the theory of separation of powers in its strictest definition is seen undesirable
and unworkable. As a result, it is not entirely acknowledged in any nation on earth. However,
its importance resides in emphasising the checks and balances that are required to avoid
abuse of the vast executive powers.
9. Conclusion
―Power corrupts and absolute power tends to corrupt absolutely‖ – Lord Action.
Exercising the doctrine of separation of power cannot be applied in the strict sense in any
contemporary countries like The United States, Nepal, France etc. But still, this doctrine has
relevancy nowadays. Our government is an organized system and it is very difficult to divide
into watertight compartments. For the smooth functioning of any government, cooperation and
coordination among all three wings of the government are necessary. Professor Garner said that
―this doctrine is impracticable as working principle of Government. It is difficult to divide the
functions of each organ on an accurate basis‖.
Although liberty heavily depends on the balance between the three branches of government,
increased concern for welfare and security has resulted in the transfer of greater authority to the
executive. The liberty of the individual, as well as that person‘s wellbeing and the security of the
state, should all be equally important in a perfect society. Without a question, this would
necessitate a strong government, but it would also necessitate a system of checks and balances
and the division of powers. It is applicable in almost all countries up to a certain extent.
FUNDAMENTAL RIGHTS AND PRINCIPLES OF POLICY

FUNDAMENTAL RIGHTS
Article 8. Laws inconsistent with or in derogation of fundamental rights to be void.
(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with
the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and
any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) The provisions of this Article shall not apply to :-
(a) any law relating to members of the Armed Forces, or of the police or of such other
forces as are charged with the maintenance of public order, for the purpose of ensuring the
proper discharge of their duties or the maintenance of discipline among them; or
(b) any of the:-
(i) laws specified in the First Schedule as in force immediately before the commencing
day or as amended by any of the laws specified in that Schedule;
(ii) other laws specified in Part I of the First Schedule;
and no such law nor any provision thereof shall be void on the ground that such
law or provision is inconsistent with, or repugnant to, any provision of this Chapter.
(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two
years from the commencing day, the appropriate Legislature shall bring the laws specified in
[Part II of the First Schedule] into conformity with the rights conferred by this Chapter:
Provided that the appropriate Legislature may by resolution extend the said period of two years
by a period not exceeding six months.
Explanation:- If in respect of any law [Majlis-e-Shoora (Parliament)] is the appropriate
Legislature, such resolution shall be a resolution of the National Assembly.
(5) The rights conferred by this Chapter shall not be suspended except as expressly provided by
the Constitution.
Article 9. Security of person.

No person shall be deprived of life or liberty save in accordance with law.
Article 10. Safeguards as to arrest and detention

(1) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest, nor shall he be denied the right to consult and be
defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before a Magistrate
within a period of twenty-four hours of such arrest, excluding the time necessary for the
journey from the place of arrest to the court of the nearest Magistrate, and no such person shall
be detained in: custody beyond the said period without the authority of a Magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under
any law providing for preventive detention.
(4) No law providing for preventive detention shall be made except to deal with persons acting
in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or
external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no
such law shall authorise the detention of a person for a period exceeding three months unless
the appropriate Review Board has, after affording him an opportunity of being heard in person,
reviewed his case and reported, before the expiration of the said period, that there is, in its
opinion, sufficient cause for such detention, and, if the detention is continued after the said
period of three months, unless the appropriate Review Board has reviewed his case and
reported, before the expiration of each period of three months, that there is, in its opinion,
sufficient cause for such detention.
Explanation-I: In this Article, "the appropriate Review Board" means:-

(i) in the case of a person detained under a Federal law, a Board appointed by the Chief
Justice of Pakistan and consisting of a Chairman and two other persons, each of whom
is or has been a Judge of the Supreme Court or a High Court; and
(ii) in the case of a Person detained under a Provincial law, a Board appointed by the
Chief Justice of the High Court concerned and consisting of a Chairman and two other
persons, each of whom is or has been a Judge of a High Court.
Explanation-II: The opinion of a Review Board shall be expressed in terms of the views of
the majority of its members.
(5) When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, within fifteen days from such
detention, communicate to such person the grounds on which the order has been made, and
shall afford him the earliest opportunity of making a representation against the order:
Provided that the authority making any such order may refuse to disclose facts which such
authority considers it to be against the public interest to disclose.
(6) The authority making the order shall furnish to the appropriate Review Board all
documents relevant to the case unless a certificate, signed by a Secretary to the Government
concerned, to the effect that it is not in the public interest to furnish any documents, is
produced.
(7) Within a period of twenty-four months commencing on the day of his first detention in
pursuance of an order made under a law providing for preventive detention, no person shall be
detained in pursuance of any such order for more than a total period of eight months in the case
of a person detained for acting in a manner prejudicial to public order and twelve months in
any other case:
Provided that this clause shall not apply to any person who is employed by, or works for, or
acts on instructions received from, the enemy or who is acting or attempting to act in a manner
prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits
or attempts to commit any act which amounts to an anti-national activity as defined in a
Federal law or is a member of any association which has for its objects, or which indulges in,
any such anti-national activity.
(8) The appropriate Review Board shall determine the place of detention of the person detained
and fix a reasonable subsistence allowance for his family.
(9) Nothing in this Article shall apply to any person who for the time being is an enemy alien.
Article 10-A. Right to fair trial:

For the determination of his civil rights and obligations or in any criminal charge against him a
person shall be entitled to a fair trial and due process.
`
Article 11. Slavery, forced labour, etc. prohibited
(1) Slavery is non-existent and forbidden and no law shall permit or facilitate its introduction
into Pakistan in any form.
(2) All forms of forced labour and traffic in human beings are prohibited.
(3) No child below the age of fourteen years shall be engaged in any factory or mine or any
other hazardous employment.
(4) Nothing in this Article shall be deemed to affect compulsory service:-
(a) By any person undergoing punishment for an offence against any law; or
(b) Required by any law for public purpose provided that no compulsory service shall be of
a cruel nature or incompatible with human dignity.
Article 12. Protection against retrospective punishment

(1) No law shall authorize the punishment of a person:-
(a) For an act or omission that was not punishable by law at the time of the act or omission;
or
(b) For an offence by a penalty greater than, or of a kind different from, the penalty
prescribed by law for that offence at the time the offence was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or
subversion of a Constitution in force in Pakistan at any time since the twenty-third day of
March, one thousand nine hundred and fifty-six, an offence.
Article 13. Protection against double punishment and self-incrimination.

No person:-
(a) Shall be prosecuted or punished for the same offence more than once; or
(b) Shall, when accused of an offence, be compelled to be a witness against himself.
Article 14. Inviolability of dignity of man, etc.

(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.
(2) No person shall be subjected to torture for the purpose of extracting evidence.
Article 15. Freedom of movement, etc.

Every citizen shall have the right to remain in, and, subject to any reasonable restriction
imposed by law in the public interest, enter and move freely throughout Pakistan and to reside
and settle in any part thereof.
Article 16. Freedom of assembly.

Every citizen shall have the right to assemble peacefully and without arms, subject to any
reasonable restrictions imposed by law in the interest of public order.
Article 17. Freedom of association:

(1) Every citizen shall have the right to form associations or unions, subject to any reasonable
restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order
or morality.
(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a
member of a political party, subject to any reasonable restrictions imposed by law in the
interest of the sovereignty or integrity of Pakistan and such law shall provide that where the
Federal Government declares that any political party has been formed or is operating in a
manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall,
within fifteen days of such declaration, refer the matter to the Supreme Court whose decision
on such reference shall be final.
(3) Every political party shall account for the source of its funds in accordance with law.
Article 18. Freedom of trade, business or profession:

Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the
right to enter upon any lawful profession or occupation, and to conduct any lawful trade or
business:
Provided that nothing in this Article shall prevent:-
(a) The regulation of any trade or profession by a licensing system; or
(b) The regulation of trade, commerce or industry in the interest of free competition
therein; or
(c) The carrying on, by the Federal Government or a Provincial Government, or by a
corporation controlled by any such Government, of any trade, business, industry or service,
to the exclusion, complete or partial, of other persons.
Article 19. Freedom of speech, etc.

Every citizen shall have the right to freedom of speech and expression, and there shall be
freedom of the press, subject to any reasonable restrictions imposed by law in the interest of
the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly
relations with foreign States, public order, decency or morality, or in relation to contempt of
court, commission of or incitement to an offence.
Article 19-A. Right to information:

Every citizen shall have the right to have access to information in all matters of public
importance subject to regulation and reasonable restrictions imposed by law.
Article 20. Freedom to profess religion and to manage religious institutions.

Subject to law, public order and morality:-
(a) Every citizen shall have the right to profess, practice and propagate his religion; and
(b) Every religious denomination and every sect thereof shall have the right to establish,
maintain and manage its religious institutions.
Article 21. Safeguard against taxation for purposes of any particular religion.
No person shall be compelled to pay any special tax the proceeds of which are to be spent on
the propagation or maintenance of any religion other than his own.
Article 22. Safeguards as to educational institutions in respect of religion, etc.

(1) No person attending any educational institution shall be required to receive religious
instruction, or take part in any religious ceremony, or attend religious worship, if such
instruction, ceremony or worship relates to a religion other than his own.
(2) In respect of any religious institution, there shall be no discrimination against any
community in the granting of exemption or concession in relation to taxation.
(3) Subject to law:
(a) No religious community or denomination shall be prevented from providing religious
instruction for pupils of that community or denomination in any educational institution
maintained wholly by that community or denomination; and
(b) No citizen shall be denied admission to any educational institution receiving aid from
public revenues on the ground only of race, religion, caste or place of birth.
(4) Nothing in this Article shall prevent any public authority from making provision for the
advancement of any socially or educationally backward class of citizens.
Article 23. Provision as to property.
Every citizen shall have the right to acquire, hold and dispose of property in any part of
Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the
public interest.
Article 24. Protection of property rights.
(1) No person shall be compulsorily deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public
purpose, and save by the authority of law which provides for compensation therefore and either
fixes the amount of compensation or specifies the principles on and the manner in which
compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of:-
(a) Any law permitting the compulsory acquisition or taking possession of any property for
preventing danger to life, property or public health; or
(b) Any law permitting the taking over of any property which has been acquired by, or
come into the possession of, any person by any unfair means, or in any manner, contrary to
law; or
(c) Any law relating to the acquisition, administration or disposal of any property which is
or is deemed to be enemy property or evacuee property under any law (not being property
which has ceased to be evacuee property under any law); or
(d) Any law providing for the taking over of the management of any property by the State
for a limited period, either in the public interest or in order to secure the proper
management of the property, or for the benefit of its owner; or
(e) Any law providing for the acquisition of any class of property for the purpose of
(i) Providing education and medical aid to all or any specified class of citizens or
(ii) Providing housing and public facilities and services such as roads, water supply,
sewerage, gas and electric power to all or any specified class of citizens; or
(iii) Providing maintenance to those who, on account of unemployment, sickness,

infirmity or old age, are unable to maintain themselves ; or
(f) Any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as is referred
to in this Article, or determined in pursuance thereof, shall not be called in question in any
court.
Article 25. Equality of citizens.

(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special provision for the
protection of women and children.
Article 25-A. Right to education:

The State shall provide free and compulsory education to all children of the age of five to
sixteen years in such manner as may be determined by law.
Article 26. Non-discrimination in respect of access to public places.

(1) In respect of access to places of public entertainment or resort not intended for religious
purposes only, there shall be no discrimination against any citizen on the ground only of race,
religion, caste, sex, residence or place of birth.
(2) Nothing in clause (1) shall prevent the State from making any special provision for women
and children.
Article 27. Safeguard against discrimination in services.

(1) No citizen otherwise qualified for appointment in the service of Pakistan shall be
discriminated against in respect of any such appointment on the ground only of race, religion,
caste, sex, residence or place of birth:
Provided that, for a period not exceeding forty years from the commencing day, posts may be
reserved for persons belonging to any class or area to secure their adequate representation in
the service of Pakistan:
Provided further that, in the interest of the said service, specified posts or services may be
reserved for members of either sex if such posts or services entail the performance of duties
and functions which cannot be adequately performed by members of the other sex.
Provided also that under-representation of any class or area in the service of Pakistan may be
redressed in such manner as may be determined by an Act of Majlis-e-Shoora (Parliament).
(2) Nothing in clause (1) shall prevent any Provincial Government, or any local or other
authority in a Province, from prescribing, in relation to any post or class of service under that
Government or authority, conditions as to residence in the Province for a period not exceeding
three years, prior to appointment under that Government or authority.
Article 28. Preservation of language, script and culture.
Subject to Article 251 any section of citizens having a distinct language, script or culture shall
have the right to preserve and promote the same and subject to law, establish institutions for
that purpose.
CHAPTER 2
PRINCIPLES OF POLICY
Article 29. Principles of Policy
(1) The Principles set out in this Chapter shall be known as the Principles of Policy, and it is
the responsibility of each organ and authority of the State, and of each person performing
functions on behalf of an organ or authority of the State, to act in accordance with those
Principles in so far as they relate to the functions of the organ or authority.
(2) In so far as the observance of any particular Principle of Policy may be dependent upon
resources being available for the purpose, the Principle shall be regarded as being subject to
the availability of resources.
(3) In respect of each year, the President in relation to the affairs of the Federation, and the
Governor of each Province in relation to the affairs of his Province, shall cause to be prepared
and laid before each House of Majlis-e-Shoora (Parliament) or, as the case may be, the
Provincial Assembly, a report on the observance and implementation of the Principles of
Policy, and provision shall be made in the rules of procedure of the National Assembly and the
Senate or, as the case may be, the Provincial Assembly, for discussion on such report.
Article 30. Responsibility with respect to Principles of Policy

(1) The responsibility of deciding whether any action of an organ or authority of the State, or
of a person performing functions on behalf of an organ or authority of the State, is in
accordance with the Principles of Policy is that of the organ or authority of the State, or of the
person, concerned.
(2) The validity of an action or of a law shall not be called in question on the ground that it is
not in accordance with the Principles of Policy, and no action shall lie against the State, any
organ or authority of the State or any person on such ground.
Article 31. Islamic way of life

(1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to
order their lives in accordance with the fundamental principles and basic concepts of Islam and
to provide facilities whereby they may be enabled to understand the meaning of life according
to the Holy Quran and Sunnah.
(2) The State shall endeavour, as respects the Muslims ofPakistan,
(a) To make the teaching of the Holy Quran and Islamiat compulsory, to encourage and
facilitate the learning of Arabic language and to secure correct and exact printing and
publishing of the Holy Quran;
(b) To promote unity and the observance of the Islamicmoral standards; and
(c) To secure the proper organisation of zakat, ushr, auqaf and mosques.
Article 32. Promotion of local Government institutions

The State shall encourage local Government institutions composed of elected representatives of
the areas concerned and in such institutions special representation will be given to peasants,
workers and women.
Article 33. Parochial and other similar prejudices to be discouraged

The State shall discourage parochial, racial, tribal sectarian and provincial prejudices among
the citizens.
Article 34. Full participation of women in national life
Steps shall be taken to ensure full participation of women in all spheres of national life.
Article 35. Protection of family, etc.

The State shall protect the marriage, the family, the mother and the child.
Article 36. Protection of minorities
The State shall safeguard the legitimate rights and interests of minorities, including their due
representation in the Federal and Provincial services.
Article 37. Promotion of social justice and eradication of social evils
The State shall:
(a) Promote, with special care, the educational and economic interests of backward classes
or areas;
(b) Remove illiteracy and provide free and compulsory secondary education within
minimum possible period;
(c) Make technical and professional education generally available and higher education
equally accessible to all on the basis of merit;
(d) Ensure inexpensive and expeditious justice;
(e) Make provision for securing just and humane conditions of work, ensuring that children
and women are not employed in vocations unsuited to their age or sex, and for maternity
benefits for women in employment;
(f) Enable the people of different areas, through education, training, agricultural and
industrial development and other methods, to participate fully in all forms of national
activities, including employment in the service of Pakistan;
(g) Prevent prostitution, gambling and taking of injurious drugs, printing, publication,
circulation and display of obscene literature and advertisements;
(h) Prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the
case of non-Muslims, religiouspurposes; and
(i) Decentralise the Government administration so as to facilitate expeditious disposal of its
business to meet the convenience and requirements of the public.

Article 38. Promotion of social and economic well being of the people
The State shall:
(a) Secure the well-being of the people, irrespective of sex, caste, creed or race, by
raising their standard of living, by preventing the concentration of wealth and means of
production and distribution in the hands of a few to the detriment of general interest and by
ensuring equitable adjustment of rights between employers and employees, and landlords
and tenants;
(b) Provide for all citizens, within the available resources of the country, facilities for
work and adequate livelihood with reasonable rest and leisure;
(c)Provide for all persons employed in the service of Pakistan or otherwise, social security
by compulsory social insurance or other means;
(d) Provide basic necessities of life, such as food, clothing, housing, education and
medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are
permanently or temporarily unable to earn their livelihood on account of infirmity, sickness
or unemployment;
(e)Reduce disparity in the income and earnings of individuals, including persons in the
various classes of the service ofPakistan;
(f) Eliminate riba as early as possible and
(g) Ensure that the shares of the Provinces in all Federal services, including
autonomous bodies and corporations established by, or under the control of, the Federal
Government, shall be secured and any omission in the allocation of the shares of the
Provinces in the past shall be rectified.
Article 39. Participation of people in Armed Forces
The State shall enable people from all parts of Pakistan to participate in the Armed Forces of
Pakistan.
Article 40. Strengthening bonds with Muslim world and promoting International peace
The State shall endeavour to preserve and strengthen fraternal relations among Muslim
countries based on Islamic unity, support the common interests of the peoples of Asia, Africa
and Latin America, promote international peace and security, foster goodwill and friendly
relations among all nations and encourage the settlement of international disputes by peaceful
means.
DIFFERENCE BETWEEN FUNDAMENTAL RIGHTS AND PRINCIPLES OF POLICY
Fundamental rights
Fundamental Rights are described as the basic rights guaranteed to every citizen of the country
under the constitution, that helps in the proper and balanced development of personality. These
are written in Part II of the Constitution which ensures civil liberty to all the citizens so that they
can lead their lives peacefully. Moreover, they also prevent the State from intruding their
freedom.
Fundamental Rights apply to all the citizens of the country equally, regardless of their race,
caste, creed, sex, place of birth, religion, etc. Violation of the fundamental rights may lead to
punishment under the Pakistan Penal Code (PPC), based on the discretion of the judiciary. At
present, the Pakistan Constitution recognizes seven fundamental rights, they are:
The fundamental rights in constitution of Pakistan
• No person shall be deprived of life or liberty, save in accordance with law (article 9)
• Safeguard as to arrest and detention. All arrested person must be informed of grounds of
their arrest, they have right to consult and defended by lawyer of their choice.
• Right of fair trial under article 10A
• Slavery, forced labor is prohibited and no child under age of 14 year be employed in
factory and mines.
• There shall be protection against retrospective punishment
• There shall be protection against double punishment and self-incrimination.
• Freedom of movement to everyone
• Freedom of assembly for all citizens
• Freedom of association for all citizens
• There shall be freedom of trade, business and profession for all citizens.
• All citizens shall have right to have access to information in all matters of public
importance under article 19A.
• Freedom to profess religion and to manage religious institution in country
• Safeguard against the taxation for the purposes of any particular religion.
• Safeguard as to educational institutes in respect of religion etc.
• All citizens have right to acquire, hold and dispose of property in any part of Pakistan.
• Protection of property rights of owners.
• All citizens are equal and there shall be no discrimination on bases of sex etc.
• Free and compulsory education to all children of age 5 to 16 by Government
• No discrimination in respect of access to public places.
• Safeguard against discrimination in services.
• All citizens have right to preserve their particular language, script and culture
Principle of Policy
As it is evident from the name, Directive Principles of State Policy are the instructions given to
the federal and state government of the country, so as to refer them while formulating the laws
and policies, and to ensure a just society. The principles are embodied in Part II Chapter 2 and
listed in article 29 to 40 of the constitution.
(I) Islamic way of life:
(II) Promotion of local Government institutions:
(III) Participation of woman in national affairs:
(IV) Protection of family ETC.
(V) Parochial and other similar prejudices to be discouraged:
(VI) Protection of minorities:
(VII) Promotion of social justice and eradication of social evils:
(a) Promotion of Backward Areas:
(b) Free Education:

(c) Professional Education:
(d) Speedy Justice:
(e) Better conditions of work;
(f) Participation of people in National Activities:
(g) End of social evils:
(h) Prevention of Alcoholic Liquor:
(i) Decentralization of Government Administration:
(VIII) Promotion of social and economic well-being of the people:
(a) Facilities for work:
(b) Social Insurance:
(c) Basic necessities of Life:
(d) Reduce disparity in the income:
(e) End of usury:
(IX) Participation of people in armed forces:
(X) Foreign relation:
(XI) International peace:
(XII) Strengthening bonds with Muslim world:
Fundamental Rights Directive Principles of State Policy
Part 2 of the Constitution of Pakistan

Directive Principles are written in Part 2
contains the Fundamental Rights guaranteed
chapter 2 of the Constitution of Pakistan.
to the citizens of Pakistan. Articles 8-28 of
They are given in Articles 29-40 of the
the Constitution of Pakistan deal with
Constitution of Pakistan.
Fundamental Rights.
The basic rights that are guaranteed to Directive Principles of the Pakistan
Pakistan citizens by the Constitution of constitution are the guidelines to be
Pakistan are known as Fundamental Rights followed by the Government while framing
policies.
Political Democracy is established in Economic and Social Democracy is

Pakistan with the help of Fundamental established with the help of the Directive
Rights given in the Constitution of Pakistan. Principles of State Policy
The welfare of the entire community is

The welfare of each and every citizen is
fostered with the help of Directive
promoted through the Fundamental Rights
Principles.
Violation of Directive Principles is not a

As per the law, the violation of Fundamental
punishable crime unlike violation of
Rights is punishable.
Fundamental Rights
Fundamental Rights are justiciable as they Directive Principles are not justiciable as
can be enforced legally by the courts if there they cannot be enforced by the courts if
is a violation. there is a violation.
If there is a law in violation of Directive

If there is a law which is in violation of
Principles, then the courts do not have the
fundamental rights then the courts can
power to declare it as invalid and
declare it as invalid and unconstitutional.
unconstitutional.
Fundamental Rights are sometimes Directive Principles are directions for the
considered as a kind of restrictions imposed Government in helping it to achieve some
on the State. particular objectives.
Directive Principles of State Policy can

Fundamental rights can be suspended during
never be suspended under any
a national emergency.
circumstances.

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GOVERNMENT & POLICY BY SIR UMAR

WHAT IS JURISPRUDENCE? & ITS NATURE OF JURISPRUDENCE

Dias and Hughes

IMPERATIVE / COMMAND THEORY OF LAW

NATURAL LAW THEORY

3. Origin of the theory

FEMINIST PHILOSOPHY OF LAW

4. Types of Feminism: The Four Waves

1. Islamic Jurisprudence [FIQH]

Generally it means law really rules and justice should prevail.

According to Black Law Dictionary:

3. Definition of rule of law:

4. Origin of term Rule of law

5.Different names of the doctrine in different eras

Romans called it ―Jus Natrale‖.

They called rule of Laws as ―Law of God‖.

(iii)According to Hobbes, Locke & Roussueal:

They called rule of Law as ―Social Contract‖ or the ―Natural Law‖.

(iv)In Modern World

In modern world we called this doctrine as Rule of Law.

6. Concept of Rule of Law

(iii)They must be free from all bias.

(v) They should give reasons for the decisions clearly.

(vi) They must follow guided principles of law and precedents.

(vii) The person who hears must also decide.

(viii) Decisions must be free from all executive pressure.

7. Dicey’s exposition of Rule of Law

(ii) Equality before Law

(iii)Predominance of Legal spirit.

(i)Absolute Supremacy of Law

(c)Punishment According to Law:

(d)Principle of Natural Justice:

(ii) Equality Before Law:

(iii) Predominance of Legal Spirit:

8. Criticism on Dicey’s exposition

(ii) Protection to Govt. officials from being sued.

(iii)Immunity to foreign rulers and diplomats.

(iv)Growth of administrative justice (tribunals).

(v)Crown to terminate any contract of services.

9. History of the Rule of Law

branches of government. Not so much the ―division‖ of authorities as their ―fusion‖ is

FUNDAMENTAL RIGHTS AND PRINCIPLES OF POLICY

Article 9. Security of person.

Article 10. Safeguards as to arrest and detention

Explanation-I: In this Article, "the appropriate Review Board" means:-

Article 10-A. Right to fair trial:

Article 12. Protection against retrospective punishment

Article 13. Protection against double punishment and self-incrimination.

Article 14. Inviolability of dignity of man, etc.

Article 15. Freedom of movement, etc.

Article 16. Freedom of assembly.

Article 17. Freedom of association:

Article 18. Freedom of trade, business or profession:

Article 19. Freedom of speech, etc.

Article 19-A. Right to information:

Article 20. Freedom to profess religion and to manage religious institutions.

Article 22. Safeguards as to educational institutions in respect of religion, etc.

(iii) Providing maintenance to those who, on account of unemployment, sickness,

Article 25. Equality of citizens.

Article 25-A. Right to education:

Article 26. Non-discrimination in respect of access to public places.

Article 27. Safeguard against discrimination in services.

Article 30. Responsibility with respect to Principles of Policy