SUBJECT: JURISPRUDENCE

NAME: SOURIKA JANA

PRN: 20010223063

GROUP III

DIVISION D

BA LLB (2020-2025)

ANSWER 1

John Locke was born at a time when the European rulers were autocratic in nature.
Natural liberty was at stake. Thus, the emphasis shifted to the need of an institution
which would act as a protector of individual rights.

John Locke’s theory of social contract

In John Locke’s state of nature, men lived in a state of perfect freedom where they
were free to determine their actions as they seemed fit. They lived in a state of perfect
equality where they were not subjected to the will or authority of any superior.

However, the need was felt for as people kept violating other’s rights as there was no
one but himself to judge their actions. There was no security to their life and property.
Hence to bring an end to this dystopian world, the need was felt for a sovereign who
would protect them from outside threat as well as provide security to their life and
property. In contrast to Hobbes’ theory of social contract, Locke believed people
retained their natural rights but only gave up their right to be rule to the sovereign.

The inalienable rights which weren’t given to the sovereign were that of

 Life
 Property
 Equality

Locke, in contrast to Hobbes, supported a government with limited powers and

rejected absolute monarchy. The laws by the sovereign would be contracted with “the
common good” in mind. If the sovereign violates the natural rights of the people, it
would be considered a breach of the terms of social contract and hence the people
would be empowered to overthrow the sovereign.

Locke however made no mention of judiciary in his theory despite focussing on the
executive and legislature. He mentioned judiciary in passing as an institution to
determine if the government had exceeded its authority.

In Locke’s theory the government is formed by popular majority and people had the
right to decide their representative. Hence the sovereign consisted of people who were
chosen among the masses themselves.
He also placed emphasis on separation of executive from the legislature. In a well
framed political order, the legislative and judiciary would be separate authorities with
no intermingling. The executive would have the power of discretion to execute laws
passed by the legislature.

One of the remarkable parts of his theory is that he believed the most accurate check
on the powers of the government would be the people themselves. If they find that the
legislature is acting unscrupulously, they have the power to overthrow the government
by exercising their right to resistance and revolution. In comparison to Locke, Hobbes
believed in absolute power of the sovereign and the entire future of the state –
whether it would be a democracy or autocracy- vested on one person and his ability to
decide what is just. In Hobbes’ theory the only way to punish the sovereign for
exceeding his limits was divine punishment.

In these ways Locke was successful in putting a restraint on unjust laws enacted by the
sovereign:

 Government with limited powers

 Separation of executive and legislature
 Popular majority
 Inalienable rights that could not be encroached
 Power of people to overthrow the government

Influence of John Locke’s theory on Indian Legal System

Separation of executive and legislature

The Indian legal system follows the doctrine separation of powers. The government is
divided into legislature, executive and judiciary. It can be said that the roots of this
doctrine lie in Locke’s theory of separation of executive and legislature even though he
made no mention of judiciary.

The President of India is appointed by the Prime Minister of the country in accordance
to article 75. In addition, the President has the power to summon, adjourn or even
dissolve the Lok Sabha in accordance to Article 85(2)(b).

Power to overthrow the government

The people of India also have the power to choose their representatives and overthrow
the government the moment they feel their needs aren’t being met. Article 324 of the
Indian constitution empowers an independent body called the election commission to
organise free and fair elections for formation of democracy.

Locke also believed in people’s powers to start a revolution in case the government
went astray.

Popular majority

The government of India is constructed by the people electing their representatives to

the legislature and Lok Sabha under universal adult franchise. Every citizen of India
who is above the age of 18 and has no disbarment by the law is able to cast their vote
and select their representative. This is similar to Locke’s theory of popular majority.
Individual liberty and preamble

Locke placed extreme importance on individual liberty and called them “natural rights”.
These inalienable rights were a means of protection of the people against a tyrannical
ruler and not even the sovereign could encroach upon them.

The Indian constitution too provides Fundamental Rights to citizens which are
inalienable in nature. Not even the three wings of the government can encroach upon
these rights given under part III of the constitution.

Even during a state of emergency when all rights are suspended, Article 20 and 21
which guarantees right to life and fair prosecution against an offense will not be
suspended.

Laissez Faire

The Indian economy is that of a free market with minimal interference from the
government which is also found in Locke’s theory.

ANSWER 2

Law defines the political organisation and structure of a society, provides a scheme of
individual relationship between the people and the society and provides a mechanism
for resolution of dispute arising between the people. Law has been defined from
various viewpoints like:

i. Based on reason or ethics

ii. Based on its source
iii. Source in custom, legislation or precedent
iv. Ends which it seeks to achieve

Paton defined law as “Law maybe shortly be described in terms of a legal order tacitly
or formally accepted by a community. It consists of a body of rules which are seen to
operate as binding rules in that community backed by some mechanism accepted by
the community by means of which sufficient compliance with the rules maybe secures
to enable the system, or set of rules to continue to be seen as binding in nature.”

Sources of law

A source of law means either the manufacture or origin of a law or the ability to impart
a rule or norm the quality of law. There are numerous sources of law. However, it
depends on a particular school of jurisprudence to determine which source they
consider to be valid.

For example, positivists consider the source of law to be the sovereign. Naturalists
consider the source of law to be reason, equity and justice. Historical school considers
customs to be the sources of law whereas theologists believe God to be the real source
of law.
Austin three meanings of sources of law include

1. direct authority that is a sovereign

2. historical documents

3. causes switch give the rules of the society the force of law that is legislation,
custom etc

Salmond classified the sources of law into two categories:

 Formal sources : these are the sources which are recognised by the law. These
are authoritative in nature. It gives validity and legitimacy to the rule of law.
Example: constitution, statutes etc
 Material sources : these are the sources that provide material to the rule of law
but it has no power to declare a rule valid or not. They are further divided into
historical and legal sources.
o Historical sources: they are known in fact only and do not possess any
authority. They operate indirectly. Example: legal writing, juristic opinions
etc
o Legal sources: they are present in fact but also in law and have authority.
They operate directly or indirectly. Example: legislation, precedent,
customs etc.

Criticism of Salmond’s classification of law:

i. Allen contended that Salmond has given far less importance to historical sources
of law
ii. Keeton criticised that state cannot be contended as law in modern sense of the
word and only a medium to enforce the said law.
iii. According to Keeton, the sources of law is the material out of which the law is
eventually carved by the activity of judges. He classified sources of law into two
broad categories: (1) Binding sources of law e.g., legislation, precedent, and
customs; and (2) Persuasive sources e.g., equity principles, professional
opinions, and writings of jurists.

Customs

Custom is the oldest and most important source of law.

According to Herbert Spencer “before any definite agency for social control is
developed there exists a control arising partly from the public opinion of the living and
most largely from the public opinion of the dead. Thus, it is tradition passing from one
generation to another that originally governed human conduct. This tradition is called
“custom”.”

Reasons for recognition of custom:

i. Conviction or faith
 ii. Constant use

It is presumed that customs must have been followed on account of the utility and also
because they enjoyed the expressed or implied sanction of the society. It has been
proven that a law which is custom with legal recognition is quicker to gain legitimacy
than a new law altogether.

Essentials of a valid custom:

1. Antiquity : A custom must be of long standing and not created in a day.

2. Continuance & Certainty : The custom must have been in use continuously
and it should not be vague or indefinite.
3. Peaceable enjoyment : it must have been enjoyed peaceably.
4. Obligatory force : there must be no law barring the propagation of such
custom and it must be enjoyed as a right.
5. Reasonableness: A custom is reasonable if no good legal reason can be
assigned against it.
6. Conformity with statutory law :No custom however old or reasonable can
stand if it conflicts with a statute or legislation.
7. Consistent with morality and public policy: Custom must not be inconsistent
with morality or public policy.

Custom as the mother of substantive law

Substantive law is essentially the law that deals with the rights and obligations of an
individual. It tells the people how they are supposed to act and what are their rights in
respect to a certain situation.

It is when these customs which have been followed for time immemorial gain legal
validity they result in formation of substantive laws.

For example, in India, there are numerous personal laws which govern the structure of
family in society. Laws dealing with marriage, divorce and inheritance all have their
roots in customs.

From the Vedic age, there have been some form of propagation of marriage by the
Brahmins. There were certain rights and rituals which were followed for a marriage to
be declared valid. Even in those times we had the concept of monogamy, the concept
of legitimate heirs and any illegitimate marriage was considered to be a shameful act.
These marriages and children outside the accepted one were not considered valid.
Hence this gave rise to the concept of bigamy. Even now bigamy is considered a
ground for divorce under the Hindu Marriage Act 1955. The children born of such
marriages are considered illegitimate and not given any part in coparcenary property of
the father. Even the wife is not given legal recognition and has no remedies available.

Hence in this way custom laid down the process to the evolution of substantive law.