MGT612 Handouts Lectures 1-45

Lecture 1

Introduction to Law

What is ‘Law’?

To answer the question, the following definitions are discussed:-

Austin’s definition of law

John Austin is a renowned British jurist of 19th Century. He published extensively on the philosophy of law.

He was Professor of Jurisprudence in the University of London (now University College London) 1826-33. His book: “The Province of Jurisprudence” determined was very popular. He gives the following definition of law:

“Law is the command of the sovereign”

Command (Order) Sovereign (Ruler)

Thus it may be stated that law is the order of the ruler.

Simple definition of law

“Law is the right of one, obligation of the other, maintained by law enforcing authority”

Right (Sheltered and recognized interest) Obligation (Duty) Maintained (Managed) Enforcing authority (Implementing power) Thus it may be stated that law is the sheltered and recognized interest of one, duty of the other managed and controlled by law implementing power.

Additional information

Kinds of sovereign:

De-jure sovereign (Constitutional ruler) De-facto sovereign (Unconstitutional ruler)

Aristotle defines constitution as, “A constitution denotes not only an arrangement of office, but, a manner of life.

Aristotle’s definition of law

“Law is the experience, developed by reason and reason, tested by experience”.

Experience (=Knowledge)

Tested (=Checked)

Thus it may be stated that law is the knowledge, developed by rationale and rationale, checked by knowledge. Relevant Quotation: “Experience is a very hard teacher she gives the test first, the lesson afterwards”.

Classical definition of law

Law is the ‘dispassionate reason’ and its content is the same as that of morality.

Dispassionate (=Unemotional)

Content (=Substance

Why laws are made?

Laws are made to regulate human actions.

Advantage of law

The supreme advantage of law is peace and harmony. Law governs both the ruler and the ruled.

What is justice?

Justice means every man given his legal right.

Relevant quote on relationship of law and justice: “Justice is an ideal like truth just as a sculptor tries to achieve beauty with his mallet and chisel, so law is the tool of a judge in the pursuit of justice.”

Ideal (Model) Beauty (Splendor or Prettiness) Mallet (Hammer) Chisel (Shape) Tool (Instrument) Pursuit (Search)

Thus justice is a model like truth just as a sculptor tries to achieve prettiness with his hammer and a shape so law is the instrument of a judge in the search of justice.

What are the kinds of justice?

Justice is of two kinds:

Natural justice

Legal justice

Natural justice deals with the enforcement of rights and punishments of wrongs according to moral standards as appeal to the mind of human being. It stands independent of recognition by state.

Legal justice denotes justice according to what the law declares to be just (=right). Legal justice may be divided in to the following kinds:

a. Private justice

b. Public justice

a. Private or personal justice is what the person whose right is violated wants from the counter party. b. Public or community justice is what a plaintiff demands and receives from the community through court if his counter parties have denied him personal justice. Private Justice is the object for which the public justice exists.

(a) Civil justice

(b) Criminal justice

The two kinds of public justice can be well understood by understanding their points of difference:

Sr. Points of Difference Civil Justice Criminal Justice

Nature of Wrong

Wrong (breach of one’s legal duty) Nature (Character) Civil justice is dispensed for private wrongs.

Private wrong (breach of right of individual) Dispense (to give out) Criminal justice is dispensed for public wrongs.

Public wrong (breach of right of community) Dispense (to give out)

Purpose The purpose of civil justice is to compensate the aggrieved party. Compensate (Reimburse) The purpose of criminal justice is to punish the offenders

Offenders (Wrong doers) Punish (=Penalize)

Procedure For civil justice civil procedure is adopted. For criminal justice criminal procedure is adopted.

Nature of Court Civil justice is administered by Civil Courts. Criminal justice is administered by Criminal Courts.

Degree of Harmfulness Civil wrongs are relatively less harmful for the society. Criminal wrongs are relatively more harmful for the society.

Style of Titling Civil cases are titled as ‘Bashier

versus ‘Nazier’ Criminal cases are titled as ‘State’ versus ‘Bashier’

Relevant Procedural Code The relevant procedural Code is ‘The Civil Procedure Code,

1908.’

The relevant procedural code

is ‘The Criminal Procedure Code, 1898.’

Prosecution In civil justice, government does not prosecute the case. In criminal justice, government prosecutes the case.

Measuring the liability In civil cases in determining the liability, the following factors are irrelevant:

(1) Motive (2) Intention

(3) Magnitude of the offense (4) Character of the offender. Criminal liability is measured by keeping the following in view: (1) Motive

(2) Intention (3) Magnitude of the offense (4) Character of the offender.