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Law as the art of doing justice

Whoever wished to concern himself seriously with the law must first of all whence comes its name. Law (ius) is derived from justice (iustitia) - Justinians Corpus Juris Civilis Law is the art of the good and the fair (bonum et aequum) - Celsus

and what is justice?


To say that a social order is just means that it regulates the behavior of men in a way satisfactory to all, that is to say, so that all men find their happiness in it. The longing for justice is the eternal longing of men for happiness ,the happiness that man cannot find alone and hence seeks in society. Justice is social happiness Justice is an irrational ideal. The usual assertion that there is indeed such a thing as justice, but that it cannot be clearly defined, is in itself a contradiction - Hans Kelsan

The three basic points of Austin's theory of law are that : What is law?
the law is command issued by the uncommanded commanderthe sovereign; such commands are backed by threats; and a sovereign is one who is habitually obeyed Who is the sovereign? Will anybody who is habitually obeyed be called the sovereign? In a democratic society how the sovereign is to be determined? Is it always a command backed by threats?

Marxian conception of law


Those who own the capital have all the power. So they make all the laws which enable them to retain their power and capital, and to deprive the lower classes of the same. Thus, these laws are used by the capitalist bourgeoisie to socially, economically and politically oppress the have nots, i.e., the proletariats. Law is imposed from the top, upon the society as a superstructure, i.e., as a top-down model. However, ideally, law must emanate from the, from the grass-root level from the masses from the deprived lot. This does not happen. Thus, law is used as a tool of oppression. The machinery of the state is run by the capitalist classes. They use the state as an imposing superstructure, to keep the have nots down. And as an instrument, they use the law.

Marx Conception of Law


The people, especially in France, in the late 18th Century got frustrated with the oppressive laws which were constantly being framed by the rulers of the Bourbon dynasty, under the direct influence of the rich bourgeoisie classes. These laws were framed to the advantage of the men in power the ruling classes, the nobles and the aristocrats together called the bourgeoisie, and to the extreme disadvantage of the proletariats i.e. the poor people. So they rose up in revolt. French Revolution 1789

Roscoe Pound also says that law is an instrument of social engineering. As an architect law builds and rebuilds the society. Law is the product of society. It is true, society is not static. It is dynamic. So, law is changing with the needs of changing society.

Functions of law
Creates institutions, processes and authorities
For maintenance of law and order
Enforcement of law and order Acts which are prejudicial to peace, order and interests of the society at large are resisted by law and its authorities

For promotion of social/national objectives


the acts which are in consonance to the interests of the people at large are promoted by the law and its authorities. But is it so easy always to identify the acts which are prejudicial and acts which are favourabe to the people at large? No so class-conflict resolution

For dispute resolution / adjudication


Individual to individual Institutions Individuals Institutions institutions Class conflicts

Functions of law
Creates legal attributes
Creates rights and remedies Defines roles, responsibilities, functions and obligations Endows powers, privileges and immunities, if any,

Defines standards of conduct for individuals and institutions


What kind of standards minimum or maximum?
Optimal required to maintain law and order Optimal required to promote and attain social/national objectives in a welfare state

Law and Morality : share a degree of commonality yet they are different significantly
Law
Supposed to be for the good of the people in general Law defines standard of conduct and so it is determinative and definitive

Morality
Supposed to be for the good of the people in general Prescribes standard of conduct and so it is prescriptive and subjective

Legal obligations are enforceable by the force and effect of law A public affair Government has overwhelming role in the matters of law Enactment, enforcement and repeal of law is a well defined and institutionalized process

Moral obligations are not enforceable by the force and effect of law A private affair in a secular state Government is not expected to have much role
Making and unmaking of the moral precepts is not an institutionalized process

Constitution of India the supreme law of the land


Constitution of India is supposed to be the supreme law of the land; and all laws, rules having the effect of law and acts done under the authority of law should be in conformity with and consonance with the Constitution of India. Laws, rules and acts which are not in conformity with the Constitution of India are ultra vires to it and hence has no effect in law.

Preamble to the Constitution of India


A birds eye view to the nature and effect of law in India

Law and Rights


Law defines rights Legal Rights
Constitutional Rights Fundamental Rights Human Rights Statutory Rights

Law defines remedies against any possible infringement of rights


Constitutional remedies Statutory remedies Administrative remedies

Right
Wenar, Leif, "Rights", The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.), URL =

<http://plato.stanford.edu/archives/fall2011/entries/rights/>.

One of the key concepts of the modern day legal order Rights are entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states. Rights dominate modern understandings of what actions are permissible and which institutions are just. Rights structure the form of governments, the content of laws, and the shape of morality as it is currently perceived. To accept a set of rights is to approve a distribution of freedom and authority, and so to endorse a certain view of what may, must, and must not be done.

What is right?
To have a right is to have a valid claim. (Feinberg 1970, 257) In the strictest sense all rights are claims. (Hohfeld 1919, 36) A right, in the most important sense, is the conjunction of a [privilege] and a claim-right. (Mackie 1979, 169) Rights are permissions rather than requirements. Rights tell us what the bearer is at liberty to do. (Louden 1983, 95) No one ever has a right to do something; he only has a right that some one else shall do (or refrain from doing) something. (Williams 1968, 125) A right is an established way of acting. (Martin 1993, 1) A person who says to another I have a right to do it is not saying that it is not wrong to do it. He is claiming that the other has a duty not to interfere. (Raz 1994, 275) It is hard to think of rights except as capable of exercise. (Hart 1982, 185) A right is a power which a creature ought to possess. (Plamenatz 1938, 82) All rights are essentially property rights. (Steiner 1994, 93) Rights are themselves property, things we own. (Feinberg 1973, 75)

When we call anything a person's right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. (Mill 1861, 54)

Why right, what function do right perform?


There are two main theories of the function of rights: the will theory and the interest theory. Each presents itself as capturing an ordinary understanding of what rights do for those who hold them. The contest between will-based and interest-based theories of the function of rights has been waged for hundreds of years. Influential will theorists include Kant, Savigny, Hart, Kelsen, Wellman, and Steiner. Important interest theorists include Bentham, Ihering, Austin, Lyons, MacCormick, Raz, and Kramer. Each theory has stronger and weaker aspects as an account of what rights do for rightholders.

Will Theory of Right


Will theorists maintain that a right makes the rightholder a small scale sovereign. (Hart 1982, 183) More specifically, a will theorist asserts that the function of a right is to give its holder control over another's duty. Your property right diagrammed in the figure above is a right because it contains a power to waive (or annul, or transfer) others' duties. You are the sovereign of your computer, in that you may permit others to touch it or not at your discretion. Similarly a promisee is sovereign over the action of the promisor: she has a right because she has the power to waive (or annul) the promisor's duty to keep the promise. In Hohfeldian terms, will theorists assert that every right includes a Hohfeldian power over a claim. In colloquial terms, will theorists believe that all rights confer control over others' duties to act in particular ways.

Will Theory of Right


The will theory captures the powerful link between rights and normative control. To have a right is to have the ability to determine what others may and may not do, and so to exercise authority over a certain domain of affairs. The resonant connection between rights and authority (the authority to control what others may do) is for will theorists a matter of definition. However, the will theory's account of the function of rights is unable to explain many rights that most think there are. Within the will theory there can be no such thing as an unwaivable right: a right over which its holder has no power. Yet intuitively it would appear that unwaivable rights are some of the most important rights that we have: consider, for example, the unwaivable right not to be enslaved. (MacCormick 1977, 197) Moreover, since the will theorist holds that all rights confer sovereignty, he cannot acknowledge rights in beings incapable of exercising sovereignty. Within the will theory it is impossible for incompetents like infants, animals, and comatose adults to have rights. Yet we ordinarily would not doubt that these incompetents can have rights, for example the right not to be tortured. (MacCormick 1982, 15466)

Interest Theory of Right


Interest theorists maintain that the function of a right is to further the right-holder's interests. An owner has a right, according to the interest theory, not because owners have choices, but because the ownership makes owners better off. A promisee has a right because promisees have some interest in the performance of the promise, or (alternatively) some interest in being able to form voluntary bonds with others.

Interest Theory of Right


The interest theory is more capacious than the will theory. It can accept as rights both unwaivable rights (the possession of which may be good for their holders) and the rights of incompetents (who have interests that rights can protect). The interest theory also taps into the deeply plausible connection between holding rights and being better off. However, the interest theory is also misaligned with any ordinary understanding of rights. We commonly accept that people can have interests in x without having a right to x; and contrariwise that people can have a right to x without having interests sufficient to explain this. In the first category are third party beneficiaries. (Lyons 1994, 3646) You may have a powerful interest in the lottery paying out for your spouse's winning ticket, but you have no right that the lottery pays out to your spouse. In the second category are many of the rights of office-holders and role-bearers (Jones 1994, 3132; Wenar 2008, 25862). Whatever interest a judge may have in exercising her legal right to sentence a convict to life in prison, the judge's interests cannot possibly justify ascribing to her the power to make such a dramatic change in the convict's normative situation.

The four basic components of rights are known as the Hohfeldian incidents after Wesley Hohfeld (18791918), the American legal theorist who discovered them. Analysis reveals that most familiar rights, such as the right to free expression or the right of private property, have a complex internal structure. Such rights are ordered arrangements of basic components, much in the same way that most molecules are ordered arrangements of chemical elements. These four basic elements are the privilege, the claim, the power, and the immunity. Each of these Hohfeldian incidents has a distinctive logical form, and the incidents fit together in characteristic ways to create complex molecular rights.

Incidents of Right
Privilege
You have a right to pick up a shell that you find on the beach. This right is a privilege: A has a privilege to X if and only if A has no duty not to X.

Claim
A contract between employer and employee confers on the employee a right to be paid his wages. This right is a claim: A has a claim that B pays wages if and only if B has a duty to A to pay wages.

Power
A has a power if and only if A has the ability within a set of rules to alter her own or another's Hohfeldian incidents. When A has the ability to alter B's Hohfeldian incidents, then A has a power. A ship's captain has the power-right to order a midshipman to scrub the deck. The captain's exercise of this power changes the sailor's normative situation: it imposes a new duty upon him and so annuls one of his Hohfeldian privileges (not to scrub the deck).

When A lacks the ability to alter B's Hohfeldian incidents, then B has an immunity: B has an immunity if and only if A lacks the ability within a set of rules to alter B's Hohfeldian incidents.

Hohfeld arranged the four incidents in tables of opposites and correlatives so as to display the logical structure of his system.

Opposites
If A has a Claim, then A lacks a No-claim If A has a Privilege, then A lacks duty If A has a Power, then A lacks disability If A has an Immunity, then A lacks liability.

Correlatives
If A has a Claim, then some person B has a Duty If A has a Privilege, then some person B has Noclaim If A has a Power, then some person B has Liability If A has an Immunity, then some person B has Disability.