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Imperative Theory of LawThere are various theories of Law. However the usually discussed one is called the Imperative theory of Law. It is attributed to the 17th century political philosopher Thomas Hobbes who based his theory on the human nature. Man’s essential nature according to his estimate is altogether ‘a selfish animal’ and that is why he is anything but ‘a social animal’. To Hobbes man finds nothing but grief in the company of his fellows, and is forced to live in continued fear of violence and danger of violent death. And that is why according to Hobbes man is forced to seek protection of some authority, however despotic. Thus to him law being a command and not counsel has its source not in custom or consent but in the will and power of ‘him’ who ‘in a commonwealth beareth not the sword in vain’. The civil laws according to Hobbes are “ the commands of him who is endowed with supreme power in the city (state) concerning the future actions of his subjects”. Austin, an other known jurist while subscribing to Hobbes views held that “ a law is a command which obliges a person or persons to a course of conduct”. The special character of Hobbes theory is that it construes laws to be commands issued by the state and enforced by the sanction of its physical force. A rule the observance of which is left to the good pleasure of those for whom it is laid down is not a law in this sense. The imperative theory of law failed to win universal appreciation because of its multi-loop holes. For example what Hobbes has called “laws of Nature” (justice, equity, mercy, and other implications of the Golden Rule) are in fact not laws but moral qualities that dispose us to peace. Lord Bryce on the very law holds that the imperative theory of law represents a false view of the origin of law. Law may find its source in religious rules, custom and public opinion, besides commands. Law is prior to and independent of political authority. A state enforces it because it s already law and not that it becomes law because state enforces it. Salmond does not favor the imperative theory of law but he has little sympathy for the above view. He aptly remarks that “the rules which were in existence prior to the existence of a political state were not laws in the real sense of the term. They resembles law, they might have been primitive substitutes for law but they were not law”. He attacks imperative theory of law from another angle saying that the very theory contains only one element in the conception of law and disregards absolutely the ethical element which is equally essential in the entire concept of law. It is thus one sided and inadequate. The idea of right and justice is as essential as the idea of force. Law is not right alone, or might alone, but the perfect uni9on of the two. It is justice speaking to men by the voice of the state. Although the established law may not accurately correspond with the true rule of right, yet in idea law and justice e are coincident and it is for the expressive realization of the latter that the former has been created. That is why it is said that courts of law are courts of justice. The purely imperative theory, therefore, neglects this essential element in the law. Moreover, this theory fails to include within its compass rules pertaining to liberties and privileges; it also overlooks the procedural laws. This discussion leads us to the conclusion that imperative theory of law is lop-sided and incomplete, it gives only a partial picture of the truth. What is Equity with respect to common lawIn England until 1873, two distinct systems of law were being administered at the same time by different tribunals. These two different systems are called the common law and equity. Common law was the older one and it was administered in the older court viz., the King’s Bench, the court of Common Pleas, and the Exchequer. Equity was the more modern body of legal doctrines developed and administered by the Chancellor in the Court of Chancery as supplementary to a corrective of the older (common) law. The judicature Act of 1873 put an end to this distinction between the two by the fusion of these two systems into one single court called the High Court of Justice. The word “Equity “ yields to many interpretations. In the first place, “ Equity” implies natural justice in a special aspect i.e., with respect to the rigidity of the inflexible rules of common law. And that is why it is called the Equitable Law or the Law of Chancery as opposed to the Common Law. Undersell says, “Equity “ was originally the revolt of common sense against the pedantry of law and trammels of the feudal system; it became a highly artificial and refined body of legal principles and it is at the present day an amendment and modification of the common law”. According to Snell, “Equity” is that portion of natural justice which, though of such a nature as to admit of being judicially enforced, was omitted to be enforced by the common law courts, an omission which was supplied by the “Equity Courts”. Sir Henry Maine defines “Equity” as “a fresh body of rules by the side of the original law, founded on the distinct principles and claiming to supersede the law in virtue of a superior sanctity inherent in these principles”. According to Lord Talbot, “Equity is not a part of the law, but a moral virtue, which qualifies, moderates and reforms the rigor and harness of the law, and is a universal truth. It does also assist the law where it is defective and weak and defends the law from crafty evasions, delusions and new subtleties invented and contrived to evade and delude the common law. Equity therefore does not destroy the law nor create it but assists it.” Maitland says “we ought not to think of law and equity as two rival systems. NO, we ought to think of equity as supplementary law, a sort of appendix added to our code.” Equity came into existence to help people where law was of no avail to them. It cured the deficiencies of law and provided remedies for wrongs, which remained unredressed at common law. Law and Equity both have the same ends said by Lord Ellesmere, which according to him is to do right. In many kinds of wrongs, the relief at common law was inadequate. Procedure at Common Law Courts was also defective in many respects. Common law procedure was cumbersome and intricate. To remedy all these defects of Common Law, the system of ”Equity “administered by the Chancellor was evolved. The Common Law was deficient: - Firstly for there was no remedy available in all cases and as such many a wrongs remained unredressed for want of proper writs. Secondly the relief provided by the common law was not always adequate. A party could get only damages for breach of contract but could not enforce the contract specifically. Relief such as injunction’s, etc. were unknown to the Common Law courts. Thirdlythe procedure at Common Law Courts was defective and unsatisfactory; the procedure in the court of “Equity” was simpler and afforded advantages not obtainable at Common Law Courts. The development of Equity may be traced from the reign of Edward 1, at the end of the thirteenth century. In England, there were at those time three different courts, viz., the King’s Bench, the Common Bench or the Court of Common Pleas and the Exchequer. The law formulated, developed and administered by these courts was the Common Law based on the common customs of the country. The Exchequer was also an administrative department of the Government besides being a Court of Law. The Chancery was the King Secretarial department headed by the Chancellor who was the King’s Secretary of State for all departments and kept the King’s Great Seal and did other writing work in the name of the King. A very important function of the Chancery was the issuing of writs to enable a suitor to bring an action at law. Hitherto, the Common Law Court laid down that every kind of civil injury must fall within the limits of some particular forms of actions and carrying this principle to its logical conclusion, held that unless an inquiry could be referred to some form of action ( such as trespass, trover, debt, etc .).The party was without any remedy. Cases, therefore, frequently aroused for which .the common law gave no remedy at all. An attempt to remove the narrowness of the Common Law and the resultant failure in the administration of justice was made by the Parliament in the year 1285 though the Statute of Westminster II. It empowered the Chancery to invent new writs for certain cases, which were similar to those for which there were appropriate writs in vogue. Despite the development of Equity as an important part of the law of the land, there was the curious spectacle that there were two distinct systems of justice administered by the English Courts. The Courts of Queen’s Bench, Common Pleas and the Exchequer were governed by the principles of the Common Law, while the Court of Chancery was guided by the principles of Equity. Complete reforms however, came with th passing of the Judicature Acyts of 1873 and 1875 which abolished the old Cou8rts of Chancery and Common Law. The effect of the judicature Acts was to abolish the two rival jurisdictions and to create one Court with power to administer both Law and Equity. The so-called fusion of law and equity is a fusion not of principles but of the administration of two rival systems. The judicature Acts have not abolished the distinction between legal and equitable interests, what it did was to enable the same court to administer both legal and equitable remedies. In brief we can say that Equity means that: - Firstly it is synonymous with equality and natural justice. Secondly equity (legal sense) means natural justice as opposed to the rigorous or inflexible rules of common law. Thirdly it means a particular kind of law which was enforced by the Chancery courts as compared with the rival and parallel system that was administered by the common law courts. Maxims of Equity
Question of Fact versus Question of LawEvery question that arises in the court of justice is either on eof law or of fact. For example Jack is adopted son of his parents. In court by virtue of question of law he would be deemed son of his parent while as per question of fact it would be other way around. So Question of Law is answered in accordance with the established principles of law while question of fact on the other hand not been authoritatively answered by the law. Hence both these terms have three distinct meanings. Firstly, a question of law means a question which the court is bound to answer in accordance with the rule of law. And has been already answered by some rule of law which the court consider binding upon it irrespective of its own opinion in the matter. Thus the question as to what is the reasonable and proper punishment for murder is a question of law, individual judicial opine being absolutely excluded by a fixed rule of law. The term question of fact, in its most general sense includes all questions, which are not questions of law. Secondly, a question of law means a question as to what the law is on a particular point. Questions of law in this sense arises not because the law on that question is silent, but on account of its uncertainty. When a question arises in the court for the determination of a particular statute, the question is a question of law i.e. it is a question as to what the law is. The term question of fact includes questions, which have not been predetermined by any authoritative rule of law, but have been left to the discretion of the courts. The question whether the accused has committed the crime is a question of fact.. Thirdly the sense in which question of law versus that of fact is dealt by the British tribunals is based on a general rule. According to this rule all question of law are for the judge and all question s of fact are for the jury to decide upon. Mixed Question of Law and Fact When the same question may be partly of fact or judicial discretion and partly of law then such question is called a mixed question of Law and Fact. For example the question of existence of partnership between A and B would be a mixed question of law and fact. This is because those if some agreement has been made by them then that fact is to be judged if such agreement is sufficient to constitute the legal relation of partnership. GENERAL LAW versus SPECIAL LAWThe entire body of civil law may be divided into two categories: (a_ General Law and (b_ Special Law. General Law consists of the general or ordinary law of the land. Special Law means body of legal rules which are so special and exceptional in their nature, sources and application that it is convenient to treat them as standing outside the general and ordinary law of the land. Special Law has further six kinds i.e. Local Law, Foreign Law, Conventional Law, Autonomic Law, Prize Law, Martial Law, Technological Law.
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