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Friday, April 26, 2013

Why the study of Jurisprudence?


For those who study jurisprudence today, it is nothing but a troubling mass of conflicting ideas’: Arnold

The question is an invitation to argue on the positive features of jurisprudence in reply to Arnold’s dismissive comment. A discussion of those features is required, together with comment on reasons for the contemporary (but not unwelcome) conflict of ideas. A skeleton plan might take the following form:

     Introduction – acknowledgement of conflict of ideas in         
     jurisprudence – positive features of a study of the subject –  
     why criticisms have arisen – conclusion on the role                
      jurisprudence has to play. 

It is necessary, initially, to comment briefly on Arnold’s statement by noting what seems to be a highly subjective and not uncommon reaction to the undoubted ferment of opinions, principles and ideologies characterizing contemporary jurisprudence. It may be that the emergence of a jurisprudential tradition of questioning everything, of accepting no ‘self-evident’ principles, of ‘debunking’ ideas which have held sway for decades, and ‘deconstructing’ hallowed theories, creates an impression of a nihilism triumphant. Arnold’s use of pejorative terms, such as ‘troubling’, ‘conflicting’, may indicate a lack of awareness of the value of a continuous probing of ‘received knowledge’. So it is in other contemporary disciplines: consider physics (in which the recent appearance of ‘string theory’ demands a rethinking of traditional concepts), economics (in which not only traditional theories but the very reasoning processes that produced them are under attack) and linguistics (in which the works of the ‘founding fathers’, such as Chomsky, are under intensive criticism). And so it is in jurisprudence where, for example, the American Critical Legal Studies movement is engaged in a radical reappraisal of the objectives and methodology of legal studies, and the ‘Law-Economics’ movement perceives some aspects of economic theory as of direct relevance to jurisprudential analysis. The continuous flux in the evolution and enunciation of legal theories must, by its nature, give rise to conflict, which observers, such as Arnold, find ‘troubling’. The alternative to a conflict of ideas can be a lack of vitality or a sterility which vitiates intellectual progress in jurisprudence.

One must be aware, however, that a study of jurisprudence is not considered an essential component of the education and training programs of large numbers of lawyers. Concentration by some jurists on highly abstract theorising, to the exclusion of the severely practical concerns of the law, may have contributed to suspicion of the subject and a rejection of its pretensions. Posner’s condemnation of much recent jurisprudence as ‘much too solemn and self-important’ and of its votaries as writing ‘too marmoreal, hieratic, and censorious a prose’ is worthy of note.

What are the hierarchy & jurisdiction of civil courts?


Subordinate Civil Courts:
The subordinate civil courts were established in Bangladesh under the provision of the Civil Courts Act 1887. District Judge is the head of the Judiciary in each of the 61 out of 64 districts of the country. In the remaining three hill district there are no separate civil courts, Magistrate perform the functions of the civil courts in those three districts. Civil courts decided dispute rights between one individual and the other. It is only the suits of civil nature that can be adjudicated in civil courts. The Civil Courts subordinate to the High Court Division are established by several enactments. Some of them are set up under special and other under general laws having well defined jurisdiction to administer in civil matters.
The district courts and courts subordinate to them shoulder the main burden of administering civil justice. The original jurisdiction of subordinate courts is invariably determined with reference to the pecuniary value involved in the suit to be tried by it and appeals for in accordance with requirements of the provision enacted in that behalf.

Hierarchy & Jurisdiction of Civil Courts:
Section 3 of the Civil Courts Act 1887 as amended by the Civil Courts (Amendment) Act 2001 provides for following five classes of Subordinate Civil Courts—

Every court mentioned above is a separate court and has jurisdiction assigned to it by the Civil Courts Act or any other law which may be either territorial, original jurisdiction, appellate jurisdiction or transferred jurisdiction (can hear suit or cases when transferred to it).

1.   The Court of District judge:
This court is nest in the hierarchy down from the HCD is headed by a District Judge. A District Judge exercise administrative control over all civil courts within the local limit of his jurisdiction. The local limit is determined by the government. His administrative control is supervised by HCD. A District Judge has, in respect of all suits in his district, original, appellate as well as revisional jurisdiction.

·         A District Judge usually does not try original suits. This is because of the provision in section 15 of the Code of Civil Procedure that every suit must be instituted in the court of the lowest grade competent to try it. He is the only court competent to try certain kinds of cases such as, Insolvency cases, Guardianship cases, Probate or Administration cases etc.
·         The District Judge’s pecuniary jurisdiction is unlimited. Under sections8, 11, 22, 23 etc. of the Civil Courts Act 1887.
·         This Court has administrative control over all the civil Courts under the Civil Courts Act 1887 within the local limits of his jurisdiction (section 9).
·         This Court has power to try, transfer, withdraw, any suit, appeal or other proceeding in any civil courts below the High Court Division.
·         The District Judge has pecuniary jurisdiction of taka five lacs valuation of the subject matter giving rise appeal or revision.
·         The District Judge has been given revisional power by section 115 of the Code of Civil Procedure in 2003. To this effect it is provided in section 115 that where an order has been passed by a Court of Joint District Judge, Senior assistant Judge or Assistant Judge from which no appeal lies, and if such courts appears to have committed any error of law resulting in an error in such order occasioning failure of justice, the Court of District Judge may revise such order and, make such order as it may think fit.
·         An appeal of decree or judgment from District Judge or Additional District Judge shall lie to the High Court Division.

2.   The Court of Additional District Judge:
The judicial function of an Additional District Judge is similar to that District Judge. He tries those cases which are transferred to his court from the court of District Judge. And an appeal form this court normally shall lies to the High Court Division.

3.   The Court of Joint District Judge:
·         The Joint District Judge’s pecuniary jurisdiction on original suit is unlimited. This court has jurisdiction to try those cases the value of which exceeds tk. 4 lac.
·         Appeal of a decree or judgment from this court shall lies to the High Court if the case value exceeds tk. 5 lac.
·         Appeal of a decree or judgment from this court shall lies to the District Judge if the case value did not exceeds tk. 5 lac.

4.   The Court of Senior Assistant Judge:
·         The pecuniary jurisdiction of the Senior Assistant Judge is 200, 001-400000 tk.
·        An appeal of decree or judgment from this court lies to the Court of the District Judge.

5.   The Court of Assistant Judge:
This court is stands at the base of the hierarchy of civil courts. Its original Jurisdiction is limited to a claim the value of which does not exceeds tk. 2 lac  (1 tk. to 2lac tk.). This court also been invested with the revisinoal power in petty civil mattes coming from Village Court under the Village Ordinance 1976 (section 4 (2)).

What are the ordinary jurisdiction of High Court Division?

Jurisdiction of High Court Division:

The High Court Division is the superior forum of first instance having general jurisdiction. It has the onerous responsibility of seeing how laws throughout the country in interpreted and applied by all courts subordinate or inferior to it. The jurisdiction of High Court Division flows from to sources, namely Constitutional and ordinary laws. So the jurisdictions of High Court Division are divided into two categories: Ordinary or general jurisdiction and Constitutional jurisdiction.

Ordinary Jurisdiction of High Court division:
An ordinary law is known as statutory law or Act of parliament. All laws are ‘ordinary law’ which is not Constitutional law. Ordinary laws are providing some jurisdiction to the High Court Division, which are called ordinary or general jurisdiction. The ordinary or general jurisdiction of High Court Division can be divided under four major heads, they are following types:

1.   Original jurisdiction:
Original jurisdiction means that jurisdiction whereby it can take a case or suit as a court of first instance. It is for ordinary laws (laws passed by parliament) to prescribe what particular subject matter will come under the ordinary jurisdiction of the High Court Division.

Generally the company cases under the Company act, 1993;
Maritime cases under Admiralty Act, 1861;
Matrimonial cases under the Divorce Act, 1925;
Banking dispute under Banking company’s Ordinance, 1962;
Cases under the Trade Marks Act, 1940;
Cases under the Succession Act, 1925 etc. are directly heard by the High Court Division; backed up under the laws passed by parliament.

2.   Appellate Jurisdiction:
An appeal of subordinate civil and criminal shall lies to the High Court Division. This depends primarily upon the valuation of the suit. First appeal lies to the High Court Division in those case where the valuation of the suits or proceeding exceeds taka twenty thousand. Besides trying first appeals, so long the High Court Division also heard appeals from appellate decree called Second Appeals.  Appellate jurisdiction of High Court Division may be conferred upon the High Court Division, e.g., Criminal Procedure Code & Civil Procedure Code has conferred on the HCD appellate jurisdiction. In addition to the subordinate courts, appeals from the tribunals under the following acts are also under the jurisdiction of the High Court Division:

Artha Rin Adalat Act, 2003;
Bankruptcy Act, 1997;
Special Powers Act, 1974;
Suppression of Repression of Women and Children Act, 2000;
Public Safety Act, 2000;
Acid Offence suppressions Act, 2002;
The Speedy Trail Tribunal Act, 2002 ;
There are many more provisions under a good number of others acts, appeals of which also come to the High Court Division.

3. Revisional Jurisdiction:
Rivisional power may be conferred upon the High Court Division, to examine the decision or orders of the subordinate courts. For example section 115 of the CPC has conferred on the HCD the revisional power. So High Court Division has the power of revising orders passed by the subordinate civil courts in cases in which no appeal lies thereto. The conditions precedent to exercise of revisional power by the High Court Division is that there must be a case decides by a subordinate court, no appeal must lies to High Court Division against that decision, and in deciding the case the subordinate court must have committed an error of law apartment on the face of the record.

4. Reference Jurisdiction:
If in a suit appeal or execution case in which the decree is not applicable, a question of law arises where the court concerned entertains a reasonable doubt, it may suo moto or on application of nay party, refer the matter for the opinion of the High Court Division. Reference jurisdiction of the High Court Division can give opinion and order on a case referred to it by any subordinate court, e.g., section 113 of the CPC gives the HCD reference jurisdiction.

Monday, April 15, 2013

What is Aquinas’ theory of law?


Thomas Aquinas (1225–74) was concerned with systematizing knowledge, on the basis of Catholic doctrine, so that the cosmos might be understood as a vast unit in which everything had a place and a meaning. Within this system of knowledge, God’s plans for mankind occupied a special place, and the law was to be comprehended as a part of those plans. Aquinas propounded a theory of law based on his conception of ‘reason’; this resulted in a fourfold division of law in which so called ‘natural law’ is of much significance. The answer given below is based on the following skeleton plan:

Introduction – background of Aquinas – influence of
Aristotelian thought – fourfold division of law – problem
of morality – violation of the natural law and its
consequences – conclusion, stressing the work of Aquinas
as a synthesiser of philosophy and religious thought in his
interpretation of law.

St Thomas Aquinas occupies an important place in the history of the development of natural law doctrine. He had studied as a Dominican monk under Albertus Magnus, and, in later years, produced works of lasting significance in which he effected a synthesis of the logic of Aristotle, the religious thought of the early Christian Fathers, and some of the patterns of classical Roman law. In his celebrated Summa Theologica (c 1266), he set out a fully systematized approach to law which, even today, dominates the thinking of many Catholic jurists, as evidenced by the growing Noe-Scholastic school of jurisprudence. Law is to be understood as part of God’s plan for mankind – this is the belief which is central to the concepts mentioned below.

It is important to remember the context within which Aquinas worked. The authority of the Catholic Church was expanding, and those whose task it was to explain doctrine were guided by a strict pattern of thought. Interpretation of the Scriptures had produced two principles which were of direct relation to attempts at explaining the nature of law. First, the principle of unity (based on ‘one God, one Church’) was reflected in the wish for ‘one Church believing in one law’. Secondly, the principle of supremacy of law, which was seen as an aspect of the unity of the world, taught that all persons, including rulers, were under the law’s dominion. Aquinas’ general approach to                 law was fashioned with these principles in mind.

Sunday, April 14, 2013

How has Dworkin utilised his ‘rights thesis’ in his exploration of the concept of equality?

Dworkin (b 1931), an American jurist, holds chairs in Law and Philosophy at New York University, and Jurisprudence at University College, London.

His writings in jurisprudence are concerned with the fundamental nature of rights and their significance in law and society. He is concerned, in particular, with the interface of jurisprudence and political ideas and has written extensively on current problems relating to abortion, euthanasia, civil rights and equality. His most recent major publication deals specifically with equality – ‘the endangered species of political ideals’. The required answer should be based on a short account of his views relating to rights and his belief that equality and liberty are vital, substantial ideals, and are aspects of a single concept of the quality of social life. The following skeleton plan is suggested:

Introduction – Dworkin’s rejection of theories of positivism
and natural rights – standards, principles, and significance
of dignity of citizens of a community – entitlement to rights
– problem of equality – possible conflict of liberty and
equality – conclusion, affirmation of principle of integrity
as basis of entitlement to rights.

Dworkin’s jurisprudential writings seek to explore the essence of rights and to place them within a wider setting of social and political ideology. His work ranges beyond that generally associated with current American legal theory, in that he rejects the view of jurisprudence as a ‘pure academic discipline’ which should have little to say of immediate significance for political realities. For Dworkin, law and political ideology have close links: both co-exist as aspects of social aspirations and activities, and neither can be understood fully without reference to the other. Law in practice is for him ‘an unfolding narrative’ which can be interpreted only by comprehending its social setting. An analysis of rights, in particular, demands examination of their place within the wide culture, and very purpose, of social and political awareness.

In an examination of rights, Dworkin declares, little is to be gained from theories which suppose that rights have some special metaphysical character: the old theories of natural law that rely on this supposition are of no value. The doctrines of natural law, suggesting that lawyers tend to follow criteria that are not entirely factual when they ask whether propositions are ‘true’, or that law and justice are identical, in the sense that makes it impossible to consider an unjust proposition of law to be ‘true’, tell us nothing about the fundamentals of rights. The a priori reasoning associated with the natural law is unacceptable; if we wish to make an effective investigation of a legal structure and its validity, then empirical study is required. 

Positivism offers no real alternative to natural law as the basis of an investigation of rights. Dworkin views it as reflecting a mere system of rules, applicable in an ‘all-or-nothing’ fashion. Further, the separation of law and morality, which characteristics modern legal positivism seems to ignore the practice of the courts, in which questions of right are all-important, and, finally, the positivist claim that law is, in large and growing measure, judge made, is at variance with the facts. These objections to the positivist assertion that the rationale of a system of rights is to be found within its doctrines are set out by Dworkin in the following terms.

If we examine rights in the setting of positivist theory, we are met with the assertion that law is rules, and that this is reflected in concepts of rights. Legal rules are applied automatically once appropriate conditions are met. ‘Event A will bring in its train penalty B’ Thus, s 16 of the Terrorism Act 2000 states clearly that a person commits an offense if he uses money or other property for the purposes of terrorism; the appropriate penalties are set out in s 22. The ‘rules’ of the statute dictate particular results, and, other things being equal, the statutory penalty will be inflicted on persons found guilty, under s 16. In a more specific sense of the term ‘rules’, the Civil Procedure Rules 1998 state that a person who makes a false statement of truth, or who causes such a statement to be made, without an honest belief in its truth, is guilty of contempt of court (r 32.14(1)). Given the requisite conditions, application of the rules then follows. But Dworkin rejects totally the claim that law consists in its entirety of rules of this nature. In making his generalized criticism of positivism, which fails to explain rights, he declares, that in making a basic attack on that doctrine, he will seek to show that the notion of a single fundamental test for law (‘law as rules’) misses the important role of those standards that are not rules