What are the element of judicial procedure?

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Element of Judicial Procedure:

The following are the different stages of judicial procedure­­­:-

1.      Summons:

Summon is a document issued from the office of a court of justice. Calling upon the person to whom it is directed to attend before a judge or officer of the court for certain purpose in specific time. It enables the parties interested in litigation to present their case before the court for the settlement of a claim.

2.      Pleadings:

Pleadings mean the complaint or written statement filed respectively by the plaintiff and defendant. The object of pleading is to narrow the parties to definite issues. Actually pleadings are the backbone of litigation. The Code of Civil Procedure, 1980 defines ‘pleading’ as meaning a ‘plaint’ or ‘written statement’. Pleadings are statement of the parties in written setting out their contention of claims or counter claims. Thus, pleasing are written statements filed by each party to case.

3.      Proof:

It is the process by which by which the parties to the dispute supply the materials by adducing evidence to enable the court to arrive at the right conclusion on the struck in case.

4.      Judgment:

A judgment contains the statements given by the judge about the grounds of a decree or order. It embodies the decision. Judgment of courts other than Small Causes Courts Shall contain

a.       A concise statement of the case;

b.      The points for determination;

c.       The decision thereon;

d.      The reason for decision.

5.      Execution:

It is process by which the court enforces its decree. It is that act of completing, or carrying into effect, the judgment, which compels the defendant to do or to pay what has been adjudged. It may be by attachment and sale of any property, by arrest and detention in prison of the defendant or by appointing a receiver. A decree may be executed either by the court, which passed it, or by the court to which it is sent for execution.

Why the study of Jurisprudence?

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‘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 is Aquinas’ theory of law?

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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.

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

What do you mean by patriarchy in the context of feminine jurisprudence?

Q. What is meant by ‘patriarchy’ in the context of feminine jurisprudence?

Answer plan:

The ideological struggle against patriarchy marks out the objective, arguments and methodology of feminist jurisprudence. Patriarchy is the social structure characterized by male domination, having an ideology which seeks to justify this arrangement and a legal theory which interprets the law from a standpoint characterized by a belief, explicit or implicit, in fundamental inequalities. It involves, essentially, the systematic subordination of women to men. The required answer should seek to define appropriate concepts and explain the reasons for the feminist movement’s hostility to much contemporary jurisprudence. The following skeleton plan is used:

      Introduction – definition of patriarchy – male dominance

taken for granted – the negative aspects of patriarchy –

patriarchy reflected in the literature of libertarianism –

gendered patterns of legal language – conclusion, necessity

to challenge patriarchy in a variety of ways.

The fundamental features of Plato’s theory of justice.

Q.Give an account of the fundamental features of Plato’s theory of justice.

Answer plan:

The problem here is how to compress the fundamentals of this complicated theory into a relatively small space. It is possible to deal in this way with the theory in outline only. Particular attention should be given to Plato’s views on ‘harmony’ and the state, and reference should be made to his ideal state. A skeleton plan is suggested as follows:

Introduction – emergence of the state from the very nature

of man – justice as a ‘general virtue’ – justice and the

degeneration of the state – the ideal state of Magnesia –

necessity for a code of laws – the modern approach to

Plato’s theory of justice.

Comment on the role of formal logic in English law.

 

Q. What are the  Comment on the role of formal logic in English law.

Answer plan:

It is important to differentiate ‘formal logic’ and ‘legal reasoning’. The former involves a scientific approach to problems of induction and deduction; the latter is an imprecise description of a common attitude to the determination of a legal dispute. The answer ought to show how far formal logic is used in a judgment, and attention should be directed to some of the problems involved in attempts to apply a rigid system of rules to legal procedure. The following skeleton plan is used as a framework for the answer:

Introduction – definition of logic – its restricted use in law –

the Aristotelian syllogism – inflexibility of formal logic –

reasoning in adjudication – references in judgments to logic – argument by analogy – logic and prevention of

inconsistency – arguments concerning logic and control –

Dewey’s warning on logic and law – the danger of

abandoning logic in the law – conclusion referring to the

‘Hand formula’ and jurimetrics.