Administration of Justice
A. Views of Theorists on the ‘Importance of Justice’Justice’a. Salmond Salmond-- Salmond said that the ‘Definition of law itself reflects that Administration of Justice has to be done by the state on the basis of rules and principles recognized’ . recognized’ . b. Roscoe PoundPound- He believed that it is the court who has to administer justice in a state. Both, Roscoe Pound and Salmond emphasized upon the Courts in propoundin law. However, Roscoe Pound stressed more on the role o! courts whereas Salmond stressed more on the role o! the State. B. Administration of Justice- There are two essential functions of eer! State" a. "ar b. Administration o! #ustice $heorists have said that that i! a state is not capable o! per!ormin the above mentioned !unctions, it is not a state. Salmond said that the Administration o! #ustice implies maintenance of ri#hts within a political communit! $! means of the ph!sical force of the state. state . However orderl% societ% ma% be, the element o! !orce is alwa%s present and operative. &t becomes latent but it still e'ists. Also, in a societ%, social sanction is an e!!ective instrument onl% i! it is associated with and supplemented b% concentrated and irresistible !orce o! the communit%. Social Sanction cannot be a substitute !or the ph%sical !orce o! the state. %ri#in and &rowth of the concept of Administration of Justice &t is the social nature o! men that inspires him to live in a communit%. $his social nature o! men demands that he must reside in a societ%. However, livin in a societ% leads to con!lict o! interests and ives rise to the need !or Administration o! #ustice. $his is considered to be the historical basis !or the rowth o! administration o! justice. (nce the need !or Administration o! #ustice was reconized, the State came into bein. &nitiall%, the so called State was not stron enouh to reulate crime and impart punishment to the criminals. )urin that point o! time, the law was one o! Private *eneance and Sel!-Help.
&n the ne't phase o! the development development o! Adm Administr inistration ation o! #ust #ustice, ice, the State came into !ull-! !ull-!leded leded e'istence. "ith the rowth in the power o! the state, the state bean to act li+e a jude to assess liabilit% and impose penalt% on the individuals. $he concept o! Public nuir% and Punishment became a realit%. $hus, the modern Administration o! #ustice is a natural corollar% to the rowth in the power o! the political state. '. Adanta#es and (isadanta#es of )e#al Justice a. Adanta#es of )e#al Justice i. *niformit! and 'ertaint!'ertaint!- eal #ustice made sure that there is no scope o! arbitrar% action and even the judes had to decide accordin to the declared law o! the State. As law is certain, people could shape their conduct accordinl%. ii. eal #ustice also made sure that the law is not !or the convenience o! a particular special class. #udes must act accordin to the law. &t is throuh this that impartialit% has been secured in the Administration o! #ustice. Sir dward Co+e said that the wisdom of law is wiser than an! man’s wisdom and wisdom and #ustice represents wisdom o! the communit%. $. (isadanta#es of )e#al Justice i. &t is riid. $he rate o! chane in the societ% is alwa%s more rapid than the rate o! chane in the eal #ustice. ii. eal #ustice is !ull o! technicalities and !ormalities. iii. eal #ustice is comple'. (ur societ% is comple' too. $hus, to meet the needs o! the societ%, we need comple' laws. iv. Salmond said that ‘law is without doubt a remed remedy y for great greater er evils yet it brings with it evils of its own’ . (. 'lassification of Justice- It can $e diided into two parts a. Priate JusticeJustice- $his is considered to be the justice between individuals. Private #ustice is a relationship between individuals. &t is an end !or which the court e'ists. Private persons are not allowed to ta+e the law in their own hands. &t re!lects the ethical justice that ouht to e'ist between the individuals.
b. Pu$lic JusticeJustice- Public #ust #ustice ice administered administered b% the state throuh its own tribunals and courts. &t reulates the relationship between the courts and individuals. Pu$lic Justice is the means $! which courts fulfil that ends of Priate Justice. Justice . +. 'oncept of Justice Accordin# to ) aw #ustice is rendered to the people b% the courts. #ustice rendered must alwa%s be in accordance with the law. However, it is not alwa%s justice that is rendered b% the courts. $his is because the judes are not leislators, the% are merel% the interpreters o! law. &t is not the dut% o! the court to correct the de!ects in law. $he onl% !unction o! the judes is to administer the law as made b% the leislature. Hence, in the modern state, the administration o! justice accordin to law is commonl% considered as ‘impl!in# reco#nition of fi,ed rules’. rules’. . 'iil 'iil and 'riminal Justice Civil #ustice and Criminal !ollow !rom Public #ustice and Private #ustice. oo+in !rom a practical standpoint, important distinctions lie in the leal conseuences o! the two. Civil #ustice and Criminal #ustice are administered b% a di!!erent set o! courts. A Civil Civil Proceedin usuall% results in a judment !or damaes or injunction or restitution restitution or speci!ic decree or other such civil relie!s. However, a Criminal Proceedin usuall% results in punishment. $here are m%riad number o! punishments ranin !rom hanin to !ine to probation. $here!ore, Salmond said that ‘the basic objective of a criminal proceeding is punishment and the usual goal of a civil proceeding is not punitive’ . &. Theories of Punishment a. (eterrent Theor!Theor!- Salmond said that the deterrent aspect o! punishment is e'tremel% important. $he object o! punishment is not onl% to prevent the wrondoer !rom committin the crime aain but also al so to ma ma+e +e hi him m an e' e'am ample ple in !r !ron ontt o! th the e ot othe herr su such ch pe pers rson ons s wh who o ha have ve si simi mila larr cr crim imin inal al tendencies. $he aim o! this theor% is not to see+ revene but terrorize people. As per this theor%, an e'emplar% punishment should be iven to the criminal so that others ma% ta+e a lesson !rom his e'perience. ven in /anu Smriti, the )eterrent $heor% is mentioned. /anu said “Penalty eeps the people under control! control! penal penalty ty prot protects ects them! and penal penalty ty remains awae when people are aslee asleep! p! so the wise have regar regarded ded punishment as the source of right righteousne eousness" ss" . Howev However, er, critics critics believ believe e that deterrent e!!ect not alwa%s leads to a decrease in crime. b. Preentie Theor!Theor!- $his theor% believes that the object o! punishment is to prevent or disable the wrondoer !rom committin the crime aain. )eterrent theor% aims at ivin a warnin to the societ%
at lare whereas under Preventive $heor%, the main aim is to disable the wrondoer !rom repeatin the criminal activit% b% disablin his ph%sical power to commit crime. c. Reformatie Theor!Theor!- $his theor% believes that Punishment should e'ist to re!orm the criminal. ven i! an o!!ender commits a crime, he does not cease to be a human bein. He miht have committed the crime under circumstances which miht never occur aain. $hus, the main object o! Punishment under Re!ormative theor% is to brin about a moral re!orm in the o!!ender. Certain uidelines have been prescribed under this theor%. i. "hile awardin punishment, the jude should stud% the characteristics and the ae o! the o!!ender, his earl% breedin, the circumstances under which he has committed the o!!ence and the object with which he has committed the o!!ence. ii. $he object o! the above mentioned e'ercise is to acuaint the jude with the e'act nature o! the circumstances so that he ma% ive a punishment which suits those circumstances. iii. Advocates o! this theor% sa% that b% s%mpathetic, tact!ul and lovin treatment o! the o!!enders, a revolu rev olutio tionar% nar% cha chane ne ma% be bro brouh uhtt abo about ut in the their ir cha charac racter ter.. How Howeve ever, r, the Cri Critic tics s sa% tha thatt Re!ormative $heor% alone is not su!!icient, there must be a mi' o! )eterrent $heor% and Re!ormative $heor% in order to be success!ul. Critics believe that in a situation o! deadloc+ between the two theories, the )eterrent $heor% must prevail. (istinction $etween (eterrent Theor! and Reformatie Theor! 0. Re!ormative $heor% stands !or the re!ormation o! the convict but the )eterrent $heor% aims at ivin e'emplar% punishment so that the others are deterred !rom !ollowin the same course o! action. 1. )eterrent $heor% does not lead to a re!ormation o! the criminal as it imposes harsh punishments. "hereas, "here as, Re!ormative Re!ormative $heor% believes that i! harsh punish punishment ment is in!lic in!licted ted on the criminals, criminals, there will be no scope !or re!orm. 2. )eterrent $heor% believes that the punishment should be determined b% the character o! the crime. $hus, too much emphasis is iven on the crime and too little on the criminal. However, Re!orm Re! ormati ative ve $he $heor% or% ta+ ta+es es int into o con conside siderat ration ion the cir circum cumsta stance nces s und under er whi which ch an o! o!!en !ence ce was committed. Re!ormative $heor% !urther believes that ever% e!!ort should be made to ive a chance to the criminal to improve his conduct in the !uture. d. Retri$utie Theor!Theor!- &n primitive societies, the punishment was mostl% retributive in nature and the person wroned was allowed to have his revene aainst the wrondoer. $he principle was 3 an e!e for an e!e4. e!e4. $his principle was reconized and !ollowed !or a lon time. Retributive theor%
believes that it is an end in itsel!, apart !rom a ain to the societ% and the victim, the criminal should meet his reward in euivalent su!!erin. e. Theor! of 'ompens 'ompensation ation-- $his theor% believes that punishment should not onl% be to prevent !urther crime but it should also e'ist to compensate the victim who has su!!ered at the hands o! the wrondoer. However, critics sa% that this theor% is not e!!ective in chec+in the rate o! crime. $his is because the purpose behind committin a crime is alwa%s economic in nature. As+in the wrondoer to compensate the victim will not alwa%s lower the rate o! crime thouh it miht prove bene!icial to the victim. 5nder this theor%, the compensation is also paid to the persons who have su!!ered !rom the wrondoin o! the overnment. . /inds of Punishment a. 'apital PunishmentPunishment- $his is one o! the oldest !orm o! punishments. ven our &PC prescribes this punishment !or certain crimes. A lot o! countries have either abolished this punishment or are on their wa% to abolish it. &ndian #udiciar% has vacillatin and indecisive stand on this punishment. $here have been plethora o! cases where heinous and treacherous crime was committed %et Capital Punishment was not awarded to the criminal. b. (eportation or TransportationTransportation- $his is also a ver% old !orm o! punishment. &t was practised in &ndia durin the British Rule. $he criminal is put in a secluded place or in a di!!erent societ%. societ%. Critics o! this punishment believe that the person will still cause trouble in the societ% where he is bein deported. c. 'orporal PunishmentPunishment- Corporal punishment is a !orm o! ph%si ph%sical cal punishment that involves the deliberate in!liction o! pain on the wrondoer. $his punishment is abolished in our countr% but it e'ists in some /iddle astern Countries. Critics sa% that it is hihl% inhuman and ine!!ective. d. Imprisonment Imprisonment-- $h $his is t% t%pe pe o! pu puni nish shme ment nt se serv rves es th the e pu purp rpos ose e o! th thre ree e th theo eori ries es,, )e )ete terr rrent ent,, Preventive and Re!ormative. i. 5nder )eterrent $heor%, it helps in settin an e'ample. ii. &t disables the o!!ender !rom movin outside, thus servin the purpose o! Preventive $heor%. iii. &! the overnment wishes to re!orm the prisoner, it can do so while the person is servin his imprisonment, thus servin the purpose o! Re!ormative $heor%. e. Solitar! 'onfinement'onfinement- Solitar% con!inement is a !orm o! imprisonment in which a prisoner is isolated !rom an% human contact. &t is an aravated !orm o! punishment. &t is said that it !ull% e'ploits and destro%s the sociable nature o! men. Critics sa% that it is inhuman too.
!. Indeterminate SentenceSentence- &n such a sentence, the accused is not sentenced !or an% !i'ed period. $he period is le!t indeterminate while awardin and when the accused shows improvement, the sentence ma% be terminated. &t is also re!ormative in nature. 'omplete )ist of Jurisprudence 0otes 1. J ur i spr udence-Nat ur eandScopeofJur i spr udence 2. Jur i spr udence-TheNat ur eofLaw 3. J ur i s pr ude nc e-Admi ni s t r a t i onofJ us t i c e 4. Jur i spr udence-TheSour cesofLaw 5. J ur i spr udence-LegalConcept s 6. J ur i spr udence-SchoolofThought s
