UNIT – II

• Functions and purpose of law, questions of law, fact and

discretion - Justice and its kinds - Civil and Criminal
Administration of Justice - Theories of Punishment and
Secondary functions of the Court.
 Functions and purpose of Law
• Law is not an end itself. It is a means to an end and the
end here is justice.
• Justice here means “equal treatment to all situated alike”
• Theorists differ in their view of justice:
o Thomas Aquinas and Salmond claim that justice is goal of
law.
o According Aquinas unjust law is not a law
o
• According to Salmond law means a body of principles
recognized and applied by the State in the administration of
justice
oFor Positivists who concern themselves with what law is and
not what the law ‘ought’ to be ‘justice’ is relevant for the
critical evaluation of law though they do not see any logical or
necessary connection between the two.
o For Positivists who concern themselves with what law is and
not what the law ‘ought’ to be ‘justice’ is relevant for the
critical evaluation of law though they do not see any logical or
necessary connection between the two
 Purpose of law
1. The main purpose of law is to administer justice.
2. Law becomes a species of social engineering:
• To maximize the fulfillment of the interest of the
community and its members.
• To promote the smooth running of the machinery.
3. Law also aims at uniformity hence it should be definite,
certain, known and permanent
4. Law is necessarily impartial and is not made for
 necessarily for a particular person or class of persons or
for a particular case.
5. Fixed rules are far more preferable than arbitrary fiats of
the judges. Thus law releases the citizens from the being
at the mercy of the judges.
“Rule of Law is always preferred to rule of man”
6. Law also aims at securing stability and security of social
order.
 Question of Law and Fact
 Questions which may arise before the courts may either be
questions of law or fact or mixed questions of law and fact.
 Questions which arise for judicial determination:
I. Question of law
II. Question of fact
III. Judicial discretion
IV. Judicial opinion
Question of law:
•There are 3 different senses:
1. Predetermined and authoritatively answered questions:
o A question which the court is bound to answer in
accordance with the rule of law is a question of law. All
other questions are questions of fact.
o Eg: Whether a child below the age of 7 years can
commit a wrong under IPC ?
2. Questions arising for the first time:
o A question as to what law is to be applied to a case may
arise for the first time before the court. Such a question
arise because the law is uncertain or
 ambiguous or because the Statute is silent.
3. Jury system:
o There are questions of law determined by the judges and
questions of fact determined by the jury. This has a
limitation as all the cases are not decided with help of the
jury. The judge may also withdraw questions of fact from
the jury and decide them.
(Note: In India there is no jury system, however the court
may appoint a Commission under Order 26 of the
CPC which is a fact finding body)
 Question of fact
1. Questions of fact are generally those questions which are
not questions of law
2. Questions not determined by rule of law
3. Questions to be answered by the jury and not the judge.
Judicial discretion
o Judicial discretion includes all questions as to what is
right, just, reasonable or equitable so far as not predetermined
by authoritative rules.
o Judicial decisions pertains to ‘what ought’ to be rather than
‘what is’
o ‘What is’ are questions of fact. They are a capable of proof
and can be proved by evidence.
o They can be proved by reasoning and arguments and by
appealing to conscience of the court.
o Questions of judicial discretion attempt to discover what is
right or proper or just under the circumstances.
• However judicial discretions cannot be exercised
arbitrarily nor can they be vague and unreasonable.
•Judicial discretion is governed by justice equity and good
conscience
•Eg.: Determination of an act as offence is a question of
fact ; determining the particular offence is question of
law ; determing the punishment to be imposed is judicial
discretion subject to the minimum and maximum
punishment that can be imposed is laid down by the law.
Judicial opinion
o Judicial opinion involves assessment of the situation.
o Eg.: Whether the accident was due to the reckless driving of
the accused?
The state of mind and the speed decides whether he was
reckless or not.
 Justice and its kinds
• War and administration of justice are two most essential
functions of a state
• War and administration of justice are two most essential
functions of a state
• MEANING OF JUSTICE:
o Justice means the proper administration of law.
o “Administration of justice is the protection of individual
form the unjust unlawful deeds of other”.
• Administration of justice is important for the following
reasons.
o Necessary for uniformity.
o Necessary for protection of rights.
o Necessary for peace and stability.
o Necessary for integration of society.
o Necessary to check injustice.
o Necessary to educate people.
o To promote welfare.
o To promote equity.
• OBJECTS OF ADMINISTRATION OF JUSTICE.
Objects of administration of justice is to create a such
atmosphere in which every body can live without harming
other. And there should be obedience of law which
supremacy of Government with ideal system of justice.
 Analysis of jurisprudential concept of
justice
1. Justice: Wide and Restricted sense
• In its wide sense unjust law is no law. Here justice is
roughly synonymous with morality.
• Justice has a narrow sense when used in expressions
‘court of justice’, ‘natural justice’ and ‘denial of justice’.
Here the expressions refer to only area of morality. This
can be understood only examining the reverse concept of
injustice.
Eg: Discrimination in the society is a form of injustice.
2. Justice : Distributive and Corrective
• Distributive Justice: falls within Legislative field.
o This means framing laws ,passing laws and enacting codes
to regulate human behaviour.
• Collective Justice: falls within the area of the courts.
o This is when a right has been violated and the person
whose rights are violated approaches the court.
o Corrective justice also includes the fair rules of procedure
(PNJ) ie; “nemo judex in causa sua” and “ audi altrem
partem”
• Necessity of administration of justice:
1. Government control for orderly Society:
o Society is divided into unorganised and organised:
o Unorganized society:
 Human beings have conflicting interest resulting in clash
of interests. In unorganized society these conflicting interests
are resolved by the concept of ‘might is right’ in the form of
revenge, vengeance and retaliation.
According to Hobbes, when men live without a common
power to keep them all in (fear) awe, they are in a state of
war amongst themselves and life of men becomes solitary,
poor, nasty, brutish and short.

.
o Organized society:
 In orderly society, men obey the laws for the reason
element of force is present.
 If force or power are not exercised at all because all men
are orderly, it does not mean that government control has
disappeared but it means the final triumph of supremacy
of government control.
2. System of law based on public and coercive measures
 In an organized society legal rules provide for distribution
of rights and maintenance of law and order.
 Maintenance of law and order has an inherent element of
force in it.
 The system of law is based partly on the valuable supprt it
derives from public opinion and partly on the coercisive
measures of enforcement.

 Public opinion cannot be a substitute for legal sanction.

Public opinion alone without sanctions will lead to group
interest coercion alone without any favorable public
acceptance of the corecive measures would place the law
on an unstable ground. Hence social sanction along with
institutionalized law enforcement is necessary for an
orderly society.
Civil and criminal justice:
• According to Blackstone there are 2 kinds of wrongs:
1. Civil Wrongs : are private wrongs ie; infringement of
private rights. Action is initiated by the individual
aggrieved.
2. Criminal Wrongs: are public wrongs. These are violations
public rights which affect the whole community. State
initiates an action against the wrong doer ie; the State
represents the aggrieved party.
1. Civil Justice: Primary and sanctioning rights.
• The right enforced in a civil proceeding is either a primary
or sanctioning right.
• A sanctioning right arises out of violation of another right.
The purpose of sanctions may be imposition of a pecuniary
penalty on the wrong doer. The pecuniary penalty may be :
a) Restitution : restricted to monetary loss.
b) Penal: in addition to the actual loss.
• All others are primary rights. They are rights which have
some source other than wrongs.
• The enforcement of primary right is called as specific
right.
• In specific enforcement, the other party is compelled to
do the act which is agreed to be done
• Eg.: Right to fulfillment of contract is a primary right
whereas, right to claim damages on non-fulfillment of contract
is a sanctioning right
2. Criminal Justice: Punishment
•Criminal law deals with crimes and criminals
•The purpose of criminal justice is punishment
•Punishment can be considered in 2 aspects:
oInstitutionalized imposition for some definite end:
Punishment as a means to an end can serve to
a) Deter potential offenders ( deterrent theory)
b) Prevent the offender from repeating the crime
( preventive theory)
c) Reform the offender. ( reformative theory)
o Punishment as an end itself : In this sense punishment is
only retribution to the wrong doer. It follows the principle “ an
eye for an eye, and tooth for a tooth”.
 Theories of Punishment
• Punishment is the sanction imposed on the offender for
infringement or violation of set of rules and norms of the
society.
• Various theories have been advocated by jurists in support
and in justification of imposition of punishment on
offenders.
• The following are some of theories:
1. Deterrent theory:
o The deterrent theory prevailed during the 19 th century.
o The object of this theory was to teach a lesson to the
wrongdoer that crime never pays as it is a “bad bargain
"for him.
o It was sets an example to the members of the society by
creating a fear that if they would commit a crime, they
would have to pay penalty for it.
o It prevents the prospective law breaker from infringing or
violating the law
2. Preventive Theory
o The object of this theory was to prevent or disable the
wrongdoer from repeating his crime.
o Eg. For the offence of theft the hands of the accused were
chopped off.
o However this theory was heavily criticized on the ground
that it did not take into account several factors such as
motive behind the crime, circumstances, psychological
consideration etc.
o It also presumes that once a person commits a crime, he
would repeat it in the future.
3. Reformative Theory:
o This theory emphasis on the moral reform of the offender.
oAccording to this theory, the object of punishment should be
to reform the offender.
o he should be educated and provided an opportunity to
improve
oHe should be given a chance so that he may be able to start a
new life as a peace-loving and a law abiding citizen
oThis theory is criticized on the ground that there are many
incorrigible, incurable and hardened criminals who cannot be
reformed
o It is also said that grant of facilities and comfort in the jail
may encourage such class of criminals in indulging again and
again in their anti-social activities
o This theory, however is desirable and should be adopted in
case of juvenile offenders, youthful criminals, depraved and
delinquent children, first offenders, etc
4. Retributive Theory:
o In the primitive society, retributive of punishment was the
only theory which was followed.
o This theory believes in the principle “ an eye for an eye, and
tooth for a tooth”.
o According to this theory, an offence creates an imbalance in
the society and punishment is means of restoring the balance
o This theory is criticized on the ground that punishment itself
is not a remedy for the act committed by the offender.
oIn a given case, it may aggravate the mischief.
oThis theory ignores an important element that crime is
disease which should be cured rather than repeated.
5. Expiation Theory:
o The term ‘expiation’ means the act of making amends or
atonement.
o This theory states that compensation is awarded to the
victim from the wrong-doer,
o Accused is not physically punished. He is economically
punished, and such compensation is awarded to the victim or
victim's family members.
 Secondary Functions of the
Court
• In its wider sense administration of justice includes all the
functions of the court. These are secondary functions of the
courts of law.
• These are secondary functions fall under the category of
‘civil administration of justice’
• The secondary functions of the court are :
1. Petition of Rights: A suit can be instituted against the
State by an aggrieved party whose rigths have been
infringed by the State. However a notice of 60 days is to be
given before a suit is institued against the State under Sec
80 of the CPC
2. Declaration of rights: A litigant may also approach a
court for declaration of his rights when it is uncertain.
3. Administration: Administration of estate or distribution
of property.
4. Titles to right: Judicial decrees are used for creating,
transferring or extinguishing rights.
Eg. Letters of administration.
5. Supervision of lower courts: Superior Courts are
empowered to supervise the courts below them. In India
Art.227 of the Constitution provides for the Supervisory
jurisdiction of the High Court.