Biography[ edit ] Salmond was born in North Shields , Northumberland , England, the eldest son of William Salmond died , a Presbyterian minister and professor. He then obtained a Gilchrist scholarship to study at University College, London , where he graduated in law and became a fellow. Returning to New Zealand in , he was admitted as a barrister and solicitor of the Supreme Court, and practised in Temuka in South Canterbury. In he was appointed professor of law at the University of Adelaide , South Australia, and in he returned to New Zealand to take up the founding chair in law at Victoria University College , Wellington. In Salmond was appointed as Counsel to the Law Drafting Office where he remained for four years, until his appointment in as Solicitor-General.
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There are a number of other factors such as the social sanctions, habit and convenience which help in the obedience of law. In his definition Command, duty and sanction are the three elements of law. The fundamental difference between the definitions of the two jurists is that whereas in the definition of Austin, the central point of law is sovereign, in the definition of Salmond, the central point is Court. In fact, both the definitions are not perfect and present two aspects of law.
Salmond : Points out that men do-not have one reason in them and each is moved by his own interest and passions. The only alternative is one power over men. Men is by nature a fighting animal and force is the ultima ratio of all mankind. Without it injustice is unchecked and triumphant and the life of the people is solitary, poor, nasty, brutish and short. It may become latent but still exists. The rights enforced by civil proceedings are of two kinds 1 Primary and 2 Sanctioning or remedial rights.
Primary right are those rights which exists as such and do not have their source in some wrong. Sanctioning or remedial rights are those which come in to existence after the violation of the primary rights. The object of the civil administration of justice is to ascertain the rights of the parties and the party who suffers from the breach of such rights is to be helped by way of paying damages or getting injunction, restitution and specific performance of contract etc.
The criminal court after proving that the offender is guilty of the offence charged awards him the punishment of fine, imprisonment as prescribed by criminal law.
A convicted person is awarded physical pain. Thus the main purpose of the criminal justice is to punish the wrongdoer. Criminal Administration of Justice In the criminal cases the proceedings Is filed in the criminal court. The main remedy in civil Cases is damages. The main remedy in criminal cases is to Punish the offender. In the criminal cases, the court follows the procedure laid down in criminal Procedure Code. In civil cases the action is taken By the injured party and the Suit is established by himself By giving evidence.
In criminal cases the proceeding is taken by the state and the injured party is called out as a witness by the state. Definition given by various jurists? It means that things are easy to explain than to define it. Definition is very necessary for the study of the subject, because the beginning and in one sense it ends is also its definition.
To give a definition of Law is comparatively a hard task due to many reasons : 1. And we can say that a definition which contain all the above meaning and all elements would be a good definition of law. Endlly definition given by every person is always different. Because definition given by a lawyer a philosopher, a student or a lecturer is always different.
Some of them are as under:- According to Roman Scholars:- The law is concerned with the parameters which is right or wrong, fair and unfair. Benthem, Austin and Kelson define the term of Law in the following manners:- 1. As per Benthem:- The law is the violaion of some declarations by the political head with utiity ensuring maximum happiness of he maximum people in the society.
Benthm concept of law revolves around individual utilitarianism and its concern with the theory of pain and pleasure, which means that the purpose of Law to reduce the pain and harms and pleasure in the society.
According to Kelson:- The law is depsycholigically command. He is concern with those commands which purely rest upon the formal expression of law. And we shall discuss some of true definitions :- DUGUID :- According to him the law is a set of sosme formal norms aiming an creation of soliditary in society.
But only the living Law is the actual law. Law gives rights and duties to human beings. And law is the essential part of a State. Law is an instrument of social control as well as social change. Discuss the characteristics of a legal right.
In this way right for the purpose of jurisprudence is called legal right. Austin in his theory has separated the subject matter of jurisprudence from morality or materiality. He gave the concept of positive law. So here also right means positive law right only, which is term of legal right. Legal right is recognised by law. Moral right if violated is called moral wrong. The violatin of natural right is called natural wrong. But these wrongs are not remedial under law while if a legal right is violated then it will be legal wrong which is remedial under law.
When an interest of a person is protected by the rule of law then it is called right. Salmond definition involves two points, firstly that right is an interest and secondly it is protected by rule of right. It means that it relates to his person interest i. Grey has criticised the interest theory propounded by Salmond, Ihering and Heck and he has supported the view that right is not an interest but that means by which the interest is secured.
It is not necessary that the state should always necessarily enforce all the legal rights. There are certain laws which do not confer right of enforcement to the courts, for example : International Court of Justice has no power to compel enforcement of its decrees under International Law.
It says that a right reflects the inner will of a human being. Austin, Holland, Halmes and Dov recognised this theory of right. According to them a person wants o remain in the world freely and according to his own choice because a man is born free. Interest Theory:- This theory says that interest is the base of the right. It is only interest which is recognised by law.
This theory reflects the external nature of the human beings. Supporter of this theory say that there are many interests in the world. These interest which are protected and recognised by law are called right.
Subject: here means a person who has right. So there must be a person for rights 2. In a right either an act is done or an act is forbidden. This is also called as content of right. Object:- There must be a object upon which the right is exercised. Mainly there are three essential elements of right e.
Lives in a house. Here : i A has the right to live in the house. But some writers give some more elements of right. Correlative duty: For right there must be a correlative duty.
Almost all jurists agree on the point because one cannot exists without the other. Here Austin is not agree to this He says that the duty may be divided into two kinds i. Title: Salmond gives one more element of rights in the form of title. He says that a right has got also a title. Title may be in the form of the owner or co-owner or mortgager or leaser or buyer etc. A is the subject or owner of the right so required.
The person bound by the co-relative duty is persons in general because a right of this kind avails against the world at large. Primary right and secondary right : Primary right is an independent right while secondary right means dependent right. They are also called as principal right and helping right or remedial right. If any person defames A then A has the right of damages against the defamer. This right of damages is called secondary right or remedial right.
Positive and Negative Right:- Positive right is linked with negative and negative right is linked with duty. Positive right permits to do an act while negative right prohibit doing an act.
This is his positive right and any person should not defame him. The defaming his reputation called negative right. Right Rem and Personam:- Right in Rem means right against the whole world while right in persosnam means right against a definite person. This is right in rem. This is known as right in personam. Legal ight is recognised by Law. While equitable right has been recognised by natural justice. Thus contingents right becomes full right only when such uncertain events happen according to the condition.
A person possessing any property has the proprietary right over it, and personal right means the right related with a person or a body. Every person has a status. He should not be injured or defamed. If any person injures or defames another person then the wrong doer infringes the personal right of a person. Perfect or Imperfect Right:- These rights which are enforceable by law are perfect and which law does not enforceable are imperfect rights.
Salmond on jurisprudence.
John Salmond (judge)