Difference in the Views of Austin and Duguit on the Nature of Law

A complete analysis of the idea of law involved, therefore, an analysis of the ethical element involved in it. This task pertains in its full compass to the science of ethics rather than to that of jurisprudence, but a partial examination of the question is necessary here in view of the intimate relation which exists between the theory of law and the theory of justice.”

Justice is of two kinds: (1) natural or moral justice and (2) legal justice. The first is justice in itself indeed and in truth. The second is justice as actually declared and recognized by the civil law and en­forced in the courts of law.

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Natural justice is the ideal and the truth of which legal justice is the more or less imperfect realisation and expres­sion. Legal justice continues to observe Salmond, is the authoritative formulation of natural justice by the civil law for the direction of the courts by which justice is administered.

A duly is an act required by a rule of justice, an act the contrary of which would be an act of injustice or wrong. Duties, therefore, are either (1) natural or moral duties or (2) legal duties. So also rights are either natural or moral rights.

A right is an interest recognised and protected by a rule of right or justice. All rules of rights or justice exist for the protection of the interests of men against the acts of other men. Bui all lie interests of men are not protected.

Those which are protected are called right. A right of the first kind mentioned above is one which is conferred by a rule of natural or moral justice.

A legal right, on the other hand, is one which is conferred by a rule of legal justice. A natural or moral right becomes also a legal right when the rule of natural justice in which it has its origin is recognised also by the law as a rule of legal justice.

The Idea of Law of Nature or Moral Law:

Lex natural, Lex naturalist as a form of imperative law in which natural justice has its source, just as legal justice has its source in the imperative law of Stale, has played a notable pair in the history of human thought in the realms of ethics, theology, politics and jurisprudence.

There is another section of the people which is of the view that the application of the purely reformative theory would lead to aston­ishing and inadmissible results.

If criminals are sent to prison in order to be there transformed into good citizens by physical, intellectual and moral training, prisons must be turned into dwelling houses far too comfortable lo serve as any effectual deterrent to these classes from which criminals are chiefly drawn.

Then the most sanguine advocate of curative treatment of criminals must admit that there are in the world men who by some vice of nature are even in their youth beyond the reach of reformative influence and with whom crime is not so much a bad habit as an ineradicable instinct.

Moreover under the Indian Penal Code capital punishment is awarded for the offences of murder, dacoity accompanied with murder, waging war against the Government, etc. These offences are so hei­nous than for think the death sentence is absolutely necessary.

Any sconce less than this will be inadequate for them. Again this punish­ment is given to the criminals only after a very thorough enquiry. Benefit of doll is always given to the criminals.

Anybody coming within the provisions of “General Exceptions” is at once left. Capital punishment in that view may be regarded as an absolute necessity. The time may not yet be ripe when it would be expedient to wipe off from our statute book the capital punishment.