Natural law
Natural law is a theory that posits the existence of a law whose content is set by nature and that therefore has validity everywhere.
The phrase natural law is sometimes opposed to the positive law of a given political community, society, or nation-state, and thus can function as a standard by which to criticize that law. In natural law jurisprudence, on the other hand, the content of positive law cannot be known without some reference to the natural law.
Used in this way, natural law can be evoked to criticize decisions about the statutes, but less so to criticize the law itself.
Some use natural law synonymously with natural justice or natural right (Latin ius naturale), although most contemporary political and legal theorists separate the two.
Natural law theories have exercised a profound influence on the development of English common law, and have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, and John Locke.
Because of the intersection between natural law and natural rights, it has been cited as a component in United States Declaration of Independence.
Legal positivism
Legal positivism is a school of thought in jurisprudence and the philosophy of law. The principal claims of legal positivism are that:
- There is no inherent or necessary connection between the validity conditions of law and ethics or morality.
- Laws are rules made, whether deliberately or unintentionally, by human beings.
- Laws must follow the rules of determinism.
Monism
Monists assume that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal
Dualism
Dualism is a legal concept which contends that national law and international law are two separate and distinct areas of law. It can be contrasted with the legal theory of monism which contends the opposite.
Political jurisprudence
Political jurisprudence is a legal theory that some judicial decisions are motivated more by politics than by unbiased judgment. According to Martin Shapiro, who first noted the theory in 1964: “The core of political jurisprudence is a vision of courts as political agencies and judges as political actors.”
Legal decisions are no longer focused on a judge’s analytical analysis , but rather it is the judges themselves that become the focus for determining how the decision was reached.
Political jurisprudence advocates that judges are not machines but are influenced and swayed by the political system and by their own personal beliefs of how the law should be decided.
Instead they are making decisions based on their political, legal, and personal beliefs as it relates to the law. Deeply, and with more implication for the society, the decisions of the judges is not only modified from the politics, but modify itself the politics and the process of law making in a so influent way, that we can say that the policy-making is “judicialized”.
Analytical jurisprudence
Analytical jurisprudence is a legal theory that draws on the resources of modern analytical philosophy to try to understand the nature of law.
H. L. A. Hart was probably the most influential writer in the modern school of analytical jurisprudence, though its history goes back at least to Jeremy Bentham.
Analytic, or ‘clarificatory’ jurisprudence uses a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law’s fusing of what law is and what it ought to be.
David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action.
So analysing and clarifying the way the world is must be treated as a strictly separate question to normative and evaluative ought questions.
The most important questions of analytic jurisprudence are:
“What are laws?”; ”
What is the law?”;
“What is the relationship between law and power/sociology?”;
and, “What is the relationship between law and morality?”
Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.
Abduction
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Abduction means whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person as per Section 362 of Indian Penal Code.
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மனித உரிமைகள் கண்காணிப்பகம்
போர்ச் சட்ட விதிகளை மீறியதற்கான விசாரணைகளை மேற்கொள்ளப்பட வேண்டும் – மனித உரிமைகள் கண்காணிப்பகம்
”கனரக ஆயுதப் பாவனை, வான்படைகளின் தாக்குதல் என்பன பொதுமக்களுக்கு உயிரிழப்புக்களை ஏற்படுத்துவதற்குக் காரணமாக இருப்பதால் அவற்றின் பாவனையை நிறுத்துமாறு எமது பாதுகாப்புப் படைகளுக்கு உத்தரவிடப்பட்டுள்ளது” என சிறீலங்கா அதிபர் மகிந்த ராஜபக்சவின் செயலகத்தால் விடுக்கப்பட்டுள்ள அறிக்கையில் தெரிவிக்கப்பட்டுள்ளது.
இந்த அறிவித்தல் மூலம் கனரக ஆயுதங்களை சிறிலங்கா படையினர் பயன்படுத்தியிருப்பதை அரச தலைவரின் செயலகம் ஒப்புக்கொள்கின்றது என மனித உரிமைகள் கண்காணிப்பகம் சுட்டிக்காட்டியுள்ளது.
போர்க்காலச் சட்டங்கள் அரசாங்கப்படைகளாலும் தமிழீழ விடுதலைப் புலிகளாலும் மீறப்பட்டிருப்பது தொடர்பாக அனைத்துலக ஆணைக்குழு ஒன்றின் மூலம் விசாரணைக்கு உட்படுத்தப்பட வேண்டிய தேவையை உணர்த்தியிருக்கின்றது என மனித உரிமைகள் கண்காணிப்பகத்தின் ஆசிய பிராந்தியத்துக்கான பணிப்பாளர் பிரட் அடம்ஸ் வலியுறுத்தியிருக்கின்றார்.
Former SC Judge Krishna Iyers plea to Prime Minister
The text of a letter written by Justice V.R. Krishna Iyer, former Supreme Court Judge, to Prime Minister Manmohan Singh, dated April 17, 2009:
I would like to bring to your attention a case of grave injustice which is a cause of much shame to Indian democracy: that of Dr. Binayak Sen, the well known paediatrician and defender of human rights.
This good doctor has been incarcerated in a Raipur jail for nearly two years now under the Chhattisgarh State Public Security Act, 2005. Among the charges against Dr. Sen, who is renowned worldwide for his public health work among the rural poor, are “treason and waging war against the state.”
Chhattisgarh State prosecutors claim that Binayak, as part of an unproven conspiracy, passed on a set of letters from Narayan Sanyal, a senior Maoist leader who is in the Raipur jail, to Piyush Guha, a local businessman with allegedly close links to the left-wing extremists. He was supposed to have done this while visiting Sanyal in prison both in his capacity as a human rights activist and as a doctor treating him for various medical ailments.
The trial of Dr. Sen, which began in a Raipur Sessions Court late April 2008, has, however, not thrown up even a shred of evidence to justify any of these charges against him. By March 2009, of the 83 witnesses listed for deposition by the prosecution as part of the original charge-sheet, 16 were dropped by the prosecutors themselves and six declared ‘hostile’, while 61 others have deposed without corroborating any of the accusations against Dr. Sen. Irrespective of the merits of the case against Dr. Sen, there are very disturbing aspects to the way the trial process has been carried out so far.
As if all this were not enough, Dr. Sen has also been repeatedly denied bail by the Bilaspur High Court (in September 2007 and December 2008). And the Supreme Court of India rejected his special leave petition to have the bail application heard before it (in December 2007).
Given the paucity of evidence in the trial of Dr. Sen so far, in all fairness the Raipur court should have dismissed the case against him altogether by now. Certainly the weakness of the prosecution’s position should entitle him to at least grant of bail. Dr. Sen is a person of international standing and reputation, with a record of impeccable behaviour throughout his distinguished career. In May 2008, in an unprecedented move 22 Nobel Prize winners even signed a public statement calling him a ‘professional colleague’ and asking for his release.
Normally bail is refused only in cases where courts believe an accused can tamper with evidence, prejudice witnesses or run away. In Dr. Sen’s case none of these apply, as shown by the simple fact that at the time of his arrest he chose to come to the Chhattisgarh police voluntarily and made no attempt to abscond despite knowing about his possible detention.
Today Dr. Sen, a diabetic who is also hypertensive, is himself in urgent need of medical treatment for his deteriorating heart condition. In recent weeks his health has worsened and a doctor appointed by the court to examine him recommended that he be transferred to Vellore for an angiography and perhaps, if needed, an angioplasty or coronary artery bypass graft without further delay.
Instead of recognising their social contributions, the Indian state, by wrongly branding Dr. Sen and many other human rights defenders like him as ‘terrorists’, is making a complete mockery of not just democratic norms and fair governance but its entire anti-terrorist strategy and operations.
The repeated denial of bail which results in ‘punishment by trial’ constitutes an even graver threat to Indian society. The sheer injustice involved will only breed cynicism among ordinary citizens about the credibility and efficacy of Indian democracy itself.
School of Law 