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UNIT-2

Purpose and function of law

Ramesh Arjun

L
aw changes from time to time and from country to country. Law is not
static. It must change with changes in society. That is the reason why there
is no unanimity with regard to the purpose and function of law.

According to one school of thought, the object of law is to maintain law and order
in the country.

Plato says mankind must either give themselves a law and regulate their lives by it
or live no better than the wildest of the wild beasts.

According to Hobbes law has brought into the world for nothing else but to limit
natural liberty of particular men in such a manner as they might not hurt but assist
one another and join together against a common enemy.

Locke says that the end of law is not to abolish or restrain but to preserve or
enlarge freedom.

According to Kant the aim of law is freedom and the fundamental process of law
is the adjustment of one’s freedom to that of every other member of the
community.

According to Bentham of the substantive branch of the law, the only defensible
object or end in view is the maximization of the happiness of the greatest number
of the members of the community in question.

Holland says law is something more than police. Its ultimate object is no doubt
nothing less than the highest well being of society and the state from which law
derives its force., is something more than an institution for the protection of rights.

Roscoe pound says that there are four purposes of law. The first purpose of law is
to maintain law and order within a given society and that has to be done at any
cost. The second purpose of law is to maintain the status quo in society. The third
purpose is to enable individuals to have the maximum of freedom to assert
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themselves. The fourth purpose of law is the maximum satisfaction of the needs of
the people.

The Hindu view regarding the purpose of law is that it should aim at the welfare of
the people in this world and also from salvation after death. According to the
mohammadan law, the purpose of law is the discipline of the soul, the
improvement of morals and the preservation of life, property and reputation. Sir
abdur rahim writes the end of law is to promote the welfare of man both
individually and socially not merely in respect of life on this earth but also of
future life.

According to salmond, the object of law is justice. To salmond, law is those

principles which are applied by the state in the administration of justice.

Justice operates at two different levels, distributive justice and corrective justice.
Distributive justice works to ensure a fair division of social benefits and burdens
among the members of a community. Distributive justice serves to secure a balance
or equilibrium among the members of society. That balance can equilibrium
among the members of society. That balance can be upset as when A wrongfully
seizes B’s property. At that point, corrective justice will move in to correct the
disequilibrium by compelling A to restore the property to B. the function of the
courts is to apply justice in its corrective sense. In a fair legal system, there are
procedural or other rules which give each party an equal opportunity of presenting
his case and calling evidence and to prevent judicial prejudice in favour of either.

Fair and equal dispensation of justice demands more than equality between the
parties to individual law suits. It requires that all be equal before the law. Legal
rights which each person has should be given equal protection by the courts. In
each case, both the plaintiff and defendant should get an equal crack of the whip.
Judges should mete out justice without fear or favour, without distinction between
high and low, rich and poor and so forth. Like cases should be treated alike not
only as regards the hearing but also in respect of the finding. Major discrepancies
in sentencing mean in fact inequality before the law.

According to Roscoe pound, law is a species of social engineering whose function

is to maximize the fulfillment of the interests of the community and its members
and to promote the smooth running of the machinery of society. Bodily security,
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property, reputation and freedom of speech are all interests in this sense. All of
these interests do not necessarily receive recognition and protection by law. The
right to privacy is not fully recognized by English law. The reconciliation of
conflicts between competing interests is in a broad sense part of the problem of
justice.

Justice is not the only possible or desirable goal of law. The notion of law
represents a basic conflict between two different needs, the need for uniformity and
the need for flexibility. Uniformity is needed partly to provide certainty and
predictability. Where rules of law are fixed and generalized, the citizen can plan
his activities with a measure of certainty and predict the legal consequences of his
behavior. In some areas of law such as contract and property, this need may
outweigh all others and fixed rules may be preferable to rules that are fairer but
less certain. Another benefit is stability and security which the social order derives
from uniform, unchanging and certain rules of law.

There is also a need for a certain degree of flexibility. The existing rules may not
provide for a borderline case. As a matter of fact, no rule can make provision for
every possible case. Some measure of discretion is necessary. Flexibility is
necessary to enable law to adapt itself to social change. If law is unalterable, the
necessary changes will come by revolution, violence and upheavals. Law that is
capable of adaptation, whether by legislation or judicial development, allows for
peaceful change from time to time.

In conclusion it can be said that the function of law is to achieve stability and
peaceful change in society.
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Questions of law and Fact

It is commonly said that all questions which arise for consideration and
determination in a court of justice are of two kinds. They are either questions of
law or questions of fact. In a sense, this is true but the matter has to be considered
in detail because both the terms questions of law and questions of fact are
ambiguous and possess more than one meaning.

Question of law

According to salmond, the term question of law is used in three distinct, though
related senses.

In the first place, it means a question which the court is bound to answer in
accordance with a rule of law which has already been authoritatively answered by
the court. All other questions are questions of fact. Every question which has not
been determined before and authoritatively answered by law is a question of fact.
Whether a contractor has been guilty of unreasonable delay in building a house is a
question of fact as the law does not contain any rule for its determination. Whether
the holder of a bill of exchange has been guilty of unreasonable delay in giving
notice of dishonor is a question of law to be determined in accordance with certain
fixed principles laid down in the bills of exchange Act. The question whether a
child accused of crime has sufficient mental capacity to be criminally responsible
for his acts is one of fact if the accused is over the age of 10 years in England and 7
years in India. It is a question of law if he is under that age.

In the second sense, a question of law is a question as to what the law is. An appeal
on a question of law means an appeal in which the question for decision is what the
true rule of law is on a certain matter. Questions of law in this sense arise out of the
uncertainty of law. If the whole law could be definitely ascertained, there would be
no question of law in this sense. When a question first arises in a court of justice as
to the meaning of an ambiguous statutory provision, the question is one of law in
the second sense. It is a question as to what the law is. It is not a question of law in
the first sense but a question of fact. The business of the court is to determine what,
in its own judgment and in fact, is the true meaning of the words used by the
legislature. An authoritative answer to the question becomes a judicial precedent
which is law for all other cases in which the same statutory provision is in
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question. The judicial interpretation of a statute represents a progressive

transformation of the various questions of fact as to the meaning of that statute into
questions of law to be answered in conformity with the decided cases.

As regards the third sense in which the term questions of law is used, there is a
general rule that questions of law are for the judges and questions of fact are for
the jury to decide. It is true that questions of law are never referred to the jury, but
questions of fact can be referred to a judge. The interpretation of a particular
document is a question of fact but very often it is done by the judge himself. The
question of reasonable and probable cause for prosecution in a suit for malicious
prosecution is decided by a judge although it is a question of fact. Paton points out
that although a judge lays down the law and the jury applies it to facts and arrives
at a conclusion that is a mixture of law and fact and not fact alone.

Questions of fact

The term question of fact has more than one meaning. In a general sense, it
includes all questions which are not questions of law. Everything is a matter of fact
which is not a matter of law. According to salmond, a question of fact means either
any question which is not pre-determined by a rule of law, or any question except
the question as to what the law is or any question which is to be answered by the
jury. In a narrower sense, a question of fact is opposed to a question of juridical
discretion which includes questions as to what is right, just equitable or reasonable.
Evidence can be led to prove or disprove a question of fact. It can be proved by
evidence whether a particular person lives at a particular place or not and it is a
question of fact. However, it is a question of law to decide how much punishment
should be inflicted for any particular offence. It is a question of fact whether the
offence of adultery has been committed or not but it is a question of law what
punishment should be given to the adulterer.

A question of fact is a matter of fact as opposed to a matter of opinion. Evidence is

given to find out the true facts of the case. It can also be proved by means of
demonstrations. However, a question of opinion cannot be proved by
demonstration or by evidence.

Regarding the distinction between questions of law and fact, paton observes
however difficult it may be to define the exact difference between law and fact, the
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distinction itself is fundamental for any legal system. Law consists of abstract rules
which attempt to reduce to order the teeming facts of life. Facts are the raw
material on the basis of which the law creates certain rights and duties.

According to salmond, all matters and questions which come before a court of
justice are of three kinds like matters and questions of law, matters and question of
judicial discretion and of the court to ascertain the law and decide the case
accordingly. In the second case, the court can exercise its own judgment and
decide the dispute according to what it considers to be right just, equitable or
reasonable. In the third case, it is the duty of the court to weigh the evidence and
then come to its conclusion. As the legal system grows, there is a tendency to
transform questions of fact and questions of judicial discretion into those of
questions of law. As case law increases and legislative activity grows, the scope for
the moral judgment of the court becomes narrower. Even in questions of pure fact,
there are already pre-determined and authoritative answers.

Parker writes that actual cases may involve questions of law, fact and discretion at
the same time. Whether a company should be wound up involves the question of
fact as to what was done when it was as alleged created, the question of law
whether that was sufficient to create a company, question of fact as to its present
assets and liabilities and the question of discretion whether in view of the
circumstances, it is just and equitable that it should be wound up.

Questions of fact and discretion

Questions of fact are questions of what actually is and questions of discretion are
questions of right and of what ought to be. In questions of fact, the court tries to
find out the truth. In questions of discretion, the court decides what is just.
Questions of fact have to be proved by evidence and demonstration but questions
of discretion are subjects of reasoning and argument. It is a question of fact
whether a particular person has committed a crime or not and this can be proved or
demonstrated. However, it is a question of discretion for the court to decide what
punishment should be given to a person who has been found guilty of a particular
offence. Likewise, it is a question of fact whether a valid contract subsists between
the parties or not and whether a breach of the contract has taken place or not. It is a
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question of discretion how much damages are to be awarded or whether the

specific performance of the contract can be enforced.

Mixed questions of law and fact

Experience shows that in actual practice, questions of law and fact are mixed. In
the same case, the court has to decide questions of law and fact. If there is a dispute
whether a partnership exists among certain parties or not, it is a question of fact as
to what is the basic relationship between the parties. It is a question of law whether
the basic relationship between the parties constitutes a partnership in the eyes of
law or not. Thus we have a mixed question of law and fact. Very often, in criminal
cases questions of fact are decided by the members of the jury and questions of law
are decided by the judge and both of them are involved in the same case.
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Administration of Justice

Importance of justice

In the words of Prof. Sidgwick: In determining a nation’s rank in political

civilization, no test is more decisive than the degree in which justice as defined by
the law is actually realized in its judicial administration.

 Lord Bryce writes: there is no better test of the excellence of a government

than the efficiency of its judicial system.
 George Washington said: Administration of justice is the firmest pillar of
government.
 Law exists to bind together the community.
 It is sovereign and cannot be violated with impunity.
 According to salmond law may be defined as the body of principles
recognized and applied by the state in the administration of justice.
 Roscoe pound observes law is the body of principles recognized or enforced
by public and regular tribunals in the administration of justice.

Administration of Justice

 The most essential functions of a state are primarily two. War and
administration of justice.
 If a state is not capable of performing either or both of these functions, it
cannot be called a state.
 According to salmond, the administration of justice implies the maintenance
of right within a political community by means of the physical force of the
state.
 It is a modern and civilized substitute for the primitive practice of private
vengeance and violent self-help.
 In civilized societies, obedience to law becomes a matter of habit and in very
rare cases the force of the state is used to secure it.
 The supporters of the definition of salmond point out that if the force of the
state is not used in all cases to secure obedience, it does not mean that the
control of the state has disappeared.
 It merely indicates the final triumph and supremacy of the control of the
state.
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Necessity of administration of Justice

 Hobbes says that without a common power to keep them all in awe, it is not
possible for individuals to live in society.
 Without it, injustice as unchecked and triumphant and the life of the people
is solitary, poor, nasty, brutish and short.
 However orderly a society may be the element of force is always present and
operative.
 It is suggested that force as an instrument for the coercion of mankind is
merely a temporary and provisional incident in the development of a perfect
civilization.
 The conclusion is that the administration of justice with the sanction of the
physical force of the state is unavoidable and admits of no substitute.

Origin and Growth of Administration of Justice

 The origin and growth for administration of justice is identical with the
origin and growth of man.
 The social nature of man demands that he must live in society.
 While living so, man must have experience a conflict of interests and that
created the necessity for providing for the administration of justice.
 To begin with every individual had to help himself to punish the wrongdoer.
 He avenged himself upon his enemies by his own hand, probably supported
by the hands of his friends and kinsmen where necessary.
 At that stage, every man carried his life in his hands.
 He was liable to be attacked at any time and he could resist by overpowering
his opponent.
 In those days, every man was a judge in his own cause and might was the
sole measure of right.
 There was no guarantee that crime would certainly be punished and that also
in proportion to the gravity of the crime.
 Very often one crime led to another.
 Not only an individual was involved, even the members of his family and
tribe could be the victims of retaliation.
 There were group conflicts and tribal conflicts. Blood feuds were common.
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 When blood feuds became disastrous, primitive societies provided for the
payment of some money or its equivalent as a compensation to the victim of
the crime or the relatives of the victim.
 The system of compensation was developed until a regular sliding scale was
fixed.
 In the case of murder, the vengenance of the relatives of the deceased could
be bought off by paying blood money according to the importance of the
victim.
 The second stage in the history of administration of justice started with the
rise of political states.
 however, those states were not strong enough to regulate crime and inflict
punishment on the criminals.
 The law of private vengenance and violent self-help continued to prevail.
 The state merely regulated private vengenance and violent self-help.
 The state also prescribed rules for the regulation of private vengenance.
 The state enforced the concept of a tooth for a tooth, an eye for eye and a life
for a life.
 The state provided that a life shall not be taken for a tooth or a life for an
eye.
 Vengeance was not totally abolished in the anglo-saxon period of the history
of England but was merely restricted and regulated.
 With the growth of the power of the state, the state began to act as a judge to
assess liability and impose penalty.
 It was no longer a regulator of private vengeance.
 It substituted public enquiry and punishment for private vengeance.
 The civil law and administration of civil justice helped the wronged and
became a substitute for the violent self-help of the primitive days.
 The modern administration of justice is a natural corollary to the growth in
power of political state.

Advantages and disadvantages of legal justice

As regards advantages, legal justice ensures uniformity and certainty in the
administration of justice. Everybody knows what the law is and there is no scope
for arbitrary action. Even the judges have to give decisions according to the
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declared law of the country. As law is certain, citizens can shape their conduct
accordingly. Another advantage is that there is impartiality in the administration of
justice. Judges are required to give their decisions according to the pre-determined
legal principles and they cannot go beyond them. Law is not for the convenience of
the judges or for any particular individual. Law is already laid down and judges
have to act accordingly. It is in this way that impartiality is secured in the
administration of justice. In the words of Chief Justice Coke the wisdom of law is
wiser than any man’s wisdom. Judges can avail of the wisdom accumulated during
the last many generations. Legal justice represents the collective wisdom of the
community and that is always to be preferred to the wisdom of any one individual.
There are certain disadvantages of legal justice. One disadvantage is that it is rigid.
Law has already been laid down in precedents. It is not always possible to adjust it
to the changing needs of society.
Society may change more rapidly than legal justice and may result in hardship and
injustice in certain cases. Judges act upon the principle that hard cases should not
make bad law. Another defect of legal justice is its formalism or technicalities.
Judges attach more importance to legal technicalities than they deserve. They give
importance to form than to substance. Another defect of legal justice is that it is
complex. Modern society is becoming more and more complicated and if law is to
serve its needs, it has to be complicated. Efforts are made from time to time to
codify or simplify the legal system but very soon law becomes complicated. Sir
John salmond concludes the law is without doubt a remedy for greater evils, yet it
brings with it evils of its own.
Public justice
Public justice is that which is administered by the State through its own tribunals.
Private Justice is distinguished as being justice between individuals. Public justice
is a relation between the courts on the one hand and individuals on the other.
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Private Justice is a relation between individuals. X borrows money from y and

private justice demands that he should pay the same as promised. If he does not do
so, y has the right to go to a court of law to force x to pay the same. If y does so, it
is a case of public justice. Private Justice is the end for which the courts exist and
public justice is the instrument or means by which courts fulfill that end. Private
persons are not allowed to take the law into their hands. Even If a wrong has been
done to them, they must refrain from helping themselves. There is no place for
force in private justice. That can be used only in the case of public justice. To
quote salmond it is public justice that carries the sword and the scales and not
private justice.
Justice according to law
In modern times, what is given by the courts to the people is not what can really be
called justice but merely justice according to law. Judges are not legislators and it
is not their duty to correct the defective provisions of law. Their only function is to
administer the law of the country. It is rightly said that in the modern state, the
administration of justice according to law is commonly taken to imply recognition
of fixed rules.
A few illustrations may be given to show what we understand by justice according
to law. A creditor has to realize some money from a debtor. However, he files a
suit after the lapse of three years. Equity may be on his side, but his suit must fail
on account of the law of limitation which demands that a suit must be filed within
three years. Likewise a person may have actually committed a murder. He may
confess his guilt before a police officer who is an honest man. However, he does
not make a confession before a magistrate. If he is convicted on the basis of his
confession before the police officer, his conviction has to be set aside as it is
opposed to the law of the country. Even if a guilty person escapes, judges are not
bothered about it. They do not play and are not expected to play the role of
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legislators. If law is defective, it is the duty of the people to demand from their
legislators to alter the same. However, so long as a particular law is on the statute
book, the same has to be enforced unmindful of the consequences. Law may be
blind and therefore justice becomes blind, but there is no help for it. Judges are
expected to give justice according to the law of the country and not according to
what they consider to be just under the circumstances.
Civil and Criminal Justice
A rough distinction between crimes and civil wrongs is that crimes are public
wrongs and civil wrongs are private wrongs. Blackstone write: wrongs are
divisible into two sorts or species, private wrongs and public wrongs. The former
are an infringement or privation of the private or civil rights belonging to
individuals, considered as individuals, and are thereupon frequently termed civil
injuries; the latter are a breach and violation of public rights and duties which
affect the whole community considered as a community and are distinguished by
the harsher appellation of crimes and misdemeanors. A crime is an act deemed by
law to be harmful to society in general. Murder injures primarily the particular
victim but its disregard of human life does not allow the same to be a matter
between the murderer and the family of the murdered. Those who commit such
acts are proceeded against by the State and they are punished if convicted. Civil
wrongs such as a breach of contract or trespass to land are deemed to infringe only
the rights of the individual wronged and not the society in general. The law leaves
it to the victim to sue for compensation in the courts.
English law has certain features which prevent us from drawing a clear line
between crimes and civil wrongs. There are some wrongs to the state and therefore
public wrongs, but still they are regarded as civil wrongs by law. A refusal to pay
taxes is an offence against the state and is dealt with in a suit of the state, but it is a
civil wrong in the same way as a refusal to pay money lent by a private person is a
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civil wrong. The breach of a contract made with the state is not a criminal offence.
An action by the state for the recovery of a debt, or for damages or for the
restoration of public property, or for the enforcement of a public trust is a civil
wrong although in each case the person injured and suing is the state itself. Some
civil wrongs can cause greater general harm than some criminal offences. The
negligence of a contractor may cause greater damage and loss than a pretty theft.
The same act may be a civil injury or a crime.
However, salmond points out that from a practical standpoint, the importance of
distinction lies in the difference in the legal consequences of crime and civil
wrongs. Civil justice is administered according to one set of forms and criminal
justice according to another set of forms. Civil justice is administered in one set of
courts and criminal justice is administered in a somewhat different set of courts.
The outcome of the proceedings is generally different. If successful, civil
proceedings result in a judgment for damages, or in a judgment for the payment of
a debt or penalty or in an injunction or decree for specific restitution or specific
performance, or in an order for the delivery of possession of land, or in a decree of
divorce, or in an order of mandamus, prohibition or certiorari, or in a writ of
habeas corpus, or in other forms of relief known as civil. If successful, criminal
proceedings result in one of a number of punishments, ranging from hanging to
fine or in a binding over to keep the peace, release upon probation or similar other
results belonging distinctly to criminal law. However, even here the distinction is
not clear cut. Criminal proceedings may result in an order against the accused to
make restitution or compensation. Civil proceedings may result in an award of
exemplary or punitive damages. However, the basic objective of criminal
proceedings is punishment and the usual goal of civil proceedings is not punitive.
Some writers consider that the object of civil proceedings is to enforce rights,
while the object of criminal proceedings is to punish wrongs. There is an element
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of truth in this view. Punishment is more a feature of criminal proceedings than of

civil proceedings. However, punishment is not always present in criminal
proceedings and not always absent in civil proceedings. A juvenile offender may
be just warned and not punished in a criminal proceeding whereas in an action for
torts, damages may be awarded by way of punishment. When a man disobeys an
injunction of the court, he may even be punished with imprisonment in civil
proceedings. Therefore, this distinction does not go to the root of the matter.
Another distinction made by some writers is that crimes are more harmful in their
consequences than civil wrongs. While crimes injure the public at large, civil
wrongs injure the private individual. However, this distinction cannot always be
maintained. Some acts may be considered both as crimes and civil wrongs. This is
so in the case of defamation. It is also not always true that crimes are more harmful
than civil wrongs. Negligence of a contractor is a civil wrong but it may result in
more loss of life and property than a simple assault or a petty theft which are
crimes.
According to some writers, the state constitutes itself as a party to the proceedings
in a crime, but in civil proceedings private individuals are parties. This distinction
is also not true in all cases. There are crimes in which private individuals can be
parties.
The difference between criminal justice and civil justice cannot be considered in
terms of natural acts or the physical consequences of the act. The distinction lies in
the legal consequences. Civil proceedings result in judgment for damages etc.
while criminal proceedings result in one or a number of punishments. Though,
broadly speaking, criminal justice attempts at punishment and civil justice attempts
at remedy, yet to be accurate, the distinction is more in the legal consequences of
the proceedings than in the intrinsic nature of the acts.
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Purpose of Criminal Justice

The purpose of criminal justice is to punish the wrongdoer. He is punished by the
state. The question arises, what is the purpose of punishment or in other words,
what is the end of criminal justice. From very ancient times, a number of theories
have been given concerning the purpose of punishment. Those theories may be
broadly divided into two classes. The view of one class of theories is that the end
of criminal justice is to protect and add to the welfare of the state and society. The
view of the other class of theories is that the purpose of punishment is retribution.
The offender must be made to suffer for the wrong committed by him.
Civil justice
Primary and sanctioning rights
The rights enforced by civil proceedings are of two kinds like primary rights and
sanctioning rights. Primary rights are those rights which exist as such. They do not
have their source in some wrong. Sanctioning or remedial rights are those in some
wrong. Sanctioning or remedial rights are those rights which come into being after
the violation of a primary right. A primary right is a right arising out of conduct. A
sanctioning right is one which arises out of the violation of another right. If A
enters into a valid contract, his right to have a contract performed is a primary
right. If the contract is broken, his right to damages for the loss caused to him for
the breach of contract is sanctioning right. A primary right may be enforced by
specific enforcement. A sanctioning right is enforced by sanctioning enforcement.
Specific enforcement lies in either specific performance or specific restitution.
Where primary rights can be enforced, there is no question of any sanctioning right
for that purpose. The cases of the enforcement of a primary right are where a
defendant is compelled to perform a contract or to pay a debt. The enforcement of
the primary right is called specific enforcement.
Sanctioning rights are,
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i. The right to be compensated by damages by the wrongdoer, or

ii. The right to exact the imposition of pecuniary penalty on the wrongdoer
by penal action. The first is divided into two types; restitution and penal
redress. Restitution lies in restoring the plaintiff to his original position.
Penal redress involves restitution of all benefits the offender derives from
his wrongful act, plus a full redress for the plaintiff’s loss.
Penal and remedial proceedings
All legal proceedings can be divided into five categories like action for specific
enforcement, action for restitution, action for penal redress, penal action and
criminal prosecution. Actions for penal redress, penal action and criminal
prosecution are called penal proceedings because their ultimate purpose is
punishment. Actions for specific enforcement and restitution are called remedial
proceedings as their object is to remedy a wrong. In the case of penal proceedings,
the ultimate purpose of aw is on the whole or in part the punishment of the
defendant. That is so where a person is imprisoned or held liable in damages to the
person injured by him. In the case of remedial proceedings, the idea of punishment
is entirely absent. From the point of view of legal theory, the distinction between
penal and remedial proceedings is very important. All criminal proceedings are
penal although the converse is not true. Some civil proceedings are also penal
while others are of a remedial nature.
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Theories of Punishments
1. Deterrent Theory:
 The state should give such type of punishment as will prevent crimes and
teach a lesson to other criminals.
 Punishment as not to repeat the crimes.
 the state should not take revenge but create so much terror in the mind of the
criminal that others also start shunning sue ghastly and despicable crimes.
 We well remember the works of a judge who uttered the following sentence,
while awarding punishment to the criminal”, I am giving punishment to you
not because you stole the sheep but because of the fact that people should
not steal sheep in future”.
 This theory aims at giving heavy punishment in the form of a warning to
others.
2. Retributive Theory:
 Blood for blood is the basis of this theory. Now this right of taking revenge
has been taken back by the state. In ancient times,
 if somebody was murdered, his relatives used to find out the murderer and
kill him and thus took revenge on him.
 The feeling of revenge was nourished by the people from generation to
generation.
 The relatives of the murdered persons thought it their right to take revenge
and avenge his murder.
 “Eye for eye and tooth for tooth” was a very popular maxim in those days.
 Such maxims are still popular in some of the tribes living in border areas
between Afghanistan and Pakistan.
 This theory of punishment is very cruel and inhuman. It does not seem to be
fit for human beings.
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 It is fit only for uncivilized people or for animals.

 These days no individual enjoys the right to avenge the murder of his
relative.
 The state conducts the trial and permits the relative to put forward their
arguments and imparts justice by punishing the criminal.
3. Preventive theory
As the name suggests that the preventive theory of punishment aims at preventing
prospective crimes by disabling the criminal. This idea of punishment is similar to
that of the deterrent theory. Utilitarian’s such as Bentham, Mill and Austin of
England supported the preventive theory of punishment due to its humanizing
nature. The profounder of the preventive theory stated that the objective of
punishment is to prevent offences, which can be done when the offender is
checked by disablement. The disablement of the criminal may be limited or
unlimited.
Preventive philosophy states that the preventive theory of punishment serves as an
effective deterrent and also as a useful preventive measure. The effectiveness of
the preventive theory depends on the factor of promptness, if there is a delay in the
inquiry or investigation, the punishment or sanction would be rendered ineffective.3
The preventive mode of punishment can be classified in the following manner;
 By instilling the fear of punishment
 By disabling the criminal, permanently or temporarily, from committing any
other crime
 By way of reformation and/or re-education
4. Reformative Theory:
 The supports of Reformative Theory maintain that crime is a kind of
disease and the criminal should be treated well so that he may be able to
recover from this disease.
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 Proper treatment should be given to the criminal.

 a person commits a crime only because he was not taught moral Lessons
in his childhood, or
 he is extremely poor,
 he does not have square meals or
 Lives or had to live in the polluted social environment or had been living
in the company of bad person like thieves, dacoits and gamblers and
drunkards or is suffering from some mental disease.
 The supporters of Reformative theory opine that the government should
adopt measures to remove such bad conditions and thus prevent crime.
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Secondary Functions of Courts of Law

• The primary function of a court of law is the administration of justice.

• It has to enforce rights and punish wrongs.
• In every case, there are two parties like the plaintiff and the defendant or the
prosecutor and the accused.

However, in addition to this other functions are also performed by courts of law.

• Courts adjudicate on the claims of citizens against the state.

• However, the laws of all modern states provide remedies for individual
citizens against the state to be pursued in its own courts.
• In the case of India, a suit can be brought against the union of India or the
Government of a state.
 Another function of the courts is the declaration of the rights of individuals.
 This is done where the rights of the parties are uncertain.
 What a court does is that it gives the authoritative declaration of the rights of
the person concerned.

Examples of declaratory proceedings are the declaration of legitimacy, declaration

of nullity of marriage, advice to trustees or executors regarding their legal powers
and duties, authoritative interpretation of will etc.

In certain cases courts of justice undertake the management and distribution of the
property of a deceased person and also of minors whose property is put under the
Court of Wards.

Other examples of administrative functions are the administration of the trust, the
realization and distribution of an insolvent estate, liquidation of a company by the
court etc.

In certain cases, judicial decrees are employed as the means of creating,

extinguishing and transferring rights.

Examples of such functions are a decree of divorce or judicial separation,

adjudication of bankruptcy, a decree of foreclosure against a mortgagor,
appointment or removal of trustees, grant of letters of administration etc.
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 In such cases; the judgments of the courts operate not as the remedy of a
wrong but as a title of right.
 Superior courts are often armed with the power of supervising the courts
below them.
 Such a power is given to the High Courts in India by Article 227 of the
Constitution of India.