Exploring Salmond's Theory of Jurisprudence in the Context of Indian Law - JIGL CS Executive

Salmond's jurisprudence, propunded by John Salmond ,is primarily based on the idea that law is a set of principles recognized and applied by the state in the administration of justice.

Salmond distinguishes between two main types of law: substantive law, which defines rights and duties, and procedural law, which outlines the methods to enforce these rights and duties.

Key Features of Salmond's Theory of Law:

1. Law is a Body of Principles: Salmond views law as a body of principles recognized and applied by the state. These principles are meant to guide and control human behavior and ensure justice. In India, the Constitution of India acts as the supreme law, embodying principles that guide the functioning of the state and the rights of individuals. For instance, Article 21 of the Indian Constitution guarantees the right to life and personal liberty, forming a fundamental principle recognized and applied by the state.
   

2. Different Sources of Law: Salmond identifies several sources of law, including legislation (statutes), judicial precedents (case law), customs, and scholarly writings (juristic work).

Legislation: The Indian Parliament enacts statutes, such as the Indian Penal Code (IPC) and the Consumer Protection Act, which form primary sources of law.

Judicial Precedents: The doctrine of stare decisis means that decisions by higher courts, like the Supreme Court of India, serve as binding precedents for lower courts. For example, the Supreme Court's judgment in Kesavananda Bharati v. State of Kerala (1973) established the basic structure doctrine.

Customs: Many personal laws in India, such as Hindu and Muslim personal laws, are derived from religious customs and practices. These are recognized and applied in personal matters like marriage, divorce, and inheritance.

Scholarly Writings: Writings by eminent jurists, such as Nani Palkhivala and H.M. Seervai, have influenced the interpretation and development of constitutional law in India.

3. Classification of Law: Salmond classifies law into substantive law and procedural law. Substantive law defines rights and duties, while procedural law provides the process to enforce those rights and duties.

Substantive Law: Laws like the Indian Contract Act and the Transfer of Property Act define the rights and obligations of individuals.

Procedural Law: The Code of Civil Procedure (CPC) and the Code of Criminal Procedure (CrPC) outline the procedures for enforcing rights and adjudicating disputes.

4. Role of Courts: According to Salmond, courts play a crucial role in interpreting and applying the law. Judicial decisions, particularly those of higher courts, form a significant source of law.

Indian courts play a crucial role in interpreting and applying the law. Landmark judgments like Vishaka v. State of Rajasthan (1997) established guidelines for preventing sexual harassment at the workplace, showcasing the judiciary's role in shaping the law.

Limitations of Salmond's Theory of Law:

1. State-Centric View: Salmond's theory places heavy emphasis on the state's role in recognizing and enforcing law, which may not fully account for the influence of non-state actors and international bodies in modern legal systems. Salmond’s emphasis on the state as the primary enforcer of law is challenged by the presence of non-state legal systems in India. For instance, village panchayats and tribal councils operate independently of the formal legal system, applying customary laws and resolving disputes within their communities.

2. Static Nature: The theory can be seen as somewhat static, emphasizing existing principles and recognized sources of law. It may not fully capture the dynamic and evolving nature of law, especially in rapidly changing societies.

Salmond’s theory may not fully capture the dynamic nature of Indian law, which evolves to address social changes. The decriminalization of homosexuality in Navtej Singh Johar v. Union of India (2018) illustrates how Indian law adapts to changing societal norms and values.

3. Limited Scope: While Salmond's classification of law into substantive and procedural law is helpful, it might oversimplify the complexity of legal systems that encompass administrative, constitutional, international, and other specialized branches of law.

The classification of law into substantive and procedural categories might oversimplify the complexity of India’s legal system, which includes administrative law, environmental law, and human rights law. For instance, the Environmental Protection Act, 1986, addresses the need for comprehensive environmental regulation beyond traditional substantive and procedural categories.

4. Customary Law: Salmond acknowledges customs as a source of law but does not deeply explore how customary laws interact with formal legal systems, particularly in pluralistic societies where multiple legal traditions coexist.

Salmond acknowledges customs but does not deeply explore their interaction with formal law. In India, customary practices sometimes conflict with formal laws, such as the prohibition of child marriage under the Prohibition of Child Marriage Act, 2006, which clashes with traditional practices in some communities.

5. Judicial Discretion: Salmond's emphasis on judicial precedents may overlook the extent of judicial discretion and the subjective elements involved in judicial decision-making, which can lead to inconsistencies and unpredictability in the law.

The Indian judiciary exercises significant discretion in interpreting laws, leading to varied and sometimes inconsistent outcomes. For example, differing interpretations of the sedition law under Section 124A of the IPC by various courts highlight the challenges of judicial discretion in maintaining legal consistency.

6. Morality and Law: Salmond, like many positivist legal theorists, tends to separate law from morality. This separation might not fully address the moral and ethical dimensions of law, especially in contexts where laws are closely intertwined with moral values.

Salmond's separation of law from morality is criticized in the Indian context, where laws often reflect moral and ethical values. For example, the Indian Penal Code includes offenses based on moral considerations, such as the criminalization of cruelty against animals under the Prevention of Cruelty to Animals Act.

7. International Law: Salmond's theory, being state-centric, may not adequately explain the functioning of international law, which relies on the consent and cooperation of sovereign states rather than recognition and enforcement by a single state.

Salmond’s state-centric view struggles with the incorporation of international law in India. India’s obligations under international treaties, like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), influence domestic law and policy, reflecting the globalized nature of modern legal systems.

John Salmond's theory of law emphasizes that law is a set of principles recognized and applied by the state to administer justice. It highlights the importance of legislation, judicial precedents, customs, and juristic writings as sources of law, and distinguishes between substantive and procedural law. Let us try to understand in Indian way.