Q.7 Discuss and distinguish between civil and criminal justice.(2000)

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Q. Explain the advantages and disadvantages of administration of justice. (1997)
Q. What is the necessity of administration of justice? How would you distinguish between civil and criminal justice. (1996), (1993)
1. Introduction:
“Administration of Justice is the firmest pillar of the Government. It is sovereign and cannot be violated with impunity.” (George Washington)
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. The most important and primary purpose of law is to achieve justice and justice can be achieved through administration.
2. Definition Of Administration of Justice:
(i) By Salmond:
“The administration of justice implies the maintenance of right within a political community by means of the physical force of the stats.”
3. Necessity Of Administration Of Justice:
In primitive times might was the sole right. Every man was his own judge. A person wronged would seek revenge by his own hands. To stop this loot it appears necessary that some strong tribunal should hold administration and now a state perform this function.
According to Jeremy Taylor:
“A herd of wolves is quieter and more at one than. So many men, unless they all have one reason in them or have one power over them.”
According to Hobbes:
“Without a common power to keep them all in awe, it is not possible for individuals to live in society.”
I. Reasons for Administration of Justice:
Following are the reasons for the necessity of administration of justice.
(i) No common reason among men:’
According to salmond, men do not have one reason in them and each is moved by his own interests and passions. The only alternative is one power over men.
(ii) Man is fighting animal:
Man is by nature a fighting animal and force is the ultima ratio of all mankind.
(iii) To stop criminal minority:
Force is necessary to stop the criminal minority and prevent them from gaining an unfair advantage over the law-abiding majority in the state:
(iv) Check Injustice;
Without physical force, injustice is unchecked, and the life of the people is solitary, poor nasty and short.
(v) Man is a social animal:
The social nature of the man demands that he must live in society. While living so, man must have experienced a conflict of interests and that created the necessary for providing the administration of justice.
4. Origin Administration Of Justice:
The origin and growth of administration of justice is identical with origin and growth of man. The social nature of man demands that he must live in society. While living so, he must have experienced a conflict of interests and that created the necessary for providing for the administration of justice may be divided into three stages.
I. First Stage:
At the first stage personal vengeance was allowed 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. At the stage, every man was the sole measure of right.
II. Second Stage:
The second stage started with the rise of political states. However those states were not strong enough to regulate crime and inflict punishment on the criminals. The state merely regulated private vengeance and violent self-help. The state enforced the concept of “a tooth for a tooth”, “an eye for an eye” , “a life for life”. The state provided that a life shall not be taken for a tooth or for an eye.
III. Third Stage:
With the growth of the power of the state, the state began to act as a judge to assess liability and impose penalty. It provided 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. At present administration of justice is a natural corollary to the growth in power of political state.
5. Classification Of Administration Of Justice:
Administration of civil justice is divided into two parts:
I. Administration of civil justice
II. Administration of criminal justice
I. Administration Of Civil Justice:
Administration of civil justice is dealt within civil proceedings. The object of civil justice is to enforce rights.
Kinds of rights:
There are two rights connected with the civil justice:
(i) Primary
(ii) Secondary
(i) Primary Rights:
Primary rights are those rights which exist as such. It arises our of a conduct. All fundamental rights are primary rights. A primary right may be enforced by specific enforcement.
(ii) Sanctioning or secondary rights:
Sanctioning rights are those which come into begin after the violation of primary right. Sanctioning rights are:
The right to the compensated by damages by the wrong-doer.
The right to exact the imposition of pecuniary penalty on the wrong doer by penal action.
Illustration:
‘A’ enters into a contract his right if contract is broken, his right to damages for the loss caused to him for the breach of contract is sanctioning right.
II. Administration of Criminal Justice:
Administration of criminal justice is dealt within criminal proceedings. The object of criminal justice is to punish the wrong-doer. From very ancient time, a number of theories have been given concerning the purpose of punishment which may be broadly divided into two classes. The view of one class is that, the end of criminal justice is to protect and add to welfare of the state and society. The view of other class is that the purpose of punishment is retribution.
5. Distinction Between Civil And Criminal Justice:
The difference between criminal justice and civil justice cannot be considered in terms of natural acts or the physical consequences of the fact. Following are the differences between civil and criminal justice.
(i) As to Administration :
Civil justice is administration according to one set of forms.
Criminal justice according to another set of forms.
(ii) Place of Administration:
Civil justice is administered in one set of Courts i.e., civil Courts.
Criminal justice is administered in different set of Courts i.e., criminal Courts.
(iii) As to object:
The object of civil justice is to enforce rights,
The object of criminal justice is to punish the wrong.
(iv) Proceedings:
Civil justice is dealt within civil proceedings.
Criminal justice is dealt within criminal proceedings.
(v) Dealing:
Civil justice deals with private wrongs.
Criminal justice deals with public wrongs i. e, crimes against society.
(vi) As to Parties:
In civil proceedings, private individuals are parties i. se, plaintiff vs. defendant.
In criminal proceedings state constitutes itself as a party i. e, state vs. accused.
(vii) Consequences:
Civil wrong are less harmful.
Criminal are more harmful.
(viii) As to outcome:
Civil proceeding result in judgment for damages etc.
Criminal proceedings result in one or a number of punishment.
(ix) As to Institution of Proceedings:
In a civil wrong, the injured person need sue the wrong-doer.
In a crime, the person injured cannot prevent proceeding begin taken to punish the wrong-doer for the state controls the procedure.
6. Advantages And Disadvantages Of Legal Justice:
The legal justice has many advantages as well as disadvantages.
I. Advantages:
(i) Legal justice ensures uniformity and certainty in the administration of justice.
(ii) Everyone knows what the law is and there is no scope of arbitrary action.
(iii) The judges have to give decisions according to the declared law of the country.
(iv) There is a impartiality in administration of justice.
(v) Impartiality is secured in the administration of justice.
(vi) Judges are required to give their decisions according to the per-determined legal principles and they cannot go beyond them.
(vii) Law is already laid down and judges have to act accordingly.
(viii) Legal justice represents the collective wisdom of the community and that is always to be preferred to the wisdom of any one individual
II. Disadvantages:
(i) One disadvantage is that it is rigid.
(ii) Law has already been laid down in precedents.
(iii) It is not always possible to adjust it to the changing needs of society.
(iv) Society may change more rapidly than legal justice and may result in hardship and injustice.
(v) Another defects of legal justice is its formalism or technicalities.
(vi) Judges attach more importance to legal technicalities than they deserve.
(vii) The legal justice is complex. Modern society is becoming more and more complicated if law is to serve its needs it has to be complicated.
7. Conclusion:
To conclude, I can say, 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.” The modern administration of justice is a natural corollary to the growth in power of political state, which began to act as a judge to assess liability and impose penalty.


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