Administration of Justice:
Q What is the necessity of Administration of justice? How would you distinguish between civil and criminal justice.
Q Explain in detail the term administration of justice? What is the meaning of justice?
Hobbs in leviathan states that when Man live without a common power to keep them all in awe they are in state of War amongst themselves. In orderly societies today to a large extent element of force in the administration of justice is latent; Declaration of rights and duties are considered sufficient for obedience. But ultimately such a declaration serves it purpose because it is within the framework of a legal system having capacity of effective enforcement.
Institutionally law enforcement can coerce the recalcitrant minority and protect the law abiding majority.
Individual, tribal or clan justice gave place to justice administed by state even the king had occasionally to compromise.
Administration of justice means forcible defense of right and suppression of wrongs that is the application by the state the sanction of physical force to the rules of justice. It involves in every case two parties, the plaintiff and the defendant, a right claimed or wrong complained of by the former as against the latter, a judgement in favor of the one or the other and execution of this judgement by the power of the state. In a wider sense, however, the administration of justice includes all the functions of courts of justice whether they conform to the foregoing type or not. These secondary functions are to be classed under the head of civil administration of justice, the term civil being used in the residuary sense, that is , not criminal, courts or tribunals once established are found to be useful instruments for performing other analogous functions and these functions though secondary in character are also included in term administration of justice. These functions are:
Actions against state.- where a citizen claims that a debt is due to him by the state or the state has wrong-fully detained his property he is at liberty to take proceedings in the court-in England formerly by a petition of right and now by ordinary action.
Declaration of right- a litigant may claim assistance of a court of law, not because his rights have been violated, but because they are uncertain. What he desires is an authoritative decision of his righ. He does not desire a remedy against his adversary for the violation of a right. Examples of this type are declaration of legitimacy.
Administration.- courts of justice sometimes undertake administration of estate or distribution of property. Examples are the administration of a trust, the liquidation of a company, etc.
Titles of right.- the last form are those where judicial decrees are employed as the means of creating transferring or extinguishing rights. Instances are a decree of divorce or judicial separation.
Classification of administration of justice:
Administration of justice is classified into two categories; civil and criminal. The term lex civile includes both civil and criminal law. Both in civil and criminal proceedings there is a wrong. The law will enforce a right only against a person who has already violated it or who has shown an intention to do so. Justice is administered only against wrongdoers. A wrong regarded as a subject matter of civil proceedings is called a civil wrong and a wrong regarded as the subject matter of criminal proceedings is termed as a criminal wrong or a crime.
Criminal justice:
The administration of criminal justice is to punish the offender. Punishment can be considered in two different aspects, firstly, as being an institutionalized imposition for some definite end and, secondly as being an end in itself. There are three theories of punishment; the deterrent, the preventive and the reformative.
-deterrent theory: according to this theory offences are the result of conflict of interests, real or supposed, between that of the wrong-doer and the society.
Deterrence, therefore, acts on the motive of the offender.
-Preventive theory: death is the extreme form of disablement, where repetition is an impossibility. Imprisonment temporarily disables the wrong-doer and is also therefore preventive. Preventive theory of punishment aims at physical restraint.
-Reformative theory: this theory seems to be in vogue today. Here the aim is to reclaim the offender, to make change in his character. According to this theory criminals are generally abnormal persons and the interest of society is subserved by turning these persons into normal, law abiding individuals.
For the offence committed by the wrong doer, with no aim behind the infliction the end itself, punishment becomes merely a retribution to him. in that category we study the fourth theory of punishment, the retributive theory.
Retributive theory: this theory treats of offences or wrong-doing as an imbalance created in society, punishment or suffering as the medium through which the balance is restored. It is simply the primitive theory of private vengeance of an eye for an eye. It simply means that a man should be so dealt with as he has done with others.
Civil justice:
Administration of civil justice is dealt with in civil proceedings. Civil justice consists in the enforcement of rights as opposed to the punishment for wrongs. The right so enforced is either a primary or a sanctioning right.
-Sanctioning rights: it is one which arises out of the violation of another right.
-Primary right: they are rights which have some other source than wrongs.
Thus, if you have contracted with me to do something, my right to the fulfilment of that contract is primary; but suppose you do not fulfil the contract, my right in damages for its non-performance is sanctioning.
Distinction between civil and criminal justice:
The difference between criminal justice and civil justice cannot be measured in terms of physical concerns of the act. Following are the differences between civil and criminal justice.
1, dealing:
Private wrongs are infringement of the private or civil rights belonging to the individuals considered as individuals and called civil injuries.
Public wrong on the other hand 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 misdemeanours.
2. Object: A civil wrong , on the other hand is deemed to infringe the rights of the individual and not harm the society in general.
a crime is therefore harmful to the society though its immediate impact may be on the individual.
3. Proceedings: in civil wrongs remedies are sought by person, criminal offences are punished by the state. In cases of civil wrongs the party injured brings action in his own name;
In criminal cases state is the party injured and actions are instituted in its name by duly authorized officials.
4. 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
5. As to outcome:
Civil proceedings if successful will result in judgement for damages, or judgement for payment of a debt, or in an injunction or in an order for specific performance or specific restitution, etc. therefore civil proceedings are remedial in nature.
Successful prosecution of criminal proceedings will result in punishment, which may range from fine to hanging or release upon probation or binding over to keep the peace. Criminal proceedings are therefore, in general, penal.
