PAPER - I
1) PRINCIPLES OF CIVIL CODE-
To study principles of Civil Code-1 and Civil Code-II. -to find out
principles which are used in formation of legislation. The main
principle to be followed while legislation is framed, i.e. social unity
and security. In every civil legislation, security is the fundamental
FUNDAMENTAL PRINCIPLES OF LEGISLATION
In the modern age liberty is an ideal which is accepted with
passionate devotion by the modern statesman as well as by the
common man. From the ideal of liberty two fundamental principles
(ii) Solidarity of Society
Liberty
N
n_________________________________________________n
Worth of mankind solidarity of Society
The first principle - principle of human worth. In the
principle and practice of humility lies human worth - Recognized in all
civilized countries. -treats the right to life as basic to all other rights.
The human worth makes the society worth living.
PURPOSE OF LEGISLATION
-must be to provide opportunities for the full realization of
human worth. The constitutional guarantee for the protection of
human life is not limited to the mere protection of existence of human
life. The guarantee of right of life included all those incidents which
make human life living for oneself and meaningful for the society.
Therefore, the legislator has to strike a balance between right and
obligations. Bentham has said:
“The legislator ought confer right with pleasure, since they are in
themselves a good, he ought of impose obligation with reluctance,
since they are in themselves an evil. According to the principle of
utility, he ought never to impose a burden except for the purpose of
conferring a benefit of a clearly greater value.
By creating obligations, to some extent law trenches upon
liberty. Acts which would otherwise be permitted and should be
unpunishable arc converted into offences. The law creates an
offence either by a positive command or by a prohibition.
These retrenchments of liberty are inevitable. It is impossible to
create right to impose obligations, to protect the persons, life,
reputation, property, subsistence, liberty itself except a the expense
But every restriction imposed upon liberty is followed by natural
sentiment of pain, greater or lesser, and independently of an infinite
variety of inconveniences and sufferings which may result from the
particular manner of these restriction. It follows, then , that no
restriction ought to be imposed, no power conferred, no coercive law
sanctioned, without a sufficient and specific reason. There is always
a reason against every coercive law/a reason which in default of any
opposing reason will always be sufficient in itself, and that reason is,
that such a law is an attack upon liberty.
The proposition that every law is contrary to liberty, is not
generally acknowledged. On the contrary, the friends of liberty who
are more ardent than enlightened, make it a duty of conscience to
combat this truth. And how? They prevent language; they refuse to
employ the word liberty in its common acceptation; they speak a
tongue peculiar to themselves. Liberty consists in the right of doing
everything which is not injurious to another. But is this the ordinary
sense of the word? Do we not say that it is necessary to take away
liberty from idiots and bad men, because they abuse it?
According to this definition, I an never know where I have the
liberty to do an action until I have examined all the consequences of
my action. I my action is injurious even to a single individual even
though the law permits it, or perhaps commands it, I should not be at
Let us attempt to establish a series of true propositions on this
subject. The only object of government ought to be the greatest
possible happiness of the community.
The happiness of an individual is increased in proportion as his
sufferings are lighter and fewer, and his enjoyments greater and more
The principal function of government is to guard against pains.
It fulfils this object by creating rights, which it confers upon
individuals; rights to personal security, right to protection for honour,
rights to property, right to receiving aid in case of need. To these
rights correspond offences of different kinds. The law cannot create
rights except by creating corresponding obligation. It cannot create
rights and obligations without crating offences.
If this principle is acted upon it is conducive to the happiness of
both the individual and the society.
While legislating the legislator must have in view the prime
objective of the happiness of the society. According to Bentham
happiness of the society consists in subsistence, Abundance
Equality and Security. He says:
“The more perfect enjoyment is in all these respects, the greater is
the sum of social happiness and especially of that happiness which
We may hence conclude that all the functions of law may
be referred to these four heads: 1. To provide subsistence, 2. to
produce abundance, 3. to favour equality 4. to maintain security.
Of these objects of the law, security is the only one which
necessarily embraces the future. Subsistence, abundance, equality,
may be considered in relation to a single moment of present time; but
security implies a given extension to further time in respect to all that
good which it embraces. Security thus, is the pre-eminent object.
The aforesaid ends of legislation are intended to ensure the
fundamental principle of human worth because without these
objectives human worth is reduced to human worthlessness.
PRINCIPLES OF CIVIL CODE-II
In the previous lesson it has been stated that there are two
fundamental principles of legislation. One is the principle of human
worth and the other is the principle of social solidarity or social unity.
Legislation which does not recognize and give effect to these
principles should not be enacted. In the previous lesson the principle
of human worth was given precedence. The principle of social unity
will be the main point of discussion in this lesson. But it should be
kept in mind that the two principles are inter-related, moreover they
are interdependent because one cannot be effective without the
other. Therefore, overlapping not only becomes possible but is
PRINCIPLE OF SOCIAL SOLIDARITY
If legislation is not responsive to the Infirmities and difficulties of
the weak and fails to advance towards social equality such as
equality on grounds of sex, religion, and race etc., it would be difficult
People now want to know whether poverty, ignorance and
crime are not avoidable. The legislator of the modem democratic
state cannot afford to ignore these questions in the larger social
interest. It is impossible to maintain peace it these monstrous evil are
not eradicated. The common man today wants to know whether I
was right for some people to pass their lives in affluence while other
toil in penury and lead a miserable life. To day it is living demanded
that the distribution of good things in life should be made to depend
upon the principle of justice rather than on the accident of life. The
legislator while legislating cannot shut his eyes to the prevailing social
discontent. In order to main social order, the legislator of the civil
code must pay serious attention to these problems.
The principles of the civil law are the motives of laws, the
knowledge of the true reasons which ought to guide the legislator in
the distribution of rights which he confers, and obligations which he
3.6 BENTHAM ON CIVIL CODE
In the sphere of legislation various kinds of laws form the
content of the civil code. But all these laws would be reduced to a
futile exercise if the basis of these legislations is not given a prime
place in legislation. The basic rather fundamental principle of
legislation is Security. It is the law that provides security. Therefore,
civil law is enacted to secure to the citizens all that which is
necessary for a civilized society. Bentham says:
‘Without law there is no security, and consequently, no abundance,
and not even a certainty of subsistence, and the only equality which
can exist in such state of things is an equality of misery.’
3.7 Security is the Fundamental Principle of Civil Code
Let us now examine as to what passes at those terrible epochs
when civilized society returns almost to the savage state; that is
during war, when the laws on which security depends are in pan
suspended. Even instance of its duration is fertile in calamities, at
every step which it prints upon the earth , at every movement which it
makes, the existing mass of riches, the fund of abundance and of
subsistence, decreases and disappears. The cottage is ravaged as
well as the palace; and how often the rage, the caprice even of a
moment, delivers up to destruction the slow produce of the labours of
The contributions of law to the establishment of civil society has
been greatest than that of all the natural sentiments put together.
Law alone has created the concept of possession whereby a fixed
and durable possession which merits the name of property is created.
Nothing but the law can encourage men to labour for the present that
which can be enjoyed in future. Economy has as many enemies as
there are dissipaters men who wish to enjoy without giving
themselves the trouble of producing. Thus, security is assailed in the
midst of enemies. The legislator needs a vigilance which is
sustained, a power always in action, to defined it against this crowd of
Law does not say every thing to law to be given to the principle
of security, we must, consider that man is not like an animal, limited
to the present, whether as respects sufferings or enjoyment; but he is
susceptible to pains and pleasure by anticipation; and that it is not
enough to secure him fron actual loss, but it is necessary also to
guarantee him, as far as possible against future loss. It is necessary
to prolong the idea of his security through all the perspective which
his imagination is capable of measuring.
This presentiment, which has such a marked influence upon the
fate of man, is called expectation. We have the power of forming a
general plan of conduct. Expectation is a chain which unities our
present existence to our future existence.
This principle of security extends to the maintenance of all
these expectations. It requires that events should conform to the
expectations which law itself has created. Every attach upon this
sentiment produces a distinct and special evil, which may be called a
3.8 Social Unity and Security
It is to be impressed upon the legislator that while legislating he
must study the individual in relation to the state. The relationship is
not that of inorganic world, but the relation is that of the living beings.
The two fundamental principles of legislation – worth of man
and unity of society can be maintained if security is accepted as the
supreme principle because it directly leads to equality which is the
recognition of the worth of man. But if equality is taken as the basis
of social arrangement according to Bentham it will destroy both itself
as well as security at the same time.
Under the category of security the following expectation
need the attention of the legislator:
1.Rights of the individual, including fundamental freedoms.
2. Right to property.
3. Right to equal opportunity .
4. Right to resistance.
….
1) PRINCIPLES OF CIVIL CODE-
To study principles of Civil Code-1 and Civil Code-II. -to find out
principles which are used in formation of legislation. The main
principle to be followed while legislation is framed, i.e. social unity
and security. In every civil legislation, security is the fundamental
FUNDAMENTAL PRINCIPLES OF LEGISLATION
In the modern age liberty is an ideal which is accepted with
passionate devotion by the modern statesman as well as by the
common man. From the ideal of liberty two fundamental principles
(ii) Solidarity of Society
Liberty
N
n_________________________________________________n
Worth of mankind solidarity of Society
The first principle - principle of human worth. In the
principle and practice of humility lies human worth - Recognized in all
civilized countries. -treats the right to life as basic to all other rights.
The human worth makes the society worth living.
PURPOSE OF LEGISLATION
-must be to provide opportunities for the full realization of
human worth. The constitutional guarantee for the protection of
human life is not limited to the mere protection of existence of human
life. The guarantee of right of life included all those incidents which
make human life living for oneself and meaningful for the society.
Therefore, the legislator has to strike a balance between right and
obligations. Bentham has said:
“The legislator ought confer right with pleasure, since they are in
themselves a good, he ought of impose obligation with reluctance,
since they are in themselves an evil. According to the principle of
utility, he ought never to impose a burden except for the purpose of
conferring a benefit of a clearly greater value.
By creating obligations, to some extent law trenches upon
liberty. Acts which would otherwise be permitted and should be
unpunishable arc converted into offences. The law creates an
offence either by a positive command or by a prohibition.
These retrenchments of liberty are inevitable. It is impossible to
create right to impose obligations, to protect the persons, life,
reputation, property, subsistence, liberty itself except a the expense
But every restriction imposed upon liberty is followed by natural
sentiment of pain, greater or lesser, and independently of an infinite
variety of inconveniences and sufferings which may result from the
particular manner of these restriction. It follows, then , that no
restriction ought to be imposed, no power conferred, no coercive law
sanctioned, without a sufficient and specific reason. There is always
a reason against every coercive law/a reason which in default of any
opposing reason will always be sufficient in itself, and that reason is,
that such a law is an attack upon liberty.
The proposition that every law is contrary to liberty, is not
generally acknowledged. On the contrary, the friends of liberty who
are more ardent than enlightened, make it a duty of conscience to
combat this truth. And how? They prevent language; they refuse to
employ the word liberty in its common acceptation; they speak a
tongue peculiar to themselves. Liberty consists in the right of doing
everything which is not injurious to another. But is this the ordinary
sense of the word? Do we not say that it is necessary to take away
liberty from idiots and bad men, because they abuse it?
According to this definition, I an never know where I have the
liberty to do an action until I have examined all the consequences of
my action. I my action is injurious even to a single individual even
though the law permits it, or perhaps commands it, I should not be at
Let us attempt to establish a series of true propositions on this
subject. The only object of government ought to be the greatest
possible happiness of the community.
The happiness of an individual is increased in proportion as his
sufferings are lighter and fewer, and his enjoyments greater and more
The principal function of government is to guard against pains.
It fulfils this object by creating rights, which it confers upon
individuals; rights to personal security, right to protection for honour,
rights to property, right to receiving aid in case of need. To these
rights correspond offences of different kinds. The law cannot create
rights except by creating corresponding obligation. It cannot create
rights and obligations without crating offences.
If this principle is acted upon it is conducive to the happiness of
both the individual and the society.
While legislating the legislator must have in view the prime
objective of the happiness of the society. According to Bentham
happiness of the society consists in subsistence, Abundance
Equality and Security. He says:
“The more perfect enjoyment is in all these respects, the greater is
the sum of social happiness and especially of that happiness which
We may hence conclude that all the functions of law may
be referred to these four heads: 1. To provide subsistence, 2. to
produce abundance, 3. to favour equality 4. to maintain security.
Of these objects of the law, security is the only one which
necessarily embraces the future. Subsistence, abundance, equality,
may be considered in relation to a single moment of present time; but
security implies a given extension to further time in respect to all that
good which it embraces. Security thus, is the pre-eminent object.
The aforesaid ends of legislation are intended to ensure the
fundamental principle of human worth because without these
objectives human worth is reduced to human worthlessness.
PRINCIPLES OF CIVIL CODE-II
In the previous lesson it has been stated that there are two
fundamental principles of legislation. One is the principle of human
worth and the other is the principle of social solidarity or social unity.
Legislation which does not recognize and give effect to these
principles should not be enacted. In the previous lesson the principle
of human worth was given precedence. The principle of social unity
will be the main point of discussion in this lesson. But it should be
kept in mind that the two principles are inter-related, moreover they
are interdependent because one cannot be effective without the
other. Therefore, overlapping not only becomes possible but is
PRINCIPLE OF SOCIAL SOLIDARITY
If legislation is not responsive to the Infirmities and difficulties of
the weak and fails to advance towards social equality such as
equality on grounds of sex, religion, and race etc., it would be difficult
People now want to know whether poverty, ignorance and
crime are not avoidable. The legislator of the modem democratic
state cannot afford to ignore these questions in the larger social
interest. It is impossible to maintain peace it these monstrous evil are
not eradicated. The common man today wants to know whether I
was right for some people to pass their lives in affluence while other
toil in penury and lead a miserable life. To day it is living demanded
that the distribution of good things in life should be made to depend
upon the principle of justice rather than on the accident of life. The
legislator while legislating cannot shut his eyes to the prevailing social
discontent. In order to main social order, the legislator of the civil
code must pay serious attention to these problems.
The principles of the civil law are the motives of laws, the
knowledge of the true reasons which ought to guide the legislator in
the distribution of rights which he confers, and obligations which he
3.6 BENTHAM ON CIVIL CODE
In the sphere of legislation various kinds of laws form the
content of the civil code. But all these laws would be reduced to a
futile exercise if the basis of these legislations is not given a prime
place in legislation. The basic rather fundamental principle of
legislation is Security. It is the law that provides security. Therefore,
civil law is enacted to secure to the citizens all that which is
necessary for a civilized society. Bentham says:
‘Without law there is no security, and consequently, no abundance,
and not even a certainty of subsistence, and the only equality which
can exist in such state of things is an equality of misery.’
3.7 Security is the Fundamental Principle of Civil Code
Let us now examine as to what passes at those terrible epochs
when civilized society returns almost to the savage state; that is
during war, when the laws on which security depends are in pan
suspended. Even instance of its duration is fertile in calamities, at
every step which it prints upon the earth , at every movement which it
makes, the existing mass of riches, the fund of abundance and of
subsistence, decreases and disappears. The cottage is ravaged as
well as the palace; and how often the rage, the caprice even of a
moment, delivers up to destruction the slow produce of the labours of
The contributions of law to the establishment of civil society has
been greatest than that of all the natural sentiments put together.
Law alone has created the concept of possession whereby a fixed
and durable possession which merits the name of property is created.
Nothing but the law can encourage men to labour for the present that
which can be enjoyed in future. Economy has as many enemies as
there are dissipaters men who wish to enjoy without giving
themselves the trouble of producing. Thus, security is assailed in the
midst of enemies. The legislator needs a vigilance which is
sustained, a power always in action, to defined it against this crowd of
Law does not say every thing to law to be given to the principle
of security, we must, consider that man is not like an animal, limited
to the present, whether as respects sufferings or enjoyment; but he is
susceptible to pains and pleasure by anticipation; and that it is not
enough to secure him fron actual loss, but it is necessary also to
guarantee him, as far as possible against future loss. It is necessary
to prolong the idea of his security through all the perspective which
his imagination is capable of measuring.
This presentiment, which has such a marked influence upon the
fate of man, is called expectation. We have the power of forming a
general plan of conduct. Expectation is a chain which unities our
present existence to our future existence.
This principle of security extends to the maintenance of all
these expectations. It requires that events should conform to the
expectations which law itself has created. Every attach upon this
sentiment produces a distinct and special evil, which may be called a
3.8 Social Unity and Security
It is to be impressed upon the legislator that while legislating he
must study the individual in relation to the state. The relationship is
not that of inorganic world, but the relation is that of the living beings.
The two fundamental principles of legislation – worth of man
and unity of society can be maintained if security is accepted as the
supreme principle because it directly leads to equality which is the
recognition of the worth of man. But if equality is taken as the basis
of social arrangement according to Bentham it will destroy both itself
as well as security at the same time.
Under the category of security the following expectation
need the attention of the legislator:
1.Rights of the individual, including fundamental freedoms.
2. Right to property.
3. Right to equal opportunity .
4. Right to resistance.
….
