According to Senior Lecturer ADEYEMI (2019) in his research paper titled: ‘MODERN TRENDS IN LEGAL THOUGHTS: A JURISPRUDENTIAL OUTLINE’
“Law tends to review every form of interaction in society in response to any form of changes, be it technological or socio-cultural. Modern Trends in Legal Thoughts “ connotes new thinking in Legal theory.”
Agbede (2002), Emeritus Professor of Law, University of Lagos had opined that: ‘New’ in this context does not mean ‘novel’, because every product of law in the real sense, may be no more than the product of its time and place.
Kassim (2000), concluded that: “the study of legal theories is akin, to a genealogical exercises the tracing of ideas as they are shaped and reshaped from one context to another, from one time to another, and from one theorist to another.”
Adeyemi (2019) has observed: “Justice, apart from the universal standard of right and wrong, is also relative in time and space.”
In the words of Ian McLeod, Legal Theory, (Macmillan Press Ltd. 1999): “Although the existence of a legal system is one of the characteristics of all human societies, and therefore legal theory is, to some extent, trans-cultural, it will nevertheless be apparent that what is meant by words such as rights, freedom and justice will vary substantially from culture to culture.”
Hence, a pivotal question which now needs to be posited is whether attempts have been made to demonstrate that, idea of ‘justice’ constitutes the veritable base, for all discourse in human affairs, which has gone and is still going, through different stages of expositions?
It is at this juncture that the High Courts in the country currently find themselves exalted to a pedestal of influence whereby the normative principles of the existent society can be expounded through jurisprudential inference.
Primarily, the inception of the institution would be worthy of noting.
Resultantly, According to the “HISTORY: EVOLUTION OF JUDICIARY” which is available on the Supreme Court of India website: “The India High Courts Act 1861 was enacted to create High Courts for various provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the Sadar Adalats in Presidency towns. These High Courts had the distinction of being the highest Courts for all cases till the creation of Federal Court of India under the Government of India Act 1935. The Federal Court had jurisdiction to solve disputes between provinces and federal states and hear appeal against Judgements from High Courts. After India attained independence in 1947, the Constitution of India came into being on 26 January 1950. The Supreme Court of India also came into existence and its first sitting was held on 28 January 1950.”
According to author: Abhinav Chandrachud in his book titled: An Independent, Colonial Judiciary: A History of the Bombay High Court during the British Raj: 1862 - 1947, which was released on April, 2015, at Chapter five bearing the title: The Structural Peculiarities of a Colonial Judiciary, Abhinav Chandrachud observed that: “the Chief Justice of important courts like the Bombay High Court was always a Briton. Second, judges lacked security of tenure during most of the time that India was under colonial rule. Third, ‘acting’ judges were frequently appointed to the court, whose temporary status on the court made them vulnerable to the government’s whims and fancies. Fourth, the judiciary lacked separation of powers given that it was dominated by members of the Indian Civil Service, who began and ended their careers in the executive government.”
Despite the limitations of the High Courts due to its Colonial past, the Original and Writ jurisdiction of the High Court of Bombay at Goa strives to interpret the constitutional mandate in the best possible light while balancing normative principles with the Latin maxim of Stare Decisis.
The principle of ‘stare decisis’ (to stand by decided cases) is as old as the establishment of the courts. It is derived from legal maxim ‘stare decisis et non quieta movere’:. It is best to adhere to decisions and not to disturb questions, which have been put at rest. When a point of law has been settled, it forms a precedent which is not to be ordinarily departed afterwards.
According to Justice Sunil Ambwani, of the High Court Allahabad: “When the same point comes for consideration again in litigation, the scales of justice must be kept even and steady. A principle of law should not change from case to case. The judgments are not to be altered or changed in accordance with the individual opinions or private sentiments of the judges. The primary duty of the
judiciary is to maintain rule of law. The law does not change with the opinion of the judges. In a given case the opinion of the judges may change, the principles of law however must remain on surer foundations until there is any change in legislation, or the society needs such change.”
Therefore, when the High Court of Bombay at Goa was able to postulate a judge made law that directs a co-passenger of a luxury car to deposit rupees 2 crores as a security amount that would eventually be appropriated as compensation towards the families of the victims whose lives had been snuffed out at the Banastarim Bridge, it becomes more than evident that the principles of jurisprudence are evolving to suit the needs of the present societal norms.
In rounding up this conclusion, the final paragraph of Ian Ward’s book titled: Introduction to Critical Legal Theory, (Cavendish Publishing Limited 1998) would be worthy of mention: “Our particular story is now complete. We have certainly not explored each and every critical legal theory, still less each and every legal theory. What we have, perhaps, is presented a series of impressions and perspectives, each of which has served to emphasise the extent to which law and legal theory must be understood as a deeply interdisciplinary and contextual exercise.”
