Open Access Research Article
Solving Adjudicatory Legal Issues With ‘Alternate Dispute Resolution’: An Analysis From ‘Hohfeldian Jurisprudential’ Lens
Published Paper
Article Details
Solving Adjudicatory Legal Issues
With ‘Alternate Dispute Resolution’: An Analysis From ‘Hohfeldian
Jurisprudential’ Lens
Abstract
In an ever changing dynamic and
versatile market landscape in the contextual setup of democratic and political
fabric of India, the companies and firms dovetail their legal and technological
process to the management and planning objectives defined by holistic and
inclusive business strategy and synergized with the growth journey and
narrative of the country. The inherent quintessence of ‘competitive advantage’
for a business along with its business objectives and decision are based on
multiple factors. In that endeavour, the legal parlance is bedrock and a vital
fulcrum of decision-making process. The instant paper is an attempt to
comprehensively analyse the ‘WN Hohfeldian Jurisprudential Theory’ including
the ‘Rights’ and ‘Duties’ Correlation in light of catena of cases surfacing
before Hon’ble Courts of Law in Indian jurisdiction of legal parlance. The
intersections and cross-sectoral analysis of Alternate Dispute Resolution via.
Arbitration and Mediation are emerging as vital alternatives to resolve
litigation issues. The contemporary world has thrown challenges for
sustainability of business where ‘Commercial Dispute Resolution’ via. a
Mediation or Arbitration has a tremendous potential. The instant paper is an
attempt to revisit those areas of dispute resolution in a timely and
cost-effective manner which is not only empowering but also make a perfect
scenario of “agreeing to disagreeing in a setup which facilitates harmonious
construction from an alternate dispute resolution honouring confidentiality and
effective protection of goodwill in market scenario”.
Keyword: Hohfeldian Matrix; Jural Correlatives; Deontic and Alethic
Square of Opposition; Alternate Dispute Resolution; Arbitration; Mediation.
Introduction
For the analysis of legal position,
Hohfeldian method is a seminal contribution in the legal field[4].
It is an analytical tool for understanding the dimensions/facets of ‘Rights’
and ‘Duties’. It provides with unprecedented clarity to understand the legal
problem. However, the legal ‘Rights’ and ‘Duties’ as analysed by Hohfeldian
method, may not provide the complete picture in the canvas or broader contour
of analysis where in Eastern or Indian System of ‘Rights’ analysis involves
‘Obligation’, where the society provides a obligation on the individuals and
groups to respect others, where the enforcement comes from within (from
inside). Western Jurisprudence is based on legal rights and duties. Eastern law
is based on ‘Dharma’[5],
which is outer reflection of inside, whereby the philosophy of Vedas and
Upanishads have a bearing- which are building blocks of tolerance and respect
for others. The inner understanding of Eastern jurisprudence involves
understanding the concept of ‘Juristic person’, beyond the realm of the two
classifications as ‘Natural person’ (like humans) and ‘Artificial person’ (like
Corporation as entities).
Legal
Rights and Corresponding Duties
Before
understanding and analysing the Steps in the Application of Hohfeldian
Jurisprudential Analysis for Mediation and Arbitration, it is vital to amplify
the factors what constitutes the rights and duties in this perspective. The Legal Right can be categorised as Claim
Right, Privilege Right, Power Right and Immunity Right, whereas, the
corresponding duties include that of Duty, Liberty or ‘No Privilege right’,
Liability and Disability. Though the
squares of opposition are a post- Hohfeldian activity, nonetheless, the squares
of opposition had its origin with Aristotle in fourth century BC, namely the
‘Deontic Square of Opposition’ and ‘Alethic Square of Opposition’. The dynamic
relations between the Deontic and Alethic relations would constitute a ‘Right’
using the Aristotelian Squares of Opposition. The Mediation and Arbitration
includes an number of steps including identifying the parties and the
stakeholders who have a stake in the final result of the process of alternate
dispute resolution (ADR). It is pertinent to note that the inherent advantage of
ADR includes going into the sub-stratum of the issues involved in an
environment which is mutually agreeable to the parties where the parties may
have an arbitration clause in their contractual agreement to resolve the
dispute in an arbitration setup. In Mediation, the parties participate
voluntarily and confidentiality is being maintained in the process, where the
skilled and trained mediator acts as a catalysts and facilitator to settle the
disputes without any prejudice or any time-consuming hassles in effective
negotiated and collaborative environment of dispute resolution.
Steps in the Application of Hohfeldian Jurisprudential
Analysis
The first and foremost step is to
develop the ‘Deontic Square of Opposition’ and then, the second step would be
to analyse the analytical framework of ‘Alethic Square of Opposition’. The last
step is to super-impose each of the ‘Squares of Opposition’ on top of each
other to form a 3-dimensional analysis in the form of ‘Hohfeldian Cube
Analysis’ Such an analysis a dynamic in nature and can provide multiple
permutation and combinations for analysis for legal framework analysis in
analytical form. It is vital to note that the dynamic business setup is
influenced by myriads of factor which form the basis to analyse the varied
permutations and combinations while arriving at a negotiated or agreeable
solution to the dispute between and among parties in the cases where ADR
mechanism is being opted by parties for resolution of their disputes. The
Hohfeldian Jurisprudential analysis is a tremendous tool to analyse the
position of the parties where the rights and duties of the parties are analysed
‘threadbare’ and in an efficacious manner. In this analysis whereby, the
‘Right’ is for protection of interest. In Hohfeldian analysis, it is the
shifting ‘dynamics’ of Rights and Duties, where the arguments advanced in the
Court of Law can provide multiple permutation and combinations of ‘Rights and
Duties’ and its movement in the course of analysis with cogent reasoning.
Another line of thought is that of the opinion of the Positivists that includes
that Right is an interest and it must be recognized and protected. Thereby in
sequitur it is averred that the Interest by law signifies that, mere
recognition is not enough.
ADR as a viable option for resolution
of disputes finds its application in ancient culture and inbuilt in the family
value system of Indian jurisprudence. Lord Krishna role as a Mediator in
Mahabharata[6] for
resolving the disputes via Mediation between the Pandavas and Kauravas. The
legal system provides the right to be enforced by legal system, whereby the
interest partakes the characteristics of legal right. In the basic and
rudimentary understanding of the legal system, constituent elements include the
parties or individuals. Whereby, the interactions are between individuals, it
is warranted to Connect individuals with Rights and duties. For every ‘Right’,
there is a corresponding ‘duty’ and the whole world has a corresponding duty
towards that right. Others have a ‘duty’ to respect that ‘Right’ against the
holder of the right. The Right can be divided into 4 species:
1. Claim Right in strict sense
2. Liberty/Privilege- for example, to
enjoy the right to stroll in his/her own garden without being disturbed
3. Power- The right emanating, for
instance, from a Will, which bestows upon the individual certain rights of
possession and ownership of property.
4. Immunity- The right enjoyed, for
example by a diplomat in an Embassy in foreign country.
The word ‘Right’ is general in nature
is a ‘Genus’ whereas, ‘Species’ is specific and pertains to say, Right to
alienate, Right to Stroll, Right to enjoy the garden or its ascetic beauty,
Right to play in the playground, among others. So, ‘Right’ is a very general
term, like that of ‘duties’. From Sphere of right one jumps into the sphere of
duties which one is supposed to have towards others. This defines the ‘Zone or
Sphere of activities’. Here, ‘Privilege’
forms the private sphere of control. If it is transgressed by the activities of
neighbour by disturbing via. disturbance while strolling in the garden of his,
then there is an intervention in the personal ‘Privilege’ as a right enjoyed by
the individual. Simultaneously, there is a ‘Duty’ of the neighbour to respect
that privilege which one enjoys in his or her own land or garden. So, the
starting point of analysis is the ‘Privilege’ right which one enjoys in his
sphere or zone of activity and there has to be protection of the Legal Right
which an individual gets with the ownership and possession of the property,
which is the ‘Power’ bestowed by the purchase deed or the sales deed and the
due executed registered Agreement of Sale, which is enforceable in the eyes of
law. That ‘Power’ is right to move to the Court by the statute enabling a
rightful owner to assert his or her claim over the property and make it
enforceable in Court. ‘Claim Right’ is
strict in nature and has to be construed as the right enjoyed which is
correlated to the duty of ‘No Privilege’ for the neighbour, not to disturb the
owner when he/she is strolling in his or her own garden, where the strolling is
‘Rights in rem’ in general sense. The
diagonals are ‘Jural Opposites’ while the horizontals are ‘Jural Correlatives’,
whereby the ‘Privilege’ and ‘Duty’ are mutually exclusive and can be seen from
varied legal scenarios.
|
Liabilities
|
|
This
is the Hohfeldian Cube.
This represents the ‘dynamic’ interactions and
relations between the ‘rights’ and ‘duties’
The
top of cube is ‘Roof of rights’
While
the bottom base of the cube is ‘base of duties’
|
|
Claims/Right
|
|
Privilege
|
|
Immunity
|
|
Power
|
|
Roof of Rights
|
|
Duty
|
|
No Privilege
|
|
Base of duties
|
|
Disability
|
|
‘Deontic Square of Opposition’
|
|
|
|
Super-imposed to form the 3D Hohfeldian Cube
|
Diagram 2- Super-imposition of ‘Deontic’ and ‘Alethic’ Squares of
Opposition to form the Hohfeldian Cube.
Let’s
analyse some scenarios where Mediation and Arbitration as an ‘Alternate Dispute
Resolution’ could help address and tackle the issues involved in practical
daily day to day scenarios and to analyse it from a ‘Hohfeldian
Jurisprudential’ Lens.
Scenario 1:
In case of Volenti non fit injuria,
with the example of batsman playing Cricket match, includes the ‘Zone of Liberty’ involves the ‘Right
to play the game’. Where, the spectators or the match-lovers buying ticket on their own volition understanding the
risks involved have assented to the position ‘No Right’ for the match duration inside the cricket stadium.
Where, being injured by a ‘Sixer’ (six played by a batsman) would not bring a
cause of action as the match goers while purchasing the ticket has assented to
those inherent risks involved in the game. Likewise, the scenario can be
dynamically analysed from the viewpoint of say a batsman in ‘Immunity’ (Right) position while
scoring a six without injuring the umpire. Where, the audience is brought by that concurrence of Volenti non fit injuria,
from the ‘Power’ position to the ‘Disability’ position. So, the scenario
could dynamically create multiple
scenarios and options to analyse. So, if the audience of the cricket match
had bought a ticket which spell out categorically, that if the organizers are
not responsible for any mishap or accident caused by inadvertent reasons or by
purchasing the ticket, any injury or accident caused by risks of watching the
‘live’ match at stadium, the ticket purchaser is subsuming the risk. Any
fallout of any accident, could be mediated between parties post the unfortunate
incident of injury, could be dealt accordingly as per Alternate dispute
resolution as defined apriori.
All the Rights and Duties co-analysis has a bearing in the final outcome
of the legal scenario helping in understanding the stand of each parties while
deciding the fate of the case in instant scenarios, wherefore the Hohfeldian
analytical analysis of ‘Right’ and ‘Duties’ are a robust tool to get complete
clarity of unprecedented nature.
Scenario 2
While planting of plants in one’s own
garden or land, there is a ‘Privilege’
(as a right) to plant trees where the trespasser or neighbour shall not cause
destruction or injury to the plants. If there is any trespass, by enforcing his
right the owner of the land has the
‘Power’ right to move to Court, where if the verdict comes in favour of the
owner, the trespasser or the neighbour violating the societal norms or by
action of cutting the trees or causing harm to the plants could be moved to the ‘Disability’ position. Here, the disputes between the parties of
nature of a ‘trespass’ could be effectively solved if the parties are willing
to mediate via an alternate dispute resolution arriving at a mutually agreed
compensate of damages, if any.
Scenario 3
The ‘Power’ enjoyed because of a
statute in numerous cases or instances, would provide the option to the
right-holder to move to the Court or exercise his or her option of seeking
justice so the preliminary position of the person in ‘Power’ (right position) is enforceable in Court, whereby in the
eyes of law it holds credence. At the same time, the offender of the law is
moved to ‘Disability’ position, once
the cause of action is proved in the Court of Law. In such scenario, if it is
of a contractual nature of any agreement defined apriori between the parties
and also has a ‘arbitration clause’, then the issue could be solved by
resorting to ‘arbitration’.
Explicating the Hohfeldian analysis via. ADR case
studies
A conjoint
reading of Section 89 of Code of Civil Procedure, 1908 along with Section 12A
of the Commercial Court Act, 2015 enables pre-litigation mediation mandatory
for commercial disputes. The seminal case of M/S. Afcons
Infrastructure Ltd. & Anr. vs M/S Cherian Varkey Construction Co. (Pvt.)
Ltd. & Ors.[7], spelt out
with clarity the guidelines about the Alternate Dispute redressal process
within the meaning of Section 89 of the aforesaid code. The aforesaid case,
helped define the nature of cases which are considered unsuitable for ADR. The
cases involving prosecution for criminal offenses along with cases which
involves serious allegation of the nature of inter alia fraud, forgery,
fabrication of documents, coercion and impersonation were deemed not fit for
ADR. In another case, Hussainara Khatoon & Ors. Vs Home
Secretary, State of Bihar, Patna[8] which was
reported in Supreme Court Cases (SCC), the Hon’ble Justice Bhagabati in the
apex Court, Hon’ble Supreme Court of India observed that although the right to
speedy justice is not mentioned explicitly in the Constitution as Fundamental
Right, still it is implicit in the broad sweep as contained in Article 21. In
catena of cases surfacing before the Hon’ble Court of law in India, it is
averred that varied cases related to family law, employment law, consumer law
and laws in the realm of Trade, Taxes and Constitutional Laws have a tremendous
potential where ADR has its applicability. The applicability of the scope of
settling disputes via ADR necessitates that there should not be any pressure,
force, coercion or threat of any kind to settle disputes against the wishes of
the parties involved, as could be established from the decision in B.P. Moideen Sevamandir & Anr. vs A.M. Kutty Hassan[9] and is
important to reckon that CPC trials procedure is a complex one with different
stages for the litigation for meeting the ends of justice; nonetheless, ADR is
a process or a mechanism within the legal setup which enables resolution of
disputes in a manner without having recourse to litigation. Applying the Hohfeldian Analysis, in the aforesaid
cases, the complex legal issues involved could be divided into sub-issues. The
analysis enables the parties to define and specify with clarity the rights and
the corresponding duties of the parties involved prior and post the arising of the
dispute, which is the subject matter of settlement via ADR. ADR enables the
parties to understand and specify with clarity the ‘Power’ right, if any by the
facts and circumstances of the case, bestowed by a clause of ‘Arbitration’ in
the contractual agreement between the parties to resolve their dispute. Another
area to exemplify, the applicability of Hohfeldian Analysis, can be seen vide
Section 60 of the Transfer of Property Act 1882, which spells out the remedy to
the Mortgagor as “equity of redemption”. Reliance placed on the case Seth
Ganga Dhar vs Shankar Lal & Others[10],
it was held by the Hon’ble Court that the document in question contained a
stipulation creating a 'clog on the equity of redemption' which was found to be
illegal. Hon'ble Supreme Court of India had held that, as such a long term or
period of redemption of 85 years was not necessarily a 'clog on equity of redemption'[11].
So, here by Hohfeldian Analysis, the Mortgagor was in ‘Zone of Activity’ where
the law has left that individual alone which is “Right/Claim of Right of equity
of redemption” which is intact after the judgment; while the Mortgagee is moved
from the initial position of “Power” (bestowed or enjoyed with his/her ‘Right
of foreclosure’) to “Disability” if there is ‘Clog in the Right of Equity of
redemption of the Mortgagor’.
Conclusion
Hohfeld Cube analysis provides
immense clarity in understanding the relationship between eight jural
relations. It helps in simplified understanding of complex legal problems, with
clarity and defines questions with utmost details, whereby the parties could
resolve their disputes via Alternate Dispute Resolution, be it through
Arbitration, Mediation, Conciliation or Lok Adalat’s. It is not only a useful
mechanism to decipher the relationships between the rights and duties, but also
a tool which is highly practical and boon to the Court or legislature to
appreciate the jural relations in a cogent and coherent manner. The investors
confidence in a market setup has to be bolstered with a robust legal framework
which is confidence generating as well as self-empowering to stakeholders in
the value chain to negotiate and build a case for resolution to disputes in a
‘Win-Win scenario’ in business ecosystem outside the hassles of the Court
premises in adversarial system of justice in India. To conclude, Mr. Frank
Sander, Professor Emeritus of Harvard University while coining the term
‘Alternate Dispute Resolution’ described it as a solution to “the deadening
drag of status quo-ism”, the attempt of analysis via the Hohfeldian
Jurisprudential matrix and Hohfeld Cube is beckon of light which provides a
scenario of positivity where ‘delay in delivery of justice could be tackled’
resulting in parties in dispute to be in a ‘win-win’ scenario, reinforced and
augmented by a phenomenal change in the legal system by the applicability of
‘Alternate Dispute Resolution’.
[1] * Joint Director, Central Government Civil
Services Officer, Group A, Government of India, BE (Information Science and
Engineering), MBA (IIT Kharagpur) and presently pursuing LL.B. at RGSOIPL, IIT
Kharagpur.
[2] **
BE (Mechanical Engineering) and
presently pursuing LL.B. in 3rd year at RGSOIPL, IIT Kharagpur
[3]
*** BTech
(Electrical Engineering), Sam Higginbottom University of Agriculture,
Technology and Sciences, Allahabad, Uttar Pradesh and presently pursuing LL.B. in
2nd year at RGSOIPL, IIT Kharagpur
[4] In the Hohfeldian method,
Hohfeld’s legal relations with the various legal relationships described with
‘Jural opposites’ and ‘Jural Correlatives’.
[5]
The conceptual base of ‘Dharma’ finds its quintessential role and presence
in Vedas and Upanishads in Indian ancient literatures.
[6] An
epic which has a social and cultural narrative in Indian culture contains
verses or Slokas which depicts historic richness and work of vivid culture of
ancient sage Vyasa.
[7] M/S.
Afcons Infrastructure Ltd. & Anr. vs M/S Cherian Varkey Construction Co.
(Pvt.) Ltd. & Ors., (2002) 8 SCC 24
Article Information
Solving Adjudicatory Legal Issues With ‘Alternate Dispute Resolution’: An Analysis From ‘Hohfeldian Jurisprudential’ Lens
Authors: Samrat Bandopadhyay, Aditya Prakash Mishra, Shekhar Mazumdar
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/12/15
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.