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U.S. JUDICIARY
Submitted By:

SAKSHI DHRUW

Roll No: 136

B.A. LLB (HONS.)

SUBMITTED TO:

MRS. NISHA BIND

(FACULTY: POLITICAL SCIENCE )

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

Date of submission:

15-02-2017

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DECLARATION

I Sakshi Dhruw, hereby declare that, the project work entitled, ‘U.S. JUDICIARY’ submitted
to H.N.L.U., Raipur is record of an original work done by me under the guidance of Mrs.
Nisha Bind , Faculty Member, H.N.L.U., Raipur

Sakshi Dhruw

Roll no-136

Semester II

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ACKNOWLEDGEMENT

I, Sakshi Dhruw , feel myself highly elated, as it gives me tremendous pleasure to come out
with work on the topic ‘U.S. JUDICIARY’.I am thankful to my teacher, Mrs. Nisha Bind,
who gave me this topic. I am highly obliged for his guidance in doing all sorts of researches,
suggestions and discussions regarding my project topic by devoting his precious time.

I thank to the H.N.L.U for providing Computer, library facility. And lastly I would like to
thank my friends and all those persons who have helped me in the completion of this project.

Sakshi Dhruw

Roll no-136

Semester II

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TABLE OF CONTENTS

Declaration……………………………………………………………………………… I
Acknowledgements……………………………………………………………………. II
Introduction…………………………………………..…………………………………...1
Objectives of study……………………………………..……………………………........2
Research Methodology……………………………………..………………………….….2
Review of literature…….....................................................................................................3
Chapter 1- Materialistic concept of history…………………….………………………...8
Chapter 2-History Materialistic in nature …….………………..…………………...….…9
Chapter 3-Marx on alienation………………………………………….………….……...10
Chapter 4-Overcoming alienation :the role of proletariat …………………………….....11
Chapter5 : Basic Principles of Historical Materialism……………………………........12
Majar Findings……………………………………………………………………………
Conclusion……………………........................................................................ 23
References ………………………………………………………………………..24

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INTRODUCTION

KARL MARX

JUDICIAL POWER IN THE

UNITED STATES
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CHAPTER I
ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE
AMERICAN JUDICIARY

No government can live and flourish without having as part of its system of administration of
civil affairs some permanent human force, invested with acknowledged and supreme
authority, and always in a position to exercise it promptly and efficiently, in case of need, on
any proper call. It must be permanent in its character. Only what is permanent will have the
confidence of the people. It must always be ready to act on the instant. The unexpected is
continually happening, and it is emergencies that put governments to the test.

The judiciary holds this position in the United States. The institutions which underlie and
characterize it, both of the United States and of each of the States, considered by itself are the
outgrowth of those of the thirteen English colonies on the Atlantic coast, which declared their
independence in 1776.

The colonial charters, whether of the proprietary, provincial or

republican type, were all equally charters for Englishmen, based
on the common law of the English people. So far as they granted
legislative power, it was generally declared that it should be
exercised in conformity, so far as might be practicable, with the
laws of England. The proviso to this effect in the roving patent
given by Queen Elizabeth to Sir Walter Raleigh may be taken as a
type:

In the Southern New England colonies, when first settled, the

common law of England was disowned. They made the little law
which they needed for themselves, and as cases which this might
not provide for arose, they were to be decided by such rules as
the magistrates might think right and warranted by the precepts
found in the Bible. Connecticut continued to insist on this
view, with general consistency, until the days of the Stamp Act,
when it became the interest of her people to claim the benefit of
the principles of the English constitution and of the common law,
on which it was built up.[Footnote: Colonial Records of Conn.,
1689-1706, 261; Conn. Stat., ed. of 1769, 1. _Cf._
citations by D. Davenport, _arguendo,_ in Flynn _v._

Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State

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archives.] 1

In early Massachusetts the written pleadings often referred to

the Bible, quoting a text from it as an authority, just as
citations now might be made in a lawyer's brief from a legal
treatise or reported case.[Footnote: Publications of the Colonial
Society of Mass., III, 324.]

As was anticipated in the Raleigh patent, it was found from the

first and everywhere that if the common law was to be applied to
the rough conditions of colonial life some modifications were
necessary. These the colonists were, in the main, left free to
make at their pleasure. Much of this work came to be done by
their legislative assemblies; more by their courts. The
assemblies sat but for a few days in the year: the courts were
always open to suitors, and sessions of the inferior ones were
frequent.

The assemblies, however, were themselves courts. At first they

kept in their own hands a large share of judicial power. They
acted as the early parliaments of England had acted, both as a
legislature and a judicial tribunal. In several colonies they
long kept to themselves the right of deciding private
controversies on equitable principles. They sat as a court of
review, to grant new trials or review judgments. They passed
acts of attainder. They settled insolvent estates.[Footnote:
Wheeler's Appeal, 45 Connecticut Reports, 306, 314.]

This mingling of judicial with legislative functions is a thing

to be tolerated only while the foundations of a government are
being laid. As the Roman plebeian, in the days before the Twelve
Tables, clamored for a known and certain law, so the common
people of the early colonies insisted that from a similar want
they held their rights too much at the will of their rulers. In
the colony of New Haven a code was early framed; but there they
built on a written law--the Bible.[Footnote: New Haven Colony
Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where
they were more anxious to avoid conflict with the common law, the
problem was a serious one.

Winthrop, writing in 1639, describes it with his usual clearness

and discrimination thus:

"The people had long desired a body of laws, and thought their
condition very unsafe while so much power rested in the
discretion of magistrates.... Two great reasons there were,
1
Colonial Records of Conn., 1689-1706, 261; Conn. Stat., ed. of 1769, 1. _Cf._ citations by D. Davenport,
arguendo, in Flynn v. Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State archives.

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which caused most of the magistrates and some of the elders not
to be very forward in this matter. One was want of sufficient
experience of the nature and disposition of the people,
considered with the condition of the country and other
circumstances, which made them conceive that such laws would be
fittest for us which should arise _pro re nata_ upon
occasions, etc., and so the laws of England and other states
grew, and therefore the fundamental laws of England are called
customs, consuetudines. 2. For that it would professedly
transgress the limits of our charter, which provide we shall
make no laws repugnant to the laws of England, and that we were

assured we must do. But to raise up laws by practice and

custom had been no transgression."[Footnote: Winthrop, "History
of New England," I, 322.]

The tendency toward partial codification proved too strong to be

resisted, and all the colonies soon had a substantial body of
written law published in official form.

The exercise of judicial power by colonial legislatures was

steadily contracting throughout the century preceding the
Revolution. Where there were Governors appointed by the crown,
they discouraged it. The courts were correspondingly
strengthened. Law became better understood and more wisely
applied. A large body of local statute law had grown up by 1750,
much of it already venerable by antiquity, and intimately
interwoven with the life of the people. Its form and color
differed in different colonies. Religious views and preferences
had had a large effect in shaping it. So had influences
proceeding from the civil war, the Commonwealth, and the
Restoration. Yet at bottom there was the same substructure in

OBJECTIVES OF THE STUDY

This study seeks to achieve the following objectives:

1. To briefly explain the key terms Historical Materialism

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2. To explain the concept of

3. To explain the role of society in gender construction.

4. To analyze the impact of gender role in different aspects.

METHODOLOGY

This project work has been carried out following the descriptive analytical approach. An

attempt has been made to study the various aspects, prospects, scope of gender construction

and socialization . Also a systematic effort has been made to study the topic “gender

construction and socialization ” from the viewpoint of society .

For achieving the following purposes secondary sources like various authors, books, articles

etc. have been utilised to the maximum possible extent.

REVIEW OF LITERATURE

 ‘Where speculation ends—in real life—there real, positive science begins’, according
to Marx and Engels in The German Ideology. The science to which they are referring
is the materialist theory of history, whose classic statement is given in the Preface to

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Zur Kritik der politischen O¨ konomie (A Contribution to the Critique of Political

Economy)

 Historical Materialism is the application of Marxist science to historical development.

The fundamental proposition of historical materialism can be summed up in a
sentence: “it is not the consciousness of men that determines their existence, but, on
the contrary, their social existence that determines their consciousness.”

 Historical materialism is based upon a philosophy of human history. But it is not

strictly speaking, a philosophy of history. It is best understood as sociological theory
of human progress. As a theory it provides a scientific and systematic research
programme for empirical investigations. At the same time it also claims to contain
within it a revolutionary programme of intervention into society. It is this unique
combination of scientific and revolutionary characters which is the hall mark of
Marx’s original formulation.

 Marx’s theory sought to explain all social phenomena in terms of their place and
function in the complex systems of society and nature. This was without recourse to
what may be considered as metaphysical explanations clearly outlined in those early
writings of Hegal and his followers. This eventually became a mature sociological
conception of the making and development of human societies.

 Thus we can see that for Marx it is the growth of new productive forces which
outlines the course of human history. The productive forces are the powers society
uses to produce material conditions of life. So for Marx, human history is an account
of development and consequences of new forces of material production. This is the
reason why his view of history is given the name of Historical Materialism.

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CHAPTER 1- MATERIALISTIC CONCEPTION OF HISTORY

For Marx, it is important to understand that human reality is essentially historical and is
driven by material forces. Historical materialism is an attempt to explain the origin and
development of the society from a materialistic perspective. It deals with the most general
laws of social development, where it identifies material forces playing crucial roles in the
formation and evolution of human societies. The most important aspect of social reality is the
economic structure of a particular society; the ways in which different groups of people are
related to economic resources of the society and their respective production relationships.
The materialistic conception of history opposes the idealistic understanding of history and
endeavours replacing it with a scientific and materialist understanding. He was enthused by
Charles Darwin's theory of evolution, which explained the evolution of the species in terms
of the process of natural selection. The emerging modern science was another inspiration.
Marx envisages overthrowing many established theories of history, which consider factors
like the consciousness, will of people, supernatural forces, various ideas or theories etc., as
important in deciding the course of history and human destiny. The Marxian materialist
approach tries to trace this by examining the factors that propel the development of human
societies from their prehistorical days. Marx says that human societies develop in accordance
with certain laws, which are independent of the wishes and desires of people. He argues that
the development of society can be seen as a process of social production. The different stages
of human evolution from the apes to complex society formations are examined in order to
develop his theory. Marx says that, in the process of social production human beings come
together and enter into definite relations that are indispensable and independent of their will
and desire. He thus sees the crucial role of labour, both in human origin from the apes and in
the evolution of different forms of complex social formations. Darwin was credited for
scientifically explaining man’s origin. He traced it in the animal world and explained the
evolution of more and more complex forms of life from simpler organisms. Combining these
various insights from different intellectual debates taking place during his times Marx, along
with his companion Frederick Engels had laid the foundations of a new philosophical theory,
which tries to explain the process of social development from a historical perspective and
seeks to solve many human problems with a materialistic conception.

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Chapter 2-History materialistic in nature

What is the nature of history? Is the real nature of history cultural, political, economic,
religious, or moral? Is history materialistic or non-materialistic, or a combination of both?
This is one of the main questions related with history. Unless this question is not answered,
our understanding of history would not be correct and sound.

It is evident that all the above-mentioned intellectual and material factors have participated in
the fabric of history. But the question arises, which of them is the determining factor that
plays the most important role and is prior to all others. There has been controversy as to
which of the factors represents the real spirit of history and its essence, and which of the
factors is able to subordinate and explain the subsidiary role of other factors. Which of them
is the base, to which others serve as superstructure?

Usually, history is compared to a machine with many motors, in which every motor is
independent of the others. In fact, history is considered to have a complex not a simple
nature. But if we regard it as having many motors, then what are we to think of its evolution
and its course of development?It is not possible that many motors, each of them having a
specific momentum pushing history in its own direction, could carry history on a specific
course of evolution, unless we consider the above-mentioned factors as the moving forces
subordinate to a super-force, the spirit of history.

This spirit, by employing various historical forces,. drives it towards a predetermined

evolutionary goal. It is this spirit which actually represents the essence of history. But this
interpretation is different from the doctrine of monistic view of history. The nature of history
is synonymous with the spirit of history, and it cannot be derived from, what are called, the
moving forces of history.

In our age, a theory which has attracted many supporters is that of `historical materialism' or
the `dialectical materialistic theory of history.' Historical materialism, which is an economic
interpretation of history and an economic-historical view of man-not a humanistic
interpretation of economy or history-explains every human activity from the economic point
of view.

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In other words, according to historical materialism, history is materialistic in nature and

essence and follows a dialectical process. This means that the basis of all historical move-
ments, revolutions, and historical manifestations of every society, is its economic
structure.They are the material forces of production of society and its relations of production
which fashion history and give direction to all intellectual manifestations of a society like
morality, science, philosophy, religion, law, and culture. These manifestations change with
changes in the mode of production and relations of production.

The expression that history is dialectical in nature means that the evolutionary movements of
history are dialectical movements caused by a series of dialectical contradictions, which are
concomitant with those contradictions. Dialectical contradictions are different from non-
dialectical ones in the sense that every phenomenon is compelled to give rise to its own
negation from within.

As a result of a series of changes caused by this inner contradiction, the phenomenon under-
goes a radical qualitative change at a higher level, wherein the two lower stages attain
perfection through synthesis.Thus historical materialism is comprised of two basic stands:
firstly, that the nature of history is materialistic; secondly, its movements are dialectical
movements. Here we shall study the first problem. The second shall be taken up while
dealing with the evolution and development of history.

The theory of materialistic nature of history is based on a series of certain philosophical,

psychological, and sociological principles that logically lead to other theories of ideological
significance. I would like to throw some light on this subject, especially because some
Muslim writers claim that although Islam does not approve of the philosophical materialism,
it accepts historical materialism.Consequently they have based their own historical and
sociological views on this theory. It is, therefore, essential to discuss this problem in some
detail, first expounding the foundations and principles on which this theory is based and then
the conclusions which are derived from them. After this exposition we shall evaluate the
basis of this theory from the Islamic and scientific points of view.

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CHAPTER 3- MARX ON ALIENATION

Marx conceives money as the alienated essence of human labor and life. He says that money
or man’s alienated essence dominates him as he worships it and hence money is a barrier to
human freedom. Hence, in order to overcome alienation we have to abolish money and also
abolish private property, which makes it inevitable. To explain this further Marx points to the
intimate link between labour and alienation. According to Marx, labour is the fundamental
activity of man. In simple terms it is the way by means of which man obtains the means of
subsistence by interaction with nature. In the case of living creatures other than humans, there
is no interaction between them and nature. Man’s interaction with nature is labour and it is
also an instrument for man’s self-creation. But under capitalism the worker and the product
of his labour are separated, which ultimately leads to alienated labour. Marx observes that,
ideally the product of labour should remain with the labourer, as it is the way he creates
himself and hence it is his essence. But under alienated labout of capitalism, the proletariat
does not have any right over his product which is the result of his labour. Hence his
relationship with the product characterizes alienation. He has no right or control over the
product and hence it appears before him as an alien object. It stands over and above him,
opposed to him as an independent power. The product, which is his essence, is separated
from him in the act of production itself. Hence he is alienated from himself in the very act of
production. Since he has no power, right or control of what he produces, he is unable to view
his work as a part of his real self. The proletariat, as mentioned above, will then be
exchanging his labour, his activity of production, which is his method of self-creation and
creation of his own essence, for the wages he is paid for. Hence the product appears before
him as an alienated object. The money for which he has exchanged it becomes his enemy, as
it becomes the symbol of his alienation. The more he worships this money, the more he
becomes alienated from himself. Again, the work he does in cooperation with others should
make him a part of humanity, the human species. Marx observes that his species-life
constitutes his social essence. But under the conditions of alienated labour this social essence
is taken away from him.. In capitalism, the worker is a product and the more they are, the less
the demand for them in capitalist establishments, which aim at profit maximization. Here
one’s fellow worker becomes a threat to one’s own interests. Man thus becomes alienated
from humanity and his social self.

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CHAPTER 4- OVERCOMING ALIENATION :THE ROLE OF

PROLETARIAT

Marx sees the very crucial role played by the propertyless proletariat class in this process of
overcoming alienation and liberating both the exploited as well as the exploiter; humanize the
entire humanity. The proletariat recognizes their plight and realizes the reasons for their
alienated status. But a mere criticism alone is not sufficient to change this situation. The root
cause of this alienation consists in the establishment of certain forms of modes of production
and the material forces that support them. Marx says that material forces must be overthrown
by material forces and he locates the force that can overthrow the existing capitalist mode of
production in the working class. Moreover, the proletariat constitutes a sphere of society
having a universal character because of its universal suffering. While the property-owning
classes can win freedom on the basis of the rights to property, the propertyless working class
possesses nothing. In order to liberate themselves and gain freedom, they have to change the
socio-economic formation and the mode of production system that are exploitative and
alienating. Actually the capitalist system alienates, not only the proletariat. It also
dehumanizes the capitalist as the class conflicts that are inevitably present in capitalism will
obstruct individuals from participating in man’s species life. The proletariat here has to take
the initiative and liberate themselves and also the entire humanity.

In this sense, the proletariat represents the whole of humanity. They represent the whole of
human suffering due to the lack of freedom and lost essence. Marxism is a philosophical
system, which gained wide acceptance and popularity in many parts of the world. It had
inspired revolutions in many parts of the world and initiated changes in the production
relations that existed in the world since industrial revolution. Like many other great
philosophers Marx tried to address the problem of human suffering and alienation. But unlike
others, he identified the root of these problems in the way human societies socially and
economically organized themselves and suggested the ways by which these problems could
be resolved.

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CHAPTER 4-Basic Principles of Historical Materialism

1. Priority of matter over spirit

Man has body as well as spirit. Human body and its functionings are the subject of biological,
physical, and physiological studies. But the spirit and processes related with the soul are the
subject of philosophical and psychological studies. Thoughts, beliefs, feelings, desires,
concepts, and ideologies represent spiritual processes.The principle of priority of matter over
spirit implies that spiritual processes are not independent, but they are only a sequence of
reflections of material processes; i.e., they are caused by the influence of the conscious matter
on the nerves and the brain.These processes are significant only to the extent that they form a
connecting link between the internal physical forces and the external world, but they can
never dominate human existence in the manner in which its opposite forces, i.e. the material
forces, do.

For example, the psychical processes may be compared to the headlights of an automobile.
An automobile cannot move about without its headlights in the dark hours of night. It finds
its way in the light of its headlamp. But what drives it is not the headlamp but its engine.i

2. Primacy and priority of material needs over intellectual

needs
Man has at least two types of needs for his social existence. Firstly, there are the material
needs, such as the need for bread, water, shelter, dress, medicine, and other such needs.
Secondly, there are the intellectual needs, such as the needs for education, knowledge, litera-
ture, art, philosophical speculation, faith, ideology, prayer, morality, and other such things.

The theory of priority of material needs is based on the notion that material needs are more
important and preferable. Their importance is not because of the fact that at the initial stage
man is in pursuit of material needs, and when these needs are satisfied, he can divert his
attention and energies towards the attainment of intellectual pursuits, but because material
needs are also the basis and the source of intellectual needs.It is not that man is created with
two types of needs and two types of instincts: material needs and material instincts,
intellectual needs and intellectual instincts; rather man has been created with only one type of
needs and one type of instincts. Intellectual needs are only secondary needs, which serve the
sole purpose of gratifying the material needs in a better manner.

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3. Priority of action over thought

Man is a being who thinks, understands, and acts. Is action prior to thought or vice versa? Is
the essence of man action or thought? Does human nobility depend upon action, or does it
depend upon thought? Is man the product of action or thought?Historical materialism is based
on the idea of independence of action and its priority over thought. It considers action as the
base, and thought as its offshoot. Ancient logic and philosophy considered thought as the key
to action.In that logic and philosophy, the essence of man (the self) is regarded as pure
thought. Human perfection and nobility is seen as lying in wisdom. The `perfect man' is
synonymous with the `man of wisdom.”  Man has a reciprocal relation with action and work:
he creates work and his work in turn moulds him. Man, through his action upon the external
world, acquires the data of his knowledge from the external world; until the mind becomes
enriched with these primary data, it remains incapable of any intelligent activity.Hence,
action is the origin of thought and thought is the origin of action. Action is the test of thought
and at the same time thought is the test of action.This is not a vicious circle. Man's nobility
lies in his wisdom, faith, and dignity, and in turn his work is valuable because through it he
acquires these virtues. Man is the creator of his work, and, at the same time, he is also its
product. This is the distinguishing characteristic of man, which is not found in any other
being, and which is derived from a mode of Divine creation special to his species. 

4. Priority o f the Social Existence o f Man Over His Individual

Existence, or the Principle of Priority of Sociology Over
Psychology

From the biological point of view, man is the most perfect of all animals. He has a kind of
capacity for self-improvement which is specific to his kind. Man is endowed with a specific
personality whose dimensions form his human Dasein (existence).As a result of continued
experiences and learning, the philosophical and intellectual dimension of man's existence is
shaped. And due to the influence of some other factors his existence gains another dimension
which is the ethical dimension. It is this dimension which is the source of all values, and basis
of the entire moral `musts' and `must nots'.The artistic and religious dimensions are also
evolved in a similar manner. Man himself styles a system of intellectual principles which
serve as the basis of his thinking within the framework of his philosophical and intellectual

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dimensions. In the course of his judgments, he arrives at a set of absolute and semi-absolute
(comparatively relative) values in the moral and social spheres of life.

5. Priority of Material Aspect of Society over its Intellectual

Aspect

Society is comprised of different strata, classes, and structures: economic, cultural,

administrative, political, religious, legal, etc. From this angle, a society seems to be quite
similar to a complete house where a family dwells and which consists of a drawing room,
bedroom, kitchen, toilet etc. One of the different social structures is that which serves the
purpose of the base or the foundation of the whole structure, upon which stands the system
and the superstructure. If it is disturbed or collapses, the whole structure is necessarily bound
to fall. It is the economic structure of the society. The social structure of the society consists
of whatsoever is related with its system of material production, such as tools and means of
production, sources and relations of production.

Tools of production, which comprise the most important part of the social structure, are
themselves always changing and developing. Every stage in the development of the tools of
production, necessitates a specific system of relations of production which negates all that
existed prior to it in the society.

MAJOR FINDINGS

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CONCLUSIONS

Historical materialism can be used to explain the past by dividing time into four modes of

production :Asiatic,anciet ,feudal and captitalist .there is a logical flow between these four

modes. Productive forces have gradually improved and as they have improved ,a shift I the

general outline of society has occurred in order to better suit the productive

forces.Whetherthis flow will end in communism or whether class antagonisms underlie all

historical struggles is irrelevant.The presence of a flow based on developing productive

forces is what matters and what gives historical materialism its validity.

Even though historical materialism has taken its shots,it still remains a solid theory

due its ability to explain the overall flow and outine of the past . The transition from one

mode of production to another are evident .Each mode has built upon the previous and mab

has slowly drifted towards a better way of creating a livelihood. In this paper, I have

provided few specific historical examples to support historical materialism .It cannot be

considered literally. It cannot explain all of history . It can only explain the general outline .If

this moves historical materialism into the realm of dogma as some have argued,then so be it .

That does not take away the strengths of the theory when considered as a general guideline

for studying the past.

REFERENCES

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This project would not have seen the light of the day without the following indispensable
secondary sources.

www.al-islam.org

www.onlinethinker.org

Avineri, Shlomo, The Social and Political Thought of Karl Marx, Cambridge:
Cambridge University Press, 1970.

Kenny, Anthony, A New History of Western Philosophy, Oxford, Clarendon Press, 2012

Durant, Will, A Story of Philosophy: The lives and opinions of the greater philosophers
of the Western World, Pocket Books, 1991

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