WHAT IS ADMINISTRATION OF JUSTICE?

EXPLAIN ITS
KINDS. DISTINGUISH BETWEEN CIVIL AND CRIMINAL
JUSTICE.
INTRODUCTION:-Administration of Justice:- According to
Salmond : -”The administration of justice implies the
maintenance of right within a political community by
civilized substitute for the primitive practice of private
vengeance and violent self-help.” This has been criticized
on the ground that it is not the force of the state alone that
secures the obedience of law. There are a number of
other factors such as the social sanctions, habit and
convenience which help in the obedience of law. In
civilized societies, obedience to law becomes a matter of
habit and in very rare cases the force of the state is used
to secure it
According to Austin: ‘Law is the aggregate of rule set by
men as politically superior, or sovereign, to men as
politically subject.” It means law is command of sovereign.
In his definition Command, duty and sanction are the three
elements of law.
The fundamental difference between the definitions of the
two jurists is that whereas in the definition of Austin, the
central point of law is sovereign, in the definition of
Salmond, the central point is Court. In fact, both the
definitions are not perfect and present two aspects of law.
Salmond : Points out that men do-not have one reason in
them and each is moved by his own interest and passions.
The only alternative is one power over men. Men is by
nature a fighting animal and force is the ultima ratio of all
mankind. As Hobbes puts it “ without a common power to
keep them all in awe, it is not possible for individuals o live

in society. Without it injustice is unchecked and triumphant
and the life of the people is solitary, poor, nasty, brutish
and short.” Salmond says however orderly a society may
be, the element of force is always present and operative. It
may become latent but still exists.
KINDS OF ADMINISTRATION OF
JUSTICE
The administrative of justice may be divided into two
parts:1) Civil.
2) Criminal.
1. Administration of Civil Justice: The wrongs which are
the subject-matter of civil proceedings are called civil
wrongs. The rights enforced by civil proceedings are of
two kinds (1) Primary and (2) Sanctioning or remedial
rights. Primary right are those rights which exists as such
and do not have their source in some wrong. Sanctioning
or remedial rights are those which come in to existence
after the violation of the primary rights. The object of the
civil administration of justice is to ascertain the rights of
the parties and the party who suffers from the breach of
such rights is to be helped by way of paying damages or
getting injunction, restitution and specific performance of
contract etc.
2. Administration of Criminal Justice:- The object of the
criminal justice is to determine the crime of a person who
is charged with the doing of an offence. The criminal court
after proving that the offender is guilty of the offence
charged awards him the punishment of fine, imprisonment
as prescribed by criminal law. A convicted person is

awarded physical pain. Thus the main purpose of the
criminal justice is to punish the wrongdoer.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL
ADMINISTRATION OF JUSTICE
Civil Administration of Justice
In the civil case the suit is Filed in the civil court. Criminal
Administration of Justice
In the criminal cases the proceedings Is filed in the
criminal court.
The main remedy in civil Cases is damages. The
main
remedy in criminal cases is to Punish the offender.
In the civil cases, the court Follows the procedure
Prescribed in Civil Procedure Code. In the criminal cases,
the court follows the procedure laid down in criminal
Procedure Code.
In civil cases the action is taken By the injured party and
the Suit is established by himself By giving evidence. In
criminal cases the proceeding is taken by the state and
the injured party is called out as a witness by the state.

2 What is Law? Discuss. Definition given by various
jurists?
INTRODUCTION: It is easier to explain than to define it. It
means that things are easy to explain than to define it.
Definition is very necessary for the study of the subject,
because the beginning and in one sense it ends is also its
definition. To give a definition of Law is comparatively a
hard task due to many reasons :
1. In Hindu :Dharma

AUSTIN:Austin is the father of English Jurisprudence and according to him.They are known as a modern thinkers and they propounded a new school in the Law namely. he defined the term .2. ULPIAN:.The word. Because definition given by a lawyer a philosopher.The famous Roman scholars and a Juries. In Rome :Jur.The law is concerned with the parameters which is right or wrong. a student or a lecturer is always different. A definition which doesn’t cover all these elements would be an in-perfect definition.” According to Salmond:. Endlly definition given by every person is always different. In Muslim :Hukma All these above words conveys different meaning.The law is the body of principals recognised and applied by the state in the administration of justice. “Law” has been taken from the ‘latin word’ which means “The body of Rules” various scholars has attempted to define this term according to their own prospective. Austin and Kelson define the term of Law in the following manners:1. And we can say that a definition which contain all the above meaning and all elements would be a good definition of law. DEFINITION OF LAW:. 4.” This school is also known as a scientific school. Benthem. “Law is the command . fair and unfair. In France :Droit 3.” Law as standard of what is just and unjust. According to Positivist Definition :. “ Analytical School. Some of them are as under:According to Roman Scholars:.

which means that the purpose of Law to reduce the pain and harms and pleasure in the society. As per Benthem:. He is concern with those commands which purely rest upon the formal expression of law. 3.According to him the law is a set of sosme formal norms aiming an creation of soliditary in society. According to Kelson:.of sovereign” There are three elements of law according to Austin : a) Command ) b) Duty ) = LAW c) Sanction ) According to him every law have a command and due to this command we have the duty to obey this command and if we don’t obey this duty then there is a sanction. that is why heading is given them to sociological. IHERING :. 3. Sociological Definition: The sociological approach is not a single approach but it includes a number of thoughts. but all these thought related to society.The law is the violaion of some declarations by the political head with utiity ensuring maximum happiness of he maximum people in the society. . Benthm concept of law revolves around individual utilitarianism and its concern with the theory of pain and pleasure.According to Ihering the Law is a form of guarantees of the conditions of life in society which are assured by the states power of constraint.The law is depsycholigically command. And we shall discuss some of true definitions :DUGUID :. 2.

But only the living Law is the actual law. ii) Before the State there must be a society. INTRODUCTION: Right generally means an interest or facility or a privilege or immunity or a freedom. 3 Define ‘Right’ and discuss the essential elements of legal right. And law is the essential part of a State. Austin in his theory has separated the subject matter of jurisprudence from morality or materiality.” ROSCUEPOUND :. He gave the concept of positive law. Law gives rights and duties to human beings. conflict or completing interest of people in the society. REQUIREMENTS FOR LAW The followings are some requirements for the definitions of law :i) Before the law there is a State.According to him Law is an instrument for balancing.Ehrlich lays down. iv) And finally law always has a purpose. “that the law consists of norms coverings social life. CONCLUSION:In end we can say that law is the important and necessary part of the state and developing the human beings.EHRLICH :. OR What is a ‘Legal Right’? Discuss the characteristics of a legal right. So here also right means positive . In this way right for the purpose of jurisprudence is called legal right. iii) State & society develop a legal order to be followed. Law is an instrument of social control as well as social change.

“ right is as a capacity residing in one man of controlling.” According to Paton : “ That legal right is that it should be enforceable by the legal process of the state. which is term of legal right. heath and reputation etc. But these wrongs are not remedial under law while if a legal right is violated then it will be legal wrong which is remedial under law. When an interest of a person is protected by the rule of law then it is called right.law right only. The different jurists have defined legal right in different ways:According to Austin : “ Right is a faculty which resides in a determinate party or parties by virtue of a given law and which avails against a party or parties other than the party or parties in whom it resides. It is not necessary that the state should always necessarily enforce all the legal rights.“ Right is an interest recognised and protected by the rule of right. The violatin of natural right is called natural wrong. Grey has criticised the interest theory propounded by Salmond. firstly that right is an interest and secondly it is protected by rule of right.” According to Salmond :. life liberty. Moral right if violated is called moral wrong. According to Holland. Ihering and Heck and he has supported the view that right is not an interest but that means by which the interest is secured.” Here rule of right means rule of law or law of country. Salmond definition involves two points. .” He however says that there are three exceptions to this rule :1.e. It means that it relates to his (person) interest i. It is different from moral right. with the assent and assistance of the state the action of others.. Legal right is recognised by law.

Halmes and Dov recognised this theory of right. It is only interest which is recognised by law.There are two theories of right : 1. Object:.2. 3.This theory says that interest is the base of the right.Right means some standard of action permitted by law.There must be a object upon which the right is exercised. These interest which are protected and recognised by law are called right. for example : International Court of Justice has no power to compel enforcement of its decrees under International Law. Mainly there are three essential elements of right e. So there must be a person for rights 2. 2. It says that a right reflects the inner will of a human being. Austin. Here : (i) A has the right to live . According to them a person wants o remain in the world freely and according to his own choice because a man is born free. Supporter of this theory say that there are many interests in the world. the right of the creditor to recover the debt is an “ imperfect right” 3. Subject: here means a person who has right. There are certain laws which do not confer right of enforcement to the courts. Interest Theory:.Following are the elements of Rights :1. Holland. This theory reflects the external nature of the human beings. There are certain rights which recognised by law but not enforced by it for example : In a time barred debt. ELEMENTS OF LEGAL RIGHT:. THEORIS OF RIGHT :. Lives in a house. Act of Forbearance :.g. In a right either an act is done or an act is forbidden. WILL THEORY : This theory is based upon the will of human beings. This is also called as content of right.

But some writers give some more elements of right. Almost all jurists agree on the point because one cannot exists without the other. (1) Absolute and (ii) Relative. Title: Salmond gives one more element of rights in the form of title. If any person defames A then A has the right of damages against the defamer.e.The following are the kinds of rights :1. (ii) A is subject. They are also called as principal right and helping right or remedial right. KINDS OF RIGHTS :. 4. In the above example ‘A’ has the right to live in the house but other persons have correlative duty not to disturb him. Here Austin is not agree to this He says that the duty may be divided into two kinds i.‘A’ has right of reputation which is his primary and independent right. The right consists in non-interference with the purchaser’s exclusive use of the land.in the house. He says that a right has got also a title. The person bound by the co-relative duty is persons in general because a right of this kind avails against the world at large. ‘A’ buys a piece of land from ’B’. Primary right and secondary right : Primary right is an independent right while secondary right means dependent right. Title may be in the form of the owner or co-owner or mortgager or leaser or buyer etc. A is the subject or owner of the right so required. This right of damages is called secondary right or remedial right. ILLUSTRATION:. Correlative duty: For right there must be a correlative duty. . house is object and (iii) His living in the house is act content. ILLUSTRATION: If. 5.

Right in Rem means right against the whole world while right in persosnam means right against a definite person.‘ A ‘ has the right of reputation. 5. The defaming his reputation called negative right. . In England there were two types of courts: (i) Legal courts (ii) Chancery courts Chancery Courts recognised the conquerable rights on the basis of justice. This is known as right in personam.Positive right is linked with negative and negative right is linked with duty. Proprietary and Personal Right:. This is right in rem. 1. This is his positive right and any person should not defame him. 4. equity and good conscience. Right Rem and Personam:. Positive right permits to do an act while negative right prohibit doing an act. Positive and Negative Right:. Thus contingents right becomes full right only when such uncertain events happen according to the condition. A person possessing any property has the proprietary right over it. and personal right means the right related with a person or a body. LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):The division of right has its origin in England.Proprietary rights which are concerned with property. ‘ A “ can enforce this right against ‘B’. ‘A’ has entered into a contract with ‘B’ and ‘B’ has broken +ve contract.These rights is of permanent nature that depends upon the happening of an uncertain event. 3. ILLUSTRATION: ‘A’ has not to be harmed by any person. While equitable right has been recognised by natural justice. Legal ight is recognised by Law. Vested & Contingents Right:.2. On the other hand. ILLUSTRATION:.

The jurists of analytical school consider that the most important aspect of law is its relation to the State Law is treated as an imperative or command emanating from the state.e. 4 Law is the command of sovereign comment. 7. For this very reason this school is known as the Imperative school.For this reason this school is termed the positive school. Critically examine the main features of ‘Analytical School’? OR Discuss the essential characteristics of the ‘Analytical School’? INTRODUCTION : The main features/essential characteristics of Analytical School of Jurisprudence are as under:. ‘ as it is (positus). There he was that Roman Law is very systematic and scientific whereas English Law is not systematic and . If any person injures or defames another person then the wrong doer infringes the personal right of a person. Right of Re-propia and Right in re-alena:. He is also considered as the father of English jurisprudence.Every person has a status. 6. He studied the Roman Law in Germany.These rights which are enforceable by law are perfect and which law does not enforceable are imperfect rights. i. The exponents of this school are concerned neither with the past nor with the future of law but with law as it exists. Its founder is John Austin who was the professor of jurisprudence in the University of London.Right in repropia means the right in one’s own thing whereas right in re-aliena means the right in the things of others. He should not be injured or defamed. Perfect or Imperfect Right:.

This law makes a relationship between persons and the Law. This law is imposed upon persons and is made by persons.scientific. so it is called human Law. It further divided into two parts :(1) Law of God (Divine Law) (II) Law of Men ( Human Law) Law of God is also called divine law. He divided law into two parts : (i) Law propriety so called (II) Law impropriety so called. In this book he difined English law and made it in a systematic way. Prior to Austin the law was based upon customs and morals but Austin reduced all things from the definition of law. Human law is further divided into two parts :(I) Positive Law (II) Positive Moral Law Positive Law is main subject of jurisprudence. This classification can be seen as under :- LAW . It is a law set by God for human beings on earth. So he tried to make English law in well manner. For this purpose he wrote a book ‘Province of English Jurisprudence’. Austin said that only positive law is the subject matter of jurisprudence. He separated both the morals and the religion from the definition of the law. Men also make law of men is made by men.

persons.1) Law of God (b) Law A. DEFINITION OF THE LAW Austin has defined the law is hiss ‘Command Theory’. Divine Law. acts and intention etc.i) Positive Law A. “Law is the command of sovereign.(A) Law propriety so called impropriety so called A. (VII) To investigate such legal concepts as property.2) Law of Men A.ii) Positive moral Law Law of analogy law by Metaphor Law impropriety so called:. Analytical school of jurisprudence deals with the following matter:(I) An Analysis of the conception of civil law. The law is the subject matter of jurisprudence. Moral Law and religious Law.There are certain laws. (V) The study of the theory of liability.g.2. This law is concerned only with the administrations of jurisprudence.” Sovereign here means a politically superior body or a determinate . But his law is not the subject of jurisprudence. (VI) The study of the conception of legal rights and duties. (II) The study of various relations between civil law and other forms of law.2. (IV) An account of legal sources from which the law proceeds. He says that. (III) An inquiry into the scientific arrangement of law. contracts. which are called impropriety laws e.

are under a Duty to follow the order of the Sovereign. This order may be oral or written.There must be some order of the Sovereign. This may be compared with the kind or the head of state in monarchy system and parliament in democracy system. is called command. CHARACTERISTICS OF COMMAND THEORY From the above facts we find that the following characteristics of Analytical School :1. The command of these persons shall be the law in the country.There must be sanction or the power of force behind the command of Sovereign and it there is no force or sanction then such command shall not be law. It means there must be politically inferior persons. COMMAND:. The Sovereign which is followed by force. SANCTION:.person or determinate body of persons like king of council. it means the political inferior persons who are under the control of Sovereign. In this way the above mentioned things are essential then it will be the law. If it is not obeyed hen the order of these persons shall not be law. SOVEREIGN: Means the political superior person or a determinate person or body of person or intelligent persons. The sovereign must have power to punish those who do not obey this command. Sovereign (II) Command (III) Duty (IV) Sanction Power. those persons who have disobeyed the law. But Austin . If the command is disobeyed then the political superior should have the power to punish. This law must be obeyed by certain persons. DUTY:.This command must be followed by some persons.

These are :(I) Explanatory Law :. CRITICISM OF ANALYICAL SCHOOL Various writers have criticised the command theory of Austin on the following ground : 1. Imperative means force behind law. According to Austin the law does not include customs but we see that customs are a very important part of the society.Precedent means the decisions of the court. so he excluded these laws from his concept of the law.excluded some commands from the concept of the law. So we cannot ignore customs from law. Precedents ignored:. (II) The Repeal Law : I there is a command for the repealing of already existed law then the second command shall not be law. . AUSTIN LAW (AUSIN’S METHOD) Austin adopted analytical method which excluded all types of morals and religion from Law.Analytical school is based upon the law. There were customs by which the society and later on state came into existence. Customs ignored:. Judge made laws because these laws were not the command of the Sovereign. Even in the modern times the customs play an important role in the formation of law. which are also called as judge made laws. These laws were not enforceable at that time. In state also customs played an important role in the administration of justice. 2.If there is a command for the explanation of already existed law command shall not be the law. His school is also called analytical school or imperative school.

which are observed or followed by the coming generation. It is not necessary that all should be enforceable or all common person should be considered as law. should be law. 6. Only those commands which are related with law and order. 4. . Conventions Ignored:-There are certain conventions or methods. So we cannot ignore conventions. Command Theory is not suitable:. which is very popular in the World. It is also an artificial theory haveing no sense in the modern world. In England the base of English Law is conventions. Law can be enforced even without power. According to his law there is no Sovereign for enforcing the international law. Only Power Is Not Necessary:.It is not easy to understand the ‘Commands Theory’ for common persons. But we have the result of the tyrants or forced rules which were thrown away by the people of French Revolution.Austin did not include international law in his law. International Law Ignored:. it they are suitable to the society. It is difficult to separate those commands from others by the common people or persons.According to the ‘Command Theory’. 5. But in modern days we cannot exclude international law from the field of law because it plays an important role in maintaining peace and society at international level. law can be imposed only with the help of power. These conventions or methods later on take the form of law. But Austin did not include conventions in his concept of law. The become law afterwards by their regular observance. of Panamaeto. So this theory is not suitable in modern times.3. In other words it is also a form of municipal law of civil law.

Moral Ignored:. In the western society also the position was the same. CONCLUSON :-In this way he theory of command has been criticised and which is not considered as suitable in the modern time. We cannot ignore morals from law because laws are meant for the society and such laws must be according to the feelings of society. But we also can’t ignore the contribution of Austin for giving he meaning of law in a systematic way. So we can say that Austin contributed a lot in the field of jurisprudence. This views became the base for the coming writers. So we can’t ignore morals from the field of law.Play an important role in the development of law. which was founded upon morals. jurists and philosophers. The feelings of society are based upon morals. Introduction:. So the Roman law also recognised the doctrine of natural law. In the ancient society there was no difference between law and morals. Up to what extent morals help in the development of law.7.The Command Theory has also excluded morals from the field of law. But we have observed that morals have also an important role in the formation of law. 5 Define and distinguish law and morals. The Vedas and suteras which are the main ancient sources of law are based upon morals. In the 17th and 18th centuries natural law theories become very . The legal system of Greek was also based upon the doctrine of natural rights. He give the concept of law in scientific manner. In the middle period also morals were the basis of law. which was in fact founded upon morals.

. He said that law is a command of sovereign. However in modern times it was only Austin who discarded morals from law. 5. 4. 3. In the modern times there is clear difference between law and morals. The laws are mainly concerned with the society as a whole and lay down the rules for relationship of individual with each other and with the state. Laws are meant by which the evils ends.The morals are an end in themselves.The morals are concerned with individual and are the laid down rules for the moulding of his character. Morals are considered to be universal in nature and value. 3.popular which were also based upon morals. 2. Law is concerned with the external conduct of the individuals. In every developed and civilized society the following are the differences between morals and laws:MORALS LAWS 1. But after him there came the Historical School that recognised morals as the part of law. 2. The justice is achieved. Later on the courts tried to make difference between law and morals. The observance of morals is a matter of individuals conscience. 1.Morals are mainly concerned with the internal conduct of the nature of a person. DIFFERENCE BETWEEN LAW AND MORALS When the Austin did not give any place to morals in law then there came a question of the difference between law and morals.

RELATIONSHIP BETWEEN LAW & MORALS In the ancient society there was no difference between laws and morals. Morals as the list of law:.e. Thus laws and morals have common origin. In spite of these differences there is a clear relationship between law and morals. Morals as the basis of law:.It has been argued that the law must conform to morals. Queen v/s Dudley: It was held that moral are the basis of law on the ground of morality. 2. The rule is that none has the power/right to take another’s life to save his own. For this purpose it can be noticed from the following three points :1. The rules for which the state could not ensure their observance wee known as morals. The state put its own sanctions behind their rules and enforced them and these rules were called laws.4 The observance of law is concerned with duty towards the state. All the rules originate from the common sources i. The state picked up those rules which were necessary for the society of the state. One cannot take the law into one’s own hands. morals.In the ancient society morals were the basis of all laws. but in modern times various theories of law separate morals from laws so many differences as pointed out above came into picture. The reason behind them was in the form of supernatural fear. 5 Law is concerned only with a particular state and society which differ from place to place & from time to time. We cannot totally separate law from morals. it was not necessary to kill the boy for saving their lives. It means the law must be .

In the modern times the laws which are not in conformity with morals are not good laws. Law is a means to get the end. The word used for law conveys an idea of justice and morals in the same area of law. The Roman law was based upon natural law and Christian morals and principles say that any law that is against morals is invalid. In addition to this there are certain other factors like public opinion. social and economical ideas which are directly or indirectly under the influence law. Justice in its popular sense is based upon morals. However in practice to a great extent law conforms to morals. 3. Laws cannot depart from morals due to many reasons. This can be done properly in the contest of socially recognize values which are closely related to morals. Morals as the end of Law:.based upon morals and it should not be against morals. Sociological school says that law always has a purpose. CONCUSION:. ethical. The conformity of law with morals is a very important factor even in the modern times. This aim of law is to secure social test of law. . The natural law theories were enforcing which were also according to morals. Morals also check the arbitrary powers of the legislature.So morals also have influence to a great extent in the development of law. A considerable number of them are regulated by morals.Sometimes morals are considered as the end f law. Thus ultimately morals become the end of law. All human conduct and social relations cannot be regulated and governed only by law. In India the legal system is engaged from the personal laws and local customs. political.

” that law is the system of rules. His theory mainly based on primary and secondary rules and also based on the relationship between law and society.e. His theory described about two words i. a union of primary and secondary rules.Thus we can say that the morals are the very important factor in the development of law. 6 Professor Hart claims of make a ‘fresh start’ in legal theory. DEFINITION AND MEANING: Sir HLA Hart define Law. Body : Sir HLA Hart theory talks about the two words.” He means to say that law is the system of rules and these rules are primary which are pre-legal rules and secondary which are legal rules and the main based of his theory on the relationship between Law and Society. Discuss. HLA Hart was the Principal and Professor in “ Brasenose College Oxford” His theory about the law named as concept of Law. He talks about the realty.Hart is one of the great jurists of that time. Morals are basis of law. These words are:Concept of Law Pre-legal world Legal world No legislature recognitaion No executive Change Rule of Rule of . He belongs to analytical school. Pre-legal world and Legal world. INTRODUCTION:.

4 Inefficiency :. Legal World :. Because of modern society there are rules of recognition which means that there is a Parliament/State Executive. There was no executive also which can change the rules besides this there was no court also to decide the disputes. It means that there were no courts followed by the people. HLA Hart pre legal world there was primitive society. According to Sir. In modern age there are courts which decides the disputes. Judges applies the earlier laws in deciding the disputes. The function of the Executive to change or to amend the rules. Thus we can say that Law is the union of Primary and Secondary rules.This legal world belongs to modern age. 3 Static character:. RELEVANCY OF HLA HART’S THEORY . In the primitive society there were three defects which are as under :2 Un-certainty :.In the primitive society there were customs and these customs were not changed. 2. According to Sir HLA Hart in the legal world there are modern society. Pre-Legal World :.No court Adjustice Rule of 1. It means there have static character.Since there was no Parliament in the primitive society which causes the un-certainty in the law. In other words it can be said that the Law is the journey of rules. These rules/laws are the secondary rules.This pre legal world belongs to old age. And in this society there was no legislature which can make the rules.In the primitive society there were no power of Jurisdiction.

So we can say that in modern age the law is certain not static in character. Sir HLA Hart also gives the place of Morality in his theory because the moral have an important role in every legal world and these morals are not changed by passing any Act. In the old age there were primitive society which did not have any legislature.   .Sir HLA Hart’s theory “ concept of Law “ is the most important theory of analytical school. There are courts which apply the rules on party. Therefore only custom and usages which were not allowed to change them by any person. CONCLUSIION:. So we can opined that such best and usable theory needs no conclusion as it has its self conclusion. HLA Hart theory Concept of Law have no conclusion because this theory talks about both the pre-legal world and the legal world which updates and tells us that how the law comes.Sir. The theory of ‘concept of law’ tells us about the legal world. In the legal world there is a legislature which makes the rules and these rules are changed or amended by the executive when it necessary. We can say that Sir HLA Hart theory. “ Concept of Law” has the most important place in the theory of Analytical School. Because this theory tells us about the old age and for the modern age. executive and court.

INTRODUCTION: The Natural Law school is not independent school. Plato: He was in the view that each individual be given best suitable role by reason of his capacity and abilities. Thomas Hobbes (Roman Thinker) :. It has deep concern with historical.From the jurisprudence point of view Natural law is not a body of actual enacted or interpreted law enforced by courts. The will of individual and 2.According to him that there should be an absolute authority which should govern and control the affairs of human beings in the reciprocal transmission of concerned with every span of life. Also explain its relevancies in the Modern times. According to the pro pounder of this theory says that.He means that Natural Law is a part of Divine Law. This part is applied by human beings to govern their affairs and relations. The authority through his rule must respect the both and in the administration of rule making process. Law is a product of the straight thinking of human mind.7 Define Natural Law theory. The main contents of this theory is that it has been interpreted differently at the different times depending on the needs of the developing legal thought but the greatest attribute of the Natural la w theory is its adaptability to meet new challenges of the transient society. analytical school. It is in fact a way of looking at things . Thomas Acquinas (Roman Thinker):. According to Socrates. General will. Rousseau (Roman Thiner) : He held that there two types of will:1. These will should be reflected. Definition:. he duely assert it that the positivist authority should be obeyed but not blindly and it ought to be subject to criticism if deserve so.

good conduct. ii) It symbolizes physical law of nature based on moral ideals which has universal applicability at all places and times. justice. 2. Stammler:. iv) The concept of Rule of law in England and India and due process in USA are essentially based on Natural Law philosophy. It embodies within it a host of ideals such as morality. Various a time in his concept he inter changeable used the word will with the purpose and he conclude that it is the will of the people which enable them to secure their purpose under social reorganisation.and a humanistic approach of Judges and Jurists. iii) It has often been used either to defend a change or to maintain status quo according to needs of the time. equality. liberty. KOHLER:. ethics and so on. The phrase Natural Law has a flexible meaning. According to him Law is standard of conduct which is .He was much more influence by Positive Law.The following are the three main thinker who contribute to the Modern Natural Law theories:1. freedom. The chief characteristic feature of natural law may be briefly stated as follows :i) It is basically a priori method which is different from empirical method. He says that” all positive law is an attempt at just law” with regard to will and purpose of the law maker should have the proper understanding and knowledge of actual social world or social reality. reason. It used to stress upon a cause and effect relationship between the facts on the verge of logic.His thoughts were influenced by Hegal. MODEN NATURAL LAW THEORIS:.

ii) Knowledge: Knowledge is a process of knowing of unknown with the help of sense.This is the logic expression of the ideas and decision in practical circumstances. So that he laid down stress upon moral and cultural development of society. Fennis lists them as under :i) Life:.Question of the origins of cosmic order and of human freedom and reason expressed thus this view is a good that even an ethicist can value.The term life signifies every aspect of vitality in good shape for self determination. Despite the merits of Natural Law philosophy it has been criticized for its weakness on the following grounds.consequence of in the impulse of human being that urges him towards a reasonable form of life. According to finnis Natural Law is the set of principles of practical reasonableness in ordinary human life and human community. iv) Role:. vi) Practical reasonableness :. 3.It is the expression of a status of human being in practical form such role is protected and recognised by law. He has given the definition and place to natural law.Doing something best for the sake of one’s friend’s purposes. This the measurement of just or unjust in a real situation. one’s well being. iii) Sociability of Friendship:. In . Finnis: Finnis also is a very famous jurists of the present century. He sets up the proposition that there are certain basic goods for human being. It also derives its validity from the moral and ethical standard in society. v) Religion:.

therefore it would be futile to think of universal applicability of law. iv) Legal disputes may be settled by law courts but disputes relating to moral and law of nature cannot be subjected to judicial scrutiny. CONCLUSION:-The brief survey of the theories of Natural law reveals that its concept has been changing from time to time.   8 Explain the importance of Legislation as source of Law. iii) The rules of morality embodied in natural law are not amendable to changes but legal rules do need a change with changing of the society. LEGISLATION AS A SOURCE OF LAW:. .other words the demerits of the Natural Law may be read as follows :i) Moral proposition i. Legislation is the most important and modern source of Law. This source has played an important role in the development of modern law and also different from custom and precedent etc. ii) The concept of morality is a varying content changing from place to place.e. ought to be may not always necessarily conform to the needs of the society.Legislation means the process of law making.The importance of legislation starts from the beginning of analytical school. OR Distinguish between supreme and subordinate legislation? INTRODUCTION:. It is called Parliament at the centre level and legislative assembly at the state level. This law making power is vested in the legislation body which is sovereign body.

Parliament at the centre and legislation in the State. Supreme Legislation:. HISTORICAL SCHOOL:. The scope of legislation has become very wide in the modern times. Subordinate Legislation: It is inferior from supreme legislation and is indirect legislation. This school also ignored the judge made law. It takes power to make law indirectly from Parliament. who gave him power to make law that is why is called subordinate legislation authority.e University or Boards.There are two kinds of the legislation :1.It has the powers of making law and is known as supreme legislation in each country. According to them the function of law in only to specify and to correct the custom into law whereas in the modern times the importance of legislation has considerably been increased. 2. KINDS OF LEGISLATION:. High courts or supreme court etc. About custom they say that the custom are not law but they are the source of law. ii) Judicial Rule :.e.It gives no importance to the legislation rather gives more importance to custom. It is further divided into the following parts :i) Autonomous Laws : A group of persons for making law is known as autonomous law and body i. .means the rules made by judicial body under power owed from supreme authority i. With the coming of existence of the State the legislation has also been come into existence and become most important source of law.This school ignored the importance of custom and gave the stress on command of sovereign which can make law only through legislation. This power is vested in sovereign body in India i.e.

Many reform acts were handing power of making reforms.The law and the rule can be made by the executive body in the State under the power conferred by the Sovereign/ Parliament which is also known as delegated legislation.Many of the writers has criticized this power because it gives much power to the executive body and administration body. There were some supporters also who were in the favor of this delegation of power.The legislation is the super power to make law for a country. In 20th century some important matters were given to delegated legislation to restrict the State to interfere in the daily life of the citizens. CRITICISM:.The Judiciary is to explain and implies the law so passed. iv) Colonial Law: It is for those countries who are under the control of any other country can make laws with the permission that country. III) Judiciary:. II) Executive:-The executive body of the nation is to imposes law in the country. REASONS FOR DELEGATED LEGISLATION . Executive Law:.e Zila Parishad. Municipal Corporation.iii) Local Law: means law made by local bodies under the control of SC i. It includes the following origins : I) Legislation:. controlling of employment. The legislation has passed by facing the complicated problems in the constitution. Parliament in India delegates its laws making power to the executive body and this power is called legislated or delegated legislation. development of education.

What is the importance of this subject in the study of law? OR “Jurisprudence is the eye of law”. Therefore the policy is made by the Parliament and the imposing matter is left on the masters of it. In India there is a Parliament form of legislation and it is a welfare state and the Parliament cannot go aside from the constitution. ii) Technicality of Matters:. iii) Flexibility: Law should be flexible and according to the need & conditions of the Public along-with the local matters which are different from area to area. So keeping in view of this reason the power is handed over to the executive. Any cut against the constitution is void. The Main power of delegated legislation & CONCLUSION is : Power of facing an act into operation. There are some dangers in delegations of this power:i) The executive body may uses the more powers than the powers delegated by the Parliament.i) Lack of Time:The parliament has the shortage of time because of a Public welfare state. . Power to apply the Act. There is a parliamentary as well as judiciary control over delegated legislation. It has to pay much time towards national problems.With the progress of society the things have become more complicated and technical. 9 Discuss the nature and scope of Jurisprudence. This power in India has also on constitutional basis. Power to increase or to decrease the scope of the Act. (ii) The Parliament has no time to examine the rules passed by the executive under delegated legislation.

The reasons for this is that just as in science we draw conclusions after Making a systematic study by investing new methods.INTRODUCTION :. It covers that study of man in relation to state and society. In the same way jurisprudence is concerned with the fundamental principles of law systematic and scientific study their methods. Its inquiry system is of different status from other subjects. on the underlying meaning of legal concepts and on the essential features of legal system.Mukherjee: . It includes political. economic and cultural ideas.Jurisprudence in its nature is entirely a difference subject from other social science. Salmond observed: “In jurisprudence we are not concerned to derive rules from authority and apply them to problem. Scope of Jurisprudence:According to justice P. There is difference of opinion about the nature of jurisprudence. general and theoretical nature which seeks to lay the bare essential principles of law and legal systems.” Jurisprudence is both an intellectual and idealistic abstraction as well as behavioural study of man in society. It is called both art and science. social.” Jurisprudence involves certain types of investigations into law. we are concerned rather to reflect on the nature of legal rules. and investigation an abstract. Every jurist does not base his study on the rules made but tries to understand their utility after due deliberation Thus the jurisprudence has no limited scope being a growing subject.B.” . The reason for this is that it is not codified but a growing and dynamic subject having no limitation on itself. But to call it science would be more proper and useful.

. legislation. Under this head matters such as custom. legal personality and related issues. Although all these concepts are equally studied in the ordinary branches of law. ii) Legal Concepts :. acts. jurisprudence tries to build a more comprehensive picture of each concept as a whole. but since each of them functions in several different branches of law. obligations. CONTENTS OF JURISPRUDENCE:. ownership. negligence. are included for study. pros and cons of codification of laws. an inquiry into the administration of justice etc. and effort should be made to present them in the background of social developments and changing economic and political attitudes. It is therefore necessary that while analysing legal concepts.Legal theory is concerned with law as it exists and functions in the society and the manner in which law is created and enforced as also the influence of social opinion and law on each other.The following are the contents of jurisprudence:i) Sources It is true that the basic features of a legal system are mainly to be found in its authoritative sources and the nature and working of the legal authority behind these sources. iii) LEGAL THEORY :. precedent as a sources of law. property.Jurisprudence includes the analysis of legal concepts such as rights. title. possession. UTILITY OR IMPORTANCE OF JURISPRUDENCE .It therefore follows that jurisprudence comprises philosophy of law and its object is not to discover new rules but to reflect on the rules already known. methods of judicial interpretation and reasoning.

a proper understanding of law of contract may perhaps require some knowledge of economic and economic theory or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and perhaps also of sociology. It helps them in shading aside their rigidity and formalism and trains them to concentrate or social realities and the functional aspects of law. “ the ever renewed complexity of human relations call for an increasing complexity of legal details. Jurisprudence also has its practical applicability. 2. Salmond pointed out that jurisprudence has its own intrinsic interest like and other subject of serious scholarship. is not of any practical use. Jurisprudence has great educational value.It is often said that jurisprudence being an abstract and theoretical subject. till a merely empirical knowledge of law becomes impossible. For instance. It is not the form of law but the social function of law which has relevance in modern jurisprudence. 4. But it is not correct to say so. 3. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. Commenting on the significance and utility of jurisprudence : Holland observed. The legal researches on jurisprudence may well have their effect on contemporary socio-political thought and at the same time may themselves be influenced by these ideologies. Its utility is as under :1. In other words it serves to render the complexities of law more manageable and rational and in this way theory can help to improve practice in the seats of law. likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest.” Thus .

For example. The eyes are one of the most important parts of human body. This why it has been characterised as “The eye of law. Jurisprudence may also be helpful o legislators who play a crucial role in the process of law-making.On account of importance of jurisprudence in the field of law it is called.” 5. 6. The reason of calling jurisprudence the ‘ the eye of law’ is that jurisprudence functions for law in the same manner as the eyes do in human body. 7. The knowledge of law and legal precepts also helps them to face every exigency of human affairs boldly and courageously. “The eye of Law”. Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the laws passed by he legislature by providing the of interpretation.the . Unless man can see anything properly. The study of jurisprudence may familiarise them with technicalities of law and legal precepts thus making their job fairly easy as also interesting. The study of jurisprudence helps in rationalising the thinking the students and prepares them for an upright civil life. The law should serve the purpose of socialengineering by preserving societal values and eliminating conflicting interests of individuals in the society.jurisprudence throws light on the basic ideas and the fundamental principles of law in a given society. According to Dias the study of jurisprudence provides an opportunity for the lawyer to bring theory and life into focus for it concerns human thought in relation to social existence. JURISPRUDENCE IS THE EYE OF LAW:. he cannot do any work. Almost all human activities and the movements of body are possible only through them.

are equally controlled through laws.” hence it is essential to know the correct basic principles of law which are contained only in the jurisprudence. The matters to birth. its development and its contribution towards society. It is the well known saying that. Do you agree with this view? INTRODUTION:. 3 Whether the law was made by people or it was due to the inspiration of some Divine force.” Jurisprudence is a particular method of study. not the law of one particular county but of the general notions of law itself. A person who obeys laws is known as a civilized citizen..There are two contrary theories regarding the question as to whether Judges declare the . It is therefore necessary that all the people should have the sound knowledge of law which is possible only with the help of jurisprudence.’ Whenever any complicated problem regarding law like:1 How and when the law developed. “ignorance of law is no excuse. Law is also connected with civil life. death. having so much importance for the society. A person who does not obey law is punished. The main function of jurisprudence is to study the origin of law. 4 Whether the law is a command of a sovereign or it is a result of gradual development of civilization in society. marriages.interpretation of law is a very difficult task. Therefore. jurisprudence. has rightly been called the eye of law. 10 Judges are the makers of law not discovers of law. It cannot be done without the help of jurisprudence. succession etc. 2 What is its object. ‘PATON’ in this connection says that.

According to the declaratory theory no new law is created by the Judge. DECLARATORY THEORY :. Theory that judges make the law or legislative theory. their province is to ascertain and declare what the law is.” Declaratory theory is based on the fiction that the English law is an existing something which is only . (Law making theory) 1. for h judge do not make the law.The first theory is the declaratory theory as described by Hall and Blackstone and they supported by Dr. carten also. Nevertheless as Maine has pointed out once the Judgement has been declared and reported we start with a new train of thought and frequently admit that the law has been modified. though they frequently have to apply the existing law to the circumstances as to which it has not previously been authoritatively laid down that such law is applicable. 2. The result of his theory is that the effect of the decision is retrospective for it does not only declare what law is but what it always has been. Theory that judges declare the law or Declaratory Theory. There are two which are as under :1. There is in fact no such hing as Judge-made law.existing law or make the law. Judges only discover the existing laws. Courts of Justice do not make law. Hale enunciates declaratory theory of precedents and contends that whilst Parliament alone legislates in the strict sense the Judges only expound the law and their decisions are the best evidence of what law is. According to Lord Esher.

declared by the Judges. This theory is known as the
theory of judicial precedent.
LAW MAKING THEORY
The second theory is that the Judges do not declare law
but make the law in the sense of manufacturing of creating
entirely new law. Bentham and Austin, have opposed the
traditional view as a childish fiction and have declared that
Judges are in fact the makers and fulfill a function very
similar to that of the legislature.
Lord Becon: The new point decided by the Judges is a
direct contribution towards law-making. Professor Dicey
supported this view and gives example of English common
law which has been made by the judges which has been
made by the judges through their judicial pronouncements.
Prof. Gray : supports this law making theory and says that
judges alone are the makers of law. He discredits the
declaratory theory.
Judges are without any query law-makers but their
power of law making is not un-restricted. It is strictly
limited for instance they cannot over rule a statute where
the statute clearly lays down the law. The legislative
powers are restricted to the facts of case before them.
According to Salmond : Who is strong support of this
view says that he is evidently troubled in mind as to the
true position of precedent. He further says that both in law
and in equity declaratory theory altogether totally rejected.
Such cases which are not covered by existing laws
the judicial decisions created new notions and formulae
new principles which were never contemplated earlier.
Supreme court over-ruled the Golak Nath decision in
Keshwanand Bhari’s case and laid down a new basic

structure theory and in Golak nath case the new principle
of prospective over-ruling was evolved by Judges.
RECONCILAION OF THE TWO
THEORIES
The above two views about making of law by judges are
not exclusive of each other but they are rather
complementary. It will be seen that neither the purely
declaratory theory nor the purely legislative theory
represents the whole truth. Judges develop the law but
cannot be said to legislate. The common law is not made
but has grown and the more it changes the more it
remains the same thing.
The answer to the question whether the
Judges make or discover law much depends upon the
nature of the particular legal system. In common law
system it may be stated that the Judges make law while in
other countries where is law is codified the judges only
supplement the law. It is true that custom and statutes do
not render the judges some super fulvous knowledge.


11 Explain the phrase, “Law is social Engineering” as
propounded by Roscoe Pound.
INTRODUCTION:- Roscoe Pound is considered to be
the,” American Leader” in the field of Sociological
jurisprudence. He comes from Harvard Law School and
had a great academic favour. According to him,” the end of
law should be to satisfy a maximum of wants with
minimum of friction.” He defined law as containing the

rules, principles, conceptions and standards of conduct
and decision as also the precepts and doctrines of
professional rules of art. He considers law as a means of a
developed technique and treats jurisprudence as ‘social
engineering’.
The main propositions of Roscoe Pound theory of Social
Engineering are as under:i) POUND CONCENTRATES ON THE FUNCTIONAL
ASPECT OF LAW:- Pound concentrates more on the
functional aspect of law, that is why some writers name
has approach as “ functional school” the law is an ordering
of conduct so as to make the goods of existence and the
means of satisfying claims go round as far as possible
with the least friction and waste.
ii) THE TASK OF LAW IS “SOCIAL ENGINEERING”:He says, “for the purpose of understanding of law of today.
I am content with a picture of satisfying as much of the
whole body of human wants as we may with the least
sacrifice. I am content to think of law as a social institution
to satisfy, social wants, the claims and demands involved
in the existence of civilized society.
iii) SOCIAL ENGNEERING MEANS A BALANCE
BETWEEN HE COMPETING INTEREST IN SOCIETY :He lays down a method which a jurist should follow for
‘social engineering’. He should study the actual social
effects of legal institution and legal doctrines, study the
means of making legal rules effective sociological study in
preparation of law-making, study of judicial method, a
sociological legal history and the importance of reasonable
and just solutions of individual cases.” He himself
enumerates the various interests which are to be

The Hindu . general health. The Hindu Minority and guardianship Act 1956 5. PRIVATE INERESTS:.” Roscoe Pound regarded law as a basic tool of social engineering. State as a guardian of social interests such as Administ-Ration of trusts. Freedom of volition and freedom of conscience. PUBLIC INTERESTS:. preserving of Social institutions such as religion. He classifies them under three heads: i. territorial waters. SOCIAL INTERESTS:. The Hindu succession Act 1956 4. promotes Human personality. The Hindu Marriage Act 1955 3. protection of Natural environment. political and Economic institutions. The special Marriage Act 1954 2. reputation. They Are safeguarded by law of crimes. Justice Cardozo remarked that.” Pound attempted to emphasize the need for judicial awareness of the social values and interests. Pound tackled he problem of interests in term as of balancing of individual and social interests.protected by the law.Such as interest of physical integrity.Main public interests are preservation of the State. cultural and economic life. Regulation of public employment and so on. How in India the society and law are acting and reacting upon each other can be adjudged from the following enactments passed after India became Independent:a.Preservation of peace. Private Interests (ii) Public Interests (iii) Social Interests. sea-shores. charitable endowments. It is through the instrumentality of law that these interest are sought to be balanced. general morals. contracts.

T. It is an important aid in the linking of principle and practice.” . ii.(Prevention of Atrocities) Act 1989 10.C & S. Commission of Sati (Prevention) Act 1987 11. The S. Classification of interests not useful: Freidmann doubts the value of classification of interests and the value of such classification. iii.Adoptions and Maintenance Act 1956 6. Engineering not a happy word : It suggests a mechanical application of the principles to social needs but really the word engineering is used by Pound metaphorically to indicate the problems which the law has to face. Pound says that the aim of ‘Social Engineering’ is to build an efficient structure of the society as far as possible which involves he balancing of competing interests. Ihering & Bentham concludes the theory of Pound’s that. Bonded labour(Abolition) Act.Pounds theory is that interests are the main subject matter of law and the task of law is the satisfaction of human wants and desires. The Dowry Prohibition Act 1961 7. To concluding the theory. It is the duty of law to make a valuation interests in other words to make a selection of socially most valuable objectives and to secure them. “such classifications greatly helps to make legislature as well as the teacher and practitioner of law conscious of the principles and values involved in any particular issue.1976 INTERESTS AS THE MAIN SUBJECT-MATTER OF LAW:. Child Marriage Restraint (Amendment Act) 1978 8. CRITICISM AGAINST POUND’S THEORY :i. The Consumer Protection Act 1986 9.

“ person is. It is either a thing or a mass of property or group of human beings to which law attributes personality the law confers a legal status and who thus in the eye of law possess rights and duties as a natural person. Person is of two types :.” According to Paton. who have a status.” In the development of society. law developed and with the development of law the concept of legal personality come into existence.” According to Salmond. Legal Person According to Gray. President of India 2. Natural Person II. Animals. the judge and the jurists and gives a comprehensive picture of the scope and field of the subject. 5. INTRODUCTION:. any being to whom law regards a capable of rights and duties.1. i.e.POUND’S CONTRIBUTION Social Engineering stands on a practical and firm ground. “A person is an entity to which rights and duties may attributed. He points out the responsibility of the lawyer. In the ancient times there was no concept of legal personality but as the society developed the person was recognised as the . Legal persons are those to whom law is recognised as a person. Council of Ministers 3.   12 What do you mean legal personality and its different theories? Whether the following are legal person :1. “Legal personality is a medium through which some such units are created in whom rights can be vested.Natural Persons are all human beings who are capable of rights and duties in law. Company 4 Un-born child.

In ancient time the animals were legal persons but in modern time animals are not the legal persons but in law we find come cases in which some animals have some rights and duties. These laws prohibit people to kill them. Unborn person: Unborn person is not a natural person because he is not in existence.All human beings are natural persons but in ancient society the slaves were not recognised as natural persons.e. She will be hanged only after delivery. Similarly outlaid persons. unsound persons were not natural persons.representative of the State and a separate personality was given to him. sanyasi and those who are living dead. In this theory the personality has also been confirmed. Manu has mentioned some persons who were not recognised as natural persons i. If the pregnant lady gets the punishment of death sentence. 3. . Person in the womb can represent the position after birth. In IPC the child in the womb is considered as a natural person as soon as any of his organ will come out from the womb. In the due course of time corporation and companies came into existence such companies and corporate were given the separate personality so in this way these bodies are now called as legal persons. Today also the protection of animals some laws have been made which give rights to the animals. In Hindu Law. ANIMALS:. There are the following two types of persons :i) NATURAL PERSONS ( HUMAN PERSONS):. Born child. but a child in the womb is natural person because he bears the rights and duties under law. deaf persons. 2. 1.

law gives them rights and duties like of natural persons. These companies or corporations etc. Dead Person:. It is of two kinds :1.In law dead person has no existence as the dead person has no personality. Secondly if any person defames the dead body of deceased person then such person is liable for damages under law. 2. being head of state he is known as a legal person.first a human being second as head of state.Legal person are artificial or imaginary beings to whom law attributes personality by way of fiction.Main form of legal personality is the corporate personality. King of England has two personalities. Corporate sole: means a single body representing any state or any other object. ii) LEGAL PERSONS:. Corporate Aggregate :. First if any person defames the dead person and such defamation lowers the reputation of the family members of the dead person.4. e. companies are registered according to law of societies or according to law of land. But in certain cases they are considered as person in law. It is called series of the successive persons. are legal persons. CORPORATE PERSONALITY:. then a legal action be taken against the wrongdoer who defamed the dead person. . The post of corporate sole remains always alive while the human beings who sit on the post may die.g. They represent only one man in successive period. Similarly he President of India and the Governors of the states are legal persons. i.. The King of England or the President of India is the corporate sole.g.e.When law confers single personality to a group of person then it is called corporate aggregate e.

INTRODUCTION:.3. It means what the common people think or behave is the base of law. which studies law from the past history.Jurisprudence is a subject in which the definition nature and the sources of law are studied various writers under various schools have defined law. This theory of Volkgeist is bassed on the historical method. He added only the law in the study of jurisprudence. Austin under Analytical school says that law is the command of sovereign. OR Discuss the philosophy of law as given by Sovging under Historical School? OR Write critically note on the following Soveging (Volkgeist Theory).” HISTORICAL SCHOOL Historical School is a branch of Law. The advantages of the corporate personality because they represent an association of persons as a single person which is helpful in business. It is adopted in the shape of Indian companies Act 1956. It says that law is based on the General Consciousness of people.   13 Lay down the essential features of the Historical school. The consciousness . Soveging is the father of it. It is same as in Roman Society. Law shows the general nature of the common people. Discuss the views of Society in this regard. According to Soveging. In the ancient time the Karta represented the whole Hindu family who was considered as legal person. But under historical school Soviging says that law is the general consciousness (Volkgeist) of the people. “ Law is the General consciousness of he people.

the concept of individualism came into existence. Hngo were the writers who said that law is the general will of the people or law is based upon common people and the feelings of the common people. Law has no universal application. Law develops like the language and manners of the society. Due to this concept the revolutions came like French revolution. custom. There was no person like sovereign for the creation of law.started from the very beginning of the society. usages conventions etc. Barke. It differs from society to society and state to state. So law has a natural character. CAUSES OF COMMING OF THE HISTORICAL SCHOOL The Historical school is just opposite to the Analytical school in 18th and 19th century. “Law is the creation of climate. At that time Soveging montasque. “ Law develops like language and the manners of the society and it develops according to suitable circumstances of the Society. According to Burke. The law in the ancient times was based mainly upon simple rules. In this sense it is dynamic organ which changes . “ Law is the product of the General process. Russian revolution etc. These things were later on converted into set form of law.” According to Hugo hag. Montasoque has said. The necessary thing is the acceptance and observance by society. In the same way the languages differ from society to society and locality to locality. local situations and accidents. regulation. These things were later on developed by the jurists and lawyers.

In ancient society law was not in a natural stage or no in a set form. He has given the Volkgeist theory. the jurists and the lawyers make it into set form. In this way law is national character. Law has a national character. Law is pre historic: means law is found and is not made. local customs. Al these things effect law and make it suitable to the society.and develops according to the suitable circumstances of society. SOVEGING :. situations. custom etc. according to this theory law is based will or free will of common people. Law is based upon the national conditions. According to this theory. The main features of the Soveging theory is :1. 4. In other words. Later on with the development of the society the requirements and the necessities of the society increased.Soveging is considered as the main expounder or supporter of the historical school. Law develops like language and manner of the society. law is based upon the general will or free will of common people. 2. 3. In this way law has no universal application because it based upon the local conditions local situations. He says that law grows with the growth of nation. local circumstances. elements etc. Due to this it was necessary to mould law in a set form. He says that law grows with the growth of nations increases with it and dies with the dissolution of the nations. IMPORTANCE OF CUSTOMS . Consciousness of people. circumstances. A law which is suitable to one society may not be suitable to other society.

Many Things Unexplained :. and on the other hand. 2. ‘Volksgeist’ not the Exclusive Sources of law :. CRITICISM OF SOVEGING’s THEORY Savigny’s theory has been criticised on the following grounds:1.According to Soveging customs are more important than legislation because customs come before legislation. Such a view will not find favour in modern . 4. i. 6. In other words the customs are the base of legislation.e.Legal developments in various countries show some uniformity to which he paid no heed. 5. Inconsistency in the Theory :.Soveging encouraged juristic pessimism. Juristic Pessimism:. it is a clear cut inconsistency in his ideas.There are many technical rules which never existed in nor has any connection with popular consciousness. What is national and what is universal. argued that some of the principles of Roman law were of universal application. Sometimes customs completely opposed to each other exist in different parts of the same country which cannot be said to be reflecting the spirit of the whole community.Many customs are adopted due to imitation and not on the ground of their righteousness. Thus. Customs not Always Based on Popular Consciousness:. Savigny Ignored Other Factors That Influence Law:The law relating to trade unions is an outcome of a long and violent struggle between conflicting interests within a society. 7.Saveging asserted that the origin of law is in the popular consciousness. 3. Legislation must accord with popular consciousness.

CONCLUSION From the facts mentioned above we have gone behind to see the history of the society to check that what was the position of law in the ancient time.times. No legal system would like to make compromise with abuses. The binding force of decision is called precedent. These independent decisions becomes precedents which are followed later on by the same & Lower courts. How and in what form law was prevailing in the society? To find the solution of the questions the supporter of Historical school found that law is the general consciousness of the common people or it is the free will of common people on which law developed and converted into a set of form of law. The English and American law is mostly . People are accustomed to it. Sometimes act may be insufficient for the case or there may be an vacuum or any thing missing in the act. Under these circumstances the court can apply their own mind. First source is customs and the third source is legislation.   14 Define Precedents? Lay down the importance of the precedents as the source of law. The decisions of the higher courts are binding on the lower courts. In what sense they are binding? Do the judges make law? INRODUCTION:. The precedents play an important role in the development of law. This method of decision is also called as Judge made law.Precedents literally means previous judicial decision. It is the second important source of law.

America and China also follow the previous decisions as the source of law but the continent countries like Germany.141 of Indian Constitution says that the decision of the higher courts shall be binding upon the lower courts. Precedents are suitable to the present situation means after some times the circumstances of the society can change with the change of time so the precedents they are more suitable and fit for the present time and circumstances. Particularly the precedents means the Judge made law. The method of taking precedents as source of law is called inductive method.Precedents are a very important source of Law. According to the Oxford University. England. 2. so they have certain advantages as: 1.based upon the precedents. Japan does not accept the previous decisions as the source of law. In India Art. When the court gives its own ideas for creating new rules.” Various writers have given the definition of precedents is conduct of court adopted by the lower court in similar facts and in similar circumstances in a case. it is a kind of respect to elders. while the method of continental countries not following previous decisions of the court is called deductive method. . MERITS OF PRECEDENTS:. They play an important role in the development of law. “Precedents means the previous decision case given by a court according to rules. Precedents show true respect to the ancestors means by adopting the previous decision of the higher court to decide the present case.Precedents are a decision of a court which is also called judicial decision. DEFINATION OF PRECEDENTS:.

ii) Sometimes the decisions of the higher courts contradictory to each other. For the answer of this query different views have been given by the various writers and jurists. Precedents bring certainty in law. Precedents are convenient and easy to follow because they are available in the form of written reports. DEMERITS OF THE PROCEDENTS:. Now the question arises that in what sense and when the precedents are binding o follow. 5. 4.The precedents is an important source of law. 6. It is available in the form of judicial decisions.3.lthough the demerits are very few but these are as under :i) The decisions are given by the human beings while performing the duties as judge. Precedents are based on customs means the law in the form of act which based upon customs. his decision may not be suitable to all persons who have different mind and thinking. This will be a bad effect on Judiciary. Precedents are the best guide for the Judges: They play an important role in the judiciary because the precedents are the guide lines for the courts. Court interprets the customs while interpreting any act. It becomes harder to another judge to apply the same verdicts as a precedents of higher court iii) Sometimes the higher courts give a wrong decision and over pass the important factors of the case due to one reason or the others. PRECEDENTS ARE BINDING:. once decision is given in a case there would be no need to repeat all precedents in any other case if it resembles to the former case. No doubts the .

Precedents is itself complete certain.precedents is not binding like warrant issued by a court of law. ii) Obits decidendi:-It is also a part of the decision which is irrelevant to the facts and circumstances of the case. reasonable given by a competent court of the country. Precedents are given by courts. The judge takes into consideration the social conditions. Precedents are the secondary source of law. There are two parts of it :i) Ratio-decidendi:. principal of natural justice that is why the Judges play an important role in the development of legal system. Custom is conduct adopted by people of society. It is the main part of the case in judgement and the ratio decidendi of the decision is binding in the form of precedent. Custom is given by people in general. It means precedent can be over ruled if they are not right or appropriable to the case to be decided but warrant has to be followed by all to whom it is applicable. DIFFERENCE BETWEEN CUSTOM & PRECEDENTS CUSTOMS PRECEDENTS Custom is primary source of law. morality. Custom is based upon the reasoning of common people of the society.means reasons which leads the court to reach the decision. . If the facts and the circumstances of the cases are materially similar then the precedents or previous judicial decision is applied in the later cases and are applied only in the form of ‘ratio decidendi’ of previous cases. It is not necessary that in the case which is to be decided the circumstances and the facts must be the same as in resembling case.

The public through the decision of courts come to know those customs. The judges only to explain these laws and customs. Judges are not the law makers:. It can be ignored if it gives un-justice. It was held that. They not only interpret or explain but also make the law. This theory is also known as declaratory Theory. “that legal system is . A case: Rageshwar Parsad v/s state of West Bengal.” Dicay says that. According to Coke hate and Dr. The court does not create Law. ORIGINAL LAW MAKING THEORY This theory is opposite to the first theory.Carter. The judges while deciding the case only applies the existent and relevant customs for deciding the cases. DO JUDGES MAKE LAW:There are two theories about this purpose one theory says that Judgs do not make laws and other theory says that Judges in fact are the makers of Laws. It says that the Judges are the real makers of the law. According to this the judges are not makers of the laws which they are already n existence.Precedents are based upon the reasoning of a individual Judge or very few judges. According to Salmond: who is the main supporters of this theory says. Common Laws is based upon custom. that the law is created by the King or by the Parliament or by the Legislature bodies.The supporters of this theory (historical school) says that all the laws are based upon customs. It means that Judiciary is not the maker of law. “ That the decisions of the courts are a great contribution to the legal system. Customs have more value then precedents and cannot be ignored.

15 Discuss the main features of the ‘Pure Theory’ of Law. This theory resembles with Austin’s command theory because in Kelson’s theory there must be sanction behind law. So Kelson also get influenced from . So he gave power to the international law and avoiding the destructions of the world.” CONCLUSION:. Critically examine the view of Kelson given under pure theory of Law? Introduction:. How it resembles with Austin’s command theory. This theory is also known as “Vienna School” because Kelson is the productor of Vienna University. which is known as pure theory of law and grandnorm theory .At the time of Kelson there are Ist world was which destricted the property of human beings at international level. Kelson is affected by local conditions. After studying all these conditions he gave this theory of Law. thoughts and gives new touch ideas which play an important role in the development of law.The conclusion or the correct view is that we cannot ignored any of the above theories because both are correct and complements to each other and both should be taken.the best part of the law of England which is judge made law. Austin gave it the name of command theory and Kelson gave it the name of grandnorm theory. Concept of pure theory of Law:. natural condition and international condition.The Pure Theory of Law is given by Kelson. No doubt that a Judge can only to explain or to interprets the existing laws but at the same time he also creates the new ideas. Secondly during that time many countries adopted written constitution.

Any others like moral rules. If this legal norm is not obeyed then one person will be punished for it. When he excludes morals relation or ethics from the field of law. So it means a great law the superior authority from which law comes out. In laws only those rules are taken which are related with legal aspects. It is in primitive stage. According to him written constitution is the highest authority in the country which is known as grandnorms. in USA written constitution is grandnorms and in India too written Constitution is grandnorm. ethical rules do not come under the concepts of grandnorm.System of normative rules was Hierarchy. The source of power in a state for all bodies is written constitution. In hierarchy system there is one highest authority and all other are lower authorities. Accoding to Kelson law is a motive nor science. State is not above the grandnorm. Grandnorm Grand means great and norm means Law. . it means science of norms. This force lies in the grandnorm. Sovereignty also liven in grandnorm.these written constitutions and gave his own theory which is based on grandnorms. In England the Parliament is a grandnorm. He also says that at this time international law is immature. He compared the grandnorm with written constitution. System of Normative Rules:. Internation Law:. religious rules. It is developing. This highest authority was grandnorm which was in the form of written constitution and other authorities are below the constitution. Here Kelson is equal to Austin.Kelson says that norms have a force behind it.

No difference between law and state:.Kelson says that there is no difference between law and State between because they get power from the same grandnorm. 3. 2. So the Sovereign is not separate and superior from the people of the country. Grandnorm is in the form of written constitution. sovereignty. or any such legal system in a country.Austin says sovereign is a politically superior person which keeps controls over the politically inferior persons.According to Kelson each country has the formation of grandnorm according to local conditions. But Kelson says that the power of sovereign lies in the people. Law comes from the grandnorm and the state also comes from the grandnorm. 4. international law private and juristic law. They are not concerned with the origin of the grandnorm.Kelson gave his view under this theory about State. Elements of Pure Theory:. Grandnorm as a source of law:. No difference between public law and private law:The public law is related with the state and the private law is related with the individuals as Kelson says that there is .Nature of Grandnorm:. Sovereign is not a separate body:. Feature of Kelson’s theory:1.Grandnorm is the source of all laws. public and private law. which contains rules. public and private rights. They are not concerned with the goodness or badness of the grandnorm. In this way the grandnorm is the main source of all the laws in the country. The duty of jurists is to interpret the grandnorm in their own language. Any such body.

d. which law is a rule that regulates the state. It means it is in developing stage. Grandnorm is a vague concept:. The base of grandnorm in the form of positive norms or the rules based only on legal order is not clear.no difference between public law and private law. The rules. 5. No difference between state and law:. Customs and religion are not the norms. So this is also enforceable.this point is also criticised by various writers. Supremacy of internationally laws:. Difference between public law and private law:Kelson says that there is no different between public law . Criticism of Kelson’s theory:. He also said that the internaiton law is in primitive stage or immature stage. b. which are not linked with morals ethics. The law which creates a contract between individuals is called private law.Kelson advocated the supremacy of international law. Law as a separate thing from the State. c. State is body is law in. It cannot be applied where there is no written constitution.The concept of grandnorm is not clear. One day will come when international law will get equal to that of municipal law. But even upto now we see that is no force behind international law. which are as under: a.The main prupose of Kelson was to decrease the tension at world level because there was Ist world war which destroyed millions of persons and property. Interantion Law is a weak law:.In-spit of having good concept of pure theory given by Kelson some of the criticism faced by him. But we can not ignore the role of these norms in the development of law.

Roscopound and Camta are the supporters of this school. one cannot exist without the other. It comes after the Analytical school and Historical school. The theory of Duguit under sociological school is a social solidarity.Although Kelson has been criticised from various angles yet he had contributed a lot in the development of the society. Roscopound and Inhering gave these view in the sociological school. Many writers like Duguit. This school is related with society. Law and society both are the two sides of the same coin.He also customs as a source of law while we see that customs are the source of all laws. Conclusion:. This can resemble to Austin also Kelson is also limited with the law. Its seeds were found in the historical school. According to this school law is numerator of society.and private law. Scocial solidarity means the greatness of . e. Law is very necessary for regulating the society. Duguit. If there is law there should be society and if there is society there should be law. Thus the concept of grandnorm gave power to the public at large as well as at national level.   16 Discuss the Salient features of the Sociological School of Jurisprudence? OR Salient features of the Sociological School of Jurisprudence? Introduction:. Which is also not right in the modern days. His main purpose was to stop destruction of any world war. Customs and Precedents ignored:.The sociological school is one of he important branches of law.

society.Which are fulfilled by mutual assistance. 1. Division of labour will fulfill all requirement for the society. So state does not have a special status or above status from people. Common Needs :. Adverse Needs.Which are fulfilled by the exchange of services. 2. DIFFERENCE BETWEEN PUBLIC & PRIVATE LAW . Even a state cannot exist without the help of other state. The dependency is called social solidarity. ESSENTIAL ELEMENTS OF DUGUIT THEORY OF LAW 1. No difference between state & society: State and society are a group of persons. The sovereign of a state lives in people or in the will of people. Main purpose of the society is to save the people. One cannot produce all things required for him. 2. So he has to depend upon others. For this purpose the division of labour is necessary. This responsibility is also lies upon the state.:. No one can live without the help of other. Sovereign and will of people: Sovereign is a politically superior person. Duguit said that there are mainly two types of needs of the society:1. Individual cannot fulfill his ambitions alone.Mutual Inter dependence : In society all persons are depending upon each other. Adverse Needs. Duguit says that sovereign is not superior to people. 3. State should make law for the welfare of the people. This philosophy or views is called social solidarity.Common Needs 2.

Duguit has not given the authority that who will explain the solidarity because Duguit did not recognize sovereignty.This theory is not clear for a common person. 2.Duguit says that there is no difference between public law and private law because the aim of both the law is to develop the social solidarity. Public right and Private right are also not same :. In Duguit theory there is no place for such authority.There must be an authority which passes the law. Custom ignored:. CONCLUSION No doubt Duguit was a sociologist because he gave a lot of development to society. CRITICISM OF DUGUIT’S THEORY 1.Public law and Private law are not same :. 5. The social solidarity itself .The theory of social solidarity is vague:. In this way the theory of Duguit is not suitably in modern times. It means person have only duties not rights. We can imagine that Judge will explain the standard of social solidarity. One cannot gain anything from this theory so this is vague theory. But there are no guidelines for the Judgess 3.The right of society is public right and the right of common people is private right.Who will decide social solidarity :. Pubic law and private law are meant for people. Public right and private right or people have only duties and not any right. 4.Custom is the base of any law but Duguit ignore these customs. There is no difference between public right and private right. According to Duguit there is only one right that is to serve the people.

Possession is the first stage of ownership. The concept of ownership was absent in the ancient society. So this way after the progress of the . Here he discards natural principal but the theory of the social solidarity itself is based upon natural law. Slowly and slowly as the society developed the concept of possession also developed. INTRODUCTION: Ownership is linked with possession. Ownership is ultimate and final right for disposing the property. It means to transfer that property in any way. The idea of ownership came into existence.contains the welfare of the people. which demands that the people should served properly according to their needs. In this way Duguit put out the natural law principal from the door and accepted through the window. However the contribution of Duguit is accepted by many writers and some of them also adopted this theory. It means for ownership possession is necessary. Ownership is a relation ship between the person and the thing. Duguit said that law should be according to the social solidarity. For ownership there must be a thing and the owner of thing. Ownership gives the full right over the thing. 17 Define Ownership. Discuss the various kinds of ownership. Possession and ownership both are two sides of the same coin and one cannot exist without the other. Distinguish between possession and ownership. There was also no concept of possession too.

Means a property which is in the control of a person is his property. Person is called owner and a thing is called property. Holland and Salmond defined the concept of ownership. All concepts of law begin from the period of Roman society.concept of ownership the person became the full owner of his property. The concept of ownership developed in the form of a right over the thing. VIEWS OF MODERN & WESTERN JURISTS The western jurists like Austin. residence .” This definition resembles with the definition under Hindu Law.It means to use that thing in any way whether to use it for agriculture or for industry. 1. In Hindu Law ownership is said a .Hindu Law is also considered as the most ancient law in the world. Dominion is distinguished from possession.According to him ownership is the relationship which exists in between the person and the thing. Austin :. Austin says that in ownership a person has the following relations with the thing.Before to define the ownership we have to discuss the various kinds of law :Roman Law :. HINDU LAW :.As evident from history that the Roman Law was the first law in the world. It is considered the ancient law. DEFIN ITION :. Possession means to have possession over a thing but dominos means to have a right over the thing. Under the Roman Law the concept of ownership is defined in the form of dominion that means to have the right control of a thing. In Hindu law the concept of ownership also has been discussed. “According to Hindu Law ownership means a relationship between person and a thing.Indefinite Use :.

Un-restricted power of dispose:. For this purpose both elements of possession corpus and animus should be there. in the interest of public policies. But right always represents a thing which is not in physical existence like copy right and allowances are always thing which are called property. 4. But under art. The definition also contains the following conditions :1.19(2) of the Constitution reasonable restrictions can be imposed by the Govt. After his death it will go to his heirs so there is no time limits. Disposal. In view of the above it is learnt . Enjoyment 3.Domination :.Un-limited duration of time :. 3.. According to Holland: He defined the ownership as a plenary control of a person over a thing. Thing always represents physical objects.Means to transfer that thing or property according to his choice.Salmond defines ownership as a relationship between person and the right. If the conditions are there between person and the thing and then the person is owner of that thing.Possession 2. And which are not in physical existence.means the right of transfer of his property will remain always in the name of owner. 2.but there is a restriction that one cannot use one’s property in such a way which destructive in the living of others. He can sale or to mortgage even to give on lease or gift to anybody. According to Salmond :. Salmond has included all those right which are property in the concept of ownership. Right means to have a thing under possession.It means to have control over the thing.

Ownership is either vested or contingent it is vested ownership when the title of the owner is already perfect. When there are limitations on the user duration or disposal of rights of ownership the ownership is limited ownership. Legal and Equitable ownership:. Ownership of copyright a patent or a trade mark is incorporeal ownership. Vested and contingent ownership:. 4. Absolute and Limited ownership:.Legal ownership is that which has its origin in the rules of common law.means owner is one in whom are vested all the rights over a thing to the exclusion of all or when a person has an absolute right over his property known as absolute ownership. Ownership of a house. 3.The general principal of ownership is that vested in one person only. 5. 2. Sole and co-ownership:. If only one person have right of ownership that known as sole ownership and where two or more persons have the right of ownership then know as co-ownership.that Austin and Holland definitions are not complete. a table or a machine is corporeal ownership. Corporeal ownership is the ownership of a material object and incorporeal ownership is the ownership of a right. It is contingent ownership when the title of the ownership is yet imperfect. But some times it vested in many persons in other words two or more person have the right of ownership. Corporal and Incorporeal ownership: Corporeal and incorporeal ownership also called material and immaterial ownership. But salmond is completely perfect in his definition. Equitable . KINDS OF OWNERSHIP There are various kinds of ownership which are as under :1.

conveyance deed etc.3. 5.e.Ownership tends to realize itself in to possession. 6. 4. 3.e.ownership is that which proceeds from the rules of equity.Ownership most of the cases involves a technical process i. If all conditions are there then it is called Ownership. 5.Possession dominion corpus and animus are necessary. DIFFERENCE BETWEEN POSSESSION & OWNERSHIP POSSESSION OWNERSHIP 1.Possession does not give title in the property defacto exercise of a claims 2. 2.Possession is a fact.Possession is a primary stage of ownership which is in fact. CONCLUSION The ownership is a relationship between person and the right. Ownership is a right and superior to possession.Ownership they are not necessary because law gives full rights. complete thing.Possession tends to become ownership. 7. Possession is nine points of law.Transfer of possession is comparatively easier. 6. 4. Ownership is in right. These rights include the right of possession enjoyment and disposal of the property. . Legal right may be enforced in rem but equitable rights are enforced in personam. 1.Ownership always tries to realize itself in possession i. 7. While in ownership it gives title in the property dejure recognisation.

Sutras and Smiriies and these were mainly based on customs.Hindu Law :. Those customs which were reasonable continued them as law by the Roman jurists. The sociological school also gives importance to law with relation to society. Custom is considered as the most ancient and most important source of law. As in a case of Maduri v/s Motu Ram Linga. But the historical school again gave the importance to custom. Judge made law and legislation have become over powered to that of customs. It is also considered that law basically comes out from customs. VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE OF LAW. In the past customs were prevailing for the control over the society. It was held that even custom power over the state. The followings are the systems which recognized custom as a source of law : 1. 2. Discuss its importance as a source of law and also compare with precedents.Hindu law is also to be considered as the most ancient law. His sources are Vedas.Romal Law :. All personal laws of Hindu are based upon custom that is why . Source means origin of a thing.Roman Law is known to be the oldest one in the world.e. Austin was the first person who discarded the value of the custom.18 Define Custom and essentials of a valid custom. In the modern times the precedents i. This law is mainly based upon customs of the society. INTRODUCTION: Custom is a conduct followed by persons in the society.

Particularly ignored customs for the purpose of law.Lord Warren Hastings and Lord Cornwallis did not attack on customs of Indians.Mohammedan:. During th Muslim period in India their customs were protected by State. The British rulers in India also protected customs and personal laws which were based upon customs.National Customs :. English Law :.Those customs which are related to the nation and are applicable on the country’s people. 3. Black stol common includes written law and un-written law. CLASSFICATION OF CUSTOMS Mainly the customs are of four types :1. In this way we can say that customs in Mohammedan law also played an important role. The common Law is customary law. In this way English law also gave importance to the customs as a source of law. The traditions which were not opposed by the prophet Mohammedan were recognized as law. Customs which were reasonable and not against the public policies were recognized as law under English Law. Family Customs :.” The written law is based upon the general customs. 4.Those customs which are related with a particular locality.Those customs which are related with a family and have application on a particular family. 3. Manu said One should follow the given path of their ancestors. According to Pollock. . 2. This was nothing but the reorganization of customs.Which is known as common law and in the shape of un-written and based upon customs and conventions. Local Customs :.

Peaceful enjoyment :. 5. Conventional Customs :. Certainty :. ESSENTIALS OF CUSTOMS 1.Customs must be certain in its nature. . Not against the State of Law:. 10.The customs must be reasonable. WHEN DOES A CUSTOM BECOME LAW.Customs should not be against the morality. Continuity :. 3. Immorality:. The customs must be ancient.Custom must be enjoyed peacefully for a long time without an disturbances. Public Policy:.Customs must be continuing from the time it was recognized as law.It must not be against the public policies or against the will of people. There should be no contradiction in observing customs. 2.g.Customs must be followed by the society. 7. Reasonable :. In India there is no fixation of such time limit.It means oldness of the customs. If there is break for sometimes it does not mean that the right thing has been lost. It should not be against the law of the land. There is no limit of time for the antiquity of custom. Consistency :.These customs based upon conventions e. Followed :. 6. There should not be any break or interruption.Customs should not over-ride the legislation .4.There should not any confliction for its reorganization as a law. It should not be un-reasonable and against the public feelings. Antiquity :. a bigger part of English Law based on customs and conventions. 8. 9. 4.

ANALYTICAL VIEW:.Austin and Gray are the supporters of analytical school. Custom is one of most fruitful sources of law. HISTORICAL SCHOOL:.Sovereign as the supporter of Historical school says that custom is a main source or base of law He says that “ consciousness of the volkgiest is the main source of law. They say that a custom becomes law when it is recognized by the sovereign in the sense of positive law only. So both of the view are combining to each other and are correct for a custom as source of law. It means that if a custom has been accepted or adopted or recognized by the sovereign then it will become a law otherwise there will be no value of the custom in judicial system of the society. The legislation while making a law recognizes the customs of the society. According to Historical school when state or courts make law they give importance to the customs. CONCLUSION Custom occupies an important place as a source of law even to these days because most of the material contents of developed system of law have been drawn from ancient customs.” Custom is superior to Judge made law or legislation. The courts also while giving the decisions recognized the customs prevailing in the society. According to Analytical school a custom when recognized by State or sovereign becomes law. .

But in legal sense a right is a legally permissible and protected action and interest of a man group or state. In other words the subject is that the person whom the right is vest.This is the subject matter of the right alongwith the nature and limits of that right. fair. Definition According to Austin :. He further define right is a party has a right when others are bounds to obligesed by law to do or not to do any act.19 Rights and duties are co-relative.“Right is not an interest itself but it is the means by which the enjoyment of an interest in secure. Subject:.“ The essence of right not a legal guarantee in itself but a legally guaranteed power to realized an interest. opposite of wrong.Right and duties are the very important element of law. The term ‘ Right’ has various meanings such as correct.The subject of a right is concerned with the person legal and artificial or a group who legally is entitled to seek the privilege and benefit of against other.It means that the person upon whom falls the corrective duty. Introduction:. just and such like other expression etc.” According to Salmond : “ It is an interest recognized and protected by the rule of justice / law. 2.” According to Prof.“Right is a standard of permitted action within a certain sphere.” According to Gray:. OR Distinguish between claims liberties powers and immunities also explain the correlative of each. Discuss.” ELEMENTS OF RIGHTS 1. opposite of left. 3. The person of Incidence :. Allen:. . Content:.

e. THEORIES OF RIGHTS:.The object of the right may be material or immaterial determinate or indeterminate. In case of right the purpose of law . self expression or positive declaration. “ that the will is the main elements of a right. A right may has its independent existence and type of assemblies with other rights. The definition of law is in term of ‘purpose’ that law has always a purpose. The definition of right given by Austin and Holland. 6.The will theory says that the purpose of law is to grant the individual i. interest or such like expression of the people in a State.” 2. “ that right in term of will. A great german jurists defines about the legal right as. RIGHT is a general o specific type of claim. CHARACTERSTICS OF RIGHTS 1. Therefore right emerges from the human will.” Pollock says. 2. 3.” According to him the basis of right is “Interest” and not “will”. Basic philosophy or the fundamental concept of right remains permanent but with the time being it is subjected to incorporate the allied changed in it. liability or disability on the part of those against whom such right is conferred. The realization and scope of a legal right depends upon the type of society and the nature of interest. 4. Will theory:. “ A legally protected Interest. The right is duly recognized and approved by the State through its agencies.Interest is the basis of right.There are two main theories of legal right:1.OBJECT:. 5. The Interest Theory:. A legal right is expressed a deep correlation with a corresponding duty.

These interests are not created by the State but they exist in the life of the community itself. 4.According to Gray. There are some scolers who define Duty as following:Definitions of Duty:. 2.Duty classified into two categories.is to protect certain interest and not the wills or the assertions of individuals. 7. Perfect and imperfect Right: Means which has a correlative positive duty. According to Rose Duty is the Pre-dicament of person whose act are liable to be control with the assistance of the State. TYPES OF RIGHTS 1. 3.The term duty may be used in various form as an obligation. 8. Classification of Duties:. There are as follows:Duties . Right is repropria and Right is Re-aliena. Vested and contingent right. Duty Introduction:. Negative and Positive Right:-Positive means related to duty whereas negative means not related to duty. as responsibility and accountability. As per Hoffield The duty is the correlative of Right. Equitable and legal right. Propriatory and personal Right. Right in Rem & Personam: 5. Duty is the act of or forbearance which an organized society used to impose on people through state in order to protect the legal right of other. 6. Primary and secondary Right: They are known by Antecedent and remedial rights names also.

The following objects describes the correlation between right and duties:i. Duty may be fundamental. Relation between Right and Duties:. place to place and circumstances to circumstances. f. d. The concept of duty is affirmed and protected by the law of the land where it exist. e. A secondary duty is that duty whose purpose to enforce some other duty.Positive And Negative Duties Secondary Duties Primary and 1. A right is indispensible without any duty. A duty and right has separate and independent existence. It may be dependent and independent. The concept of duties is a changing process which arises from time to time. Duty in most of the cases creates an absence of right against some person. Positive and Negative Duty:. Negative duty implies some forbearance on the part of the person on whom it is imposed. c.There are following essential of duty:a.A primary duty is that which exists perse and independent of other duty. b. iii. Primary and Secondary duty:. A right procreates duty and vice-versa. It consists an obligation on the part of someone and confirm a privilege upon other. . ii. legal or moral in character. Essentials of duty:.A positive duty implies some act on the part of person on whom it is imposed. 2.

Right/Claim Liberty or privilege Power Immunity Duty No claim Liability Disliability (Jural opposites) (Jural correlative) Conclusion:. What special changes have been brought out by law?” INTRODUCTION:. These are recognized by law for maintaining the society very well. . 20 Define law as an instrument of social change.OR Your choice Even though right and duties are opposite points but there is a great relation between two relations.Law as a command as it introduces subjective considerations whereas the legal theory is objective. The right and duties has a relation of Father and Child. Science as system of knowledge or a totality of cognitions systematically arranged according to logical principles. The laws of natural science are capable of being accurately described determined and discovered. So right and duties cannot be separated form each other. Husband and Wife because there is no father without child and no wife without husband. There is no right without duty and there is no duty without right. Notion of justice as an essential of law because many laws though not just may still continue as law.Right and duties are correlative of elements of each other. The aim of law as of any science is to reduce chaos and multiplicity to unity. A law is valid because it derives its legal authority form the legislative body and the legislative body its own turn drives its authority from Constitution of India.

4. it found and not artificially made. Savigny justified the adoption of Roman Law in the texture of German Law which was more or less defused in it. Law protects Social Interest:.According to Ihering the development of law like its origin is neither spontaneous nor peace full. But like a language it varies with the people time and need of the community. law is normative science but law norms may be distinguished from science. .while emphasising Volksgeist as the essence of law.The following are the elements which have been helping the law to be an instrument who bring the social changes:1. 3.Law is a such type of instrument which protects the social interest of the people.As a result of social changes comes through law that is social purposes comes in conflict with the duty of the State is to protect and further social purposes to suppress those individual purposes which clash with it. A social Utilitarian:.The system develops aspects of Austinian positivism and combines them with principles of Utilitarianism as established and developed. Law as an instrument of Social Change:.According to Kelson. Law is to serve for social purpose:. Therefore. It is the result of constant struggle with a view to attain peace and order. law is coercion organised in a set form by the State. With the growing complexity of law the popular consciousness as represented by lawyers who are nothing but the mouth peace of the Consciousness. Law is the guarantee of the conditions of life of society. 2. Definition of Law:. Law has unconscious organic growth. Law is not universal in nature. Law is the result of Constant struggle:.

good. possession and declaration of will . nor in judicial decision but it lies in society itself. Law also to serve this and:. This is because of to use the law as an instrument which brought the Social Changes.Law is the rule which men possess not by virtue of any higher principle whatever. . Law is to found in social facts:. 5. It is a social changes.It means that law in a society should be made and administered with the utmost regard to its necessity. Living law is the fact that govern social life:. 7. nor in juristic science. interest or happiness but by virtue and perforce of the facts because they live in society and can live in society. 8. Law according to the requirement of Society:.AS per Ehrlich.The contribution of law in the social changes is a great and its approach is more scientific and comprehensive. The study of law in social context and emphasizes its close relation with the life of society. Conclusion:.According to Bentam it is the persuit the pleasure and avoidance of pain. That the law of community is to be found in social facts and not in formal sources of law.The essential body of legal rules is always based upon the social facts of law and the facts of law which underline all law are usage. domination. 6. He says at present as well as any other time the centre of gravity of legal development lies not in legislation.