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
2. In France :Droit
3. In Rome :Jur.
4. In Muslim :Hukma
All these above words conveys different meaning. And
we can say that a definition which contain all the
above meaning and all elements would be a good
definition of law. Endlly definition given by every
person is always different. Because definition given
by a lawyer a philosopher, a student or a lecturer is
always different. A definition which doesnt cover all
these elements would be an in-perfect definition.
DEFINITION OF LAW:- The word, 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. Some of
them are as under:According to Roman Scholars:- The law is concerned
with the parameters which is right or wrong, fair and
unfair.
ULPIAN:- The famous Roman scholars and a Juries,
he defined the term , Law as standard of what is just
and unjust.
According to Salmond:- The law is the body of
principals recognised and applied by the state in the
administration of justice.
According to Positivist Definition :- They are known as
a modern thinkers and they propounded a new school

in the Law namely, Analytical School. This school is

also known as a scientific school. Benthem, Austin
and Kelson define the term of Law in the following
manners:1. AUSTIN:- Austin is the father of English
Jurisprudence and according to him, Law is the
command 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 dont obey this duty then
there is a sanction.
2. As per Benthem:- 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, which means that the purpose
of Law to reduce the pain and harms and pleasure in
the society.
3. According
to
Kelson:The
law
is
depsycholigically command. He is concern with those
commands which purely rest upon the formal
expression of law.
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, that

is why heading is given them to sociological. And we

shall discuss some of true definitions :DUGUID :- According to him the law is a set of sosme
formal norms aiming an creation of soliditary in
society.
IHERING :- 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.
EHRLICH :- Ehrlich lays down, that the law consists
of norms coverings social life. But only the living Law
is the actual law.
ROSCUEPOUND :- According to him Law is an
instrument for balancing, 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.
ii) Before the State there must be a society.
iii) State & society develop a legal order to be
followed.
iv) And finally law always has a purpose.
CONCLUSION:In end we can say that law is the important and
necessary part of the state and developing the human
beings. Law gives rights and duties to human beings.
And law is the essential part of a State. Law is an
instrument of social control as well as social change.
3 Define Right and discuss the essential elements of
legal right. OR

What is a Legal Right? Discuss the characteristics of

a legal right.
INTRODUCTION: Right generally means an interest
or facility or a privilege or immunity or a freedom. In
this way right for the purpose of jurisprudence is
called legal right. Austin in his theory has separated
the subject matter of jurisprudence from morality or
materiality. He gave the concept of positive law. So
here also right means positive law right only, which is
term of legal right. Legal right is recognised by law. It
is different from moral right. Moral right if violated is
called moral wrong. The violatin of natural right is
called natural wrong. 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.
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. According to Salmond :- Right is
an interest recognised and protected by the rule of
right. Here rule of right means rule of law or law of
country. When an interest of a person is protected by
the rule of law then it is called right. Salmond
definition involves two points, firstly that right is an
interest and secondly it is protected by rule of right. It
means that it relates to his (person) interest i.e., life
liberty, heath and reputation etc. Grey has criticised
the interest theory propounded by Salmond, Ihering
and Heck and he has supported the view that right is

not an interest but that means by which the interest is

secured. According to Holland, right is as a capacity
residing in one man of controlling, with the assent and
assistance of the state the action of others.
According to Paton : That legal right is that it should
be enforceable by the legal process of the state. He
however says that there are three exceptions to this
rule :1. It is not necessary that the state should always
necessarily enforce all the legal rights.
2. There are certain rights which recognised by law
but not enforced by it for example : In a time barred
debt, the right of the creditor to recover the debt is an
imperfect right
3. There are certain laws which do not confer right
of enforcement to the courts, for example :
International Court of Justice has no power to compel
enforcement of its decrees under International Law.
THEORIS OF RIGHT :- There are two theories of right
:
1. WILL THEORY : This theory is based upon the
will of human beings. It says that a right reflects the
inner will of a human being. Austin, Holland, Halmes
and Dov recognised this theory of right. According to
them a person wants o remain in the world freely and
according to his own choice because a man is born
free.
2. Interest Theory:- This theory says that interest is
the base of the right. It is only interest which is
recognised by law. This theory reflects the external

nature of the human beings. Supporter of this theory

say that there are many interests in the world. These
interest which are protected and recognised by law
are called right.
ELEMENTS OF LEGAL RIGHT:- Following are the
elements of Rights :1. Subject: here means a person who has right. So
there must be a person for rights
2. Act of Forbearance :- Right means some
standard of action permitted by law. In a right either
an act is done or an act is forbidden. This is also
called as content of right.
3. Object:- There must be a object upon which the
right is exercised. Mainly there are three essential
elements of right e.g. Lives in a house. Here : (i) A
has the right to live in the house. (ii) A is subject,
house is object and (iii) His living in the house is act
content. But some writers give some more elements
of right.
4. Correlative duty: For right there must be a
correlative duty. In the above example A has the
right to live in the house but other persons have
correlative duty not to disturb him. Almost all jurists
agree on the point because one cannot exists without
the other. Here Austin is not agree to this He says that
the duty may be divided into two kinds i.e. (1)
Absolute and (ii) Relative.
5. Title: Salmond gives one more element of rights
in the form of title. He says that a right has got also a
title. Title may be in the form of the owner or co-owner
or mortgager or leaser or buyer etc.

ILLUSTRATION: If, A buys a piece of land from B. A

is the subject or owner of the right so required. The
person bound by the co-relative duty is persons in
general because a right of this kind avails against the
world at large. The right consists in non-interference
with the purchasers exclusive use of the land.
KINDS OF RIGHTS :- The following are the kinds of
rights :1. Primary right and secondary right : Primary right
is an independent right while secondary right means
dependent right. They are also called as principal right
and helping right or remedial right. ILLUSTRATION:A has right of reputation which is his primary and
independent right. If any person defames A then A has
the right of damages against the defamer. This right of
damages is called secondary right or remedial right.
2. Positive and Negative Right:- Positive right is
linked with negative and negative right is linked with
duty. Positive right permits to do an act while
negative right prohibit doing an act.
ILLUSTRATION:- A has the right of reputation. This
is his positive right and any person should not defame
him. The defaming his reputation called negative
right.
3. Right Rem and Personam:- Right in Rem means
right against the whole world while right in persosnam
means right against a definite person.
ILLUSTRATION: A has not to be harmed by any
person. This is right in rem. On the other hand, A has
entered into a contract with B and B has broken +ve

contract. A can enforce this right against B. This is

known as right in personam.
1. LEGAL AND EUITABLE RIGHT (NATUAL
JUSTICE):- The division of right has its origin in
England. Legal ight is recognised by Law. While
equitable right has been recognised by natural justice.
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, equity and good conscience.
4. Vested & Contingents Right:- These rights is of
permanent nature that depends upon the happening
of an uncertain event. Thus contingents right
becomes full right only when such uncertain events
happen according to the condition.
5. Proprietary and Personal Right:- Proprietary
rights which are concerned with property. A person
possessing any property has the proprietary right over
it, and personal right means the right related with a
person or a body. Every person has a status. He
should not be injured or defamed. If any person
injures or defames another person then the wrong
doer infringes the personal right of a person.
6. Perfect or Imperfect Right:- These rights which
are enforceable by law are perfect and which law
does not enforceable are imperfect rights.
7. Right of Re-propia and Right in re-alena:- Right in
re-propia means the right in ones own thing whereas
right in re-aliena means the right in the things of
others.

4 Law is the command of sovereign comment.

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:- 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. For this very reason this
school is known as the Imperative school.
The exponents of this school are concerned
neither with the past nor with the future of law but with
law as it exists, i.e. as it is (positus).For this reason
this school is termed the positive school. Its founder is
John Austin who was the professor of jurisprudence in
the University of London.
He is also considered as the father of English
jurisprudence. He studied the Roman Law in
Germany. There he was that Roman Law is very
systematic and scientific whereas English Law is not
systematic and scientific. So he tried to make English
law in well manner. For this purpose he wrote a book
Province of English Jurisprudence. In this book he
difined English law and made it in a systematic way.
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. Prior to
Austin the law was based upon customs and morals

but Austin reduced all things from the definition of law.

He divided law into two parts :
(i) Law propriety so called
(II) Law impropriety
so called.
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. It is a law set by
God for human beings on earth. Men also make law
of men is made by men, so it is called human Law.
This law makes a relationship between persons and
the Law. This law is imposed upon persons and is
made by persons. 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
(A) Law propriety so called
Law impropriety so called
A.1) Law of God

(b)

A.2) Law of Men

A.2.i) Positive Law A.2.ii) Positive moral Law

Law of analogy
Metaphor

law

by

Law impropriety so called:- There are certain laws,

which are called impropriety laws e.g. Divine Law,
Moral Law and religious Law. But his law is not the
subject of jurisprudence. This law is concerned only
with the administrations of jurisprudence. The law is
the subject matter of jurisprudence.
Analytical school of jurisprudence deals with the
following matter:(I) An Analysis of the conception of civil law.
(II) The study of various relations between civil law
and other forms of law.
(III) An inquiry into the scientific arrangement of law.
(IV) An account of legal sources from which the law
proceeds.
(V) The study of the theory of liability.
(VI) The study of the conception of legal rights and
duties.
(VII) To investigate such legal concepts as property,
contracts, persons, acts and intention etc.
DEFINITION OF THE LAW
Austin has defined the law is hiss Command Theory.
He says that, Law is the command of sovereign.
Sovereign here means a politically superior body or a
determinate person or determinate body of persons
like king of council. The command of these persons
shall be the law in the country. This law must be
obeyed by certain persons. If it is not obeyed hen the
order of these persons shall not be law. It means
there must be politically inferior persons. If the
command is disobeyed then the political superior

should have the power to punish, those persons who

have disobeyed the law.
CHARACTERISTICS OF COMMAND THEORY
From the above facts we find that the following
characteristics of Analytical School :1. Sovereign (II)
Command
(III) Duty (IV)
Sanction Power.
SOVEREIGN: Means the political superior person or
a determinate person or body of person or intelligent
persons. This may be compared with the kind or the
head of state in monarchy system and parliament in
democracy system.
COMMAND:- There must be some order of the
Sovereign. This order may be oral or written. The
Sovereign which is followed by force, is called
command.
DUTY:- This command must be followed by some
persons, it means the political inferior persons who
are under the control of Sovereign, are under a Duty
to follow the order of the Sovereign.
SANCTION:- 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. The sovereign must have power to punish
those who do not obey this command. In this way the
above mentioned things are essential then it will be
the law. But Austin excluded some commands from
the concept of the law. These are :(I) Explanatory Law :- If there is a command for the
explanation of already existed law command shall not
be the law.

(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 (AUSINS METHOD) Austin adopted
analytical method which excluded all types of morals
and religion from Law. His school is also called
analytical school or imperative school. Imperative
means force behind law.
CRITICISM OF ANALYICAL SCHOOL
Various writers have criticised the command theory of
Austin on the following ground :
1. Customs ignored:- Analytical school is based
upon the law. According to Austin the law does not
include customs but we see that customs are a very
important part of the society. There were customs by
which the society and later on state came into
existence. In state also customs played an important
role in the administration of justice. Even in the
modern times the customs play an important role in
the formation of law. So we cannot ignore customs
from law.
2. Precedents ignored:- Precedent means the
decisions of the court, which are also called as judge
made laws. Judge made laws because these laws
were not the command of the Sovereign. These laws
were not enforceable at that time, so he excluded
these laws from his concept of the law.
3. Conventions
Ignored:-There
are
certain
conventions or methods, which are observed or
followed by the coming generation. These
conventions or methods later on take the form of law.

The become law afterwards by their regular

observance. In England the base of English Law is
conventions, which is very popular in the World. So
we cannot ignore conventions. But Austin did not
include conventions in his concept of law.
4. International Law Ignored:- Austin did not include
international law in his law. According to his law there
is no Sovereign for enforcing the international law.
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. In other words it is also a form of municipal law
of civil law.
5. Command Theory is not suitable:- It is not easy to
understand the Commands Theory for common
persons. It is not necessary that all should be
enforceable or all common person should be
considered as law. Only those commands which are
related with law and order, should be law. It is difficult
to separate those commands from others by the
common people or persons. So this theory is not
suitable in modern times. It is also an artificial theory
haveing no sense in the modern world.
6. Only Power Is Not Necessary:- According to the
Command Theory, law can be imposed only with the
help of power, But we have the result of the tyrants or
forced rules which were thrown away by the people of
French Revolution, of Panamaeto. Law can be
enforced even without power, it they are suitable to
the society.

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

and 18th centuries natural law theories become very

popular which were also based upon morals.
However in modern times it was only Austin who
discarded morals from law. He said that law is a
command of sovereign. But after him there came the
Historical School that recognised morals as the part of
law.
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. Later on the courts tried to
make difference between law and morals. In the
modern times there is clear difference between law
and morals. In every developed and civilized society
the following are the differences between morals and
laws:MORALS
LAWS
1.The morals are concerned with individual and are
the laid down rules for the moulding of his character.
2.Morals are mainly concerned with the internal
conduct of the nature of a person.
3.The morals are an end in themselves.
4. The observance of morals is a matter of individuals
conscience.
5. Morals are considered to be universal in nature
and value. 1. 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.

2. Law is concerned with the external conduct of the

individuals.
3. Laws are meant by which the evils ends. The
justice is achieved.
4 The observance of law is concerned with duty
towards the state.
5 Law is concerned only with a particular state and
society which differ from place to place & from time to
time.
RELATIONSHIP BETWEEN LAW &
MORALS
In the ancient society there was no difference
between laws and morals, but in modern times
various theories of law separate morals from laws so
many differences as pointed out above came into
picture. In spite of these differences there is a clear
relationship between law and morals. For this purpose
it can be noticed from the following three points :1. Morals as the basis of law:- In the ancient society
morals were the basis of all laws. All the rules
originate from the common sources i.e. morals. The
reason behind them was in the form of supernatural
fear. The state picked up those rules which were
necessary for the society of the state.
The state put its own sanctions behind their rules and
enforced them and these rules were called laws. The
rules for which the state could not ensure their
observance wee known as morals. Thus laws and
morals have common origin. We cannot totally
separate law from morals. Queen v/s Dudley: It was

held that moral are the basis of law on the ground of

morality, it was not necessary to kill the boy for saving
their lives. One cannot take the law into ones own
hands. The rule is that none has the power/right to
take anothers life to save his own.
2. Morals as the list of law:- It has been argued that
the law must conform to morals. It means the law
must be based upon morals and it should not be
against morals. The Roman law was based upon
natural law and Christian morals and principles say
that any law that is against morals is invalid. The
natural law theories were enforcing which were also
according to morals.
In the modern times the laws which are not in
conformity with morals are not good laws. However in
practice to a great extent law conforms to morals.
Laws cannot depart from morals due to many
reasons. The conformity of law with morals is a very
important factor even in the modern times.
3. Morals as the end of Law:- Sometimes morals are
considered as the end f law. Justice in its popular
sense is based upon morals. The word used for law
conveys an idea of justice and morals in the same
area of law. Sociological school says that law always
has a purpose. Law is a means to get the end. This
aim of law is to secure social test of law. This can be
done properly in the contest of socially recognize
values which are closely related to morals. Thus
ultimately morals become the end of law. In India the
legal system is engaged from the personal laws and
local customs. In addition to this there are certain

other factors like public opinion, political, ethical,

social and economical ideas which are directly or
indirectly under the influence law. CONCUSION:- So
morals also have influence to a great extent in the
development of law. Morals also check the arbitrary
powers of the legislature. All human conduct and
social relations cannot be regulated and governed
only by law. A considerable number of them are
regulated by morals. Thus we can say that the morals
are the very important factor in the development of
law. Morals are basis of law.
6 Professor Hart claims of make a fresh start in legal
theory. Discuss.
INTRODUCTION:- Hart is one of the great jurists of
that time. He belongs to analytical school. 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. His theory
mainly based on primary and secondary rules and
also based on the relationship between law and
society. His theory described about two words i.e.
Pre-legal world and Legal world.
DEFINITION AND MEANING: Sir HLA Hart define
Law, that law is the system of rules, a union of
primary and secondary rules. 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.
Body : Sir HLA Hart theory talks about the two words.
These words are:-

Concept of Law
Pre-legal world
Legal world
No legislature
recognitaion
No executive
Change
No court
Adjustice

Rule

of

Rule

of

Rule

of

1. Pre-Legal World :- This pre legal world belongs to

old age. According to Sir, HLA Hart pre legal world
there was primitive society. And in this society there
was no legislature which can make the rules. There
was no executive also which can change the rules
besides this there was no court also to decide the
disputes. In the primitive society there were three
defects which are as under :2 Un-certainty :- Since there was no Parliament in
the primitive society which causes the un-certainty in
the law.
3 Static character:- In the primitive society there
were customs and these customs were not changed.
It means there have static character.
4 Inefficiency :- In the primitive society there were
no power of Jurisdiction. It means that there were no
courts followed by the people.
2. Legal World :This legal world belongs to
modern age. According to Sir HLA Hart in the legal

world there are modern society. Because of modern

society there are rules of recognition which means
that there is a Parliament/State Executive. The
function of the Executive to change or to amend the
rules. In modern age there are courts which decides
the disputes. Judges applies the earlier laws in
deciding the disputes. These rules/laws are the
secondary rules. Thus we can say that Law is the
union of Primary and Secondary rules. In other words
it can be said that the Law is the journey of rules.
RELEVANCY OF HLA HARTS THEORY
Sir HLA Harts theory concept of Law is the most
important theory of analytical school. Because this
theory tells us about the old age and for the modern
age. In the old age there were primitive society which
did not have any legislature, executive and court.
Therefore only custom and usages which were not
allowed to change them by any person.
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. There
are courts which apply the rules on party. 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. We can say that
Sir HLA Hart theory, Concept of Law has the most
important place in the theory of Analytical School.

CONCLUSIION:- Sir, 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. So we
can opined that such best and usable theory needs
no conclusion as it has its self conclusion.

7 Define Natural Law theory. Also explain its

relevancies in the Modern times.
INTRODUCTION: The Natural Law school is not
independent school. It has deep concern with
historical, analytical school. 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.
According to the pro pounder of this theory says that,
Law is a product of the straight thinking of human
mind. According to Socrates, 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. Plato: He was in the view that each individual be
given best suitable role by reason of his capacity and
abilities. Thomas Acquinas (Roman Thinker):- He
means that Natural Law is a part of Divine Law. This
part is applied by human beings to govern their affairs

and relations. Thomas Hobbes (Roman Thinker) :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. Rousseau (Roman
Thiner) : He held that there two types of will:1. The will
of individual and 2. General will. The authority through
his rule must respect the both and in the
administration of rule making process. These will
should be reflected.
Definition:- From the jurisprudence point of view
Natural law is not a body of actual enacted or
interpreted law enforced by courts. It is in fact a way
of looking at things and a humanistic approach of
Judges and Jurists. It embodies within it a host of
ideals such as morality, justice, reason, good conduct,
freedom, equality, liberty, ethics and so on. The
phrase Natural Law has a flexible meaning. 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. It used to stress upon a cause
and effect relationship between the facts on the verge
of logic.
ii) It symbolizes physical law of nature based on
moral ideals which has universal applicability at all
places and times.
iii) It has often been used either to defend a change
or to maintain status quo according to needs of the
time.

iv) The concept of Rule of law in England and India

and due process in USA are essentially based on
Natural Law philosophy.
MODEN NATURAL LAW THEORIS:- The following
are the three main thinker who contribute to the
Modern Natural Law theories:1. Stammler:- He was much more influence by
Positive Law. 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.
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.
2. KOHLER:- His thoughts were influenced by
Hegal. According to him Law is standard of conduct
which is consequence of in the impulse of human
being that urges him towards a reasonable form of
life. It also derives its validity from the moral and
ethical standard in society. So that he laid down stress
upon moral and cultural development of society.
3. Finnis: Finnis also is a very famous jurists of the
present century. He has given the definition and place
to natural law. According to finnis Natural Law is the
set of principles of practical reasonableness in
ordinary human life and human community. He sets
up the proposition that there are certain basic goods
for human being. Fennis lists them as under :i) Life:- The term life signifies every aspect of
vitality in good shape for self determination.

ii) Knowledge: Knowledge is a process of knowing

of unknown with the help of sense.
iii) Sociability of Friendship:- Doing something best
for the sake of ones friends purposes, ones well
being.
iv) Role:- It is the expression of a status of human
being in practical form such role is protected and
recognised by law.
v) Religion:- 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.
vi) Practical reasonableness :- This is the logic
expression of the ideas and decision in practical
circumstances. This the measurement of just or unjust
in a real situation.
Despite the merits of Natural Law philosophy it has
been criticized for its weakness on the following
grounds. In other words the demerits of the Natural
Law may be read as follows :i) Moral proposition i.e. ought to be may not always
necessarily conform to the needs of the society.
ii) The concept of morality is a varying content
changing from place to place, therefore it would be
futile to think of universal applicability 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.
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. OR
Distinguish between supreme and subordinate
legislation?
INTRODUCTION:- Legislation means the process of
law making. This law making power is vested in the
legislation body which is sovereign body. It is called
Parliament at the centre level and legislative
assembly at the state level. 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.
LEGISLATION AS A SOURCE OF LAW:- The
importance of legislation starts from the beginning of
analytical school. This school ignored the importance
of custom and gave the stress on command of
sovereign which can make law only through
legislation. This school also ignored the judge made
law. About custom they say that the custom are not
law but they are the source of law.
HISTORICAL SCHOOL:- It gives no importance to the
legislation rather gives more importance to custom.
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. With the coming of

existence of the State the legislation has also been
come into existence and become most important
source of law. The scope of legislation has become
very wide in the modern times.
KINDS OF LEGISLATION:- There are two kinds of
the legislation :1. Supreme Legislation:- It has the powers of making
law and is known as supreme legislation in each
country. This power is vested in sovereign body in
India i.e. Parliament at the centre and legislation in
the State.
2. Subordinate Legislation: It is inferior from supreme
legislation and is indirect legislation. It takes power to
make law indirectly from Parliament, who gave him
power to make law that is why is called subordinate
legislation authority. 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.e
University or Boards.
ii) Judicial Rule :- means the rules made by judicial
body under power owed from supreme authority i.e.
High courts or supreme court etc.
iii) Local Law: means law made by local bodies under
the control of SC i.e Zila Parishad, Municipal
Corporation.
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.

Executive Law:- 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. It includes the
following origins :
I) Legislation:- The legislation is the super power to
make law for a country.
II) Executive:-The executive body of the nation is to
imposes law in the country.
III) Judiciary:- The Judiciary is to explain and implies
the law so passed.
Parliament in India delegates its laws making power
to the executive body and this power is called
legislated or delegated legislation.
Many reform acts were handing power of
making reforms, controlling of employment,
development of education. 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:- Many of the writers has criticized this
power because it gives much power to the executive
body and administration body. The legislation has
passed by facing the complicated problems in the
constitution. There were some supporters also who
were in the favor of this delegation of power.
REASONS FOR DELEGATED
LEGISLATION
i) Lack of Time:The parliament has the shortage of
time because of a Public welfare state. It has to pay
much time towards national problems.

ii) Technicality of Matters:- With the progress of

society the things have become more complicated
and technical. Therefore the policy is made by the
Parliament and the imposing matter is left on the
masters of it.
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.
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. (ii) The
Parliament has no time to examine the rules passed
by the executive under delegated legislation.
In India there is a Parliament form of legislation and it
is a welfare state and the Parliament cannot go aside
from the constitution. Any cut against the constitution
is void. The Main power of delegated legislation &
CONCLUSION is :
Power of facing an act into operation. Power to apply
the Act.
Power to increase or to decrease the scope of the
Act. There is a parliamentary as well as judiciary
control over delegated legislation. This power in India
has also on constitutional basis.
9 Discuss the nature and scope of Jurisprudence.
What is the importance of this subject in the study of
law? OR Jurisprudence is the eye of law.

INTRODUCTION :Jurisprudence in its nature is

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

on the nature of legal rules, on the underlying

meaning of legal concepts and on the essential
features of legal system. 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.
CONTENTS OF JURISPRUDENCE:- 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. Under this head
matters such as custom, legislation, precedent as a
sources of law, pros and cons of codification of laws,
methods of judicial interpretation and reasoning, an
inquiry into the administration of justice etc., are
included for study.
ii) Legal Concepts :- Jurisprudence includes the
analysis of legal concepts such as rights, title,
property, ownership, possession, obligations, acts,
negligence, legal personality and related issues.
Although all these concepts are equally studied in the
ordinary branches of law, but since each of them
functions in several different branches of law,
jurisprudence tries to build a more comprehensive
picture of each concept as a whole.
iii) LEGAL THEORY :- 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. It is therefore necessary that while analysing

legal concepts, and effort should be made to present

them in the background of social developments and
changing economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE
It is often said that jurisprudence being an abstract
and theoretical subject, is not of any practical use.
But it is not correct to say so. Its utility is as under :1. Salmond pointed out that jurisprudence has its
own intrinsic interest like and other subject of serious
scholarship, likewise the writer on jurisprudence may
be impelled to his subject by its intrinsic interest. 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.
2. Jurisprudence also has its practical applicability.
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.
3. Jurisprudence has great educational value. The
logical analysis of legal concepts widens the outlook
of lawyers and sharpens their logical technique. It
helps them in shading aside their rigidity and
formalism and trains them to concentrate or social
realities and the functional aspects of law. It is not the
form of law but the social function of law which has
relevance in modern jurisprudence. For instance, 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.
4. Commenting on the significance and utility of
jurisprudence : Holland observed, the ever renewed
complexity of human relations call for an increasing
complexity of legal details, till a merely empirical
knowledge of law becomes impossible. Thus
jurisprudence throws light on the basic ideas and the
fundamental principles of law in a given society. This
why it has been characterised as The eye of law.
5. Jurisprudence helps the Judges and the Lawyers
in ascertaining the true meaning of the laws passed
by he legislature by providing the of interpretation.
6. The study of jurisprudence helps in rationalising
the thinking the students and prepares them for an
upright civil life. The knowledge of law and legal
precepts also helps them to face every exigency of
human affairs boldly and courageously.
7. Jurisprudence may also be helpful o legislators
who play a crucial role in the process of law-making.
The study of jurisprudence may familiarise them with
technicalities of law and legal precepts thus making
their job fairly easy as also interesting.
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. The law should serve the purpose of
social-engineering by preserving societal values and
eliminating conflicting interests of individuals in the
society.

JURISPRUDENCE IS THE EYE OF LAW:- On

account of importance of jurisprudence in the field of
law it is called, The eye of Law. The eyes are one of
the most important parts of human body. Almost all
human activities and the movements of body are
possible only through them. Unless man can see
anything properly, he cannot do any work. 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. For example- the
interpretation of law is a very difficult task, It cannot be
done without the help of jurisprudence. PATON in
this connection says that, Jurisprudence is a
particular method of study, not the law of one
particular county but of the general notions of law
itself. Whenever any complicated problem regarding
law like:1 How and when the law developed. 2 What is its
object. 3 Whether the law was made by people or it
was due to the inspiration of some Divine force. 4
Whether the law is a command of a sovereign or it is
a result of gradual development of civilization in
society. The main function of jurisprudence is to study
the origin of law, its development and its contribution
towards society.
The matters to birth, marriages, death, succession
etc., are equally controlled through laws. It is the well
known saying that, ignorance of law is no excuse,
hence it is essential to know the correct basic
principles of law which are contained only in the
jurisprudence. Law is also connected with civil life. A

person who obeys laws is known as a civilized citizen.

A person who does not obey law is punished. It is
therefore necessary that all the people should have
the sound knowledge of law which is possible only
with the help of jurisprudence.
Therefore,
jurisprudence, having so much importance for the
society, has rightly been called the eye of law.
10 Judges are the makers of law not discovers of law.
Do you agree with this view?
INTRODUTION:- There are two contrary theories
regarding the question as to whether Judges declare
the existing law or make the law. There are two which
are as under :1. Theory that judges declare the law or Declaratory
Theory.
2. Theory that judges make the law or legislative
theory. (Law making theory)
1. DECLARATORY THEORY :- The first theory is the
declaratory theory as described by Hall and
Blackstone and they supported by Dr. carten also.
According to the declaratory theory no new law is
created by the Judge, Courts of Justice do not make
law, their province is to ascertain and declare what
the law is. Judges only discover the existing laws.
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. 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.

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.
According to Lord Esher, There is in fact no
such hing as Judge-made law, for h judge do not
make the law, 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.
Declaratory theory is based on the fiction that
the English law is an existing something which is only
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 Bharis 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 lawmaking, 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 protected by the
law. He classifies them under three heads:
i.
Private Interests (ii) Public Interests (iii) Social
Interests.
PRIVATE INERESTS:- Such as interest of physical
integrity, reputation, Freedom of volition and freedom
of conscience. They
Are
safe-guarded by law of crimes, contracts.
PUBLIC INTERESTS:- Main public interests are
preservation of the State, State as a guardian of
social interests such as Administ-Ration of trusts,

charitable endowments, protection of

Natural
environment, territorial waters, sea-shores,
Regulation of public employment and so
on.
SOCIAL INTERESTS:- Preservation of peace,
general health, preserving of Social institutions such
as religion, political and Economic institutions, general
morals, promotes Human personality, cultural and
economic life.
Pound tackled he problem of interests in term as of
balancing of individual and social interests. It is
through the instrumentality of law that these interest
are sought to be balanced. Justice Cardozo remarked
that, Pound attempted to emphasize the need for
judicial awareness of the social values and interests.
Roscoe Pound regarded law as a basic tool of social
engineering. 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. The special Marriage Act 1954 2. The Hindu
Marriage Act 1955 3. The Hindu succession Act 1956
4. The Hindu Minority and guardianship Act 1956 5.
The Hindu Adoptions and Maintenance Act 1956 6.
The Dowry Prohibition Act 1961 7. Child Marriage
Restraint (Amendment Act) 1978 8. The Consumer
Protection Act 1986 9. The S.C & S.T.(Prevention of
Atrocities) Act 1989 10. Commission of Sati
(Prevention) Act 1987 11. Bonded labour(Abolition)
Act- 1976

INTERESTS AS THE MAIN SUBJECT-MATTER OF

LAW:- 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. 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.
To concluding the theory, 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.
CRITICISM AGAINST POUNDS
THEORY :i.
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.
ii. Classification of interests not useful: Freidmann
doubts the value of classification of interests and the
value of such classification.
iii. Ihering & Bentham concludes the theory of
Pounds that, 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. It is an
important aid in the linking of principle and practice.
POUNDS CONTRIBUTION
Social Engineering stands on a practical and firm
ground. He points out the responsibility of the lawyer,

the judge and the jurists and gives a comprehensive

picture of the scope and field of the subject.

12 What do you mean legal personality and its

different theories? Whether the following are legal
person :1. President of India 2. Council of Ministers 3.
Company 4 Un-born child. 5. Animals.
INTRODUCTION:- Natural Persons are all human
beings who are capable of rights and duties in law, i.e.
who have a status. Legal persons are those to whom
law is recognised as a person. 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
:- 1. Natural Person II. Legal Person
According to Gray, A person is an entity to which
rights and duties may attributed.
According to Salmond, person is, any being to whom
law regards a capable of rights and duties.
According to Paton, Legal personality is a medium
through which some such units are created in whom
rights can be vested.
In the development of society, law developed
and with the development of law the concept of legal
personality come into existence. In the ancient times
there was no concept of legal personality but as the
society developed the person was recognised as the
representative of the State and a separate personality
was given to him. 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.
There are the following two types of
persons :i) NATURAL PERSONS ( HUMAN PERSONS):- All
human beings are natural persons but in ancient
society the slaves were not recognised as natural
persons. Similarly outlaid persons, unsound persons
were not natural persons. In Hindu Law, Manu has
mentioned some persons who were not recognised as
natural persons i.e. Born child, deaf persons, sanyasi
and those who are living dead.
1. Unborn person: Unborn person is not a natural
person because he is not in existence, but a child in
the womb is natural person because he bears the
rights and duties under law. 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.
2. If the pregnant lady gets the punishment of death
sentence. She will be hanged only after delivery.
3. ANIMALS:- 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. Today
also the protection of animals some laws have been
made which give rights to the animals. These laws
prohibit people to kill them. In this theory the
personality has also been confirmed.

4. Dead Person:- In law dead person has no

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

corporate aggregate e.g. companies are registered

according to law of societies or according to law of
land. These companies or corporations etc., are
legal persons.
3. In the ancient time the Karta represented the
whole Hindu family who was considered as legal
person. It is same as in Roman Society. It is adopted
in the shape of Indian companies Act 1956. The
advantages of the corporate personality because they
represent an association of persons as a single
person which is helpful in business.

13 Lay down the essential features of the Historical

school. Discuss the views of Society in this regard.
OR Discuss the philosophy of law as given by
Sovging under Historical School? OR
Write
critically note on the following Soveging (Volkgeist
Theory).
INTRODUCTION:- Jurisprudence is a subject in
which the definition nature and the sources of law are
studied various writers under various schools have
defined law. Austin under Analytical school says that
law is the command of sovereign. He added only the
law in the study of jurisprudence. But under historical
school Soviging says that law is the general
consciousness (Volkgeist) of the people. It means
what the common people think or behave is the base
of law. Law shows the general nature of the common
people. This theory of Volkgeist is bassed on the
historical method. Soveging is the father of it.

According to Soveging, Law is the General

consciousness of he people.
HISTORICAL SCHOOL
Historical School is a branch of Law, which studies
law from the past history. It says that law is based on
the General Consciousness of people.
The
consciousness started from the very beginning of the
society. There was no person like sovereign for the
creation of law.
The law in the ancient times was based
mainly upon simple rules, regulation, custom, usages
conventions etc. These things were later on
developed by the jurists and lawyers. These things
were later on converted into set form of law.
CAUSES OF COMMING OF THE
HISTORICAL SCHOOL
The Historical school is just opposite to the
Analytical school in 18th and 19th century, the
concept of individualism came into existence. Due to
this concept the revolutions came like French
revolution, Russian revolution etc. At that time
Soveging montasque, Barke, 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 develops like the language and
manners of the society. So law has a natural
character. Law has no universal application. It differs
from society to society and state to state. In the same
way the languages differ from society to society and
locality to locality.

Montasoque has said, Law is the creation of climate,

local situations and accidents. According to Hugo
hag, Law develops like language and the manners
of the society and it develops according to suitable
circumstances of the Society. The necessary thing is
the acceptance and observance by society.
According to Burke, Law is the product of the
General process. In this sense it is dynamic organ
which changes and develops according to the suitable
circumstances of society.
SOVEGING :- Soveging is considered as the
main expounder or supporter of the historical school.
He has given the Volkgeist theory. According to this
theory, law is based upon the general will or free will
of common people. He says that law grows with the
growth of nations increases with it and dies with the
dissolution of the nations. In this way law is national
character. Consciousness of people. In other words,
according to this theory law is based will or free will of
common people. He says that law grows with the
growth of nation. A law which is suitable to one
society may not be suitable to other society. In this
way law has no universal application because it
based upon the local conditions local situations, local
circumstances, local customs, elements etc. Al these
things effect law and make it suitable to the society.
The main features of the Soveging theory
is :1. Law has a national character.
2. Law is based upon the national conditions,
situations, circumstances, custom etc.

3. Law is pre historic: means law is found and is not

made, the jurists and the lawyers make it into set
form.
4. Law develops like language and manner of the
society. In ancient society law was not in a natural
stage or no in a set form. Later on with the
development of the society the requirements and the
necessities of the society increased. Due to this it was
necessary to mould law in a set form.
IMPORTANCE OF CUSTOMS
According to Soveging customs are more important
than legislation because customs come before
legislation. In other words the customs are the base of
legislation.
CRITICISM OF SOVEGINGs THEORY
Savignys theory has been criticised on the
following grounds:1. Inconsistency in the Theory :- Saveging asserted
that the origin of law is in the popular consciousness,
and on the other hand, argued that some of the
principles of Roman law were of universal application.
Thus, it is a clear cut inconsistency in his ideas.
2. Volksgeist not the Exclusive Sources of law :There are many technical rules which never existed in
nor has any connection with popular consciousness.
3. Customs not Always Based on Popular
Consciousness:- Many customs are adopted due to
imitation and not on the ground of their righteousness.
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.
4. 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.
5. Many Things Unexplained :- Legal developments
in various countries show some uniformity to which he
paid no heed. i.e.
6. What is national and what is universal.
7. Juristic Pessimism:- Soveging encouraged juristic
pessimism. Legislation must accord with popular
consciousness. Such a view will not find favour in
modern times. No legal system would like to make
compromise with abuses. People are accustomed to
it.
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. 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.

14 Define Precedents? Lay down the importance of

the precedents as the source of law. In what sense
they are binding? Do the judges make law?
INRODUCTION:- Precedents literally means previous
judicial decision. The decisions of the higher courts
are binding on the lower courts. The binding force of
decision is called precedent. The precedents play an
important role in the development of law. It is the
second important source of law. First source is
customs and the third source is legislation.
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. These independent decisions
becomes precedents which are followed later on by
the same & Lower courts. This method of decision is
also called as Judge made law. The English and
American law is mostly based upon the precedents. In
India Art.141 of Indian Constitution says that the
decision of the higher courts shall be binding upon the
lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a
decision of a court which is also called judicial
decision. According to the Oxford University,
Precedents means the previous decision case given
by a court according to 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. Particularly the
precedents means the Judge made law. When the
court gives its own ideas for creating new rules.

England, America and China also follow the previous

decisions as the source of law but the continent
countries like Germany, Japan does not accept the
previous decisions as the source of law. The method
of taking precedents as source of law is called
inductive method, while the method of continental
countries not following previous decisions of the court
is called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very
important source of Law. They play an important role
in the development of law, so they have certain
advantages as:
1. Precedents show true respect to the ancestors
means by adopting the previous decision of the higher
court to decide the present case, it is a kind of respect
to elders.
2. 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.
3. Precedents are based on customs means the law
in the form of act which based upon customs. Court
interprets the customs while interpreting any act.
4. Precedents are convenient and easy to follow
because they are available in the form of written
reports.
5. Precedents bring certainty in law, 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.

6. 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.
DEMERITS OF THE PROCEDENTS:- 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, his decision may
not be suitable to all persons who have different mind
and thinking. This will be a bad effect on Judiciary.
ii) Sometimes the decisions of the higher courts
contradictory to each other. 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:- The precedents is an
important source of law. It is available in the form of
judicial decisions. Now the question arises that in
what sense and when the precedents are binding o
follow. For the answer of this query different views
have been given by the various writers and jurists. No
doubts the precedents is not binding like warrant
issued by a court of law. 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.
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. 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. There are two
parts of it :i) Ratio-decidendi:- means reasons which leads the
court to reach the decision. It is the main part of the
case in judgement and the ratio decidendi of the
decision is binding in the form of precedent.
ii) Obits decidendi:-It is also a part of the decision
which is irrelevant to the facts and circumstances of
the case. The judge takes into consideration the
social conditions, morality, principal of natural justice
that is why the Judges play an important role in the
development of legal system.
DIFFERENCE
BETWEEN
CUSTOM
&
PRECEDENTS
CUSTOMS PRECEDENTS
Custom is primary source of law.
Precedents are the secondary source of law.
Custom is given by people in general. Precedents
are given by courts.
Custom is conduct adopted by people of society.
Precedents is itself complete certain, reasonable
given by a competent court of the country.
Custom is based upon the reasoning of common
people of the society.
Precedents are based upon the reasoning of a
individual Judge or very few judges.
Customs have more value then precedents and
cannot be ignored.
It can be ignored if it gives unjustice.

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. This
theory is also known as declaratory Theory. According
to this the judges are not makers of the laws which
they are already n existence. The judges while
deciding the case only applies the existent and
relevant customs for deciding the cases.
Judges are not the law makers:- The supporters of
this theory (historical school) says that all the laws are
based upon customs. The judges only to explain
these laws and customs. According to Coke hate and
Dr.Carter, that the law is created by the King or by the
Parliament or by the Legislature bodies. Common
Laws is based upon custom. The public through the
decision of courts come to know those customs. It
means that Judiciary is not the maker of law. A case:
Rageshwar Parsad v/s state of West Bengal. It was
held that, The court does not create Law.
ORIGINAL LAW MAKING THEORY
This theory is opposite to the first theory. It says that
the Judges are the real makers of the law. They not
only interpret or explain but also make the law.
According to Salmond: who is the main supporters of
this theory says, That the decisions of the courts are
a great contribution to the legal system. Dicay says
that, that legal system is the best part of the law of
England which is judge made law.

CONCLUSION:- 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. 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, thoughts and gives new touch ideas which play
an important role in the development of law.
15 Discuss the main features of the Pure Theory of
Law. How it resembles with Austins command theory.
Critically examine the view of Kelson given under
pure theory of Law?
Introduction:- The Pure Theory of Law is given by
Kelson. This theory is also known as Vienna School
because Kelson is the productor of Vienna University.
This theory resembles with Austins command theory
because in Kelsons theory there must be sanction
behind law. Austin gave it the name of command
theory and Kelson gave it the name of grandnorm
theory. Kelson is affected by local conditions, natural
condition and international condition. After studying all
these conditions he gave this theory of Law, which is
known as pure theory of law and grandnorm theory .
Concept of pure theory of Law:- At the time of Kelson
there are Ist world was which destricted the property
of human beings at international level. So he gave
power to the international law and avoiding the
destructions of the world. Secondly during that time
many countries adopted written constitution. So
Kelson also get influenced from these written

constitutions and gave his own theory which is based

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

for it. He also says that at this time international law is

immature. It is in primitive stage. It is developing.
Nature of Grandnorm:- According to Kelson each
country has the formation of grandnorm according to
local conditions. The duty of jurists is to interpret the
grandnorm in their own language. They are not
concerned with the goodness or badness of the
grandnorm. They are not concerned with the origin of
the grandnorm. In this way the grandnorm is the main
source of all the laws in the country.
Elements of Pure Theory:- Kelson gave his view
under this theory about State, sovereignty, public and
private law, public and private rights, international law
private and juristic law.
Feature of Kelsons theory:1. Grandnorm as a source of law:- Grandnorm is
the source of all laws. Grandnorm is in the form of
written constitution. Any such body, which contains
rules, or any such legal system in a country.
2. 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. Law comes from the grandnorm and the
state also comes from the grandnorm.
3. Sovereign is not a separate body:- Austin says
sovereign is a politically superior person which keeps
controls over the politically inferior persons. But
Kelson says that the power of sovereign lies in the
people. So the Sovereign is not separate and superior
from the people of the country.

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

thing from the State. State is body is law in, which law
is a rule that regulates the state.
d. Difference between public law and private law:Kelson says that there is no different between public
law and private law. Which is also not right in the
modern days.
e. Customs and Precedents ignored:- He also
customs as a source of law while we see that
customs are the source of all laws.
Conclusion:- Although Kelson has been criticised
from various angles yet he had contributed a lot in the
development of the society. Thus the concept of
grandnorm gave power to the public at large as well
as at national level. His main purpose was to stop
destruction of any world war. This can resemble to
Austin also Kelson is also limited with the law.

16 Discuss the Salient features of the Sociological

School of Jurisprudence? OR Salient features of the
Sociological School of Jurisprudence?
Introduction:- The sociological school is one of he
important branches of law. It comes after the
Analytical school and Historical school. Its seeds
were found in the historical school. Duguit,
Roscopound and Camta are the supporters of this
school. This school is related with society. According
to this school law is numerator of society. Law and
society both are the two sides of the same coin, one
cannot exist without the other. If there is law there
should be society and if there is society there should
be law. Law is very necessary for regulating the

society. Many writers like Duguit, Roscopound and

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

is not superior to people. The sovereign of a state

lives in people or in the will of people.
DIFFERENCE BETWEEN PUBLIC &
PRIVATE LAW
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. Pubic law and private
law are meant for people. Public right and private right
or people have only duties and not any right.
There is no difference between public right and
private right. According to Duguit there is only one
right that is to serve the people. It means person have
only duties not rights.
CRITICISM OF DUGUITS THEORY
1.The theory of social solidarity is vague:- This theory
is not clear for a common person. One cannot gain
anything from this theory so this is vague theory.
2.Who will decide social solidarity :- Duguit has not
given the authority that who will explain the solidarity
because Duguit did not recognize sovereignty. We
can imagine that Judge will explain the standard of
social solidarity. But there are no guidelines for the
Judgess
3.Public law and Private law are not same :- There
must be an authority which passes the law. In Duguit
theory there is no place for such authority.
4. Public right and Private right are also not same :The right of society is public right and the right of
common people is private right.

5. Custom ignored:- Custom is the base of any law

but Duguit ignore these customs. In this way the
theory of Duguit is not suitably in modern times.
CONCLUSION
No doubt Duguit was a sociologist because he gave a
lot of development to society. The social solidarity
itself contains the welfare of the people. Duguit said
that law should be according to the social solidarity.
Here he discards natural principal but the theory of
the social solidarity itself is based upon natural law,
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.

17 Define Ownership. Discuss the various kinds of

ownership. Distinguish between possession and
ownership.
INTRODUCTION:
Ownership is linked with
possession. Possession is the first stage of
ownership. It means for ownership possession is
necessary. Possession and ownership both are two
sides of the same coin and one cannot exist without
the other.
Ownership gives the full right over the thing.
Ownership is ultimate and final right for disposing the

property. It means to transfer that property in any

way. Ownership is a relation ship between the person
and the thing. For ownership there must be a thing
and the owner of thing. The concept of ownership
was absent in the ancient society. There was also no
concept of possession too. Slowly and slowly as the
society developed the concept of possession also
developed. The idea of ownership came into
existence. So this way after the progress of the
concept of ownership the person became the full
owner of his property.
DEFIN ITION :- Before to define the ownership we
have to discuss the various kinds of law :Roman Law :- As evident from history that the Roman
Law was the first law in the world. It is considered the
ancient law. All concepts of law begin from the period
of Roman society. 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. The
concept of ownership developed in the form of a right
over the thing. Dominion is distinguished from
possession. Possession means to have possession
over a thing but dominos means to have a right over
the thing.
HINDU LAW :- Hindu Law is also considered as the
most ancient law in the world. In Hindu law the
concept of ownership also has been discussed. In
Hindu Law ownership is said a , According to Hindu
Law ownership means a relationship between person
and a thing. Person is called owner and a thing is

called property. Means a property which is in the

control of a person is his property.
VIEWS OF MODERN & WESTERN JURISTS
The western jurists like Austin, Holland and Salmond
defined the concept of ownership.
Austin :- According to him ownership is the
relationship which exists in between the person and
the thing. This definition resembles with the definition
under Hindu Law. Austin says that in ownership a
person has the following relations with the thing.
1.Indefinite Use :- It means to use that thing in any
way whether to use it for agriculture or for industry,
residence but there is a restriction that one cannot
use ones property in such a way which destructive in
the living of others.
2.Un-restricted power of dispose:- Means to transfer
that thing or property according to his choice. He can
sale or to mortgage even to give on lease or gift to
anybody. But under art.19(2) of the Constitution
reasonable restrictions can be imposed by the Govt.,
in the interest of public policies.
3.Un-limited duration of time :- means the right of
transfer of his property will remain always in the name
of owner. After his death it will go to his heirs so there
is no time limits.
4.Domination :- It means to have control over the
thing. For this purpose both elements of possession
corpus and animus should be there. If the conditions
are there between person and the thing and then the
person is owner of that thing.

According to Holland: He defined the ownership as a

plenary control of a person over a thing. The definition
also contains the following conditions :1.Possession 2. Enjoyment
3. Disposal.
According to Salmond :- Salmond defines ownership
as a relationship between person and the right. Right
means to have a thing under possession. Thing
always represents physical objects. But right always
represents a thing which is not in physical existence
like copy right and allowances are always thing which
are called property. And which are not in physical
existence.
Salmond has included all those right which are
property in the concept of ownership. In view of the
above it is learnt that Austin and Holland definitions
are not complete. But salmond is completely perfect
in his definition.
KINDS OF OWNERSHIP
There are various kinds of ownership which are as
under :1. Corporal and Incorporeal ownership: Corporeal
and incorporeal ownership also called material and
immaterial ownership. Corporeal ownership is the
ownership of a material object and incorporeal
ownership is the ownership of a right. Ownership of a
house, a table or a machine is corporeal ownership.
Ownership of copyright a patent or a trade mark is
incorporeal ownership.
2. Sole and co-ownership:- The general principal of
ownership is that vested in one person only. But some
times it vested in many persons in other words two or

more person have the right of 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.
3. Vested and contingent ownership:- Ownership is
either vested or contingent it is vested ownership
when the title of the owner is already perfect. It is
contingent ownership when the title of the ownership
is yet imperfect.
4. Absolute and Limited ownership:- 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.
When there are limitations on the user duration or
disposal of rights of ownership the ownership is
limited ownership.
5. Legal and Equitable ownership:- Legal ownership is
that which has its origin in the rules of common law.
Equitable ownership is that which proceeds from the
rules of equity. Legal right may be enforced in rem but
equitable rights are enforced in personam.
CONCLUSION
The ownership is a relationship between person and
the right. These rights include the right of possession
enjoyment and disposal of the property. If all
conditions are there then it is called Ownership.
DIFFERENCE BETWEEN POSSESSION &
OWNERSHIP
POSSESSION
OWNERSHIP

1.Possession is a primary stage of ownership which is

in fact. 1. Ownership is in right.
2.Possession does not give title in the property
defacto exercise of a claims
2. While in ownership
it gives title in the property dejure recognisation.
3.Possession is a fact.3. Ownership is a right and
superior to possession.
4.Possession
tends
to
become
ownership.
4.Ownership tends to realize itself in to
possession.
5.Possession dominion corpus and animus are
necessary. 5.Ownership they are not necessary
because law gives full rights.
6.Transfer of possession is comparatively easier.
7. Possession is nine points of law. 6.Ownership
most of the cases involves a technical process i.e.
conveyance deed etc.
7.Ownership always tries to realize itself in
possession i.e. complete thing.
18 Define Custom and essentials of a valid custom.
Discuss its importance as a source of law and also
compare with precedents.
INTRODUCTION: Custom is a conduct followed by
persons in the society. Custom is considered as the
most ancient and most important source of law.
Source means origin of a thing. It is also considered
that law basically comes out from customs. In the past

customs were prevailing for the control over the

society.
Austin was the first person who discarded the
value of the custom. But the historical school again
gave the importance to custom. The sociological
school also gives importance to law with relation to
society.
In the modern times the precedents i.e. Judge
made law and legislation have become over powered
to that of customs. As in a case of Maduri v/s Motu
Ram Linga. It was held that even custom power over
the state.
VARIOUS
LEGAL
SYSTEMS
RECOGNIZED
CUSTOM AS A SOURCE OF LAW.
The followings are the systems which recognized
custom as a source of law :
1.Romal Law :- Roman Law is known to be the oldest
one in the world. This law is mainly based upon
customs of the society. Those customs which were
reasonable continued them as law by the Roman
jurists.
2.Hindu Law :- Hindu law is also to be considered as
the most ancient law. His sources are Vedas, Sutras
and Smiriies and these were mainly based on
customs. All personal laws of Hindu are based upon
custom that is why Lord Warren Hastings and Lord
Cornwallis did not attack on customs of Indians.
Manu said One should follow the given path of their
ancestors. This was nothing but the reorganization of
customs.

3.Mohammedan:- Particularly ignored customs for the

purpose of law. 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. The traditions which
were not opposed by the prophet Mohammedan were
recognized as law. In this way we can say that
customs in Mohammedan law also played an
important role.
4. English Law :- Which is known as common law and
in the shape of un-written and based upon customs
and conventions. Customs which were reasonable
and not against the public policies were recognized as
law under English Law.
According to Pollock, The common Law is
customary law. Black stol common includes written
law and un-written law. The written law is based upon
the general customs. In this way English law also
gave importance to the customs as a source of law.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :1.National Customs :- Those customs which are
related to the nation and are applicable on the
countrys people.
2. Local Customs :- Those customs which are related
with a particular locality.
3. Family Customs :- Those customs which are
related with a family and have application on a
particular family.

4. Conventional Customs :- These customs based

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

WHEN DOES A CUSTOM BECOME LAW.

ANALYTICAL VIEW:- Austin and Gray are the
supporters of analytical school. They say that a
custom becomes law when it is recognized by the
sovereign in the sense of positive law only.
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.
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.
Custom is superior to Judge made law or
legislation. The legislation while making a law
recognizes the customs of the society. The courts
also while giving the decisions recognized the
customs prevailing in the society.
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 one of most
fruitful sources of law. According to Analytical school a
custom when recognized by State or sovereign
becomes law. According to Historical school when
state or courts make law they give importance to the
customs. So both of the view are combining to each
other and are correct for a custom as source of law.

19 Rights and duties are co-relative. Discuss. OR

Distinguish between claims liberties powers and
immunities also explain the correlative of each.
Introduction:- Right and duties are the very important
element of law. The term Right has various
meanings such as correct, opposite of left, opposite of
wrong, fair, just and such like other expression etc.
But in legal sense a right is a legally permissible and
protected action and interest of a man group or state.
Definition
According to Austin :- Right is a standard of permitted
action within a certain sphere. 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.
According to Salmond : It is an interest recognized
and protected by the rule of justice / law.
According to Gray:- Right is not an interest itself but it
is the means by which the enjoyment of an interest in
secure.
According to Prof. Allen:- The essence of right not a
legal guarantee in itself but a legally guaranteed
power to realized an interest.
ELEMENTS OF RIGHTS
1. Subject:- 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. In other words the subject is that the person
whom the right is vest.
2. Content:- This is the subject matter of the right
along-with the nature and limits of that right.

3. The person of Incidence :- It means that the person

upon whom falls the corrective duty.
OBJECT:- The object of the right may be material or
immaterial determinate or indeterminate.
CHARACTERSTICS OF RIGHTS
1. RIGHT is a general o specific type of claim,
interest or such like expression of the people in a
State.
2. The right is duly recognized and approved by the
State through its agencies.
3. A legal right is expressed a deep correlation with a
corresponding duty, liability or disability on the part of
those against whom such right is conferred.
4. A right may has its independent existence and type
of assemblies with other rights.
5. 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.
6. The realization and scope of a legal right depends
upon the type of society and the nature of interest.
THEORIES OF RIGHTS:- There are two main
theories of legal right:1. Will theory:- The will theory says that the purpose
of law is to grant the individual i.e. self expression or
positive declaration. Therefore right emerges from
the human will. The definition of right given by Austin
and Holland, that the will is the main elements of a
right. Pollock says, that right in term of will.
2. The Interest Theory:- Interest is the basis of right. A
great german jurists defines about the legal right as,

A legally protected Interest. According to him the

basis of right is Interest and not will.
The definition of law is in term of purpose that
law has always a purpose. In case of right the
purpose of law is to protect certain interest and not
the wills or the assertions of individuals. These
interests are not created by the State but they exist in
the life of the community itself.
TYPES OF RIGHTS
1. Primary and secondary Right: They are known by
Antecedent and remedial rights names also.
2. Perfect and imperfect Right: Means which has a
correlative positive duty.
3. Negative and Positive Right:-Positive means
related to duty whereas negative means not related to
duty.
4. Right in Rem & Personam:
5. Right is repropria and Right is Re-aliena.
6. Vested and contingent right.
7. Propriatory and personal Right.
8. Equitable and legal right.
Duty
Introduction:- The term duty may be used in various
form as an obligation, as responsibility and
accountability. There are some scolers who define
Duty as following:Definitions of Duty:- According to Gray, 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. According to Rose Duty is the
Pre-dicament of person whose act are liable to be

control with the assistance of the State. As per

Hoffield The duty is the correlative of Right.
Classification of Duties:- Duty classified into two
categories. There are as follows:Duties
Positive And Negative Duties
and Secondary Duties

Primary

1. Positive and Negative Duty:- A positive duty implies

some act on the part of person on whom it is
imposed. Negative duty implies some forbearance on
the part of the person on whom it is imposed.
2. Primary and Secondary duty:- A primary duty is that
which exists perse and independent of other duty. A
secondary duty is that duty whose purpose to enforce
some other duty.
Essentials of duty:- There are following essential of
duty:a. It may be dependent and independent.
b. It consists an obligation on the part of someone
and confirm a privilege upon other.
c. The concept of duty is affirmed and protected by
the law of the land where it exist.
d. The concept of duties is a changing process
which arises from time to time, place to place and
circumstances to circumstances.
e. Duty in most of the cases creates an absence of
right against some person.
f. Duty may be fundamental, legal or moral in
character.

Relation between Right and Duties:- The following

objects describes the correlation between right and
duties:i.
A right is indispensible without any duty.
ii. A duty and right has separate and independent
existence.
iii. A right procreates duty and vice-versa.
OR Your

choice

Even though right and duties are opposite points but

there is a great relation between two relations. The
right and duties has a relation of Father and Child,
Husband and Wife because there is no father without
child and no wife without husband. So right and duties
cannot be separated form each other.
Right/Claim
Liberty or privilege
Power
Immunity
Duty
No claim
Liability
Disliability
(Jural opposites)
(Jural
correlative)
Conclusion:- Right and duties are correlative of
elements of each other. There is no right without duty
and there is no duty without right. These are
recognized by law for maintaining the society very
well.
20 Define law as an instrument of social change.
What special changes have been brought out by
law?
INTRODUCTION:- Law as a command as it
introduces subjective considerations whereas the

legal theory is objective. Notion of justice as an

essential of law because many laws though not just
may still continue as law. 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. 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. The aim
of law as of any science is to reduce chaos and
multiplicity to unity.
According to Kelson, law is normative science but law
norms may be distinguished from science.
Definition of Law:- while emphasising Volksgeist as
the essence of law, Savigny justified the adoption of
Roman Law in the texture of German Law which was
more or less defused in it. Law has unconscious
organic growth, it found and not artificially made. Law
is not universal in nature. But like a language it varies
with the people time and need of the community. With
the growing complexity of law the popular
consciousness as represented by lawyers who are
nothing but the mouth peace of the Consciousness.
Law as an instrument of Social Change:- The
following are the elements which have been helping
the law to be an instrument who bring the social
changes:1. A social Utilitarian:- The system develops aspects
of Austinian positivism and combines them with

principles of Utilitarianism as established and

developed.
2. Law is the result of Constant struggle:- According
to Ihering the development of law like its origin is
neither spontaneous nor peace full. It is the result of
constant struggle with a view to attain peace and
order. Law is the guarantee of the conditions of life of
society.
3. Law is to serve for social purpose:- 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.
Therefore, law is coercion organised in a set form by
the State.
4. Law protects Social Interest:- Law is a such type
of instrument which protects the social interest of the
people. According to Bentam it is the persuit the
pleasure and avoidance of pain.
5. Law is to found in social facts:- AS per Ehrlich,
That the law of community is to be found in social
facts and not in formal sources of law. He says at
present as well as any other time the centre of gravity
of legal development lies not in legislation, nor in
juristic science, nor in judicial decision but it lies in
society itself. It is a social changes.
6. Living law is the fact that govern social life:- 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, possession and
declaration of will .

7. Law according to the requirement of Society:- It

means that law in a society should be made and
administered with the utmost regard to its necessity.
8. Law also to serve this and:- Law is the rule which
men possess not by virtue of any higher principle
whatever, good, interest or happiness but by virtue
and perforce of the facts because they live in society
and can live in society. This is because of to use the
law as an instrument which brought the Social
Changes.
Conclusion:- 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.