Jurisprudence

Unit-1
Q1. Define and explain the meaning of jurisprudence? What are the content of
the jurisprudence.

Or

Discuss the nature and scope of jurisprudence? Evaluate its need and
importance.
Answer: the word jurisprudence has been derived from Latin word Jurisprudentia means, in
widest sense, knowledge of law. The Latin word juris means law and prudential means
knowledge. That is jurisprudence signifies knowledge of law and its applications. In this sense it
covers whole body of legal principles in the world.

The word jurisprudence, in limited sense, is the description of the general principles upon
which the actual rule of law is based. It is concerned with rules or external conduct which
persons are constraint to obey. The word jurisprudence is that science which imparts us to
knowledge above the word law. The law is the term of various connotations. That is to say, in
abstract sense, jurisprudence explains law as concrete statue and not in sense of principles
underlying law. For example, there are various branches of law prevalent in the modern society
i.e. contract, tort, crime, labour relation, trust, company, property and jurisprudence explain
the basic principles of this branches and does not concerned with the detailed rules of these
law.

In yet another sense, jurisprudence maybe regarded as philosophy of law dealing with function
and nature of law.

The Indian jurisprudence owns its origin from the ancient dharma which is considered as best
way to discipline one’s mind. The practice of dharma enabled citizen to inculcate a sense of the
discipline in conducting themselves in society. This eventually brought about prosperity and
peace in the society. However, with the march of time and progress of Indian society, the
concept of law and, thereof, of jurisprudence was changed radically. India is now sovereign,
socialist, secular, republic, democratic. Democracy pre-supposes the government of people, to
the people and for the people, and therefore, the citizens are expected to be self-restrained
and self-disciplined.

Definition:
Ulphian: jurisprudence is observation of the things human and divine, knowledge of the just
and unjust.

Gray: jurisprudence is the science of law, statement and systematic arrangement of the rules
followed by the court and the principles involved in those rules.

Salmond: jurisprudence as science of the first principle of the civil law.

Salmond points out that jurisprudence deals with the particular branch of the law, namely, civil
law or the law of state. Civil law consists of rules applied by court in administration of the
justice. Salmond agrees with the point of the gray that, jurisprudence is only considered with
jurist law and does not cover the theologian and the moralist law although they also govern the
conduct of man in society.

Jurist’s law regulates the external conduct of the man in society and does not covers the inner
beliefs of man. They are enforced by the court of judicial tribunal and carry with them sanctions
ranging from capital punishment to fine or an even warning. The certainty of the sanctions and
the existence of a determinate authority for enforcement, distinguishes the jurist’s law from
the moralist law.

Salmond supports holland and Justine by holding out jurisprudence is a science, that is, a
systematic study, of the basic principles of the individual and specific legal systems. He
classified jurisprudence in specific and general sense.

Salmond has observed that as science of law, jurisprudence can be of three types:

i. The expiatory or systematic law which is considered with the actual content of the legal
systems existing at any time whether past or present.
ii. Legal history, which is concerned with the legal system in its processes of historical
development.
iii. The science of legislation, the purpose of which is to set the forth law as it ought to be.
It deals with the ideal future of the legal system and the purpose which it may serve.

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.

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.

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.
Q2. Define law and its types? What are sources of law.

Answer: Every country, every city, every town, every district present in this world has to follow certain
rules or regulations or we can say “Law”.

There is always a sovereign which formulates laws for a state which is believed to be good for the state
and which helps the state to function justly. In many countries, the sovereign or the people hire
governments which enforce these laws and if the laws are violated then the penalty is faced by those
who have violated them.

In many countries, State is sovereign. Sovereignty is its exclusive and most important element. It is the
supreme power of the state over all its people and territories. The State exercises its sovereign power

In simple words, we can say Law is something which acts as a guideline to the people and is believed to
be good for human relations. It is said to be a set of rules and regulations decided by the state or
sovereign and followed by the people of that place through its laws. The Government of the State is
basically machinery for making and enforcing laws.

Each law is a formulated will of the state. It is backed by the sovereign power of the State. It is a
command of the State (sovereign) backed by its coercive power. Every violation of law is punished by
the State. It is through its laws that he State carries out its all functions.

It can also be said as a command which has to be followed by the people. Who are superior in society
would make these laws and followed by the inferiors.

Laws are made so that human behave appropriately and before doing any wrong think twice. It helps in
humans activities happening in the state. One who goes against these rules face serious trials and get
punished by the state.

Law: Meaning and Definition:

The word ‘Law’ has been derived from the Teutonic word ‘Lag, which means ‘definite’. On this basis Law
can be defined as a definite rule of conduct and human relations. It also means a uniform rule of
conduct which is applicable equally to all the people of the State. Law prescribes and regulates general
conditions of human activity in the state.
According to bentham law is assemblage of signs, declarative of the volition, conceived or
adopted by the sovereign in a state concerning the conduct to be observed in a certain case by
a certain people or by group of people in the case in the question are supposed to be subject to
his power.

Austin defined law as ‘a rule laid down for the guidance of an intelligent human being by an intelligent
human being having power over him.

Features of Law:
I. Law is a general rule of human behavior in the state. It applies to all people of the state. All
are equally subject to the laws of their State. Aliens living in the territory of the State are
also bound by the laws of the state.

II. Law is uniform in nature. Power of making law lies in the hand of the state. State passes
those laws which are considered to be for human welfare.
III. The state has a government which also helps in making law and through which laws are
enforced.
IV. Law creates binding and authoritative values or decisions or rules for all the people of state.
V. State always acts through Law. Laws are made and enforced by the government of the
State.

VI. Law can be the threat to those who are willing to do wrong in society and once they commit
anything wrong are severely punished.
VII. The punishments which are given to the guilty are also decided by the law.
VIII. Each country has the court which settles any issues taking place in a state according to the
laws formulated.
IX. Law act as a shield to every individual in the state. It helps people co-exist harmoniously and
protect themselves from any wrong or evil doings.
X. Legally, Law is a command of the sovereign. In contemporary times laws are made by the
representatives of the people who constitute the legislature of the State. Laws are backed
by on public opinion and public needs.
XI. All disputes among the people are settled by the courts on the basis of an interpretation and
application of the laws of the State.
XII. Rule of law, equality before law and equal protection of law for all without any
discrimination, are recognized as the salient features of a modern legal system and liberal
democratic state.

Sources of Law:

I. Custom: these are believed to be one of the most important sources of law. In earlier times
people used to follow certain customs which were accepted by all and which served as a
fair, equal and just to all individuals. Different social institution borrowed these customs.
Who went against the will of custom would face punishment. Later these customs took a
new turn and formulated as an organized political institution having converted all the
 customs into law. People started to believe these customs are best for them, therefore, they
are believed to be the best source of law.
II. Religion and Morality: when we talk about religion and morality. Each religion has its own
set of rules and regulation which helps people be a good human. In past when there was no
organized institution of law so the religion played its role. Religion was followed and
whoever violated it suffered punishment according to their religion. People had in mind that
if they did anything wrong God will punish them and put them in hellfire and if they did well
they will enjoy in heaven. But with the improvement and human civilization people started
to put aside religion and began to go freely. Therefore some religious rules turned into
properly organized law. Few States took few rules and regulations and put them as the rule
which should be followed by all. Rules of morality and religion acted as source material to
the state to formulate the law.
III. Legislation: In older days customs or rulers acted as the main source of lawmaking. But the
later government took place and in government, we have a body which is said to legislation
which now acts as a main source of law. Legislation converts all customs to guide people’s
behavior. Every state has its own legislative body which serves as a source and got the
identity of the Legal sovereign from ruler to the legislation.
IV. Delegated Legislation: due to less time, fewer people with professional skills and quick
need of laws to exercise the state gave rise to the delegation of legislation. The state got an
emergency to make laws as quickly as possible as it cannot rely on one specific legislation.
So the power to make law was divided into different executives for easy, fast and smooth
lawmaking process. Now it serves as a giant source of law.
V. Judicial Decisions: the judicial decision means the decision made by the court in
accordance to looking after the cases and interprets which law should be applied where.
There are certain situations when judicial decisions also become laws for future and that is
why have to be considered as a source of law. Decisions made my main courts which are
recognized as apex court can only be used as proper law.
VI. Equity: this basically means acting fairly and serving justice to all. In some exceptional
cases, not all laws are suitable. So the judge as to use his intelligence and act with keeping in
mind d what is fair for whom. Equity serves as a painkiller to those who are suffering and
might be in future gain popularity and formulate laws on the basis of equity.
VII. Scientific commentaries: many jurists use scientific commentaries to make some laws
better or we can say to develop and evolve laws jurist need these scientific commentaries.
Jurist points out problems and strengths of the law and help this law to become stronger.
The opinion given by this jurist is then used as a reference to make a decision on certain
cases.

Types of law: salmond has given an exhaustive classification of law. According to him there are
eight types of law:

I. Imperative law: it means any positive law or rules of conduct or behaviour imposed by any
ruler, legislature, state, institutions or body of persons. It is a precept or rule of action
imposed upon men by some authority which enforces obedience to it. The rules of positive
morality, public opinion, rules of organizations and associations form a part of it. If a person
commits a breach of imperative law he will have to undergo some sufferings
which are known as the sanction. For e.g. the state applies physical force as the sanction,
 but a club or any other organization resorts to fine or expulsion when a member makes a
breach of a rule.
The chief exponent of this kind of law is Austin and according to him, positive law is a
command which obliges a person or persons to a course of conduct.
II. Physical or scientific law: in the words of Salmond the, law prevalent under it are
expressions of the uniformities of nature and general principles expressing the regularity
and harmony observable in the activities and operations of the universe. It governs the
growth of bodies, the law of gravitation, and the law governing the planetary motion. It
signifies those uniformities and regularities which are observable in nature as the law of
heat and light.
III. Natural or moral law: the law which is based on religious and moral principles and
presents the picture of law as ideal or what the law ought to be. The natural law has been
true for all times and at all places and whose origin could be traced out from ancient times.
It emanates from virtue. Its supreme sanction is the perfect conscience or the righteous
moral sense of the man. No physical force, punishment or restraint is necessary. His own
self is the sanction of the jus nature.
IV. Conventional law: a law which is based on conventions i.e., something arising out of an
agreement between parties or the rules made by any institutions. The rules under it are for
regulating the conduct of members of a particular body, institutions or business. The law
derives its validity from the agreement between the parties concerned.
V. Customary law: the laws under it comprises of reasonable customs and usages observed as
a right from immemorial antiquity by a particular family or a society as a whole. Salmond
stated that by customary law here we mean any rule of action which is actually observed by
men and any rule which is the expression of some actual uniformity of voluntary action. The
laws under it are the well-recognized customs which has stood the test of time and which
are reasonable.
VI. Practical law or technical law: it imports the rule of technique or art to be followed in a
particular occupation to procure the successful or desired result. Thus, we have the rules of
art, sculpture, photography, engraving, music etc. it basically covers those rules which are
necessary for the attainment of certain ends.
VII. International law and prize law: it is an aggregate of rules and regulations recognized
and accepted by civilized states in their relations with each other. It has been considered as
one of the most important branches of law. It has been divided into two parts where one
part consists of those rules which are uniform and universal in their application. While the
other part consists of those rules which are operative only between parties agreed to them.
VIII. Civil law: the term civil itself denotes the law of land. Salmond stated civil law as “the law of
land or the law of the state, the law of the lawyers and law courts.” It is the law of the realm
and has variously been named as municipal law, positive law or natural law. The civil law has
been classified into two sub-heads:-
i. Private law : The law which is more concerned with that of an individual
than the public as a whole. It regulates and governs the relation of
citizens to each other. The state acts as an arbiter to settle the disputes
between individuals and the society through its judicial organs. The private civil
law deals with matters such as contracts, insurance, carriage, freight, damages
for personal injuries, civil wrongs, agency, bailment, sales of goods, partnership,
 regulations of companies, insolvency, arbitration, negotiable instruments,
transfer of property etc.
In the classification of private law, there is great difficulty, as different jurists
have given different classifications. A very general classification is as follows:-
The law of persons, the law of property, the law of obligations, and the conflict
of laws
ii. Public law: It is such part of the civil law which deals with the constitution and
working of the state, the functioning of its various departments, the relation
between the state and its citizens. The public law determines and regulates the
organization and functioning of the state and determines the relation of the
state with its subject.

It has been divided into 3 classes:-

1. Constitutional law: Dicey says constitutional law includes all rules which
directly or indirectly affect the distribution or exercise of the sovereign
power of the state. It elaborates the concept of how the executive, the
legislature and the judiciary are to function. The law which determines
the structure of the state, the allocation of powers, the law that
determines the rights and liberties of the subject guaranteed under the
constitution, as also the obligation of the citizens in consonance with
the maintenance of the solidarity of the state. The constitutional has
been above and superior to the ordinary law of the land.
It is the fundamental law of a state which contains the principles on
which government is founded. It regulates the division of sovereign
powers and directs to person each of these powers as to be entrusted
and the manner of its exercise.
Keith in his Constitutional law observes that it is the part of the
constitutional law to examine the organs by which these functions are
carried out, their inter-relations, and the position of the members of the
community in relation to these organs and the functions of the state.
2. Administrative law: It contains the laws and rules concerning the
administration of the executive departments of the state. It deals with
the structure, powers, and functions of the organs of the
administration, the limits of their powers, the methods and procedures
followed by them in exercising their powers and functions. It also
provides legal remedies to a person whose right has been infringed by
their exercising of the power of regulation of administration. It covers
the legislative and judicial powers of the executive.
According to Dicey, the Administrative law determines the constitution
and relation of those organs of society which are charged with the care
of those social interests which are the object of public administration
 and the relation of the administrative authorities towards the citizens of
the state.
3. Criminal law: It has been defined as a body of specific and definite rules
regarding human conduct and behaviour which has been promulgated
by political authority, which applies uniformly to all members of all
classes of people which the rules refer and are enforced by punishment
administered by the state. The characteristics of criminal law are as
follows-
Politicality– it is a necessary element in the criminal law. The rules made
by the state only can be said to be criminal law when the violations of
such rules are criminal in nature and are punishable.

Specificity- it generally gives a strict definition of a specific act. Acts of a

nuisance, conspiracy, official misfeasance etc.

Uniformity- the criminal law maintains the principle of justice and

without being bias, it imposes charges of punishment as
per one’s crime. The uniformity denotes the process of enforcement
of the law which is to be administered without the status of the person
committing the crime.
Penal Sanction-It is said that penal sanction is the essential element of
the definition of criminal law. The criminal law originated as an agency
of social control. It originated in torts or wrongs to individuals. The
object of criminal law is punishment and not compensation. While
compensation could be allotted as per the nature of the offence and is
granted in the form of penalty.
Mens Rea has been defined as one of the essential element to be
present in an act to constitute punishment. The criminal law deals with
the laws relating to crimes, the procedure in criminal courts and the
dealing with offenders. And also deals with the rules and regulations
concerning prisons and the treatment of prisoners.
In a civilized society, crime is considered to be a wrong not only to the
individual but to the society also. Therefore, the state initiates the
proceedings against the offender. And this is why the criminal law has
been considered as a branch of public law.

Austin divided laws into two kinds:

I. “Laws properly so called” or positive law. E.g. PPC, QSO etc. Further it was also
divided into two:
a. God law: law set by god for man
b. Human law: law set by men for men. Human law further divided into two:
i. Positive law: law set by the superior to inferior.
 ii. Other law: law not set by superior. Consisted of laws set by men to
men neither as political superiors nor in pursuance of rights
conferred upon them by such superiors, e.g., those set by a master
to a servant or the rules of a club. They r still laws properly so called
because they r commands, but he distinguished them from positive
law by giving them the term ‘positive morality’.

Thus, law properly so-called must have 3 elements–

command, sanction & sovereign.

II. “Laws improperly so called” or positive morality. E.g. religious rules, moral rules,
customs etc. it was divided into two parts:
a. Law by analogy: hey are opinions or sentiments of an under terminate body
of men & laws of fashion or honor. He places international law under this
class.
b. Law by metaphor: there are certain other rules which r called law
metaphorically – laws of nature. They are laws improperly so called.

Theories of law:

UNIT-2

Q3. Discuss analytical school?

Answer: introduction: Different approaches of treatment of jurisprudence are represented
by various schools of thoughts. The analytical school was one of them. The main premise of
this school of jurisprudence is to deal with law as it exists in present form. It seeks to
analysis the first principles of law as it actually exists in given legal system. The main
purpose of this branch of study is to analyse and digest the principle of law in its present
form. This analyse as to principle of law was done without any reference to the historical
background and the ethical significance. The supporters of this theory treat law as a
command given by the sovereign, namely state. The school therefore also called as
imperative school. The advocates of this school were neither concerned with the past of law
nor with the future of the law but they only confine to the law actually exist at present.
They study what law is and not what law was or ought to be. Thus, for this reason this
school is also called as positive school of jurisprudence.

The chief exponents of this school are Bentham, Austin, Hans Kelsen, Sheldon Amos,
Holland, and Salmond and received encouragement from Gray and Hohfeld.
A. Jeremy Bentham: he can be said as the founder of the analytical school. He laid
down the foundation of the positivism law in the modern sense of term. He was a
ferment champion of the codified law and of reforming English law. He distinguishes
between the expositional jurisprudence (what law is) and the censorial
jurisprudence (what law ought to be) or the law of legislation. The purpose of the
former one was to evacuate law while purpose of the latter one was to analyse law.
Bentham, in one of his book, rejected the clinches of the natural law. Bentham gave
the Principle of utility which says “those laws are important which gave maximum
pleasure to the maximum number of people. Those laws which are not giving
maximum pleasure and giving maximum pain to the people, then it ought to be
removed. Thus the pleasure and pain are main ingredients of this principle. He also
gave hedonistic calculus, for measuring the pain and pleasure given by law in an
imaginary way.

According to Bentham law is assemblage of signs, declarative of the volition,

conceived or adopted by the sovereign in a state concerning the conduct to be
observed in a certain case by a certain people or by group of people in the case in
the question are supposed to be subject to his power.

Bentham’s theory contains key concepts viz. Sovereignty, Command and Sanctions.
Bentham believed that there was the possibility of complete scientific codification of law.
Bentham was against the judge-made law.

Therefore, Bentham clearly states that law, which is the will of the sovereign, regulates the
conduct of the people to which it applies. Therefore, the law is what is laid down by the
sovereign. The people who are subject to the law have to regulate their conduct in
accordance with this will of the sovereign. Moreover, Bentham says that the law does not
have to be in consonance with the principles of ethics. Therefore, law is whatever is laid
down by the sovereign. According to the Bentham, a sovereign is the highest superior body
which does not owe any obedience to any other body. It is the sovereign which claims
habitual obedience from the people living in a politically organized group. Therefore, the
sovereign does not owe any allegiance to any other body or group. It is the will of this
sovereign body which is known as law. Bentham, however, states that the power of the
sovereign is not absolute as is the view of John Austin. Bentham is of the view that the
power of the sovereign can be limited as well as divided. Therefore, he is of the opinion that
a sovereign can, by his own will, limit his own powers by entering into agreements with
certain external agencies which would put restriction on the power of the sovereign. Jeremy
Bentham’s concept of sovereignty is not absolute in nature and can be restricted to a certain
extent. Another important feature of law according to Bentham is that it should be backed
by sanctions. Therefore, the will of the sovereign must always be backed up by sanctions for
it to become law. Bentham talked about the positive as well as negative side of sanctions,
 unlike Austin, who only talked about the negative side of it. Bentham was of the view that
rewards should be given to the people who follow the law while punishments should be
inflicted upon those who break the law. This was to encourage people to be law abiding and
moreover, discourage them to break the law. Therefore, according to Bentham, law is the
will of the sovereign backed by sanctions.

Principle of Utility: Jeremy Bentham also gave his famous theory of utility. According to
Bentham, any person is governed by two masters, that is, pain and pleasure. Every man
wants to increase the pleasure and diminish the pain. Therefore, any law should be made by
keeping in mind this theory of utility. Every law should be promulgated by the sovereign in
such a way that it diminishes the pain and maxim the pleasure of the people who would be
governed by that particular law. Therefore, every law should be measured by the yardstick
of public utility, that is, how much pain is it causing to the people and how much pleasure is
the person getting from the law. Any law should aim at maximizing pleasure and minimizing
the pain of the persons whom it governs. Along with the Principle of Utility, Jeremy
Bentham proposed the codification of all the laws and stated that the uncodified body of
rules that was part of the English Law was not worthy of being called as law. Therefore,
Jeremy Bentham played a crucial role in the development of the theory of Legal Positivism.

Criticisms:

1. Materialism with Idealism- He blend materialism with idealism, he underestimates the

need for individual discretion and flexibility in the application of law, and overestimated
the power of legislature.
2. Balance between the interest- he failed to maintain the balance between the interests
of the individual and the interest of community. He advocated that legislation which
was supposed to remove inroad individual freedom, and provide him opportunity for
development. But latterly it was found that legislature was used to restrict individual’s
freedom in economic matter.
B. John Austin: For John Austin, the matter of jurisprudence is the ‘positive law’ or ‘the law
simply or strictly so called’ or ‘law set by political superior to political inferior’. He believed
law as aggregate of law and defined law as ‘a rule laid down for the guidance of an
intelligent human being by an intelligent human being having power over him.’ According to
him, law is command of the sovereign requiring his subject to do or forbear to do
something. There is an implied threat of sanction if the command is not obeyed.

Austin divided laws into two kinds:

I. “Laws properly so called” or positive law. E.g. PPC, QSO etc. Further it was also
divided into two:
a. God law: law set by god for man
b. Human law: law set by men for men. Human law further divided into two:
i. Positive law: law set by the superior to inferior.
 ii. Other law: law not set by superior. Consisted of laws set by men to
men neither as political superiors nor in pursuance of rights
conferred upon them by such superiors, e.g., those set by a master
to a servant or the rules of a club. They r still laws properly so called
because they r commands, but he distinguished them from positive
law by giving them the term ‘positive morality’.

Thus, law properly so-called must have 3 elements–

command, sanction & sovereign.

II. “Laws improperly so called” or positive morality. E.g. religious rules, moral rules,
customs etc. it was divided into two parts:
a. Law by analogy: hey are opinions or sentiments of an under terminate body
of men & laws of fashion or honor. He places international law under this
class.
b. Law by metaphor: there are certain other rules which r called law
metaphorically – laws of nature. They are laws improperly so called.

In a nutshell, by law, Austin means command, sanction & duty (C+S+D), which are inextricably
linked & can’t be separated. According to him, there are 3 kinds of laws, which, though not
commands, are still within the province of jurisprudence:

(i) Declaratory of Explanatory Laws: Austin does not regard them as commands because they r
passed only to explain laws already in force, e.g., General Clauses Act.

(ii) Laws to Repeal Laws: These too r not commands but r rather the revocation of a command.
They release from duties imposed by existing laws & r named permissive laws.

(iii) Laws of Imperfect Obligation: These laws have no sanction attached to them. Thus, there is
a duty, but in case of non-compliance, there is no sanction, e.g., D.P.S.P., F.D.s, etc.

Criticism of Austin Theory:

1. Customs ignored- Austin regards only the command of sovereign, and ignored the
historical fact. Not only in early times, but in present as well customs are also regarded
as the source of law.
2. No place for judge made law: Judges made law is the significance important in
modern time but Austin completely denies this factor.
3. Command over emphasized- Olivercrona criticized this theory because it over
emphasized command. The modern progressive law is nothing but general expression or
will of the people.
4. International law is mere morality- he says international law is mere morality because
it lacks the sanction and enforcing capacity.
 5. Trilogy of command: Hart criticized Austin’s trilogy of Command, Duty and sanction as
It creates a situation where law only obligates subjects and threatens them with physical
coercion. It compels the subject to obey the command even if it is most unjust or unfair.

Comparison of Bentham & Austin:

(i) Bentham provided a deeper & more adaptable theory. His concept of sovereignty
was flexible as it avoided indivisibility & illimitability. He was, thus, able to
accommodate the division of authority b/w organs as in a federation or division in
certain areas as well as restrictions of authority.

(ii) His concept of law was broader than Austin’s. He avoided the absurdity of ‘law
properly so called’.

(iii) His sanction was both wider & less important than Austin’s sanction. Laws are still
laws even though supported by moral or religious sanctions or they may even be
accompanied by rewards. He, thus, had no need to resort to a sanction by nullity.

C. Kelsen :
Kelsen was the professor of jurisprudence in Vienna University, Austria. He mainly owes his
fame due to his pure theory of law. According to him, a theory of law must deals with law as
it is actually laid down not as it ought to be. He advocates that a theory of law should be
uniform and should be at all places and in all time. A theory is something, which is
universally applicable. Thus, in order to make his theory universally applicable, he desisted
the elements of the sociology, history, politics, economics and other discipline because they
are subject to variations from one place to another and from one time to another. Thus, he
devised a pure theory of law, which has only ingredients of one discipline i.e. law and devoid
the sociology, politics and other discipline.
Kelsen insisted that the theory of law must be free from ethics, politics, sociology, history,
etc. through their value cannot be denied, but kelsen insisted that a theory of law must not
have such consideration. That is the reason, kelsen refused to define law as command of
sovereign, as Austin stated, because that introduce political and subjective consideration.
He wishes his science to be really objective.
Thus, the pure theory of law solely concerned with that part of the knowledge which deals
with law, excluding from such knowledge everything which strictly does not belong to
subject matter of law.
For kelsen, law is normative science and not the natural science based on cause and effect.
He advocates that law is a norm which directs an official to apply forces under certain
circumstances. Thus his theory of law is a positive law.

Q4 KELSEN PURE THEORY OF LAW?

ANSWER: · KELSEN’SPURE THEORY OF LAW :
Kelsen was a Prof. of Jurisprudence in Vienna University, Austria. He owes his fame mainly due to his
Pure Theory of Law. According to him, a theory of law must deal with law as it is actually laid down not
as it ought to be. Kelsen advocated that a theory of law should be uniform and it should be to all time &
in all places. A theory is something, which has universal application. In order to make his theory to
have universal application, he desisted from including the elements of sociology, politics, economics,
history or other disciplines because they r subject to variation from one place to another & from one
time to another. Thus, he devised a pure theory, which would have the ingredient of only one discipline,
i.e., law & totally devoid of sociology, political science, economics, etc.

He insisted that a theory of law must be free from ethics, politics, sociology, history, etc. Though their
value is not denied, but Kelsen insisted that a theory of law must not have such considerations. There
must be a pure theory of law. It is for this reason that Kelsen refused to define law as a command of
sovereign, as Austin stated, because that introduces subjective & political considerations. He wished his
science to be really objective.

For Kelsen, law is normative & not a natural science based on cause & effect. It is a norm that directs an
official to apply force under certain circumstances. Thus, his theory of law is a theory of positive law.

Every body of facts has two distinguishable elements :

(i) external manifestation of human conduct that is perceived by our senses

(ii) the legal meaning of this act, i.e., the meaning conferred upon the act by the law.

e.g., people assemble in a large room, make speeches, some raise their hands, others don’t. This is the
external manifestation of the fact. Its meaning is that a statute is being passed, that a law is being
created.

Every manifested act is subject to 2 meanings – subjective & objective meaning, e.g., somebody makes
some dispositions stating in writing what is to happen to his belongings when he dies. The subjective
meaning of this act is a testament. Objectively, however, it may not be a testament due to non-
observance of some legal formalities, etc.

Difference b/w Austin & Kelsen :

(i) The view of Austin is that law is a command backed by a sanction. However, Kelsen rejects the
idea of command as it introduces a psychological element into a theory which should be pure.
(ii) To Austin, ‘sanction’ is something outside the law which imparts validity to law. However, Kelsen
maintains that the legal ‘ought’ can’t be derived from any fact outside the law.

(iii) To Austin, only command is a norm, while, to Kelsen, policy, rule, doctrine, standards, etc. r all
norms in addition to the command.

Norm & Grundnorm :

Kelsen said that ‘norm’ is a rule forbidding or prescribing certain behaviour. In other words, norm is the
meaning of an act of will by which certain behaviour is commanded or permitted or authorised. Legal
norms always belong to the realm of the ‘ought’. It is different from moral norm. The ‘ought’ in the
legal norm refers to the sanction to be applied to contra-legal behaviour. In this process, Kelsen
achieved two objectives :

(i) he removed the natural law and moral or ethical criteria from the concept of positive law; &

(ii) it also enabled him to solve the problem – how a norm can be said to be valid in case of illegal
behaviour.

‘Grundnorm’ or the basic/fundamental norm is the initial hypothesis upon which the whole system
rests. The ‘Grundnorm’ is the justification for the rest of the legal system. It is essential that it should
command a minimum of support. When it ceases to be the basis of the legal order, it is replaced by
some other ‘Grundnorm’ which obtains the support of the people. The ‘Grundnorm’ is the starting point
for the philosophy of Kelsen.

A legal order is comprised of norms placed in a hierarchical manner – one norm placed above another
norm & every norm deriving its validity from the norm above it. The hierarchy takes a pyramid form &
symbolizes the legal order. The highest norm in the hierarchy is called the basic norm or
the Grundnorm.

The function of ‘Grundnorm’ is to give objective validity to positive legal order, i.e., it is the common
source for the validity of all norms that belong to legal order. Kelsen offered no explanation about the
source of validity of the ‘Grundnorm’. He just presupposed that the ‘Grundnorm’ is valid. Kelsen stated
that ‘Grundnorm’ need not be the same in every legal order, but a ‘Grundnorm’ of some kind will always
be there. The basic point is that those who are in effective control ought to be obeyed.

The following various features of ‘Grundnorm’ will illustrate the reason for its position in pyramidal
structure :
(i) Grundnorm is not a positive norm or rule of law, but is an extra-legal or non-legal norm as it is not
derived from any higher norm.

(ii) It itself is not valid or invalid, it is an assumption or a jural postulate.

(iii) It only empowers & does not impose sanctions.

(iv) It validates the rest of the legal system / order.

(v) The pre-supposition of basic norm is based upon effectiveness.

(vi) Basic norm is the pre-supposed starting point of the procedure of creation of norms.

(vii) It gives validity to norms, but does not give content to norms.

Kelsen builds his pure science on a philosophical basis. Many philosophers emphasize that
jurisprudence must study relationship b/w law & justice, but Kelsen wished to free the law from the
metaphysical mist of justice, material of social science & natural law. He also refused to follow Austin’s
view (law is a command of sovereign) as it introduces subjective & political considerations in the
concept of law. He insisted that the sole object of the study of jurisprudence is the nature of norms or
standards which r set up by law.

For him, law & state r really the same thing viewed from different aspects. A legal order becomes a
state when it has developed organs for creation, declaration & enforcement of law. Kelsen specially
emphasized that the relations b/w state & law r inter-connected & traditional approach can’t continue
in the emerging conditions of the society. But the practical importance of Kelsen’s approach is that he
emphasized that law is a more fundamental notion than that of the state. While it is true that law can’t
exist without a legal order, that order may take forms other than that of the state. Hence, Kelsen’s
theory is wider and, therefore, more acceptable than that of Austin.

An important feature of Kelsen’s doctrine is that the state is viewed as a system of human behaviour &
an order of compulsions. Thus, only relatively centralised legal orders r states.

Kelsen also applied his theory of pure science of law to the system known as ‘International Law’, but
revealed many limitations. The pure theory requires that ‘Grundnorm’ be discovered. What Kelsen said
was that the ‘Grundnorm’ should command a minimum of support. There r two possible ‘Grundnorm’
in Intl. Law – (i) The supremacy of each system; & (ii) the supremacy of intl. law. Every national legal
order can recognise any norm superior to its own Grundnorm.
In view of Prof. Dias, it may be the principle of pacta sunt servanda & with ref. to intl. law, the
‘Grundnorm’ is a pure supposition unlike that of municipal law.

Kelsen didn’t regard the distinction b/w public & private law. He stated that contract may play as great
a part as public law. To him, law may be made either by a parliament, a judge or a private citizen. Thus,
a contract executes a superior norm & creates a binding obligation. Kelsen believed that reason could
derive one form from another, but that reason would not create an original norm, i.e., ‘Grundnorm’ /
one which was not derived from another.

Criticisms :

(i) The basic norm is a very troublesome feature of Kelsen’s system. It is not clear what sort of norm
this really is, nor what it does, nor where we can find it. (per Lord Lloyd)

(ii) Kelsen did not explain the existence of the basic norm on which the whole legal system was
founded by him. (per Prof. Goodhart)

(iii) As regards the quality of purity, for all purposes, it is dependent on the basic norm. Since that
basic norm itself is the most impure, the subsequent operations must reproduce that original impurity in
the inferior norm, thereby making the whole system impure.

(iv) The reasons for the validity of a norm can only be the validity of another norm – total pre-
supposition.

Conclusion : Kelsen’s legal theory is an original piece of research, which has successfully made a vital
contribution to jurisprudential thought. His views reg. norms, right, state, public & private law, have
received wide appreciation from various academicians & jurists. His analysis about legal order is
thought-provoking. Being original & creative piece of research, it was bound to encourage
contemporary jurists, eminent judges & philosophers to react & raise many questions for further
clarification & research.

Q 5 DEFINE HISTORICAL SCHOOL?

ANSWER: TORICAL SCHOOL – SAVIGNY & MAINE

· SAVIGNY (1779–1861)
Savigny is regarded as the founder of the Historical School. He emphasised that the muddled &
outmoded nature of a legal system was usually due to a failure to understand its history & evolution.
The core of his thesis is found in his essay ‘Vocation of our times for Legislation & Jurisprudence’ 1814.

Historical School was a reaction against priori notion of natural philosophy, i.e., unhistorical assumptions
of the natural law & rationalism (as the French Revolution instead of fulfilling the dreams of the people
disappointed them). According to Savigny, the source of law was the general consciousness of the
people and cannot be borrowed from outside. He believed that law has a national character. A nation,
to him, meant only a community of people linked together by historical, geographical & cultural
ties. Law grows with the growth & strengthens with the strength of the people & finally dies away as
the nation loses its nationality. He contended that it is the broad principles of the system that r to be
found in the spirit of the people & they manifest themselves in customary rules. Law is a matter of
unconscious & organic growth (i.e., not made deliberately). Law is found & not made. Further, law is
not universal in nature. Like language, it varies with people & age. Law is a product of the people’s
life. Law has its source in the general or common consciousness (Volksgeist) of the people. Lawyers
remain only themouthpiece of popular consciousness & their work is to shape the law accordingly. Any
law-making should, therefore, follow the course of historical development. Custom not only precedes
legislation, but it is superior to it. Law should always conform to the popular consciousness, i.e.,
Volksgeist. Savigny opposed the codification of law while pointing out the defects of contemporary
codes; codification could never cater exhaustively for all problems & it would highlight the loopholes &
weakness of the law. Codification, in Savigny’s view, should be preceded by an organic, progressive,
scientific study of the law. Hence, he never opposed codification of German law for all times to come.

Friedmann summarised the features of Savigny’s theory as follows :-

(i) Law is discovered or found & can’t be artificially invented or made;

(ii) Law is fundamentally organic & developmental in character which can be found both in primitive
& modern communities in varying forms of popular consciousness, beliefs, customs, traditions, habits &
practices which finally contribute to people’s law or Volksgeist.

(iii) Law is sui generis. It is peculiar to a people like its language so can’t be of universal validity.
Savigny’s revolutionary contribution is highly appreciated by jurists all over the world. However, the
only defect with the theory was that it exaggerated that aspect. He ruined his theory by its
overemphasis. Another criticism is that he was so occupied with the source of law that he almost forgot
the stream.

Criticisms of Savigny’s Theory :

(i) Volksgeist not the exclusive source of law : There r many technical legal rules which never existed
in nor has any connection with popular consciousness.

(ii) Inconsistency in the theory : He emphasised national character of law, but at the same time
recommended a method by which the Roman law could be adopted to modern conditions & advocated
for the acceptance of Roman law as the law of Germany. However, this proposition fails to show how
an alien system was better able to express it than the indigenous law.

(iii) Customs not always based on popular consciousness : Many customs originated only for the
convenience of a powerful minority such as slavery. Similarly, customs completely opposed to each
other exist in different parts of the same country (local customs).

(iv) Limitations of Volksgeist : In modern times, function of Volksgeist is that of modifying & adapting
rather than creating. Today, it is of little or no relevance.

(v) Other factors : Savigny ignored other factors that influence law such as he forgot the stream. He
overlooked the forces & factors which influence & determine the growth of law, e.g., law relating to
trade unions.

(vi) Juristic pessimism : His contention was that legislation should conform to existing traditional law
or it is doomed, which view will not find favour today.

Applicability of Savingy’s Theory to India :

(i) Federal Constitution : In a federal Constitution (there is a division of powers b/w the
federal/Central & the State Govts. & both r independent in their own spheres), law lacks a ‘national’
character as envisaged by Savigny.

(ii) Source of Indian Constitution : The framers of Indian Constitution incorporated various provisions
of the Constitutions of world in order to avoid defects & loopholes that might come in future such as (i)
Chapter on F.R.s – U.S.A.; (ii) Parliamentary System of Govt. – U.K.; (iii) Directive Principles – Ireland; &
(iv) Emergency Provisions – Germany. Since it has many features borrowed from other nations, it does
not fit properly in the Savigny’s scheme.

(iii) Common law in India : The process of reception of English law through the agency of the judiciary
continued unabated – law of torts, doctrine of cruelty, etc.

(iv) Deliberate legislation–making : In modern times, many new doctrines don’t always reflect the
popular consciousness, e.g., reservations for backward classes, uniform civil code, etc.

(v) Judicial activism : Savigny ignored the creative function of the judges. Judge-made law
(precedents) or judicial legislation is a common feature today.

· SIRHENRY MAINE (1882 – 1888) :

Savigny’s method of the historical school was followed in England by Sir Henry Maine, Lord Bryce &
many others who made studies of various legal systems on historical lines. Maine published his first
work ‘Ancient Law’ in 1861. This is considered to be the manifesto of his lifework in which he stated his
general doctrines. He also wrote Village Communities(1871), Early History of Institutions (1875)
& Dissertations of Early Law and Custom (1883). He was law member in the Council of the Governor–
General of India b/w 1861 & 1869, which provided him an opportunity for the study of Indian legal
system.

Maine inaugurated both comparative & anthropological approaches to the study of law. Unlike
Savigny, Maine favoured legislation & codification, he did not share Savigny’s mystique of the
Volksgeist & he used the study of legal history mostly to understand the past & not to determine the
future course & standards.
Maine classified the development of law in the following stages :

(i) In the beginning, law was made by the commands of the ruler believed to be acting under the
divine inspiration, e.g., Themistes of ancient Greek. When a king decided a dispute by a sentence, the
judgment was assumed to be the result of direct inspiration. The king was not the maker of law, but
merely an executor of judgments of the God.

(ii) In the second stage, the commands crystallise into customary law. Customs seem to have
succeeded to the prerogatives of the king. Hwr, they don’t appear to hv pretended to direct inspiration
for each sentence & the progress of thought no longer permits the solution of a particular dispute to be
explained by supposing an extra–human interposition.

(iii) In the third stage, the knowledge & administration of customs goes into the hands of a
minority, due to the weakening of the power of the original law-makers, usually of a religious
nature, e.g. priests. The ruler is superseded by a minority who obtain control over the law.

(iv) In the fourth stage, the law is promulgated in the form of a code.

Static & Progressive Societies :

The growth of law was on a uniform basis amongst the primitive societies upto a certain stage of
development. The societies, which do not progress beyond the fourth stage & close the era of
spontaneous legal development, r static societies. The stationary/static societies don’t move forward
beyond the era of the codes.

The societies, which go on developing their law by new methods, r called progressive societies. They
develop their law with the help of three instruments / methods, namely, legal fiction, equity &
legislation, in order to make law harmonious to social needs & change.

(i) By use of legal fictions, law is altered to changing needs of the society, while it is pretended that it
remains what it was. Thus, legal fictions change the law according to the changing needs of the society
without making any change in the letter of law. He thought fictions should be abandoned in a society
because they made the law more difficult to understand & harmonise legal order.

(ii) Equity is used to modify the law as a set of principles invested with higher sacredness than those
of original law. Equity came to remove the rigidity in law & to remove injustice, delay & other
inconveniences. According to Maine, equity is a body of rules existing by the side of the original civil law
& founded on distinct principles.

(iii) The final stage comes with the legislation, which is the last effective instrumentality of quick social
reform. Law can be enacted by explicit declarations of intention incorporated in the language of legal
enactments. Maine regarded it as the most desirable method of legal change.

In early societies–both ‘static’ & ‘progressive’, the legal condition of the individual is determined by
status, i.e., his claims, duties, etc. are determined by law. The march of progressive societies witnessed
the disintegration of status & the determination of legal condition of the individual by free negotiation
on his part. The development of societies was summed up by Maine in the following famous phrase, “If
we employ status to signify the conditions only & avoid applying the term to said conditions, we may say
that the movement of the progressive societies has hitherto been a movement from status to contract”.

From a condition of society, in which all the relations of persons wr summed up in the relation of
family, we seemed to hv steadily moved towards a phase of social order in which all these relations
arose from free agreement of individuals.

According to Maine, status is a fixed condition in which an individual finds himself without reference to
his will and of which he can’t divest himself by his own efforts. The group, not the individual, is the
primary unit of social life. With the progress of civilisation, this condition gradually gives way to a social
system based on contract. This is the age of the standardised contract & of collective bargaining (trade
unions, business associations, etc.). Even the contracts, which an individual enters into in everyday life,
have been standardised as contract for water, electricity or contract for a carriage with a railway
company. The freedom of contract is, thus, being curtailed every day.

Thus, Maine’s theory of ‘Status to Contract’ does not have much force in the modern age. In India, the
policy of ‘mixed economy’ has assumed greater control over individual liberty & freedom. The State can
impose reasonable restrictions in the interest of the public {Art. 19(6)}. Pollock says that this theory is
limited only to laws of property because personal relations like marriage, minor’s capacity, etc. are still
matters of status & not of contract.

However, in one sense, Maine’s theory still holds good. The trend of legislation in undeveloped or
developing countries is to remove personal disabilities, which arise due to membership of a class
(status).
On the whole, Maine presented a balanced view of history of law. Savigny had explained the relation
b/w community & law, but Maine went further & pointed out the link b/w the developments of
both. His conclusions are based on comparative study of different systems & hence their value is
greater than other studies based on Roman Law exclusively. Influenced Friedmann, Dicey, etc.

In the words of Dr. Friedmann: It can be concluded that the contribution of Maine is an important piece
of comparative legal research to a legal theory inspired by principles of historical evolution. His great
contribution to legal theory specially lies in the combination of what is best in the theories of both
Montesquieu & Savigny. Maine’s theory avoids the danger of an excessive disintegration of theoretical
laws of legal evolution. It is also free from the abstract & unreal romanticism, unlike Savigny’s theory.

· Difference b/w Historical & Analytical School :

S.No. Analytical School Historical School

1. Law is the command of the sovereign Law is found & not made.
(created by sovereign).

2. Law is enforced by the sovereign. Law is independent of political authority & its
enforcement.

3. Example of typical law is statute. Custom Example of typical law is custom. Custom is law
isn’t law, until its validity has been by itself. It does not require State recognition
established by a judicial decision/by an Act to become a law.
of legislature.

4. Force of politically organised society is the Law rests on the social pressure.
basis of law.

5. Judges find themselves to interpretation of Judges to consider only history of legislation.

statute.

6. Applicable to developed countries – Applicable to developing countries – primitive

matured legal systems. legal institutions of society.
Q DICSUSS THE SOCIOLOGICAL SCHOOL?

ANSWER: IOLOGICAL SCHOOL OF JURISPRUDENCE :

Jurists belonging to the sociological school of thought r concerned more with the working of law rather
than its abstract content. Their principal premise is that the law must be studied in action & not in
textbooks. They r concerned with the study of law in relation to society. They concentrate on actual
social circumstances which give rise to legal institutions. They insist that the legal order is a phase of
social control & that it can’t be understood unless taken in its whole setting among social phenomena.

The factors responsible for the emergence of this school are:

(i) Mental bankruptcy of analytical approach to meet the social demands of modern society;

(ii) Conflicts b/w individual interests & social interests & the need to reconcile them;

(iii) Inter-connection b/w law and society.

(iv) Works of the earliest pioneers of the new interests in society, i.e., Bentham, Renner, Weber, etc.

The following are the main characteristics of this school:

(i) Sociological jurists r concerned more with the working of the law of the legal order & legal
precepts rather than its nature.

(ii) According to Analytical jurists, law is made consciously; Historical jurists, it is something found;
but the Sociological jurists regard law as social institution.
(iii) Sociological jurists lay stress upon the social purposes / securing social interests rather than on
sanction.

(iv) Sociological jurists look on legal institutions, legal doctrines & legal precepts functionally ... this is
the functional view of law.

The objective of sociological source of jurisprudence is to resolve immediate problems of society with
such tools – legal or extra legal and techniques which promote harmony & balance of interest of society.

· RUDOLF VON IHERING ( 1818 – 1892 )

Ihering was German jurist. He has been described as the “Father of Modern Sociological
Jurisprudence”. He rejected the Analytical & Historical jurisprudence as jurisprudence of conceptions.
According to him, law is an instrument for serving the needs of individuals of society. Hence, the law
should be studied in terms of purposes or interests which it sub-serves. He observed, “The stone does
not fall in order to fall, but it must fall because its support is taken away. Similarly, the man who acts
does so not because of anything, but in order to attain something. As there can be no motion of the
stone without a cause, so can there be no movement of the will without purpose.”

According to him, human will is directed towards the furtherance of individual

purposes. In realisation of individual purposes, there is bound to be a conflict b/w social interests &
individual’s selfish interests. Ihering tries to reconcile the individual interest with that of the society. So,
law is only an instrument for serving the needs of the society ... its purposes & interests. The success of
the legal process depends on achieving proper balance b/w social & individual interests. It is
through two impulses – coercion & reward, the society compels individuals to subordinate selfish
individual interests to social purposes & general interests. The natural impulse of duty & love also make
man to sub-serve social ends. Therefore, Ihering views law as an instrument of social control balancing
of individual interest with that of the society.

· ROSCOE POUND ( 1870 – 1964 )

Dean Roscoe Pound (RP) has been acknowledged as the unchallenged chief of the sociological school of
jurisprudence. Sociological jurisprudence arose as a reaction to positivism (19th century positivist
jurisprudence) since it refused to consider social & economic circumstances. Its main contribution
was broadening the scope of jurisprudence. Law is not an isolated phenomenon, but is a part of social
reality. RP, one of the leading American jurists & pioneer in the American jurisprudence, can be said to
be the father of sociological jurisprudence in America. According to RP, law takes account
of social facts / reality.

RP asserts that law is a method or technique for harmonizing conflicting social interests. His school is
known as functional school as it concentrates more on the functional aspect of law. In modern society,
there r various interests & if claims of these groups r not harmonized, there may be strife & thereby
production may suffer. By social engineering, RP means a balance b/w the competing interests in
society. In other words, social engineering is a term used to define the act of balancing of different
interests, i.e., individual interests, public interests & social interests. The aim of social engineering is to
build as efficient a structure of society as possible, e.g., if a factory is polluting the environment & an
injunction suit is filed for closing it, the court must balance various claims & interests –claim of the mill
owner to do his business, claims of the workers in the factory to retain their jobs, claim of local residents
to have a clean environment, etc. RP says law exists for the benefit of the society. Any law, which is
against the interest of the society, can’t be said to be a law.

Despite the broadness of his views, he gave preference to the practical means in the study of law, which
are as under:

(i) to make a study of the actual social effects of legal institutions & legal doctrine/to look more to
the working of law than to its abstract content;

(ii) to regard law as a social institution which may be improved by intelligent efforts discovering the
best means of furthering & directing such effort.

(iii) to lay stress upon the social purposes which law sub-serves rather than upon sanction.

(iv) to study what social effect the doctrines of law have produced in past.

(v) to stand for equitable application of law.

(vi) to make effort more effective in achieving the purposes of law.

RP’s theory is that the interests are the main subject-matter of law & the task of law is the satisfaction of
human wants & desires. It is the duty of law to make a valuation of interests. He classified interests
under three heads –

(i) Individual; (ii) Public; & (iii) Social

(i) Individual Interests – These are claims or demands or desires involved in & looked at from the
standpoint of the individual life such as (i) Personality e.g. freedom of will, privacy, belief & opinion as
also honour & reputation; (ii) Domestic relations e.g. relations of husband & wife, parents & children; &
(iii) Interests of substance e.g. proprietary rights, inheritance & testamentary succession, contract,
continuity of employment, freedom of association.

(ii) Public Interests – These are claims or demands or desires asserted by individuals involved in &
looked at from the standpoint of political lifesuch as (i) Interests of the State as a juristic person e.g. (a)
integrity, freedom of action & honour of the State personality; & (b) claims of the politically organised
society as a corporation to property acquired & held for corporate purposes; (ii) Interests of the State as
guardian of social interests – this seems to overlap with the next category, i.e., Social Interests.

(iii) Social Interests – These are claims or demands or desires thought of in terms of social life &
generalised as claims of the social group. They concern: (i) Interest in the preservation of peace, public
health & order and maintaining general security; (ii) Interest in preserving social institutions like
marriage, domestic & religious institutions; (iii) Interest in preserving general morals by counteracting
corruption, drunkenness, prostitution, gambling, etc.; (iv) Interest in conserving social resources;
(v) Interest in general progress (economic, political & cultural) which is to be achieved by freedoms of
education, speech, trade, property, etc.; & (vi) Social interest in individual life like promotion of human
personality, self-assertion, etc. – each individual to be able to live a human life according to the
standards of the society.

Every society has certain basic assumptions upon which its ordering rests. These assumptions are
the Jural Postulates of the legal system as embodying the fundamental purpose:
I In civilized society, men must be able to assume that others will commit no intentional
aggressions upon them.

II In civilized society, men must be able to assume that they may control for beneficial purposes
what they have discovered & appropriated to their own use, what they have created by their own
labour or what they have acquired under the existing social & economic order.

III In civilized society, men must be able to assume that those with whom they deal in general
intercourse of society (others) will act in good faith.

IV In civilized society, men must be able to assume that those who engage in some course of conduct
will act with due care not to cast an unreasonable risk of injury upon others.

V In civilized society, men must be able to assume that others, whomaintain things or employ
agencies, harmless in the sphere of their use but harmful (things) in their normal action elsewhere, will
restrain them or keep them within their proper bounds.

RP insists, interests should be weighed on the same plane as it were. One can’t balance an individual
interest against a social interest. Freedom of the person might be regarded as an individual interest, but
it is transferable as an interest of the society that its members should be free. However, in order to
harmonize conflicting interests in modern dynamic society, judge will often have to dispense justice
without law, i.e., without following any prescribed rule or precedent.

The task of law is ‘social engineering’, i.e., the balancing of competing interests in society. He coined the
expression ‘social engineering’ to represent the true attitude to law & its function. To build a
society,jurists, lawyers & judges must use law as an engineer does his material sparingly, but produce
the best results. Thus, the law is an attempt to reconcile, to harmonize, to compromise, these
overlapping & conflicting interests. His philosophy is essentially one of practical compromise. RP
believes that interests are the chief subject of law & that the task of law in society is the satisfaction of
human wants & desires.

Critical Analysis of RP’s Theory : RP’s theory mainly emphasis functional aspects of law & ignores nature
& character of law.
(1) Lack of criteria of evaluation – It is not interests as such, but the yardstick with reference to which
they r measured that matter.

(2) Interests pre-exist laws – It isn’t true as there r certain social legislations in which the interests r
created by the law & others.

(3) Misleading balancing metaphor – If two interests r to be balanced, that presupposes some ‘scale’
or ‘yardstick’ with reference to which they r measured. The ‘weight’ to be attached to an interest will
vary according to the ideal that is used.

(4) From legislation to court judgments – RP emphasised ‘judicial activism’. His theory shifts the
centre of gravity from legislation to court judgments. A list of interests can’t be drawn in advance as
new interests r created & recognised by the courts. The judiciary has limitations & doesn’t have the
machinery of enforcing its decisions. It can’t do what legislature can do.

(5) Theory lacks general application (Applicability to India) – There r certain competing interests
which can never be balanced or reconciled, e.g., interests of labour & capital and landlord & tenant.

(6) Utility of list of interests – A society constantly develops & changes and the pressures behind
interests change too. What is an individual interest & what is a social interest is itself a matter of
changing political conceptions. The value or importance to be allotted to each interest can’t be
predetermined & the recognition of a new interest is a matter of policy.

Despite the aforesaid criticisms, the significance of RP’s sociological jurisprudence is of world
import as it strikes a fine synthesis b/w liberty & equality and b/w freedom & social control through the
instrumentality of law. He is no enemy of abstract philosophy, but he is impressed by certain limits of
legal philosophy. RP asserts, “I don’t believe that the jurist has to do more than recognize the problem
& perceive that it is presented to him as one of securing a balance or harmony among them”.

For RP, law is a product of class conflict. Law is not autonomous, but a product of policy. Laws reflect
the ideology of a ruling class. Laws will only be effective. His theory is relevant only for an ideal society.
A conflict model & not a consensus model will create interests. Unless a conflict situation is
created, interests can’t be created. Law is a social force.

In short, the important & remarkable feature of this school is that the jurists are concerned with the
study of law in relation to society. The principal area is that law should be studied in action & not in
textbooks. The inter-connection b/w law & society should be that of such a nature, which can fulfil
maximum interest of community. It should not be an instrument of coercion as a means to sub-serve
the ends of the society. In essence, the sociological jurists look at law functionally.

Q19. DefineNatural 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 one’s friend’s purposes, one’s
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.

Q21. EXPLAIN THE ROSCOE POUNDS THEORY OF SOCIAL ENGINEERING.

ANSWER: INTRODUCTION:- Roscoe Pound is considered to be the,” American Leader” in the field of
Sociological jurisprudence. He comes from Harvard Law School and had a great academic favour.
According to him,” the end of law should be to satisfy a maximum of wants with minimum of friction.”
He defined law as containing the rules, principles, conceptions and standards of conduct and decision as
also the precepts and doctrines of professional rules of art. He considers law as a means of a developed
technique and treats jurisprudence as ‘social engineering’.

The main propositions of Roscoe Pound theory of Social Engineering are as under:-

i) POUND CONCENTRATES ON THE FUNCTIONAL ASPECT OF LAW:- Pound concentrates more on

the functional aspect of law, that is why some writers name has approach as “ functional school” the law
is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go
round as far as possible with the least friction and waste.

ii) THE TASK OF LAW IS “SOCIAL ENGINEERING”:- He says, “for the purpose of understanding of law
of today. I am content with a picture of satisfying as much of the whole body of human wants as we
may with the least sacrifice. I am content to think of law as a social institution to satisfy, social wants,
the claims and demands involved in the existence of civilized society.

iii) SOCIAL ENGNEERING MEANS A BALANCE BETWEEN HE COMPETING INTEREST IN SOCIETY :- He

lays down a method which a jurist should follow for ‘social engineering’. He should study the actual
social effects of legal institution and legal doctrines, study the means of making legal rules effective
sociological study in preparation of law-making, study of judicial method, a sociological legal history and
the importance of reasonable and just solutions of individual cases.” He himself enumerates the various
interests which are to be 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 POUND’S 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 Pound’s 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.”

POUND’S 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.

Q8. ACCORDING TO AUSTIN JURISPRUDENCE CAN BE DIVIDED INTO TWO PARTS

GENERAL AND PARTICULAR. EXPLAIN?

UNIT-3

Q 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.

Q4. Define legal right, types and its essential elements.

Answer: right is the immunity or a facility or an interest or a freedom or a privilege. In this way for the
purpose of jurisprudence it is termed as legal right. Austin in his theory has separated jurisprudence
from the morality or materiality. He gave the concept of positive law. The law is also positive law right,
which is a term of legal right. Legal right is recognized by law. It is differ from the moral right. The
violation of moral right is called as moral wrong. The natural law is violated it is called as natural wrong.
But these wrongs are not remedial under law, only the violation of legal right was remedial under the
law.

Different jurists define legal right and that are:

Austin: right is a faculty which resides in the determinate party or parties by virtue of given law and
avails against the party or parties other than the party or parties in whom it resides.

Salmond: right is that interest of the person which is recognized and protected by the rule of light. Here,
rule of light refers to the rule of law or law of state. Thus, legal right is that interest which was protected
by the law.

Holland – Legal rights were defined by Holland as the “capacity residing in one man of controlling, with
the assent and assistance of the state the actions of others.” He followed Austin’s definition

Gray – He defined a legal right as “that power which a man has to make a person or persons do or
refrain from doing a certain act or certain acts, so far as the power arises from society imposing a legal
duty upon a person or persons.” He states that the “right is not the interest itself, it is the means to
enjoy the interest secured.”
Paton: legal right is that right that is should be enforced by the legal process of state. He however given
some exception to it:

i. It is not necessary that the state should always necessarily enforce all the legal rights.
ii. There are certain rights which recognized 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”
iii. 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.

THEORIES OF THE LEGAL RIGHT:

i. 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 Dovrecognised 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.

The Will Theory states that right is an inherent attribute of the human will. It says that the
purpose of the law is to allow the free expression of human will. This theory was advocated by
scholars like Hegel, Kant, and Hume and so on. The subject matter is derived from human will.
Austin, Holland and Pollock define rights in terms of will. According to the famed French Jurist,
John Locke “the basis of the right is the will of the individual.” Puchta defined the legal right a
power over an object which by means of right can be subjected to the will of the person
enjoying the right. This theory has been widely accepted by the jurists in Germany.

Despite its wide acceptance, there were many scholars who disagreed with it. Some of the
criticisms were from Duguit who is opposed to the “will” theory. According to him the basis of
law is the objective fact of “social solidarity” and not the subjective will. The law is to protect
only those acts or rights which further “social solidarity”. He calls the theory of subjective right a
a mere metaphysical abstraction.

ii. INTEREST THEORY: This theory says that interest is the base of the right. It is only interest
which is recognized 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 recognized by law are called right.

The Interest Theory was proposed by the German Jurist, Rudolf von Jhering. Jhering defined
rights as legally protected interest. Jhering does’ not emphasize on the element of will in a legal
right. He asserts that the basis of legal right is “interest” and “not will”. The main object of law is
protection of human interests and to avert conflict between their individual interests. These
interests are not created by the state, but they exist in
 The life of the community itself. Salmond supported it but mentioned that enforceability is also
an essential element. He says, “Rights are concerned with interest, and indeed have been
defined as interests protected by rules of right, that is by moral or legal rights.”

Salmond has criticized Jhering’s theory on the ground that it is incomplete since it completely
overlooks the element of recognition by the state. A legal right should not only be protected by
the state but should also be legally recognized by it. Gray stated that the theory was only
partially correct. He emphasized that a legal right is not an interest in itself but it is only a means
to extend protection to interests. He considers legal right as that power by which a man makes
other persons do or refrain from doing a certain act by imposing a legal duty upon them through
the agency of law “state”.

Both these theories are not opposed to each other, it is rather a combination of both that is
correct. Dr. Allen has tried to blend these two theories by pointing out that the essence of legal
right seems to be, not legally guaranteed power by itself nor legally protected interest by itself,
but the legally guaranteed power to realize an interest. Thus, it would be sensible to say that
both “will” and “interest” are essential ingredients of a legal right.

ESSENTIAL OF VALID LEGAL RIGHT:

i. SUBJECT: here means a person who has right. So there must be a person for rights. It is also
known as the subject of right. A legal right is always vested in a person who may be
distinguished, as the owner of the right, the subject of it or the”person of inherence”. Thus,
there cannot be a legal right without a subject or a person who owns it. The subject means the
person in whom the right is vested or the holder of the right. There can be no right without a
subject. A right without a subject or a person who owns it is inconceivable. The owner of the
right, however, need not be certain or determinate. A right can be owned by the society, at
large, is indeterminate
ii. FORBEARENCE OF DUTY: 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.
iii. 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.
iv. CORRELATIVE DUTY: or 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. A legal right
operates against a person who is under the obligation to obey or respect that right. He is the
“person of incidence”. He is a person bound by the duty or the subject of the duty. Here Austin
is not agreeing to this He says that the duty may be divided into two kinds i.e. (1) Absolute
and (ii) Relative.
 v. 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.

Hence, it can be observed every right involves a three-fold relation, in which it stands

1. It is a right against some person or persons.

2. It is a right to some act or omission of such person or persons.
3. It is a right over to something to which that act or omission relates

The terms of ‘person’, ‘act’, and ‘thing’ are connected with the term ‘Right.’

A popular illustration that was quoted by Salmond satisfies all the above mentioned elements of legal
rights. It is as follows –

“If A buys, a piece of land from B, A is the subject or owner of the right so acquired. The persons bound
by the correlative right are persons in general, for a right of this kind avails against all the world. The
context of the right consists in non-interference with the purchaser’s exclusive use of the land. The
object or subject-matter of the right is the land. And finally, the title of the right is the conveyance by
which it was acquired from its former owner”

LLUSTRATION: 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 purchaser’s exclusive use of the land.

Kinds of Legal right:

A. 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. primary Rights are also called antecedent rights. It is vested within a person
by law or any other legal manner. These are the bundles of those rights which are the
privileges enjoyed by any person e.g. a person’s rights to Liberty.
A violation or breach of the primary rights, on the other hand, gives rise to a sanctioning
right or remedial right. These are also known as secondary rights. It is also called the
remedial or adjectival rights. It is called so as it is a mode of legal enforcement, for the
loss of the primary right. It is subdivided into two kinds – 1. Right to exact and receive a
pecuniary penalty from the defendant for loss of right and 2. Right to exact and receive
damage for the injury caused to the defendant. It can be said that primary rights exists
independently whereas secondary rights have no separate existence and arise only on
violation of primary rights
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.
B. POSITIVE RIGHT 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
prohibits doing an act. A right is considered as positive or negative depending upon its
correlative duty. A positive right exists when the owner of it is entitled to something to be
done by the person of incidence. A person possessing a positive right can compel the person
with the duty to perform a positive act. For instance, a right to receive a compensation is a
positive right. A negative right corresponds to a negative duty and is a right that the person
bound shall refrain from some act which would operate to the prejudice of the entitled; in
other words, a negative right, corresponds a negative duty. It is a right of the person and the
person bound shall restrain from doing some act which will be prejudicial to the person
entitled, such as when a person owns a land, it is the duty of others to not trespass.

Every person is entitled to negative rights, but only a few get positive rights. The number of
negative rights is larger than the positive rights. The difference between these rights is
illustrated below –

i. A positive right corresponds to a positive duty whereas a negative right corresponds to a

negative duty.
ii. A positive right involves a positive act while a negative right involves some kind of
forbearance or not doing.
iii. A positive right entitles the owner of it to an alteration of the present position to his
advantage whereas a negative right seeks to maintain the present position of things.
iv. A positive right aims at some positive benefit but a negative right aims at not to be
harmed.
v. A positive right requires an active involvement of others but a negative right requires
only positive acquiescence of other persons.
vi. A positive right receives something more than what one already has whereas a negative
right seeks to retain what one already has.
vii. A positive right has a mediate and indirect relation to the object while a negative right is
immediately related to the object.
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.
C. LEGAL RIGHT AND EUITABLE RIGHT: The division of right has its origin in England.
Legal Right is recognized by Law. While equitable right has been recognized by natural justice. In
England there were two types of courts: (i) Legal courts (ii) Chancery courts. These type of
legal rights cannot be found in India. It is found only in England. Legal rights are those which
were recognized by the Courts of Common Law in England and Equitable rights are those
which were solely recognized in the Court of Chancery. The underlying principle in regards
to equitable rights is that when there are two inconsistent equitable rights claimed by
different persons over the same thing, the first in time shall prevail. Although, where there
is a conflict between a legal right and an equitable right, the legal right shall take
precedence over equitable right even if it is subsequent to the equitable right in origin. The
 Privy Council in Chatra Kumari Devi v. Mohan Bikram [(1931) 58 I.A 279] observed that the
Indian law does not recognized legal and equitable estates.
D. VESTED AND CONTIGENT RIGHT: These rights are 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. A vested right is a right in respect of which
all events essential to vest the right in the owner have happened; while a contingent right is
one in respect of which only some of the events necessary to vest the right have happened
and the vesting can be complete only on the happening or non-happening of a specified
uncertain event. A vested right is not dependent upon the fulfillment of any condition and a
right becomes contingent only on the fulfillment of any condition that may either be
subsequent or precedent. Vested rights are transferable and inheritable, this is not possible
in contingent rights.

E. PROPERTIAL RIGHT AND PERSONNAL 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. Proprietary Rights are rights that are related to
a person’s property whilst personal rights relate to one’s body. Proprietary rights are
transferable and personal rights are not. If the breach of a right can be measured in
terms of money or it has money value than it is said that the person has proprietary
right but if the breach of a right cannot be measured in money or it has no money
value that that right is known or called as personal right. A personal right is
uninheritable and dies with him.
F. RIGHT IN PERSONAM AND RIGHT IN REM: 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.
G. PERFECT RIGHT AND IMPERFECT RIGHT: These rights which are enforceable by law are
perfect and which law does not enforceable are imperfect rights. A perfect right is one which
corresponds to a perfect duty and a perfect duty is one which is not only recognized by the
law but is enforced also. Perfect right means the complete right, which signifies the right for
which there is remedy also. This is explained by the latin maxim “ubi jus ibi
remedium” which means, where there is a right, there is a remedy. When in case of the
breach the right is not enforceable in a court of law then it is known as imperfect right. This
was stated in the case of Allen v. Waters & Co. [(1935) 1 KB 200]. The Directive Principles of
the State Policy that is present in the Indian Constitution is an example of imperfect rights.
H. RIGHT IN RE-PROPIA AND RIGHT IN RE-ALENA: Rights in re Propria and Rights in re
Aliena are a classification of proprietary rights. Right in re Propria is the right in his own
thing and if he has a right in the property belonging to another than he is said to have a right
in re Aliena. A right in re-Aliena ‘or encumbrance”’ has been defined by Salmond as one
which limits or derogates from some more general right belonging to some other person in
 respect of the same subject-matter. Salmond refers to four classes of encumbrances,
namely, i) Leases; ii) Servitudes; iii) Securities & iv) Trusts.

i) Leases – A lease is an encumbrance of property vested in one person by a right to the

possession and use of it vested in another person.

ii) Servitude – A servitude is a right to the limited use of a piece of land unaccompanied
either by the ownership or possession of it.

iii) Security – Security is an encumbrance vested in a creditor over the property of his debtor for
the purpose of securing the recovery of the debt.

iv) Trust – A trust is an encumbrance in which the ownership of property is limited

by an equitable obligation to deal with it for the benefit of someone else. The owner of the
encumbered property is called the trustee and the owner of the encumbrance is the beneficiary
of tire trust.

I. Principal and Accessory Rights: A principal right is a primary right of a person vested in him
by the law of the land, or through any other legal method. An accessory right is a right which
is connected with the principal right. Principal rights exist independently while accessory
rights are dependent upon principal rights. They are beneficial on the principal right.
J. Public and Private Rights: Legal rights can be considered as both public and private. Public
rights are those vested with the state. The state enforces such right as a representative of
the subjects in public interest. A public right is possessed by every member of the public. For
example, a right that is concerned with the Government may be termed as a public right
such as the right to vote. A private right, on the other hand, is concerned with individuals,
that is both the parties connected with it are private persons. For example, owning a vehicle
is a private right.

Q7. What are sources of law?

Answer: Source always gives us the understanding of the objective behind the formation of something.
Everything in this universe has a source which carries its authenticity. Without a source, everything loses
its importance. We all are very well acquainted with the word “LAW” and is used in our day to day life.

The phrase ‘law’ has been derived from the Teutonic phrase ‘Lag, this means that ‘specific’. In this
foundation, the law may be described as a specific rule of demeanor and human relations. It additionally
approaches a uniform rule of conduct that’s applicable equally to all the human beings of the state. The
law prescribes and regulates well-known situations of human pastime inside the kingdom.

“law is the command of the sovereign.” “it is the command of the advanced to an inferior and pressure
is the sanction at the back of law.” —Austin
“A regulation is a popular rule of outside behaviour enforced with the aid of a sovereign political
authority.” –Holland

“Law is the body of principles recognized and applied by the State in the administration of justice.”—
Salmond

In simple phrases, the law is a specific rule of behaviour which is sponsored with the aid of the
sovereign energy of the country.

Sources of Law:
a. Formal Sources: The legal power of the law can be found in the formal sources of law.
Formal sources are the sources from which the law derives its force and validity. Of
course, the only authority from which the law can spring and derive forces and validity is
the state.

This source of law includes:-

i. Will of the State: The State makes its own law for the benefit of its residents
with due process of law enshrined in our esteemed constitution. In Indian
scenario, the State can make laws on the subjects which are provided in the
State list under 7th Schedule. Hence State has the power to make laws and
henceforth the laws made are categorized under formal sources of law.
ii. Will of the people: Sometimes laws are even made by the will of the people.
When people face a certain problem in their day to day life they have the option
to address those delinquent and if the State is satisfied with those problems and
solutions stated then State makes it in a form of law. For example, people are
not allowed to use speakers or play loud music after 10 pm at night.
iii. Judicial decisions of the court: Even judicial decisions delivered in various
judgment is a source of law and falls under a formal source of law. The decisions
given by our lordships are of immense value and treated as a form of law. There
are numerous judgments after which it has been transformed into a law. The
reports submitted by judges or by the committee’s ad hoc or permanent is also
converted into law if it suffices the purpose.
b. Informal/Material Sources: As the name suggests the material for the different law can
be taken up from these sources. However, the validity of laws cannot be done from
these sources. The material sources provide the matter. According to Salmond “the
material source supplies the substance of the rule to which the formal source gives the
force and nature”. Material source of law is the place where the law material is taken.
Material source of law is a factor that helps the formation of the law.
For example, Social relations, political power relations, socio-economic situation,
tradition or religious views. The results of scientific research, international development,
and geographical circumstances.
Legal Sources: Legal sources are considered to be one of the most significant sources of law. Basically,
legal sources are the sources by which legal rules are formed. Legal sources are considered to be one of
the primary and important organs for the development of legal rules. Legal sources are considered to be
an authentic source for the formation of law. Legal sources are the main gates which allow us to get into
the real realm of law. Legal sources are even followed in the courts when some decision has to be
pronounced.

These sources serve the basis for the formation of laws. They are:-

i. Legislations
ii. Precedent
iii. Customs
iv. Treaties and Conventions

Legislations: It is considered to be one of the primary sources of law. Legislation has a

very wide ambit and is used in providing various types of requirement such as to regulate, to authorize,
to enable, to prescribe, to provide funds, to sanction, to grant, to declare or to restrict. A parliamentary
legislature frames new laws, such as Acts of Parliament, and amends or repeals old laws. Most of the
power of the legislature is restricted by the nations constitution. Although the legislation has the power
to legislate the court has the power to interpret statutes, treaties and regulations.

‘Legis’ means regulation and ‘latum’ means making. allow us to understand how various jurists have
defined regulation.

Salmond- “legislation is that source of law which is composed within the declaration of prison
regulations by using an able authority.”

Horace gray- “regulation way the formal utterance of the legislative organs of the society.”

John Austin- “There may be no law without a legislative act.”

Analytical Positivist faculty of notion– this school believes that common regulation is a statute and
legislation is the normal supply of regulation making. most people of exponents of this school do no
longer approve that the courts also can formulate law. They do no longer admit the claim of customs
and traditions as a supply of law. as a consequence, they regard most effective law because of the
supply of law.

Historic school of the idea– This group of professors believe that legislation is the least creative of the
assets of law. The Legislative purpose of any regulation is to provide better form and effectuate the
customs and traditions which are spontaneously evolved with the aid of the people. for this reason, they
do not regard regulation as a source of law.

Different Kinds of legislation

 i. Supreme legislation– An ultimate or an advanced law is that which proceeds
from the sovereign strength of the nation. It cannot be repealed, annulled or
managed via another legislative authority.
ii. Subordinate legislation– it’s far that which proceeds from any authority aside
from the sovereign power and is dependent for its persistent existence and
validity on some superior authority.
iii. Delegated law– that is a sort of subordinate law. it’s miles that the principal
feature of the government is to enforce the law. In case of Delegated regulation,
executive frames the provisions of law. this is also known as govt legislation. The
govt makes laws in the form of orders, by-laws and so forth.

Sub-Delegation of power to make laws is likewise a case in Indian legal system.

In India, the power to make subordinate law is commonly derived from existing
permitting acts. It’s miles essential that the delegate on whom such power is
conferred has to act within the limits of the permitting act.

the main cause of this kind of regulation is to supplant and no longer to

supplement the law. Its predominant justification is that sometimes legislature
does now not foresee the difficulties that would come after enacting a
regulation. Therefore, Delegated legislation fills in the one’s gaps that aren’t
seen at the same time a method of the allowing act. The delegated legislation
offers flexibility to regulation and there is sufficient scope for adjustment inside
the light of experiences received in the course of the running of regulation.

Precedent: Judicial precedent mandates that there be a hierarchy of courts to help take
care of issues. Judicial precedent, in its outright meaning, makes a previous decision of one court be
binding on a lower court. The concept of stare decisis plays a role here. In other words, if a higher court
has decided on a case and another similar case comes up at a lower court, the lower court will treat the
case alike and pass the judgment exactly as like done by the higher court. This is because the previous
judge had set a precedent for the lower court and the lower court and the lower court is bound to
follow the precedent as such, as long as the case can be treated on a similar platform like the one
decided earlier by the higher court.

A Key principle of Judicial Precedent

i. Consistency
ii. Hierarchy
iii. Bound by its own decision

Customary Law: Salmond said that ‘custom is the embodiment of these concepts
which have counseled themselves to the countrywide judgment of right and wrong as the ideas of
justice and public utility’.
Keeton said that “normal legal guidelines are those regulations of human movement, established by
usage and seemed as legally binding via the ones to whom the guidelines are relevant, which might be
adopted by way of the courts and implemented as a supply of regulation because they may be typically
followed by using the political society as an entire or by means of some part of it”.

However, Austin said that custom isn’t always a source of law.

Roscoe Pound said that customary regulation comprises:

Law formulated via custom of famous motion.

Law formulated thru judicial choice.

Law formulated with the aid of doctrinal writings and clinical discussions of legal standards.

Ingredients of Custom:

i. Antiquity
ii. Continuous in nature.
iii. Peaceful Enjoyment
iv. Obligatory Force
v. Certainty
vi. Consistency
vii. Reasonableness

Q14. DEFINE CUSTOMS?

Answer: Custom is a habitual course of conduct observed uniformly and voluntarily by the
people concerned. When people fine any act to be good and beneficial, which is agreeable to
their disposition, they practice it and in course of time by frequent observance and on account
of its approval and acceptance by the community for generations, a custom evolves.
In all societies of the world, custom has enjoyed a very high place in varying degree in the
regulation of human conduct. Customs arise whenever a few human beings come permanently
without adopting consciously or unconsciously, some definite rules governing reciprocal rights
and obligations. Custom is to society what law is to the state. Why has custom been regarded as
an important source of law Custom is one of the oldest forms of law making. In primitive
societies human conduct was regulated by practices which grew up spontaneously and were
later adopted by the people. What was accepted by the generality of the people and embodied
in their customs was deemed to be right. So, custom has played an extremely significant role as
a source of law, till other sources of law like legislation and precedent acquire prominence.
Customs have been the most potent force in molding the ancient law. Reasons for acceptance of
customs as a source of law
According to Salmond Salmond has pointed out two reasons for the recognition of customs as a
source of law. Firstly, custom is frequently the embodiment of those principles which have
commanded themselves to the national conscience as principles of justice and public utility.
Secondly, the existence of an established usage is the basis of a rational law degree course
criminal and law types of customs in law custom as a source of law jurisprudence custom
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SECTIONS expectation of its continuance in the future. Salmond adds, ‘’justice demands that,
unless there is good reason to the contrary , men’s rational expectations shall, so far as possible,
be fulfilled rather than frustrated.
According to Keeton Keeton observes that the main reason for the admission of custom as a
source of law seems to be that before state organs undertook the task of framing laws for the
community, this was done by the people themselves, and the rules elaborated by habit were
enforced in popular courts. Thus, rules elaborated by habit were enforced in popular courts.
Thus, the state in advancing its authority takes over and enforces customary rules, first
formulated by the people themselves for their own regulation. Views of historical school of law
in regard to the place of custom in the list of sources of law
According to Savigny and the German historical school, customs is in itself an authoritative
source of law. According to them the present cannot be understood without reference to the
past, and to understand the true source of law we must go back to the days when society was in
its infancy. In early time it was only customary rules which were the only kind of laws known to
the people and which had the people sanction. Views of analytical school in regard to the place
of custom in the list of sources of law According to the analytical school, custom is not an
authoritative source of law at all. Austin points out that as far as English law is concerned the so-
called English customary law is purely on invention of the English judges. Because they were
afraid of offending the conservative instincts of the English people, that is why they started the
fiction that they were not introducing our new law but they were giving to the English people
merely their own customary laws.
Kinds of custom Customs are of two kinds (1) legal and (2) conventional. The first kind consists
of custom which is operative per se as a binding rule of law, independently of any agreement on
the part of those subject to it. The second kind consists of custom which operates only indirectly
through the medium of agreement, express or implied, whereby it is accepted and adopted in
individual instances as conventional law between the parties.
Legal custom The legal custom is one whose legal authority is absolute. It possesses the force of
law proporio vigore. The parties, affected may agree to a legal custom or not but they are bound
by the same. Legal customs are of two kinds (1) local and (2) general. Local customs apply only
to a locality and a general custom applies to the whole country. Local custom Local custom is
one which prevails in some definite locality and constitutes a source of law for that place only.
Every local custom must satisfy certain conditions. It must be reasonable. It must conform to the
statue law. It must have been observed as obligatory. It must be of immemorial antiquity.
General custom A General custom is that custom which prevails throughout the country and
constitutes one of the sources of the law of the land. There was a time when common law was
considered to be the same as the general custom of the realm followed from ancient times.
There is no unanimity of opinion on the point whether the general custom must be immemorial
or not.
Conventional custom A conventional custom is one whose authority is conditional on its
acceptance and incorporation in the agreement between the parties to be bound by it. A
conventional custom is an established practice, which is legally binding because it had been
expressly or impliedly incorporated in a contract between the parties concerned. Views of
analytical school in regard to custom as a law The great advocates of the analytical theory are
Austin, Holland, Gray, Allen and Vinogradoff.
According to Austin one of the main priests of analytical school, custom is a source of law and
not law in itself. Custom are not positive laws until their existence is recognized by the decisions
of the courts. A custom becomes law when it is enforced by the state. It is not every custom that
is binding. Only those customs are valid which satisfy the judicial test. The sovereign can abolish
a custom. A custom is law only because the sovereign allows it to be so. Austin’s view of custom
According to Austin, a custom is a rule of conduct which the governed observe spontaneously
and not in pursuance of law settled by a political superior. Austin’s view is based on two
propositions-the first preposition is that it is not every custom that is binding but only those
which are valid-the validity being determined by judicial recognition. A custom when so
recognized are only social customs or merely rules of positive morality. The second proposition
is that a sovereign or a legislature very often abolishes customs and is, therefore, superior to
them. A custom is law only because a sovereign allows it to be so. Holland’s views about custom
as a law
According to Holland, customs are not laws when they arise but they are largely adopted into
laws by state recognition the existence of a custom. English courts require that not only the
existence of a custom be proved but it should also be proved that the same is reasonable. The
legislature can also abrogate customs whether partially or wholly. To quote Holland, “Binding
authority has thus been conceded to custom, provided it fulfils certain requirements the nature
of which has also long since been settled and provided it is not superseded by law of a higher
authority. When, therefore, a given set of circumstances is brought into court and the court
decides upon them by bringing then within the operation of a custom, the court appeals to that
custom as it might to any other pre-existent law. It does not proprio motu then for the first time
make the custom a law; it merely decides as a fact that there exists a legal custom about which
there might up to that moment have been some questions, as there might about the
interpretation of an Act of Parliament.”
Views of historical school in regard to custom as a law There are different and divergent views
regarding custom, as a source of law. As per the historical school of jurisprudence, law is
essentially the product of normal forces associated with the spirit of each particular people and
nothing is more representative of these revolutionary processes than the autonomous customs
which are found to exist in each community, and which are indigenous as its flora or fauna.
Custom carries it own justification in itself because it would not exist at all unless some deep
seated need of the people or some quality of temperament gave rise to.
Essential elements of a Custom—
According to Blackstone a custom to be recognised as law must satisfy the following essentials
I. Antiquity —A custom to be recognised as law must be proved to be in existence from time
immemorial, time whereof the memory of man runneth not to the contrary. This is the rule of
the English law. There, this legal memory presumed to be going back to a fixed time. An
arbitrary time limit, that is, the year 1189, the first year of the reign of Richard I, has been fixed
at which the custom must be proved to be in existence. lify a fiction of law, human memory is
made to extend for about 800 years. But the presumption of law is that the customs which are
old and whose time of origin cannot be ascertained must have started before the year 1189.
However, if it could be shown that a custom came into existence at any time later than 1189 the
presumption to antiquity shall be defeated. Indian Rule —According to Manu, the great Hindu
law-giver, “Immemorial custom is transcendental law.” The law in India, at present is that
antiquity is essential for the recognition of a custom, but there is no such fixed period for which
it must have been in existence as it is in the English Law.
2. Continuity—A custom must have been practised continuously. In England, the custom during
the period from 1189 must have been enjoyed continuously without any interruption. If a
custom has been disturbed for a considerable time, a presumption arises against it. However,
Blackstone has drawn a distinction between the interruption of the ‘right’ and the interruption
of the mere ‘possession’. It is the discontinuance of the ‘right’, for howsoever small a time, that
ends the custom. It means that if possession for some time is disturbed, but the claim to enjoy
the custom is not abandoned, the custom continues.
3. Peaceable Enjoyment — The third essential of a valid custom is that it must have been
enjoyed peaceably. If a custom is in dispute for a long time in a law court, or otherwise it
negatives the presumption that it originated by consent as most of the customs naturally might
have originated.
4. Obligatory Force—A custom, to be valid, must have an obligatory force. It must have been
supported by the general public opinion and enjoyed as a matter of right . If practice was
maintained by stealth or by something of that sort, it cannot become a custom.
5. Certainty—A custom, to be valid, must be certain. A custom Nktrich is vague or indefinite
cannot be recognised. It is more a rule of evidence than anything else. The court must be
satisfied by a clear proof that custom exists as a matter of fact, or as a legal presumption of fact.
6. Consistency— Custom, to be valid, must not come into conflict with the other established
customs. There must be consistency among the customs. It is, therefore, necessary that one
custom cannot be set in opposition to the other custom.
7. Reasonableness — A custom, to be valid, must be reasonable. Prof. Allen says that the rule
regarding reasonableness is ‘not that a custom will be admitted, if reasonable, but that it will be
admitted unless it is unreasonable.’ The courts are not ‘at liberty to disregard a custom
whenever they are not satisfied as to its absolute rectitude and wisdom, or whenever they think
that a better rule could be formulated in the exercise of their own judgment otherwise a custom
will lose much of its force and sanctity”. For declaring a custom inapplicable on the ground of
unreasonableness it will have to be shown that it is obviously opposed to reason and right.
8. Conformity with the Statute Law—A custom, to be valid, must be in conformity with statute
law. It is a positive rule in most of the legal systems that a statute can abrogate a custom.
Although according to the Historical School, a custom is superior to statute and it can supersede
a statute, this view has nowhere been recognised in practice. The English rule is that a custom
will not be recognized if it is in conflict with some fundamental principle of the common law. In
 case all the above mentioned essentials of a custom are proved, it 1. is law, but the courts have
power on sufficient grounds to change the law it embodies.

Q15. WHAT IS VALUE OF PRECENDENTS? HOW FAR IS THE DOCTRINE OF

PRECENDENT? HOW FAR IS THE DOCTRINE OF PRECENDS ACCEPTED IN LEGAL
SYSTERM OF INDIA?

Answer: Judicial precedent means the process whereby judges follow previously decided cases where
the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the
principle of stare decisis i.e., to stand by the decided. In practice, this means that inferior courts are
bound to apply the legal principles set down by superior courts in earlier cases. This provides
consistency and predictability in the law.

RATIO DECIDENDI AND OBITER DICTUM

The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason for the
decision) and obiter dictum (something said by the way).

RATIO DECIDENDI – The ratio decidendi of a case is the principle of law on which a decision is based.
When a judge delivers judgement in a case he outlines the facts which he finds have been proved on the
evidence. Then he applies the law to those facts and arrives at a decision, for which he gives the reason
(ratio decidendi).

OBITER DICTUM – The judge may go on to speculate about what his decision would or might have been
if the facts of the case had been different. This is an obiter dictum.

The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases
because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum
may be of persuasive (as opposed to binding) authority in later cases.

A difficulty arises in that, although the judge will give reasons for his decision, he will not always say
what the ratio decidendi is, and it is then up to a later judge to “elicit” the ratio of the case. There may,
however, be disagreement over what the ratio is and there may be more than one ratio.

Definition of precedent

In general English, the term precedent means, ‘a previous instance or case which is, or may be taken as
an example of rule for subsequent cases, or by which some similar act or circumstances may be
supported or justified.’

According to Gray, ‘precedent covers everything said or done, which furnishes a rule for subsequent
practice.’[1]

According to Keeton, ‘a judicial precedent is judicial to which authority has in some measure been
attached.’[2]
According to Salmond, ‘in a loose sense, it includes merely reported case law which may be cited &
followed by courts.’

In a strict sense, that case law which not only has a great binding authority but must also be followed.

According to Bentham precedents are ‘Judge made Law.’

According to Austin precedents are ‘Judiciary’s Law.’

In general, in the judicial field, it means the guidance or authority of past decisions for future cases. Only
such decisions as lay down some new rule or principle are called judicial precedents. The application of
such judicial decisions is governed by different principles in different legal systems. These principles are
called ‘Doctrine of Precedent’. For this case to be held, first such precedents must be reported, maybe
cited and may probably be followed by courts. Secondly, the precedent under certain circumstances
must be followed.

Thus it can be inferred that precedents are:

1. Guidance or authority of past decisions for future cases.

2. Precedents must be reported, maybe cited and may probably be followed by courts.
3. Precedents must have opinio-juris.
4. These must be followed widely for a long time and must not violate any existing statue law.

CLASSIFICATION OF PRECEDENT
Original and Declaratory Precedents
The judicial decisions are of two types, namely those which create a new law, and
those which apply known and settled principle of law to the particular facts of law.
Both these types of decision are treated as precedent. It is because the legal
principles embodied there in are authoritative guides to courts for the determination
of future controversies. Decisions which create a new law are called original
precedents, while those which apply known and settled principles of law to the
particular facts of the case are called declaratory precedents. A declaratory
precedents is not a source of new law where as an original principle is.

There are several declaratory precedents of law, for the law on most of the points is
already settled, and judicial decision are mere declarations of pre-existing rules. On
the other hand, original precedent, though fewer in numbers, are greater in
importance, as they alone develops the law.

This distinction between original and declaratory precedents is based on two

diametrically opposite theories of precedents. One theory supported by jurist like
Austin and Friedmann concide they law making role of the judge. In their view
some precedents may be original because they laid down original new principle of
law. Jurist like Blackstone do not agree with this, and consider the precedents is the
declaratory only , i.e., they merely reiterate recognise principles of law the common
law contains a rule for every situation and the judge’s function is only to discover
and apply it to the case at hand. This is known as declaratory theory of precedent.
 AUTHORITATIVE AND PERSUASIVE PRECEDENT
Classification of precedents into authoritative and persuasive is a widely accepted
classification. An authoritative precedent is one which the judge is bound to follow
the irrespective of whether he approves it. In other words the judge has no choice.
For instance, are decision of Supreme Court of India is binding on a judge of Kerala
High Court. Similarly, a decision of Kerala High Court is binding on lower courts in
Kerala. In a system of precedent, decisions of superiors are always consider as
authoritative precedents.

Authoritative precedents are further classified in absolute and conditional. An

absolutely authoritative precedent is absolutely binding and must be followed without
any question, however, unreasonable or erroneous it may be appear to be. It has a
legal claim to implicit and unquestioned by the court. Conditionally authoritative
precedent is one which is normally binding on the judge may be disregarded by him
in limited circumstances.

A persuasive precedent is one which the judge under no obligation to follow. Here,
he has a choice in deciding whether to follow a precedent. If he is convinced of the
crime of the merits of a decision, he may follow it; otherwise he may refuse. A
decision of the Delhi High Court is only a persuasive precedent as far as the Madras
High Court concerned, under it is under no obligation to follow it. Foreign judgements
may also be considered as persuasive. Persuasive precedents though not binding,
often exert a decisive influence on judicial decisions. The distinction between a
persuasive precedent and a conditionally a authoritative precedent lies in the fact
that the former requires reason to supported while the latter requires are reason to
reject it. Authoritative precedents are considered to be legal source of law, while the
persuasive precedent is only historical sources.

In ‘oxford dictionary’ precedent defined as ‘a privious instance or case which is, or

may be taken as an example of rule for subsequent cases or by which similar act or
circumstances may be supported and justified’ A number of jurists

FOREIGN JUDGEMENTS:
Decisions of English courts lower in the hierarchy. For example, the House of Lords
may follow a Court of Appeal decision, and the Court of appeal may follow a High
Court decision, although not strictly bound to do so. In India Supreme Court may
follow judgments of High Courts and High Courts may follow judgments of other High
Court.

ADVANTAGES AND DISADVANTAGES OF PRECEDENTS

Advantages
* There is certainty in the law. By looking at existing precedents it is possible to forecast what a decision
will be and a person can plan accordingly.

* There is uniformity in the law. Similar cases will be treated in the same way. This is important to give
the system a sense of justice and to make the system acceptable to the public.

* Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the
system to change and to adapt to new situations.
* Judicial precedent is practical in nature. It is based on real facts, unlike legislation.

* Judicial precedent is detailed. There is a wealth of cases to which to refer.

Disadvantge
* Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of
reasons.

* There may be a considerable waiting period for a case to come to court for a point to be decided.

* Cases can easily be distinguished on their facts to avoid following an inconvenient precedent.

* There is far too much case law and it is too complex.

UNIT-4

Q20. DEFINE LIABILITY. WHAT ARE KINDS OF LIABILITY?

Answer: According to Austin, liability consists of those things which a wrongdoer must do or suffer. It
is the ultimatum of law and has its source in the supreme will of the state. Liability arises from a breach
of duty which may be in the form of an act or omission. Liability has occupied a place of pride in the
hierarchy of legal concepts. It has been used to include three things : 1. To express the position of a
person who undertakes to do some-thing. 2. To express the condition of a person who has failed in the
performance of duty; and 3. To express the condition of a person who has not failed to perform his
contract but has caused damage to the other person. “Liability or responsibility, says Salmond : “is the
bond of necessity that exists between the wrong-doer and the remedy of the wrong.” Markby says :
“The word liability is used to describe the conditions of a person who has a duty to perform.”Thus,
liability is the plight, condition, or the state of the person who has acted, for borne or omitted contrary
to law. It may also be described as the state of the person who has violated a right or acted contrary to a
duty

There are two theories of liabilities: —

(1) The theory of Remedial Liability; and

(2) The theory of Penal Liability.

1. Theory of Remedial Liability–The sole condition of the existence of remedial liability is existence of a
legal duly binding upon the defendant. These are as under:

(i) Duties of imperfect obligation.—Such as those attached to a time-barred debt, or a debt due from the
Crown which cannot be enforced at all;

(ii) Duties, which from their nature cannot be specifically enforced.—In certain cases, the nature of the
duty or the corresponding right is such that it cannot be specifically enforced. For example, every one
has a right to reputation and, therefore, there is a corresponding duty imposed on others not to violate
such right. But if at, a libel is committed, the specific enforcement of corresponding duty of the
defendant (i.e. person who has committed libel) is not possible. In other words, once a mischief has
been done. it cannot be undone. In such cases, damages are perhaps the only adequate remedy.

(iii) Where specific enforcement of the duty is inadvisable.—In some cases specific enforcement is
inadvisable e.g., in breach of the promise for marriage.

2. The Theory of Penal Liability Under Penal Liability there are to be considered : (i) the `conditions’of
penal liability; (ii) the ‘incidence’ of penal liability; and (iii) the `measures’of penal liability

(1) Conditions of penal liability.—The general conditions of penal liability are well indicated by the
maxim, ‘Actits nonfacit ream nisi mens sit rea’ (the fact alone does not amount to guilt, it must be
accompanied by a guilty mind), hence two conditions must be fulfilled before penal liability may be
imposed—(a) material condition, and (b) formal condition. The ‘material condition’ is the doing of some
act by the person liable, and the ‘formal condition’ is the `mens rea’ or guilty mind with which the act is
done. The two conditions must co-exist to make a person penally liable.

(ii) Incidence of liability.—From conditions we nowpass to its incidence. Normally and naturally the
person who commits a wrong is liable for it. Yet both ancient and modern law admits instances of
vicarious liability in which one man is held answerable for the act of another, masters are responsible for
the acts of their servants done in course of their employment. In certain cases of civil liability damages
can be recovered from the disposable estate of the deceased wrongdoer.

(iii) Measures of liability.—In criminal cases, the “motive” of the offence, the ‘magnitude’ of the offence
and the ‘character’ of the offender are taken into account in fixing the punishment. In civil cases of
penal redress, only the magnitude of the wrongful act or the amount of the loss inflicted by it is taken
into consideration.

Types of liability: Strict Liability

Strict liability, sometimes referred to as absolute liability, is primarily found in cases of defective
products or services. Examples of strict liability include the manufacture of vehicles that contain an
accidental structural flaw that causes crashes; the manufacturing of food products that have become
tainted, resulting in illness; or components in certain medications that later are shown to pose health
hazards and lead to illness or death. In most cases of strict liability, it is not necessary to show that the
provider of the product or service acted with disregard or even negligence. It must only be shown that
the product caused the harm at issue.

Strict liability also applies in criminal law. Serving alcohol to minors, for example, is a strict liability crime
in many states. That means that a person who serves a minor is liable even if the minor lied about his
age or presented a fake ID.

Vicarious Liability

Vicarious liability is when one party is held accountable for the actions of another. Generally, this relates
to an employer's responsibility for actions by an employee when someone is injured or property is
damaged as a result of an act that occurred during the employee's working hours. A parent may be held
vicariously liable for actions committed by his child if another person is injured as a result of the child's
actions, but this typically occurs only if the child is under age. For an employer or parent to be held
vicariously liable, the victim of the act must have suffered injury or property damage that would not
have resulted without the action of the employee or child, regardless of intent.

Joint and Several Liability

Joint and several liability refers to a scenario in which two or more parties are jointly responsible for an
event or act that results in damage to another party. In this case, each individual is found to be just as
responsible as the other, and they are held accountable for their actions both together and individually.
Examples of joint and several liability include a married couple that defaults on a mutual debt, and
doctors who practice in the same group, each of which treats a specific patient, but negligently fail to
diagnose a serious health issue. For instance, if you and your business partner are sued on a loan and a
judgment is entered against both of you for $100,000, jointly and severally, it means that both of you
owe $100,000 and the judgment creditor doesn't have to collect from one before collecting from the
other.

CRIMINAL LIABILITY:

Q17. EXPLAIN DIFFERENT THEORIES OF PUNISHMENTS?

ANSWER: Purpose of criminal justice and theories of punishment.—We can regard the punishment as
a method of protecting society by reducing the occurrence of criminal behaviour, or else we can
consider it as an end in itself. Punishment can protect society by deterring potential offenders, by
preventing the actual offender from committing further offences and by reforming and turning him into
a law-abiding citizen. Thus the problem of punishment has been approached by the following theories of
punishment

1. Deterrent

2. Retributive
3. Preventive

4. Reformative.

(1) Deterrent theory.—It is the essential and all important one, the others being merely accessory.
Punishment is before all things deterrent, and the chief end of the law of crime is to make the evil-doer
an example and a warning to all that are like-minded with them. Offences are commit-ted by reason of a
conflict between the interest, real or apparent, of the wrong-doer and those of society at large.
Punishment prevents offences by destroying this conflict of interests to which they owe their origin—by
making all deeds which are injurious to others, injurious also to the doers of them—by making every
offence in the words of Locke “an ill bargain to the offender”. Men do injustice because they have no
sufficient motive to seek justice, which is the good of others rather than that of the doer of it The
deterrent theory has two-fold effects. Firstly, the offender ab-stains from committing offence in the
future and secondly, those persons of the society who have got a criminal bent of mind and may commit
offence in future take lesson from the punishment of the offender. The deterrent theory of punishment
claims that by infliction of punishment adequately and rationally, the offender and the likely offenders
deter from committing offence punishment in rationalised quantity or an ad-equate punishment
depends upon the circumstances of each case by taking into consideration the severity of offence, its
modes, age of the offender, cause of the offence, whether it is first offence, barbarity in commission of
offence, weapon chosen for the offence, deliberate or sudden on provocation of something seen or it is
in retaliation etc. Deterrence does not mean extinction of the offender. This theory was the basis of
punishment in England in medieval times. In India also, Manu, the great Hindu law-giver, has said that
penalty keeps the people under control, penalty protects them, penalty re-mains awake when people
are asleep, so the wise have regarded punish-ment as source of righteousness. This theory has been
criticised for being ineffective to check the crimes. The punishment hardens the criminal instead of
creating in his mind the fear of law. Hardened criminals are not afraid of imprisonment. The punishment
loses its fear when once the criminal is punished.

(2) Retributive theory.—It gratifies the instinct of revenge or retali-ation, which exists not merely in the
individual wronged, but also by way of sympathetic extension in the society at large. The emotion of
retributive indignation, both in itself regarding and its sympathetic forms, is even yet the mainspring of
criminal law. It is to the fact that the punishment of the wrong-doer is at the same time the vengeance
of the wronged, that the administration of justice owes a great part of its strength and effectiveness. It
is a very widely held opinion that retribution in itself, apart altogether from any deterrent or reformative
influences exercised by it is right and reasonable thing and the first reward in equity. According to this
view, it is right and proper, without regard to ulterior consequences that evil should be returned for an
evil. An eye for an eye and a tooth for a tooth is deemed a plain and self-sufficient rule of natural justice
which epitomises the retributive theory of punishment. Supporters of this theory are Kant and Hegel.
From the Utilitarian point of view such a conception of retributive punishment is totally inadmissible.
Punishment is in itself an evil, and can be justified only as a means of attaining a greater good.
Retribution is in itself not a remedy for the mischief, but an aggravation of it. Form of idea of purely
retributive punishment is that of expiation. In this view crime is done away with, cancelled, blotted out
or expiated, by the suffering of its appointed penalty. To suffer punishment is to pay a debt due to the
law that has been violated. Guilt plus punishment if properly suffered is equal to innocence. Justice
requires that the debt be paid, that the wrong be expiated. This is the first object of punishment to
make satisfaction to outraged law. Revenge is the right of the injured person. The penalty of wrong
doing is a debt which the offenderl5wes to his victim, and when the punishment has been endured, the
debt is paid, the liability is extinguished, innocence is substituted for guilt and the vinculutn furls forged
by crime is dissolved. The object of true redress is to restore the position demanded by the rules of
right, to substitute justice for injustice to compel the wrongdoer to restore to the injured person that
which he has lost, but a dead man cannot be revived hence if the guilty is punished, the living relations
of the wronged will feel a sort of satisfaction and their retaliation accom-plished within the limits of law.

(3) Preventive theory.—This theory of punishment is associated with the name of Feverbach who asserts
that prevention is better than cure. If the violations of law are to be prevented, there must exist physical
restraint. Such a constraint can only be of a psychological nature. Mr. Justice Holmes said ; There can be
no case in which the law-maker makes certain conduct criminal without his thereby showing a wish and
pur-pose to prevent that conduct. Prevention would accordingly seem to be the chief and only universal
purpose of punishment. The law threatens certain pains if you do certain things, intending thereby to
give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order
that its threats may continue to be believed.” The primary and general purpose of this theory is to deter
by fear, its secondary and special purpose is, wherever possible and expedient, to prevent a repetition
of wrong by the disablement of the offender. We hang murderers, not merely that we may put into the
heart of others like them the fear of a similar fate; but because it is better for us that they should be out
of the world than in it. In modern times the disabling aspect has been emphasised by the statutes
conferring upon Judge the power to sentence habitual offenders to preventive terms of imprisonment.
Such Acts are National Security Act (NSA) and The U.P. Gangsters & Anti-social Activities (Prevention)
Act, 1986. Under the Preventive Detention Laws when the authorised authority becomes satisfied a
person may be sent to jail to prevent the commission of offence, even though proper safeguards in the
shape of Advisory Board’s and time limit of 60 days must be applied for protecting the personal liberty
of the detenue, for avoidance of misuse of the provisions of preventive detention.

(4) Reformative theory.—The supporters of sociological school headed by Ihering have evolved this
theory. They say that the object of punishment must not be to wreck vengeance, but so to reform the
criminal as to prevent him from committing further crime. Crime like other diseases should properly be
diagnosed and treated scientifically. Punishment must not be regarded as an end but only a means to an
end, the end being reclamation of the criminal to become a good citizen. Further, Maitland considers
that the personality of the offender is as important as his act and emphasises that the wrong-doer is not
only a crinfinal to be punished but a patient to be treated. The effort is for individualisation of the
penalty, not to let the punishment fit the crime but the personality of the criminal.

Salmond raises three objections to the purely reformative approach–

(i) If criminals are sent to prison in order to be transformed into good citizens, then for the habitual
criminals the prison cells will be turned into varied houses far too comfortable to serve as an effective
deterrent against the crimes.
(ii) There are in the world men who are incurably bad and are beyond the reach of reformative
influences.

(iii) The crimes in this way will be a profitable industry which will flourish accordingly.

Salmond concludes, therefore, that the perfect system of criminal justice is based on neither the
reformative nor the deterrent principle exclusively. It is rather the result of a happy compromise
between them. In this compromise it is the deterrent principle which possesses predominant position.
At the same time the reformative element must not be overlooked though it should not assume undue
importance.

Approach to the problem of criminality.–The problem of criminality must be approached from a realistic
and not dogmatic point of view. So viewed, it would be discovered that all men may not be saints but
they certainly are, as a rule, sinners and criminals. Law abiding citizen is the rule and law breaker, the
exception; laws should not be laid down solely with reference to the exceptions though they must
provide for them too. Secondly, it should not be forgotten that crimes and violations of law are to no
small extent, due to unhappy situations and defective organisation of society. Hence, the need to
approach the problem of the crime from a sympathetic and humanitarian point of view becomes
imminent and necessary.

Merits and importance of Reformative Theory, in Administration of Criminal Justice.—After intensive

research it has been found that certain human instincts which germinate crime e.g. greed, jealousy,
vengeance, superiority and killer spirit cannot be obliterated hence wherever human beings will reside,
the crime will also register its presence. To tackle this, it was thought proper that for humane,
humanitarian and human rights and escape barbarism, the criminal should be treated as a patient and
his brain washing and proper treatment by good behaviour and making him wise regarding the pros and
coins of criminal life, it is possible to get the criminal rehabitated in the main stream of the society and
the blot of being a prisoner should be removed by introducing the system of Probation, Parole, Borstal
Schools, First offenders relaxation, etc. for new criminals and for recedivist and hardened criminals the
efforts of making them realise that they are humans and should behave like humans. The hard core
category of criminals happen to be small in numbers and during their prison term by their proper
treatment of their altitude through Psychological Therapy, Yoga and Surmons and by releasing them on
Parole to check the change in their attitude, criminals may be reformed and a little success will lead to
big results and savings. The surrendering of big and notorious dacoits to the administration has proved
that brain washing of a criminal is possible and their return to normal life in the main stream ofthe
society is also possible—It is better to apply the scheme of rehabilitation of criminals to the society
rather than to obliterate or eradicate them. The Socialist School of Thought and Reforms have been
successful in producing positive Previous article Absolute privilege and qualified privilege Next article Ek
Bar Toh Maaf Kardo Poetry rather than to obliterate or eradicate them. The Socialist School of Thought
and Reforms have been successful in producing positive results of this Reformation Theory of
Punishment. In our old culture, the device of expiation was permitted and adopted to clean the blemish
of guilt and restitute in him the at-tributes of innocence.
The criticism that hardcore and habitual criminals cannot be re-formed becomes tooth and clawless
when we find that their degree of killer spirit may be controlled, lessened and regulated by engaging
them in different treatment devices of reformation. Moreover, the concept of victomology is gathering
grounds and the plea bargaining introduced in Cr. P,C. together will reduce (by obtaining compensation)
the retaliation and vengeance from the side of victim of the crime and as such reduce criminality.
Salmond concludes that the perfect ‘system of criminal justice is based on the compromise between
reformative and deterrent theories. The deterrent principle should have the last word.

Utility of Administration of Justice.—Administration of justice through courts of law has now become
one of the important functions of the state. The courts administer justice according to laws framed by
the legislature. The chief merits of administrations of justice are its uniformity, certainty, impartiality
and utility. The judges who impart justice are bound to give their decisions according to the fixed
principles of law and cannot act arbitrarily. The laws being mostly codified, they a e known to the
citizens which enables them to regulate their conduct accordingly. Codification also helps judges in
applying the law uniformly without any fear or favour. Despite the aforesaid advantages, the
administration of justice suffers from certain disadvantages also. The main of these are rigidity,
formality and complexity of laws. Sir, Salmond has observed that law, undoubtedly is a remedy for
greater evil, but it brings with it evils of its own. Be that as it may, it must be stated that the advantages
of adminis-tration of justice far outweigh its disadvantages and it is an effective media for establishment
of rule of law in modern democracies.

Q18. DISCUSS THE DIFFERENT THEORIES OF THE ORIGIN OF THE STATE?

Q5 define property?

Answer: The term property is derived from the Latin word 'properietate' and the French equivalent
'proprius' which means a thing owned. The concept of property and ownership are very closely related
to each other. There can be no property without ownership and ownership without property.

The term Property is not a Term of Art. It has been used in a variety of senses. The term property is
commonly used to define the objects which are owned. In other words, property denotes those things in
which right of ownership can be expanded. The term property includes both living and non-living things.
Lands, chattels, shares, and debts are included in the property.

In a wider sense, the term includes all those rights which a person has or can be exercised. For instances,
right to life, personal liberty, reputation and all those rights which he can exercise against others. Hence,
in its wider sense, it can be termed as all those things or material objects without which a person cannot
live.

Property is not a thing, but the rights which extends over a thing. The essence of property is in the
relations among men arising out of the relations to things. Thus, property is a legal concept is the sum
total of a bundle of rights which includes; right of possession, right to enjoy, right to alienate, right to
retain and so on.
Definition of Property
While we discuss about the definition regarding property it is very hard to give definite
definition of property. There are number of definition regarding property given by different jurist.
Among them some jurists have defined property which are as below;
According to Salmond: “All legal rights, proprietary rights, proprietary right in rem, corporeal is called
property”.
According to Salmond, property has been termed in a variety of senses:
I. Legal right: It includes all those rights which a person is entitled by a way of law. All those
material objects which a person owns as per the law are his legal rights. These are the rights
which he can exercise over others. It includes a person’s personal as well as proprietary
rights.
II. Proprietary right: It does not include personal rights, it only include proprietary rights.
It means that land, chattels, shares or debts are his property but his right to life and
reputation are not included in his property.
III. Corporeal right: It only includes those properties which real or which can be seen i.e. land,
chattels, etc. It does not include shares or debts as property.
AUSTIN suggests that property is the greatest enjoyment which a person holds. According to him,
property includes whole of assets whether personal or proprietary.

Kinds of Property:
I. Corporeal property: It is also termed as tangible property. It is the right of ownership over
material things. It includes only those things which are real and visible. Person who has the
right to use a thing is called as the owner of the object and the object is called as property. It
includes only material things, i.e. land, house, chattels, money, ornaments etc.

Corporeal Property can be divided into two;

i. Movable and Immovable Property: A corporeal property can be movable or

immovable. Immovable property includes land, house, walls etc. It includes that
property which cannot be moved from one place to another. Objects which are
physically attached to the earth and permanently fastened to anything attached
to the earth are termed as immovable property. Whereas Movable property are
those properties which can be easily moved from one place to another by the
help of a person. It includes chattels, ornaments, etc.
ii. Real and Personal property: There is no such distinction between real and
personal property. Real property means all rights over the land which is
recognized by law. Whereas Personal property means all other proprietary
rights whether right in rem or right in personam.

2. Incorporeal property: Incorporeal property is other proprietary rights which are right in rem and
are not tangible and real.
Incorporeal Property can be divided into two;
i. Jura in re aliena: They are called as encumbrances. It includes property, the
ownership of which is in the hand of one person and it is used by other person.
It is categorized into following: Lease, Servitude, Securities, Trusts
ii. Jura in re propria: Proprietary rights are of both materials as well as non-
material things. Material things are the physical objects and non-material things
 are the rights attached to the things. Right in re propria is mainly over
immaterial things. The person having right over the thing which he attains due
to his skill and labour.
It is categorized into following:
1. Patent
2. Copyright
3. Commercial Goodwill
Theories of the property:
1. Natural law theory: the Natural law theory is based on the principle that one who possesses the
object is the owner of the property. It provides that when an ownerless thing is being possessed
by someone then that person become the owner of the property. The reason is that the law
recognized the property through its owner. This theory also gets recognized by law because the
priority of the ownership of property is given to that person who is in the possession of the
property.
This principle is supported by various jurists.
GROTIUS says that all the things were originally without an owner and whoever occupied them
became the owner.
According to BLACKSTONE, the natural law theory provides that one who starts making use of a
thing acquired an interest in that thing even for a short period or last long.
This theory has been criticized by some jurist also; HENRY MAINE says that it is erroneous to
think that possession gives right over the title of the property.
Where BENTHAM says that property is not originated by the occupation of an ownerless thing,
but it is the creation of law. He believes that property exist only when there is an existence of
law.
2. Labour theory: According to this theory, the person who has used his skills and labor to produce
an object is the owner of that object because it is the result of his hard work. Though this theory
is not recognized in modern times because there are many situations where one can acquire
property from others by a way of will or contract. The labor theory is also called as the positive
theory.

SPENCER supported this theory. He holds that property is the result of labor of an individual and
one who has not put any labor to produce the property cannot acquire it.

3. Metaphysical theory: This theory was propounded by KANT and HEGEL. Both of them justified
the theory but this theory was not recognized as it is not concerned with reality.

According to KANT, a thing rightfully belongs to someone when he is connected with it in such
manner that when someone else uses it without consent, it causes damage to the owner also.
He provides that as per this theory, there is physical connection between the owner and the
object.

HEGEL holds that property is the objective manifestation of the personality of an individual. In
other words, property is an object in which person has a right to direct his will.
 4. Psychological theory: This theory provides that the property came into existence based on the
tendency of a human being. Every one desires to own thing and to exercise control over
them. BENTHAM has supported this theory and hold that property is a conception of mind. It is
nothing but an expectation to own a property and make use of it to the fullest.
DEAN POUND also supported BENTHAM and asserted that the conception of property is the
acquisitive instinct of an individual who desires to have control and possession over the
property.

5. Historical theory: This theory talks about private property and its slow and steady growth. This
theory is propounded by BENTHAM and got support from HENRY MAINE. The growth of
property has three distant stages.
First Stage- It provides that a tendency is developed among people to take things in natural
possession and exercise it independently of the law of state.
Second Stage- This provides for juristic possession which means possession in fact and as well as
in law.
Third Stage- This is based on the ownership of the property recognized by law. The law
guarantees the owner of property exclusive right and control over the property.
1. Sociological theory
2. Positive theory:
Various ways of acquisition of the property: Hindu Jurisprudence recognized the varieties of moods of
acquisition and transfer of property like, inheritance, gain, and purchase, and conquest, return of
investment, wage, and gift. In modes of acquisition two methods can found

1. By taking: In by taking there lies, Coercion, lack of consent, Forcefully, Illegal method of
acquisition of property. For example, capturing other property during Maoist insurgency
2. By delivery: In by delivery there lies, Consent is necessary, Actual delivery is real possession,
Constructive delivery is not real

According to Salmond, for the attainment of ownership there are two ways for acquisition

1. By legal operation or operation of law: By legal operation or By operation of law. When any
owner registers any property in his name in accordance with presented law. For example, A has
to register his land to acquire ownership and enjoy his property. Without provision of law, no
one can own property.
2. By existence of act or event / By reason of act or reason of event. By existence of act or event/
By reason of act or reason of event. The act of person helps to own property. Every individual by
reason of act may own the thing. By reason of act means making when a person makes a thing,
it’s under the ownership of that person. In other word, it means creativity. Human use, intellect
idea, intellectual creativity and power to make many things. For example, creation of pearl,
computer design etc. A man can make ownership by using both physical and mental capacity. By
reason of event ownership can be acquired. For example, land which has been annexed by
flood.
There are four modes of acquisition of property which are of primary importance

1. Possessions: Possession is the prima facie of ownership which includes corpus possession and
animus possession i.e. physical and mental control and attitude over things. By possessing a
material object, the owner may acquire a legal title to it in two ways, by occupation or by
possessory ownership. When the possession of any property is taken by the claimant which is
not the property of any one, in Roman language it is called res nullius. The possessory ownership
is the condition when the things of which possession is taken may be already the property of
someone else.
2. Prescription: It is the kind of mode of acquiring property. It refers to lapse of time, it includes,
positive and acquisitive prescription, negative or extinctive prescription. It means a property
when acquired by lapse of time. It also refers to possessory remedies.
3. Agreement: Property can be owned by means of agreement. This works in every level. For
example, A may handover his property to B by agreement. In agreement there is assignment
and grant.
4. Inheritance: It means death of owner raises the right to attain property. As for example, son and
daughters are eligible for acquiring property of their parents. Communist law says that one
cannot inheritance property to their children state has to do it.
Q5. Define ownership?
Answer: 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.

VIEWS OF MODERN & WESTERN JURISTS

The western jurists like Austin, Holland and Salmond defined the concept of ownership

Austin: according to Austin ownership is the relationship exit 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 one’s 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 limit.
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.

Holland: according to Holland ownership is plenary control of a person over a thing. The definition also
contains the following conditions:-

1. Possession
2. Enjoyment
3. Disposal.

Salmond: salmond defines ownership as relationship between the person and 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 things 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.

ELEMENTS OF OWNERSHIP: three types

1. Power of possession. (possidendi)

2. Power of using a thing. (utendi)
3. Power of disposing off the thing. (disposdendi)

Types of ownership:

1. Corporeal & incorporeal ownership: The object of owner-ship may be a material thing such as
land or lands or goods, or an immaterial thing or right such as a patent trade mark, copyright,
reputation or domestic relation. Ownership when it refers to a material object is called
corporeal ownership; and where it refers to any other thing or rights, it is called incorporeal
ownership. Thus, ownership of land is corporeal. But ownership of an encumbrance is
incorporeal.
2. Sole ownership and co-ownership: Ownership may be either sole or duplicate. When it is vested
in one person it is called sole owner-ship ; when it is invested in two or more persons at the
same time, it is called duplicate ownership. The chief instances of duplicate ownership are ; (i)
Co-ownership; (ii) Trust and beneficial ownership; (iii) Legal and equitable ownership; (iv) Vested
and, contingent ownership. Co-ownership that is to say, ownership shared by several persons
with equal or co-ordinate results may be of two kinds, namely: (a) Joint ownership, and (b)
 Ownership-in-common. (a) ‘Joint ownership’ is that where on death of one of the co-owners the
whole right ensures for the benefit of surviving co-owner or co owners, until at last when the
last survivor of the joint owners, dies, it would devolve on his heirs. The heirs of a predeceased
co-owner will not get any share at all in the property of the joint owner. (b) “Ownership-in-
common” is that where, on the death of one of the co-owners, his heirs step into his shoe
3. Legal and equitable ownership: English law recognizes two forms of ownership—legal and
equitable. In England before the passage of Judicature Acts of 1873, and 1875 there existed two
kinds of Courts with two quite distinct jurisdictions. These two Courts were known as the
Common Law Courts and the Equity Courts.

The rights recognized and protected by the Common Law Courts were called legal or Common
Law Rights and the rights enforced by Equity Courts were known as equitable rights.

Legal ownership is, therefore, that ownership which was or recognized by the rules of Common
Law, while equitable ownership is that which originated from the rules of equity.

Equitable ownership was thus not recognized by the Common Law Courts. The Chancery or
Equity Courts recognized legal ownership as well as the equitable ownership.

Keeton says, “This quality of legal and equitable ownership arises, whenever one person holds
the legal title to property, the beneficial enjoyment of which is vested in another. Thus the legal
owner is he whom the Common law could designate as the owner; the Equitable owner is that
person whom the Court of Chancery would formerly have protected in the enjoyment of a
thing.”

4. Vested and contingent ownership: —These two forms of owner-ship are related to the
institution of a trust. A trust is an instance of duplicate ownership namely, trust ownership and
beneficial ownership. In a trust certain property is given in trust or confidence to a person or a
definite group of persons to be held under an obligation for the benefit of some other persons
or group of persons.

Trust is defined as an obligation annexed to the ownership of property, and arising out of a
confidence reposed in and accepted by the owner, or (b) declared and accepted by him for the
benefit of the other.

5. Trust and beneficiary ownership: Ownership is either vested contingent. It is vested when the
owner’s title is already perfect; it is contingent when his title is as vet imperfect, but is capable
of becoming perfect on the fulfillment of some condition or contingency. Vested TAGS CCS
University CCSU Jurisprudence Previous article What do you mean by “liability” ? Distinguish
between Civil and Criminal Liability and Penal and Remedial Liability. Next article Absolute
privilege and qualified privilege contingent when his title is as vet imperfect, but is capable of
becoming perfect on the fulfillment of some condition or contingency. Vested own-ership is
absolute, contingent ownership is conditional. It is subject to conditions and it may be made to
commence or cease upon the ascertainment that a certain fact does not exist.
 Thus, I may be the owner of a piece of land on condition of paying a certain fixed sum of money
annually to the State. My ownership is thus conditional on the annual payment of the money.

Contingent ownership is not specs acquisitions—Simple chance or mere possibility of becoming

owners—but more than that. It is more than a mere future possibility but the existence of an
inchoate or incomplete title in the present, capable of achieving completion and perfection on
the happening of a given contingency in future.

The conditions on which ownership depends may be either ‘condition precedent’ or ‘condition
subsequent’. A condition precedent is one by the fulfillment of which a title is completed; a
condition subsequent is one on the fulfillment of which a title already completed is
extinguished. In the former case ownership which was formerly conditional becomes absolute.
In the later case the ownership which is already lost conditionally, is lost absolutely. In case of a
condition subsequent ownership is not contingent but vested. For the condition attached to the
ownership it is not with regard to commencement of ownership but with regard to continence
of it.

6. Absolute and limited ownership: When a person has got all the rights in relation to any property
we say that absolute ownership vests in him but when some right in relation to property has
been restricted then the ownership is called limited, one. In Hindu law, before Hindu Succession
Act, woman’s estate was a limited ownership. If a Hindu woman inherited property from a male
or a female it was called woman’s estate. Such property was held only for her life and she had
only a limited power of disposal. When she died the property went to the heirs of the last holder
of the property.

Q6. Define possession and its types?

Answer: Introduction:
Obtaining possession of a property, and performing such action is far easy than defining it in words, i.e.
what the word ‘possession’ implies. This statement is warranted and testified by the words of great
Legal Scholar, Salmond too. To understand the concept, we must first need to understand the
etymology of the word, i.e., the meaning of the word in its root, in its history. The word came from
Roman law.

In Roman law, Possession, i.e., Possessio, in its primary sense, is the condition or power by virtue of
which a man has such a mastery over a corporeal thing as to deal with it at his pleasure, and to exclude
other persons from meddling with it. This condition or power is detention; and it lies at the bottom of all
legal senses of the word possession. This possession is no legal state or condition, but it may be the
source of rights, and it then becomes possessio in a juristical or legal sense. Still, even in this sense, it is
not in any way to be confounded with property (proprietas). A man may have the juristical possession of
a thing without being the proprietor, and a man may be the proprietor of a thing without having the
juristical possession of it, and consequently without having the detention of it.

Ownership is the legal capacity to operate on a thing according to a man’s please, and to exclude
everybody else from doing so. Possession, in the sense of detention, is the actual exercise of such a
power as the owner has a right to exercise.

UNIT-5

Q13. WHAT DO YOU UNDERSTAND BY CORPORATIVE LAW? EXPLAIN THE SCOPE

AND NATURE.

Q16. DEFINE CORPPORATION AND EXPLAIN THE VARIOUS KINDS. DISCUSS THE
CRIMINAL LIABLITY OF CORPORATION.

Q21. 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.
.