AL-AMEEN COLLEGE OF LAW

IMPORTANT QUESTION WITH

ANSWERS DECEMBER -2018
III SEM 3 YEARS LL.B. / VII SEM 5 YEARS B.A. LL.B.

SUBJECT: JURISPRUDENCE

PREPARED BY:
Ms. Sahana Florence, Asst. Prof.
Al-Ameen College of Law

Q.No.1. Define Jurisprudence. Explain the nature and scope of Jurisprudence?

Introduction to Jurisprudence:

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 Law is not a new concept for the human society. Since from the time immemorial we find
its existence in one form or the other. Law has now become a necessary evil, even though it
curtail my freedom, limits my move but still I want law to be there so that I may enjoy my right
in a society. We cannot assume human society in absence of law. Law introduces balance in
society and help in maintenance of public order and security. Concept of law changes as per the
society in which it is operating and develops along with society.

Jurisprudence is the science, study and theory of law. It includes principles behind the
law that makes the law. Scholars of jurisprudence are called as “Jurists” or legal theorists.
Modern jurisprudence began in the 18th century and was focused on the first principle of natural
law, civil law and the law of nations.

Jurisprudence- Its Nature, Meaning, Definition & Scope

 Nature of Jurisprudence:

The word “Jurisprudence” is derived from a Latin word jurisprudential, which in its
widest sense, means ‘knowledge of law’ or skill in law. The Latin word “Juris” means ‘Law’ and
“Prudentia” means skill or knowledge. Thus jurisprudence signifies knowledge of law and its
application. In this sense it covers the whole body of legal principles in the world. The history of
the concept of law reveals that jurisprudence has assumed different meanings at different times.
It is therefore, difficult to attempt a singular definition of the term. It has a long history of
evolution beginning from classical Greek period to 21st Century modern jurisprudence with
numerous changes in its nature in various stages of its evolution.

During the formative era of the common law in England, the term ‘jurisprudence’ was
being used in a comprehensive sense to include the study of various series of law. However, in
the early decades of the 19th Century with the theories propounded by Bentham and his disciple
Austin, the term ‘jurisprudence’ acquired a definite meaning. Later, Austin concerned himself
mainly with the formal analysis of the English law and its related concepts, which still continues
to be the basic contents of English jurisprudence.

 Meaning and Definitions of Jurisprudence:

Jurisprudence, in its limited sense, means the general principles upon which actual rules
of law are based. It is concerned with rules of external conduct which persons are constrained to
obey. Therefore, jurisprudence is that science which imparts to us knowledge about “law”. In
short, jurisprudence may be considered to be the study and systematic arrangement of general
principles of law.

In other sense, jurisprudence may be regarded as the philosophy of law dealing with the nature
and function of law. The study of jurisprudence as a separate branch of knowledge started with
the Romans. For them, jurisprudence meant ‘knowledge of law’.

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 The term ‘jurisprudence’ has meant different things at different times. The definitions of
jurisprudence as given by some of the eminent jurists may be stated as follows:-

1. According to Ulpian, the celebrated Roman jurist defined jurisprudence as “the

observation of things human and divine, the knowledge of the just and the unjust”.
2. According to Gray “jurisprudence is the science of law, the statement ans systematic
arrangement of the rules followed by the courts and the principles involved in those
rules”.
3. According to Salmond “jurisprudence is the science of the first principles of the civil
law”.
4. According to John Austin “jurisprudence is the philosophy of positive law”. He was the
first jurist to make jurisprudence as a science. By the term “positive law” he meant ‘jus
positivum’, that is law laid down by a political superior for commanding obedience from
his subjects.
5. According to Holland “jurisprudence is the formal science of positive law”.
6. According to Dr. Allen “jurisprudence is the scientific synthesis of the essential
principles of law’.
7. According to Roscoe Pound “jurisprudence is the science of law using the term law in
the judicial sense, as denoting the body of principles recognised or enforced by public
and regular tribunals in the administration of justice”.

 Scope of Jurisprudence:

The exact scope of jurisprudence has been a subject of the keenest controversy.
Jurisprudence is an investigation of an abstract and theoretical nature of law. It deals with the
essential principles of law and legal system. It does not constitute a set of rules. It is not
derived from authority and it is without practical application. It comprises philosophy of law.
Its object is not to discover new rules but to reflect on the rules already known.

As stated earlier, the scope of jurisprudence has widened considerably over the years. It is
generally believed that the scope of jurisprudence cannot be circumscribed. Broadly
speaking, jurisprudence includes all concepts of human order and human conduct in State
and Society. In other words, anything that concerns order in the state and society will be
within the domain of jurisprudence.

Commenting on the scope of jurisprudence, Justice. P.B.Mukarjee observed, “Jurisprudence

is both an intellectual and idealistic abstraction as well as behavioral study of man in society.
It includes political, social, economic and cultural ideas. It covers the study of man in relation
to state and society.

Jurisprudence is a science in so far as it deals with the knowledge of the law and legal
principles. Jurisprudence is an experimental study of legal ideas and ideals and social

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 philosophy and political ideology in form and content, nature and function which make it a
living and dynamic discipline. Functionally speaking, it is a technique of methodology to
devise, design and identify such pressing demands or problems which require solution with
the parameters of law and other social norms. It, therefore, follows that jurisprudence
comprises philosophy of law and its object is not to discover new rule but to reflect on the
rules already known.

Q. NO.2. Discuss legal realism. How is it different from Austin’s Theory of Law?

      Law is a means to social ends; and every part of it has constantly to be examined for its
purpose and effects, and to be judged in the light of both and their relation to each other. Society
changes faster than law and so there is a constant need to examine how law meets contemporary
social problems. Realists are opposed to the value of legal terminology, for they consider it as
tacit method of suppressing uncertainty of law. The realists introduced studies of case law from
the point of view which distinguished between rationalization by a judge in conventional legal
terminology of a decision already reached and the motivations behind the decisions itself.

An  alternative theory to both positivism and naturalism is legal realism. Legal

realists Focus on  “law in action” rather than with “law in books. They say law is what lawyers
and judges do when “practicing law” instead the sayings, quotations and interpretation of legal
theorist  and jurists. If studied in detail, we come to know that realists say the decision of a judge
is the law. Because he is the sovereign to interpret the law.  The doctrine of precedent has a very
significant place in realist theory.

Legal Realism states that an understanding of the law is not attained by a method of
deduction instead  best understood as a matter of prediction.  One of the leading supporter of
Realism is Oliver Wendell Holmes. Realists believe that there can be no certainty about law and
its predictability depends upon the set of facts which are before the court for decision.  They do
not support formal, logical and conceptual approach to law because the Court while deciding a
case reaches its decisions on ‘emotive’ rather than ‘logical’ ground.

Realism was a movement without a clearly articulated theoretical foundation of its own.
Some jurists refuse to accept realism as a separate school of jurisprudence. According to
Llewellyn, “there is no realist school as such, it is only a movement in thought and work about
law.” Realism is the anti-thesis of idealism. American realism is a combination of the analytical
positivism and sociological approaches. Julius Stone calls the realist movement a ‘gloss’ on the
sociological approach.

The main contribution of realists to jurisprudence lies in the fact that they have
approached law in a positive spirit and demonstrated the futility of theoretical concepts of justice
and natural law. Opposing positivist’s view, the realists hold that law is uncertain and
indeterminable in nature therefore, certainty of law is a myth. According to Friedman, realist
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movement is an attempt to rationalize and modernize the law- both administration of law and the
material for legislative change, by utilizing scientific method and taking into account the factual
realities of social life. According to Julius Stone, “realist movement is a gloss on the sociological
approach to jurisprudence. He considers realism as a combination of the positivist and the
sociological approach. It is positivist in the sense that it undertakes the study of law as it is and
sociological, because it expects that law should function to meet the ends of society. Thus in his
view, realist school is merely a branch of sociological jurisprudence and a method of scientific
and rational approach to law.

Legal Realism and Legal Positivism: 

  Despite their serious differences, Legal realism and legal positivism share one important
belief. It is that their views are similar on the point of difference between ‘the law as it is’ and
‘the law as it ought to be’. The positivist, according to Hart, look to the established primary rules
and to secondary rules of recognition that designate law making bodies. American realists are
skeptical about the degree to which rules represent the law. They seek to investigate how courts
actually reach their decisions. Karl Llewellyn observed that the realists’ separation of ‘is’ and
‘ought’, is a temporary divorce. The divorce lasts while the scholars are discovering what courts
actually do.

Q.No.3. Discuss the Natural Law Theory

OR

Explain Law as a Dictate of Reason

Introduction:
The natural law philosophy occupies an important place in the realm of politics, law,
religion, and ethics from the earliest times. It has plated the role of harmonizing, synthesizing
and promoting peace and justice in different periods and protected public against injustice,
tyranny and misrule.

Meaning and Definition of Natural Law:

Natural Law known as “Higher Law” or the “Law of Nature” is the oldest as well as the
most modern as it has been continually dominating the entire basis of politics, law, religion and
social philosophy. It is written by the fingers of nature in the hearts of mankind. The entire
history of natural law reveals an attempt by jurists to provide the concept and content of natural
law in order to meet the subjective conditions of human existence and to solve the contemporary
social problems of their times. Natural law in common sense means the law that is largely
unwritten and consists of principles of ‘ought’ as revealed by the nature of man or reason or
derived from God. It is emanated from some supreme source other than any political authority.

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 Blackstone observed: “The natural law being co-existent with mankind and emanating
from God Himself, is superior to all other laws. It is binding over all the globe in all countries
and at all the times and no man-made law will be valid if it is contrary to the law of nature”.

The natural law philosophy dominated in Greece during 5 th B.C. when it was believed
that it is something external to man. Socrates, Plato and Aristotle also accepted that postulates of
reason have a universal force and men are endowed with reason irrespective of race or
nationality. The concept of natural law has been differently interpreted by writers at different
times. Some of them contend that natural law consists of ideals which guide legal development
and administration while others characterize it as quest for perfect law deducible by reason. The
supporters of natural law theory believe that there is a basic element in law which prevents a
total separation of ‘law as it is’ from the ‘law as it ought to be’.

It would thus be seen that there is no unanimity about the definition and exact meaning of
natural law and the term natural law theory’ has been interpreted differently at different times
depending on the needs of the developing legal thought. But the greatest attribute of the natural
law theory is its adaptability to meet new challenges of the transient society. The exponents of
natural law philosophy conceive that it is a law which is inherent in the nature of man and is
independent of convention, legislation or any other institutional devices.

Natural law theory is the earliest of all theories. Its origins are found in Greece
Philosophy. Leading philosophers who support theory are Heraclitus, Socrates, Plato, and
Aristotle. With every passing century natural law theory got more and more followers which
include Gairus, Cicero, Aquinas, Gratius, Hobbes, Lock, Rousseau, Kant and Hume. Natural
Law has different names. Some of these names are law of reason, eternal law, rational law, and
principles of natural justice. Natural law is defined by Salmond as “the principles of natural
justice if we use the term justice in its widest sense to include all forms of rightful actions.”

According to Dias and Hughes “natural law as a law which derives its validity from its
own inherent values, differentiated by its living and organic properties, from the law
promulgated in advance by the state or its agencies.

According to Cohen, 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.”.

According to Stoics, it is Divine Law (jus divinum), the command of God imposed upon
man. Their philosophy was that man should live according to nature and that since the distinctive
feature of man’s nature was his endowment with reason.

According to Cicero, natural law is the Law of Reason, by which the world is governed
and which is addressed to and perceived by the rational nature of man.

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 According to Aristotle, natural law is the “unwritten law”. (jus no scriptum)

Natural law theory has tried to meet the paramount needs of successive ages throughout
history, and an account has been given of the ways in which it supported power or freedom from
power according to the social need of the time. Natural law shows us the need to study law in the
context of other disciplines in particular, it makes us aware of the way in which moral goals enter
the law and play a part in its administration and adjudication of cases.

The Importance of Natural Law:

Natural law is the result of the desire of wise and just men to seek ideal justice. Out of
natural law have evolved principles of law and legal systems which are common throughout the
world from a practical stand point, natural law might seem to offer advantages. First, as an
antidote to legal rigidity, it could provide flexibility, allowing rules of law to be changed from
what they are to what they ought to be, on the ground that the law always is what it ought to be.
Secondly, the natural lawyers’ terminology, natural law is claimed, would weaken the authority
of unjust and immoral laws.

Natural law has influenced the church; natural law has imbibed its principles of positive law,
rooting off from positive law what may not be consonant with natural justice; natural law has
been and is a very potent source on international law and contributes to its development. In
conclusion we may assert that natural law occupies an important and essential part in values.

Main Characteristics of Natural Law:

The phrase ‘natural law’ has a flexible meaning. It has been interpreted to mean different
things in course of its evolutionary history. However, it has generally been considered as an ideal
source of law with invariant contents. The chief characteristics features of natural law may be
briefly stated as follows:-

1. It is basically a priori method different from empirical method, the former accepts things
or conclusions in relation to a subject as they are without any need or enquiry or
observation while empirical or a posteriori approach tries to find out the cause and
reasons in relation to the subject-matter.
2. It symbolizes physical law of nature based on moral ideals which has universal
applicability at all places and times.
3. It has been often used either to defend a change or to maintain status quo according to
needs and requirement of the time.
4. The concept of ‘rule of law’ in England and India and ‘due processes’ in USA are
essentially based on natural law philosophy.

Q.No.4.. Critically examines the statement “Law as a command of the sovereign?

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 OR
Discuss the essential characteristics of the ‘Analytical School’?

Synopsis:

Introduction

Austin is considered to be the ‘father of English Jurisprudence’. He confined his study

only to the positive law and applied analytical method for this purpose. By Positive Law, Austin
meant ‘Laws Properly So Called” as distinguished from morals and other laws which he
described as ‘Laws Improperly So Called’ which lack force or sanction of the State. Austin
described positive law as ‘the aggregate of rules set by man as politically superior to men as
politically inferior subjects. He attributes (1) Command, (2) Sanction, (3) Duty, and (4)
Sovereignty as the four essential attributes of positive law.

It was Austin who for the first time treated jurisprudence as a science of law concerned
with analysis of legal concepts- their exposition, examination and comparison in a scientific
manner in order to determine their scope and extent in a given politically organised society. the
major thrust in Austinian positive law was therefore, on separation of law from morals.

“Law as a Command of Sovereign Imperative Law”

Austin’s positive law has three characteristic features: (1) It is a type of Command (2) it
is laid down by a Political Sovereign and, (3) Enforceable by a Sanction. A typical example is
‘the Road Traffic Law, which could be described as a command laid down by the sovereign
under the Indian legal system i.e. the parliament, and enforceable by penalties for violation.

 Commands: Requests and wishes are expressions of desire, while commands are
expressions of desire given by superiors to inferiors. Officers command their
subordinates but not otherwise. The relationship of superior to inferior consists in the
power, his ability to punish for disobedience. The power and purpose to inflict penalty for
disobedience are the very essence of a command. The person liable to the penalty is
under a duty to obey it. The penalties for disobedience are the essence of a command.
Command Duty and Sanction are inseparably connected. So every law is a command,
imposing a duty, enforce3d by a sanction. However all the commands are not law, it is

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 only general command, which obliges to a course of conduct, is law. Austin however,
accepted that there are three kinds of laws which are not commands. They are-
i. Declaratory or Explanatory Laws:- These are not commands because they are
already in existence and are passed only to explain the law which is already in
force.
ii. Laws of Repeal:- Austin does not treat such laws as commands because they are
in fact the revocation of a command.
iii. Laws of Imperfect Obligation:- They are not treated as command because there is
no sanction attached to them. Austin holds that command to become law, must be
accompanied by duty and sanction for its enforcement.
 Sovereigns: To Austin a sovereign is any person or body of persons, whom the bulk of a
political society habitually obeys, and who does not himself habitually obey some other
person or persons. Definition of sovereignty is to stress the fact that law is only law if it is
effective and this it can only be by being generally obeyed.
 Sanction: A sovereign without the means of enforcing obedience to his commands would
have little hope of continuing to rule. Law stands in need of sanctions. Law to the
positivist is something for the citizen to obey, not as he pleases but whether he likes it or
not, and this it cannot be without some method of coercion. Sanctions then are a logical
part of the concept of law; they consist of the penalties inflicted on the orders of the
sovereign for the violation of the law-in other words of institutionalized punishments.

Summary of Austin Theory: To sum up, Austin’s approach emphasizes the following:

1. A legal system is to be takes as it is (positive law) and it is to be resolved into its

fundamental conceptions;
2. Analysis of any legal system is to be done on the basis of logic not on the basis of ethical
or historical element;
3. Laws are the product of a state and all laws are thus, the commands of a sovereign;
4. Positive law and ideal law must be kept distinct. Law cannot be defined by reference to
any ideal or justice. The science of jurisprudence is concerned with the positive laws
without regard to their goodness or badness;

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 5. International law, according to Austin is not a true law as there is no sanction behind by
the sovereign, and
6. There are some common principles of law available in mature legal systems of the world.
Those principles are to be taken into consideration for analyzing law.

Criticism against Austin’s Imperative Theory of Law:

Austinian theory of law and analytical positivism has been criticized by jurist like Bryce,
Olivercona and others. Bryce characteristics Austin’s work as full of errors which hardly has any
significance in juristic thought. Austin’s theory has been criticized on the following grounds:

1. Austin’s view that ‘law is the command of sovereign is not supported by historical
evolution of law when customs played a significant role in regulating human conduct.
Further, customs still continue to be a potent source of law even after the coming into
existence of the State.
2. Austin’s theory does not take notice of laws which are of a permissive character and
confer privileges.
3. Judge- made law has no place in Austinian conception of law although the creative
function of judiciary as a law-making agency has been accepted in modern times all over
the world.
4. Austin does not treat international law as ‘law’ because it lacks sanction. Instead, he
regards international law as mere positive morality. This view of Austin if hardly tenable
in the present time in view of the increasing role of international law in achieving world
peace.
5. The Swedish jurist Olivercona has denounced Austin’s theory of law because of its over-
emphasis on ‘command’ as an inevitable constituent of law. In modern progressive
democracies law is nothing but an expression of the general will of the people. Therefore,
command aspect of law has lost its significance in the present democratic set-up where
people’s welfare is the ultimate goal of the state.
6. Perhaps the greatest shortcoming of the Austin’s theory is that it completely ignores the
relationship between law and morality. Law can never be completely divorced from
ethics or morality which provide strength to it. The legal concepts such as ‘right’,

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 ‘wrong’, ‘duty’, ‘obligation’ etc. themselves suggest that there is some ethical or moral
element present in them.
7. Austin’s view that it is sanction alone which induces a person to obey law, is not correct.
There are many other considerations such as fear, deterrence, sympathy, reason etc.
which may induce a person to obey law. The power of the state is only the last force to
secure obedience of law.
8. While bringing out distinction between positive law and positive morality. Austin opined
that the former was set by a political superior called the sovereign. But it was criticized
that the sovereign could well be bound by a duty towards his subjects.

Q.No. 6. Define Natural Law theory. Also explain its relevancies in the Modern times.

INTRODUCTION:
The Natural Law school is not independent school. It has deep concern with historical,
analytical school. The main contents of this theory is that it has been interpreted differently at the
different times depending on the needs of the developing legal thought but the greatest attribute
of the Natural la w theory is its adaptability to meet new challenges of the transient society.
According to the pro pounder of this theory says that, Law is a product of the straight thinking of
human mind. According to Socrates, he duely assert it that the positivist authority should be
obeyed but not blindly and it ought to be subject to criticism if deserve so. Plato: He was in the
view that each individual be given best suitable role by reason of his capacity and abilities.
Thomas Acquinas (Roman Thinker):- He means that Natural Law is a part of Divine Law. This
part is applied by human beings to govern their affairs and relations. Thomas Hobbes (Roman
Thinker) :- According to him that there should be an absolute authority which should govern and
control the affairs of human beings in the reciprocal transmission of concerned with every span
of life. Rousseau (Roman Thiner) : He held that there two types of will:1. The will of individual
and 2. General will. The authority through his rule must respect the both and in the
administration of rule making process. These will should be reflected.
Definition:-
From the jurisprudence point of view Natural law is not a body of actual enacted or
interpreted law enforced by courts.  It is in fact a way of looking at things and a humanistic
approach of Judges and Jurists. It embodies within it a host of ideals such as morality, justice,
reason, good conduct, freedom, equality, liberty, ethics and so on. The phrase Natural Law has a
flexible meaning. The chief characteristic feature of natural law may be briefly stated as
follows :-
i) It is basically a priori method which is different from empirical method. It used to
stress upon a cause and effect relationship between the facts on the verge of logic.

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 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 :- 

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 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.
 
Q.No. 8. Explain the Sociological School of Jurisprudence.

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

 Leon Duguit (1859-1928)

Leon Duguit was a French jurist who made substantial contribution to the sociological
jurisprudence. in early 20th century. The theory of Duguit under sociological school is a social
solidarity. Scocial solidarity means the greatness of society. Duguit said that there are mainly
two types of needs of the society:-
1.Common Needs       2. Adverse Needs.
1.  Common Needs :- Which are fulfilled by mutual assistance.
2.  Adverse Needs.:- Which are fulfilled by the exchange of services.  No one can live without
the help of other.  Even a state cannot exist without the help of other state. One cannot produce
all things required for him.  So he has to depend upon others. The dependency is called social
solidarity.  For this purpose the division of labour is necessary.  Division of labour will fulfill all
requirement for the society.  This philosophy or views is called social solidarity.
 Rudolph Von Ihring (1818-1892)

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Ihring was educated at Berlin in Germany. He was Professor at Basel, Rostock, Keil, Vienna and
Strasburg. Ihring opined that social interest must gain priority over individual interest and the
purpose of law should be to protect the interest of the society.
Ihring’s Contribution:
Ihring’s Contribution to the science of jurisprudence has been acknowledged by
Friedmann who calls him the ‘father of modern sociological jurisprudence’. Ihring traced the
development of various legal systems by adopting comparative method of study and came to the
conclusion that law develops by conscious efforts. He was a critique of Savigny’s historical
theory and natural law theories propounded by his predecessors.
 Ihring laid the foundation of modern sociological jurisprudence by this insistence on
treating law as one of the important factors to control the social organism. According to
him, (i) law has a coercive character; (ii) it has only a relative value; and (iii) it has to be
evaluated in the social context. Thus he treated law as an effective instrument for the
attainment of social purpose.
 ROSCOE POUND (1870-1964)
Roscoe pound was born on October 27, 1870, in Lincoln Nebraska. Roscoe pound was
one of the most leading and influential jurists who developed the American sociological
jurisprudence in a systematic form. He emphasised on inter disciplinary approach to law so that
rule of law and life may flow together. He treated law as a means for affecting social control and
did not believe in the abstract or mechanical application of law. He is considered to be the father
of American Sociological Jurisprudence for his unique contribution to the science of law and
legal philosophy.
The Contribution of Roscoe Pound
The contribution of Roscoe pound to Sociological Jurisprudence may be studied under the
following heads-
1. Emphasis on Functional Aspect of Law-
Roscoe pound added new dimensions to Sociological school of Jurisprudence. His
approach to Sociological Jurisprudence was different in the sense that he attempted to cover
social life as a whole unlike his predecessors who considered law as the main subject of study
and society is merely subsidiary to it. Pound laid greater stress on functional aspect of law.
He defined law is the containing “ the rules , principles, conceptions and standards of conduct

14 | P a g e
 and decision as also the precepts and doctrines of professional rules of art.” He thus considers
law as a means of a developed technique and treats jurisprudence as a ‘social engineering’.
The end of law according to him is to satisfy a maximum of wants with a minimum of
friction or confrontation. Elaborating the functional aspect of law, Roscoe pound stated that
the function of law is to reconcile the conflicting interest of individuals in the community and
harmonise their inter-relations. He termed this as “social Engineering”.
2. Pound’s Theory of Social Engineering-
Roscoe pound conceived law as a ‘social Engineering’ its main task being to
accelerates the process of social ordering by making all possible efforts to avoid conflicts of
interest of individuals in the society . Thus courts, legislators, administrators and jurists must
work with a plan and make an effort to maintain a balance between the competing interests in
society. He enumerates various interests which the law should seek to protect and classified
them into three broad categories, namely-
I. Private Interests / Individual Interest- Individual interests, according to pound are
claims, or demands or desires, involved in and looked at from the stand point of the
individual life immediately as such asserted in title of the individual life’.
II. Public interests: Public interests according to him are the claims or demands or desires
asserted by individuals involved in or looked at from the stand point of political life- life
in politically organised society. They are asserted in title of that organisation. It is
convenient to treat them as claims of politically organised society thought of as a legal
entity.
iv. Social interests : To pounds social interest are claims or demands or desires, even
some of the foregoing in other aspects, thought of in terms of social life and
generalised as claims of the social group. They are the claims functioning of society;
the wider demands or desires ascertained in the title of social life in civilised society.
Jural Postulates of Roscoe Pound
In order to evaluate the conflicting interests in due order of priority , pound suggested that
every society has certain basic assumption upon which its ordering rests, through for most of the time
they may be implicit rather than expressly formulated. This assumption may be called as jural
postulates of the legal system of that society. Pound has mentioned five jural postulates as follows-
A. Jural postulate I- in civilised society men must be able to assume that others will commit
no intentional aggression upon them.

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 B. Jural postulate II- in civilised society men must be able to assume that they may control
for beneficial purposes what they have discovered and appropriated to their own use, what
they have created by their own labour and what they have created by their own labour and
what they have acquired under the existing social and economic order.
C. Jural postulate –III – In a civilised society men must be able to assume that those with
whom they deal as a member of the society will act in good faith
D. Jural postulate iv- In civilised 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.
E. Jural postulate V-In a civilised society men must be able to assume that others who
maintain things or employ agencies, harmless in the sphere of their use but harmful in
their normal action elsewhere, and having a natural tendency to cross the boundaries of
their proper use will restrain them and keep them within their proper bounds.

Q.No.9. Discuss Hart’s Theory of Law.

OR
Narrate Law as a System of Rules.

Herbert Lionel Adolphus Hart was born in 1907. He practiced at the Chancery
Bar and, thereafter, worked as a Professor of Jurisprudence in Oxford during 1952-68.
Then he joined as Principal of Bransnose College, Oxford. He rejected Austin’s theory of
analytical positivism and expounded his legal theory based on the relationship between
law and society.

Hart’s Conception of Law

According to Hart, law is a system of two types of rules the union of which provides key
to the science of jurisprudence. These rules, he called as ‘primary’ and ‘secondary’ rules.
Rejecting Austin’s view that law is a command. H.L.A. Hart emphasized that primary rules are
duty-imposing while secondary rules confer power and the union of the two is the essence of
law. The primary rules which impose duty upon individuals are binding because of the popular
acceptance such as rules of kinship, family, sentiments etc. These being unofficial rules, they

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suffer three major defects, namely, (1) uncertainty, (2) Static Character, and (3) Inefficiency.
Besides, there is no agency for deciding about these rules. The secondary rules which are power
conferring enable the legislators to modify their policies according to the needs of the society. In
fact they seek to remedy the defects of the primary rules.

H.L.A. Hart’s Rule of Recognition

The concept of law according to hart is a system of rules and the rules are the sole basis
of a legal system. According to hart legal system is nothing but a combination of primary and
secondary rules.

Prof. Hart’s positivism explains the existence of law with reference to the rules of
recognition binding force of which depends upon its acceptance. The validity of law is based on
the basis of rule of recognition which is similar to Austin’s conception of sovereign. According
to him, rule of recognition is the sole rule in legal system whose binding force depends upon its
acceptance. For example, whatever is enacted by Parliament is rule of recognition. Again, the
various constitutional laws which constitute rule of recognition are rules of positive law which
are binding on citizens, officials, legislatures, Courts and various other governmental agencies.

Rule of recognition is kind of secondary rules which validates a legal system and which
is central, foundational and essential to every legal system. Hart describes rule of recognition as
a foundation of a legal system. Hart describes rule of recognition as a foundation of a legal
system. Legal system has faced the difficulty due to the uncertainty of the primary rules, so Hart
has made a solution to this problem by providing a new secondary rule which has a binding
effect named as “Rule of Recognition”. The rule of recognition removes the uncertainty of
primary rules. Rule of Recognition is a rule which points out how to recognize a particular rule
as a legal rule.

Thus, it could be seen that H.L.A. conception of positivism centered round the following
considerations:-

(1) He accepted law as a command as advocated by Bentham and his disciple Austin;
(2) He believed that analysis of legal conception is worth pursuing as distinguished from
mere sociological and historical inquiries.

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 (3) The judicial decisions were to be deduced from pre-determined rules without resource to
social aims, objectives, policy or morality.
(4) Moral judgments cannot be defended by rational argument, evidence or proof and
(5) The law as it is actually laid down has to be kept separate from law as it ought to be.

Functions of Rule of Recognition:

1. To establish a test for valid law in an applicable legal system.

2. To confer validity to everything else in applicable legal system.
3. To unify all the laws in the applicable legal system.

According to Hart, Rule of Recognition is the foundation of a legal system and it is accepted
by both private persons and authoritative criteria for identifying the primary rules of obligation.
In modern legal system where there are too many sources of law the rule of recognition because
complex, so it includes constitutional enactments and precedents. He accepted that morality is a
necessary condition of society and the law has a function to ensure that morality of society does
not disintegrate. But he further added that “law’s function is only the last line of defence; other
attempts to preserve the accepted morality should come from within the society itself e.g.,
through education, the mass media.

Q.No.10. Define the term Law. Explain the nature, functions and purpose of Law.

Meaning of Law:

In its general sense law means an order of the Universe, of events, of things or actions. In
its judicial sense, law means a body of rules of conduct, action or behavior of persons, made and
enforced by the state. It expresses a rule of human action.

The different meanings of the word “Law” may be classified as follows:

1. Law means justice, morality, reason, order, etc. from the view of society.
2. Law means statutes, Acts, rules, regulations, order, ordinance etc; from the point of view
of legislature.
3. Law means rules of court, decree, judgments, orders of `courts etc from the point of view
of judges.

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 4. Law means rights and remedies from the point of view of decree holders.
5. Law means duties, liabilities, obligations etc, from the point of view of the judgment-
debtor and
6. Law means titles written laws, judicial precedents, customs as evidence of law.

Generally the term law is used to mean 3 things:

1. First, it is used to means ‘legal order’. It represents the regime of adjusting relations and
ordering conduct by the systematic application of the force of organized political society.
2. Secondly, law means the whole body of legal precepts which exists in a politically
organized society.
3. Thirdly, law is used to mean all official control in a politically organized society. This
leads to the actual administration of justice as contracted with the authoritative material
for the guidance of judicial action.

Nature and Characteristics of Law:

1. Law is Uniformity: the most dominating features of law is its uniformity. If there is no
uniformity in the statement of the law, it cannot be said to be a “Law”. When there is
uniformity in law a state can establish a proper course of behavior of the people.
Uniformity is established through the system of judicial precedents.
2. The Dominating Character of Law: the dominating character of law is that it is the
nature of enjoyments to be kept. The law is in the nature of enjoyments by the sovereign
power in the state to the subjects/ citizens of the state.
3. The Law should Conform to the Principles of Justice: though all law is not justice,
and all that is justice is not law; yet law seeks to do justice according to law i.e.,
according to the recognised morals of the land, which have been made law.
4. Law is a Normative Science: Law consists largely of ‘ought’ (normative) propositions
prescribing how people ought to behave. The legal laws prescribe how people ought to
behave.
5. The law is Impartial: The law is applied generally for all persons and classes, without
any discrimination except in the case of a special law.

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 6. Law is Capable of Procuring Remedies: In case of infringement of any persons rights/
privileges law provides the remedies. The law is enforced through sanctions e.g.
attachment, fines and imprisonment.
7. Law Presupposes State: the state makes or authorities to make, recognizes or sanctions
rules which are called law. The statute is made by the legislature and the legislators in a
democracy are the representatives of the people.
8. Law is Territorial in Nature: the enforcement of law is territorial in nature. No state
allows other states, as a general rule, to exercise powers of government with it.

Purposes and Functions of Law

The law serves many purposes and functions in society. Four principal purposes and
functions are establishing standards, maintaining order, resolving disputes, and protecting
liberties and rights. Jurists have expressed different views about the purpose and functions of
law. It is well known that law is dynamic concept which keeps on changing with time and place.
It must change with changes is the society.

Law in the modern sense, is considered not as an end is itself; but it is a means to an end.
The end is securing if Social Justice. Almost all therein agree that law is an instrument of
securing justice. As Salmond rightly pointed out “Law is a body of principles recognised and
applied by the state in the administration of Justice”. Hobbes and Locke recognised the positive
role of law when they said that “The end of law is not to abolish or restrain but to preserve or
enlarge freedom and liberty”. Bentham gave a very practical version of the purpose of law which
according to him is maximization of the happiness of the greatest number of the members of the
community. According to Holland, the function of law is to ensure well being of society. Thus it
is something more than an institution for the protection of individual rights.

Roscoe Pound attributed major functions of Law

1. Justice and Law

The ultimate purpose of law is Justice. Hence there is a connection between law and
justice.
Justice may be a) Natural (moral ideal Justice)

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 b) Positive (Legal Justice)
Justice really involves doing good not only to human beings but to all that is good in
nature. Law is an instrument of social utility for rendering the greatest good to the largest
number. The object of Law is to ensure social justice. This justice may be either
distributive or corrective. Justice is not synonymous with equality. Equality is one of the
aspect of law. By justice we should not mean that the judges always free to decide the
case as he likes. In short justice should be administered according to the provisions of the
law. Where the provisions of the statutes or not clear, surely the judge can supplement.
But on the whole judge must act according to legislative enactment.

2. Stability / Uniformity.
Justice alone is not the only goal of law. The idea of law represents a basic conflicts
between two different needs, namely, the need for uniformity and the need for the
flexibility. Law must aim at stability in society. To achieve stability, a balance has to be
struck not between persons but between interests. The law has to maximize the
fulfillment of the interests of the community and its members and to promote the smooth
running on the machinery of society. Uniformity is needed to provide certainty and
predictability. Where the rules of law are fixed and generalized, the citizen can plan his
activities with a measure of certainty and predict the legal consequences. The stability
and security which the social order, derives from uniform, unchanging and certain rules
of law.

3. Law as an instrument of social change.

The existing rules may not provide solution to the cause, if changed times and no rule can
provide for every possible care. There is need for flexibility. Flexibility is necessary to
enable the law to adopt itself to social change. In a changing society the needs of the
people change from time to time. In a progressive society law has to keep pace with the
changing needs of society. Law has to undergo a progressive change if it is to sub serve
the member of the society which it seeks to govern. The purpose and function of law is to
regulate social interests. Law must serve as an instrument of ordering the life of the
people. If the law is to play its role of serving the needs of the society it must reflect the

21 | P a g e
 ideas of society. As society changes, law also cannot remain immutable. It must,
therefore march in time with the changing norms of the society.
4. Establishing Standards
The law is a guidepost for minimally acceptable behavior in society. Some activities, for
instance, are crimes because society (through a legislative body) has determined that it
will not tolerate certain behaviors that injure or damage persons or their property. For
example, under a typical state law, it is a crime to cause physical injury to another person
without justification—doing so generally constitutes the crime of assault.

5. Maintaining Order
This is an offshoot of establishing standards. Some semblance of order is necessary in a
civil society and is therefore reflected in the law. The law—when enforced—provides
order consistent with society’s guidelines.

Q.No.11. Explain the necessity of administration of Justice. Distinguish between Criminal

and Civil Administration of Justice.

Meaning and Definitions:

Salmond “the Administration of justice is the maintenance of right within a political

community by means of the physical force of the state. It is the application by the State of the
sanction of force to the rule of right”.

Acc Black Stone :- Justice is a reservoir from where the concept of right, duty and
equity evolves.
Justice is expressed in terms of “Justice according to law” . Dicey called as “Rule of
law”. “No one is above law”.

Necessity of Administration of Justice.

It is true that unlimited and unrestrained liberty leads to a state of anarchy, therefore some
kind of external coercive authority is needed to keep man within his limits and restrain his
unfettered liberty. Herbeart Spencer, “every man is true to do what he desires provided he
infringers not with the equal freedom of any other man”. Hobbes believed that a common power
was necessary to keep people within controle in the community. Force is necessary to prevent the

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recalcitrant minority from gaining unfair advantage over law abiding people in general.
Therefore, state force is inevitable for protection of rights of individuals in society.
Distinction Between Criminal Justice & Civil Justice
Criminal Justice
1. All criminal wrongs are
administrated by criminal justice.
2. Eg. Theft, murder, rape, forgery
etc.
3. All crimes are public wrongs.
4. All criminal proceedings are
instituted by the state.
5. A Crime is treated a harmful Act
to the entire Society.
Eg. Murder, killing a person
primarily affects the deceased, but it
badly affects on his family and also
entire society.
6. The object of the criminal justice
is to ‘punish’ the wrongdoer, ranging
from death to fine.
7. Criminal Justice is administered
according to the set of criminal
procedures.
8. The doctrine of estoppel does not
apply to criminal Justice.
9. “It is better that several guilty
men should escape rather than one
innocent should punished”.
The guilt must be proved beyond
the doubt.
10. The rules of evidence cannot be
relaxed by the consent of the parties.
11. The cases once instituted cant
be compounded or withdrawn in the
criminal Justice. There are very few
exceptions.
12. The burden of proof lies on the
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Civil Justice
1. All civil wrongs are
administrated by civil justice.
2. Eg. Breach of contract, Irespass
to land etc.,.
3. All civil wrongs are private
wrongs.
4. The aggrieved person institutes
the civil proceedings.
5. Civil wrongs are deemed only to
infringe the rights of the individual.
6. The object of the civil Justice is
to provide ‘compensation’ to the
aggrieved and sufferer by wrong –
does.
7. Civil justice is administered Acc
to the set of Civil Procedures.
8. The doctrine of estoppel applies
only Civil Justice.
9. This Principle does not apply to
civil proceedings.
10. Te rules of evidence may be
relaxed by the consent of the
parties.
11. The proceedings may be
withdrawn by the parties with their
own consent.
12. The burden of proof dies on
 prosecution. both the Petitioner and the
The guilt must be proved beyond Defendant.
the doubt.
13. In the criminal cases, the 13. In the Civil, it is the duty of the
obligation lies on the Court to bring parties to place their case as they
all relevant evidence on the record so think best.
that justice is done.

14. ‘Benefit of doubt’ is given to 14. ‘Benefit of doubt’ principle

the Accused in criminal Justice.
15. The criminal justice deals with
remedial and breaches of duties. It is
a corrective Justice.
16. Criminal Courts administer the
criminal justice.
does not arises in civil justice.
15. It deals with the distribution of
wealth and honour. It is distributive
Justice.
16. Civil Courts administer the
Civil Justice.

Q.No.12. Discuss Legislation as a Source of Law.

OR

Explain the importance of Legislation as source of Law.

OR

Legislation is the prime source of law. and consists in the declaration of legal rules by a
competent authority. Legislation can have many purposes: to regulate, to authorize, to enable, to
proscribe, 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. The
legislature may delegate law-making powers to lower bodies. In the UK, such delegated
legislation includes Statutory Instruments, Orders in Council, & Bye-laws. Delegated legislation
may be open to challenge for irregularity of process; and the legislature usually has the right to
withdraw delegated powers if it sees fit.

Most legislatures have their powers restricted by the nation's Constitution, and
Montesquieu's theory of the separation of powers typically restricts a legislature's powers to
legislation. Although the legislature has the power to legislate, it is the courts who have the
power to interpret statutes, treaties and regulations. Similarly, although parliaments have the
power to legislate, it is usually the executive who decides on the legislative programme. The
procedure is usually that a bill is introduced to Parliament, and after the required number of
readings, committee stages and amendments, the bill gains approval and becomes an Act.

In modern times, legislation is considered as the most important source of law. The term
'legislation' is derived from the Latin word legis which means 'law' and latum which means "to
make" or "set". Therefore, the word 'legislation' means the 'making of law'. The importance of

24 | P a g e
legislation as a source of law can be measured from the fact that it is backed by the authority of
the sovereign, and it is directly enacted and recognised by the State. The expression 'legislation'
has been used in various senses. It includes every method of law-making. In the strict sense it
means laws enacted by the sovereign or any other person or institution authorised by him.

Let us understand how various jurists have defined legislation.

1. Salmond- Legislation is that source of law which consists in the declaration of legal rules by a
competent authority.
2. Horace Gray- Legislation means the forma utterance of the legislative organs of the society.
3. John Austin- There can be no law without a legislative act.
Analytical Positivist School of Thought- This school believes that typical law is a statute
and legislation is the normal source of law making. The majority of exponents of this school do
not approve that the courts also can formulate law. They do not admit the claim of customs and
traditions as a source of law. Thus, they regard only legislation as the source of law.
Historical School of Thought- This group of gentlemen believe that Legislation is the
least creative of the sources of law. Legislative purpose of any legislation is to give better form
and effectuate the customs and traditions that are spontaneously developed by the people. Thus,
they do not regard legislation as source of law.

The kinds of legislation:

The kinds of legislation can be explained as follows:
(i) Supreme Legislation: When the laws are directly enacted by the sovereign, it is considered
as supreme legislation. One of the features of Supreme legislation is that, no other authority
except the sovereign itself can control or check it. The laws enacted by the British Parliament fall
in this category, as the British Parliament is considered as sovereign. The law enacted by the
Indian Parliament also falls in the same category. However in India, powers of the Parliament are
regulated and controlled by the Constitution, through the laws enacted by it are not under the
control of any other legislative body.
(ii) Subordinate Legislation: Subordinate legislation is a legislation which is made by any
authority which is subordinate to the supreme or sovereign authority. It is enacted under the
delegated authority of the sovereign. The origin, validity, existence and continuance of such
legislation totally depends on the will of the sovereign authority. Subordinate legislation further
can be classified into the following types:-
(a) Autonomous Law:
When a group of individuals recognized or incorporated under the law as an autonomous
body, is conferred with the power to make rules and regulation, the laws made by such body fall

25 | P a g e
under autonomous law. For instance, laws made by the bodies like Universities, incorporated
companies etc. fall in this category of legislation.
(b) Judicial Rules:
In some countries, judiciary is conferred with the power to make rules for their
administrative procedures. For instance, under the Constitution of India, the Supreme Court and
High Courts have been conferred with such kinds of power to regulate procedure and
administration.
(c) Local laws:
In some countries, local bodies are recognized and conferred with the law-making
powers. They are entitled to make bye-laws in their respective jurisdictions. In India, local
bodies like Panchayats and Municipal Corporations have been recognized by the Constitution
through the 73rd and 74th Constitutional amendments. The rules and bye-laws enacted by them
are examples of local laws.
(d) Colonial Law:
Laws made by colonial countries for their colonies or the countries controlled by them
are known as colonial laws. For a long time, India was governed by the laws passed by the
British Parliament. However, as most countries of the world have gained independence from the
colonial powers, this legislation is losing its importance and may not be recognized as a kind of
legislation.
(e) Laws made by the Executive:
Laws are supposed to be enacted by the sovereign and the sovereignty may be vested in
one authority or it may be distributed among the various organs of the State. In most of the
modern States, sovereignty is generally divided among the three organs of the State. The three
organs of the State namely legislature, executive and judiciary are vested with three different
functions. The prime responsibility of law-making vests with the legislature, while the executive
is vested with the responsibility to implement the laws enacted by the legislature. However, the
legislature delegates some of its law-making powers to executive organs which are also termed
delegated legislation. Delegated legislation is also a class of subordinate legislation. In welfare
and modern states, the amount of legislation has increased manifold and it is not possible for
legislative bodies to go through all the details of law. Therefore, it deals with only a fundamental
part of the legislation and wide discretion has been given to the executive to fill the gaps. This
increasing tendency of delegated legislation has been criticized. However, delegated legislation
is resorted to, on account of reasons like paucity of time, technicalities of law and emergency.
Therefore, delegated legislation is sometimes considered as a necessary evil.

Delegated Legislation:
This is a type of subordinate legislation. It is well-known that the main function of the
executive is to enforce the law. In case of Delegated Legislation, executive frames the
provisions of law. This is also known as executive legislation. The executive makes laws in the
form of orders, by laws etc.

26 | P a g e
 Sub-Delegation of Power to make laws is also a case in Indian Legal system. In India, the
power to make subordinate legislation is usually derived from existing enabling acts. It is
fundamental that the delegate on whom such power is conferred has to act within the limits of
the enabling act.

The main purpose of such a legislation is to supplant and not to supplement the law. Its
main justification is that sometimes legislature does not foresee the difficulties that might come
after enacting a law. Therefore, Delegated Legislation fills in those gaps that are not seen while
formulation of the enabling act. Delegated Legislation gives flexibility to law and there is ample
scope for adjustment in the light of experiences gained during the working of legislation.

Q.No.13. Explain the Essentials of Valid Custom.

Meaning and Definition of Custom:

Custom can simply be explained as those long established practices or unwritten rules which
have acquired binding or obligatory character. In ancient societies, custom was considered as
one of the most important sources of law; In fact it was considered as the real source of law.
With the passage of time and the advent of modern civilization, the importance of custom as a
source of law diminished and other sources such as judicial precedents and legislation gained
importance.

 Salmond- Custom is the embodiment of those principles which have commended

themselves to the national conscience as principles of justice and public utility.
 Carter- The simplest definition of custom is that it is the conformity of the conduct of all
persons under like circumstances.
 Austin- Custom is a rule of conduct which the governed observe spontaneously and not
in pursuance of law settled by a political superior.

Origin of Custom:-
A study of ancient laws shows that in primitive society, the lives of the people were
regulated by custom which developed spontaneously according to the circumstances. It was felt
that a particular way of doing thing was more convenient than others. Holland- Custom
originated in the conscious choice by the people of the more convenient of the two acts.
Imitation must have played an important part in the growth of customs.
As long as the disposition of the early man remained synamic, he was inseparably bound
to custom. With the growth of civilization, man began to reason and to reject the unreasonable
customs and accepted reasonable ones. .

Requisites or Essentials of a Valid Custom:-

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 In order to be a valid custom, it must conform to certain requirements laid down by the
law. The essential of a valid customs are:

1. Immemorial Antiquity-
A custom to be valid must be immemorial. In order, that a custom may have the force
of law, it is necessary that it should be ancient. A custom, in order that it may be legal and
binding, must have been used so long that the memory of man runneth not to the contrary. So
that if anyone can show the beginning of it, it is no good custom. The idea of immemorial
custom was derived by the law of England, from the Canon law and by the Canon law from
the Civil law. 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 into existence.
In India, while a custom need not be immemorial, the requirement of long usage is
essential since it is from this that custom derives its force as governing the parties’ right in
place of the general law.
2. Continuance:
A custom to be valid must have continued without interruption since time
immemorial. This refers to the active exercise of the custom. It must have been in
existence and recognised by the community without any intervening break. If a custom
has been followed continuously and without any interruption for a long time, it gains
recognition. If it has been interrupted, the presumption is that it never existed at all.
3. Reasonableness:
A custom must be reasonable. It gives a good deal of discretion to the court in
the, matter of recognition of customs. · It has been settled that the time to decide the
reasonableness of a custom is the time of its origin. 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 a better rule can
be formulated in the exercise of their own judgment, otherwise, a custom will lose much
of its force and sanctity.
4. Certainty:
A valid custom must be certain and definite. A custom which is vague or
indefinite cannot be recognized. 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.
5. Obligatory force:
A custom is valid if its observance is compulsory. An optional observance is
ineffective. A custom that all the inhabitants shall be rated, towards maintenance of a
bridge, will be good but a custom that every man is to contribute thereto at his own
pleasure, is idle and absurd and indeed no custom at all.
6. General or universal:

28 | P a g e
 Custom is effectual only when it is universal or nearly so in the absence of
unanimity of opinion, custom becomes powerless, or rather doesn’t exist.7.
7. Conformity with statutory law:
No custom or prescription can take away the force of an Act of Parliament. A
state can abrogate custom but not vice-versa. But according to the historical school, a
custom is superior to statute and it can supersede a statute, though this view has nowhere
been recognized 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.

Q.No.13. Discuss the Precedent as a Source of Law

Judicial precedent (case law, or judge-made law) is based on the doctrine of stare decisis,
and mostly associated with jurisdictions based on the English common laW, but the concept has
been adopted in part by Civil Law systems. Precedent is the accumulated principles of law
derived from centuries of decisions. Judgments passed by judges in important cases are recorded
and become significant source of law. When there is no legislature on a particular point which
arises in changing conditions, the judges depend on their own sense of right and wrong and
decide the disputes from first principles. Authoritative precedent decisions become a guide in
subsequent cases of a similar nature. The dictionary of English law defines a judicial precedent
as a judgment or decision of a court of law cited as an authority for deciding a similar state of
fact in the same manner or on the same principle or by analogy. Another definition declares
precedent to be," a decision in a court of justice cited in support of a proposition for which it is
desired to contend". Compared to other sources of law, precedent has the advantage of flexibility
and adaptability, and may enable a judge to apply "justice" rather than "the law".

In simple words, judicial precedent refers to previously decided judgments of the superior
courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This
binding character of the previously decided cases is important, considering the hierarchy of the
courts established by the legal systems of a particular country. In the case of India, this hierarchy
has been established by the Constitution of India. Judicial precedent is an important source of
law, but it is neither as modern as legislation nor is it as old as custom. It is an important feature
of the English legal system as well as of other common law countries which follow the English
legal system.
In most of the developed legal systems, judiciary is considered to be an important organ
of the State. In modern societies, rights are generally conferred on the citizens by legislation and
the main function of the judiciary is to adjudicate upon these rights. The judges decide those
matters on the basis of the legislations and prevailing custom but while doing so, they also play a
creative role by interpreting the law. By this exercise, they lay down new principles and rules
which are generally binding on lower courts within a legal system. Given this background, it is
important to understand the extent to which the courts are guided by precedents. It is equally

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important to understand what really constitutes the judicial decision in a case and which part of
the decision is actually binding on the lower courts.

Precedent as a source of law

Till the 19th Century, Reported Court Precedents were probably followed by the courts. However,
after 19th century, courts started to believe that precedence not only has great authority but must
be followed in certain circumstances. Precedent has a binding force and therefore it is an
important source of law. The rule of precedent should, however, be abandoned if it is
inconsistent with the notion of Justice or social welfare policy. It enables illogical and
unsatisfactory decisions to be overruled to meet the ends of justice. According to Bentham,
precedent is a judge made law. While Austin calls it as judiciary’s law.
Nature of Precedence:
A judicial precedent is purely constitutive in nature and never abrogative. This means that
it can create law but cannot abolish it. The judges are not at liberty to substitute their own views
where there is a settled principle of law. They can only fill in the gaps in the legal system and
supreme imperfections in the existing law.
Types of Precedents
1. Original and Declaratory Precedent:
Precedents are either original or declaratory. Judicial decisions are of two kinds
those that create new law and those that merely apply known and established rules of law
to the particular facts of the cases arising for decision. Thus the original precedents are
those which create or establish original or new rules of law, whereas the declaratory
precedents are those which merely reiterate and apply an already existing rule of law.
Both are equally a source of law.
2. Authoritative and Persuasive Precedent-
An authoritative precedent is that which must be followed by the judges, whether
they approve it or not. It comes from a court superior to the court concerned.
Authoritative precedent are binding upon the judge who interpret the law, they can be
regarded and are regarded as a legal source of law. Judges must follow the precedent
whether they approve of it or not. They are classified as Legal Sources.
Persuasive precedent are those which the courts are not bound to follow, though
they may take them into consideration while giving their decisions. They, being only of a

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 guiding character are not considered as a legal source of law. Such precedents are only a
historical source of law. The persuasive precedents has no legal force by itself. It has an
effect only when followed or adopted by a court of law. Judges are under no obligation to
follow but which they will take precedence into consideration and to which they will
attach such weight as it seems proper to them. They are classified as Historical Sources.
Binding Force of Doctrine of Precedent
The weight which judicial precedent carry to the decision of a case, widely caries
depending on the legal system of the country concerned. In England and USA a reported case
may be cited with almost as much authority as an Act of Parliament. But in continental country’s
it does not carry the same weight and a court cannot be restrained to take the same view as taken
in the earlier similar case.
In India, the decision of the Supreme Court have an authoritative and binding force so
long as they are not overruled by Supreme Court itself. According to Section 212 of the
Government of India Act, 1919, the law laid down by Federal Court and any judgment of the
Privy Council was binding on all courts of British India. Hence, Privy Council was supreme
judicial authority. Supreme Court (SC) became the supreme judicial authority and a streamlined
system of courts was established.
1) Supreme Court:
Binding on all courts in India Not bound by its own decisions, or decisions of PC or
Federal Court -
2) High Courts:
Binding on all courts within its own jurisdiction Only persuasive value for courts outside
its own jurisdiction. In case of conflict with decision of same court and bench of equal
strength, referred to a higher bench. Decisions of PC and federal court are binding as long
as they do not conflict with decisions of SC.
3) Lower Courts:
Bound to follow decisions of higher courts in its own state, in preference to High Courts
of other states.

Q.No.14. Discuss the Circumstances destroying or weakening the binding force of

Precedents.

Judicial precedent is another important source of law. It has a binding force on Judicial
Tribunals for deciding similar cases in future. Acc to Salmond, the doctrine of Precedent has 2
meanings.

1. In a loose sense precedent includes merely reported case law which may be cited and
followed by the Courts.

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

*A statement of law made by a Judge in a Case can become binding on later Judges and
other subordinate courts and in this way may becomes the law for every one to follow.

Precedent become binding depends on 2 main factors

1) It must have been pronounced by a court which is sufficiently senior.

2) It is only the retiodecidendi, i.e., reasoning behind the decision which is binding.

Authority of precedent in India :

* The privy Council’s Made Authoritative influence by its decisions on Indian judicial
legal system.

* The principles of equity, justice and good conscience in India a were the result of privy
council’s various decisions. Still it’s decisions are binding force in all the courts in
India.

* After independence, the supreme court occupied the place of the privy council.

A precedent may be defined as a statement of law found in the decision of a superior

court, which has to be followed by that court and by courts inferior to it. Meant to be followed a
judicial decision of a High Court or superior court by the same court as also by subordinate
courts. Black stone has pointed out that it is an established rule to abide by the former precedents
where the same points came again in litigation. The process of Judicial decision making may be
either deductive pr inductive.

Deductive method is associated with codified system of law. It assumes that the legal
rule applicable to any particular case is fixed and certain and the Judge us required to apply this
rule as justice acc to the law without any reference to his personal view.

Inductive Method starts with the same primary object of finding the general principles
applicable to the particular case, but it does not conceive the rule as being applicable to the
particular case, but it does not conceive the rule as being applicable directly by simple method of
deduction. It rather moves from particular toKinds of precedents

1. Declaratory and original precedents

2. Persuasive precedents

3. Absolutely Authoritative precedents,

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 4. Conditionally Authorities precedents.

Circumstances which destroy the binding force of Judicial Precedents:

1) Ignore of statute:
It is not binding if it be rendered in ignorance of any statute or any other rule having the
force of stature.

2) Inconsistency between earlier decision of higher Court:

It loses its binding force completely, if it is inconsistent with the decision of a higher
Court.

3) Inconsistency between earlier decision of the Court of the same Rank:

A Court is not bound by its own earlier decisions which are conflicting with each other.
The conflict may raise due to inadvertence, ignorance in earlier decisions before the
Court.

4) Precedent sub silentio:

A decision is said to be sub silentio when the point of law involved in it is not fully
argued or not perceived by the Court.

5) Decision of equally divided Court:

There may be cases where the Judges of the Appellate court are equally divided. In such
a case practice is to dismiss the appeal and hold that the decision appealed against is
correctly decided.

6) Erroneous decisions: The decisions which are founded on misconceived principles or

in conflict with the fundamental principles of law lose their binding force totally.
7) Abrogated decisions: A decision ceases to be binding if statute inconsistent with it is
subsequently enacted. So also, it ceases to be binding if it is reserved, overrules or
abrogated.
8) Affirmation or reversal on a different ground:
When a higher Court either affirms or reverses the judgment of the Lower Court on a
ground different from that on which the judgment rests, the original Judgment is not
deprived of all the authority, but the subsequent Court may take a view that a particular
point which the higher Court did not touch, is rightly decided.

Q.No.15. What is Legal Right? Describe Hohfeld’s concept of right in its widest sense.

Introduction:-
Right and duties are the very important element of law. The term ‘ Right’ has various
meanings such as correct, opposite of left, opposite of wrong, fair, just and such like other
expression etc. But in legal sense a right is a legally permissible and protected action and interest
of a man group or state.

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Meaning and Definition of Legal Right:

According to Austin:- “Right is a standard of permitted action within a certain sphere.

He further define right is a party has a right when others are bounds to obligesed by law to do or
not to do any act.”
Austin conceives this distinction to be the essence of a right that it should be vested in
some determinate person and be enforceable by some form of legal process instituted by him.
Austin thus starts from the assumption that a right cannot vest in an indeterminate, or a vague
entity like the society or the people. The second assumption with which Austin starts is that
sovereign creates rights and can impose or change these rights at its will. Consequently, the
sovereign cannot be the holder of such rights.
According to Salmond: “It is an interest recognized and protected by the rule of justice
law.”
According to Gray:- “Right is not an interest itself but it is the means by which the enjoyment
of an interest in secure.”
According to Prof. Allen:- “ The essence of right not a legal guarantee in itself but a
legally guaranteed power to realized an interest.”

Characteristics of Legal Right

According to Salmond, there are five important characteristics of a Legal Rights.

1. It is vested in a person who may be distinguished as the owner of the right, the subject
of it, the person entitled, or the person of inherence.
2. It avails against a person, upon whom lies the correlative duty. He may be
distinguished as the person bound, or as the subject of duty, or as the person of incidence.
3. It obliges the person bound to an act or omission in favour of the person entitled. This
may be termed the content of the right.
4. The act or omission relates to something (in the widest sense of that word), which may
be termed the object or subject matter of the right.
5. Every legal right has a title, that is to say, certain facts or events by reason of which the
right has become vested in its owner.

Some jurists hold that a right may not necessarily have a correlative duty. They say that
legal rights are legal concepts and these legal concepts have their correlatives which may not
necessarily be a duty.

Roscoe Pound also gave an analysis of such legal conceptions. He believed that legal
rights are essentially interests recognized and administered by law and belong to the ‘science of
law’ instead of ‘law’. He proposed that such Rights are conceptions by which interests are given
form in order to secure a legal order.

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Hohfeld’s System of Fundamental Legal Concepts or Jural Relations

1 2 3 4
Right Privilege  Power Immunity 
Jural Opposites – – –  –
No Right Duty Disability Liability

Jural Correlatives Right Privilege Power Immunity 

–  – –   – 
Duty No Right  Liability Disability

Jural Correlatives represent the presence of in another. Thus, right is the presence of duty in
another and liability is the presence of power in another.
Jural Opposites represent the absence of in oneself. Thus, no right is the absence of right in
oneself and disability is the absence of power in oneself.

Conclusion derived from Hohfeld’s System

a. As a person’s right is an expression of a wish that the other person against whom the right or
claim is expressed has a duty to obey his right or claim.

b. A person’s freedom is an expression of a right that he may do something against other person
to change his legal position.

c. A person’s power is an expression of a right that he can alter other person’s legal position.

d. A person’s disability is an expression of a wish that another person must not alter the person’s
legal position.

Q.No.16. What is Possession? What are the elements of Possession and Distinguish between
Possession in Law and Fact.

Possession is very difficult to define in English Jurisprudence. But it very important topic.
Human life and society would become impossible without retention and consumption of material
and non-material things. Food, clothes, tools, etc. are essential items to use. We get hold over the
first to claim possession. It is not just acquisition of things but it is continuing claim for use of
them. It may be legal or illegal. Possession is defined as “it is continuing exercise of a claim to
the exclusive use of it.” It does not cover incorporeal possession. Possession is different from
ownership but normally possession and ownership lie together.

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Elements of Possession:
Law demands the existence of these two types of elements for constituting the
possession.
1. The Animus Possidendi - The intent necessary to constitute possession is the intent to
appropriate to oneself the exclusive use of the thing possessed. It is an exclusive claim to
a material object. Salmond made following observations in this regard.

1. It is not necessarily a claim of right.

2. The claim of the possessor must be exclusive.
3. The animus possidendi need not amount to a claim of intent to use the thing as
owner.
4. The animus possidendi need not be a claim on one’s own behalf.
5. The animus possidendi need not be specific, but may be merely general. It does
not necessarily involve any continuous or present knowledge of the particular
thing possessed or of the possessor’s relation to it.

2. The Corpus Possessionis – The claim of the possessor must be effectively realized in the
facts; that is to say, it must be actually and continuously exercised. The corpus
possessionis consists in nothing more than the continuing exclusion of alien interference,
coupled with ability to use the thing oneself at will. Actual use of it is not essential.

Distinguish between Possession in Law and Fact:

Possession in fact or de facto:
It means the possession, which physically exists in term of control over it. It can be seen landlord
and tenant where tenant holds possession of house physically or de facto, but it is not possession
in law or de jure.

Possession in law or de jure:

It is the possession which, in the eyes of law, exists. It may exclude physical control over it. It is
also called constructive possession. A servant may possess car, but in the eyes of law, it is
possession of master. Possession of bailor through bailee is de jure possession on the part of
bailor.

Salmond made a distinction between possession in fact and possession in law.

1. Possession may and usually does exist both in fact and in law. The law recognizes as
possession all that is such in fact, and nothing that is not such in fact, unless there is some special
reason to the contrary.

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2. Possession may exist in fact but not in law. Thus the possession by a servant of his master’s
property is for some purposes not recognized as such by the law, and he is then said to have
detention or custody rather than possession.
3. Possession may exist in law but not in fact; that is to say, for some special reason the law
attributed the advantages and results of possession to someone who as a matter of fact does not
possess. The possession thus fictitiously attributed to him is termed constructive

Q.No.17. Define Ownership. Discuss the Various Kinds of Ownership. Distinguish between
possession and ownership. 

INTRODUCTION:  
Ownership is linked with possession.  Possession is the first stage of ownership. It means
for ownership possession is necessary. Possession and ownership both are two sides of the same
coin and one cannot exist without the other.  Ownership  gives the full right over the thing.
Ownership is ultimate and final right for disposing the property.  It means to transfer that
property in any way.  Ownership is a relation ship between the person and the thing. For
ownership there must be a thing and the owner of thing.  The concept of ownership was absent in
the ancient society.  There was also no concept of possession too.  Slowly and slowly as the
society developed the concept  of possession also developed.  The idea of ownership came into
existence.  So this way after the progress of the concept of ownership the person became the full
owner of his property.  

DEFIN ITION :-
 Before to define the ownership we have to discuss the various kinds of law :-
Roman Law :- As evident from history that the Roman Law was the first law in the world. It is
considered the ancient law.  All concepts of law begin from the period of Roman society. Under
the Roman Law the concept of ownership is defined in the form of dominion that means to have
the right control of a thing.  The concept of ownership developed in the form of a right over the
thing.  Dominion is distinguished from possession.  Possession means to have possession over a
thing but dominos means to have a right over the thing.

Hindu Law :-  Hindu Law is also considered as the most ancient law in the world.   In  Hindu
law the concept of ownership also has been discussed.  In Hindu Law ownership is said a ,
“According to Hindu Law ownership means a relationship between person and a thing.  Person is
called owner and a thing is called property. Means a property which is in the control of a person
is his property.

VIEWS OF MODERN & WESTERN JURISTS 

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

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Austin :- According to him ownership is the relationship which exists in between the person and
the thing.” This definition resembles with the definition under Hindu Law.  Austin says that in
ownership a person has the following relations with the thing.    
1.Indefinite Use :- It means to use that thing in any way whether to use it for agriculture or for
industry, residence but there is a restriction that one cannot use 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 limits.
4.Domination :- It means to have control over the thing.  For this purpose both elements of
possession corpus and animus should be there.  If the conditions are there between person and
the thing and then the person is owner of that thing.

According to Holland: He defined the ownership as a plenary control of a person over a thing.
The definition also contains the following conditions :-
1.Possession     2.  Enjoyment      3.   Disposal.

According to Salmond :- Salmond defines ownership as a relationship between person and the
right.  Right means to have a thing under possession. Thing always represents physical objects.
But right always represents a thing which is not in physical existence like copy right and
allowances are always thing which are called property. And which are not in physical existence.
Salmond has included all those right which are property in the concept of ownership. In view of
the above it is learnt that Austin and Holland definitions are not complete. But salmond is
completely perfect in his definition.

 KINDS OF OWNERSHIP

There are various kinds of ownership which are as under :-

1. Corporal and Incorporeal ownership: Corporeal  and incorporeal ownership also called
material and immaterial ownership. Corporeal ownership is the ownership of a material object
and incorporeal ownership is the ownership of a right. Ownership of a house, a table or a
machine is corporeal ownership.  Ownership of copyright a patent or a trade mark is incorporeal
ownership.
2. Sole and co-ownership:-  The general principal of ownership is that vested in one person only.
But some times it vested in many persons in other words two or more person have the right of
ownership. If only one person have right of ownership that known as sole ownership and where
two or more persons have the right of ownership then know as co-ownership.
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3. Vested and contingent ownership:- Ownership is either vested or contingent it is vested
ownership when the title of the owner is already perfect. It is contingent ownership when the title
of the ownership is yet imperfect.

4. Absolute and Limited ownership:- means owner is one in whom are vested all the rights over a
thing to the exclusion of all or when a person has an absolute right over his property known as
absolute ownership. When there are limitations on the user duration or disposal of rights of
ownership the ownership is limited ownership.

5. Legal and Equitable ownership:- Legal ownership is that which has its origin in the rules of
common law.  Equitable ownership is that which proceeds from the rules of equity. Legal right
may be enforced in rem but equitable rights are enforced in personam.

 DIFFERENCE BETWEEN POSSESSION & OWNERSHIP

POSSESSION OWNERSHIP
1.Possession is a primary stage of ownership 1. Ownership is in right.
which is in fact
2.Possession does not give title in the property 2. While in ownership it gives title in the
defacto exercise of a claims property dejure recognisation.

3.Possession is a fact. 3. Ownership is a right and superior to

possession.
4.Possession tends to become ownership. 4.Ownership tends to realize itself in to
possession.

5.Possession dominion corpus and animus are 5.Ownership they are not necessary
necessary. because law gives full rights.

6.Ownership most of the cases involves a

6.Transfer of possession is comparatively technical process i.e. conveyance deed e
easier.

7. Possession is nine points of law. 7.Ownership always tries to realize itself in

possession i.e. complete thing.

              
Q.No.18.What is meant by various liabilities? How does it differ from strict liability?

Synopsis
Introduction.
Meaning of Vicarious liability and Strict liability.

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Difference between Vicarious liability and Strict liability.
Conclusion.

1. Introduction.

Law lays certain rights and duties of the individual. It prescribes what one is to do and
what one is not to do and what one is entitled to get it done by someone else. A breach of these
rights and duties is called wrong. Whoever commits such wrong is said to be liable for it. Thus
liability arises due to wrongful act or omission of act.

According to Salmond, Liability is a bond of necessity that exists between the wrongdoer and the
remedy of the wrong.

2. Meaning of Vicarious liability.

Generally a person is held liable for the wrong which he is committed himself. There are
certain cases where one person is made liable for the wrongs committed by another. Such
cases are known as Vicarious Liability.

For example: A master is held liable for the wrongful act of his servant in course of his
employment. Similarly a principle will be liable for the wrongful acts of his agents and legal
representatives are liable for the acts of dead men.

Constituents of Vicarious Liability:

(1) There must be a relationship of a certain kind.

(2) The wrongful act must be related to the relationship in a certain way.

(3) The wrong has been done within the course of employment.

Vicarious liability is possible only in civil cases. It is not common in criminal law. The
principle of vicarious liability has no application under in criminal law as it would be against the
public policy to punish a person for the offence committed by someone else. However there are
three exceptions to this general rule:-

a) If there is breach of obligation committed by the servant, owner cannot escape

criminal liability. Ex: Proprietor of the newspaper will be liable for the defamatory

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 marks published though he was living at a distance and knew nothing about it until he
read the newspaper.
b) In case of public nuisance under section 268, IPC, master will be liable for the
nuisance caused by his servant.
c) Under licensing Acts the professional holding licenses would be vicariously punished
for the wrongful acts committed by their servants.

Strict Liability

A man is held responsible for his negligence which results into harm or violation of rights
of others. But there are certain exceptions to this principle. Such cases are those where a person
is held liable for his acts even though he did not do it intentionally or negligently. In other words
he will be held liable irrespective of negligence or carefulness. These cases are covered under the
rule of Strict liability.

Strict liability falls into three categories i.e., mistake of law, mistake of fact and
inevitable accidents.

a) Mistake of law.

An act done under mistake of law is not said to be an intentional act because the doer of
the act does not know that what he is doing is prohibited by law. Ignorance of law is no excuse in
almost all the legal systems. This is expressed in the maxim Ignorantiajurismeminemexcusat. In
such cases principle of strict liability applies.

b) Mistake of fact.

Mistake of fact is a good defence in law of crimes. But in Indian law mistake of fact is
not a defence in law of torts i.e, civil wrongs. Whoever tries to interfere with the right of another
shall not be justified on the grounds that the act was done in good faith.

Ex: If A intending to kill B, kills C mistaking him to be B, A has no defence. But If A is

intending to kill tiger shoots at it and by mistake bullet hits B then he will be exempted from
criminal liability due to mistake of fact. However the act should be reasonable and there should
be mistake of fact and not of law.

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 c) Inevitable Accident.

Inevitable accidents is commonly recognised as a ground of exemption from liability both

in civil and criminal law. But there are some exception when inevitable accident cannot be
availed as a ground of defence. Such cases will come under Strict liability.

Ex: A man is strict liable for the trespass of his cattle.

3. Difference between Vicarious liability and Stict liability.

Vicarious liability refers in those cases where a person is held liable for the wrongful acts
of other. But in Strict liability a man is held responsible for those wrongful acts even though he
did not do it intentionally or negligently.

Vicarious liability is possible only in civil cases. But Strict liability applies both in civil
and criminal law.

4. Conclusion.

Liability arises from breach of duty or violation of law. Therefore Vicarious liability
arises on the person due the wrongful acts of the other and strict liability results in those cases
when a man commits wrong even though he did not do it intentionally. Vicarious liability is a
convenient tool as compared to strict liability as it shifts the burden of liability of one person
over the other.

Q.No.19. Explain the importance of the chain of causation in establishing liability?

Introduction.

Law lays certain rights and duties of the individual. It prescribes what one is to do and
what one is not to do and what one is entitled to get it done by someone else. A breach of these
rights and duties is called wrong. Whoever commits such wrong is said to be liable for it. Thus
liability arises due to wrongful act or omission of act.

Conditions for imposing liability:

There are certain conditions to impose liability upon a person. The following are:

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a) Act/ Wrongful act.
b) Mens Rea.
c) Intention.
d) Motive.
e) Malice.
f) Negligence.
g) Causation.

Meaning of Causation.
The common principle of law is man can be held responsible for doing any any
mischievous act or for causing injury to a person or property. To determine liability in law cause
of the act is an important factor. Before deciding liability causation should be decided first.
Ex: If A is held responsible for burning B’s house, first thing to be shown is that A has caused
that fire.
Causation is an important factor to determine whether it is civil or criminal liability.
Two types of Causation:
a) Abnormal factors.
b) Human acts
Ex: If B’s house has caught fire due inflammable gas or electric short circuit or may be because
of abnormal cicumstances then it is called abnormal causation, but if A has deliberately caused
the fire to the B’s house then it is called human causation.
Either of these factors is necessary to see causation and indicate liability of doing such act.
1. Chain of Causation with reference casesandillustrations.
An act involves several factors for doing it. It is called chain of causation. If the chain of
causation is broken or interfered then the man cannot be held responsible for his acts. This is
contained in the maxim called Novus actus interveniens.
Ex: If A stabs B and B is taken to hospital where the doctor injects some medicine with the
knowledge that B is allergic to it despite of that he injects some high dose of it which resulted in
B’s death. Here the chain of causation is broken as the death of is caused due to medicine and not
by stabbing.
Case: Scott v. Shepherd:

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 In this case the defendant shepherd mischievously threw a lighted cigarette into a market
place and fell near yates who was selling ginger-bread. Willis to prevent injury to himself and
yates picked it up and threw it over shop of Royal and he picked it and threw it which got
stucked in the plaintiff’s eye and injured him.
The Court held that the injury is caused by defendant as Willis and Royal are intermediate agents
acted for the self-protection. And even if the defendant was not intending to cause harm to the
plaintiff yet he is responsible for the harm caused to plaintiff.
Conclusion.
Causation is therefore an element which involves several factors leading to a crime. It an
important factor to determine liability whether in civil or criminal of the wrongdoer and without
the chain of causation a man cannot be held responsible for the harm committed.

Q.No. 20.Discuss Negligence and Different theories of Negligence.

Jurists have defined “negligence” in different ways. SALMOND observed that

negligence is capable carelessness. To quote him: "negligence is the state of mind of undue
indifference towards one's conduct and its consequences". It is carelessness in the matter in
which carefulness is obligatory under the law. Carelessness excludes wrongful intention.
Negligence - Intentional act is one that was foreseen and desired by the doer. Forbearance
is an intentional negative act. An unintentional negative act is referred to as an omission. An
omission is the non-doing a given act without adverting to the act not done. -
AUSTIN said, “an omission is not the consequence of an act oj the will but of that state
of the mind which is styled negligence and implies the absence of will and intention.
According to HOLLAND, negligence includes all those shades of inadvertence which
result in injury to others but there is total absence of consciousness on the part of the doer.
WILLES J. holds that "negligence is the absence of such case as it was the duty of the
defendant to use ”!.
According to SALMOND negligence is “the state of mind of undue indifference towards
one’s conduct and its consequences”.
Negligence essentially consists in the mental attitude of undue indifference with respect
to one’s conduct and its consequences. Negligence is nothing short of extreme carelessness.
Carelessness excludes wrongful intention. A thing which is intended cannot be attributed as

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carelessness. Carelessness or negligence does not necessarily consist in thoughtlessness or
inadvertence.
Negligence as a tort is the breach of a legal duty to make care which results in damage,
undesired by the defendant, to the plaintiff. Thus its ingredients are:
a) A the legal duty on the part of A towards B to exercise in such as conduct of A falls within the
scope of the duty.
b) Breach of that duty
c) Consequential damages to
Theories of Negligence
There are two theories of negligence. One theory was propounded by SALMOND. One
theory was propounded by SALMOND. According to this theory, negligence is a state of mind -
mental attitude. This theory is called the subjective theory of negligence. The other theory has
been given by Sir FREDERICK POLLOCK. According to him negligence is a type of conduct.
This is called the objective theory of negligence. These theories shall be discussed separately.
1. Subjective Theory of negligence
The exponents of the subjective theory maintain that negligence is a state of mind.
According to them, negligence consists in the mental attitude of undue indifference with respect
to one’s conduct and its consequence. The subjective theory is given by SALMOND. His view is
that negligence is culpable carelessness. Although negligence is not the same as thoughtlessness
or inadvertence, it is nevertheless essentially an attitude of indifference. Therefore, according to
this view, negligence essentially “consists in the mental attitude of undue indifference with
respect to one’s conduct and its consequences .
A person is made liable on the ground of negligence because he does not sufficiently
desire to avoid a particular consequence- a harm. He is careless about the consequence and does
the act notwithstanding the risk that may ensure. WINFIELD is also the supporter of this theory.
He says that “as a mental element is tortuous liability, negligence usually signifies total or
partial inadvertence of the defendant to his conduct and for its consequence ..
According to AUSTIN, “want of advertence which one’s duty would naturally suggest, is
the fundamental idea in the conception of negligence In this opinion, a negligent wrongdoer is
one who does not know that his act is wrongful but would have known it had it not been because
of his indolence and inadvertence. Thoughtless is thus the essence of negligence for AUSTIN.

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AUSTIN goes a step further elaborating his subjective theory and distinguishes negligence from
heedlessness, rashness and recklessness. For him, negligence is the state of mind of the person
who inadvertently omits an act and breaks a positive duty. In heedlessness he does not think of
probable mischief and does not bother to avert the possible consequences. In rashness, he does
foresee the consequences but foolishly thinks that they “would not follow” as a result of his act.
Recklessness, on the other hand is a condition of mind where the doer foresees the
consequences but does not care whether they result from his act or not. Thus, the line of
distinction between rashness and recklessness is very thin. In the former, there is erroneous
thinking that consequences would not follow while in the latter the person does not bother about
the consequences at all. Sir JOHN SALMOND objects to the above sub-classification of
negligence made by AUSTIN and treats all these categories under the common law, namely,
“negligence The reason being that in all of them there is failure of exhibit the standard of care
required of a reasonable man. In his opinion, AUSTIN’S view is fallacious because negligence
may also be deliberate or willful. He, therefore, concludes that “the essence of negligence is not
inadvertence but carelessness which may or may not result in inaverfence ".
2. Objective Theory of Negligence
According to this theory negligence is not a condition of mind but a particular kind of
conduct which is to be judged objectively. This theory is supported by FREDREIC
POLLOCK. It is the breach of duty to take care which a reasonable person under those
circumstances would take. The tort of negligence is based on objective approach to the
conduct and its consequences. According to Sir FREDERICK POLLOCK, “negligence is
the contrary of diligence and no one describes it as the state of mind"1. This theory
postulates that negligence is an objective fact. It is not an attitude of mind or a form of
“mens rea ’’ at all, but to particular standard of conduct. It is a breach of duty of not taking
care and to take care means to take precautions against the harmful results of one’s action
and refrain from unreasonably dangerous kinds of act. For example to drive at night without
lights is negligence because having lights is the conduct of precaution adopted by all prudent
men. He who drives without lights in the night has failed in that conduct. So to determine
whether a man is negligent or not, one need not to go into the state of min but to the standard
of his conduct Negligence thus is a type of conduct and not a state of mind. The view
appears to be correct chiefly in the law of tort where negligence is nothing more than a

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 failure to achieve the objective standard of a prudent man, and where a person has failed to
achieve that standard of a prudent man, any defence on the ground of mental state that he
took the utmost care shall be of no use at all to him. Similar is the position in criminal law as
well.
All these are to be judged objectively on the basis as to how a reasonable man would
have acted in those circumstances.
Q.No.21. Explain the theory of Strict Liability. Refer to Cases.
Generally a man is held liable for the negligence which results into harm of violation of
rights of others. But there are certain exceptions to this general principle of liability. Such cases
are those cases where a person is held liable for his act even though he did not do it intentionally
or negligently. In other words, he is held liable irrespective of negligence or carefulness. These
cases are covered under “strict liability’’ which is known as absolute liability. In cases covered
under strict liability, the wrong arises from the breach of an absolute duty. An “absolute duty"
may be defined as a “duty which renders a man liable without any fault of his and irrespective of
any consideration of intention or negligence on his part”.
The word ‘strict’’ or “absolute” denotes that it is not necessary for the injured party to
prove any intention or negligence on the part of the. wrong-doer and no amount of care or
caution proved by the latter would absolve him from liability. The principle of absolute liability
has been enunciated in the court of Exchequer chamber by BALCKBUM, J. and affirmed by the
house of lords in Rylands V. Fletcher1 thus:- BLACKBURN, J. moulded the different scattered
legal rules or remedies into a brand and comprehensive principle which combines restatement,
remoulding and making of new law. He collected several cases of liability without fault which in
Dean WIGMORE’s words "wandered about unhoused and unshepherded etc. in the pathless
field of jurisprudence The doctrine of strict liability is applicable in cases involving wild
animals, dangerous premises or substances, electricity, water fir explosive etc. which are capable
of escape.
The object of absolute liability is not to prevent persons from undertaking hazardous and
adventurous activities. The law only expect a person to do such acts at his own peril, and keep
himself ready to compensate the person wronged if any injury is caused to him by the wrongful
act. SALMOND has grouped cases of strict liability under the following three heads:-
a) Mistake of law,

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 b) Mistake of facts, and
c) Inevitable accident
Mistake of Law
An act done under the mistake of awl is not said to be an intention act because he doer of it does
not know that what he is doing prohibited by law. If a person has committed a wrong under
mistake of law, the law will not hear him say that he had no guilty mind and that but for his
ignorance of law, he would have not done it. Ignorance of law is no excuse in almost al the legal
systems. This is expressed in the maxim, “ignorantia juris meminem excusat 'ignorance of law
is no excuse’”. Therefore, it is obvious that in such cases the principle of absolute or strict
liability applied because of the presumption that everyone must know the law relating to his act
or conduct. This principle however does not apply in case of ignorance of a foreign law. This
irrebuttable presumption, or in other words, the strict liability is on the following grounds:
1) First, that law is definite and knowabie and it is the duty of every person to know the law
concerning his rights and duties.
2) Second, law in most of the cases is based on common sense, or in other words, it is based
on the principle of natural right and wrong which generally every person. A person might
not be acquainted with tire Indian penal code, but he knows that to kill a man
intentionally, or to seal is a wrong.
3) Third, there shall be evidential difficulties in accepting the defence of the ignorance of
the law. In most of the cases the wrongdoers, in the first instance, will take this defence
and the court will have to enquire as to whether the wrongdoer knew the law or not
before going into the merits of the case. This will create great difficulties before the
courts and it will hamper the course of the administration of justice.
Mistake of Fact
It is generally said that mistake Of fact is a good defence in law of crimes. But in English
and Indian law mistake of fact is not a defence in law of torts, i.e. civil wrongs. He who
interferes with the right of another shall not be allowed to say that he believed in good faith and
on reasonable grounds in the existence of some circumstances which justified his act. The
principle about it is that “ignorantia facit excusat” 'ignorance of the fact is excuse ’ ”. It means
that a person is not liable for wrongful at if he has done it under a mistake of fact. In other words
mistake is a valid defence against a wrongful act. But this principle applied only in case of a

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criminal wrong and not a civil wrong. In civil wrongs, except in few cases the mistake of fact is
not a valid ground for discharging a person from liability. But in criminal law the strict liability
for a mistake of fact is only in exceptional cases1. An example of such exception, or strict
liability is that if a person kidnaps a girl below 16, he is always liable, although he honestly
believed that she was above 16.
In R.V.Prince a person who abducted a girl under the legal age of consent was held criminally
liable and the plea of inevitable mistake as to her age failed as a defence. This is so because the
act of taking the girl away was itself wrongful. However, if the intention of lawful, mistake of
fact is a valid defence in criminal law. For instance, if A intending to kill b kills C mistaking him
to be B. A has no defence, but if A who is out-hunting in a forest shoots at a bush thinking that a
tiger was lurking inside and the bullet hits and kills B, he will be exempted from criminality due
to mistake of fact. This mistake, in order of quality for exemption from criminal liability should
fullfil two conditions, namely
i) It should be reasonable, and
ii) It should be mistake of fact and not of law.

Ine Vitable Acc1dent

Inevitable accident is commonly recognized as a ground of exemption from liability both
in civil and criminal law. Accident may either be culpable or inevitable. It' is culpable when
caused due to negligence but inevitable when the avoidance of it would have required a degree of
care exceeding the standard demanded by law. In other words, an inevitable accident is that
which could not possible by prevented by the exercise of ordinary care, caution and skill. That is,
it must be a “physically unavoidable ” nature.
A person is not liable for an act taking place accidentally. Accident differs from a mistake
of fact. Every unintentional act is done by mistake when the consequences of the act are
intentional; the mistake is only about the circumstances it is unintentional. For example,, if I
arrest A taking him to be B, it is a mistake of fact. In this case, the consequence , that is arrest is
intentional but there is a mistake about the circumstances and I was to arrest B and A. So the
arrest of A is unintentional. An act is said to be done accidentally when it is unintentional in
respect of its consequences also.

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Q.No.22. Discuss the main features of the ‘Pure Theory’ of Law. How it resembles with
Austin’s command theory. Critically examine the view of Kelson given under pure theory
of Law?
Introduction:-
The Pure Theory of Law is given by Kelson. This theory is also known as “Vienna
School” because Kelson is the productor of Vienna University. This theory resembles with
Austin’s command theory because in Kelson’s theory there must be sanction behind law. Austin
gave it the name of command theory and Kelson gave it the name of grandnorm theory. Kelson
is affected by local conditions, natural condition and international condition. After studying all
these conditions he gave this theory of Law, which is known as pure theory of law and
grandnorm theory . 

Concept of pure theory of Law:-

At the time of Kelson there are Ist world was which destricted the property of human
beings at international level. So he gave power to the international law and avoiding the
destructions of the world. Secondly during that time many countries adopted written constitution.
So Kelson also get influenced from these written constitutions and gave his own theory which is
based on grandnorms. 

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

Nature of Grandnorm:-
According to Kelson each country has  the formation of grandnorm according to local
conditions. The duty of jurists is to interpret the grandnorm in their own language. They are not
concerned with the goodness or badness of the grandnorm. They are not concerned with the
origin of the grandnorm. In this way the grandnorm is the main source of all the laws in the
country. 

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Elements of Pure Theory:-
Kelson gave his view under this theory about State, sovereignty, public and private law,
public and private rights, international law private and juristic law. 
Feature of Kelson’s theory:-
1. Grandnorm as a source of law:- Grandnorm is the source of all laws. Grandnorm is in the
form of written constitution. Any such body, which contains rules, or any such legal system in a
country. 
2. No difference between law and state:-  Kelson says that there is no difference between
law and State between because they get power from the same grandnorm. Law comes from the
grandnorm and the state also comes from the grandnorm. 
3. Sovereign is not a separate body:- Austin says sovereign is a politically superior person
which keeps controls over the politically inferior persons. But Kelson says that the power of
sovereign lies in the people. So the Sovereign is not separate and superior from the people of the
country. 
4. No difference between public law and private law:- The public law is related with the
state and the private law is related with the individuals as Kelson says that there is no difference
between public law and private law. The law which creates a contract between individuals is
called private law. 
5. Supremacy of internationally laws:- The main prupose of Kelson was to decrease the
tension at world level because there was Ist world war which destroyed millions of persons and
property. He also said that the internaiton law is in primitive stage or immature stage. It means it
is in developing stage. One day will come when international law will get equal to that of
municipal law. So this is also enforceable. 
Criticism of Kelson’s theory:-
In-spit of having good concept of pure theory given by Kelson some of the criticism
faced by him, which are as under:
a. Grandnorm is a vague concept:- The concept of grandnorm is not clear. It cannot be
applied where there is no written constitution. The base of grandnorm in the form of positive
norms or the rules based only on legal order is not clear. The rules, which are not linked with
morals ethics. Customs and religion are not the norms. But we can not ignore the role of these
norms in the development of law.
b. Interantion Law is a weak law:- Kelson advocated the supremacy of international law.
But even upto now we see that is no force behind international law. 
c. No difference between state and law:- this point is also criticised by various writers. Law
as a separate thing from the State. State is body is law in, which law is a rule that regulates the
state. 
d. Difference between public law and private law:- Kelson says that there is no different
between public law and private law. Which is also not right in the modern days. 
e. Customs and Precedents ignored:- He also customs as a source of law while we see that
customs are the source of all laws.

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 Conclusion:-
Although Kelson has been criticised from various angles yet he had contributed a lot in
the development of the society. Thus the concept of grandnorm gave power to the public at large
as well as at national level. His main purpose was to stop destruction of any world war. This can
resemble to Austin also Kelson is also limited with the law. 

WRITE SHORT NOTE for 8 marks

1.Theories of Punishment

Mere denunciation of crime is not enough; it must be pushed to its logic end that crime
does not pay by punishing the offenders. Punishment, according to the dictionary, involves the
infliction of pain or forfeiture, it is the infliction of a penalty, chastisement or castigation by the
judicial arm of the State. But if the sole purpose of punishment is to cause physical pain to the
wrong-doer, it serves little purpose. Thus, punishment involves the infliction of pain or
forfeiture; it is a judicial visitation with a penalty, chastisement or castigation.
The needs of criminal justice are considered to be five, namely:
A. Deterrent
B. Preventive
C. Reformative
D. Retributive
E. Compensation.
The deterrent theory of punishment
Punishment is primarily deterrent when its object is to show the futility of crime, and
thereby teach a lesson to others. Deterrence acts on the motives of the offenders, whether actual
or potential. Offences are committed, in most cases, as a result of a conflict between the so called
interests of the wrong-doer and those of society at large. The object of punishment, according to
this theory, is to show that, in the final analysis, crime is never profitable to the offender, and as
Locke observed, to make crime "an ill-bargain to the offender."
The preventive theory of punishment
If the deterrent theory tries to put an end to the crime by causing fear of the punishment
in the mind of the possible crime-doer, the preventive theory aims at preventing crime by
disabling the criminal, for example, by inflicting the death penalty on the criminal, or by

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confining him in prison, or by suspending his driving license, as the case may be. Thus, a thief's
hand would be cut off, or a sexual off.
In the ultimate analysis, the preventive mode of punishment works in three ways, viz
a) by inspiring all prospective wrong-doers with the fear of punishment;
b) by disabling the wrong-doer from immediately committing any crime; and
c) by transforming the offender, by a process of reformation and reeducation, so that he
would not commit crime again.
The reformative theory of punishment
According to the reformative theory, a crime is committed as a result of the conflict
Between the character and the motive of the criminal. One may commit a crime either because
the temptation of the motive is stronger or because the restraint imposed by character is weaker.
The deterrent theory, by showing that crime never pays, seeks to act on the motive of the person,
while the reformative theory aims at strengthening the character of the main, so that he may not
become an easy victim to his own temptation. This theory would consider punishment to be
curative or to perform the function of a medicine. According to this theory, crime is like a
disease. This theory maintains that "you cannot cure by killing".
The retributive theory of punishment
In all healthy communities, any crime or injustice stirs up the retributive indignation of
the people at large. Retribution basically means that the wrongdoer pays for his wrongdoing,
since a person who is wronged would like to avenge himself, the State considers it necessary to
inflict some pain or injury on the wrongdoer in order to otherwise prevent private vengeance.
Whereas other theories regard punishment as a means to some other end the retributive
theory looks on it as an end in itself. It regards it as perfectly legitimate that evil should be
returned for evil, and that a man should be dealt with the manner in which he deals with others.
An eye for an eye and a tooth for a tooth is deemed to be the rule of natural justice.
The compensation theory of punishment
According to this theory, the object of punishment must not be merely to prevent further
crimes, but also to compensate the victim of the crime. This theory further believes that the
main-spring of criminality is great and if the offender is made to return the ill-gotten benefits of
the crime, the spring of criminality would be dried up.

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2. Ratio Decidendi & Obiter Dicta

Ratio Decidendi (Reason of Decision):

'Ratio Decidendi' refers to the binding part of a judgment. 'Ratio Decidendi' literally
means reasons for the decision. It is considered as the general principle which is deduced by the
courts from the facts of a particular case. It becomes generally binding on the lower courts in
future cases involving similar questions of law.

Obiter dicta (Said by the way):

An 'obiter dictum' refers to parts of judicial decisions which are general observations of
the judge and do not have any binding authority. However, obiter of a higher judiciary is given
due consideration by lower courts and has persuasive value. Having considered the various
aspects of the precedent i.e. ratio and obiter, it is clear that the system of precedent is based on
the hierarchy of courts. Therefore, it becomes important to understand the hierarchy of courts in
order to understand precedent. Every legal system has its own distinct features. Therefore, the
doctrine of precedent is applied.

3.Realistic school of Jurisprudence.

The realism is the anti-thesis of idealism. Some jurists refuse to accept the realist school
as a separate school of jurisprudence. American realism is a combination of the analytical
positivism and sociological approaches. It is positivist in that it first considers the law as it is. On
the other hand, the law as it stands is the product of many factors. In as much as the realists are
interested in sociological and other factors that influence the law. Their concern, however, law
rather than society.  Realists don’t give any importance to laws enacted by legislature. And they
uphold only judge-made law as genuine law.  A great role of judges’ understanding about law,
society and also their psychology affect any judgment given by them. At the same time, in a
same case applying same law two different judges give the different judgments.
Realism denounces traditional legal rules and concepts and concentrates more on what
the courts actually do in reaching the final decision in the case. In strict sense, realists define law
as generalized prediction of what the courts will do. Realists believe that certainty of law is a
myth and its predictability depends upon the set of facts which are before the court for decision.
It presupposes that law is intimately connected with the society and since the society changes
faster than law so there can never be certainty about law. They do not support formal, logical and
conceptual approach to law. The realist school evaluates any part of law in terms of its effect.

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Jerome Frank has stated, “Law is what the court has decided in respect of any particular set of
facts prior to such a decision, the opinion of lawyers is only a guess as to what the court will
decide and this cannot be treated as law unless the Court so decides by its judicial
pronouncement. The judges’ decisions are the outcome of his entire life history.”

Basic Features of Realistic School:

Realism denounces traditional legal rules and concepts and concentrates more on what
the courts actually do in reaching the final decision in the case. In strict sense, realists define law
as generalized prediction of what the courts will do. There are certain principal features of
realistic jurisprudence as outlined by Karl Llewellyn and Prof. Goodhart: 
1. There has to be a conception of law in flux and of the judicial creation of law.
2.    Law is a means to social ends; and every part of it has constantly to be examined for
its purpose and effects, and to be judged in the light of both and their relation to each
other.
3. Society changes faster than law and so there is a constant need to examine how law
meets contemporary social problems.
4. Realists believe that there can be no certainty about law and its predictability depends
upon the set of facts which are before the court for decision.
5. They do not support formal, logical and conceptual approach to law because the
Court while deciding a case reaches its decisions on ‘emotive’ rather than ‘logical’
ground.
6. They lay greater stress on psychological approach to the proper understanding of law
as it is concerned with human behavior and convictions of the lawyers and judges.
7. Realists are opposed to the value of legal terminology, for they consider it as tacit
method of suppressing uncertainty of law.
8.   The realists introduced studies of case law from the point of view which
distinguished between rationalization by a judge in conventional legal terminology of
a decision already reached and the motivations behind the decisions itself.
9. The realists also study the different results reached by courts within the framework of
the same rule or concept in relation to variations in the facts of the cases, and the

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 extent to which courts are influenced in their application of rules by the procedural
machinery which exists for the administration of the law.
3. Solidary Obligation

Solidary obligation refers to a legal relationship where one or more of several debtors are
each liable to pay the entire amount, or one or more of several creditors each able to collect the
whole. In short, it’s an obligation under which any of two or more obligors can be held liable for
the entire performance like payment of a debt. Solidary obligation is similar to joint and several
liability in common law. In case of Solidary Obligation there are two or more debtors owe the
same thing to the same creditor. There are three kinds of solidary obligation see kinds of solidary
obligation. In solitary obligation, there are two or more debtors owe the same thing to the same
creditor. that means there are two or more creditors entitled to the same obligation or two or
more debtors under the same liability.  

Kinds of solidary obligations - 

    In English law, solitary obligations are three distinct kinds which are- several obligation, joint
obligations and joint and several obligations.

(a) Several solidary obligations - 

      Solidary obligations are several when, Although the thing owed in the same in each case,
there are as many distinct obligations and causes of action as there are debtors.

(b) Joint solidary obligation - 

       Solidary obligations are joint when though there are two or more debtors, there is only one
debt or other cause of action, as well as only one thing owed.  The creditor must sue all of them
and release of one operates as a release of others. For example when a Firm contracts a Debt all
the partners are jointly liable. In English law, the liability of joint debtors is joint while in India it
is joint and several

(c) Joint and several solidary obligations -  

         Certain solidary obligations are both joint and several.  These obligations stand Midway
between the above two. In this the creditor can sue one, some or all of them and release of one
will not operate as a release of all other feasors. for example liability of joint tort committing the
Tort jointly or two or more trustees jointly committing the same breach of Trust or joint debtors
under Indian law.

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 4. Privilage and Immunity

Privilege

Just as legal rights of one person are the benefits which he derives from legal duties
imposed upon other person, so the legal liberties are the benefits which a person derives from the
absence of legal duties imposed upon him. They are the various forms assumed by the interest
which I have in doing as I please. They are the things which I may do without being prevented
by the law. The sphere of my legal liberty is that sphere of activity within which the law is
content to leave me alone. Privileges may be accompanied with rights that impose duties on
other people not to interfere. However, privileges can sometimes exist without the existence of a
right.

Immunity

The term “right” (generic term) is used in a fourth sense to mean immunity from the legal
power of some other person. Just as a power is a legal ability to change legal relations, so
immunity is an exemption from having a given relation changed by another.15 Immunity is state
of being safe from modifications of one’s entitlements by another. The correlative of immunity is
disability. It is a lack or absence of power to change legal entitlements. For example, Diplomats
are supposed to have diplomatic immunity. If they have committed a crime in their host country,
they are immune against arrests and legal prosecution.

5. Characteristics of ownership

An analysis of the concept of ownership, it would show that it has the following
characteristics:

1. Ownership ma either be absolute or restricted, that is, it may be exclusive or limited.

2. Ownership can be limited by agreements or by operation of law.
3. The right of ownership can be restricted in time of emergency.
4. An owner is not allowed to use his land or property in a manner that it is injurious to
others.
5. His right of ownership is not unrestricted.
6. The owner has a right to posses the thing that he owns.
7. It is immaterial whether he has actual possession of it or not.
8. The most common example of this is that an owner leasing his house to a tenant.
9. Law does not confer ownership on an unborn child or an insane person because they are
incapable of conceiving the nature and consequences of their acts.
10. Ownership is residuary in character.
11. The right to ownership does not end with the death of the owner; instead it is transferred
to his heirs.

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 12. Restrictions may also be imposed by law on the owner’s right of disposal of the thing
owned. Any alienation of property made with the intent to defeat or delay the claims of
creditors can be set aside.

6. Volkgeist

  Savigny is considered as the main expounder or supporter of the historical school. He

traced the development of law as a evolutionary process much before Darwin gave his theory of
evolution in the field of biological sciences in 1861. Friedrich Karl von Savigny was born at
Frankfurt (Germany) in 1779. He was educated at the universities of Marburg and Gottingen and
was a Professor of Civil Law in the University of Landshut. He was then appointed as a
Professor at the newly formed University of Berlin in 1810. Savigny firmly believed that all laws
grows with the growth and strengthen with the strength of people and dies away as the nation
loses its nationality.
According to Savigny, the nature of any particular system of law was the reflection of the
“spirit of the people who evolved it”. This was later characterized as the Volksgeist by Puchta,
Savigny’s most devoted disciple. Hence, in a simple term, Volksgeist means the general or common
consciousness or the popular spirit of the people. Savigny believed that law is the product of the general
consciousness of the people and a manifestation of their spirit. The basis of origin of law is to be found in
Volksgeist which means people’s consciousness or will and consists of traditions, habits, practice and
beliefs of the people.
The concept of Volksgeist in German legal science states that law can only be understood as a
manifestation of the spirit and consciousness of the German people. As already discussed, his theory served as a
warning against hasty legislation and introduction of revolutionary abstract ideas on the legal system unless they
mustered support of the popular will, Volksgeist. Savigny’s central idea was that law is an expression of
will of the people. It doesn’t come from deliberate legislation but arises as a gradual development of
common consciousness of the nation. The essence of Savigny’s Volksgeist was that a nations legal
system is greatly influenced by the historical culture and traditions of the people and growth of law is to be
located in their popular acceptance. Since law should always confirm to the popular consciousness i.e. Volksgeist,
custom not only precedes legislation but is also superior to it. To him, legal system
According to this theory, law is based upon the general will or free will of common people.
He says that law grows with the growth of nations increases with it and dies with the dissolution
of the nations. In this way law is national character or consciousness of people. In other words,

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according to this theory law is based will or free will of common people. He says that law grows
with the growth of nation.  A law which is suitable to one society may not be suitable to other
society. In this way law has no universal application because it based upon the local conditions
local situations, local circumstances, local customs, elements etc.  Al these things effect law and
make it suitable to the society.
To followers of Savigny the identification of law with custom and tradition and the
Volksgeist, or genius peculiar to a nation or folk, generally meant a rejection of rationalism and
natural law; a rejection of the notion of law as the command of the state or sovereign, and
therefore a disparagement of legislation and codification; and a denial of the possibility of
universally valid rights and duties and of the individual.
The basic premise of the German Historical School was that law is not to be regarded as an
arbitrary grouping of regulations laid down by some authority. Rather, those regulations are to be
seen as the expression of the convictions of the people, in the same manner as language, customs
and practices are expressions of the people. The law is grounded in a form of popular
consciousness called the Volksgeist. Laws can stem from regulations by the authorities, but more
commonly they evolve in an organic manner over time without interference from the authorities.
The ever-changing practical needs of the people play a very important role in this continual
organic development.

7. Duty

Introduction:-
The term duty may be used in various form as an obligation, as responsibility and
accountability. There are some scolers who define Duty as following:- 

Definitions of Duty:-
According to Gray, Duty is the act of or forbearance which an organized society used to
impose on people through state in order to protect the legal right of other.  According to Rose
Duty is the Pre-dicament of person whose act are liable to be control with the assistance of the
State.  As per Hoffield “The duty is the correlative of Right”. 

Classification of Duties:-
Duty classified into following categories.

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1. Positive and Negative Duty:- A positive duty implies some act on the part of person on whom
it is imposed. Negative duty implies some forbearance on the part of the person on whom it is
imposed. 
2. Primary and Secondary duty:- A primary duty is that which exists perse and independent of
other duty. A secondary duty is that duty whose purpose to enforce some other duty. 

Essentials of duty:-
a. It may be dependent and independent.
b. It consists an obligation on the part of someone and confirms a privilege upon other. 
c. The concept of duty is affirmed and protected by the law of the land where it exists.
d. The concept of duties is a changing process which arises from time to time, place to place
and circumstances to circumstances. 
e. Duty in most of the cases creates an absence of right against some person. 
f. Duty may be fundamental, legal or moral in character. 

Relation between Right and Duties:-

The following object describes the correlation between right and duties:- 
i. A right is indispensible without any duty.
ii. A duty and right has separate and independent existence. 
iii. A right procreates duty and vice-versa.
Even though right and duties are opposite points but there is a great relation between two
relations. The right and duties has a relation of Father and Child, Husband and Wife because
there is no father without child and no wife without husband. So right and duties cannot be
separated from each other. 
Conclusion:- Right and duties are correlative of elements of each other. There is no right
without duty and there is no duty without right. These are recognized by law for maintaining the
society very well.  

8. Differences between Motive and Intention

The intention is the basic element for making a person liable for the crime, which is
commonly contrasted with motive. Though we often use the two terms interchangeably, these are
different in the eyes of law. While intention means the purpose of doing
something, motive determines the reason for committing an act.

The primary difference between intention and motive is that intention specifically
indicates the mental state of the accused, i.e. what’s going on in his mind, at the time of the
commission of a crime, whereas motive implies the motivation, i.e. what drives a person to do or
refrain from doing something. Let’s take a look at the article given below, to understand more
differences between the two.

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 BASIS FOR INTENTION MOTIVE
COMPARISON
Intention refers to a purposeful Motive alludes to the ulterior
Meaning action and a conscious decision to cause, that induces a person to do
perform an act, that is forbidden by or abstain from doing a particular
law. act.
What is it? Objective Driving force
Purpose Expressed Implied

Criminal liability It is substantial to determine It is insubstantial to determine

criminal liability. criminal liability.

9. Injuria Sine Damnum

“Injuria sine damno" - literally it means injury without damages and is limited to those
kinds of breach of law which consists in the violations of another’s private rights. Law
recognizes certain permanent importance for an individual’s living in the society that an
infringement of it “ipso facto” presents a cause of action. The maxim, therefore, means that
where there is an infringement of an absolute private right is so infringe has a direct cause of
action. In such a case it is no ndcessary for the plaintiff to prove damage, for the law presumes
damage, when an absolute right is infringed. “Injuria sine damno” therefore in other words,
provides that actual perceptible damage, loss or detriment is not indispensable as a foundation in
an action for tort. Trespass to person i.e. assault, battery, false imprisonment, libel and trespass to
property, whether it be land or goods are instances of tort that are actionable "per se”.
The maxim is just converse of the earlier maxim “damnum sine injuria”. There are
certain acts which though not harmful, are actionable. In other words, an injury without damages
incurs civil liability. The case of “Ashby V. White" - the leading case on the maxim is "Ashby V
White” wherein it was held that where a person is injured in the exercise or enjoyment of a right,
an action is maintainable whether or not any material damage has been caused. W, the returning
officer, in a parliamentary election wrongly rejected A!s vote. The candidates for whom A would
have voted were elected. A sued W and was awarded $200/- damages. In the course of his
judgment Hott, C .J., observed “if a plaintiff has a right, he must of necessity have a means to

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indicate and maintain it, and a remedy if he in injured in the exercise or enjoyment of it must be
provided; and indeed it is a vain thing to imaging a right without a remedy for want of right and
want of remedy are reciprocal”.
The case of Ashby V. White is an illustration on the point of “Injuria sine damno In this
case the plaintiff was wrongfully prevented from exercising his right to vote by the defendant
returning officers in a parliamentary election. The candidate for whom the plaintiff wanted to
caste his vote had come out successful in the election, still the plaintiff could recover damages
against the defendants for maliciously preventing him from exercising his statutory right of
voting in the election. Lord HOTT CJ. observed that there was the infringement of a legal right
vested in the plaintiff hence the defendants were liable. Since no actual damages were caused,
the court awarded $20 by way of recognition of plaintiff’s legal right.

10. Mens rea

It may be reiterated that a man is held criminal liable not for his act alone but if it is also
accompanied with “mens rea”or guilty mind with which he does it. Thus, “mens rea’’ refers to
the mental element necessary for the particular crime and the mental element may either be
intention to do the act or recklessness “or negligence ” as to consequences of that act. Generally,
the knowledge of the consequences is considered as part of mens rea because mental condition of
a man can be judge by his conduct and it is rather difficult to peep whether he did the act
intentionally or recklessly with the knowledge of the consequence.
Guilty mind "mens rea” may assume two forms, i.e.
1) Wrongful intention; or
2) Culpable negligence
A person shall be punished if he intentionally and willfully does an act which is
prohibited by the criminal law of the land. He shall also be criminally liable if he does a
forbidden act negligently or carelessly without bothering about the consequences following there
from. There are, however, some exceptional cases when a person is held liable irrespective of his
wrongful intention or culpable negligence. Such cases are covered under what is known as the
“strict liability’’ cases. Thus wrongs incurring penal liability are of three kinds considered from
the point of view of mens rea.
1) International or willful wrongs;

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2) Wrongs of negligence;
3) Wrongs of strict liability which are independent of mens rea
The doctrine of mens rea has been well explained in the famous English case of
R.V.TOLSON1. In this case a woman whose husband had deserted her married another man
before the expiry of seven years which was against English law relation to marriages. The jury,
however, found the woman "not guilty” of bigamy as the bonafide believed that her husband had
died. The court acquitted her of the charge of bigamy as mens rea was not proved in this case.
Thus a mere act does not constitute an offence unless it is coupled with mens rea. In other words,
mens rea is an essential ingredient for a crime. Sir J.STEPHENS, however, thinks that the
doctrine mens reea is misleading. In his view, the doctrine originated when offences were not
defined unless the criminal law. Some persons found that the crime consisted not merely in doing
a particular act such as killing, stealing, etc. but doing it with a paxticular knowledge or purpose.
The mental condition came to be called as mens rea. But now at the present stage when every
offence is well defined, the doctrine of mens rea has become unnecessary if not obsolete.

Exceptions to the Doctrine of Mens Rea

Besides the fact that the importance of doctrine of mens rea has receded in modern times,
there are certain special circumstances which the law imposes strict liability. They are exceptions
to the doctrine of mens rea. These exceptions are:
a) Where the law imposes strict liability the requirement of mens rea is dispensed with.
For instance, the statues relating to matters concerning public health, food, drugs, public
safety and social welfare measures impose strict liability and the presence or absence of
mens rea is irrelevant in such cases. Likewise, the motor vehicle act, licensing
legislations, etc. are covered under absolute liability rule and presence of guilty mind is
not a relevant factor to decide the guilty of the accused in these cases. The Privy council,
however, observed that tire offences in which liability could be imposed without guilty
mind must be comparatively far and few.
b) In cases where it is difficult to prove mens rea and the penalties are petty fines, the
expediency demands that dispensation of the requirement of mens rea would facilitate
speedy disposal of trials. The accused can be fined even without the proof of mens rea

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 c) It is not necessary to take mens rea into consideration in deciding cases relating to
public nuisance. It is so in the interests of public safety.
d) Mens rea is unnecessary in those cases which are criminal in form but in fact they are
only summary mode of enforcing a civil right.
e) Mens rea is not relevant in cases in which the plea of ignorance of law is raised in
defence. In such cases the fact that the offender was not aware of the rule of law and that
he did not intend to violate it, is no defence and he shall be liable as if he knew the law.

WRITE EXPLANATORY NOTES

1. Law and Fact

The determination of cases by the Court involves enquiry and consideration of various
questions that arise in a suit or trial. These questions may be of three kinds

1. Question of Law and

2. Question of Fact.
3. Mixed question of law and fact.

I QUESTION OF LAW

In law, a question of law also known as a point of law. It is a question that must be answered
by applying relevant legal principles to interpretation of the law. Such a question is distinct from
a question of fact, which must be answered by reference to facts and evidence as well inferences
arising from those facts. Answers to questions of law are generally expressed in terms of broad
legal principles and can be applied to many situations rather than be dependent on particular
circumstances or factual situations. An answer to a question of law as applied to the particular
facts of a case is often referred to as a "conclusion of law."

To illustrate the difference:

 Question of fact: Did Mr. and Mrs. Jones leave their 10-year-old child home alone with
their baby for 4 days?

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  Question of law: Does leaving a baby with a 10-year-old child for 4 days fit the legal
definition of child neglect?

While questions of fact are resolved by a trier of fact, which in the common law system is
often a jury, questions of law are always resolved by a judge or equivalent. Whereas findings of
fact in a common law legal system are rarely overturned by an appellate court, conclusions of
law are more readily reconsidered.

The expression Question of Law is used in 3 different senses:

1. Firstly, in its largest sense it is used to indicate that there are already well established
rules on the matter and court is bound to follow them. That is, the court has little
discretion over such matters. The matter before the court is either covered by law which
has already been decided by the court in earlier cases. For example, in a case if the
accused is a child under seven years, the court has to come to the conclusion that the
child has not committed the offences of which he has been charged because of the
provision of Section 82, I.P.C. this is therefore, a question of law. But if the accused is a
child above 7 years but below 12 years, then the court has to see. Whether the accused
has sufficient mental capacity to commit the offence of which he is charged and this is a
question of fact.
2. Secondly, it is a question of law to consider as to what the law is? When there is no
statutory enactment or law on a particular matter and there is no authenticative ruling and
the curt has to decide it for the first time, it is a question of law. The court has to
determine what, in its own judgment, is the true meaning of the words used by
legislature.
3. Thirdly, question of law are those which are left for decision by the Judges. While
Question of fact are for jury to decide. It is true that the jury but question of fact can be
referred to a judge. Thus interpretation of a particular document is a question of fact but
quite often it is done by the Judge himself. Again, the question of reasonable and
probable cause for prosecution in a suit for malicious prosecution is decided by a judge
although it is a question of fact.

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 Thus, a question of law is: (i) a question which the court is bound to answer according to
law; or (ii) a question as to what the law, on a particular point, really is; or (iii) any question to
be decided by the Judge, and not by the jury. A question of law does not require evidence and
factual investigation.

II QUESTION OF FACT

Fact is derived from the latin word ‘factio’ which means ‘to do’, or ‘something which has
been done’ or ‘which has happened’. The legal rights, liabilities and powers of persons involved
are assumed to arise from the facts of any given situation. It is necessary to prove the facts before
determining the law. The term “question of fact” is also used in different senses.
In the first place, all those questions which are not questions of law are questions of fact. In
this general sense a question of fact is : (i) any question which has not been previously
determined by the rule of law; (ii) any question other, than a question as to what the law is on a
particular point; or (iii) any question which is to be decided by the jury and not by the Judge.
In the second place, which is in a narrower and more specific sense, the phrase ‘question of
fact’ does not include all question that are not questions of law, but only some of them. In this
sense a question of fact is opposed to a question of judicial discretion. Judicial discretion
determines what is right, just and equitable so far as a question has not been pre-determined by
an established rule of law, and consequently affording no guide for the determination of the
question. Thus in this restricted sense, the question of fact means only those questions which are
not subject to judicial discretion.
The third meaning of the expression question or matter of fact is a matter of fact as opposed
to matter of opinion. In this sense the truth of question of fact is ascertained by evidence and is
capable of being answered by way of demonstration. The answer to it is a matter of speculation
which cannot be proved by any available evidence to be right or wrong.
In law, a question of fact also known as a point of fact. It is a question that must be answered
by reference to facts and evidence as well as inferences arising from those facts. The answer to a
question of fact usually depends on particular circumstances of factual situations. A question of
fact is a question as to what “happened” in a given legal matter”. Ex: (a) was the defendant
present at the scene of the crime? (b) Were the fingerprints lifted from the weapon untainted and

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belonged to the defendant? (c) Did the signature on the contract match the plaintiff’s other
significances?
In a general sense, the questions which are not the questions of law are question of fact.
Evidence can be led to prove or disprove a question of fact. Thus whether a theft has been
committed or not in a question of fact. Whereas a question as to what punishment should be
awarded to the accused is a question of law. Ex: In case of death of a patient under operation, the
question whether the operating surgeon was negligent or not in a question of fact.
Thus, a question of fact means: (1) any question which is not one of law, so that the Court
can determine it on the basis of the circumstances and facts of the case; (2) any question or
matter other than the question as to what the law really is; (3) any question left to be answered by
a jury and not by the judge. A question of fact does not require evidence.

2. Vicarious Liability
The general principle of law is that person is liable for his own-acts and not for
the acts of others. But in certain kinds of cases a person is made liable for the act of
another on account of the standing in a particular relationship with that person. This
liability is called vicarious liability. This kind of liability existed in ancient times also but
the grounds of liability were entirely different from what it is in modern times. The
principle of vicarious liability in ancient times was that a person must be made
answerable for the acts of the person who are akin to him. With the onward march of time
this principle of liability underwent a great change, and in modem times, this liability
exists in a limited kind of cases. Now a person is made liable on the grounds of
expediency and policy, and not on any other ground.
Normally, it is tire wrong-doer himself who is held liable for the act. But there
may be certain circumstances when the liability of the wrongdoer is imposed on some
other person than the wrongdoer himself. That is, some other person is made liable for
the wrongful acts of the wrongdoer. For example, a master is liable for the Wrongful acts
of his servant done in the scope of employment. Likewise a principal is liable for the
wrongful acts of his agent done in the ordinary course of business or a guardian is liable
for the wrongful acts of his words.

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 The doctrine of vicarious liability is based n the principle of "respondent
superior". According to SALMOND the rational basis of the rule of vicarious liability, of
which the master-servant liability serves as the best illustration, is mainly evidential. To
quote his own words of SALMOND, “there are such immense difficulties in the way of
proving actual authority, that unless some such conclusive presumption is drawn,
masters would make tools of their servants to commit great wrongs. A word, a gesture or
a tone from the master will be sufficient to induce a servant to commit greatest wrongs,
yet who could prove such a measure of complexity".
Vicarious liability exists mainly in civil law. It is recognized in civil law generally
in two kinds of cases.
1) A master is liable for all tortuous acts of his servants done in the course of his
employment.
2) The representative of the dead person are, in certain cases, liable for the acts of the
deceased.
Most of the jurists are of the view that the origin of the liability of the master for
the acts of his servant is in the old institution of slavery. HOLMES tracing the
development of the liability says that in the beginning it was the revenge that was the
motive of the punishment. It was vengeance on the immediate offender. If a slave
committed a wrong, the master of the slave had to surrender him to the person who had
suffered the wrong. Even the inanimate things were surrendered or forfeited if any injury
to a person too place on account of them. Later on, instead of surrendering the slave some
compensation was paid to the person suffering the injury by the master of the slave or the
thing. Thus the master paid for the blood feud for taking back the salve or the thing.
In other words, the surrender was substituted by compensation. Gradually a
practice developed that the master was also made a party when an- action was brought
against his servant for his wrongful act. It was only as a matter of convenience to
establish the liability of the master and to realize the money from him. Though in course
of time the institution of slavery was abolished and the nature of the liability also
changed, a master continued to remain liable for the wrongful acts of his servants on the
same analogy.

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 The modern jurists are of the view that the liability of the master in modem times
is not linked with the old principle of liability. The liability of the master for the acts of
his servants in modern times is of recent origin and growth. The liability of the master for
acts of his servants is based on a legal presumption which later on, became conclusive
that the acts done by a servant in and about his master’s business are under the express or
implied authority from the master. Therefore, these acts are the acts of the master. It is
this presumption which has appeared in the shape of the employer’s liability.

3. Right in Repropria and Right in Realiena

Rights in repropria : A right in re-propria is a general right which a person over the subject
matter of the right and which the possessor can exercise without any interference by another.
This general right constitutes the owners ship.The right in repropria consists of the following
four rights.
(a) Right to use a thing. 
(b) Right to exclude others from using it.
(c) Right to dispose of it.
(d) Right to destroy the thing. 

Absolute owner’s ship is a right over a determinate thing indefinite in point of user
unrestricted in point of disposition and un-limited in point of duration. My right of ownership
of my land is a right in repropria.

Rights in re-aliena 
It is a right which a person possesses with respect to property owned by another. It frequently
happens that the right of ownership vested in one person be comes subject to an adverse right
vested in another. It is a right which is detached from general right belonging to a person as
independent right e.g the right of an owner of a piece of land to use a way over the land of his
neighbor.
The right of the owner over his land is his general right which may be limited by his
neighbors right of way over the land. Such rights in re- aliena are called easements.
A right in re-aliena may be positive such as right of way over the neighbors field or negative
such as prohibiting his neighbor from in such a manner as to obstruct light and air to his

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 house. 
A right in re-aliena has the following characteristics: 
(a) A right subject to an encumbrance is called a servant right. 
(b) One encumbrance may be subject to another encumbrance e.g a lease may create a
sublease. 
(c) Real rights may be encumbrances of other rights e.g a lease or a mortgage or an easement
over property. 
(d) Personal as well as real rights may those selves is encumbered. 

4. Damnum Sine Injuria

Civil law on the other hand, says, “you may do this, but if any evil consequences chance to
follow, you will be held liable The essence of civil liability is contained in two latin maxim,
namely,
1) Damnum sine injuria, and
2) Injuria sine damno

DAMNUM SINE INJURIA

All wrongs are mischievous in the eyes of law but the converse is not true. There may be
cases in which damage is caused knowingly and willfully but the law will not hold the
wrongdoer accountable for it. The law ignores the harm of his nature because no legal injury is
caused. Such cases are covered under the maxim - damnum sine injuria. The word "injury”
signifies “an act contrary to law" or violation of legal right. The maxim means that damage
without “injuria ” “infringement of right” is not actionable. Mereloss in money or money’s
worth does not itself constitute legal damage and is not a good ground of action. There are many
acts, which though harmful, give right of action to him who suffers their effects. Damage so
done and suffered is called "damnum sine injuria” i.e. actual and substantial loss without
infringement of any legal right and in such cases no action lies. Hence the maxim implies that
loss or detriment is not a ground of action, unless it is the result of a species of a wrong of which
the law takes cognizance. Thus if I have a mill, and my neighbour sets up another mill, and
thereby the profits of my mill fall off, I cannot bring an action against him eventhough, I have
suffered damage.

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 SALMOND classifies the principal cases of “damnum sine injuria ” as follows:
i) Where the harm is caused by a persons’ lawful exercise of his own right, as in
the case of loss inflicted on individual traders by competition in trade.
ii) Where the defendant exercises alright to his property.
iii) Where the damage is caused by a man acting under necessity.
iv) Where the harm complained is too trivial, too indefinite or too difficult to
prove for effective legal recogniton.
v) Where the harm caused is of such a nature that the law considers it expedient to
confer any right of pecuniary redress upon the individual’s injury.
According to SALMOND, the cases covered under the maxim “damnum sine injuria”
can be grouped in two categories, as under:-
1. Cases in which there is an injury to an individual but the society as a whole is benefited,
therefore such acts are not actionable. For example, competition in trade might result into
harm to some traders but the society in general is benefited by it. Therefore, harm caused
thereby is not "injury" and hence does not incur civil liability. Again, a land owner may
so excavate his land as to withdraw support need for adjoining building or he may drain
away water which supplies his neighbour reservoir. These acts may be harmful to
individuals nevertheless they are justified in law for they are in public interest.
2. The second category of cases falling under the maxim “damnum sine injuria” includes
all those cases in which the harm caused is so insignificant or trivial3 in nature or so
difficult to prove that any attempt to prevent them shall “make the remedy worse than the
diseases.
There are number of leading cases on the subject, some of them being
1) Gloucester Grammar School Case: The defendant a school maser, set up a rival school next
door to the plaintiff. Plaintiff sued the defendant for the loss. It was held that no suit could lie on
the ground that “bona fide ” competition can afford no ground of action, whatever damage it
may cause.
2)Chasemore V. Richards(1819) 7H.L.C. 349: In this case a land owner and a mil owner who
had for about six years enjoyed the use of a stream, which was chiefly supplied by percolating
underground water; has lost the use of the stream after an adjoining owner had dug, on his own

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ground an extensive well for the purpose of supplying water to the inhabitants of the district. In
an action brought by the land owner it was held that he had no right of action.
3) U Anand Singh V. Ram Chandra, AIR, 1963 MP. 28: The defendant built two “pacca ” walsl
on his land on two sides of his house. The result of this action was that the water flowing through
lane belonging to the defendant and situated between defendant’s and pliantiff s houses damaged
the wall of the plaintiff. This was to be a case of "damnum sine injuria ".
4) Dhadphale V Gurav, (1881) 6Bom. 122: Where the servants of a Hindu temple had a right to
get the food offered to the idol, but the person who was under an obligation to the idol of offer
food did not do so, and the servants brought a suit against him for damage, it was held that the
defendant was under no legal obligation to supply food to the temple’s servants, and though the
result of his omission to supply food to idol and might involve a loss to the plaintiff, it was
“damnum absque injuria" and could not entitle the
plaintiffs maintain a suit.

5. Subordinate Legislation

Legislation is the prime source of law. and consists in the declaration of legal rules by a
competent authority. Legislation can have many purposes: to regulate, to authorize, to enable,
to proscribe, 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. The
legislature may delegate law-making powers to lower bodies. In the UK, such delegated
legislation includes Statutory Instruments, Orders in Council, & Bye-laws. Delegated
legislation may be open to challenge for irregularity of process; and the legislature usually
has the right to withdraw delegated powers if it sees fit.

Most legislatures have their powers restricted by the nation's Constitution, and Montesquieu's
theory of the separation of powers typically restricts a legislature's powers to legislation.
Although the legislature has the power to legislate, it is the courts who have the power to
interpret statutes, treaties and regulations. Similarly, although parliaments have the power to
legislate, it is usually the executive who decides on the legislative programme. The procedure
is usually that a bill is introduced to Parliament, and after the required number of readings,
committee stages and amendments, the bill gains approval and becomes an Act.

In modern times, legislation is considered as the most important source of law. The term
'legislation' is derived from the Latin word legis which means 'law' and latum which means
"to make" or "set". Therefore, the word 'legislation' means the 'making of law'. The
importance of legislation as a source of law can be measured from the fact that it is backed
by the authority of the sovereign, and it is directly enacted and recognised by the State. The
expression 'legislation' has been used in various senses. It includes every method of law-

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 making. In the strict sense it means laws enacted by the sovereign or any other person or
institution authorised by him.

Subordinate Legislation: Subordinate legislation is a legislation which is made by any authority

which is subordinate to the supreme or sovereign authority. It is enacted under the delegated
authority of the sovereign. The origin, validity, existence and continuance of such legislation
totally depends on the will of the sovereign authority. Subordinate legislation further can be
classified into the following types:-
(a) Autonomous Law:
When a group of individuals recognized or incorporated under the law as an autonomous
body, is conferred with the power to make rules and regulation, the laws made by such body fall
under autonomous law. For instance, laws made by the bodies like Universities, incorporated
companies etc. fall in this category of legislation.
(b) Judicial Rules:
In some countries, judiciary is conferred with the power to make rules for their
administrative procedures. For instance, under the Constitution of India, the Supreme Court and
High Courts have been conferred with such kinds of power to regulate procedure and
administration.
(c) Local laws:
In some countries, local bodies are recognized and conferred with the law-making
powers. They are entitled to make bye-laws in their respective jurisdictions. In India, local
bodies like Panchayats and Municipal Corporations have been recognized by the Constitution
through the 73rd and 74th Constitutional amendments. The rules and bye-laws enacted by them
are examples of local laws.
(d) Colonial Law:
Laws made by colonial countries for their colonies or the countries controlled by them
are known as colonial laws. For a long time, India was governed by the laws passed by the
British Parliament. However, as most countries of the world have gained independence from the
colonial powers, this legislation is losing its importance and may not be recognized as a kind of
legislation.
(e) Laws made by the Executive:
Laws are supposed to be enacted by the sovereign and the sovereignty may be vested in
one authority or it may be distributed among the various organs of the State. In most of the
modern States, sovereignty is generally divided among the three organs of the State. The three
organs of the State namely legislature, executive and judiciary are vested with three different
functions. The prime responsibility of law-making vests with the legislature, while the executive
is vested with the responsibility to implement the laws enacted by the legislature. However, the
legislature delegates some of its law-making powers to executive organs which are also termed
delegated legislation. Delegated legislation is also a class of subordinate legislation. In welfare
and modern states, the amount of legislation has increased manifold and it is not possible for

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legislative bodies to go through all the details of law. Therefore, it deals with only a fundamental
part of the legislation and wide discretion has been given to the executive to fill the gaps. This
increasing tendency of delegated legislation has been criticized. However, delegated legislation
is resorted to, on account of reasons like paucity of time, technicalities of law and emergency.
Therefore, delegated legislation is sometimes considered as a necessary evil.

Delegated Legislation:
This is a type of subordinate legislation. It is well-known that the main function of the
executive is to enforce the law. In case of Delegated Legislation, executive frames the
provisions of law. This is also known as executive legislation. The executive makes laws in the
form of orders, by laws etc.

Sub-Delegation of Power to make laws is also a case in Indian Legal system. In India, the
power to make subordinate legislation is usually derived from existing enabling acts. It is
fundamental that the delegate on whom such power is conferred has to act within the limits of
the enabling act.

The main purpose of such a legislation is to supplant and not to supplement the law. Its
main justification is that sometimes legislature does not foresee the difficulties that might come
after enacting a law. Therefore, Delegated Legislation fills in those gaps that are not seen while
formulation of the enabling act. Delegated Legislation gives flexibility to law and there is ample
scope for adjustment in the light of experiences gained during the working of legislation.

6. Different kinds of Obligation

The law of obligations is one branch of private law under the civil law legal system and

so-called "mixed" legal systems. It is the body of rules that organizes and regulates the rights and
duties arising between individuals. The specific rights and duties are referred to as obligations,
and this area of law deals with their creation, effects, and extinction.

An obligation is a legal bond (vinculum iuris) by which one or more parties (obligants)
are bound to act or refrain from acting. An obligation thus imposes on the obligor a duty to
perform, and simultaneously creates a corresponding right to demand performance by
the obligee to whom performance is to be tendered. Obligations may be civil, which are
enforceable by action in a court of law, or natural, which imply moral duties but are
unenforceable unless the obligor consents.

Justinian first defines an obligation (obligation in his Institutiones, Book 3, section 13 as

"a legal bond, with which we are bound by necessity of performing some act according to the

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laws of our State." He further separates the law of obligations into contracts, delicts, quasi-
contracts, and quasi-delicts. Nowadays, obligation, as applied under civilian law, means a legal
tie (vinculum iuris) by which one or more parties (obligants) are bound to perform or refrain
from performing specified conduct (prestation). Thus an obligation encompasses both sides of
the equation, both the obligor's duty to render prestation and the obligee's right to receive
prestation. It differs from the common-law concept of obligation which only encompasses the
duty aspect.

Kinds of Obligations
Considered from the point of view of their sources, obligations are divisible into the following
four classes:-

1. Contractual (Obligationes ex contractu);

2. Delictal (Obligationes ex Delicto);
3. Quasi- Contractual (Obligationes Quasi-ex-contractu);
4. Innominate

1. Contractual Obligation .

A contract can be broadly defined as an agreement that is enforceable at law.  A contract is a

kind of agreement which creates right in personam between the parties to it, e.g., contract of sale
and purchase, leases and guarantee etc. The rights so created are proprietary in nature, but
sometimes they may not be in personam such as promise of marriahe which falls within the law
of status.

2. Delictal Obligations.

These are obligations arising out of torts. It means a duty of making pecuniary satisfaction for
the wrong i.e., tort committed by the defendant. Thus a tortiuos obligation is a liability to pay
pecuniary damages for civil wrong. Tortiuos liability arises from the breach of duty primarily
fixed by law; this duty is towards persons generally and its breach is redressible by an action for
unliquidated damages.

3. Quasi-contractual Obligation.
These obligations are regarded by law as contractual though they are not so in fact. In certain
cases, the law departs from the actual facts and implies a contract by fiction. for example, a
money decree of the court creates an obligation which is not contractual as there is no prior

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agreement to pay. The law however assumes that there is a duty to pay and also promised to pay.
therefore, it is quasi-contractual obligation.
4. In nominate Obligation:
These obligations are called as residuary class of obligation. those obligations which are not
covered under any of the aforesaid obligation are called as in nominate obligation.

7. Legal Status of Unborn, Dead Person and Lower Animal

Geopolitical social changes set alterations into social reality providing for the creation of
appropriate conditions for an individual as to the development of his personality, the protection
of his needs and legal interests. Modern personality requires from society the opportunities to act
and live according to the principles of justice, equality and solidarity. However, only declarative
and philosophical approach is not enough here. We need necessary legal instruments and
mechanisms for protection of a man and his life, views and preferences, rights and freedoms as
valuable categories for the state and the society. Modern jurisprudence considers humanism as
one of the most important principles of law, since a civilized society is the basis for the
development of a person’s rights.
The man does not exist as an abstract category within law, but serves as its subject that
owns legal status. That man is the creator of law and the civil society provides a person not only
with protection and defense, but also the ability to take an active part in public administration
that involves "postulating the autonomy and individuality of each human being as a basic
constitutional value".
1. LEGAL STATUS OF UNBORN PERSON

The legal understanding of the concept of ‘person’ or ‘personality’ revolves around

possession of rights and capacity to discharge legal duties. Hence, natural persons, that is, human
beings are the prime claimants of legal personality. Legal personality of natural persons begins at
birth and extinguishes with death with the result that pre-birth, post death stages are devoid of
any legal persona. Understanding absence of personality in the pre-birth stage poses problems as
the unborn being understood as incapable of exercising any legal rights and not being duty bound
towards anybody, gets a raw deal when it comes to tortious acts committed towards it. There are
crimes committed against them that are not recognised as such and hence make punishment
impossible. For law, the problem is complicated by other disciplines like theology and medicine
maintaining the unborn to be ‘living’ entity.
A natural person must be a living human being, i.e., must not be a monster and must be
born alive to be ranked as a person in law. The exception to this rule is that of an infant en ventre
sa mere (child in womb), who is supposed to be born for many purposes. A child in its mother’s
womb can acquire certain rights and inherit properly, but the rights are contingent on his being
born alive. He is counted as a person for purposes of partition. Such a child can claim damages

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for injury sustained while in its mother’s womb. A pregnant woman condemned to death is
respite as of right till the delivery of the child. A child not yet conceived cannot be deemed to be
a person, although provision may be made for such beings contingently coming into existence by
vesting property in trustees for them.

The creation of proprietary rights in favour of unborn persons is governed by the rule
against perpetuity. That rule provides that you cannot postpone vesting of an estate beyond a
longer period than the lifetime of the transferee or transferees existing at the date of the transfer
and the minority of the ultimate unborn beneficiary. The contingent rights of unborn persons
become vested on birth or at the end of such period not exceeding that prescribed by the rule
against perpetuity, as may be fixed by the person granting the rights to unborn persons.

2. LEGAL STATUS OF DEAD PERSONS

Dead men are no longer persons in the eye of law. They have laid down their legal personality
with their lives, and are now as destitute of rights as of liabilities. They have n rights because
they have no interests. They do not even remain the owners of their property until their
successors enter upon their inheritance. However, there are three things, more especially, in
respect of which the anxieties of living men extend beyond the period of their deaths, in such sort
that the law will take notice of them. These are man’s body, his reputation and his estate.
Dead men are not legal persons. They are immune from duties as no sanction can be enforced
against them. They are not the subjects of rights either. With their death they lay down their legal
personality and as such are destitute of legal rights and duties. The law, however, interferes with
respect to a dead person in the following ways:

1. A corpse is not a property and cannot be disposed of by will. But every person dying has a
right to a decent burial and the criminal law secures it.

2. The law protects the reputation of dead persons from libelous attacks. Under the Indian Penal
Code it is defamation to impute anything to a deceased person if the same would harm the
reputation of that person if living and is intended to be hurtful to the feelings of his family or
other near relations. But here also the law does not protect a dead person from being libeled but
protects the living descendants who would suffer by an attack upon their deceased ancestor.

3. A man has extensive power to regulate by will the disposition and enjoyment of the property
which he leaves, subject of course to the restriction imposed by law. But here again the
testamentary dispositions are calculated only to protect the interests of living persons.

3. LEGAL STATUS OF LOWER ANIMAL

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 In the present day context, the animals are deemed incapable of possessing legal rights &
duties. They are merely things, often the objects of legal rights and duties but they are never
subjects of them. For example:- A beast has no legal personality. Anything done to the animals
may be a wrong to its owner or to the society but it is no wrong to the beast. But the animals
have two rights to be protected. 1. Cruelty to animals is made a criminal offence. 2. A trust for
benefit for a particular class of animals as opposed to one for individual animal is valid and
enforceable as a public and charitable one. Personality of animals.

8.Causation

In law, a man is held liable either for doing acts which are mischievous or for causing
actual injury to the plaintiff. Causation, therefore, is an important concept for determining
liability in law. In fact, before deciding the question of liability the question of causation should
be decided first. Thus, if A is to be held responsible for burning B’s house, he must first be
shown to have caused it. Causation, therefore, is an important factor to determine responsibility
whether it is of a criminal or civil nature. The causation broadly involves two types of
occurrences,
namely,
i) Abnormal factors;
ii) Human acts
Thus in the above illustration where a house has been burnt down, presence of
inflammable gas, ignition, an electric short circuit, etc. may be abnormal circumstances causing
fire or it may have been caused by some person. Once either of these factor is found present, it is
easy to know the causation and attribute responsibility. An act may have been caused due to a
change of causation involving several factors. It is the established principle of law that a man is
not held liable for his act if the chain of causation is broken or interfered with. This is contained
in the maxim - “novus actus interveniens”.
SALMOND explains the maxim through an illustration. He says "if A stabs B and B is
taken to hospital where, despite the fact that he is shown to be allergic to terramyein, is injected
Math a large dose of it, then his treatment and not the stab would be treated as a cause of B’s
death because the treatment which was abnormal, broke the casual connection between the
-wound by the accused and the victim's death ”.
The leading case on causation is relation to civil liability is “in Re Polemis” wherein the
defendant’s servant carelessly dropped a plank into the ship’s hold, the plank struck a spark

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which ignited petrol vapour whose presence in the hold was unsuspected. The defendant’s were,
however, held liable for damages caused to the ship. But this decision has been overruled by the
Privy Council in Wagon Mound case and now forcibility of consequences is the test for
determining causation and liability. In certain cases, the law will presume that a man has
intended the natural and probable consequences of his act.
Thus in Scott V. Shepherd the defendant shepherd mischievously threw a lighted
cigarette squib into the market place. It fell where Yates sold ginger-bread. One will is, to
prevent injury to himself and Yates, picked it up and threw it across when it fell in the shop of
one Royal who took it and threw it across when it struck the plaintiffs eye and injured it. The
court held that the injury to the plaintiff was directly and immediately caused by the defendant,
as will is and royal, the intermediate agents acted involuntarily and for self-protection. The injury
was held to be not too remote. It is true that the defendant did not intend to injure the plaintiff
and much less to destroy his eye, nevertheless, he was held liable for one must answer for the
consequences which common sense would attribute to his wrong doing.

9.Ratio decidendi and Obiter Dicta.

Ratio Decidendi (Reason of Decision):

The binding essence of a judicial decision is traditionally summed up in the phrase ratio
decidendi (’reason for deciding’). A great deal of thought and effort has been expended in
defining and analysing this concept and in finding a reliable method for working out how the
ratio decidendi of a case is best ascertained. There appear to be three main approaches: the so-
called classical theory; the wide-spread view, of which Julius Stone was a prominent supporter in
Australia, is which considers the whole notion that a single case could stand for a single ratio
decidendi as a complete illusion; and the ’material facts’ theory developed by Goodhart. The
purpose of this contribution is to develop a modified version of Goodhart’s theory. Should this
succeed, the ’illusion’ theory will have been disproved and the arguments advanced in support of
it need not be dealt with in any detail.
'Ratio Decidendi' refers to the binding part of a judgment. 'Ratio Decidendi' literally
means reasons for the decision. It is considered as the general principle which is deduced by the

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courts from the facts of a particular case. It becomes generally binding on the lower courts in
future cases involving similar questions of law.

Having considered the extent to which courts are bound by previous decisions, it
becomes necessary to consider what actually constitutes the decision in a case and what is that
which is actually binding on the lower courts.
A decision generally has two aspects namely:-
1. What principle it lays down on the rule of law for which it becomes an authority. This is
generally called the ratio decidendi of the case.
2. What the case decides between the parties. Such matters become res judicata between the
parties and cannot be the subject of further dispute.

The doctrine of ratio decidendi can be better understood by a concrete illustration. The
English case of Bridge Vs. Hawkeshworth may be cited for this purpose. In this case a customer
found some money on the floor of a shop. The court applied the rule of “finders-keepers’ and
awarded possession of the money to him rather than to the shop-keeper. The ratio decidendi of
this case is that finder of goods is the keeper, i.e., has right of possession over it. However, in
South Staffordshire Water Company Vs. Sharman, where the defendant found two gold rings in a
mud of pool owned and occupied by the plaintiffs, the court refused to apply the “finders-
keepers” rule expressed in Bridges’ case on the ground that in that case money was found in a
public place, i.e., on the shop floor but in the instant case, it was found in a pool which was not
open to public.
The ratio decidendi is a principle of law which forms the basis of decision in a particular
case. The Court can compel the legislature by the modality of stare Decisis to change the law by
making the case harder.
Obiter Dicta

Obiter dicta (Said by the way)

An 'obiter dictum' refers to parts of judicial decisions which are general observations of
the judge and do not have any binding authority. However, obiter of a higher judiciary is given
due consideration by lower courts and has persuasive value. Having considered the various
aspects of the precedent i.e. ratio and obiter, it is clear that the system of precedent is based on

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the hierarchy of courts. Therefore, it becomes important to understand the hierarchy of courts in
order to understand precedent. Every legal system has its own distinct features. Therefore, the
doctrine of precedent is applied.
Pronouncements of law, which are not part of the ratio decidendi, are called as obiter
dicta and they are not authoritative or binding on subordinate Courts. Obiter dicta may be
defined as mere casual expressions by the Court which carry no weight.
In the course of judgment, a Judge may make various observations which are not
precisely relevant to the issues before him. For instance, he may illustrate his reasoning by
reference to hypothetical situations. Whatever said by its Court by way of statements of law
which lay down a rule but which is unnecessary for the purpose in hand, are called Obiter dicta.
These dictas have the force of persuasive authority and are not binding upon the courts. The
courts may seek help from them but they are not bound to follow them. Thus Obiter dicta
literally means something said by the Judge by the way, which does not have any binding
authority.
10.Codification.

In law, codification is the process of collecting and restating the law of a jurisdiction in
certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law.
Codification is the defining feature of civil law jurisdictions. Codification means “the
reduction of the whole corpus juris so far as practicable, in the form of enacted law. Literally
speaking, Code denotes “a systematic collection of statutes body of laws so arranged as to
avoid inconsistency and overlapping”. Thus codification implies collection, compilation,
methodical arrangement and systematization of whole body of laws so that they are reduced
in the form of general principles and rules.

The collection and systematic arrangement, usually by subject, of the laws of a state or
country, or the statutory provisions rules, and regulations that govern a specific area or
subject of law or practice. The term codification denotes the creation of codes, which are
compilations of written statutes, rules, and regulations that inform the public of acceptable
and unacceptable behavior.

U.S. law is often described as a Common Law system of Jurisprudence. This means that
it relies on previous cases, or precedents, to determine procedures and to decide the outcome

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 of cases. U.S. jurisprudence also involves the interpretation of written laws, including
constitutions, regulations, and ordinances.

Codification rearranges and displaces prior statutes and case decisions. Codification of an
area of law generally constitutes the whole source that is relied upon for a legal question in
that area. Thus, when a state codifies its criminal laws, the statutes contained within the new
code supersede the laws that had been in place prior to the codification.

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