Lecture - 01

Introduction to Jurisprudence and Nature of Law

Law changes with the evolution of society. It is a dynamic concept. These changes resulted in different issues which
are tackled by law through a pragmatic approach in interpreting law. While doing so, the modern jurisprudence has
to take into consideration the social ethos and changing patterns of the society which immensely widen its scope as
a science of law.

Nature of Law
The term ‘law’ is used in two senses:
1. Abstract sense- the system of law, such as the law of India, the law of defamation, law and justice etc. In the
abstract sense, we speak of ‘law’ or ‘the law’. Abstract law is ‘jus’.
2. concrete sense.- The law in its concrete sense means a statute, enactment, ordinance or other exercise of
legislative authority. In a concrete sense, we speak of ‘a law’ or ‘of laws'; concrete law is ‘lex’.

Law as per Different Jurists:

Austin- “Law emanates and is enforced by the State. He firmly believed that there is a confluence of command,
sanction and sovereignty in law.” According to Hegel, “It is the abstract expression of the general will existing in and
for itself.”

Savigny- “The rule whereby the invisible borderline is fixed within which the being and the activity of each individual
obtains a secure and free space.” He said that law grows with the growth of people, strengthens with the strength of
people and finally dies away as the nation loses its nationality.

Ihering- Law emphasizes on two basic elements, namely social control and social purpose. In his view “Law is the
form of guarantee of the conditions of life in society, assured by the state's power of constraint.”

Friedmann- “The law consists of norms of conduct set for a given community and accepted by it as binding by an
authority equipped with the power to lay down norms of a degree of general application to enforce them by a variety
of sanctions.”

Duguit- “Law is essentially a social fact which regulates the conduct of each individual in the community.”

Parker- “Law is the body of principles enforced and applied by the state through judicial authorities by physical force
in pursuit of justice.”

Salmond- “Law as the body of principles, recognised and applied by the State, in the administration of justice.”

Classification of Law by Different Thinkers

Different thinkers like Salmond, Austin and Holland have classified law into the number of categories. There
classification is as follows

Salmond’s Classification of Law

Salmond has given an exhaustive classification of laws. He has referred to nine kinds of laws, which are as follows

1. Imperative Law
• It means “a rule which prescribes a general course of action imposed by some authority which enforces it by
superior power either by physical force or any other fon of compulsion.”
• ‘Austin’ was the main exponent of the imperative theory of law, which defines law as a command of the sovereign
which persons are obliged to obey. It may be either divine or human. The human laws may be of three kinds-civil
law, law of positive morality and law of nations which is also called ‘International law’.
• Civil law consists of commands issued by the State to its subjects and enforced by its physical power. The law of
positive morality consists of rules imposed by society upon its members and enforced by public ridicule or
disapprobation. International law consists of rules imposed upon the State by the society of States and enforced
partly by international option and partly by the threat of war.
• Imperative law has two essential elements. Firstly, the command of the sovereign must be general and addressed
to a particular person, secondly, the observance of law must not depend upon the pleasure of people, but it should
be enforced by some authority.
2. Physical or Scientific Law
• Physical laws are laws of Science which are expressions of the uniformities of nature.
• There is perfect uniformity and regularity in these laws and are not subject to change. For example, law of gravity,
law of motion, law of air-pressure etc.

3. Natural or Moral Law

• Natural law is based on the principles of right and wrong. It includes all forms of righteous action. It is also called
‘universal law’ or ‘eternal law’. It is also called ‘rational law’ because it is based on reason. Natural law embodies
the principles of natural justice of which legal justice is a more or less imperfect expression. Legal justice and
natural justice represent two intersecting circles, i.e. justice may be legal but not natural or moral or it may be
moral but not legal or it may be both legal and moral.
• The three consequences of natural law are as follows
(a) It is in a position to render a human law void if it is repugnant to natural law.
(b) During the medieval period, natural law helped in the development of judicial and legal processes. Natural
rights of an individual acquired great importance in this period.
(c) It has given strength to the international law to develop as a law.

4. Conventional Law
• It means any rule or system of rules agreed upon by persons for the regulation of their conduct towards each
other. It is a form of special law. For example, rules of a club or a co-operative society or any voluntary
organization are instances of a conventional law.

5. Customary Law
• There are many customs which have been prevalent in the community from time immemorial even before the
states came into existence. They have assumed the force of law in the course of time.
• It means any rule of action which is actually observed by men when a custom is firmly established, it is enforced
by the state as law because of its general approval by the people.
• There is a difference of opinion among jurists about the authority of custom as a law. Some regard it as a proper
law while others treat it simply as a source of law. Particularly, the positivists do not accept custom as a proper
law but treat it only as a source of law.

6. Practical or Technical Law

• Practical laws are rules meant for a particular sphere by human activity. The laws of sanitation and health, building
construction and architecture etc may be included in this category.

7. International Law
• The law of nations of the 18th century was named as International law by Bentham in 1780. It consists of rules
which regulate relations between the states inter se.
• According to Oppenheim, “International law is the body of customary and conventional rules which are considered
legally binding by civilised states in their inter-course with each other.”
• The Permanent Court of International Justice (PCIJ) in the SS Lotus case defined International law as “Principles
which are in force between all independent nations.”
• According to Starke, International law is defined as ‘Rules of conduct which States feel themselves bound to
observe and therefore do commonly observe in their relations with each other, and which also includes
(a) the rules of law relating to functioning of international institutions and organizations, their relations with each other
and their relations with states and individuals,
(b) certain rules of law relating to individuals so far as the rights and duties of such individuals are the concerns of
the international community.”

8. Prize Law
• That portion of International law which regulates the practices of the capture of ships and cargo in wartime, as
applied by courts is called ‘prize law’. It is meant for administering justice between the captors of ships or cargos
and the persons interested in the property seized.
• Salmond, however, disagreed with the view that prize law should be regarded as a branch of International law in
the strict sense of the term.

9. Civil Law
• The law enforced by the state is called ‘civil law’. The force of state is the sanction behind this law. Civil law is
essentially territorial in nature as it applies within the territory of the state concerned.
• The term ‘civil law’ is derived from the Roman word ‘jus civile’. Austin and Holland prefer to call civil law as
‘positive law’ because it is enforced by the sovereign political authority. However, Salmond justifies the term ‘civil
law’ as the law of the land.

Austin’s Classification of Law

John Austin has classified law into following categories
• Divine Law
• Human Law
• Positive morality which are rules set by non-political superior e.g. international law.
• Law metaphorically or figuratively so-called.

Austin regards only divine law and human law as proper law but does not consider positive morality and figurative
law as law in the real sense of the term as they lack binding force in the absence of a sanction and no evil
consequences follow in the event of their breach or infringement.

Holland’s Classification of Law

Holland classified law according to their functions. He classified law into following categories

1. Private and Public Law

Statutes are of two kinds, namely, public and private. The distinguishing features of a public act is that judicial notice
is taken about its existence. On the other hand, private is one which does not fall within the ordinary cognizance of
the courts of justice and will not be applied by them unless specially called to their notice. The province of private law
is the adjustment of relations between person and person, whereas the public law deals with relationship between
person and the state. Public law, on the other hand, seeks to regulate the activities of the state.

2. General and Special Law

• The territorial law of a country is called ‘General law’. It consists of all persons, things, acts and events within the
territory of a country which are governed by it. For example, Indian law of crimes and law of contracts are the
general laws of the country because they have general application throughout the territory of India.
• General law consists of those legal rules of which the courts take judicial notice whereas the special law consists
of those legal rules which courts will not recognize and apply them as a matter of course but which must be
specifically proved and brought to the notice of the courts by the interested parties.
• Salmond has rightly pointed out that the true test of distinction between the general law and special law is judicial
notice.

3. Substantive and Procedural Law

• substantive law is that which defines a right while procedural law determines the remedies. Procedural law is also
called ‘law in action’ as it governs the process of litigation.
• Substantive law is concerned with ends which the administration of justice seeks to achieve while procedural law
deals with the means by which those ends can be achieved..

4. Antecedent and Remedial Law

• Antecedent law relates to independent specific enforcement without any resort to any remedial law. The law
relating to specific performance of a contract is the best example of antecedent law.
• The remedial law, on the other hand, provides for a remedy. For example, law of torts, writs etc. come within the
category of remedial laws.

5. Law in Rem and Law in Personam

• Law in rem relates to enforcement of rights which a person has against the whole world or against the people in
general, whereas law in personam deals with enforcement of right available against a definite person or persons.
 Lecture - 02
Sources of Law
Sources of law are asserted in two senses. First is the source which helps law derive its validity and second is source
that helps discover law.

Dr C K Allen asserts that the true sources of law are agencies through which the rules of conduct acquire the character
of law because of their certainty, uniformity and binding force.
According to Fuller, the ‘sources of law’ includes the material from which the Judge obtains rules for deciding cases
and includes statutes, judicial precedents, customs, opinions of legal experts, jurists etc.

According to natural law philosophers, the ‘law’ has a divine origin. It is a gift of God contained in Holy Books. Vedas
and Smritis are sources of law according to Hindu Jurisprudence as they have originated from the sages.
In the same manner, Quran is the word of God and therefore, a positive source of Muslim law. The Hadis contains
the precepts of the Prophet as inspired and suggested by God.

John Austin, the exponent of analytical school of Jurisprudence refers to three different meanings of the term ‘sources
of law’ and it may include (a) direct authority; (b) historical documents; and (c) causes.
Duguit rightly pointed out that law is not derived from any single source and the real basis of law is public service.

Ehrlich writes, “At present as well as any other time, the centre of gravity of legal development lies not in legislation,
not in juristic science, not in judicial decisions, but in society itself.”

According to Salmond, “Legal sources are those sources which are recognised as such by the law itself, while
historical sources are those sources which lack formal recognition by the law. The legal sources of law are
authoritative and historical sources are unauthoritative.”

Kinds of Sources of Law

Some of the important sources of law are as follows

1. Custom
- Tradition passing on from one generation to another originally governed by human conduct.
- Based on usage or practice of people, that is, doing certain things in a certain way.
- Not consciously formed

Herbert Spencer, “before any definite agency for social control is developed, there exists a control arising partly from
the public opinion of the living and more largely from the public opinion of the dead.”

Salmond, “Custom is to society what law is to the state. Each is the expression and realization to the measure of
men’s insight and ability of the principles of right and justice.”

Holland, “Usage is the spontaneous evolution by the people or part of them of rules of conduct, the existence and
general acceptance of which is proved by their regular observance.”

Savigny the main founder of German historical school, “Custom is essentially’ a product of natural forces associated
with popular spirit of acceptance by the people. When people repeat the same action again and again, it assumes the
form of ‘habit’ and when habit continues to be in practice for a long time, it becomes custom.”

Kinds of Custom
Need not be practiced all over the country.
Sufficient if practiced in a particular locality.
Two kinds-
a. Legal custom
b. Conventional custom
Salmond, a legal custom is one which is operating per se as a binding rule of law, independently of any agreement
on the part of those subject to it. A legal custom is one whose authority is absolute. A conventional custom is one
which operates only indirectly through mediums of agreements, whereby it is accepted and adopted in individual
instances as conventional law between the parties.
Conventional custom is one whose authority is conditional on its acceptance and incorporation in agreements
between the parties bound by it. Usually conventional custom is referred as usage and legal custom is custom
simpliciter.
A valid legal custom should have existed from time immemorial; such antiquity is, however, not needed to support the
validity of usage. Conventional customs are implied, if they are not in conflict with the general law of the land, In case
of conflict, however, such usage may be made applicable by the express agreement between the parties.
Legal customs are of two kinds, namely, local custom and general custom. A local custom is a usage which has
obtained the force of law and is binding within a particular area. In practice, a plaintiff or defendant relying upon a
local custom must plead it and give particulars of it.

Essentials of a Valid Custom

- Existed from time immemorial
- Continuous in operation
- Exercised peaceably without any interruption
- Must not be unreasonable in the eyes of law
- Certain
- Must be observed as a right
- Must not be contrary or inconsistent with a legislative enactment
- Consistent with other customs
- Apply to definite locality

2. Precedent
Judicial precedent is another important source of law. Precedents have a binding force on judicial tribunals for deciding
similar cases in future. A precedent is a statement of law embodied in the decision of a Superior Court, which decision
has to be followed by the court and by courts subordinate to it.

Salmond, the doctrine of precedent has two meanings, namely, in a loose sense precedent includes merely reported
case-law which may be cited and followed by the courts, in its strict sense, precedent 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 become the law for everyone to follow. Whether or not a particular decision, i.e. precedent becomes
binding depends on two main factors, namely
• it must have been pronounced by a Court which is sufficiently senior;
• it is only the ratio decidendi i.e. reasoning behind the decision which is binding.

Jeremy Bentham, precedent is a Judge-made law while Austin calls it as judiciary’s law.
Keeton holds precedents as those judicial pronouncements of the court which carry with them certain authority having
a binding force.

Kinds of Precedents
a) Authoritative- An authoritative precedent is one which has a binding force and the judge must follow it whether he
approves it or not. Authoritative precedents are the decisions of superior courts of justice which are binding on
subordinate courts.
b) Persuasive- Persuasive precedent is the one which the judges are under no obligation to follow, but which they
may take into consideration. Thus, authoritative precedents are the legal sources of law while persuasive
precedents are merely historical sources. Persuasive precedents may be of various kinds, namely
- Foreign judgements;
- Decision of superior courts to other parts of British Empire;
- Judgements of the Privy Council when sitting as the final court of appeal from the colonies;
- Judicial dicta;
- Authoritative text books and commentaries.
Binding Force of Judicial Precedents
Apart from a decision overruling the precedent, there are certain other circumstances which also destroy or weaken
the binding force of judicial precedents either partially or totally. They are as follows

• Ignorance of Statute – not binding if rendered in ignorance of any statute of rule having binding authority.
• Inconsistency between Earlier Decision of the Court of the Same Rank – Court is not bound by the past
conflicting decisions of it.
• Inconsistency between Earlier Decision of Higher Court – not binding if it is inconsistent with the decision of
the Higher Courts
• Decision of Equally Divided Court There may be cases where the Judges of 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. But, this problem does not arise nowadays because Benches are always constituted with an uneven
number of judges. In India, however, where the judges in a Division Bench of the High Court are equally divided,
the practice is to refer the case to a third judge whose decision shall be treated as final unless it is set aside by
the Supreme Court.
• Precedent Sub Silentio Sub-silentio decisions are where legal points are not fully argued. The decision in Gerard
v. Worth of Paris Ltd, is a good illustration to explain a precedent sub silentio.
• Erroneous Decisions The decisions which are founded on misconceived principles or in conflict with the
fundamental principles of law lose their binding force totally.
• Abrogated Decisions A decision ceases to be binding if it is reversed, overruled or abrogated.

Binding Elements in Precedents

• The Ratio Decidendi
The portion of a judgment that is binding is called the ‘ratio decidendi’ (the reason for deciding). This consists of the
portion of law which was essential to the judge in coming to his decision.

3 meanings attached to ratio decidendi:

(a) The first is the translation of it, it is the reason for deciding.
(b) Secondly, it may mean the rule of law preferred by the judge as the basis of his decision.
(c) Thirdly, it may mean ‘the nile of law’ which others regard as being of binding authority.

Obiter Dicta 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. Observation of Court which carries no weight.Obiter dicta literally
means something said by the judge by the way, which does not have any binding authority.
Goodhart defines obiter dictum as, “A conclusion based on a fact the existence of which has not been determined
by the court.”

3. Legislation
Derived from Latin words, legis meaning law and latum which means ‘to make’ or ‘set’. Thus, the word ‘legislation’
means ‘making of law’. The term ‘legislation’ has been used in different senses. In its broadest sense, it includes all
methods of law-making. However, in its technical sense, legislation includes every expression of the will of the
legislature, whether making law or not. But in the strict sense of the term, legislation means enacted law or statute
law passed by the supreme or subordinate legislature. Jurists have expressed different views about legislation as a
source of law.

Gray, “Legislation includes formal utterances of the legislative organs of the society.”

TE Holland has interpreted the term ‘legislation’ in its widest sense and observed, “The making of general orders by
our judges is as true legislation as carried on by the crown.”

Blackstone pointed out that the law that has its source in legislation which may be most accurately termed as enacted
law and all other forms may be distinguished as unenacted law. In England, the former is called statute law while the
latter is common law. Blackstone prefers to call them written and unwritten law.

Austin - legislation includes activities which result into law-making or amending, transforming or inserting new
provisions in the existing law. Thus, there can be no law without a Legislative Act.

Salmond observed that legislation is that source of law which consists in the declaration of legal rules by a competent
authority. According to him, the term ‘legislation’ as a source of law is used in three different senses. In its strict sense,
it is that source from where the rules of law declared by competent authority are framed. In its widest sense, legislation
includes all methods of law-making. In this sense, legislation may be either direct or indirect.

Doctrine of Stare Decisis

According to the doctrine of stare decisis (“let the decision stand in its rightful place”), when a point of law has been
once settled by a judicial decision, it forms a precedent which is binding and must be followed.
According to Blackstone, “for it is an established rule to abide by former precedents, where the same points, come
again in litigation as well as to keep the scale of justice even and steady and not liable to waiver with every new
judge’s opinion, as also because the law in that case being solemnly declared and determined, what before was
uncertain, and perhaps indifferent, is now become a permanent rule, which is not in the breast of any subsequent
judge to alter or vary from, according to his private sentiment...”
The operation of the doctrine depends upon the hierarchy of the courts. A court is bound by the decisions of a court
above itself in the hierarchy.

Kinds of Legislation
Supreme Legislation It proceeds from supreme power of state, which is incapable of being repealed, annulled or
controlled by any other legislative authority. In England, the British Parliament is Supreme in every sense. However,
in India, the Parliament is not supreme because its laws can be questioned in the court of law, which may declare
them ultra vires.

Subordinate Legislation It proceeds from any authority other than the sovereign power, and it therefore depends for
its continued existence and validity on superior authority.

Kinds of Subordinate Legislation

• Colonial Legislation The British colonies and other dependencies were conferred limited power of self-
government in varying degrees by the imperial legislature. The colonies in exercise of this power, enjoyed limited
power of law-making.
• Executive Legislation The Parliament delegates its rule-making power to certain departments of the executive
organ of the government. The rules made in pursuance of this delegated power have the force of law.
• Judicial Legislation In some cases, legislative power of rule-making is delegated to the judiciary and the superior
courts are authorized to make rules for regulation of their own procedure in exercise of this power. It is also called
‘judicial legislation’ and it should not be confused with judicial precedents.
• Municipal Legislation The municipal authorities are allowed within their areas to make bye-laws for limited
purposes such as water-tax, land urban cess, property-tax, town planning, public health, sanitation etc.
• Autonomous Legislation The state may sometimes allow private entities or bodies, like universities,
corporations, companies etc. to make bye-laws for regulating the conduct of their business. These bye-laws are
framed in exercise of the rule-making power conferred on these bodies by the state. For example, Railways have
their own rules for the conduct of their business.
 Lecture - 03
Schools of Jurisprudence
The important schools of jurisprudence are as follows

Historical School
In historical school, there is a basic presumption that there is a link between society and law. The law evolves
according to the needs of society. The societal necessities are specific for particular society and therefore, accordingly
the behavior of society is also specific to that particular society.

Chief Exponent- Savigny

Savigny’s Contribution
• Law grows with a nation, increases with it and dies at its dissolution.
• Law, language, custom and government have no separate existence.
• Custom precedes legislation and is superior to, it should conform to the consciousness of people.
• Law is not of universal application and varies with people and ages.
• Lawyers are voices of popular consciousness and their functions are to mold law.
• Instead of the individual, emphasis was laid on the spirit of people.

Analytical School
 The analytical school considers the most important aspect of law to be its relation to the State. It takes the law as
given by the State, whose authority is unquestionable. As such it is known as imperative school.
 Focus on analysis of principles of law as they exist in the legal system, hence, also called positive school.
 Also known as Austinian School as founded by Austin.
 Bentham and Austin are considered to be the founders of the analytical or positive school. Though, generally
Austin is said to be ‘Father of analytical school’
 Strict distinction between positive law and ideal law
 Positive law is a general rule of conduct laid down by a political superior to a political inferior.
 Analytical school has taken into account the legal sources like legislation, judicial precedent and customary law
and has investigated the claim of each of these sources from which law flows. This school also analysed the
concept of legal rights and legal liability, both civil and criminal.

Contribution of Austin
Austin made a distinction between ‘law properly so called’ and ‘law improperly so called.’
According to him. “Law is the general command of the sovereign backed by sanction.”

Types of law as per Austin are as follows

• Law set by God or Divine Law
• Positive law set by men to men, acting as political superior or in pursuance of rights conferred by political superior.
• ‘Laws improperly so called’ are those laws which are not set by political superiors, but which are laws by analogy.

There are five elements of his definition of positive law expressed as (I) wish, (ii) sanctions, (iii) expression of wish,
(iv) generality and (v) a sovereign.

Types of commands according to Austin are as follows

• General - generally to members of a class.
• Occasional/Particular - A specific act or forbearance.

Bentham argues that commands are merely one of five methods by which the sovereign enacts law. In developing
his theory of structure of law, he distinguishes between law which command or prohibit certain conduct and those
which permit certain conduct. Regarding laws in general, Bentham is concerned with distinction between penal and
civil laws.

Philosophical School
- This school is an offshoot of Historical School in Germany. Friedman calls it ‘Philosophical Historicism’. This
school is primarily concerned with the relation of law to certain ideals. The aim of the school is to go into the
purpose of law.
- The philosophical jurists regarded law neither as a command nor as something emanating from historical
necessity, but as a product of reason.
- It is essentially concerned with the relation between law and justice, the distinction between law and morality and
their contribution to the ends of justice, the maintenance of justice in a society and fundamental legal concepts
and principles which have ethical significance.
- The aim and purpose of this school and the science of ethics is basically the same, namely perfection of human
personality.
- Salmond- Philosophical jurisprudence is the common ground of moral and legal philosophy of ethics and
jurisprudence. This school concentrates its attention on the purpose of law and the need for coercive regulation
of human conduct by legal rules. Law is the means by which the individual requirement is subordinated to that of
the society at large.

The Sociological School

- The fundamental postulate of the sociological school is that we cannot understand what a thing is unless we study
what it does, for example, Law in action.
- Law is a process of balancing conflicting interests and securing the satisfaction of the maximum of wants with the
minimum of friction.
- Roscoe Pound, Sociological jurisprudence should ensure that the making, interpretation and application of laws
takes account of social facts. In order to achieve this end, there should be
• A factual study of the social facts of legal administration.
• Social investigations as preliminaries to legislation.
• A constant study of means for making laws more effective.
• Study both psychological and philosophical methods of jurisprudence.
• Sociological study of legal history.
• Allowance for the possibility of a just and reasonable solution.
• Administration of justice in English speaking countries.
• The achievements of the purpose of the various laws.
- Roscoe Pound, jurisprudence is the science of social engineering. This brings a balance in conflicting interests in
society. In order to assess the word social engineering, he classified various interests that are to be protected by
law, which are as follows
• Individual Interest- These are claims or demands or desires involved in and looked at from the standpoint of
individual life. They are concerned with personality and domestic relation
• Public Interest- Interest of the State as a juristic person includes, integrity, freedom of action and honor of
State personality, claim of politically organized society as a corporation to property acquired and held for
corporate purposes.
• Social Interest It includes general security, security of social institutions, general morals, conservation of
resources and individual life.

Important Pioneers of Sociological Thought

Some of the important pioneers of sociological thoughts are as follows

Auguste Comte
• First used the term ‘Sociology’.
• Founder of ‘Science of Sociology’.
• ‘Organic Theory’ Society is like an organism.

Durkheim
• Made a distinction between two kinds of needs in the society namely, common needs and individual needs.
• Division of labor.
• Theory of ‘social solidarity’

Duguit
• No distinction between private and public law.
• No private rights- ‘The only right which any man can possess is the right always to do his duty’.
• State sovereignty declines.
• Decentralization increases, syndicalism increases.

Ehrlich
• Law is to be found in social facts and not in formal sources of law.
 • Facts of law-(a) Usage. (b) Domination, (c) Possession.
• Centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decisions,
but in society itself.

Realist School
- Law never is, but is always about to be. This school further states that law is studied for its social effects. Special
stress was given upon the legal decisions.
- Realist school is less concerned with the ends of law, it concentrates upon the study of law as it is in actual
working and its effects.
- Homes and Gray- Exponents of Realist School.
- Homes, “Law is the prophecies of what the courts will do in fact and nothing more, pretentions are what we mean
by the law.” He says that, study of laws on a national system is based on history. The theory is the most important
part of the dogma of law. There is a need for a legal theory.
- Jerome Frank, “Certainty of law is a legal myth. Judges should not stick to principles and precedents. they should
evolve law case by case.”

Natural School
Some of the important exponents of Natural School are as follows

Grotius
- Social Contract Theory
- Duty of the sovereign to safeguard citizens because the former was given power only for that purpose.
- The sovereign is bound by ‘natural law.’

Hobbes
- Social Contact
- Before that man lived in chaotic state of fear and selfishness.
- Idea of self preservation and avoidance of misery and pain induced him to enter into a contract and surrender his
freedom and power to some authority.
- Hobbes is the supporter of absolutism.
- Subject has no rights against the sovereign and the latter, in no case can be disobeyed.

Locke
The state of nature was a golden age, only the property was insecure. It was for the purpose of protection of property
that men entered into the ‘social contract’. Man, under this contract, did not surrender all his rights but only a part of
them, namely, to maintain order and to enforce the law of nature. His natural rights as the right to life, liberty and
property, he retained with himself. The purpose of government and law is to uphold and protect natural rights.

Rousseau
- Social contract is not a historical fact, but a hypothetical construction of reason. Before this contract. the man was
happy and free and there was equality among men. By the ‘social contract’ men united for the preservation of
their rights of freedom and equality.
- Men surrendered rights to community, and not to single sovereign, called general will
- It is the duty of every individual to obey the ‘general will’ because in doing so, he directly obeys his own will.
- The existence of the State is for the protection of freedom and equality.
- The State and the laws made by it both are subject to ‘general will’ which creates the State.
 Lecture - 04
Meaning of Rights
- In general terms, right means claims or titles, liberties, powers and immunities summed together. In other sense,
it is a permissible action within a certain sphere.
- Word ‘Right’ has been derived from the Latin term ‘rectus’ which means ‘correct’.
- Salmond “Right is a man’s capacity of influencing the acts of another, not by his own strength, hut of the opinion
on the force of society.”
- Julious Stone- a ‘right connotes three things, namely
• A claim justifiable in words.
• An attitude of human beings by vinue of some supposed ideal or natural right of life, equality, property which
is in accordance with natural law.
• The existence of right presupposes existence of a remedy for its breach, which has been explained by the
Latin maxim ‘ubi jus ibi remedium’.

Meaning of Duties
- A duty is an obligatory act, i.e. it is an act, the opposite of which would be considered wrong. Thus, duties and
wrongs are generally correlated. The commission of a wrong is the breach of duty and the performance of a duty
is avoidance of wrong.
- Keeton “A duty is an act or forbearance compelled by the State in respect of a right vested in another and the
breach of which is wrong.
- Duties can be classified as
• Moral and
• Legal.
A duty may be moral but not legal or it may be legal but not moral or it may be both moral and legal. The law enforces
the performance of a legal duty or punishes the disregard of it.

Classification of Legal Duties Primary and Secondary Duties

- A primary duty is one which exists per se and is independent of any other duty. For example, to avoid causing
personal injury to another person is a primary duty.
- Whereas secondary duty is one which has no independent existence and exists only for the enforcement of other
duties. For example, a duty to pay damages for causing the injury to a person, is a secondary duty. A secondary
duty is also called a remedial or sanctioning duty.
Absolute and Relative Duties
- Hibbert- there are two types of duties, absolute and relative duties. Absolute duties are owed only to the State,
breach of which is generally called a crime and the remedy for it is punishment. Whereas, relative duties are owed
to any person other than the one who is imposing them, the breach of which is called a civil injury, which is
redressible by compensation or restitution to the injured party.
- Austin says certain duties are absolute, i.e. they do not have a corresponding right. For example, duty towards
God or State or a duty not to commit suicide is absolute. A duty of kindness towards animals is also an absolute
duty.
Positive and Negative Duties
- A duty may be either positive or negative. When a law obliges a person to do an act, the duty is called positive.
When the law obliges a person to refrain from doing an act, it is a negative duty. For example, if a person owes
a debt to another, he is under a duty to pay off the amount. This is his positive duty. The performance of a positive
duty extinguishes both right and duty. Example of a negative duty is that, if a person has a right to a house, other
people are under a corresponding duty to not to interfere with that person’s exclusive use of the house. Thus, a
negative duty is not capable of being extinguished by fulfillment.
Legal Rights
- Salmond- right is defined as, “An interest recognised and protected by a rule or justice. It is an interest in respect
of which there is a duty and the disregard of which is wrong.” Many interests exist de facto and not de jure; they
receive no recognition or protection from any rule of right. In case of their violation there is no wrong and respect
for them is no duty.
- John Austin legal right is defined as, “A party has a right when another or others are bound or obliged by law to
do or forbear towards or in regard of him”. This definition has been criticised on the ground that it overlooks the
element of interest involved in conception of right.
- John Stuart Mill has pointed out the “lacunae'' in Austin's definition of right by an example. When a prisoner is
sentenced to death the jailor is duty bound to execute him. Then will it be proper to say (according to Austin) that
the convict has a right to be hanged.”
- TE Holland defined legal rights as, “A capacity residing in one man of controlling with the assent and assistance
of the State the actions of others”. He laid emphasis on the element of enforcement of legal rights while Salmond
laid greater emphasis on recognition of right. Ihering defined right as a ‘Legally protected interest’. He considers
law as a means to an end.
- Vinogradoff observed that, “Right is a range of action assigned to a particular will within the social order
established by law, a right, therefore supposes a potential exercise of power in regard to things or persons, when
a man claims something as his right, he claims it as his own or as due to him.”
- JC Gray “It is the force of the State which lends validity to a legal right”. According to him, “a legal right is that
power which a man has to make a person or persons do or refrain from doing a certain act or certain acts, so far
as the power arises from society imposing a legal duty upon a person or persons.”
- Duguit is against the view that the basis of a legal right is human will. He argues that all laws originate from social
solidarity hence there is no existence of a right as such. Duguit believes that human will is opposed to social good
because it always leads to conflict of interests between individuals. So there is no place for the concept of right
in society. He rejects the concept of right as immoral and against the interest of the society.
Theories of Legal Rights
Primarily, there are three main theories regarding the nature of legal rights. They are as follows
Will Theory
- Hegel, Kant, Hume and others supported the will theory of legal rights.
- According to this theory, a right is an inherent attribute of the human will. This theory further suggests that it is
through a right that a man expresses his will over an object. The theory has also been accepted and supported
by the German historical jurists.
- Puchta, “A legal right is a power over an object which by means of his right can be subjected to the will of the
person enjoying the right.”
- Austin, right of a person means that others are obliged to do or forbear from doing something in relation to him.
Austin’s concept of right is based on sovereign power of the State. According to him duty is an obligation the
breach of which is punishable because of the penal sanction attached with it.
- Duguit, will is not an essential element of a legal right or law. The real basis of law is solidarity.
Interest Theory
Interest theory of legal right was propounded by the German jurist Ihering. According to this theory, “a legal right is a
legally protected interest.”
Ihering does not emphasize the element of will in a legal right. He said the basis of legal right is ‘interest’ and not will.
The primary aim of law is protection of human interests and to avert a conflict between their individual interests.
- Salmond criticized Ihering’s theory on the ground that it is incomplete as it completely overlooks the element
of recognition by the State. A legal right should not only be protected by the State, but should also be legally
recognised by it.
- JC Gray supported Salmond’s view about legal rights. He says that interest theory was only partly true. He
emphasized that a legal right is not an interest in itself but it is only a means to extend protection to interests.
According to him, legal right is that power by which a man makes other persons do or refrain from doing a certain
act by imposing a legal duty upon them through the agency of law (State).
Protection Theory
This theory completely denies the existence of legal rights. They argue that the State, being omnipotent, has no
separate existence from it. In fact all rights belong to the State and the individuals do not have any independent legal
rights as such. However, this view has been rejected as being far from reality in the modern context of democratic
welfare States.
Essential Elements of a Legal Rights
Salmond categorized five important elements or characteristics of every legal right, which are as follows
A legal right is always vested in a person who may be distinguished as the owner of the right, the subject of it or the
person of inherence. So there cannot be a legal right without a subject or a person who owns it. The owner of the
right need not be certain or determinate. For example, an unborn child possesses a legal right although it is not certain
whether he would be born alive or not.
• The Person of Incidence- A legal right avails against a person upon whom lies the co-relative duty. He is
distinguished as the ‘person of incidence’. He is a person bound by the duty and so may be described as ‘subject
of the duty’. In other words, the person whose duty is to act or forbear for the benefit of the subject of the right.
• Content of the Right -The act or omission which is obligatory on the person bound in favour of the person entitled.
This is called the content or substance of right.
• Subject-matter of Right- It is something to which the act or omission relates, i.e. the object over which a right is
exercised. This may be called the object or subject-matter of the right.
• Title of the Right -Every legal right has a title, i.e. certain facts or events which are events by reason of which the
right has become vested in its owner.
Classification of Legal Rights
Various jurists have classified legal rights in different ways. Rights may be classified as follows
• Positive and Negative Rights Positive and negative rights can be clearly understood through following points
(a) A positive right corresponds to a positive duty, whereas a negative right corresponds to a negative duty.
(b) A positive right involves a positive act while a negative right involves some kind of forbearance or not doing.
(c) A positive right entitles the owner of it to an alteration of the present position to his advantage. whereas a
negative right seeks to maintain the present position of things.
(d) A positive right aims at some positive benefits but a negative right aims at not to be harmed.
(e) A positive right requires an active involvement of others but a negative right requires only passive
acquiescence of other persons.
(f) A positive right has a mediate and indirect relation to the object while a negative right is immediately related
to the object.
• Perfect and Imperfect Rights Salmond, states that a perfect right is one which corresponds to a perfect duty.
It is not only recognised by law but also enforced by it.. An imperfect right, on the other hand, is one which though
recognised, is not enforceable by law. A perfect right is one in respect of which an action can be brought in a
court of law and the decree of the court, if necessary. enforced against the defaulting judgment debtor. But an
imperfect right is incapable of legal enforcement.
• Right in Rem or in Personam A real right (right in rem) corresponds to a duty imposed upon persons in general
whereas a personal right (right in personam) corresponds to a duty imposed upon determinate individuals.
In other words, a real right is available against the world at large while a personal right is available against a
particular person or persons. It is important to note that almost all real rights are negative and most of the personal
rights are positive, though, in a few exceptional cases a personal right may also be negative.
• Antecedent and Remedial Rights An antecedent right is one which exists irrespective of any wrong having been
committed. It is an exceptional advantage granted to the person who is clothed with this right.
For example, purchaser of certain goods has an antecedent right over the goods so purchased. However, a right
which accrues when an antecedent right is violated is called a remedial right e.g. compensation. Antecedent right
may be either a right in rem or right in personam.
• Proprietary and Personal Rights The rights of a person concerning his property are called proprietary rights.
The rights in regard to a person’s status are called personal rights. Thus, a person’s proprietary rights constitute
his estate, his assets. A person has proprietary rights in his house, car, land etc. Proprietary rights are those
which have an economic significance or value while rights of status on the other hand, are personal rights as no
primary value can be set upon them.
• Rights in Re Propria and Rights in Re Aliena Literal meaning of right in re propria is right over one’s own
property and right in re aliena means right over the property of someone else. The latter may also be called as
encumbrances using the term in its widest sense.
• Principal and Accessory Rights A principal right is the main or primary right vested in a person. A
supplementary right is one which is appurtenant to principal right and called the accessory right. Thus, accessory
right is a supplementary right which is added to or arises out of the principal rights.
• Legal and Equitable Rights In England, there were formerly two systems of law. One system of law was
administered by common law and rights which were recognised by the courts of common law were known as
legal rights. The other system of law was administered by the Court of Chancery and rights recognised by this
court were known as Equitable rights.
• Vested and Contingent Rights A vested right accrues when all the facts have occurred which must by law occur
in order that a person in question would have the right. In case of contingent right, only some of the events
necessary to vest the right in the contingent owner have happened. A vested right creates an immediate interest.
It is transferable and heritable. A contingent right does not create an immediate interest and it can be defeated
when the required facts have not occurred.
 Lecture - 05
Law, Morality and Important Concepts
Law and morality are often considered as unrelated fields. However, let's understand the interplay of both law and
morality.

Morality
- Ethics or morals is the study of what we ought to do, which means what is the right way to act and what is wrong
in the eyes of law.
- There are basically three concepts in morality, namely, a moral identity, moral standards with regard to behavior
and moral responsibility which refers to our conscience.
- The primary aim of morality is to ensure the uprightness of individual conscience.
- Individual morality refers to individuals in relation to themselves and to an individual code of morality which may
or may not be recognised by any particular society or religion.
- Social morality is concerned with the relationship of one human being with the other human beings. It is the most
important aspect of morality.

Views on the Concept of Law and Morality

Vinogradoff, “Law is clearly distinguishable from morality. The object of law is the submission of the individual to the
will of organized society while the tendency of morality is to subject the individual to the dictates of his own conscience.

Pollock, “Though much ground is common to both, the subject-matter of law and ethics is not the same. The field of
legal rules of conduct does not coincide with that of moral rules and is not included in it and purposes for which they
exist are different.”

Duguit, “Law has its basis in social conduct. Morals have an intrinsic value of conduct. Hence, it is vain to talk about
law and morals. The legal criterion is not an ethical criterion.”

Paton, “Since law exists to harmonize the purpose of individuals, law itself strives towards justice.”

Pound, “Law and morals have a common origin, but they diverge in their development.”

Bentham, “In a word, law has just the same center as morals, but it has by no means the same circumference.”

Relation between Law and Morality

The relationship between law and morals depends on how a jurist defines law. Historical, analytical, sociological and
philosophical jurists have defined the law according to their understanding and these definitions materially differ from
each other.

A study of the relationships between law and morality can be made from three angles, namely
• Morals as the basis of law.
• Morals as the test of ‘positive’ law.
• Morals as the end of law.

Morality Distinguishes between right and wrong in behavior of humans. Law ensures justice, peace and freedom in
the community. Unless and until there is a right relationship between law and morality, the existence of human
civilization is not possible.

Law is an enactment made by a sovereign State which is backed by physical coercion and its breach is punishable
by the courts of law’. These enactments represent the will of the State and realises its purpose. Law is also the
reflection of political, social and economic relationships existing in the society which determines the rights and duties
of every citizen towards one another and towards the State. Law and morality are intimately related to each other.
Laws are based on the moral principles of society. Both law and morality help in regulating the conduct of the individual
in society. In order to make laws effective, they must represent the moral ideas of the people. Good laws help in
rousing the moral conscience of the people and create and maintain such conditions which encourage the growth of
morality. The obedience to law also depends on the active support of the moral sentiments of the citizens. Laws which
are not supported by the moral conscience of the people are liable to become null and void.
Green, “In attempting to enforce an unpopular law, a government may be doing more harm than good by creating
and spreading the habit of disobedience to law. The total cost of such an attempt may well be greater than the social
gain.”

Distinction between Law and Morality by Arndt

• In law, a man is considered as a person because he has a free will. In morals, we have to do with determining
the will towards the good.
• Law has to do with acts in so far as they operate externally. Morals look into the intention-the inner determination
and direction of the will.
• Law governs the will so far as it may be external coercion, whereas morals seek a free self-determination towards
the good.
• Law considers man only as long as he lives in the community with others. Morals give a guide to lead him even
if he is alone.
 Lecture - 06
Legal Personality
The word ‘person’ is derived from the Latin word ‘persona’ A person is generally defined as being a subject or bearer
of a right.

There are two types of person which the law recognises, namely, natural and artificial. The former refers to human
beings while latter to other than human beings which the law recognised as having duties and rights. One of the most
recognised artificial person is corporations.

Definitions of Legal Person

Paton, “Legal personality is a medium through which some units are created in whom rights can be vested.”
Salmond, “Any being to whom the law regards as capable of rights or duties. Any being that is so capable, is a person
whether human being or not and nothing that is not so capable is a person even though he is a man.”
Gray. “Entity to which rights and duties may be attributed”. Any being that is capable of holding a right or duty, whether
it be a human being or not, is a person in law.

Juristic Person:
Juristic persons may be defined as things, mass of property or an institution upon whom the law confers a legal status
and who in the eyes of law possess rights, liabilities and duties as a natural person. A person may be a legal person
without being a human being.

Nature of Corporate Personality

A corporation is an artificial person enjoying in law, a capacity to have rights and duties and holding property. The
individuals forming the corpus of the corporation are called its members.
It requires fulfillment of following conditions:
i) Firstly, there must be a group or body of human beings associated for a certain purpose.
ii) Secondly, there must be organs through which the corporations functions and
iii) Thirdly, the corporation is attributed will (animus) by legal fiction.

Characteristics of an Artificial Person

Artificial person differs from those of a group of natural persons or from a single natural person because of:
- Perpetual Existence
- Can sue and be sued
- Enter into contract in its own name
- Capable of holding assets and bearing liability
- Death by Procedure of Law
- Can appoint agents

Corporate Personality in India:

The Union of India and the States have also been recognised as corporate entities under Article 300 of the Constitution
of India. The Ministers of the Union or State Governments are not legal or constitutional entities and therefore, they
are not corporation sole.

The reason being that they are appointed by the President or the Governors and are ‘officers’ within the meaning of
Articles 53 and 154 of the Constitution. They are not personally liable for their acts or omissions nor are they directly
liable in a court of law for their official acts. The Reserve Bank of India has a corporate existence because it is an
incorporated body having an independent existence.

Types of Corporation
There are two types of corporation, namely, corporation sole and corporation aggregate.

Corporation Sole
A corporation sole is some recognised official person that is filled by one human person who is replaced from time to
time. The main purpose of the corporation is to ensure continuity of an office.

Corporation Aggregate
A corporation aggregate consists of a number of human persons. It has an existence, independent of the existence
of its members.

Salmond, “A corporation aggregate is an incorporated group of co-existing persons and corporation sole is an
incorporated series of successive persons.”

Advantages of Corporation
According to Keeton, the advantages are as follows
- Simplified legal procedure
- Limited Liability of Shareholders
- Perpetual and continuous existence
- Dispose and own property in its own name.

Liability of Corporation
A company incorporated by special statute is limited to the powers conferred by the statute and those which are
reasonably incidental thereto. The purpose and objectives of a company registered under the Companies Act, 1956
are contained in its Memorandum of Association and the company cannot go beyond the limits laid down for its
activities.

Civil Liability
A corporation cannot personally commit a tort. It is an artificial person having no brain and body of its own. It may,
however, be held liable for the wrongful acts committed by its agents or servants during the course of their
employment. This liability is based on the principle of vicarious liability. The company is therefore liable for the torts
of its employees and agents just as a master is held liable for the wrongful and negligent acts of his servants. The
corporation is not liable for unauthorized acts of the servant, employee or agent.

Criminal Liability
A corporation cannot be held criminally liable for the criminal acts of its employees on the principle of vicarious liability.

Salmond, “To punish a body corporate, either criminally or by the enforcement of penal redress, is in reality to punish
the beneficiaries on whose behalf its property is held for the acts of the agents by whom it fulfils its functions.” Due to
this reason, criminal liability of corporations is of exceptional nature.
However, now a corporation may incur criminal liability in cases involving malice, fraud or other wrongful motives.

Maitland -a corporation has a real existence and therefore, has its own will which is different from the will of its
members. Relying on the realist theory of corporate personality, he attributes criminal liability on corporations for
malicious prosecution or libel or fraud.

Theories of Corporate Personality

There are five theories of corporate personality, they are as follows

1. Fiction Theory
- Exponent- Salmond, Savigny, Coke, Blackstone and Holland.
- a corporation is clothed with a legal personality. The personality of a corporation is different from that of its
members.
- Savigny regarded corporations as an exclusive creation of law having no existence apart from its individual
members who form the corporate group and whose acts by fiction, are attributed to the corporate entity. Savigny
further pointed out that there is a double fiction in case of a corporation. By one fiction, the corporation is given a
legal entity, by another it is clothed with the will of an individual. Thus, the fictitious personality of a corporation
also has a will of its own which is different from that of its members.

- Kelson, ‘it. is a convenient peg upon which to hang legal rights and duties. Thus, a group of persons or a
successive series of persons is a legal person because it has an imaginary personality by the fiction of law.”

- Salmond also supports the view that a corporation has a fictitious existence. It is distinct from its members and
capable of surviving even after all the members have ceased to exist. A company incorporated by an Act of
Parliament can only be dissolved by another such Act.
- Gray justifies fiction theory on the ground that the main object of corporation is to protect the interest of persons
having common objectives. Like a fictitious personality, the will of the corporation is also an imaginary creation of
law.

2. Realist Theory
- Founded by Johannes Aithusius and propounded by Gierke who believed that every collective group has a real
mind, a real will and a real power of action.
- A corporation has a real existence, irrespective of the fact whether it is recognised by the State or not. -The
corporate will of the corporation finds expression through the acts of its directors, employees or agents.
- The existence of a corporation is real and not based on any fiction.
- Law has nó power to create an entity but merely has a right to recognise or not to recognise an entity.
- The main difference between fiction theory and realist theory lies in the fact that the former denies that corporate
personality has any existence beyond what the State chooses to give it, the latter holds that a corporation is a
representation of physical realities which the law recognises.

3. Bracket Theory
- Also called Symbolist Theory.
- Proponent- Ihering
- Juristic personality is only a symbol to facilitate the working of the corporate bodies. Only the members of the
corporation (human beings) are ‘persons’ in real sense and a bracket is put around them to indicate that they are
to be treated as one single unit when they form themselves into a corporation.

- Hohfeld- Corporate personality is the creation of arbitrary legal rules designed to facilitate proceedings by and
against an incorporated body in law court.
- Similar to Lifting of Corporate Veil.
- Only human beings are persons and juristic personality is mere creation of arbitrary rules of procedure.
- Criticized on the grounds of not stating when the bracket needs to be removed and the corporate mask must be
lifted.

4. Concession Theory
- Juristic personality is a concession granted to corporations by the State. It is entirely at the discretion of the State
to recognise or not to recognise a juristic person.
- Resemble Fiction Theory but is not similar to it as it recognizes discretionary power of state.
- Criticized because of over emphasis on state’s discretion

5. Purpose Theory
- Proponent- Brinz. Barker and Supporter- E Belcher, Aloys and Demilius
- Corporations are treated as persons for certain specific purposes.
 Lecture - 07
Property and Ownership
Concept of Property
The term property may be described as the sum-total of a man’s fortune which includes not only the objects of which
he is the owner, but also the value of any claims which he may have against other persons. In a limited sense, property
covers only a person’s proprietary rights as opposed to his personal rights.

According to Salmond, “The substantive civil law can be divided into three major sections, namely, the law of property.
the law of obligations and the law of status. The first deals with the proprietary rights in rem, the second with proprietary
rights in personam and the third deals with personal or non-proprietary rights, whether in rem or in personam.”

The term ‘property’ also includes goodwill of a business, which is an intangible asset. It includes not only immovable
and movable objects, but also patents, copyrights, shares, claims etc. According to Salmond, ownership of corporeal
property is a general, permanent and inheritable right of the user of a thing.

Theories of Property
Natural Law Theory
According to this theory, property was first acquired by occupation of an ownerless object as a result of individual
labor.
Blackstone, Locke, Pufendrof, Kant and Grotius supported this theory.
Sir Henry Maine and Bentham criticized the natural law theory of property.
Maine, “It is erroneous to think that possession gives rise to title for there is no reasonable ground to support this
contention.”
Bentham “Property has not originated by first occupation of an ownerless thing, but it is a creation of law. He does
not believe in the existence of property without the existence of law.”

Labor Theory
According to this theory, property can be claimed on the exclusive basis of one’s work, which produced that property.
This theory recognises the role of labor for adequate rewards. When a person acquires property, he or she is entitled
to hold it exclusively.This theory further states that, a thing (res) is the property of the person who produces it or brings
it into existence.

Marxist Theory:
The Marxist theory of property is based on predominance of labor in the economy of a country, however, this theory
is not significant in modern times because it has been proved many times that property can be acquired without labor
e.g. inherited property or under a will.

Labor Theory:
The labor theory of property is also called the positive theory which was propounded by Spencer who founded it on
the fundamental law of equal freedom of individual.. He asserted that property is the outcome of individual labor, so
no one has a moral right to property which he has not acquired by his personal labor.

Metaphysical Theory
Hegel and Kant were the chief exponents of this theory.
Hegel, “Property is the objective manifestation of the personality of an individual.” It means, property is the object on
which a person has the liberty to direct his will. Kant also justified the existence of property and need for its protection.
Kant, “The law of property does not merely seek to protect possession where there is an actual physical relation
between the possessor and the object, but it goes beyond it and considers personal will of the individual more
important in the concept of property.”

Historical Theory
Henry Maine was the main supporter of the historical theory of the origin of property.
Henry Maine- property originally did not belong to individuals, not even to isolated families, but to large societies
composed on the patriarchal pattern.
Roscoe Pound, “the earliest form of property was group property which later disintegrated into family property and
finally the concept of individual property came into existence.”
Psychological Theory
Bentham has supported psychological theory of property and has observed that property is altogether a conception
of mind. It is nothing more than an expectation to derive certain advantages from the object according to one’s
capacity. According to this theory, “property came into existence on account of the acquisitive tendency of human
beings.”

Functional Theory
Roscoe Pound, “Interests of personality like security of one’s physical being, privacy, honor, reputation. etc, can be
realized only through some access to property.” Interests of subsistence include right to property, economic
advantages, freedom of association and availability of employment-opportunities.
Jenks, “The concept of property should only be confined to private rights, but it should be considered as a social
institution securing maximum interests of the society.”

Kinds of Property
Things which classify as property are of two kind:
i) Corporeal- Corporeal property is the right of ownership in material things. It is always visible and tangible.
These are further classified into Moveable and Immovable Property.
ii) Incorporeal- incorporeal property is any other proprietary right in rem, e.g. patent right, right of way. It is not visible
and tangible. These are further classified into Jura in re propria and Jura in re aliena.

Rights in Re Propria in Immaterial Things

Proprietary rights are both in relation to material and immaterial things. Material things are physical objects and all
other things which may be subject-matter of a right are immaterial things.

Rights in Re Aliena (Encumbrances)

Rights in re aliena are also called encumbrances, which are the rights of a specific or particular user as distinguished
from ownership which is the right of a general user. Encumbrances prevent the owner from exercising some definite
rights with regard to his property.

Modes of Acquisition of Property Possession

- Possession of things belonging to no one gives a good title to the first acquirer.
- Property in possession of someone who is not the owner is having a good title against everyone except the
owner.

Definitions of Ownership
Hibbert, “Ownership includes within it four kinds of rights, namely, right to use a thing, right to exclude others from
using the thing, disposing of the thing, right to destroy it.”

Austin, “As a right which avails against everyone who is subject to the law conferring the right to put things to users
of indefinite nature” He further states that ownership is a “right indefinite in point of user unrestricted in point of
disposition and unlimited in point of duration.”

Salmond, “Ownership, in its most comprehensive signification, denotes the relation between a person and right that
is vested in him, that which a man owns is in all cases a right.”

Holland, “Ownership is a plenary control over an object.”

Characteristics of Ownership
- Absolute or Unrestricted
- Restricted in time of emergency
- Cannot be injurious to others
- Right of Disposal is restricted
- Right to possess things that he owns
- Ownership continues even after the death and is transferred to heirs
- No ownership right of unborn child
- Residuary right

Acquisition of Ownership
Things may he of two kinds-
i) things over which no one has ownership, they are called res nullius and their ownership can be acquired by
possession.
ii) there are things which are already owned by someone, the ownership over them can be acquired by a derivative
method.

Salmond, ownership can be acquired in two ways, namely, by operation of law and by reason of some act or event.
A person can become the owner of certain property by the operation of law.

Types of Ownership Sole Ownership and Co-Ownership

When the ownership is vested in a single person, it is called ‘sole ownership’. When the ownership is vested in two
or more persons at the same time, it is called ‘co-ownership’.Co-ownership may be of two kinds. namely, ownership
in common and joint ownership.

Corporeal and Incorporeal Ownership

The ownership of material objects is called corporeal ownership and the ownership of a right is called incorporeal
ownership. Corporeal things are tangible whereas incorporeal things are intangible.

Legal and Equitable Ownership

Legal ownership is that which has its origin in the rules of common law whereas equitable ownership proceeds from
the rules of equity. In mans’ cases, equity recognizes ownership where law does not recognise it owing to some legal
flaw or defect.

Trust Ownership and Beneficial Ownership

In trust ownership, a property is owned by two persons at the same time. The relation between them is such that one
of them is under an obligation to use his ownership for the benefit of the other. The former is called the trustee and
his ownership is trust ownership, while the latter is called beneficiary and his ownership is beneficial ownership.

Salmond, “The purpose of trust ownership is to protect the rights and interests of persons who for any reason are
unable to protect them effectively for themselves.”

Vested and Contingent Ownership

In vested ownership the title of the owner is already perfect, while in contingent ownership his title is as yet imperfect,
but it is capable of becoming perfect on the fulfillment of some conditions. In the former, the ownership is absolute, in
the latter, it is conditional.

Duplicate Ownership
Where two or more persons have an interest in the same property, it is Duplicate ownership.

Absolute and Limited Ownership

When all the rights of ownership, i.e. possession, enjoyment and disposal are vested in a person without any
restriction, the ownership is absolute. But when there are restrictions as to user, duration or disposal, the ownership
is known as ‘limited ownership’.
 Lecture - 08
Concept of Possession
Possession is the evidence of ownership. There is a presumption that the possessor of a thing is the owner of it and
the other claimants to have it must prove their title.

Salmond observed that “The concept of possession is as difficult to define as it is essential to protect.” According to
him, it is the most basic relationship between men and things.

Salmond, “The possession of a material object is the continuing exercise of a claim to the exclusive use of it.” Thus
possession involves two things, namely, claim of exclusive user and conscious or actual exercise of this claim i.e.
physical control over it. The former is a mental element called animus possession and the latter is a physical element
known as the ‘corpus possidendi’.

Zachariae, “Possession is a relation between a person and a thing which indicates that the person has an intention
to possess that thing and has the capacity of disposing it of.”

Sir William Markby, possession is defined as “The determination to exercise physical control over a thing on one’s
own behalf coupled with the capacity of doing so.”
Ihering, “The element of animus possidendi is altogether immaterial and cannot serve as a test of legal possession.
The legal possession, therefore, does not depend on the nature of the intention, but the manner or character in which
the claim to possession is made.”
Frederick Pollock, a man is said to be in possession of a thing of which he has the apparent control or from the use
of which he has the apparent power of excluding others.

Types of Possession
Various types of possession are as follows

Corporeal Possession and Incorporeal Possession

Corporeal possession is the possession of material things like land, house, buildings and movables like books etc. In
case of corporeal possession, the corpus consists firstly in confirming exclusion of others interference and secondly,
in the enjoyment of the thing at will without external interference.

Incorporeal possession means possession of immaterial or intangible things which we cannot touch, see or perceive.
For example, possession of a copy-right or a trademark or a right of reputation, goodwill etc.

Mediate and Immediate Possession

Mediate possession is the possession of a thing through another person. It is also known as indirect possession.
Salmond points out three categories of mediate possession,
- possession acquired through an agent or servant,
- possession held through a borrower or hirer to tenant, i.e. the object can be demanded at will,
- where the property is lent for a fixed period of time or delivered as security for the payment of a debt.
Immediate possession is also known as ‘direct possession’. If the relation between the possessor and the thing
possessed is a direct one, it is called immediate possession.

Quasi-Possession
The doctrine of quasi-possession also known as possessio juris extends to control which the person exercises over
certain advantages, short of ownership, which may be derived from objects. E.g- A right of way or passage over
other’s land.

Constructive Possession
Constructive possession means having power and intention of retaining control over property without actual control
or actual presence over it.
Pollock, “Constructive possession is possession in law and not actual possession. It is a right to recover possession.”
Keeton does not recognise this kind of possession because in his view the delivery of key is more than a symbolic
act, witnessing that possession has changed.
Adverse Possession
Adverse possession implies the possession by a person initially holding the land on behalf of some other person and
subsequently setting up his own claim as a true owner of that land. If the adverse possession continues peacefully
undisturbed for a prescribed period, the title of the true owner is extinguished and the person in possession becomes
the true owner of that land.
Three essential elements for establishing adverse possession are,
- continuity,
- adequate publicity and
- peaceful and undisturbed possession for a prescribed period.

Theories of Possession Savigny’s Theory of Possession

Savigny founded this theory of possession on the text of Roman jurist Paul and emphasized that possession has two
basic elements, namely, corpus possessions and animus domini.
Corpus- effective physical control of the thing
Animus- mental element or conscious intention to hold the object (thing) as owner against all others. Savigny
conceived that there can be no possession without this mental element, i.e. animus.

Ihering’s Theory of Possession

Ihering’s theory of possession is more practical and realistic. He adopted a sociological approach in explaining the
concept of possession in his theory . He justified protection of possession under Roman law and said, “Whenever a
person looked like an owner in relation to a thing, he had possession of it, unless possession was denied to him by
rules of law based on practical convenience.”

The element of animus was therefore, merely an intelligent consciousness of the fact of possession. Thus, Ihering
was more practical in approach and did not insist on the presence of animus as an element of possession. He
considered animus only as a supplemental element for possession.

Salmond’s Theory of Possession

Salmond denied that conception of possession infact and possession in law are two different conceptions and said
that there is only one conception, which is possession in fact. He distinguished between possession of physical
objects, which he called ‘corporeal possession ‘ and possession of rights, which he termed as ‘incorporeal possession’

According to him, corporeal possession is “the continuing exercise of claim to the exclusive use of it.” He further stated
that, animus possidendi is the intent to exclude others which is analogous to Savigny’s animus domini.

Kant’s Theory of Possession

Emmanuel Kant, “Men are born free and equal. Freedom of will is the essence of man. Possession is the embodiment
of the will of a man. By taking possession of a thing, a man incorporates his will and hence his personality in that
thing.”
Hegel possession is the objective realization of free-will. The will of an individual thus exhibited in possession is
entitled to respect from every other individual.

Holmes’ Theory of Possession

Holmes, in order to gain possession, a man must stand in a certain physical relation to the object and to the rest of
the world and must have a certain intent. These relations and this intent have been expressed by the term corpus
and animus which are essential ingredients of possession. He supported Savigny's theory of possession and held
that both corpus and animus are necessary to constitute possession.

Holland’s Theory of Possession

Holland- the predominant motive that has induced the law to give protection to possession was probably a concern
for the preservation of peace. Possession connotes respect for the rightful claim of a person.

Pollock‘s Theory of Possession

Frederick Pollock - a general intent to keep a thing under one’s physical control would suffice to constitute
possession. The person in possession of a thing should not only have a physical power over it, but also the ability to
exclude others. But this theory fails in case of possession of a thing by a child who has no physical power to exclude
those who are stronger than him.
Modes of Acquisitions of Possession Taking
Taking means acquisition of possession without the consent of the original owner. It may be either rightful or wrongful.
It is not mandatory that the thing taken in possession must be already in possession of any previous owner. The
taking is original when the object taken has no owner e.g. when a man catches a wild animal or bird etc. When the
possession of a thing which already has a previous owner is taken, it is derivative taking. Derivative taking may be
rightful or wrongful.

Delivery
When a person acquires possession with the consent or co-operation of the previous owner, it is known as acquisition
of possession by delivery. Delivery is of two types-
- actual - Actual delivery is the transfer of immediate possession. It involves transfer of a thing from the hands of
one possessor to another, e.g. sale.
- Constructive- there is no change in the position of immediate possession. There is only transfer of mediate
possession. Constructive delivery is of three kinds-
1. Traditio
2. Symbolica,
3. Traditio Longa
 Lecture - 9
Concept of Liability
Breach of rights of duties imposed on individuals is called wrong and the person who commits wrong is liable towards
the wrong done. It is called liability
Salmond defines liability as a bond of necessity that exists between the wrongdoer and the remedy of the wrong.
Liability is different from obligations
In liability the wrongdoer is under a duty to redress the person wronged.
According to Austin, liability consists in those things which a wrongdoer must do or suffer, It is the ultimatum of law
and has its source in the supreme will of the State. Austin prefers to call liability as imputability’.
Liability arises from a breach of duty which may be in the form of an act or omission.

Distinction between Civil and Criminal Liability

Civil liability consists in enforcement of the right of the plaintiff against the defendant in civil proceedings whereas in
the case of penal or criminal liability, the purpose of law is to punish the offender or wrongdoer. Civil liability may
either be remedial or penal, but criminal liability is necessarily penal.

The nature of liability depends upon the nature of wrongs committed by the person
Salmond, “The distinction between criminal and civil wrong is based not on any difference in the nature of the right
infringed, but on a difference in the nature of remedy applied.” The important differences between civil and criminal
liability are as follows
• Civil liability entails damages but criminal liability results in punishment.
• In case of civil liability, it is the act and not the intention which is taken into consideration, but in case of criminal
liability it is the mens rea which is the deciding factor.
• Civil liability comes into picture when a wrong is against a private individual, but criminal liability arises in case of
an offense which is a wrong against the society.
• The civil liability in case of a civil wrong is determined by civil proceedings in a civil court, but criminal liability is
imposed by criminal proceedings instituted by the State against the offender.

Remedial and Penal Liability

Remedial Liability involves the idea of punishment and the penal liability consists of specific enforcement of the
plaintiff’s right without any element of punishment in it.

Remedial Liability
The basis of remedial liability is to be found in the maxim ‘ubi jus ihi remedium’ which means where there is a right
there must be a remedy. When law creates a duty, it ensures its fulfillment also. Where there is a breach of duty,
there must be some remedy prescribed by law and enforced by law. The purpose of remedial liability is to ensure the
specific enforcement of plaintiff rights. It aims at protecting the rights of the plaintiff’s rather than punishing the
wrongdoer.
According to the theory of remedial liability, whenever law creates a duty it should enforce the fulfillment of such duty.
The law imposes remedial liability on one who fails to perform such duty.

Penal Liability
The primary aim of penal liability is either directly or indirectly, to punish a wrongdoer. The basic principle underlying
penal liability is contained in the maxim ‘actus non facit reum, nisi mens sit rea,’ which means that ‘act alone does not
amount to crime’, unless it is accompanied by a guilty mind’. So, two elements , i.e. act and a guilty mind are essential
requirements to constitute a crime. No person can be punished merely because his act resulted in some crime unless
it was accompanied by mens rea or guilty mind.

Measure of Liability
Primarily the liability is of two types, namely, criminal liability and civil liability.

Criminal Liability
The measure of criminal liability is mainly based on three major considerations, namely , motive for commission of
the offense, the magnitude of the offense and the character of the offender.
Motive of the Offense
• There may be cases when improper motive may make an act illegal though it is otherwise a legal act.
• On the other hand , first offenders, juveniles and persons who have committed an offense under compelling
circumstances may be leniently dealt with and lesser punishment may serve a useful purpose in their cases.
For example, when a person is compelled to steal in order to feed his starving children, the law generally considers
such temptation to be an extenuating circumstance for inflicting the punishment.

Magnitude of the Offense

• Punishment varies with evil consequences and gravity of offense.
• According to Salmond, greater the mischief of the offense , a proportionately greater punishment is inflicted so
as to prevent its recurrence.

Character of the Offender

• Salmond, “Worse the character or disposition of offenders, the severe is his punishment.” Due to this reason, the
habitual offenders are generally punished more severely than the first offenders.
• Character and Antecedent also plays a role in deciding the punishment

Civil Liability
• The purpose of civil liability is to award compensation to the injured party. The quantum of damages depends on
the actual loss suffered by the plaintiff. It is important to note that neither the character nor motive of the defendant
are relevant in determining the liability in civil cases.
• Civil liability may arise either from breach of a contract or from ‘wrongs independent of a contract’.
• The damages which are immediate consequences of the wrong are called ‘direct’ or ‘general’ damages while
damages in respect of remote consequences of the wrongful act are known as ‘indirect’ or ‘special damages’.