AL-AMEEN COLLEGE OF LAW

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MODEL ANSWERS DECEMBER -2017

III SEMESTER 3 YEARS LL.B./ VII SEMESTER 5 YEARS B.A. LL.B.

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SUBJECT: JURISPRUDENCE

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Duration: 3 Hours Max. Marks: 100

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Instructions:1. Answer Question No.9 and any 5 of the remaining questions.
2. Question No 9 carries 20 Marks and remaining questions carry 16

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marks each.
3. Answer should be written either in English or Kannada completely.

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Q.No.1. Critically examines the statement “Law as a command of the sovereign?

Synopsis:

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Introduction

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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,
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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
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men as politically inferior subjects. He attributes (1) Command, (2) Sanction, (3) Duty, and
(4) Sovereignty as the four essential attributes of positive law.
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It was Austin who for the first time treated jurisprudence as a science of law
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concerned with analysis of legal concepts- their exposition, examination and comparison in a
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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.
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“Law as a Command of Sovereign Imperative Law”

Austin’s positive law has three characteristic features: (1) It is a type of Command (2)
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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
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sovereign under the Indian legal system i.e. the parliament, and enforceable by penalties for
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violation.

Commands: Requests and wishes are expressions of desire, while commands are

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expressions of desire given by superiors to inferiors. Officers command their
subordinates but not otherwise. The relationship of superior to inferior consists in the

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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

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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

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command, imposing a duty, enforce3d by a sanction. However all the commands are

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not law, it is 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.

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They are-
i. Declaratory or Explanatory Laws:- These are not commands because they are

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already in existence and are passed only to explain the law which is already in

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force.
ii. Laws of Repeal:- Austin does not treat such laws as commands because they
are in fact the revocation of a command.
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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
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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
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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
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law if it is effective and this it can only be by being generally obeyed.

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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
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likes it or not, and this it cannot be without some method of coercion. Sanctions then
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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
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punishments.

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

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ethical or historical element;
3. Laws are the product of a state and all laws are thus, the commands of a sovereign;

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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

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laws without regard to their goodness or badness;
5. International law, according to Austin is not a true law as there is no sanction behind

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by the sovereign, and

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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.

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Criticism against Austin’s Imperative Theory of Law:

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Austinian theory of law and analytical positivism has been criticized by jurist like

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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:
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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.
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Further, customs still continue to be a potent source of law even after the coming into
existence of the State.
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2. Austin’s theory does not take notice of laws which are of a permissive character and
confer privileges.
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3. Judge- made law has no place in Austinian conception of law although the creative
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function of judiciary as a law-making agency has been accepted in modern times all
over the world.
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4. Austin does not treat international law as ‘law’ because it lacks sanction. Instead, he
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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
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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
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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

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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

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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

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‘right’, ‘wrong’, ‘duty’, ‘obligation’ etc. themselves suggest that there is some ethical
or moral element present in them.

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7. Austin’s view that it is sanction alone which induces a person to obey law, is not

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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

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last force to secure obedience of law.
8. While bringing out distinction between positive law and positive morality. Austin

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opined that the former was set by a political superior called the sovereign. But it was

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criticized that the sovereign could well be bound by a duty towards his subjects.

Q.No.2. Explain the necessity of administration of Justice. Distinguish between Criminal

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and Civil Administration of Justice.

Meaning and Definitions:

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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
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the sanction of force to the rule of right”.

Acc Black Stone :- Justice is a reservoir from where the concept of right, duty and
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equity evolves.
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Justice is expressed in terms of “Justice according to law” . Dicey called as “Rule of

law”. “No one is above law”.
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Necessity of Administration of Justice.

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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
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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 recalcitrant minority from gaining unfair advantage over law abiding people in
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general. Therefore, state force is inevitable for protection of rights of individuals in society.

Distinction Between Criminal Justice & Civil Justice

 Criminal Justice Civil Justice

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1. All criminal wrongs are 1. All civil wrongs are
administrated by criminal justice. administrated by civil justice.

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2. Eg. Theft, murder, rape, forgery 2. Eg. Breach of contract, Irespass
etc. to land etc.,.

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3. All crimes are public wrongs. 3. All civil wrongs are private
wrongs.

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4. All criminal proceedings are 4. The aggrieved person institutes
instituted by the state. the civil proceedings.

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5. A Crime is treated a harmful Act 5. Civil wrongs are deemed only to
to the entire Society. infringe the rights of the individual.
Eg. Murder, killing a person

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primarily affects the deceased, but it
badly affects on his family and also

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entire society.
6. The object of the criminal justice 6. The object of the civil Justice is
is to ‘punish’ the wrongdoer, ranging
from death to fine. LA
to provide ‘compensation’ to the
aggrieved and sufferer by wrong –
does.
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7. Criminal Justice is administered 7. Civil justice is administered Acc
according to the set of criminal to the set of Civil Procedures.
procedures.
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8. The doctrine of estoppel does not 8. The doctrine of estoppel applies

apply to criminal Justice. only Civil Justice.
9. “It is better that several guilty 9. This Principle does not apply to
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men should escape rather than one civil proceedings.

innocent should punished”.
The guilt must be proved beyond
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the doubt.
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10. The rules of evidence cannot be 10. Te rules of evidence may be

relaxed by the consent of the parties. relaxed by the consent of the
parties.
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11. The cases once instituted cant 11. The proceedings may be
be compounded or withdrawn in the withdrawn by the parties with their
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criminal Justice. There are very few own consent.

exceptions.
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12. The burden of proof lies on the 12. The burden of proof dies on
prosecution. both the Petitioner and the
The guilt must be proved beyond Defendant.
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the doubt.
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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.

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

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the Accused in criminal Justice. does not arises in civil justice.
15. The criminal justice deals with 15. It deals with the distribution of

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remedial and breaches of duties. It is wealth and honour. It is distributive
a corrective Justice. Justice.

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16. Criminal Courts administer the 16. Civil Courts administer the
criminal justice. Civil Justice.

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Q.No.3. Discuss the Circumstances destroying or weakening the binding force of

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Precedents.

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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.
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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.
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* 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
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follow.

Precedent become binding depends on 2 main factors

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

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

Authority of precedent in India :

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

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

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former precedents where the same points came again in litigation. The process of Judicial
decision making may be either deductive pr inductive.

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Deductive method is associated with codified system of law. It assumes that the legal

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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.

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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

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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

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1. Declaratory and original precedents

2. Persuasive precedents

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3. Absolutely Authoritative precedents,

4. Conditionally Authorities precedents.

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Circumstances which destroy the binding force of Judicial Precedents:
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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.
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2) Inconsistency between earlier decision of higher Court:

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

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

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

4) Precedent sub silentio:

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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.
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5) Decision of equally divided Court:

There may be cases where the Judges of the Appellate court are equally divided. In
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such a case practice is to dismiss the appeal and hold that the decision appealed
against is correctly decided.
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6) Erroneous decisions: The decisions which are founded on misconceived principles

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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.

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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

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not deprived of all the authority, but the subsequent Court may take a view that a

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particular point which the higher Court did not touch, is rightly decided.

Q.No.4. What is Legal Right? Describe Hohfeld’s concept of right in its widest sense.

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Introduction:-

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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

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interest of a man group or state.

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Meaning and Definition of Legal Right:

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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
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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
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sovereign creates rights and can impose or change these rights at its will. Consequently, the
sovereign cannot be the holder of such rights.
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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
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enjoyment of an interest in secure.”

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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

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

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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.
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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.
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3. It obliges the person bound to an act or omission in favour of the person entitled.
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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.

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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.

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Some jurists hold that a right may not necessarily have a correlative duty. They say

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that legal rights are legal concepts and these legal concepts have their correlatives which may
not necessarily be a duty.

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Roscoe Pound also gave an analysis of such legal conceptions. He believed that legal

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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

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1 2 3 4

Jural Opposites
Right
–
No Right
Privilege
–
Duty
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–
Disability
Immunity
–
Liability
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Jural Correlatives Right Privilege Power Immunity

– – – –
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Duty No Right Liability Disability

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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.
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Jural Opposites represent the absence of in oneself. Thus, no right is the absence of right in
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oneself and disability is the absence of power in oneself.

Conclusion derived from Hohfeld’s System

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

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

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Q.No.5.Discuss Negligence and Different theories of Negligence.

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

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thatnegligence is capable carelessness. To quote him: "negligence is the state of mind
ofundue indifference towards one's conduct and its consequences". It is carelessness in

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thematter in which carefulness is obligatory under the law. Carelessness excludes

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wrongfulintention.
Negligence - Intentional act is one that was foreseen and desired by the

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doer.Forbearance is an intentional negative act. An unintentional negative act is referred to
asan omission. An omission is the non-doing a given act without adverting to the act notdone.

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AUSTIN said, “an omission is not the consequence of an act oj the will but of that
state
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of the mind which is styled negligence and implies the absence of will and intention.
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According to HOLLAND, negligence includes all those shades of inadvertence
whichresult in injury to others but there is total absence of consciousness on the part of
thedoer.
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WILLES J. holds that "negligence is the absence of such case as it was the duty of the
defendant to use ”!.
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According to SALMOND negligence is “the state of mind of undue indifference

towards
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one’s conduct and its consequences”.

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Negligence essentially consists in the mental attitude of undue indifference with

respect
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to one’s conduct and its consequences.Negligence is nothing short of extreme carelessness.

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Carelessness excludes wrongfulintention. A thing which is intended cannot be attributed as

carelessness. Carelessness ornegligence does not necessarily consist in thoughtlessness or
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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:
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a) A the legal duty on the part of A towards B to exercise in such as conduct of Afalls within
the scope of the duty.
 b) Breach of that duty

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c) Consequential damages to
Theories of Negligence

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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

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ofmind - mental attitude. This theory is called the subjective theory of negligence.The other
theory has been given by Sir FREDERICK POLLOCK. According to himnegligence is a type

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of conduct. This is called the objective theory of negligence. Thesetheories shall be discussed

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separately.
1. Subjective Theory of negligence

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The exponents of the subjective theory maintain that negligence is a state of mind.
According to them, negligence consists in the mental attitude of undueindifference with

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respect to one’s conduct and its consequence.The subjective theory is given by SALMOND.

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His view is that negligence isculpable carelessness. Although negligence is not the same as
thoughtlessness orinadvertence, it is nevertheless essentially an attitude of indifference.
Therefore,according to this view, negligence essentially “consists in the mental attitude
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ofundue indifference with respect to one’s conduct and its consequences .
A person is made liable on the ground of negligence because he does notsufficiently
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desire to avoid a particular consequence- a harm. He is careless aboutthe consequence and

does the act notwithstanding the risk that may ensure.WINFIELD is also the supporter of this
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theory. He says that “as a mentalelement is tortuous liability, negligence usually signifies
total or partialinadvertence of the defendant to his conduct and for its consequence ..
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According to AUSTIN, “want of advertence which one’s duty would

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naturallysuggest, 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 butwould have known
it had it not been because of his indolence and inadvertence.Thoughtless is thus the essence
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of negligence for AUSTIN.AUSTIN goes a step further elaborating his subjective theory and
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distinguishesnegligence from heedlessness, rashness and recklessness. For him, negligence

isthe state of mind of the person who inadvertently omits an act and breaks apositive duty. In
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heedlessness he does not think of probable mischief and doesnot bother to avert the possible
consequences.In rashness, he does foresee the consequences but foolishly thinks that
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they“would not follow” as a result of his act.

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Recklessness, on the other hand is a condition of mind where the doer foresees
theconsequences but does not care whether they result from his act or not. Thus, theline of
 distinction between rashness and recklessness is very thin. In the former,there is erroneous

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thinking that consequences would not follow while in the latterthe person does not bother
about the consequences at all.Sir JOHN SALMOND objects to the above sub-classification

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of negligence madeby AUSTIN and treats all these categories under the common law,
namely,“negligenceThe reason being that in all of them there is failure of exhibit thestandard

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of care required of a reasonable man. In his opinion, AUSTIN’S view isfallacious because
negligence may also be deliberate or willful. He, therefore,concludes that “the essence of

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negligence is not inadvertence but carelessnesswhich may or may not result in inaverfence ".

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2. Objective Theory of Negligence
According to this theory negligence is not a condition of mind but a particular kind of

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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

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circumstances would take. The tort of negligence is based on objective approach to the

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conduct and its consequences. According to Sir FREDERICK POLLOCK, “negligence is
the contrary ofdiligence 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
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of“mensrea ’’ at all, but to particular standard of conduct. It is a breach of duty ofnot
taking care and to take care means to take precautions against the harmfulresults of one’s
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action and refrain from unreasonably dangerous kinds of act.For example to drive at night
without lights is negligence because having lights isthe conduct of precaution adopted by
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all prudent men. He who drives withoutlights in the night has failed in that conduct. So to
determine whether a man isnegligent or not, one need not to go into the state of min but to
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the standard of his conduct Negligence thus is a type of conduct and not a state of mind.
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The viewappears to be correct chiefly in the law of tort where negligence is nothing
morethan a failure to achieve the objective standard of a prudent man, and where aperson
has failed to achieve that standard of a prudent man, any defence on theground of mental
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state that he took the utmost care shall be of no use at all to him.Similar is the position in
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criminal law as well.

All these are to be judged objectively on the basis as to how a reasonable manwould
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have acted in those circumstances.

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Q.No.6. Explain the Sociological School of Jurisprudence.

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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,

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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

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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.

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Many writers like Duguit, Roscopound and Inhering gave these view in the sociological
school.

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Main Exponents of Sociological School of Jurisprudence:

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Leon Duguit (1859-1928)
Leon Duguit was a French jurist who made substantial contribution to the sociological

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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

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mainly two types of needs of the society:-
1.Common Needs 2. Adverse Needs.

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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
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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.
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Rudolph Von Ihring (1818-1892)

Ihring was educated at Berlin in Germany. He was Professor at Basel, Rostock, Keil, Vienna
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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.
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Ihring’s Contribution:
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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
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the conclusion that law develops by conscious efforts. He was a critique of Savigny’s
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historical theory and natural law theories propounded by his predecessors.

Ihring laid the foundation of modern sociological jurisprudence by this insistence on
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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
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to be evaluated in the social context. Thus he treated law as an effective instrument

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for the attainment of social purpose.


ROSCOE POUND (1870-1964)

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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

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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

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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

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science of law and legal philosophy.

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The Contribution of Roscoe Pound
The contribution of Roscoe pound to Sociological Jurisprudence may be studied

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under the following heads-
1. Emphasis on Functional Aspect of Law-

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Roscoe pound added new dimensions to Sociological school of Jurisprudence.

LA
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
OF
stress on functional aspect of law. He defined law is the containing “the rules ,
principles, conceptions and standards of conduct and decision as also the precepts
GE

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
LE

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
L

community and harmonise their inter-relations. He termed this as “social

CO

Engineering”.
2. Pound’s Theory of Social Engineering-
N

Roscoe pound conceived law as a ‘social Engineering’ its main task being to
EE

accelerates the process of social ordering by making all possible efforts to avoid
conflicts of interest of individuals in the society . Thus courts, legislators,
AM

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-
AL
 I. Private Interests / Individual Interest- Individual interests, according to pound

RE
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’.

O
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

AL
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

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society thought of as a legal entity.

AN
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

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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

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in civilised society.
Jural Postulates of Roscoe Pound

LA
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,
OF
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-
GE

A. Jural postulate I- in civilised society men must be able to assume that others will
commit no intentional aggression upon them.
LE

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
L

own use, what they have created by their own labour and what they have created by
CO

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
N

with whom they deal as a member of the society will act in good faith
EE

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
AM

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
AL

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

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proper bounds.

Q.No.7. What is Possession? What are the elements of Possession and Distinguish

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between Possession in Law and Fact.

AL
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

G
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

AN
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:

W
Law demands the existence of these two types of elements for constituting the
possession.

LA
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.
OF

1. It is not necessarily a claim of right.

2. The claim of the possessor must be exclusive.
GE

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.
LE

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.
L
CO

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
N

interference, coupled with ability to use the thing oneself at will. Actual use of it is
not essential.
EE

Distinguish between Possession in Law and Fact:

AM

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.
-
AL

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

RE
bailor.

O
Salmondmade a distinction between possession in fact and possession in law.

AL
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.

G
2. Possession may exist in fact but not in law. Thus the possession by a servant of his

AN
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

,B
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

W
Q.No.8. Write Short Note Marks: 8X2=16

a. Theories of Punishment
LA
Mere denunciation of crime is not enough; it must be pushed to its logic end that
OF
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
GE

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
LE

castigation.
The needs of criminal justice are considered to be five, namely:
L

A. Deterrent
CO

B. Preventive
C. Reformative
N

D. Retributive
EE

E. Compensation.
THE DETERRENT THEORY OF PUNISHMENT
AM

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
-
AL

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

RE
offender."
THE PREVENTIVE THEORY OF PUNISHMENT

O
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

AL
crime by disabling the criminal, for example, by inflicting the death penalty on the criminal,
or by confining him in prison, or by suspending his driving license, as the case may be. Thus,

G
a thief's hand would be cut off, or a sexual off.

AN
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
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

W
he would not commit crime again.
THE REFORMATIVE THEORY OF PUNISHMENT
LA
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
OF
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
GE

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
LE

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".
L

THE RETRIBUTIVE THEORY OF PUNISHMENT

CO

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
N

it necessary to inflict some pain or injury on the wrongdoer in order to otherwise prevent
EE

private vengeance.
Whereas other theories regard punishment as a means to some other end the
AM

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
AL

justice.
THE COMPENSATION THEORY OF PUNISHMENT
 According to this theory, the object of punishment must not be merely to prevent

RE
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

O
benefits of the crime, the spring of criminality would be dried up.

AL
b. Ratio Decidendi& Obiter Dicta

G
Ratio Decidendi (Reason of Decision):
'Ratio Decidendi' refers to the binding part of ajudgment. 'Ratio Decidendi' literally

AN
means reasons for the decision. It is considered as thegeneral principle which is deduced by
the courts from the facts of a particular case. Itbecomes generally binding on the lower courts
in future cases involving similar questions oflaw.

,B
Obiter dicta (Said by the way):

W
An 'obiter dictum' refers to parts of judicial decisions which are general observations

LA
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
OF
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.
GE

c. Interpretation of Enacted Law

1. Rule of Literal Construction- ‘The first and most elementary rule of construction is that it is
LE

to be assumed that the words and phrases of technical legislations are used in their technical
meaning if they have acquired one, and otherwise in the ordinary meaning, and the second is
L

that the phrases and sentences are to be constructed according to the rules of grammar’.
CO

Therefore, it is desirable to adhere to the words of the Act of the Parliament giving to them
the sense which is their natural import in the order in which they are place . The length and
detail of the modern legislation has undoubtedly reinforced the claim of Literal Construction
as the only safe rule
N

2. Mischief Rule or Purposive Construction- When the true intention of the legislature
EE

cannot be determined by the language of the statute in question, it is open to the court to
consider the historical basis underlying the statute. The court may consider the circumstances
AM

that led to the introduction of the bill, also to the circumstances in which it became the law.
However, when judges are allowed to probe into questions of policy in interpreting statutes,
there is bound to be some uncertainty. It is maintained that the judges may look at the law
-

prevailing before the enactment of the Act and the mischief in the law that the statute sought
AL

to remedy. The act is to be construed in such a manner as to suppress the mischief and
 advance the remedy. This rule is known as Mischief Rule. The Heydon’s Case laid down
following considerations while construing an Act:

O RE
a. What was the common law before the making of the Act?

AL
b. What was the mischief or defect for which the common law did not provide?

c. What remedy the Parliament hath resolved and appointed to cure the disease?

G
d. What is the true reason of the remedy?

AN
And then the office of all the judges is always to make such construction as shall suppress the

,B
mischief and advance the remedy, and to suppress subtle inventions and evasions for
continuance of the mischief, and pro private commando, and to add force and life to the cure

W
and remedy, according to the true intent of the makers of the Act, pro bono publico

LA
Smith v. Hughes- Lord Justice Parker tried to find out mischief in the Street Offences Act,
1959. Under the Street Offences Act, it was a crime for prostitutes to “loiter or solicit in the
OF
street for the purposes of prostitution”. The defendants were calling to men in the street from
balconies and tapping on windows. They claimed they were not guilty as they were not in the
“street”. The judge applied the mischief rule to come to the conclusion that they were guilty
GE

as the intention of the Act was to cover the mischief of harassment from prostitutes.
LE

3. Golden Rule- It is a modified version of the Rule of Literal Construction. Although it is

useful to adhere to the literal rule of construction, yet if the ordinary meaning is at variance
L

with the intention of the legislature, it is to be collected from the statute itself. If it leads to
CO

manifest absurdity or repugnance, the language may be varied to avoid such inconvenience.
Secondly, if the language is capable of more than one interpretation, one ought to discard the
more natural meaning if it leads to absurdity and adopt that interpretation that leads to a
practicable and reasonable result. Therefore, court when faced with two possible
N

constructions of legislative language, looks at the result by adopting each of the alternatives
EE

in the quest for ascertaining the true intention of the parliament. Thus, the Golden Rule is
that the words of a statute must prima facie be given their ordinary meaning “unless it
AM

can be shown that the legal context in which the words are used requires a different
meaning”.
-
AL

4. Construction ut res magisvaleat quam pereat- The Courts strongly lean against a
construction which reduces the statute to a futility. A statute or any enacting provision therein
 must be so construed as to make it effective and operative “. It is an application of this
principle that courts while pronouncing upon the constitutionality of a statute start with a

RE
presumption in favour of constitutionality and prefer a construction which keeps the statute
within the competence of the legislature.

O
AL
Where alternative constructions are equally open that alternative is to be chosen which will
be consistent with the smooth working of the system which the statute purports to be

G
regulating; and that alternative is to be rejected which will introduce uncertainty, friction or
confusion into the working of the system. Therefore, in accordance with these principles, the

AN
courts should avoid interpretations which would leave any part of the law to be interpreted
without affect. The courts will not narrow down the enactments but it may give a wide sense
to the words in the statute.

,B
W
5. Rule of Beneficial Construction- If a section in a remedial statute is reasonably capable
of two constructions that construction should be preferred which furthers the policy of the act

LA
and is more beneficial to those in whose interest the act may have been passed; and the doubt,
if any, should be resolved in their favour. So in case of an exception which curtails the
operation of beneficent legislation, the court, in case of doubt, would construe it narrowly so
OF
as not to unduly expand the area or scope of operation. The court will also not readily read
words which are not there and introduction of which will restrict the rights of persons for
whose benefit the statute is intended.
GE

The construction of a statute must not so strain the words as to include cases plainly omitted
LE

from the natural meaning of the language. Therefore, Beneficial Construction is a way of
relaxing the strict principles of interpretation and that is the reason why it is called beneficial
L

construction.
CO

6. Restricted Construction- Before adopting any proposed construction of a passage

N

susceptible of more than one meaning, it is important to consider the effects or consequences
which would result from it, for they often point out the real meaning of the words. There are
EE

certain objects which the legislature is presumed not to intend, and a construction which
would lead to any of them is therefore to be avoided. It is not infrequently necessary,
AM

therefore, to limit the effect of the words contained in an enactment (especially general
words), and sometimes to depart, not only from their primary and literal meaning, but also
from the rules of grammatical construction in cases where it seems highly improbable that the
words in their wide primary or grammatical meaning actually express the real intention of the
-
AL

legislature. It is regarded as more reasonable to hold that the legislature expressed its
intention in a slovenly manner, than that a meaning should be given to them which could not
have been intended.
 RE
Sometimes the meaning of words is so plain that effect must be given to them regardless of
the consequences; but more often a construction should be adopted with due regard to the
consequences which must follow it

O
AL
7. Construction to avoid collision with other provisions- If two sections of an Act cannot
be reconciled, as they may be absolute contradiction, it is often said that the last must prevail.

But this should be accepted only in the last resort. “It is not doubt true that if two sections of

G
an Act of Parliament are in truth irreconcilable, then prima facie the latter will be preferred.

AN
But these are the arguments of the last resort. The first duty of the court must be, if the result
is fairly possible, to give effect to the whole expression of the parliamentary intention”.

,B
8. GeneraliaSpecialibus non derogant- “Generaliaspecialibus non derogant” literally means

W
“the general does not detract from the specific”.

LA
Where there are general words in a later Act capable of reasonable and sensible application
without extending them to subjects specially dealt with by earlier legislation, you are not to
OF
hold that earlier and special legislation indirectly repealed, altered, or derogated from merely
by force of such general words, without any indication of a particular intention to do so If a
special provision is made on a certain matter, that matter is excluded from the general
GE

provision. Apart from resolving conflict between two provisions in the Act, the principle can
also be used for resolving a conflict between a provision in the Act and a rule made under the
Act
L LE

General Clauses Act, 1897- The General Clauses Act, 1897, is a consolidating and
CO

amending act. The purpose of the act is to avoid superfluity and a repetition of language; and
to place in a single Act, provisions as regards definitions of words and legal principles of
interpretation which would otherwise have to be incorporated in many different Acts and
Regulations. The definition and the rules of interpretation contained in the General Clauses
N

Act have to be read in every Statute governed by it, provided the statute does not contain
EE

anything repugnant to them in the subject or context or does not exhibit a different intention.
The Act is also applicable for interpretation of the Constitution
AM

Q.No.9. Write Short Notes Marks: 10X2=20

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

-

Geopolitical social changes set alterations into social reality providing for the creation
AL

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

RE
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

O
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.

AL
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

G
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

AN
being as a basic constitutional value".
1. LEGAL STATUS OF UNBORN PERSON

,B
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,

W
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

LA
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
OF
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
GE

be born alive to be ranked as a person in law. The exception to this rule is that of an infant en
ventresa mere (child in womb), who is supposed to be born for many purposes. A child in its
LE

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 for injury sustained while in its mother’s womb. A pregnant woman
L

condemned to death is respite as of right till the delivery of the child. A child not yet
CO

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
N

against perpetuity. That rule provides that you cannot postpone vesting of an estate beyond a
EE

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
AM

the rule against perpetuity, as may be fixed by the person granting the rights to unborn
persons.
-

2. LEGAL STATUS OF DEAD PERSONS

AL
 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

RE
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

O
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

AL
and his estate.
Dead men are not legal persons. They are immune from duties as no sanction can be enforced

G
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,

AN
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

,B
right to a decent burial and the criminal law secures it.

W
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

LA
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.
OF

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
GE

the testamentary dispositions are calculated only to protect the interests of living persons.

3. LEGAL STATUS OF LOWER ANIMAL

LE

In the present day context, the animals are deemed incapable of possessing legal
L

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
CO

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
N

is valid and enforceable as a public and charitable one. Personality of animals.

EE

b. Causation
AM

In law, a man is held liable either for doing acts which are mischievous or for
causingactual 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
-
AL

causation should be decided first.Thus, if A is to be held responsible for burning B’s house,
he must first be shown to havecaused it.Causation, therefore, is an important factor to
 determine responsibility whether it is of acriminal or civil nature. The causation broadly

RE
involves two types of occurrences,
namely,

O
i) Abnormal factors;
ii) Human acts

AL
Thus in the above illustration where a house has been burnt down, presence
ofinflammable gas, ignition, an electric short circuit, etc. may be abnormal

G
circumstancescausing fire or it may have been caused by some person. Once either of these

AN
factor isfound 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 isthe established

,B
principle of law that a man is not held liable for his act if the chain ofcausation is broken or
interfered with. This is contained in the maxim - “novusactusinterveniens”.

W
SALMOND explains the maxim through an illustration. He says "if A stabs B and B

LA
istaken to hospital where, despite the fact that he is shown to be allergic to terramyein,
isinjected Math a large dose of it, then his treatment and not the stab would be treated as
acause of B’s death because the treatment which was abnormal, broke the casualconnection
OF
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
GE

thedefendant’s servant carelessly dropped a plank into the ship’s hold, the plank struck aspark
which ignited petrol vapour whose presence in the hold was unsuspected. Thedefendant’s
LE

were, however, held liable for damages caused to the ship. But this decisionhas been
overruled by the Privy Council in Wagon Mound case and now forcibility ofconsequences is
L

the test for determining causation and liability.In certain cases, the law will presume that a
CO

man has intended the natural and probableconsequences of his act.

Thus in Scott V. Shepherd the defendant shepherdmischievously threw a lighted
cigarette squib into the market place. It fell where Yatessold ginger-bread. One will is, to
N

prevent injury to himself and Yates, picked it up andthrew it across when it fell in the shop of
EE

one Royal who took it and threw it across whenit struck the plaintiffs eye and injured it. The
court held that the injury to the plaintiffwas directly and immediately caused by the
AM

defendant, as willis and royal, theintermediate agents acted involuntarily and for self-
protection. The injury was held to benot too remote. It is true that the defendant did not
-

intend to injure the plaintiff and muchless to destroy his eye, nevertheless, he was held liable
AL

for one must answer for theconsequences which common sense would attribute to his wrong
doing.
 RE
Q.NO.10. Explain the theory of strict liability and vicarious liability.

O
LIABILITY

AL
Liability is responsibility for an act or omission. Whoever commits a wrong is said to
be liable for it.

G
AN
Accsalmond, “ liability or responsibility is the bond of necessity that exists between
the wrongdoer and the remedy of the wronged”.

,B
Acc to Austin,”’liability consists in those which a wrongdoer must do or suffer. It is

W
the ultimatum of law and has its source in the supreme will of the state.

LA
Liability arises from a breach of duty which may be in the form of an act or
omission.he prefers to call liability as ‘imputability’’.
OF

Liability can be classified in to

GE

1.it can be civil or criminal.

2.it can be remedial or penal.
LE

3.it can be absolute or vicarious.

L

Civil liability consisits in enforcement of the right of the plaintiff against the
CO

defendant in civil proceedings,

Criminal liability –the purpose of the law is to punish the wrongdoer.
N

Difference b/w civil and criminal liability:

EE

1.Crime is a wrong against the society but a civil wrong is a wrong against a
AM

private individual.
2. The remedy for a crime is punishment but the remedy for civil wrongs is
-

damages.
AL

3. The proceedings in case of crime are criminal proceedings but in case of a

civil wrong they are civil proceedings.
 4. In a civil wrong, the liability is measured by the wrongful act and the

RE
liability depends upon the act and not on the intention while liability in a crime is measured
by the intention of the wrongdoer .

O
The defendant is asked to pay damages or to pay a debt, or to make a specific

AL
performance,etc the liability is called Remedial liability.
When after a successful proceeding the wrongdoer is awarded punishment,

G
fine, imprisonment, etc., the liability is called penal liability.

AN
STRICT LIABILIY

,B
Generally a man is held liable for his wrongful acts but there is an exception to
this general rule which is known as wrongs of strict liability. These are the acts for which a

W
man is responsible irrespective of the existence of either wrongful intent or negligence. They

LA
are exceptions to the general requirement of fault.
Wrong of strict liability are also known as wrong of absolute liability. The wrong
arises from the breach of an absolute duty. An “absolute duty’’ may be defined as a ‘ duty
OF
which renders a man liable without any fault of his and irrespective of any consideration of
intention or negligence on his part”.
GE

It is absolute liability in the sense that it is not necessary for the injured party to prove
any intention or negligence on the part of the injuring party. Wrongs of absolute liability can
LE

be classified into 4 kinds:

i) Cases relating to escape of dangerous things;
L

ii) Cases relating to escape of animals.

CO

iii) Cases relating to the use of things which in their nature are specially dangerous
such as fire, fire-arms, explosives, poisonous drugs etc.
N

Acc to salmond, it can be put into 3 groups-

EE

1) Mistake of law
2) Mistake of fact
AM

3) Inevitable accident
-
AL

1) Mistake of law- it is expressed in legal presumption that everyone knows the 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 not have

RE
done it. This presumption is irrefutable.
2) Mistake of fact- which means that ignorance of the fact is excuse. It means that a

O
person is not liable for a wrongful act if he has done it under a mistake of fact.
Mistake of fact is a valid defense against wrongful acts.

AL
In R. v Prince – a person who abducted a girl under the legal age of consent was held
criminally liable, although he honestly believed her to be of that age because the act of taking

G
away the girl itself is a wrongful act.

AN
3) Inevitable accident- it is commonly recognized as a ground of exemption from
liability. Accsalmond, every act which is not done intentionally is either done

,B
accidentally or by mistake. It is done accidentally when the consequences are
unintended and it is done by mistake when the consequences are intended but the

W
actor is ignorant of some material circumstances.

LA
In Ryan v Youngs the sudden death of the driver of a motor vehicle due to heart-
failure as a result of which the accident was caused, was held to be a mere inevitable accident
and the defendants were held not liable.
OF

VICARIOUS LIABILITY
GE

Normally, the person who does the wrong is liable for that wrongful act but
LE

there are certain circumstances when the liability of the wrongdoer is imposed on some other
person than the wrongdoer himself. Therefore, in vicarious liability one man is made
L

answerable for the acts of another. Modern civil law recognized vicarious liability in 2 chief
CO

classes:
i) Masters are responsible for the acts of their servants done in the course of their
employment,
N

ii) Representatives of dead men are liable for the acts of the deceased whom they
EE

represent.
1) Master’s liability for the acts of his servants
AM

Vicarious liability means liability which is incurred for, or instead of, another. Every
person is responsible for his own acts, but in certain circumstances liability attaches to him
-

the wrongs committed by others. Liability of the master for the acts of his servant is both
AL

joint as well as several.

 A servant is that person who voluntarily agrees, whether for wages or not, to subject

RE
himself at all times during the period of service to the lawful orders and directions of another
in respect of certain work to be done. While the master is that person who is legally entitled

O
to give such orders and to have them obeyed by others.

AL
3 reasons for holding a master liable for the wrongs of his servant:
i) Qui facit per aliumfacit per se

G
ii) Respondeat superior

AN
iii) Financial considerations
iv)

,B
2) Living representatives for the acts of the dead
A man cannot be punished in his grave and, therefore, it was held that all actions for

W
penal redress must be brought against the living offender and must die with him. This old rule

LA
has been abrogated by law to a great extent. A personal action does not survive on the death,
either of the person who sustained or the person who committed, the wrong.
At common law, in the case of the death of the person wronged, his executors
OF
or administrators could not maintain an action for-
GE

a) Personal wrongs committed during his life- time, such as assault, libel, false
imprisonment, negligence not causing death, reduction; or
LE

b) Trespass to his goods and chattels; or

c) Damages for his death.
L
CO

Vicarious liability in criminal law

The general principle is that a person is not responsible for the act of another. A
master is not criminally liable for the unauthorized acts of his servant. However, there are
N

certain exceptions of this rule. The legislature may prohibit an act or enforce a duty to make
EE

them absolute. In such a case the principle will be liable for the act of his servant as if he did
that act himself. If a principle neglects the performance of an act which is likely to cause
AM

dangers to others and entrusts it to unskilled hands, he will be made criminally liable in
certain cases.
-
AL

Q.No.11. Historical school of Jurisprudence.

 Historical School of Jurisprudence

RE
The Historical School was founded by ran savigny.

O
This School enquire into the past to discover the ‘genesis’ of law and find out
the history of its development.

AL
It deals with the general principles governing the origin and development of

G
law as also the origin and development of legal conceptions and principles found in the

AN
philosophy of law.

,B
Acc to them law is the produce internal silently operating force i.e., popular
faith, custom and the common consciousness of the people.

W
LA
Law grows with the growth and strengthens with the strength of the people
and finally dies away as a nation, looses its Nationality.
OF
The Historical approach to law arose as a reaction against natural law theories
Historical approach derived its in inspiration from the study of Roman law in the condiment.
GE

1. Law is found and not made. It is self existent.

LE

2. Law is antecedent to the state and it exited even before states came into
L

existence.
CO

3. Law is independent of political authority and enforcement.

N

4. Law rests on Social pressure.

EE

5. In construing a statute judges should consider the history of legislation in

AM

question.
-

6. The typical law is custom.

AL

7. Emphasis is on comparative method.

 RE
8. Leaders :Savigny and Puchta.

O
9. “Law is the spirit of people (Valksgiest) i.e., custom” is the concept of this
school.

AL
10. The Jurisprudents of this school strongly opine that custom is superior than

G
legislation.

AN
11. The Analysis of the first principle is that law is the result of historical reasons

,B
and circumstances and the spirit of the people.

W
12. There is a offshoot of this school, known as ‘Anthropological Approach’.

13. It deals with all branches of law. LA

OF
14. It enquires into part and finds the elements of legal liability.
GE

15. Acc to this school ‘law is found’. The Jurisprudents give the preference to
‘Ought’ fascinating new interpretations.
LE

16. This approach depends upon present and part.

L
CO

17. Acc to this school, custom is the formal source of law. It is transcendent law
and other methods of legal evolution like legislation and precedent, derive their authority
from custom.
N
EE

18. In Historical School, law rests on the social pressure behind the rules of
conduct which it enjoins.
AM

19. Acc to Historical School, in constructing a statute Judges should consider the
-

history of legislation in question.

AL
 20. It proceeds to examine the manner, circumstances and factors responsible for

RE
the growth of law and takes account of the social forces operating in the process of the
evolution of law.

O
AL
Volkgeist

G
Savigny the main propunder of sociological school propounded that the source of law is not
the will of the state , its not the past and its not a product of human conscience , he is of the

AN
opinion that the law is a product of the common consciousness of the people , this common
consciousness of the people was called as Volkgeist.

,B
Savigny says that law grows with the growth , strengthens with the strength of the people and
finally withers away as the nation loses its nationality .

W
The common opinion of the people is expressed in the form of customs and traditions of the
people and its not made but just formed

LA
Mens Rea
OF

Meaning of mensrea is guilty mind. Any act alone does not constitute a crime. It requires a
guilty mind behind it. Mensrea is defined as the ‘mental element’’ necessary to constitute
GE

criminal liability’’. Slamond says that criminal liability may require the wrongful act to be
done intentionally or with some further wrongful purpose in mind, or it may suffice that it
was done recklessly; and in each cae the mental attitude of the doer is such as to make
LE

punishment effective. If a person does a wrongful act intentionally or even if committed the
forbidden act without wrongful intent but knowing the harmful consequence of the act, he
will be punished.
L
CO

Mensrea must extend to all three parts of the act;

i) the physical doing or not doing;

N

ii) the circumstances

EE

iii) the consequences

wrongs may be divided into three types;

AM

i) intentional or Reckless wrongs—in which mensrea is intention, purpose, or

design.
-

ii) Wrongs of Negligence—in which the mensrea is mere carelessness, as opposed to

AL

wrongful intent or foresight.

 iii) Wrongs of Strict liability – in which mensrea is not required. These wrongful acts
by themselves are wrongs and punishable.

O RE
Exceptions to mensrea

AL
i) When the law imposes strict liability, the requirement of guilty mind or mensrea is
dispensed with. In the interest of public safety, health, and social welfare, many
measures imposing strict liability have been legislated. In matters concerning

G
public health, food, drugs etc.,such strict liability is imposed.

AN
ii) Where mensrea is difficult to be proved, a guilty mind need not be proved in such
cases; provided that the penalties are petty fines.

,B
iii) In the interest of public safety, in deciding cases relating to public nuisance, it is
not necessary to take mensrea into consideration.

W
iv) In those cases which are criminal in form but in fact they are only summary mode

LA
of enforcing a civil rights, mensrea is not necessary.

v) Ignorance of law is no excuse is the maxim of another exception.

OF
GE
L LE
CO
N
EE
AM
-
AL