Chapters

1. Nature and Concept o f Law 3

2. Schools o f Jurisprudence 7
Administration o f Justice: Theories o f Punishment 16-ix
3. Sources o f Law 16-xiii
4. Rights and Duties 25
5. Legal Personality 32
6. Possession 39
7. Ownership 44

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 1. N A T U R E A N D C O N C E PT OF LAW

Nature and Scope of Jurisprudence

The word ‘jurisprudence’ is made from the Latin word ‘ju risp ru d e n t’ - the knowledge
of law. “Juris” in Latin signifies ‘legal’, and “prudentia” means ‘skill’ or ‘knowledge’.
The word ‘jurisprudence’ has meant many different things at different times. It is the
name given to a certain type of investigation into law, an investigation of an abstract,
general and theoretical nature which seeks to lay bare the essential principles of law and
legal systems.
In jurisprudence we are not concerned to derive rules from authority and apply them
to problems; we are concerned rather to reflect on the nature of legal rules, on the
underlying meaning o f legal concepts and on the essential features of legal systems. In
this, jurisprudence comprises philosophy of law, and is a second order subject whose
object is not to discover new rules but to reflect on the rules already known. The relation
ofjurisprudence to law depends not upon what law is treated but how law is treated.
But whether discussing the nature of law or the working of authority or the analysis
of legal concepts, jurisprudence should not confine itself to logic. Legal theory is concerned
with law as it exists and functions in society; and the way in which law is created and
enforced, the influence of social opinion and law on each other are all points where
jurisprudence meets other disciplines such as sociology, psychology and so forth.
Thus, the contents of Jurisprudence include: Sources of law. Legal concepts and
Legal theories. ‘□Systematic jurisprudence’ deals with the contents of an actual legal
system as existing at any time, whether past or present. It is also known as ‘expository
jurisprudence’.
Jurisprudence is variously defined by different authors/ jurists:
Ulpian: “Jurisprudence is the observation of things - human and divine, the knowledge
of the just and unjust”.
Bentham: Jurisprudence is an analysis of fonnal structure of law and its concepts.
Stone: It is nothing but the ‘lawyers extroversion’. It is the lawyers’ examination of
precepts, ideals, lechniqijes of law in the light of observations derived from present
knowledge in disciplines other than law.
Austin: He determined the “province of jurisprudence”. The science of jurisprudence is
concerned with positive law, with ‘laws strictly so called’. It has nothing to do with
goodness or badness o f law. He further divided the subject into ‘general’ and ‘particular’

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jurisprudence. General jurisprudence includes such subjects as are common to all systems
while particular jurisprudence is confined only to the study of any actual system of iavv
or o f any portion o f it.
Holland-. Jurisprudence is the formal science of positive law. He criticized the division of
the subject into general and particular. He pointed out that the science deals with the
relations o f mankind which are regarded as having legal consequence, but not with the
rules which create those relations.
Kelsen: Jurisprudence is the study o f systematic arrangement of general principles of law
Salmond: Jurisprudence is the “science of law”. It is one of the integral social sciences
so the distinction between general and particular jurisprudence is not proper. He, however
differentiated ‘Generic’ jurisprudence (which includes the entire body o f legal doctrines)
from ‘Specific’ jurisprudence (which means only a particular department o f legal doctrines).
Alien-. Jurisprudence is ‘the scientific synthesis of the essential principles of law’. The
definition may seem to be abstract one but it gives a true view of the nature of the subject.
One o f the tasks o f jurisprudence is to construct and elucidate organizing concepts
serving to render the complexities of law more manageable and more rational; and in this
way theory can help to improve practice. Following are some o f the uses o f the study of
jurisprudence: (i) It gives an understanding o f the nature of law. It helps in the study of
the actual rules o f law and in tracing out principles underlying therein, (ii) It helps in
making a scientific development of law.

C oncept of Law
‘Law’ defines the political organization and structure o f society, provides a scheme of
individual relationship within it and contributes to the stability of society by offering an
objective mechanism for the resolution of disputes and conflicts within the community.
All extensive human societies possess law in some form or other. ‘Legal system’ is the
totality o f the laws o f a State or community.
Broadly speaking, ‘Law’ is a notional pattern of conduct to which actions do or
ought to conform. However, there is no simple definition of law. Every person defines law
according to his own perception of it. Further, law being a social science, it grows and
develops with the society. The concept o f law depends largely on the social values,
accepted norms and behavioural patterns o f a particular society at a given time.
There are many who would like to achieve an object through the instrumentality of
law and therefore they would like to define law in terms of its purpose. Others might
define law in terms of what it does in the form of actual court decisions. Law has been
defined from different approaches like: (i) its basis in reason, religion, or ethics (natural
law approach); (ii) by its source in custom, precedent or legislation; (iii) by its effects on
the life of society; (iv) by the method of its formal expression or authoritative application,
and; (v) by the ends that it seeks to achieve.
Thus, failure to provide an authoritative definition of law can be ascribed to the fact
that practical application of law does not depend on definition of law.
 Jurisprudence 5

requirements of a Definition of Law

cording to Lloyd, the requirements of a “good” definition of law should (a) include
. at is generally accepted as properly within this sphere; (b) exclude which is universally
regarded as not being “law” (e.g., the rules of a gang of dacoits); and (c) include or
eXClude borderline cases.
Julius Stone attempted a definition of law; he finds that the various definitions of
j3vv converge on the following seven steps:
(i) Law is a complex whole of many phenomena. The meaning of this whole can
only be elaborated and not defined.
(ii) These phenomena includes norms regulating human behaviour i.e. prescribing
what the behaviour ought to be, forbidding what it ought not to be.
(iii) The norms are social norms i.e. they generally regulate behaviour of a member
o f a society vis-a-vis others.
(iv) These social norms ara systematically arranged; it is in short a “legal order”.
(v) Law consists o f social norms which are coercive i.e. authority of law is supported
by acts o f external compulsions such as deprivation of life, liberty or property.
(vi) The coercion operates according to established norms.
(vii) This institutionalized coercive order should be effective i.e. people must by and
large obey the law.
(A possible eight step was emphasized by Kantorowicz is that the judiciary must
I recognize this coercive order.)
Therefore, any definition of law must take account of all these elements. The elements
are fairly represented in the following definition of law given by Paton: “Law may shortly
be described in terms of a legal order tacitly or formally accepted by a community. It
consists o f the body of rules which are seen to operate as binding rules in that community,
backed by some mechanism accepted by the community by means of which sufficient
compliance with the rules may be secured to enable the system or set of rules to continue
to be seen as binding in nature.”
Gray defined law as the rules which the courts lay down for the determination of
rights and duties. According to Holland, laws are propositions commanding the doinc„ or
abstaining from, certain classes of action; disobedience to which is followed by some
penalty or inconvenience.
Salmond defined law in terms of judicial process. According to him: the law may
be defined as the body of principles recognized and applied by the State in the administration
°f justice. However, Salmond’s definition is criticized because courts recognize a statute
because it is law. It is not law because the courts recognize it. The purpose of law is not
justice. According to Salmond, the central idea of judicial theory is ju s and recht.
|^e said: “All law is not produced by laws and all laws do not produce law.” He also said:
Constitution is both a matter of fact and a matter of law”.
The legal positivists defined law in terms of criterion of validity. The law or the
8a* system of a country is valid only if it conforms to an ultimate criterion of validity.
6 Law Guide for Competitive Examinations

which may be a command o f sovereign (Austin), basic norm or grundnorm e.g. Constitute
(Kelsen), or, union of primary and secondary rules (Hart). n
Public and Private Law. ‘Public law’ may be divided into - Constitutional law
Administrative law, and Criminal law. ‘Private law’ may be classified into - Law of
persons, law of property, law of obligations, and conflict of laws. The Taw of obligations’
includes Contract, Quasi-contract, and, Tort.

Law and Morality

Ever since law has been recognized as an effective instrument of social ordering there has
been an ongoing debate on its relationship with morality. According to Paton, morals or
ethics is a study of the supreme good. In general, morality has been defined to include
“all manner of rules, standards, principles or norms by which men regulate, guide and
control their relationships with themselves and with others.”
Both, law and morality, have a common origin. In fact, morals gave rise to laws.
The State put its own sanction behind moral rules and enforced them. These rules were
given the name “law”. In the words of Hart: “The law of every modem State shows at
a thousand points the influence of both the accepted social morality and wider moral
ideal.” Both, law and morality have a common object or end in so far as both of them
direct the actions of men in such a way as to produce maximum social and individual
good. Both, law and morality, are backed by social or external sanction.
Bentham said that legislation has the same center with morals, but it has not the
same circumference. Morality is generally the basis of law, i.e. illegal (murder, theft, etc.)
is also immoral. But there are many immoral acts such as, sexual relationship between two
unmarried adults, or hard-heartedness, ingratitude, etc., which are immoral but are not
illegal. Similarly, there may be laws which are not based upon morals and some of them
may be even opposed to morals, e.g. laws on technical matters, traffic laws, etc.
Morals as test o f law - Several jurists have observed that law must conform to morals,
and the law which does not conform to morals must be disobeyed and the government
which makes such law should be overthrown. Paton says: If the law lags behind popular
standard, it falls into disrepute, if the legal standards are too high, there are great difficulties
of enforcement.
Morals as end o f law - According to some jurists, the purpose of the law is do justice.
Paton said that justice is the end of law. In its popular sense, the word ‘justice’ is based
on morals. Thus, such morals being part of justice, becomes end o f justice. The ends
which the preamble o f our Constitution tries to achieve are the morals.
r
2. SC H O O L S O F JU RISPRU D EN CE

pjfferent approaches to the treatment of jurisprudence are represented by its various

schools of thoughts. Salmond preferred three schools: Analytical (dogmatic). Historical
and ethical (legal exposition) School.

jl] Analytical/ Imperative School (Positivism)

The analytical school is ‘positive’ in its approach to the legal problems in the society. It
concentrates on things as they are, not as they ought to be. The main concern of the
positivists is ‘law that is actually found\positum , and not the ideal law. The most important
legal sources are Legislation, Judicial precedents and Customary law.
This school, dominant in England, lays down the essential elements that go to make
up the whole fabric of law e.g. State sovereignty and the administration of justice. The
motto of Analytical school is Ubi civitas ibi lex i.e. where there is State, there will not
be anarchy; State is a necessary 6vil. The main proponents of this school are: Bentham,
Holland, Austin, Salmond, etc.
(a) Bentham's Concept of Law
Truly speaking, Bentham (1748-1832), the founder o f Positivism, should be considered
the “Father of analytical positivism”, and not Austin as it is commonly believed (In fact,
Austin owes much to Bentham). He was a champion of codified law (legislation). Bentham’s
work was intended to provide the indispensable introduction o f a civil code {Paton).
Bentham distinguished expositorial jurisprudence (i.e. what the law is) from censorial
jurisprudence (i.e. what the law ought to be). His concept of law is imperative one i.e.
“law is assemblage of signs, declarations o f volition conceived or adopted by sovereign
in a State”. While supporting the economic principle of Laissez faire (minimum interference
of State in the economic activities of individuals), he propounded the principle of
utilitarianism: ‘The proper end of every law is the promotion of the greatest happiness of
the greatest number.’ He defined ‘utility’ as ‘the property or tendency of a thing to prevent
some evil (‘pain’) or procure some good (‘pleasure’).’
According to him, the function of law must be to meet these ends i.e. to provide
subsistence, to produce abundance, to favour equality, and to maintain security. Bentham’s
doctrine of hedonism or theory of pain and pleasure has been criticized on the ground that
pleasure and pain alone cannot be the final test of the adequacy of law.
(b) Austinian Concept of Law
John Austin (1790-1859) was a lecturer in London University. He applied analytical
method - ‘Law should be carefully studied and analysed and the principle underlying
therein should be found out’ - and confined his field of study only to the Positive Law
■Jus positivism (‘Law, simply and strictly so called’: ‘Law set by political superiors to
political inferiors’). Therefore, the school founded by him is called by various names-
‘analytical’, ‘positivism’, ‘analytical positivism’. Austin is considered as the “Father of

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English Jurisprudence”. His lectures were published under the title ‘The Province
Jurisprudence Determined’.
Austin defined law as ‘a rule laid down for the guidance o f an intelligent being by
an intelligent being having power over him’. According to him, so-called ‘proper law’
includes: Law o f God, Human laws and Positive laws. The law ‘improperly’ so-called
includes: Laws by analogy and Laws by metaphor. According to him, “positive morality”
consists of: Law not set by men (as political superior) or in pursuance o f a legal right
and, laws by analogy as laws of fashion. The improper laws lacked sanction o f the State'
Every law, properly so called, must have three elements o f command, sanction and
sovereign. According to him, “law is the command o f a sovereign”, requiring his subjects
to do or forbear from doing certain acts. There is an implied threat o f a sanction if the
command is not obeyed.
A ‘command’ is an expression of a wish by a determinate person, or body of
persons, that another person shall do or forbear from doing some act subject to an evil
in the event o f disobedience i.e. ‘sanction’. So every law is a command, imposing a duty,
enforced by a sanction. According to him, a command may be particular (addressed to
one person or group of persons) or general (addressed to the community at large and
inform classes o f acts and forbearances; they are also ‘continuing commands’). A particular
command is effective when the commanded person or group obeys; a general command
is effective when the bulk of a political society habitually obeys it.
Austin’s notion o f sovereign is ‘if a determinate human superior not in a habit of
obedience to a like superior, receives habitual obedience from the bulk o f a given society,
that determinate superior is ‘sovereign’ in that society’. The basis of sovereignty is, thus,
the fact o f obedience. The sovereign’s power is unlimited and indivisible (no division of
authority). The sovereign is not bound by any legal limitation or by his own laws.
Austin’s definition of law as the “command of the sovereign” suggests that only the
legal systems o f the civilized societies can become the proper subject-matter of
jurisprudence because it is possible only in such societies that the sovereign can enforce
his commands with an effective machinery of administration. Austin’s definition ignores
customs. Austin, however, accepts that there are three kinds o f law which, though not
commands, may be included within the purview of jurisprudence by way o f exception,
viz. Declaratory or explanatory laws. Laws of repeal, and. Laws o f imperfect obligation
(no sanctions attached). According to him, Constitutional law derives its force from the
public opinion regarding its expediency and morality.
Austin’s theory is criticized as the sanction is not the only means to induce obedience.
Austin’s insistence on sanctions as a mark of law conceals and distorts the real character
and function o f law in a community. He treats law as artificial and ignores its character
of spontaneous growth. Law is obeyed because of its acceptance by the community. In
modem times, law is nothing but the general will of the people. Further, customs and
conventions o f the Constitution, though not enforceable by law, regulate the conduct of
the people and the State. Still further, judicial decisions (i.e.. precedents) become binding
laws, while no body has commanded these.
According to Justice Holmes, Austin’s distinction between positive law and positive
morality seeks to exclude the considerations of goodness or badness in the realm of law.
 Jurisprudence 9

/Austin’s positive law, there is no place for ideal or justness in law, for he observed:
Igxistence *aw *s one its merit and demerit another...A law which actually
•sts> is a law, though we happen to dislike it or though it may very from the text by
diich vve regulate our approbation or disapprobation.”
Austin’s theory ignores laws which are of a permissive character and confer privileges
. g the Bonus Act, Law of Wills). Bryce said: “Austin’s contribution to juristic science
are so scanty and so much entangled in error that his book ought no longer to find a place
juiong those prescribed for students.”
Duguit asserted that the notion of command is inapplicable to modem social/welfare
legislations, which do not command people but confer benefits; and which binds the State
itself rather than the individual. Law do not always commands, but confers privileges also
e.g. right to make a will. Thus, Austin’s concept o f law is clearly inapplicable in a modem
democratic welfare State. For instance, in India, it is very difficult to locate a single
determinate sovereign who might be regarded as possessing unlimited and absolute power
to make law. Austin’s theory could be applied to the British Parliament which is supreme
(there is no division o f power in England into different organs of State i.e. legislature,
executive and judiciary). However, Austin’s notion that sovereignty is indivisible is falsified
byfederal Constitutions e.g. India, USA, etc. In a federation, legislative power is divided
between the Union and the member States.
Hart said about Austin: “But the demonstration o f precisely where and why he is
wrong has proved to be constant source o f illumination; for his errors are often the mis­
statement of truths of central importance for the understanding of law and society.”
According to him, the Austinian formula does designate one necessary condition i.e.
where the laws impose obligations or duties, these should be ‘generally obeyed’. But,
though essential, this accounts only for the ‘end product’ o f the legal system. The cumulative
evidence against Austin should not, however, obscure the fact that law does consist of
prescriptions of conduct which are usually phrased in imperative form.
Olivecrona acknowledged Austin as the pioneer o f the modem positivist approach
to law. Allen said: “For a systematic exposition of the methods of English jurisprudence
we would’ve to turn to Austin.” Austin’s theory was later improved upon by Holland,
Salmond and Gray. Holland defined law as “rules of external human action enforced by
a political sovereign.” Gray said: “If Austin went too far in considering the law as always
proceeding from the State, he conferred a great benefit on jurisprudence by bringing out
clearly that the law is at the mercy of the State”. Dicey draws a distinction between the
legal sovereign and political sovereign.
(c) Hart's Concept of Law
Professor Hart (1907-) may be regarded as the leading contemporary representative of
British positivism. He wrote an influential book ‘The Concept o f Law', criticizing Austin’s
theory. According to Hart, “Law consists of rules which are of broad application and non-
°ptional character, but which are at the same time amenable to formalization, legislation
and adjudication.” He said that law is a system of social rules (rules sprung from social
Pressure) which acquire the character of legal rules. Law is a body o f ‘publicly ascertainable
rules’. Law, according to Hart, is equivalent to a legal system.
 10 Law Guide for Competitive Examinations

A ‘legal rule’ can be defined as one which prescribes a code o f conduct, which ■
done with the feeling that such conduct is obligatory. Law prescribes, not a command but
a standard o f conduct. This standard is adhered to, not only because there is a sense of
obligation to adhere to it, but also because there is an expectation that others have same
obligation to adhere to it. Therefore, even a person who cannot be compelled to obey the
law is still reckoned as having an obligation to obey. Thus, law is concerned with obliga/j0n
rather than coercion. An obligation is similar to a ‘duty’.
The idea o f obligation, according to Hart, means that a rule is accepted by the
people (i.e. a rule is internalized) and not (habitually) obeyed (as conceived by Austin)
There is a difference between internal and external aspects of rules; the former implies
‘Having an obligation’ (no compulsion involved), while the latter implies ‘Being obliged’
(under a compulsion). According to Hart, the predictive theory of Austin excluded internal
aspects o f rules and dealt only with external aspects o f rules.
According to Hart, there are two types of rules. Primary rule lays down standards
o f behaviour or impose duties (viz. international law) while the secondary rule are those
by which the primary rules may be ascertained, introduced, eliminated or varied. The
secondary rules are power-conferring rules - public or private (e.g. Statutes, Constitution).
From these are derived the ‘rules of recognition’ which provide authoritative criteria for
identifying primary rules of obligation. The ‘Ultimate rule of recognition’ is the ultimate
criterion o f validity of a legal order.
The union of the primary and secondary rules constitutes the core o f a legal system.
A society governed by primary rules only (viz. a simple primitive society) is static,
uncertain and inefficient. The legal order must be an effective legal order i.e. people
generally must obey primary rules, and the officials must observe secondary rules. These
two conditions are necessary and sufficient for the existence of a legal system. Hart views
“laws as a one-way projection of authority, from the officials down and constructs a
theory of law which gives the central role to official behaviour.”
According to Hart, some of the “puzzles” connected with the idea o f legal validity
are said to concern the relation between the validity and efficacy o f law. A rule is said
to be ‘valid’ when it satisfies all the criteria provided by the rule of recognition. A rule
is said to be ‘effective’ when it is being obeyed by the people. An Ultimate rule of
recognition need not be valid, but it should not be disregarded i.e. it must be efficacious
(officials must obey it).
Friedmann said: “Hart’s theory bridges the age-old conflict between the theories of
law (Savigny, Ehrlich) emphasizing recognition and social obedience as the essential
characteristics o f a legal norm, and those (Austin, Kelsen) that emphasize law as a coercive
order having elements of authority, command and sanction.” Hart’s approach is important
for its emphasis on the socially constructive function of law. However, union of primary
and secondary rules cannot explain many aspects of law.
Hart’s concept of law has been vehemently criticized by some jurists notably, Ronald
Dworkin and Lon Fuller. Dworkin drew a distinction between ‘rules’ and ‘principles’ and
remarked that a legal system cannot be conceived merely as an aggregate o f rules but it
has to be based on certain solid principles and policies. He observed: “A principle is
standard, that is to be observed because it is a requirement of justice or fairness or some
 Jurisprudence 11

ther dimension o f morality. For example, ‘no one can take advantage of his own wrong’
. a well established principle of law.” Fuller believed that legal system being an instrument
to regular human conduct must concern itself with both law as “it is” and “as it ought
to be”- Thus, law cannot be completely divorced from the concept of morality.
(d) Kelsen’s Concept of Law
Hans Kelsen (1881-1973), belonging to ‘Vienna School’ of legal thought, proposed a “pure
theory o f law” i.e. a theory which is free from social, historical, political, psychological, etc.,
influences (thus, excluding everything which is strictly not law) and is logically self-supporting.
The law is a normative (‘law as a coercive order’) and not a natural science; there are
sanctions attached to the law itself. The test of lawness is to be found within the system of
legal norms itself. He defined law as ‘an order of human behaviour’.
According to Kelsen, laws are ought propositions i.e. ‘norms’; ‘If X happens, then
Y ought to happen’. Thus, if a person commits theft, he ought to be punished. Law does
not attempt to describe what actually occurs (‘is’) but only prescribe certain rules. Norm
is a legal meaning attached to an act o f will. It is the meaning of an act by which certain
behaviour is commanded, permitted or authorised.
A norm is valid only because it has been derived from or is ordained by another
(superior) norm. This presupposes a ‘hierarchy o f norms’, each norm being valid on the
presupposed validity o f some other norm. Further, there are ‘dependent’ norms or facilitative
norms which do not coerce people (e.g. right to make a will, powers of President, judges,
use of force in self-defence). The ‘independent’ norms are coercive norms. The dependent
nonns are dependent for their validity on the independent norms (viz. Sec. 299 of IPC
derives its validity from Sec. 302). Thus, law does not have exclusively a commanding
or imperative character.
The law is a system of behavioural norms which can be traced back to some
grundnorm or basic norm from which they derive their existence. The grundnorm must
be efficacious i.e. people must believe in it, otherwise there will be a revolution. In every
legal system, grundnorm of some kind there will always be, whether in the form of a
Constitution or the will of a dictator. Where there is a written Constitution (India, USA)
the grundnorm will be that the ‘Constitution ought to be obeyed’. Where there is no
written Constitution (UK) one must look to social behaviour for the grundnorm. Under
international law, the grundnorm is the principle ‘pacta sunt servanda' (Treaty obligations
are binding on parties).
While, grundnorm accounts for validity of norms emanating from it, one cannot
account for its own validity by pointing to other norm. Its validity cannot be objectively
tested, instead, it has got to be presumed or pre-supposed (he, however, considers
grundnorm as a fiction rather than a hypothesis). It looks for its own validity in factors
outside law. However, it imparts validity so long as legal order remains ‘by and large
effective’. It should secure for itself a ‘minimum of effectiveness’ and when it ceases to
derive minimum of support of people it is replaced by some other grundnorm.
Kelsen’s theory is criticized, as according to Kelsen a legal order is valid when it
is effective, it does not matter whether it is an illegitimate rule brought about by
unconstitutional means. This means law is a system of external compulsion i.e., people
 12 Law Guide for Competitive Examinations

are forced to comply with laws. Validity of a law does not necessarily derive from
effective grundnorm. Kelsen does not give any criterion by which the minimum effectiveness
o f grundnorm is to be measured. The grundnorm simply creates or validates a legal or tier
but do not provide the content to a legal order. It is for the courts to determine the
criterion o f gr undnorm, and to decide the validity and efficacy o f a legal order
(Mcidzimbnmuto v Laedner-Burke; Stale v Dasso; As ina Jilani v Govt, o f Punjab). The
effectiveness o f grundnorm depends on sociological factors.
Julius Stone criticized Kelsen on the latter’s assertion that all the norms excepting
the grundnorm are pure. He asserted that other norms which derive their authority from
grundnorm cannot remain pure when the grundnorm itself is a combination o f various
social and political factors. He remarked, “We are invited to forget the illegitimacy o f the
ancestor in admiration of the pure blood of the progeny.”
No theory o f justice can form part of pure theory of law. However, Kelsen presented
a formal, scientific and dynamic picture of the legal structure. He has considerably
influenced the modem legal thought. The great jurists like Stone and Friedmann have
strongly defended Kelsen’s theory.
The coercive elements dominate the theories of Austin, Kelsen and Hart. Thus, if
certain formal criteria are satisfied, any social norm is law irrespective o f its intrinsic
worth or quality. Essence of law lies not in its form but its function. All three excludes
morality from law, though they admit that morals play an important role in the formation
o f law, but once a law is made morals play no more role.
Kelsen’s pure theory of law owes to Austin’s theory. However, the two differ in
many respects:
(i) For Austin law is a command of the sovereign. For Kelsen, law is not the
command of a personal sovereign but a hypothetical judgement, which visits
with a sanction for the non-observance of the conduct prescribed. Kelsen
denies also the existence of State as an entity distinct from law.
(ii) In the Austinian sense, a sanction has a moral or psychological basis; the
motivation by fear makes people to submit to law. Kelsen rejected the idea
of command, because it introduces a psychological element into a theory of
law which should, in his view, be ’pure’. In the Kelsenian sense, coercive
act means forcible deprivation of liberty. There is no idea o f fear involved,
because the norms prescribe.
(iii) Although sanction is an essential element of his law, validity o f a rule has
nothing to do with its sanction. In tile Austinian sense, the sanction was
something outside a law imparting validity to it. While, according to Kelsen,
a sanction is in-built in every legal norm.
(iv) Austin’s theory denies to ’custom’ the character of law as it has not been
created by the sovereign. Kelsen, however, is able to accommodate custom
within his concept of law viz. popular practice may generate legal norms.
(v) Austin didn’t regarded international law as a positive law. Kelsen, on the
other hand, accepted the primacy of international law over national law.
 Jurisprudence 13

jll] Natural Law School

■Natural law’ is also known as: Moral law. Divine law, Law of God, and, Law of reason.
natural law philosophy found an expression in the Roman legal system through
^ v is io n o f Roman law into three distinct divisions - jus civile, jus gentium and jus
naturale- Natural law is basically a priori method (no need of enquiry or observation),
different from a posteriori or empirical method.
Natural law appeals to the reason o f man and there is no element of compulsion in
jt ft embodies the principles o f morality and natural justice and as such it differs from
positive law and legal justice. It is law in an ideal state and it differs from man-made law.
Us principles are common to all States (jus gentium) and, thus, it differs from 'jus civile',
the civil law or the law of the land.
The naturalists insist that no social norm can be called law unless it satisfies a
criterion o f intrinsic worth, which may be either religion or ethics or morals or social
good. Otherwise there will be no difference between the kind of social norms which a
tyrant like Hitler may lay down and the rest. Therefore, satisfaction of a criterion which
goes to the quality o f law is inherent in the idea of law (‘Unjust law is no law’).
According to Salmond, “natural or moral law means the principles of natural rights
and wrongs.” Blackstone observed: “The natural law being co-existing with mankind and
emanating from God Himself, is superior to all other laws. It is binding over all the countries
at all times and no man-made law will be valid if it is contrary to the law of nature.”
Natural law theories may be broadly divided into: Ancient theories. Medieval theories,
Renaissance theories, and. Modem theories. Some o f the leading naturalists and their
contribution to the natural law philosophy is as follows:
Aristotle: According to Aristotle, law is either universal or special (written); and, ‘perfect
law’ is inherent in the nature of man and is immutable, universal and capable of growth.
He defined natural law as ‘reason unaffected by desires.’ It was Aristotle, and not Plato,
who founded natural law on reason.
Later, Stoics identified natural law with reason which governs the entire universe
and man being a part of universe, is also governed by reason. Cicero said: “True law is
right reason in agreement with nature.” St. Thomas Acquinas defined law as “an ordinance
of reason for the common good made by him who has the care of the community and
promulgated through reason.”
Grotius: Hugo Grotius held that natural law was not merely based on ‘reason’ but on
'right reason’ i.e. ‘self-supporting reason’ of man. He treated “natural law as immutable
'Which cannot be changed by God himself.” He said that natural law is based on the nature
of man and his urge to live in peacefi.il society. He considered divine law as the grandmother,
tatural law the parent and positive law as the child.
Hobbes: Hobbe’s theory of natural law was based on the natural right of self-preservation
person and property. In order to secure self-protection in a state of nature, men voluntarily
Ottered into a ‘social contract’ and surrendered their freedom to the ‘ruler’. He wrote
Leviathan’. Austin’s imperative theory of law is essentially an outcome o f Hobbe’s
doctrii\e of absolutism of the sovereign.
14 Law Guide for Competitive Examinations

Locke: According to John Locke, man entered into a social contract by which he yielded
to the sovereign not all his rights but only the power to preserve order and enforce the
law of nature. The individual retained his inalienable right to life, liberty and estate. The
moment sovereign encroached upon the ‘natural rights’, laws lose their validity and the
government may be overthrown.
Locke pleaded for a constitutionally limited government. The 19th century doctrine
of laissez faire was the result of the individual’s freedom in matters relating to economic
activities which found support in Locke’s theory. Unlike Hobbes who supported State
authority, Locke pleaded for the individual liberty. Locke used natural law as an instrument
of change but Hobbes use it to maintain status quo in the society.
Rousseau: Rousseau pointed out that ‘social contract’ is not a historical fact as contemplated
by Hobbes and Locke, but is merely a hypothetical conception. According to him, people
united to preserve their rights of freedom and equality and for that they surrendered their
rights to the community as a whole - ‘General Will’. Thus, while the individual parts with
his natural rights, he gets in return civil liberties. Therefore, he favoured people’s
sovereignty. His theory is considered to be the forerunner of the modern jurisprudential
thought and legal theory.
Kant: Kant propounded his famous theory of “Categorical Imperative” in his classic work
- ‘Critique of Pure Reason’. His theory was derived from Rousseau’s theory of General
Will, and embodies two principles: (i) A man is expected to act in such a way that he is
guided by dictates of his own conscience (human right of self-determination), (ii) ‘Autonomy
of will’ implying an action emanating from reason. In essence, “an action is right only if
it co-exists with each and every man’s free will according to the universal law.” This he
called as the principle of ‘Innate Right’.
Kant’s philosophy destroyed the foundation of natural law theories towards the end
of 18th century which suffered a death below at the hands of Bentham in the early 19th
century because of his theory of hedonistic individualism. Bentham called natural law a
“simple non-sense.” David Hume destroyed the theoretical basis of natural law by his
analytical positivism. August Compte denounced natural law theory as false, non-scientific
and based on super-natural beliefs.
Natural Law in the 20th Century
The impact of materialism on the society and the changed socio-political conditions
compelled the 20th century legal thinkers to look for some value-oriented ideology which
could prevent general moral degradation of the people. This led to the revival of natural
law theory but in a modified form. The new approach was concerned with the practical
problems of the society and not with abstract ideas.
Dr. Allen pointed out, “The new natural law is value-loaded and is relativistic and
not absolute, changing and varying and not permanent and everlasting in character. It
represents a revolt against the determinism of historical school on the one hand and
artificial finality of the analytical school on the other hand.” The main exponents of the
new revived natural law were: R. Stammler, Prof. Rawls, Kohler and others.
Stammler: R. Stammler defined law as, “Species of will, others-regarding, self-authoritative
and inviolable.” According to him, law of nature means ‘just law’ which harmonizes the
 Jurisprudence 15

oSes in the society. The purpose of law is not to protect the will of one but to unify
P1"^ t,rposes of all. Principle of respect and principle of community participation are the
I,,e fundamental principles of a just law. Wi th a view to distinguishing the ‘new’ natural
,V'° front the old one, he called the former as “natural law with variable content.”
prof- Fuvvls: ^ aw*s propounded the two basic principles of justice, namely (i) equality of
.jglit to securing generalized wants including basic liberties, opportunities, power and
minimum means of subsistence, and (ii) social and economic inequalities should be arranged
so as to ensure maximum benefit to the community as a whole.
l on Fuller: Fuller is one of the leading supporters of the modem natural law philosophy.
jje wrote ‘The Law in Quest of Itself’ and ‘The Morality of Law’. He distinguished
morality as it is’ (‘morality of duty’) from ‘morality as it ought to be’ (‘morality of
aspiration’). He believed that law is a purposive system, the purpose being to subject
human conduct to the control and guidance of legal rules.
Fuller maintained that law is a product of sustained purpose and efforts which
contains its own implicit morality - “inner morality”. He believes that “Law represents
order simpliciter.” Thus “good order is law that corresponds to demand of justice or
morality or men’s notion of what ought to be.”
Eight conditions which constitutes the “inner morality” of law are: (i) there must be
rules, (ii) the rules must be published, (iii) rules are to be prospective and retroactive
legislation must not be used abusively, (iv) the rules must be understandable/intelligible,
(v) the rules must not be contradictory, (vi) the rules must not require the conduct beyond
the power of the affected parties, (vii) the rules must not be changed so frequently that
the subjects cannot guide their actions by them, and (viii) there should be congruence
between the rules as announced and their actual enforcement.
Evaluation o f natural law - Natural law approach, however, is not a realistic and practical
approach. Naturalists bid to introduce ‘moral element’ into the criterion of identification
of laws has the effect of founding law on value judgments. If each individual is permitted
to determine law according to his own conscience, it will invite chaos and disorder in the
society. Bentham regards natural law as only a phrase of the English language, and natural
rights as “nonsense on stilts”. According to him, the “natural law reasoning” resulted from
confusing laws with moral or legal laws.
Indian legal system and its laws are based on the legal positivists’ tradition, and law is
seen in tenns of formal criterion of validity. However, recently the courts have started looking
beyond that. For example, in the area of constitutional amendments, they have developed a
concept of “basic structure” to which all constitutional amendments must conform. Right to
life under Article 21 of the Constitution has been very liberally interpreted to include right to
basic amenities, clean environment, privacy, dignity, etc. The courts are insisting upon the
administration to be just, fair and reasonable in their dealings with the citizens.
There are two ideals of a theory of natural law: A universal order governing all
me>i, and, the inalienable rights of the individuals. Natural law principles have inspired
ll,e positive law, Constitutions, and international law (Charter of UN and Universal
declaration of Human Rights). The natural law theory reflects a perpetual quest for
absolute justice. It has found expression in modern legal systems in the form of socio-
ec°nornic justice. The natural law theory acts as a catalyst to social transformation thus
 16 Law Guide for Competitive Examinations

saving the society from stagnation. The concepts of ‘rule of law’ in England and Indja
and ‘due process’ in USA are essentially based on natural law philosophy.
Hart does not denounce the role of natural law in his positivism. Unlike Austin and
Kelsen, Hart contends that it is necessary for law and morality to have certain element of
natural law as a logical necessity. He asserts that law and morality are complementary and
supplementary to each other. In his view, there are four attributes of morality: (i) Importance
(ii) Immunity from deliberate change (iii) Voluntary character of moral offences, and (iV)
Forms of moral pressure, which separate it from etiquette, custom, etc. The rules o f sexual
behaviour provide the best example of morality.
According to Cohen, natural law is in fact a way of looking at things and a humanistic
approach of judges and jurists. According to Dias, the greatest attribute of the natural law
theory is its adaptability to meet new challenges of the transient society. According to
Lloyd, natural law has been devised as a mere law of self-preservation or a law restraining
people to certain behaviour. Even the modem sociological jurists and realists have taken
recourse to natural law to support their ideology.

[Ill] Philosophical or Ethical School

The legal positivism of Austin which propagated a view that coercive power of the State
is the sole basis of law and Savigny’s over-emphasis on past values and traditions had
virtually brought the development of legal reforms to a complete halt. Therefore, jurists
from Germany and France looked for a new legal philosophy to prevent stagnation of law
and create conditions favourable for its steady growth so as to meet the complexities of
the contemporary society. It was realized that law, in order to command respect from the
society, must have an element of ethical value so that it may achieve the ideats for which
it was meant.
The ethical or philosophical school considers law, as the means by which individual
will is harmonized with the general will of the community. The proximate object of
jurisprudence is to secure ‘liberty’ to the individual for the attainment of human perfection.
It is in this sense that philosophical jurisprudence became the common ground of moral
and legal philosophy, and of ethics and jurisprudence. “Philosophical jurisprudence is the
common ground of moral and legal philosophy of ethics and jurisprudence” (Salmond).
Friedmann called philosophical school as “philosophical historism”.
This school seeks to investigate the purpose for which a particular law has been
enacted. In this approach, the purpose and end of law is the maintenance of peace and
order with the help of the physical force of the State i.e. with the ‘theory of justice in its
relation to law’. Ethical jurisprudence points to the reasonableness and soundness of law,
and through law, of justice.
This school, prevalent in Europe, is not concerned with the detailed criticism of the
actual legal system, or the detailed construction of an ideal legal system, or with the
science of legislation. It seeks to answer such questions as “What are the principles on
which the existing law is based”? “Are these principles in keeping with the rules of
natural justice”? This school is concerned with the future of law as it ought to be.
The metaphysical methods are employed in this school. The greatest contributors to
the philosophical school were: Bacon, Grotius, Fichte, Hegel, Stammler, and, Kant. Hugo
 Jurisprudence 16-i

dus is regarded as the ‘Father of philosophical jurisprudence’. He said that the rules
f human conduct emerge from right reason and, therefore, they receive public support of
le community.
Kant (1724-1804) held that ethics and law is not one and the same thing. Ethics deals
Vvith the inner life of the individual; law, on the other hand, regulates his external conduct.
I„ his view, “law is the sum total of the conditions under which the personal wishes of man
can be reconciled with the personal wishes of another man in accordance with a general law
0f freedom.” His doctrine of “freedom of will’ emphasised that legislation could be effective
only when it represents the united will of the people. He wrote: ‘Lectures on Ethics’.
His concept of ‘categorical imperative’ is the basis of his moral and legal theory,
ffe stated that ‘a man should act in such a way that his maximum actions could be made
the maximum of a general action.’ But he distinguished morality from law. His legal
theory is basically modelled on ‘what the law ought to be.’ He considered ‘compulsion’
as an essential element of law and a right is nothing but a power to compel. However,
law should’ve an element of justness. He upheld ‘freedom of speech’ as a pre-requisite
of a good government.
Fichte deduced the legal theory from the inherent self-consciousness of a reasonable
man. It is the moral duty of every person to respect the liberty of others. The State should
protect only those rights of individuals which are necessary conditions of his personal
existence. He justified State’s right to punish as a retaliatory measure.
Hegel (1770-1831) carried further Kant’s doctrine of freedom of will. He opined
that the purpose of making of law is to reconcile the conflicting egos in society. State is
an expression of the individual’s freedom in the form of universal self. He emphasized
three kinds of functions of the State, namely (i) the universal, (ii) the particular, and (iii)
the individual aspect. He wrote: ‘Philosophy of Right and law,’.
According to him, various manifestations of social life including law, are the product
of an “evolutionary process” which operates itself in form of thesis, antithesis and synthesis.
He believed that legal history embodied within it the march of freedom in civil societies
(viz. economic enslavement under capitalism gave way to economic freedom). In this
way, society may change and so also the law.
Hegel has been described as one of the greatest and most dangerous “dilettantes in
legal philosophy.” Kant, Hegel, etc. did not produce a new school of jurisprudence as
such. The reason being that their legal philosophy partly emanated from natural law
theories and partly from the analytical positivism. The main thrust of the legal philosophy
of Kant, Fichte, Hegel, etc. has been firstly, on jurisprudence as a means of attainment of
human perfection, and secondly, to secure “liberty” to individuals in the society. Kant’s
theory stands somewhere between rationalist natural law theories of 17* and 18th century
and liceralism of the IQ* century.
Kohler did not agree with the Hegel’s view that there is an eternal law of universal
body of legal institutions uniformly suited to all the societies. He defined law as “the
standard of conduct which in consequence of the inner impulse that urges man towards
a reasonable form of life, emanates from the whole, and is forced upon the individual.”
He wrote ‘Philosophy of Law’. His formulation of jural postulates of the time and place
's significant.
 16-ii Law Guide for Competitive Examinations

Stammler (a neo-Kantian) held the view that the two legal systems, namely, histo '
and philosophical, could work together in fulfillment o f the social ideal. Accordin t
him, law is ‘ju st’ if it furthers social ideal i.e. harmonizes individual interests with tho^
o f society. In his ‘The Theory of Law’, he wrote: “There is not a single rule of law
positive content o f which can be fixed a p r i o r i He, however, believed that a theory 0f
‘ju st’ law may well be developed simultaneously with the theory of analytical p o sitiv iSm
He believed that ‘Law is a volition’ i.e. it relates to willingness of the persons for whom
it is made. He tried to provide law a scientific footing by emphasizing that ‘just’ law js
the highest universal point in every aspect of social life o f man. He tried to establish a
universal science of law.
Scbelling said that law is a means by which the individual will is harmonized with
the community’s general will. Del Vecchio believed that human mind could discover rules
o f justice unaided by positive law. For him, justice is an ideal concept postulated by the
inner conscience of man and a quest for equal freedom of mankind.

[IV] Historical School

Law touches actual life so intimately that it is only natural to view operation of laws in
their social setting. The “functional approach” to law (Historical and Sociological Schools)
emphasises actual social circumstances as give rise to law and legal institutions, and is
concerned with man not as an individual but with man in association.
The historical school emerged as a reaction to legal theories propounded by analytical
positivists*(as they failed to meet the needs of the people) and the natural law thinkers.
The motto of this school is Ubi societas ibi lex i.e. where there is society, there is law.
Sir Fredrik Pollock aptly remarked that historical method is nothing but the doctrine of
evolution applied to human institutions and societies.
The historical school emphasise that the historical factors influenced the origin,
formation and development of laws. Law is found, not made. Laws are not of universal
application, as traditions and customs determine the law. Laws are rules consisting partly
of social habits and partly of experience. Germany was the cradle of this school and
Savigny (1779-1861) its main exponent. The historical school derived its inspiration from
the study of Roman law.
Montesquieu - the first jurist of this school - in his Espirit des Lois (Spirit of the
Laws) said that all laws should have the basis of historical observations. Maine described
Montesquieu as the first jurist who proceeded on historical method. Montesquieu
emphasized that, “Laws of a particular nation should be determined by its national
characteristics and must bear relation to the climate of each country.”
According to Hugo, law is the result of the habits and ways of the people themselves,
acquired tlirough necessities, accidents and other processes. Burke considered evolution
of law as an organic process and an expression of common beliefs, faiths and practices
of the community as a whole.
Puchta, a staunch supporter of Savigny, opined that neither the State nor the people
alone are a source of law but law comes into existence as a result of conflict between
general and individual will. He laid down the concept of Causa instrumentalis and Causa
 Jurisprudence 16-/7/

rjnCipalis o f law; both stand respectively for people and State. According to him, self-
f^terest causes a conflict between individual will and general will. This brings out the idea
0f law. Then, State comes into existence. Neither the people (as the natural unit) nor the
State (as the organic unit) alone is the source of law.

savigny
According to Savigny, law is not an ‘artificial lifeless mechanical device.’ His work on
Law o f Possession (Das Recht des Bestiges) is said to be the starting point of his historical
jurisprudence. Savigny’s view was that law is closely connected with the people and it
closely contained the germs o f future sociological theory. That is why Savigny is called
“Darwinian before Darwin and a sociologist before sociologists." Savigny considered the
growth o f law as a continuous and unbreakable process bound by common cultural
traditions and beliefs.
The core o f Savigny’s thesis is to be found in his essay ‘On the Vocation’- Vom
Beruf (1814). He said that the nature o f any particular system of law was a reflection of
the spirit of the people who evolved it. Law is a product of the people’s life. Law is the
result o f the genius o f the people. Law has its source jn the general or common or popular
consciousness ( Volksgeist) o f the people. As law is a reflection of people’s spirit, it can
only be understood by tracing their history.
Law is the natural manifestation o f popular life and by no means product of man's
free will. Law, language, customs and government have no separate existence. There is
but one force and power in a people and it underlines all these institutions. The law, like
language, develops with the life o f people. He wrote: “Low grows with the growth, and
strengthens with the strength o f the people, and finally dies away as the nation loses its
nationality". Thus, law has a national character.
He said: “The law, like language, grows with the growth o f social consciousness
and organization: the law can only be evolutionary, and not revolutionary." Because law
is a matter o f unconscious or organic growth i.e. not made suddenly and deliberately. Any
law-making should follow the course o f historical development. Reforms should await the
result of the historians’ work. The legislators should look before they leap into reform.
He, thus, opposed the codification of law.
Savigny was, however, not totally against codification of laws. He opposed the
codification of the German law on the French (Napoleonic Code) pattern at that time
because Germany was then divided into several smaller States and its law was primitive,
immature and lacked uniformity. He considered Roman law as an inevitable tool for the
development of unified system of law in Germany.
As law grows into complexity, the common consciousness is represented by lawyers
who formulate legal principles. But the lawyers remain only the mouthpiece of popular
consciousness and their work is to shape the law accordingly. Legislation is the last stage
of law-making and therefore, the lawyer or jurist is more important than the legislator.
The crucial weakness of Savigny’s approach was that he venerated past institutions
(traditions, customs, etc.) without regard to their suitability to the present. He said: “Custom
is the sign of positive law”. Savigny’s-content ion was that legislation should conform to
existing traditional law, or it is doomed. Thus, Savigny’s theory tended to hang traditions
 16-iv Law Guide for Competitive Examinations

like fetters upon the hands o f ‘reformative’ enterprise. It discouraged creative activity and
legal reform. R. Pound, thus, criticized Savigny for his ‘juristic pessimism’. He said-
“ Savigny’s statement was simply to watch the unfolding of laws from popular consciousness
with folded hands.” Prof. Porkunove pointed out that Savigny’s theory “does not determine
the connection between what is national and what is universal.”
Savigny did grasp a valuable truth about the nature o f law, but ruined it by
overemphasis. Savigny’s Volksgeist helped many nations to pervert it for promoting their
own ideologies. Thus, Nazi twisted it by giving a racial colour, the Marxists used it giving
economic inteipretation of history and Italy used it to justify fascism.
Savigny’s work was, nevertheless, a salutary corrective to the methods of the
naturalists. It provided great stimulus to the historical study of laws and legal institutions
The greatest contribution o f historical school lay in positing “social pressure” behind law
in place o f moral authority or sovereign’s will, paving way, thereby, for smooth transition
o f juridical thought to sociological school.
Savigny’s theory marks the beginning of modem jurisprudence, viz. sociological
approach to law. Ehrlich devised bis theory of interest on the foundation laid by Savigny
Savigny’s approach also gave birth to ‘comparative jurisprudence’. Maitland supported
Savigny’s approach and pointed out that the course o f development o f common law in
England was determined by socio-political conditions obtaining in England at that time.
M ain e
Maine (1822-1888) inaugurated both the comparative and anthropological approaches to
the study of law. Historic-Comparative School of jurisprudence belongs to Sir Henry
Maine. Unlike Savigny, he favoured legislation and codification. He wrote: ‘Ancient Law’
‘Village Communities’, ‘History of Institutions,’ etc. He is labelled as ‘Social Darwinist’
for he envisaged a social order wherein the individual is finally liberated from the feudalistic
primitive bondage. He said: “The penal law of ancient communities is not the law of
crimes but the law of torts.”
According to him, there are four stages of development o f law: (i) Law made by
the commands of the ruler, (ii) Crystallization of commands into customary law, (iii)
Administration o f customs by priests, etc., and, (iv) Codification o f law. The societies
which do not progress beyond the fourth stage are ‘static’ societies. The societies which
go on developing law by new methods are called ‘progressive’, which develop their law
by three methods: Legal fiction. Equity, and, Legislation. Further, in early societies, both
static and progressive, the legal condition of the individual is determined by status i.e. his
claims, duties, etc. are determined by law. The march of progressive societies witness the
disintegration of status and the determination of the legal condition o f the individual by
free negotiation on his part - “The movement o f progressive societies has hitherto been
a movement from Status to Contract”,
According to Maine, most of the ancient communities are founded on patriarchal
pattern wherein the eldest male parent called the pater familias dominated the entire
family. With the march of time the institution of pater familias withered away and now
rights and obligations were dependent on individual contracts and free negotiation between
persons. The freedom o f individual in economic field (leissez faire) struck a blow to the
 Jurisprudence 16-v

Otion of status as the basis of law. Thus, Maine said that ‘movement of progressive
p ie tie s has hitherto been from status to contract’. The word ‘hitherto’ signifies ‘until
then’; thus, he left options open for a change in future time to come (viz. individuals
jTiight have to fight for their rights and liberties collectively in groups).
The M aine’s theory of ‘Status to Contract’ does not have much force in the twentieth
century- Vinogradoff asserted that Maine’s expression of status to contract does not hold
g o o d in communities following collectivist ideology. He emphasized that law is not a
c0m m a n d of the State but it is an expression o f the general will of the people.

[V] Sociological School

Sociological jurisprudence arose as a reaction to positivism (‘Law as a set of rules enforced
by the State’). According to it, law is not an isolated phenomenon but is a part of the
social reality. This school has emerged as a result of synthesis of various juristic thought.
The supporters of this school linked law with other social science disciplines and treated
it as a synthesis o f ‘psychology, philosophy, economics, political science, sociology, etc.’
The major stages through which sociological school evolved and developed are: Empirical
scientific approach to law; Impact o f Darwinian evolutionary theory; Impact of
psychological theories; Unification stage (unification with other social sciences). This
school finally culminated into Realist school o f the 20th century.
The “functional” role o f law and its effect on society constitutes the basic philosophy
underlying this school. R. Pound rightly pointed out, “the sociological jurists look more
for the working of law than for its abstract content.” Roscoe Pound can be said to be the
father of sociological jurisprudence in America. Montesquieu is the forerunner o f the
sociological method in jurisprudence. Other noted jurists o f this school includes: Auguste
Compte, Herbert Spencer, Rudolph Von Ihering, Ehrlich, Duguit, Francois Geny.
Auguste Compte: He is regarded as the founding father o f science o f sociology. He
applied scientific methods to the study of socialism which has been termed as ‘scientific
positivism’. According to him, society, like any other organism, can progress when it is
guided by scientific principles. Further, it is the ‘society’ and not the ‘individual’ which
should be the focal point of law (‘Law as a Fact’). The only right which man can possess
is the right always to do his duty.
Herbert Spencer. He gave a scientific exposition to the “organic theory of society”. He
deduced four sources of law, namely, (i) divine laws having quasi-religious sanctions, (ii)
injunctions o f the past leaders, (iii) will of the ruler, and (iv) collective opinion o f the
society. He considered law nothing more than a “hardened custom”. The purpose o f law
is to resolve the conflicting interests of the individuals in the society.
According to Dr. Allen, the essence of Spencer’s organic theory lay in the inter­
dependence o f organism in its sociological aspect, which means the mental relation of all
members of civilized society and the distribution of a sense of responsibility far wider
'han can be comprised with the formula ‘sovereign and subject’. It directed attention to
the necessity o f considering law in relation to other social phenomenon.
Rudolph Von Ihering: He laid the foundation of modem sociological jurisprudence by his
msistence on treating law as one of the important factors to control the social organism
16-vi Law Guide for Competitive Examinations

(Friedmann). For him, ‘Law is a coercion organized in a set form by the State’, ‘Law is
the guarantee of the conditions of life of society, assured by the State’s power of constraint’
He wrote: ‘The Spirit of Roman Law in the Various Stages of Its Development’.
In his work ‘Law as a Means to an End’, he criticized the notion of individual
freedom and liberty. According to him, law, though not alone, is an important factor to
control the social organism. Law has a coercive character; it has only a relative value
and, it has to be evaluated in the social context.
According to Ihering, “The birth of law, like that of men has been uniformly attended
by the violent throes of child birth.” The origin of law is to be found in social struggles
I le opined that social interest of the society must gain priority over individual interest. His
theory has been called as ‘social utilitarianism’. He considers punishment as a means to
a social end. His system combined Austinian positivism with Bentham’s utilitarianism
(Friedmann). Ihering’s legal philosophy is known as ‘jurisprudence of interests’. Like
Bentham, he defined ‘interest’ in terms of pleasure and pain (i.e. pursuit of pleasure and
avoidance of pain).
Ehrlich-. His theory of “living law” is that law need not be necessarily created by the State
or applied by the courts or have a coercive legal compulsion behind it, but it is created
by life of groups living within the society (extra-legal controls). In other words, law arises
in society in the form of spontaneous ordering of social relations of marriage, family
associations, possession, contracts, etc. His theory of living law came as a vigorous
reaction against the analytical positivism and State-made laws.
In his opinion, “the centre of gravity of legal development in the present time or the
past lies neither in juristic science nor injudicial decisions, but in society itself’. He made
an exhaustive study of the variety of customs, traditions, etc. of tribes. The central point
in Ehrlich’s theory is that the law of a community is to be found in social facts and not
in formal sources of law. “Ehrlich’s sociology of law is always on the point of becoming
a necessarily sketchy, general sociology (Friedmann). Ehrlich’s theory has been named
‘Megalomaniac jurisprudence’ by Allen.
Duguir. His theory of “social solidarity” was based on the fact that interdependence of
man is the essence of society. He developed the concept o f ‘Syndicalism’. He said: “Law
is rule which men possess not by virtue of any high principle whatever good, interest, or
happiness but by virtue and perforce of facts, because they live in society and can live
in society.” He established a standard “social solidarity” to which all positive law must
conform. It is nothing but natural law in different form. Therefore, it has been rightly
observed that Duguit “pushed natural law out through the door and let it come by window.”
Duguit pointed out that law is a rule which men obey not by virtue of any higher
principle but because they have to live as members of society. He rejected the traditional
notions of rights. State, public and private law, legal personality as fiction and unreal, not
based on social reality. His entire thrust was on mutual co-operation and division of
labour for the purpose of social cohesions. Thus, law consists of ‘duty’ and not ‘rights’.
According to him. State regulations should be directed towards achieving the ends
of social and economic justice for common good. He contended that legislators do not
make law but merely give expression to judicial norms formulated by the consciousness
of the social group. Thus, he denounced the omnipotence of the State and acknowledged
 Jurisprudence 16-vii

superior role of judiciary. He also rejected the notion of natural rights of men which
individual hostile to larger interests of the society.
Ifl3de
ffpnc°is Geny. His sociological approach emphasized ‘free scientific research’ as a
' |Utjon to social problems, which is based on (i) autonomy of will, (ii) maintenance of
s°bi;c order and interest, and (iii) proper balancing of conflicting private interests of
Individuals. He gave primacy to courts; a judge should try to find out the solution freely
scientifically.

(joscoe Pound
pound’s approach to sociological jurisprudence was different as he attempts to cover
social life as a whole unlike the predecessors who considered law as the main subject of
study and society merely subsidiary to it. He concentrates more on functional aspect of
Ijjvv - need for study of law in relation to and as a part of the whole process of social
control. Before Pound, Bentham maintained that the aim of legislation should be to
achieve social ends and in order to do this there has to be a balancing of individual
interests with communal welfare. R. Pound (1870-1964) wrote: ‘Spirit of the Common
Law’, ‘Law and Morals’, ‘Social Control through Law’, ‘The Task of Law”.
He defined law as containing “the rules, principles, conceptions, and standards of
conduct and decision as also the precepts and doctrines of professional rules of art.”
According to him, “law is not a set of rules but is a method or technique for harmonizing
conflicting social interests.” The task of law, in his opinion, is to build as effective a
structure o f society as possible by satisfying the maximum of wants with the minimum of
friction and waste. This will involve adjustment of human relations, ordering of human
behaviour, and above all “balancing of competing interests” in the society. To this essential
task he gives the name of “social engineering”. The courts, legislators, jurists, etc. must
make an effort to maintain a balance between the competing interests in society.
Pound classified interests as: Private, Public and Social interests. ‘Private interests’
include interests of personality (safeguarded by law of crimes, contract, constitutional law,
etc.), marital life, property, etc. ‘Public interests’ include interests in the preservation of the
State, and. State as a guardian of social interests such as administration of trusts, protection
of environment, etc. ‘Social interests’ include interests in the preservation of peace, health,
social institutions, general morals, general progress (freedom of trade and commerce, freedom
of speech and expression, etc.), and, interests which promote human personality.
In order to evaluate the conflicting interests in due order of priority. Pound suggested
“jural postulates” - a sort of ideal standards which law should pursue in society. Every
society has these basic assumptions upon which its ordering rests. There are fiv e jural
postulates of the legal system of a society, viz.-
In civilized society, men must be able to assume that:
(I) Others will commit no intentional aggression upon him.
(II) They may control for their beneficial purposes what they’ve discovered and
appropriated to their own use, what they’ve created by their own labour, etc.
(HI) Those with whom they deal as a member of the society will act in good faith and
hence will make good reasonable expectations which their promises create, etc.
 1 6 -viii Law Guide for Competitive Examinations

(IV) Those who engage in some course of conduct will act with due care not to cast
an unreasonable risk of injury upon others.
(V) Others who maintain things or employ agencies, harmless in sphere o f their use
but harmful elsewhere, will keep them within their proper bounds.
Thus, the jural postulates provide guidelines for righteous and civilized life, and
seek to strike a synthesis between reality and ideal as also power and social accountability
o f men in the community. Pound confessed that these postulates are not absolute but they
have a relative value. They are of a changing nature.
The law, thus, is a means of social control. The aim o f social engineering is to build
as efficient a structure of society as possible. Thus, for example, if a factory is polluting
the environment, and an injunction suit is filed for closing the factory, the court must
balance various claims and interests e.g. the claim of the mill owner to do his business
the claims o f the workers in the factory to retain their jobs, the claim o f local residents
to have a clear environment, etc.
In short. Pound’s theory is that the interests are the main subject-matter o f law and
the task of law is the satisfaction of human wants and desires. It is the duty o f law to make
a ‘valuation of interests’, in other words, ‘to make a selection of socially most valuable
objectives and to secure them’. This ail is nothing more than an experiment. Pound,
through his ‘experimental jurisprudence’ helped to bring home the vital connection between
laws, their administration and the life of society.
Pound’s greatest contribution to jurisprudence is his attention on the actual functioning
of law in the society. Allen described Pound’s approach as ‘experimental jurisprudence'.
His theory is nothing more than an experiment. Justice Cardozo rightly remarked, “Pound
attempted to emphasize the need for judicial awareness of the social values and interests.”
Allen, however, said that, “Pound completely ignored the personal freedoms which are
equally important for a happy social living.”
Pound’s metaphor of ‘engineering’ has been criticized as suggesting a system of
merely mechanical expedients mechanically administered to social exigencies. Secondly, his
thesis presupposes an advanced state of society inhibiting wider application o f his conclusions.
For example, in a mass society, like India, it is difficult to see how the people would
articulate their claims, desires, etc., where majority of people lacks means to articulate and
are illiterate. Thus, Pound’s theory cannot be accepted too generally. Lastly, his somewhat
sterile preoccupation with arrangement of various interests and too little with the means of
giving effect to them robbed his work of having any desired practical impact.
Realist School
Realists regarded law as emanating from the judges. Oliver Wendell Holmes is regarded
as the spiritual father o f Realist School (a branch of sociological approach). Legal realism
is a movement in thought of law; a concept of law.
Salmond regarded law as the practice of the court and propounded the theory of
‘legal realism’ (Neo-Austinian view). Like contemporary positivists, he agreed that law
is an expression of the will of the State but as a realist he felt that it is not the Parliament
but the court which expounded law. Vinogradoff criticized Salmond’s definition on the
ground that judges/courts apply and enforce the law rather than defining it.
 Jurisprudence 16-ix

justice Holmes considered law as a means to protect and promote the collective
p interests. He remarked, “life of law has not been logic, it has been experience.”
jhus. lawyers and judges must take into consideration the needs of the time, public
olicy, etc. %vrote>‘The Common Law.’ Justice Cardozo in his work ‘Nature of Judicial
p ro cess’ asserted that judges should apply law objectively keeping in view the prevailing
editions, morals and needs of the society.

administration of Justice: Theories of Punishment

Administration of justice implies the maintenance of peace and order within a political
community by means of physical force o f the State. It is the modem and civilized substitute
for the primitive practice of private vengeance and violent self-help. The necessity of
force of the State for administration of justice has been emphasized by Taylor who
observed, “a herd of wolves is quieter and more at one than so many men unless they all
had one reason in them or have one power over them”. Hobbes also believed that a
common power was necessary to keep people within control in the comunity.
Lord Bryce once observed that there can be no better test o f the excellence of a
government than the efficiency of its judicial administration. As rightly observed by
Salmond, it is through the instrumentality of law that justice is administered. He said:
‘Law is the body of principles recognized and applied by the State in the administration
of justice.” Roscoe Pound also similarly observed.
The courts administer justice according to laws framed by the legislature. The chief
merits of administration of justice are its uniformity, certainty, impartiality and equality.
Some of the disadvantages are rigidity, formality and complexity of laws. Salmond observed
that law is a remedy for greater evil, but it brings with it evils o f its own.
Broadly speaking, justice may be of two kinds: Civil and Criminal. The former
are violations of civil or legal rights of individuals called ‘civil injuries’, while the latter
are in the nature of violation of public rights and duties which affect community as a
whole and are called ‘crime’ or ‘misdemeanours’. Thus, a crime is a wrong against the
community as a whole and is punishable by the State; the civil wrong, on the other hand,
is an infringement of the legal right of a particular individual and is redressible generally
by monetary compensation.
The administration of civil justice consists in the enforcement of rights as opposed to
the punishment for wrongs. The prime object of the criminal justice is to punish the wrongdoer.
He is punished by the State. The purpose of punishing a criminal is to prevent or disable
the offender from committing the offence again; to deter other people from committing
crimes. According to Manu, Danda was the essential characteristic of law. He argued that
“punishment keeps the people under control, protects them and it remains awake when
people are asleep. So the wise have recognized punishment itself as a form of Dharma".
The concept of punishment is that of inflicting some sort of pain on the offender
for his violation of law. This is an instrument of public justice. During the last two
hundred years, the practice of punishment and public opinion concerning it have been
drastically modified. The pertinent question today is what should be the society’s attitude
towards a criminal. Should he be regarded as a nuisance to be abated, or a patient to be
’teated or a refractory child to be disciplined? The penologists today are concerned with
 16-x Law Guide for Competitive Examinations

the crucial problem as to what end should punishment be directed. There are three typcs
o f approaches (which are not mutually exclusive) to punishment prevalent today:
(A) Punitive approach - This approach regards the criminal as a basically bad and danger0Us
sort of person. The object of punitive approach is to inflict punishment on the oflencjCr
in order to protect the society from his onslaughts e.g. retribution, deterrence.
(B) Reformative or therapeutic approach - According to this approach, criminal is a victim
of circumstances. Since criminal is a sick person, he requires treatment. The emphasis
is on the rehabilitation of a criminal in the society. Thus, prison reforms, juvenile
schools, and the techniques of probation and parole are directed towards this end.
(C) Preventive approach - It emphasizes elimination of conditions responsible for the
crime causation (‘prevention is better than cure’).
(1) Retributive Theory
It is probably the oldest and most ancient justification for punishment. “You hurt me and
I will hurt you” is its literal meaning. Retributive theory provides that the penal system
should be designed to ensure that the offenders atone by suffering for their suffering
should be of the same magnitude as that of their victims.
The retributive theory treated punishment as an end in itself. In other words, infliction
of punishment is justified in itself since offenders should be given their due. The theory
therefore underlined the idea of revenge ‘an eye for an eye and a tooth for a tooth’ - rule
of natural justice. The pain to be inflicted on the offender by way of punishment was to
outweigh the pleasure derived by him from the crime; punishment is an expression of
society’s disapproval for offender’s criminal act. Kant said: “.... Punishment can never be
administered merely as a means for promoting another good, either with regard to the
criminal himself or for civil society, but instead it must in all cases be imposed on the
criminal only on the ground that he has committed a crime".
The justifications for retributive theory are based on theological, aesthetic and expiatory
grounds. Retaliation fulfils a religious mission of punishing the offender, it re-establishes
social harmony affected by the offence (.... assauge the angry sentiments of victim and
community); and the offender’s guilt is washed away through suffering (expiation).
Expiation means that guilt plus punishment is equal to innocence. The philosophy
underlying expiatory theory is that to suffer punishment is to pay a debt due to the law,
that has been violated. Salmond said: “Revenge is the right o f the injured person. The
penalty of wrong doing is a debt which the offender owes to his victim, and when the
punishment has been endured, the debt is paid, the liability extinguished, innocence is
substituted for guilt, and the vinculum juris forged by crime is dissolved. The object of
true redress is to substitute justice for injustice.”
These postulates of retribution, however, have been criticized. They ignores
circumstances of the criminal, and whether offender is a young and first offender, women
or insane (who need a lenient view of punishment). If individuals have no moral right to
exact retribution, how can a group of individuals in society acquire such a moral right.
This theory is sought to be defended on the ground that punishment reflects ‘denunciation’
of the criminal and his act by the society (...expression of the moral sentiments of
community). However, this theory has lost much of its relevance today.
 Jurisprudence 18-xi

peterrent Theory
2
( )
utilitarians consider that general aim of punishment is utilitarian which is protection
f ' ; ; , ity of society from the harm caused by crime. They view punishment as a means
°r chicve certain ends with the aid of criminal law. According to them, punishment
some real purpose like deterrence (In comparison, retributive theory considers
serves
^ishnient as an end in itself). Punishment must serve as an instrument for reducing
P. cS cither by deterring the offender and others from doing similar acts in the future,
C should prevent commission of offences by incapacitating offenders (i.e. imprisonment).
flf J
The main object of punishment is to make commission of an offence an ill-bargain
for the offender. As Salmond rightly puts it, “punishment is before all things deterrent and
ll,e chief aim of law of crime is to make the evil-doer an example and a warning to all
)|iat are like minded with him.” He asserted that offences are committed by reason of a
conflict of interests of the offender and the society. Exemplary punishment prevents such
offences by destroying the conflict of interests by making acts which are injurious to
others as injurious to the doer himself. Paton also supported this view.
Although deterrence is one of the effective policies which almost every penal system
accepts, yet it invariably fails in its practical applications:
(i) It particularly fails in cases of hardened criminals because the severity of punishment
hardly has any effect on them.
(ii) When capital punishment was being publicly awarded by hanging the person to
death in public places many people committed crimes of pick-pocketing, theft,
assault or even murder in those men-packed gatherings despite the ghastly scene.
(iii) It also fails to deter ordinary criminals because many crimes are committed in a
‘spur of moment’ without any prior motive or design.
(iv) The punishment to be effective and deterrent must be certain. The criminal justice
system, which follows the principle that the prosecution should establish the guilt
beyond reasonable doubt and benefit of the doubt goes to the accused, has never
been able to use the punishment in a deterrent manner. Further, wrongful acquittals
and convictions are not uncommon. The deterrence principle has nothing to say
about victimization (where a man known to be wholly innocent is made to suffer).
Though deterrence as an aim of punishment has lost must of its former importance,
yet the deterrence theory cannot be entirely eliminated from the penal system. That
punishment has some deterrent effect on many people (e.g. educated and respected person)
can be accepted without much debate. Our Judges and legislators believe that punishment
has a deterrent effect. Even for correctional therapy (‘reformation of criminal’), a long
‘hospitalization’ in prison may sometimes be needed. Still, deterrence is not the only
purpose of criminal law but has to maintain some other values as well (deterrence is
negative, whereas the purpose of law is positive).

(3) Reformative Theory

The conviction that man commits crime according to his free will is not longer valid.
Crime is a product of various factors and cannot always be explained on the basis of
hedonistic calculations of pleasure and pain. The focus thus shifted from the ‘punishment’
,0 the ‘correction’.
 16 -xii Law Guide for Competitive Examinations

Modem penology recognizes that punishment is no longer regarded as

retributive
or deterrent, but is regarded as reformative or rehabilitative. Reformation is
defined as
“the effort to restore a man to society as a better and wiser man and a good cit
reformative approach to punishment seeks to bring about a change in the attitude 0f *^
offender so as to rehabilitate him as a law abiding member o f the society. Thus, punishm 0
is used as a measure to reclaim the offender and not to torture or harass him (It js to .
noted that Gandhi diagnosed offenders as patients and regarded prisons as hospitals)
ultimate aim of the punishment is to "resocialize” the offender, to "readjust” him to
society, to “rehabilitate” him, to "reclaim” him, and, “to change him deep inside”
According to reformationists, a criminal is to be studied, like a patient in his entire
socio-economic milieu, and not in isolation, to understand causative factors leading to
criminality and then attempt to be made to reform or treat and rehabilitate the offender
Rehabilitation aims to counteract the effect o f disabling conditions by measures to recover
the socio-cultural or economic deficiencies to the highest possible degree to restore
psychological equilibrium and provide vocational guidance and employment. Final aim
is the achievement of independence of individual in the society.
Thus, reformation is achieved throgh the methods o f individualization. It is based
on the humanistic principle that even if an offender commits a crime, he does not cease
to be a human being. While awarding the punishment, the judge must take into consideration
the age and character of the offender, his antecedents and the circumstances under which
he committed the criminal act. The theory condemns all kinds of coiporal punishments.
The reformative view suggests that punishment is only justiciable if it looks to the
future and not to the past. It should not be regarded as settling an old account (or revenge)
but rather as opening a new one. Thus, imprisonment should really “prepare” a deviant
for release. The reformative methods have proved useful in the cases of juvenile delinquents,
first offenders, alcoholics, drug-addicts, sex psychopaths and mentally depraved offenders.
However, the recidivist, hardened and professional criminals (incorrigible offenders)
hardly respond favourably to these methods. Reformative theory is criticized as “it never
commanded more than a lip service from most of its more powerful adherents. The prison
administrators who embraced rehabilitative idea have done so because it increased their
power over inmates.”
(4) Preventive Theory
Prevention o f crime or delinquency can be achieved in a number o f ways and contents.
Thus, prisonization is a way of preventing crimes as it seeks to eliminate the offenders
from the society thus disabling them from repeating crime. Capital punishment prevents
crime as it removes the criminal from the society forever. In fact, the idea inherent in any
form o f punishment is to prevent the commission of crimes by the actual as well as
potential offenders (whether it be retribution, deterrence or reformation).
In England, this theory was supported by utilitarian law-reformers because of its
humanising influence on penal law. The development of the institution o f prison is
essentially an outcome of this theory.
P reven tion in the present context, however, refers to checking criminal behaviour
by taking advance action in terms o f individual and environmental adjustments'. Thus,
 Jurisprudence 16-xiii

eiition includes the efforts to improve family relationship, better adjustment in school,
^vision of education and recreation designed to produce useful and upright citizens and
^ use of aids in the fields of social work, medicine and psychiatry.
Therefore, preventive programmes are to be directed not only to those who have
already indulged in criminal behaviour, but also to those who either have shown some
ndency to suggest possible delinquency in future. The preventive programmes are more
^levant in the context of juveniles.
Conclusions
theory whether deterrent, preventive, retributive or reformative can help in
fjo s in g le
elim inating crimes and criminals from society. It is only through an effective combination
0f tw o or more of these theories that an ideal penal programme can be drawn to combat
crimes. For example, the combination of deterrent plus reformative approach; deterrence
when it is absolutely necessary (e.g. for hardened criminals) and reformation as a general
mode o f treatment of offenders.

It may be noted that no theory takes notice of ‘compensation’ which should be paid
to the victim o f the crime. The modem view is that punishment must not be merely to
prevent further occurrence of crime but it must also seek to compensate the victim of crime.

3. SO U RCES O F LAW

Asource of law means either the manufacture or origin of a law or the ability to impart
arule or norm the quality of law. The term “source” is used to connote those agencies
by which rules of conduct acquire the character of law by becoming objectively defined,
uniform, and, compulsory.
Austin’s tliree meanings of “sources of law” include: (i) Direct authority (viz.
sovereign); (ii) Historical documents (viz. codes); and, (iii) Causes which give the rules
of society the force of law viz. legislation, custom, etc. According to the sociological
school, there is no specific authority which has power to make law but it takes its shape
as the society evolves.
Salmond classified the sources of law into two categories:
(a) Formal sources - These are those sources which are recognised as such by
the law itself and are authoritative. From these sources, a rule of law derives
its force and validity. Thus, the will of the State as manifested in the
Constitution, Statutes, Court’s decision are the formal sources of law.
(b) Material sources - From these sources, a rule of law derives the matter but
not the validity. The material sources are further divided into two types:
Legal and Historical. Unlike legal sources which are sources not only in fact
but also in law and are authoritative, the historical sources are sources in
fact only and are unauthoritative. The decision of the court is a legal source
while the ultimate materials on which it is based are historical sources.
16-xiv Law Guide for Competitive Examinations

Legal sources operate directly and immediately, while historical sources

indirectly and mediately. Examples of “legal sources” are: Legislation (enacted*3^ ' 8
Precedent (case law), Customs, and Conventional law (based sed on agreements
agreement* „ avv).
law, treaties, etc.). Examples of “historical sources” are: Legal writings. Juristic e'8-
0° local
-U'
Foreign judgments, Constitutions, etc. Salmond further pointed out that historical lm°ns
pertain to legal history and not to legal theory. S°Urc'es
Allen objected to Salmond’s assertion that “legal sources are the only gates through
which new principles can find entrance into the law and historical sources operate only
mediately tmd indirectly ...they are merely links in the ^ i n o f which ultimate link must
be some legal source to which law is directly attached. He alleged that Salmond has
undermined the importance of historical sources^
Keeton criticized Salmond for his views on formal source o f law, which in modem
times is the State. In his view, State cannot be termed as law in modem technical sense
because it is only an agency to enforce law. According to Keeton, the sources of law can
be classified into two broad categories: (1) Binding sources of law e.g. legislation, precedent,
and customs; and (2) Persuasive sources e.g. equity principles, professional opinions, and
writings o f jurists.
Sources of law differ from system to system and society to society. Thus, while in
common law system. Constitution, legislation, precedents and custom are recognised as
the legal sources o f law, in civil law countries, legislation, customary law and treaties are
often declared to be the only sources of law. Since in India, we have common law system,
Constitution, legislation, precedents and customs are our legal sources of law. In some
matters, personal law (Koran, Smrities, etc.) is also a source of law.

[1] Constitution
Constitution differs from legislation in so far as legislation finds its authority in the
Constitution while the Constitution is the ultimate source and its authority lies in the
political fact that it has been so accepted. -
A Constitution may be the fundamental law of the land or it may simply be a political
document. Our Constitution is the fundamental law of the country. Its provisions lay down
binding rules, violation of which can be checked and remedied through court action. But
there are Constitutions like that of China, which simply lay down the rules for the guidance
of the governance and their violation may be checked only at the political level.

[2] Custom
Custom is the oldest and most important source of law, though its importance is now
diminishing with the growth of legislation and precedent. Custom means ‘uniformity of
conduct o f people under like circumstances.’ Holland says that custom is a generally
observed course of conduct.
Salmond opines that custom embodies those principles as are acknowledged and
approved, not by the power of the State but by public opinion o f the society at large. He
states: “Custom is the embodiment of those principles which have commanded themselves
to the national conscience as principles of justice and public utility.”
 Jurisprudence 16-xv

According to Herbert Spencer, before any definite agency for social control is developed
tliere exists a control arising partly from the public opinion of the living, and more largely
from the public opinion of the dead. Thus, it is tradition passing from one generation to
an oth er that originally governed human conduct. This tradition is called ‘custom’.

Keeton defines “custom as those rules of human action, established by usage and
regarded as legally binding by those to whom the rules are applicable, which are adopted
by court and applied as a source of law because they are generally followed by the
political society as a whole or by some part of it.”
According to Halsbury “custom is some kind of special rule which is in actual
existence or possibly followed from times immemorial and which have acquired the force
of law in specified territory, although it may be contrary or inconsistent with the general
law o f the land.”
Reasons for Recognition of Customs
Custom necessarily involves two conceptions, namely, (i) the conviction or faith, and (ii)
constant use. It is presumed that customs must have been followed on account of their
utility and also because they enjoyed the express or implied sanction o f the society.
Custom played a considerable role in the evolution of early law. It provided material for
other law-constituting agencies, especially legislation. Psychologically it is easier to secure
obedience for a code if it is based on an established custom. It is too great an effort to
create law de novo (afresh).
It is not always necessary that the court should recognize all the practices which are
prevalent in a community as custom. In other words, such customs are not obligatory (viz.
wearing black clothes at a funeral procession). On the other hand, there are certain
customs which are binding and are enforceable by a court of law since they are backed
by the sanction of the State. For instance, a Hindu marriage solemnized without the
performance of Saptapadi is not legally valid and can be set aside by the court.
Kinds of Customs
A custom may not necessarily be practised all over the country. Further, the Privy Council
and the courts in India have accepted the principle that a clear proof of usage would
override the written text of law. Thus, a custom may be either (1) conventional or (2) a
legal custom.
(1) Conventional Custom
A ‘conventional custom’ is also called ‘usage’, viz. certain trade practices. Its authority
is conditional on its acceptance and incorporation in the agreement between the parties
bound by it. A conventional custom should be reasonable and be consistent with the
statute law; a usage which is contrary to any express condition laid down in a contract
shall not be enforceable by law.
Before becoming a part of the law, such customs pass through three stages: (i) they
should be proved before the court as a question of fact, (ii) the court takes judicial notice
of them and they are established as a precedent, and (iii) the custom is embodied in a
statute and takes its final shape.
 16-xvi Law Guide for Competitive Examinations

A conventional custom may either be ‘local’ or ‘national/general’. Local conventional

customs are limited to a particular place or market or to a particular trade or transaction it
may be noted that unlike usage, a custom is binding irrespective of the consent of the parties
to be bound thereby. Further, a usage, unlike custom, need not be of immemorial antiquity
(2) Legal Custom
Legal customs are those which are operative per se as binding rules o f law independent
o f any agreement between the parties. Legal customs are o f two kinds: (i) Local/ special
custom, and (ii) General custom.
When the word ‘custom’ is used simpliciter it refers to local custom. A local custom
can derogate from the general or common law of the realm, but not from statute law A
local custom in India is further divided into (a) geographical local (limited to a particular
locality —town, district, etc.) and (b) personal local (limited to a sect or family e.g a
‘family’ custom amongst the members of a particular tribe). Sometimes, certain sects or
families take their customs with them wherever they go. They too are called local customs
A ‘general’ custom prevails throughout the realm i.e. binds all the persons within
a community and constitutes one of the sources of the common law o f the country. It is
treated to be part of the law of the land. It should not be in conflict with the common law
or statute law. Common law of the England was oncd thought to 6e derived from general
customary law, but now it is established that it is derived from judicial precedents.
Theories regarding Transformation of Custom into Law
There are two theories in this regard: Analytical and Historical theory. Acoording to
Analytical theory (John Austin), custom derives its binding force not from its Own nature
but by State recognition. A customary rule may become a legal rule either by recognition
through a statute law or by a precedent. Being of a persuasive value, custom is considered
as a historical material source of law. Austin thus concluded that “customary law is
nothing but judiciary law founded upon anterior custom”.
Holland also called custom as law when it is recognized by a court through its
decision. Salmond, too, supported this view. However, he said that a custom becomes law
when it satisfies the conditions prescribed by the law which are necessary for its legal
validity. Custom is, therefore, rightly treated as a legal material source o f law.
Allen criticized Austinian theoiy of customary law on the ground that the customs are
recognized not because the court or legislature gives them sanctity of law but because they are
treated as law by the community as a wnole and people feel themselves bound by them.
According to Historical theory (Savigny, Puchta, Blackstone and Maine), law has
its existence because of the common consciousness of the people and “customary observance
is not the cause o f law but the evidence of its existence”. Savigny observed, “customary
laws completely modify or repeal a statute; it may create a pew law and substitute it for
statutory rule which it has abolished”. Thus, customs give authority to precedent and
statute law. Maine regards custom as a formal source of law. He regarded custom “posterior
to that o f Themistes (awards dictated by the King or Goddess of justice) or judgments”.
According to Savigny, customary law is the real law of the people, while the rest
is only a superimposition. This is true because good and successful laws represent the
 Jurisprudence 17

itimate aspirations o f the people. However, in the present-day highly technical and
*e^xed society, one cannot completely rely on custom as a source of law. It is only in
traditi°na' and tribal societies the custom is the major source of law. In the contemporary
society its inadequacy to meet the fast changing situations is beyond doubt in so far as
customs cannot suddenly be created to meet a situation.
Essentials o f a Valid Custom
There is more than one reason for attributing to custom force of law. Firstly, it is frequently
the embodiment o f those principles which have commended themselves to the national
conscience as principles o f justice and public utility. Secondly, the existence of an
established practice is the basis o f a rational expectation of its continuance in the future.
It is, however, not the development of any practice, as such, that qualifies to be a legal
custom; say, o f wearing black at funerals.
To acquire the force o f law or become a source of law, custom must satisfy the
following conditions:
(i) Custom must be ancient - A custom cannot be created in a day. It must be
of long standing. Unlike England where a custom should have existed from
time immemorial, in India long usage or observance is enough and, thus,
even a 20-year old custom may be recognized.
Under English law, however, living memory is now substituted, by legal fiction, for
legal memory. Now if a person proves the existence of a particular practice for a substantial
period, i.e. if no living person could show the beginning of that practice in his life-time,
existence of a custom since 1189 is presumed, unless rebutted. In India, the courts have
sanctioned a custom on proof of a period o f longevity varying between 20 to 50 years.
(ii) Custom must be continuous, certain and precise - The custom must have
been in use continuously and it should not be vague or indefinite. Its existence
must be proved by clear and unambiguous evidence.
(iii) Reasonableness - A custom is reasonable if no good legal reason can be
assigned against it. Further, it is not that a custom will be admitted if
reasonable, but that it will be admitted unless it is unreasonable.
The reasonableness of a rule is not to be judged by the contemporary judicial
standards, but by those prevailing at the date of its inception. If it does more mischief than
the good, then it should be discarded. A custom among Jat Sikhs of Punjab which permitted
a woman expelled and deserted by her husband to remarry was held reasonable; but not
the practice which authorised a woman to desert her husband at pleasure with a view to
marry someone else. Similarly a customary rule prejudicial to a class and beneficial to
few cannot be reasonable viz. begar by harijans for higher castes. Immoral customs and
those abhorrent to decency^re also unreasonable viz. a custom permitting marriage with
daughter’s daughter.
(iv) Conformity with statutory law - No custom however old or reasonable can
stand if it conflicts with a statute or legislation.
‘By no length of desuetude’, observes Salmond, ‘can a statute become obsolete and
inoperative in law and by no length of contrary usage its provisions can be modified in
•he smallest particular’.
 1b Law Guide for Competitive Examinations

(v) Custom must have obligatory force - The custom must have been
enJ°y e d
“as of right”. Because without this it cannot be said that it exerts obligato
pressure to conform. The custom must have been followed openly, witl,0la
the necessity for recourse to force.
What distinguishes a legal custom from a mere convention is the opinio juris sine
necessitatis - the ‘feeling of being bound’. The stark test o f a custom is the growth of
conviction that it shall be followed whenever a proper occasion arises. Facultative or
optional enjoyment of a practice robs it of the vitality so essential to transform it into a
binding rule of law.
Usage and Custom - The terms are often used interchangeably, but there is a clear
distinction between the two. Usage represents the twilight stage o f custom. Custom begins
where usage ends. ‘A custom is such a usage as hath obtained the force o f law’.
(vi) Consistent with morality and public policy - Custom must not be inconsistent
with morality, public policy and other customs in some area. In a case, the
court refused to recognize a custom claimed by prostitutes o f adopting
daughters because it would perpetuate prostitution.

[ 3 ] L e g isla tio n
Today, legislation is the most important and biggest source of law. The term “legislation”
means the ‘making or the setting of law’. Legislation is that source o f law which consists
in the declaration of legal rules by a competent authority e.g. Parliament or State legislatures.
Thus, legislation is a deliberate process of legal evolution which consists in the formulation
o f norms o f human conduct in a set form through a prescribed procedure by agencies
designated by the Constitution.
Legislation may be of two kinds - supreme and subordinate legislation. When the
sovereign authority itself makes the law, it is supreme legislation. Subordinate or delegated
legislation is by any other authority than the sovereign, by virtue o f powers delegated to
it by the sovereign, and subject to the control of sovereign. The supreme legislation is not
superior to the Constitution and it is subject to various constitutional limitations e.g. a
legislation which infringes the fundamental rights of citizens is invalid. Further, supreme
legislation cannot delegate the “essential” legislative functions which relate to the making
o f policy.
In our legal system. Acts of Parliament and the ordinances and other laws made by
the President and Governors, is ‘supreme’ legislation. Examples o f ‘subordinate’ legislation
includes rules, regulations, bye-laws, orders, directions, notifications, etc. made by various
authorities such as corporations, municipalities, universities, government departments. Supreme
and High courts, etc. The amount of subordinate legislation far exceeds the amount of
supreme legislation. In order to ensure that delegated legislation is not misused, it has been
subjected to: (i) Procedural control (prior consultation, prior publicity and publication), (ii)
Parliamentary control, and, (iii) Judicial control (doctrine of ultra vires, etc.).
The general principle is that a delegatee is not able to delegate further i.e. the
maxim Delegatus non potest dele gare. Thus, “sub-delegation” of delegated legislation
without express authority would be invalid. It may be noted that delegated legislation is
 Jurisprudence 19

different from ‘conditional legislation’ in which the law is complete in itself and certain
conditi°ns are laid down as to how and when the law should be applied by delegatee (e.g.
lo bring it into force in an area or at a particular time).
Advantages a n d Disadvantages o f Legislation
Salmond said: “So great is the superiority of legislation over all the other methods of legal
evolution that the tendency o f the advancing civilization is to acknowledge its exclusive
claim, and to discard the other instruments as relics of infancy of law”.
(i) Certainty and precision - Statute law leads to greater certainty as it is clear,
easily accessible and knowable as compared to other sources of law - a coin
o f the realm ready for immediate use.
However, multiplicity of statutes on the same issue, with amendments and alterations
superimposed makes it a ‘disjointed series’ of particular rules. Moreover, modem statutes
are so numerous and so complicated that an ordinary citizen knows little o f their breach
till he actually lands in trouble for their violation.
(ii) Instrument o f legal reform - The creative power of legislation is beyond
doubt. It is not merely a source of law but as a destructive and reformative
agent it has no equivalent. Legislation takes into account the needs of present-
day society. Thus, in recent times, legislations like Dowry Prohibition Act,
Environment (Protection) Act, Consumer Protection Act, etc. have been
enacted. Legislation may be resorted at'any time to change the existing law
or create a new law.
However, this ‘dynamism’ of legislation appears in sharp contrast to the rigidity it
introduces in law. The legislation must apply equally in disregard of needs o f individual
justice in a particular case.
(iii) Conforms to natural justice - Legislation satisfies the requirements of natural
justice since laws here are known before these are enforced. Then statutes
are prospective in operation leaving vested rights untouched. However, at
tiniest statutes are made retrospective.
Conclusions - Legislation is, undoubtedly, the most powerful instrument of legal growth.
It is indispensable, keeping in view the complexities of modem society, for the efficient
regulation of human relationships in our days.
Rules o f In terp retatio n o f Statutes
It is not possible for the legislature to foresee all situations, while drafting laws i.e.
modem Acts and Rules. Thus, it is quite often that one find courts and lawyers busy in
unfolding the meaning of ambiguous words and expressions and resolving inconsistencies.
The age-old process of the application of the enacted law has led to formulation o f certain
‘rules o f interpretation or construction’. According to Salmond, “Interpretation or
construction is the process by which the courts seeks to ascertain the meaning o f the
legislature through the medium of authoritative forms in which it is expressed’’. In short,
interpretation refers to ‘actual finding of true meaning of particular word in a statute’.
Liberal.and strict interpretation are two major types of interpretation. The literal or
-strict interpretation is confined to the ‘letter’ i.e. actual words used in statute. The liberal
20 Law Guide for Competitive Examinations

or logical interpretation permits departure from the letter o f law. Social welfare legislations
(e.g. Rent Act, Industrial and Labour legislations, etc.) are construed liberally, while fiscal
statutes (I.T. Act) and penal statutes (Cr. P.C., Law of Limitation) are construed strictly
The rules o f interpretation followed by courts are:
(1) Heydon's rule (Mischief rule) - The ‘oldest’ or ‘classical’ rule of construction
it was laid down in Heydon’s case (1584) that for the true interpretation of
all statutes in general the four things are to be considered: (i) What was the
law before the making of the Act (history, etc.), (ii) What was the mischief
and defect for which the law did not provide any limit, (iii) What is the
remedy the Act has now provided, and (iv) What is the reason of providing
that remedy. The rule then directs that the courts must adopt that construction
which “shall suppress the mischief and advance the remedy” pro bono publico.
This rule is very rarely applied in India.
(2) Literal, grammatical or plain meaning rule —It means to give to the words
their ordinary, natural and grammatical meaning prima facie. This has been
called the “safest rule” because the legislator’s intention can be deduced
only from the language through which it has expressed itself. However, the
rule fails to take into account that essence of law lies in its ‘spirit’ and not
in its ‘letter’. A strict adherence to this rule is not possible; departure is
inevitable in so many circumstances.
(3) Golden nde —If the strict literal interpretation gives rise to an absurdity or
inconsistency, such interpretation should be discarded and an interpretation
which will give effect to the purpose of legislation will be put on the words,
if necessary even by modification of the language used. On the face of it,
this rule solves all problems and is, therefore, known as the ‘golden rule’.
The court would, however, go not beyond what is absolutely necessary in a
practical situation, as it cannot extend the meaning and scope o f the statute.
(4) Beneficial/ Equitable construction rule - This rule permits the judges to
construe liberally. When the statutory words are capable o f two meanings
preference should be given to that meaning which produces the more
reasonable and just result, as the justice and reason constitute the great
general legislative intent in every piece of legislation. For instance, socio­
economic legislation with the object of securing social welfare is not meant
to be interpreted narrowly so as to defeat its object, viz. Workmen’s
Compensation Act, Equal Remuneration Act, Juvenile Justice Act, etc.
(5) Harmonious construction rule - This rule lays down that “every effort should
be made to give effect to all the provisions of an Act by harmonizing any
apparent conflict between two or more of its provisions”. It is to prevent or
avoid inconsistency or repugnancy between two sections or within a section
or between different provisions of a statute or between the two statutes.

[4 ] P r e c e d e n t
In a common law system like ours precedents constitutes a very important source of law.
It means the employment o f past decisions as guides in the moulding of future decisions.
 Jurisprudence 21

galinond defines precedent as ‘th e making of law by the recognition and application of
evV rules by the courts themselves in the administration of justice”. A judicial precedent
jS a judicial decision to which authority has in some measures been attached (Keeton).
The doctrine o f precedent provides the evidence o f what the law is on a particular time,
^judicial precedent is purely constitutive in nature and never abrogative i.e. it can create
law but cannot abolish it. The Judges are not at liberty to substitute their own views where
there is a settled principle o f law.
A precedent may be authoritative (i.e. having a binding force) or persuasive (i.e.
which the Judges are under no obligation to follow but which they may take into
consideration). The persuasive precedents are merely historical sources viz. Foreign
judgements, Judicial dicta (obiter dicta). Authoritative text books and commentaries.
Precedents get authority from various factors. For instance, the power exercised by
these courts (Supreme and High Courts) is one such fact which invests authority and
elevates them as precedents. These courts exercise power o f judicial review; this enables
them to lay down original precedents i.e. precedents which lay down new principles of
law. In England, as these courts have lost such power of review, there are only declaratory
precedents.
Do Judges M a k e Law?
It is a debatable question as to whether judges make law or simply declare an existing
one. According to the declaratory theory of precedent, judges are merely law finders and
not law-makers. Blackstone said that judges did not create any new principles of law
through their decisions but simply put a stamp of authority on the already existing principles
of law in the society. The judges either apply the Constitution or a legislation or a custom
to come to a conclusion. Coke said that judicial decisions are not source o f law but as
the proof of what the law is.
A number of jurists like Gray, Holmes, Dicey, Salmond and others have proved
beyond doubt that judges not only declare law but also make it through their decisions.
The law o f torts is almost entirely a creation of judges through their decisions. Dicey said
that the best part of the law of England i.e. common law is judge-made law. Bacon
observed that there frequently arises novel cases or case of first impression which the
judge has to decide widiout the assistance of any pre-detennined legal rule. The principle
laid down by judges in such cases are bound to be a distinct contribution to the existing
law. Judges may give a new meaning to the existing law which becomes a new law (Law-
making theory).
Constitutional cases decided by the Supreme Court are binding and are “law”.
However, the judge has to interpret and made law only within the material given by the
Statute. In Devki Nandan Agganval v Union o f India (AIR 1992 SC 96), the Supreme
Court held that the power of judges to interpret statutes is not unlimited. The court cannot
rewrite, recast or reframe the legislation for the very good reason that it has no power to
legislate. The court shall decide what the law is and not what it should be. The court
cannot add words to a statute or read words into it which are not there. The court will
adopt a construction which will can-y out the obvious intention of the legislature but could
tot legislate itself.
22 Law Guide for Competitive Examinations

Conclusions - True, the primary function of a judge is to adjudicate the conflicting claims
and not to lay down a new law, but he cannot refuse to decide a case on the ground that
the law is silent or obscure on the point. The legislation or legal rules cannot take into
account all the situations or circumstances that may arise in the future. In the process of
adapting law to new circumstances the judges very often extend the law.
In conclusion, we can say that ‘by removing ambiguities, clarifying obscurities and
harmonizing antimonies the judges impart to the legal system that certainty and clarity
without which it would be reduced to the level of mere futility. There is seen in bold relief
the creative power of the judicial process as a source of law’. The function of the
precedent will be to supplement, to interpret, to reconcile and to develop the principles
which a statute contains.
Legislation v Precedent (Statutory Law v Case Law)
(i) Legislation has its source in the law-making will of the State, precedent has its
source in the ratio decidendi and obiter dicta of the judgment of a court.
(ii) Legislation is the formal and express declaration of new laws or rules by
legislature; precedent is th^ creation of law by recognition and application of
laws or rules by the courts in the administration of justice.
(iii) Legislation is a formal general declaration of law in abstract while in precedent
law is created by its application to a specific situation. Thus, precedent is more
practical. It is the extreme manifestation of ‘law in action’ - application of
certain principles to specific fact situation.
(iv) Legislation is generally made for future transactions (prospective operation), but
precedent is always created with respect to past transactions (retrospective
operation). Thus, parties are governed by a law which did not exist at the time
when the transaction took place. While in case of legislation, the law becomes
known to the people in advance.
(v) Legislation is more coherent and certain, and, it is easier to get the law as
compared to the difficulty in finding the precedent. Over ruling of earlier decisions
and conflicting decisions of superior courts make the precedent uncertain.
(vi) Precedent has another drawback. Sometimes an erroneous decision is established
as law due to not being brought before superior court. This is not so in case of
legislation which can change a ‘wrong’ or ‘unpopular’ law at any time.
(vii) Legislation is rigid and must apply equally in disregard of needs of individual
justice, while precedent has the flexibility of being moulded and applied according
to the needs of individual case. Thus, precedent brings flexibility and scientific
development in law. And, precedent has greater justice content than legislation.
Doctrine o f 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. It is this binding nature of certain judicial decisions
that makes precedent an independent as well as an important source of law in common
law jurisdictions (British Commonwealth including India, U.S.A.). But in civil law countries
 Jurisprudence 23

cuss)3- France, Germany, Italy, Japan and Latin American countries), no single decision
ven of the highest court is absolutely binding. The rational being that if an erroneous
jecisi°n has been given it ought not to be allowed to spread and so as to corrupt the
■udgnient ot^er j udges- Decisions should be based on laws, not on precedents.
In India, precedents constitute a very important source of law. The Supreme Court
Ip a case observed that the doctrine of stare decisis is a very valuable principle of
precedent which cannot be departed from unless there are extraordinary circumstances or
special reasons to do so. The Supreme Court may depart from a previous decision if it
jS convinced of its error and its beneficial effect on the general interests of the public
(Bengal Immunity Co. v State o f Bihar AIR 1955 SC 661).
The most serious charge against stare decisis is that it tends to make the law a
‘wilderness of single instance’, since legal issues are infinite in number and are infinitely
various. Austin comments: “It is to the bulk of the community absolutely unknown and
unknowable... even to the mass of lawyers it is imperfectly known and liable to be
misconceived”. The enormous bulk of judge-made law poses a serious danger to the very
future of stare decisis.
On the question of suitability of stare decisis to Indian conditions, the Law
Commission of India opined: “The system was so bound up with the growth of law and
judicial development in India that it was not practicable to go back upon it at the present
stage even if the taking of such a step was desirable”. In its 14th Report, it observed that
if decisions of superior courts or even of the same courts are not to be regarded as binding
on the judges, it will be impossible for individuals to regulate their future conduct relying
on any particular view of law.
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 and, usually, by a court
of equivalent standing. In India, the decisions of the Supreme Court and the High Courts
are binding over their subordinate courts and tribunals. The authority of the Supreme
Court decisions as precedents is enshrined under Art. 141 of the Constitution - “The law
declared by the Supreme Court shall be binding on all courts within the territory of India”.
A High Court Whether Bound by the Decision of Another High Court?
A single Bench of a High Court is bound by the decisions of a Division Bench of that
court and a Division Bench by the decision of a Full Bench (except that the latter Division
Bench has the right to refer the case to a Full Bench for reconsideration of the earlier
decision in the event of the disagreeing with the view of the former Division Bench).
However, the decision of a High Court has only persuasive authority outside the territory
subject to its jurisdiction (Law Commission, 14th Report). Thus, a High Court is not
bound by the decision of another High Court.

Supreme Court Whether Bound by Its Own Decisions?

The Supreme Court of India is not bound by its own decision. It can overrule its own
decisions. For instance, ‘right to die’ once considered as unconstitutional was recognised
as an implied fundamental right by the Supreme Court and now, again, recently, declared
as unconstitutional by the Supreme Court. The expression ‘all courts, in the territory of
India’ (Art. 141) clearly means courts other than the Supreme Court.
24 Law Guide for Competitive Examinations

Doctrine o f Prospective Over-ruling

If the courts merely declare pre-existing law. it logically follows that an over-ruijn
decision operates retrospectively. This caused considerable hardship and injustice to the
affected parties who relied and acted on previous decisions. In order to avoid such
hardships the doctrine of Prospective over-ruling provides that the case before the court
is determined under the old principle but caution is given that future cases will be decided
according to the rule newly created. In other words, it was not to operate retrospectively
The Supreme Court of India restricted the effect of Golak Nath case (AIR 19 5 7
1642) to future cases only by applying this doctrine. Since that case, the Judges in India
apply the existing law to past transactions and newly created formulation to future instances
R atio decidendi and Obiter dicta
Every statement made in a judicial decision is net an authoritative source to be followed
in a later case presenting a similar situation. Only those statements in an earlier decision
which may be said to constitute the ratio decidendi of that case are held to be binding
as a matter of general principle in subsequent cases.
The part of a case that is said to possess authority is the ratio decidendi, i.e. the
rule of law upon which the decision is founded. What the doctrine of precedent declares
is that cases must be decided the same way when their material facts are the same. Thus,
ratio decidendi of a case can be defined as the materialfacts o f the case plus the decision
thereon. A case may have not one but several ratio decidendi (e.g. different opinions of
different judges in a case). The judgment in a precedent must, moreover, be read secundum
subjectam materiem; it is a judgment in relation to the facts of a particular case and the
judge may not be laying down a rule for any case other than the one before him and
precisely similar cases.
Obiter dicta - In simple terms, it refers to the observations made by a court in a particular
case. All that is said by the court by the way or the statement of law which goes beyond
the requirements of the particular case are obiter dicta (e.g. hypothetical facts, illustrations
and casual expressions). The judges are not bound to follow them though they can take
advantage of the same. The obiter dictum may be respected according to the reputation
of the judge, the eminence of the court, and the circumstances in which it came to be
pronounced. The reason for not regarding an obiter dictum as binding is that it was
probably made without a full consideration of the cases on the point.
Nevertheless, they (obiter) are important as not only do they help to rationalize the
law but also they serve to suggest solutions to the problems not yet decided by the courts.
It may be noted that the Allahabad, Bombay, and, Karnataka High Courts have held that
the obiter dicta of the Supreme Court is also ‘Law’ within the meaning of Art. 141 of the
Constitution, and hence, binding on all Courts.
 Jurisprudence 25

4. RIGHTS AND DUTIES

yeaning o f ‘R ights’ - Including ‘Legal Rights’

just as we require food, clothing and goods affording the conveniences of living, we need
fights also - rights recognized and enforceable at law. As a legal term, it means the
‘standard of permitted action by law’. Such permitted action of a person is known as his
legal right.
Austin - A right is a ‘faculty which resides in a determinate party or parties by virtue of
a given law and which avails against a party or parties other than the party or parties in
whom it resides’. According to him, a person can be said to have a right only when
another or others are bound or obliged by law to do something or forbear in regard to him.
It means that a right has always a corresponding duty. This is not correct. Austin adds:
“Though every law does not create a right, eveiy right is the creature of law. And, rights
are exercised by persons, or else, reside in persons".
Holland - He regards ‘legal right’ as the ability possessed by a person to control others’
actions, with the assent and assistance of the State. Thus, Holland follows the definition
given by Austin.
Kohler - A legal right is “ a relation sanctioned and protected by the legal order”.
Salmond- ‘A right is an interest recognized and protected by a rule of right (rule of law).
It is an interest, respect for which is a duty and disregard of which is a wrong’. Thus, a
right must be judicially enforceable. Further, the element of interest is essential to constitute
a right (Ihering).
Duguit and Kelsen - Duguit says that ‘no one has any other right than always to do his
duty’. Kelsen also says that there is no such conception as right in law.
Indian Supreme Court - In State of Rajasthan v Union o f India (AIR 1977 SC 1361),
the Court observed: “In a strict sense, legal rights are correlative of legal duties and are
defined as interests which the law protects by imposing corresponding duties on others.
But in a generic sense, the word ‘right’ is used to mean an immunity from the legal power
of another”.
Conclusions - We may define a ‘legal right’ as any interest which is either vested or
created under a law or under a contract.

Theories of Legal Right

(1) Will theory - This theory says that the purpose of law is to grant the individual
the means of self-expression or self-assertion. Therefore, right emerges from the
human will. The definitions of right given by Austin and Holland lay down that
the ‘will’ is the main element of a right. A strong support to the theory has been
given by the doctrines of natural rights. Puchta defined legal right as a ‘power
26 Law Guide for Competitive Examinations

over an object which by means of this right be subjected to will of the person
enjoying the right’. Paton, however, said: “Will is an essential element in the
general conception of legal right, but it is not the only element”.
(2) Interest theory - Ihering defines legal right as ‘a legally protected interest’
According to him, the basis of right is ‘interest’ and not ‘will’. Law always has
a purpose. In case of rights the purpose of law is to protect certain interests and
not the wills of individuals. Salmond also supported Ihering’s views.
It may be noted that ‘rights and interests are not identical’. Many interests receive
no recognition or protection from any rule of right. For the interests of men conflict with
each other, and it is impossible for all to receive rightful recognition. Whether an interest
amounts to a right depends on whether there exists with respect to it a duty imposed upon
any other person.
The ‘interest’ theory is supported on the ground that there are cases where a person
may have rights without having any ‘will’. Infants, lunatics and corporations have legal
rights but they do not have wills. However, it may be noted that in all these cases a will
is operative, i.e. of the guardian of the infant, or the lunatic, or the members of the
corporation.
Conclusions - A synthesis of the above two theories can give a correct picture. The
human will is always directed towards certain ends. These ends are nothing but certain
interests. Law protects certain wills pursuing certain interests as rights. Therefore, ‘right’
means the legal protection and recognition of human will directed towards the satisfaction
of certain interests. Allen said: “The essence of right seems to be not legally guaranteed
powers by itself, but the legally guaranteed power to realize an interest”. He says that
‘right spring from right’. In most cases, moral and legal rights coincide and they clash
only in rare cases.

T h e E lem en ts o f a Legal Right

There are five elements or characteristics of a legal right (Salmond):
(i) The subject or the person of inherence - Subject means the person in whom the
right is vested, or the holder of right. There can be no right without a subject,
which may be determinate or indeterminate (e.g. society).
(ii) The person bound or the person of incidence - It means the person upon whom
falls the correlative duty.
(iii) The act or forbearance - Right relates to some act or forbearance. It obliges a
person to act or forbear in favour of the person who is entitled to the right. It
is the content of the right.
(iv) The object o f right or the res concerned - It is the thing in respect of which the
right exists or is exercised. The object or subject matter of right may be material
or immaterial, determinate or indeterminate.
(v) Title - Every legal right has a title, i.e. certain facts or events by reason of which
the right has become vested in the owner.
 Jurisprudence 27

Thus, if A buys a piece of land from B, A is the subject or owner of the right so
Ted. The persons bound by the correlative duty are persons in general, for a right of
aC<*kind avails against the entire world. The content of the right consists in non-interference
hlS the purchaser’s exclusive use of the land. The object or subject matter of the right
1#
land. And finally the title of the right is the conveyance by which it was acquired
isthe
its former owner.
from
In this way, according to Salmond, every right involves a three-fold relation, in
lVhich its holder stands -
(1) It is a right against some person or persons.
(2) It is a right to some act or omission of such person or persons.
(3) It is a right over or to some thing to which that act or omission relates.

Classification o f R ights
Ike legal rights may be classified as follows:
(1) Perfect and Imperfect rights - A 'perfect right’ means a right which has
a correlative perfect duty i.e. duty that can be legally enforced. Generally,
when law recognizes a right, it prescribes a remedy also and when the right
is violated, it enforces it. An ‘imperfect right’ is that right which, although,
recognized by law, is not enforceable, such as a time-barred claim, claims
unenforceable by action owing to the absence of a legally requisite proof
(such as a written document). Such cases may be considered as an exception
to the rule Ubi jus ibi remedium (where there is a right there is a remedy).
(2) Rights in rem and Rights in personam - Right in rem, also called a ‘real’
right, corresponds to a duty imposed upon persons in general; right in
personam, also called a ‘personal’ right, corresponds to a duty imposed
upon determinate individuals. A right in rem is available against the world
at large; a right in personam is available only against particular persons. An
illustration - My right to the peaceable occupation of my farm is in rem, for
all the world is under a duty towards me not to interfere with it. But if I
grant a lease of the farm to a tenant, my right to receive the rent from him
is in personam, for it avails exclusively against the tenant himself.
Generally most of the rights in personam are ‘positive’ rights, and rights in rem are
mostly ‘negative’. In case of positive right the person having the right can compel the
person upon whom the correlative duty is imposed to do some positive act. The scope of
a negative right is only that the person having the right shall not be harmed.
It may be noted that a breach of right in rem give rise to a right in personam to
receive compensation against the wrong doer. The division of rights between rights in rem
and rights in personam is not exhaustive. For example, the right of the beneficiary in a
'rust property is not only a right in personam, because the right is available not only
against the trustee but the beneficiary can follow the trust property in whosesoever hand
11 goes; it cannot be said to be a right in rem exclusively, because the bona fide purchaser
value without notice is immune from the claim of the beneficiary.
28 Law Guide for Competitive Examinations

(3) Rights in re propria and Rights in re aliena - Rights in re propria

the rights in one’s own things. Rights in re aliena are the rights in the means
thin
of others, also called ‘encumbrances’. It fr equently happens that a right ve ^
in a person become subject or subordinate to an adverse right vested in anothe
Thus, the right of a landowner may be subject to, and limited by, that 0 /
tenant to the temporary use of the property. The right so subjected is kn0 3
as ‘servient’ and the right which limits it is known as ‘dominant’. The nrain
classes of encumbrances are leases, servitudes, securities and trusts.
(4) Vested and Contingent rights - A right vests when all the facts hav
occurred which must by law occur in order for the person in question to
have the right. A right is contingent when some but not all of the vestitive
facts, as they are termed, have occurred. It would become vested when all
the facts have occurred. A grant to A for life and then to B in fee simple
if he survives A, gives B a contingent right. A grant of land to A in fee
simple will give A vested right of ownership.
(5) Primary and Secondary rights - Primary rights are those rights which are
independent of a wrong having been committed. They exist for their own
sake. They are antecedent to the wrongful act or omission, thus they are also
called antecedent rights. Examples of primary rights are the right of reputation,
the right in respect of one’s own person, etc. Secondary rights are a part of
the machinery provided by the State for the redress of injury done to primary
rights. Secondary rights come in the form of remedial rights. Thus, if any
person defames A, A has a right to receive damages from him.
(6) Legal and Equitable rights - Equitable rights are a creation of English
legal system and are based on equity rules. There are some basic distinctions
between legal and equitable rights. The court enforces legal rights
automatically on proof of their existence, while equitable rights depend for
enforcement upon the discretion of court. Equitable rights are easier of
creation, for equity depends upon conscience and good faith. Equitable rights
have a more precarious existence than legal rights. Where legal and equitable
rights conflict, the legal right will prevail. The maxim is: where there are
equal equities, the law will prevail.
(7) Jus ad rem - It is a ‘right to a right’. The person of inherence has a right
to have some other right transferred to him. It is always a right in personam.
If I sell my house to A, A acquires a right against me to have the house
transferred to himself. The right of A is said to be jus ad rem.

D uties
A ‘duty’ is roughly speaking an act which one ought to do, an act the opposite of which
would be a wrong. A legal wrong is a violation of justice according to law. To ascribe
a duty to a man is to claim that he ought to perform a certain act. Yet not all the acts which
a man ought to do constitute duties. His duties are which he owes to others by virtue of
his position or station. The servant has a duty to serve his master, the child to obey his
parent and so on.
 Jurisprudence 29

VVith duties we may contrast obligations. These a man has through having taken
upon himself of his own choosing (e.g. obligation that results from making a promise),
there may be many other things which a man ought to do, but which fit into neither
^tjtgse categories. Many dictates of common morality, such as that one should not steal
° kill, hardly constitute duties or obligations in the strict sense. Duties, like wrongs, are
°[two kinds, being either legal or moral.
When the law obliges a person to do something, it is called a positive duty. A debtor
. under an obligation to pay off his creditor. When the law obliges a person to forbear
^0m doing a certain thing it is a negative duty. Persons generally are in duty bound not
t0 defame others. A primary duty is that duty which exists per se and independent of any
other duty. The duty not to cause hurt to any person is a primary duty. A secondary duty
jSthat duty whose purpose is only to enforce some other duty.

Liability
^ breach of legal rules is called ‘wrong’. When a person has committed a wrong, he is
said to be ‘liable’. Thus, liability is the condition of the person who has committed a
svrong. Salmond defines liability as ‘the bond of necessity that exists between the wrong
doer and the remedy of the wrong’. The task of law is not finished only by laying down
rights and duties; it ensures their protection, enforcement and redress also.

Jural R elations
A‘jural relation’ is a relation between person and person determined by a rule of law
(Savigny). Jural relations are those relationships in society which guide the conduct of one
nan towards another or others. There are various kinds of jural relations, e.g.. Right-duty
relation, Liberty-no claim relation. Power-liability relation, and. Immunity-disability relation.
Austin's Right-duty Relation
Rights and duties are correlated to each other in such a way that one cannot be conceived
without the other. A right is always against someone upon whom the correlative duty is
imposed. In the same way a duty is always towards someone in whom the correlative right
vests. But, Austin said that there can be duties without a corresponding right, such duties
are ‘absolute duties’. The duties, which are always correlated with a right, are called
relative duties’. Austin said that there are four kinds of ‘absolute duties’ - (1) Duties not
regarding persons (e.g. those owed to God and the lower animals); (2) Duties owed to
persons indefinitely (e.g. towards the community); (3) Self-regarding duties; (4) Duties
owed to the sovereign.
Austin conceived it to be of the essence of a right that it should be vested in some
determinate person, and is enforceable by some form of legal process instituted by him.
On this view, duties towards the public at large have no correlative rights e.g. the duty
10 refrain from committing a public nuisance. Similarly, the duties in criminal lav/ are
""Posed with reference to, and for benefit of members of society, none of whom has
"ghts correlative io these duties. Statutory duties furnish other examples. Thus, the duty
of >he court to properly deal with an offender is an absolute duty.
30 Law Guide for Competitive Examinations

On a close examination of Austin’s view it becomes clear that it is wrong

absolute duties enumerated by him are not duties in the legal sense, or if they are dut-
at all, they are not absolute. Thus, the general duty towards the community is no(, ,es
more than a bundle of duties towards each particular individual of the community a ®
each individual has got a correlative right. Self-regarding duties are also the duties towa^
the State because it is a part of the criminal law as ‘an attempt to commit suicide’ j
democratic countries, a citizen has rights against the State. A correlative duty binds th
State and the State is bound until it changes the law. In the same way the State has rights
against the citizens. Thus, Austin’s theory does not stand true in modem times.
Comments: The truth is that rights in the strict sense (rights stricto sensu) hav
corresponding duty, but the rights in the wider sense do not. Right in the ‘wider’ sense
includes other legally recognized interests (e.g. liberty, power, immunity) without
considering whether they have a corresponding legal duty or not.
Salmond's Analysis
He said that the term legal right in its generic sense means ‘any advantage or benefit
which is in any manner conferred upon a person by a rule of law’. Of rights in this sense
there are four distinct kinds. These are (1) Rights (in the strict sense); (2) Liberties-, (3 )
Powers; and (4) Immunities. Each of these has its correlative, namely (1) Duties, (2) No­
rights, (3) Liabilities, and (4) Disabilities.
Hohfeldian Analysis
The analysis given by Salmond was carried further by Hohfeld. He analyzed it with
greater accuracy. For example, Salmond has used the word ‘right’. As ‘right’ has a wider
meaning also, its use may create confusion. Thus, Hohfeld used the term ‘claim’ instead.
Further, Hohfeld elaborated the Salmond’s analysis by providing for ‘Jural Opposites’
also.
There are four kinds of ‘rights’: Claim (or Right), Privilege (or Liberty), Power,
and, Immunity.
Jural Correlatives: Right - Duty; Privilege - No-right; Power - Liability; Immunity -
Disability.
Jural Opposites: Right - No-right; Privilege - Duty; Power - Disability; Immunity -
Liability.
Prof. G. L. Williams explained the Hohfeld’s theoiy. Jural Correlatives implies
claim in one person and the presence of its correlative duty in another person. Jural
Opposites (jural negations) implies claim in one person anc' the absence of its opposite
(no-claim) in himself and vice versa. Jural Contradictories were not mentioned in the
Hohfeldian scheme.
(I)Claim — Duty Relation (‘You Ought' or ‘Must’)
A ‘claim’ or ‘right’ is a sign that a person ought to behave in a certain way. Every claim
implies a correlative duty. Thus, the statement that ‘X has a claim’ is meaningless; but the
statement ‘X has a claim that Y ought to pay him Rs. 10’ is meaningful. Whether every
duty implies a correlative claim is doubtful. In fact, non-correlative duties do not fit
properly into the Hohfeldian scheme. For example. Fundamental Duties under the
 Jurisprudence 31

Constitution of India (Art. 51-A) are absolute duties i.e. duties not accompanied by
claims- Although it is a duty of every citizen to respect national flag, protect culture, etc.
,et the State cannot have any claim in respect of such duties. Thus, Fundamental Duties
n0l Hohfeldian one.

(2 ) Liberty - No-claim Relation (7 May')

-fhe term ‘liberty’ or ‘privilege’ refers to the freedom which a person has to do or not to
do something. A liberty in X implies the presence of a no-claim (i.e. absence of claim)
jn Y (Jural correlatives). If X were under a duty to wear a hat, this would imply the
absence in him of any liberty not to wear it (Jural opposites). A claim in Y implies the
absence of a liberty in X i.e. claim and liberty are jural contradictories. A claim implies
a correlative duty, but a liberty does not. The liberty and claim are separate; the claim can
be extinguished without affecting the liberty. The maxim damnum sine injuria (detriment
without legal injury) illustrates a ‘no-right’.
limits (Controls) o f liberty - The Parliamentary privileges/ Judicial privileges/ are liberties
in the Hohfeldian sense that both connote the absence of a duty not to utter defamatory
statements. These are ‘unlimited’; similar is the case of privileges of Prime Minister and
President. Others are ‘limited’ viz. various freedoms guaranteed under the Indian
Constitution (Art. 19 viz. freedom of speech, expression, trade, etc.) are ‘qualified privileges/
liberties’ because the State can impose ‘reasonable restrictions’ on them. Similarly, defence
of fair comment in defamation, self-help or defence, etc.
It may be noted that if the ‘Right to work’ is regarded as a liberty, this works against
the claim that this right should be protected by laws prohibiting others from preventing
a man from doing his work. If on the other hand, it is spoken of as a right, this may
operate to ground claims that the law should protect this right by prohibiting interference,
by guaranteeing employment, etc. Thus, Hohfeldian analysis is not always clear.
(3) Power - Liability Relation (7 Con')
‘Power’ denotes ability in one person to alter the existing legal relations (rights, duties,
liabilities, etc.), whether of oneself or of another, for better or for worse. ‘Liability’,
correlative of power, denotes the position of a person whose legal condition is so altered.
‘Right as a power’ implies right to make a will, or to alienate property, power to sue, etc.
Powers differ from claims (rights) in as much as they have no duties corresponding to
them. One’s right to make a will corresponds to no duty in anyone else. All rights or
liberties are rights to act or abstain, not to produce legal effects. While, powers have
certain legal effects.
Rightful powers - Sometimes, a power is coupled with a liberty to exercise it (‘discretionary
power’), while at other times, it may be coupled with a duty to exercise it (‘ministerial
power’). An example of the former is: Supreme Court has a liberty to decide whether
petitioner moved by ‘appropriate proceeding’ or not, under Art. 32 of the Constitution.
An example of the latter is: Power and duty of a judge to give a decision.
Wrongful powers - Where a power is coupled with a duty not to exercise it, the party
concerned has no liberty to do so viz. where a thief sells a thing in the market openly to
an innocent purchaser. To call such power ‘right’ would be a misnomer, for it would be
32 Law Guide for Competitive Examinations

speaking o f ‘right’ to commit wrongs. Thus, not all powers, in the sense in which Hohf
used the term, can be called ‘rights’.
(4) Immunity — Disability Relation ('You Cannot')
‘Immunity’ denotes freedom from the power of another, while ‘Disability’ denotes the
absence o f power. The President of India has various immunities e.g. no civil or criminal
proceedings can be instituted during the tenn of his office. The rule Nemo dat quod non
habet can be expressed as a disability on the part o f persons in general to transfe
property that they do not themselves own.
If X has a power, Y has a liability. A liability in Y means the absence of im m u n ity
in him. Therefore, immunity and liability are 'jural opposites'. Conversely, the presence of
immunity in Y implies the absence of a liability in him (Immunity in short is ‘No-liability’)
The absence of a liability in Y implies the absence of a power in X . Thus, immunity in y
implies the absence of a power in X i.e. power and immunity are ‘jural contradictories'
The term ‘Disability’ denotes ‘No-power’. Power and disability are thus ‘jural
opposites’. It follows fr om this that immunity in Y implies the presence o f a disability in
X i.e. they are ‘jural correlatives'.
Distinction between Claim/ Liberty and Immunity — An immunity is not necessarily
protected by a duty in another person not to attempt an invasion o f it. Further, there may
be immunity in X, which is protected by a duty in Y, but the claim correlative to that duty
is not in X. Thus, diplomatic envoys are immune from the power of action or other legal
process, though they are treated as being capable of committing a breach of duty and are
under a duty to pay damages. In other words, they have no liberty to do the act, nor a
liberty not to pay damages, but they have immunity from process all the same.

5. LEGAL PERSONALITY

The term personality (Gk. Prosopon; Lt. Persona meaning a mask) entails the possession
of those characteristics belonging particularly to mankind i.e. the power of thought, speech
and choice. So far as legal theoiy is concerned, a person is any being whom the law
regards as capable o f rights or duties. Persons as so defined are of two kinds —natural
and legal. A natural person is a human being. Legal persons are beings, real or imaginary,
who for the purpose of legal reasoning are treated in greater or less degree in the same
way as human beings.
‘Natural persons’ are those which are bom by nature and it is thereafter the role of
legal system comes into being. ‘Legal persons’ mean beings and things which are treated
as persons by law. Thus, they are created by law only. Since it was felt by the dynamic
society that the natural persons by themselves cannot take the responsibility of all their
activities, therefore, it was thought necessary to confer legal personality to not only living
entities but non living ones also. In modem times, with very few exceptions legal personality
is granted to all human beings (which begins at birth and ends with the death).
 Jurisprudence 33

It is important to note that all natural persons are not legal persons. For example,
lunatics, minors, dead persons, etc. Legal theory assumes that a person is an entity
is capable o f suing and being sued. While the above-mentioned persons can’t sue
1 sued. Legal persons are also termed fictitious, juristic, artificial or moral. Corporation,
0< oany, university, State, etc. are artificial person which are, by fiction of law, given a
° al personality. Human beings, similarly, transformed into the juristic persons. Legal
^ onality, thus, solely is a creation o f the law.

L,ega ' S t a t u s o f t h e L o w er A n im a ls
animal is not a person, either natural or legal. It is merely a thing - often the object
f ^gal rights and duties, but never the subject of them. Its interests receive no recognition
jam the law. There are, however, two cases in which animals may be thought to possess
legal tights. In the first place, cruelty to animals is a criminal offence, and in the second
iaCe, a trust for the benefit of particular classes of animals, as opposed to one for
iadividual animals, is valid and enforceable as a public and charitable trust. It would of
course be possible for a legal system to regard an animal as a person and endow it with
rights and duties.

Legal S ta tu s o f D e a d M en
Dead men are no longer persons in the eye o f the law. Yet although all a man’s rights and
interests perish with him, he does, when alive, concern himself much with that which shall
become of him and his after he is dead. There are three such things recognized by law
- a man's body, his reputation, and his estate.
A corpse is the property of no one. Will or any other instrument cannot dispose it
of, and no wrongful dealing with it can amount to theft. The criminal law, however,
secures decent burial for all dead men. The testamentary directions of a man as to the
disposal of his body are without any binding force, save that by statute he is given the
power of protecting it from the indignity of anatomical uses. Similarly, a permanent trust
for the maintenance of his tomb is illegal and void.
The reputation of the dead receives some degree of protection from the criminal
law. A libel upon a dead man is punishable, but only when its publication is an attack
upon the interests of the living persons. By way of testamentary succession, a man for
many years after his death may continue to regulate and determine the disposition and
enjoyment of the property which he owned while living.

Legal S ta tu s o f U n b o rn P erso n s
An unborn person is a legal person. However, the rights of an unborn person, whether
proprietary or personal, are all contingent on his birth as a living human being. A child
in its mother’s womb is for many purposes regarded by a legal fiction as already born-,
and it can inherit property. It may be one of the beneficiaries of a trust. Significantly,
Paton does not recognize a child in the mother’s womb as a legal person because it is
without rights.
32 Law Guide for Competitive Examinations

speaking of ‘right' to commit wrongs. Thus, not all powers, in the sense in which Hohfeij
used the term, can be called ‘rights’.
(4) Immunity — Disability Relation ('You Cannot')
’Immunity' denotes freedom from the power of another, while ‘Disability’ denotes the
absence of power. The President of India has various immunities e.g. no civil or criminal
proceedings can be instituted during the term of his office. The rule Nemo dat quod non
habet can be expressed as a disability on the part of persons in general to transfer
property that they do not themselves own.
If X has a power, Y has a liability. A liability in Y means the absence of immunity
in him. Therefore, immunity and liability are 'jural opposites'. Conversely, the presence of
immunity in Y implies the absence of a liability in him (Immunity in short is ‘No-liability’)
The absence of a liability in Y implies the absence of a power in X. Thus, immunity in y
implies the absence of a power in X i.e. power and immunity are jural contradictories'
The term ‘Disability’ denotes ‘No-power’. Power and disability are thus ‘jural
opposites’. It follows from this that immunity in Y implies the presence of a disability in
X i.e. they are jural correlatives'.
Distinction between Claim/ Liberty and Immunity - An immunity is not necessarily
protected by a duty in another person not to attempt an invasion of it. Further, there may
be immunity in X, which is protected by a duty in Y, but the claim correlative to that duty
is not in X. Thus, diplomatic envoys are immune from the power of action or other legal
process, though they are treated as being capable of committing a breach of duty and are
under a duty to pay damages. In other words, they have no liberty to do the act, nor a
liberty not to pay damages, but they have immunity from process all the same.

5. LEGAL PERSONALITY

The term personality (Gk. Prosopon\ Lt. Persona meaning a mask) entails the possession
of those characteristics belonging particularly to mankind i.e. the power of thought, speech
and choice. So far as legal theory is concerned, a person is any being whom the law
regards as capable o f rights or duties. Persons as so defined are of two kinds - natural
and legal. A natural person is a human being. Legal persons are beings, real or imaginary,
who for the purpose of legal reasoning are treated in greater or less degree in the same
way as human beings.
‘Natural persons’ are those which are bom by nature and it is thereafter the role of
legal system comes into being. ‘Legal persons’ mean beings and things which are treated
as persons by law. Thus, they are created by law only. Since it was felt by the dynamic
society that the natural persons by themselves cannot take the responsibility of all their
activities, therefore, it was thought necessary to confer legal personality to not only living
entities but non living ones also. In modem times, with very few exceptions legal personality
is granted to all human beings (which begins at birth and ends with the death).
 Jurisprudence 33

It is important to note that all natural persons are not legal persons. For example,
lunatics, minors, dead persons, etc. Legal theory assumes that a person is an entity
ifi0'5' -5 capable o f suing and being sued. While the above-mentioned persons can’t sue
ueCj, Legal persons are also termed fictitious, juristic, artificial or moral. Corporation,
be sued
0 any. university, State, etc. are artificial person which are, by fiction of law, given a
' j personality. Human beings, similarly, transformed into the juristic persons. Legal
tonality thus, solely is a creation o f the law.

l.ega* S ta tu s o f th e L ow er A nim als

v animal is not a person, either natural or legal. It is merely a thing - often the object
flegal rights and duties, but never the subject of them. Its interests receive no recognition
the law. There are, however, two cases in which animals may be thought to possess
;eoal rights. In the first place, cruelty to animals is a criminal offence, and in the second
ljCe, a trust for the benefit of particular classes of animals, as opposed to one for
^dividual animals, is valid and enforceable as a public and charitable trust. It would of
jourse be possible for a legal system to regard an animal as a person and endow it with
nghts and duties.

Legal S ta tu s o f D ead Men

Dead men are no longer persons in the eye of the law. Yet although all a man’s rights and
interests perish with him, he does, when alive, concern himself much with that which shall
become of him and his after he is dead. There are three such things recognized by law
- a man’s body, his reputation, and his estate.
A corpse is the property of no one. Will or any other instrument cannot dispose it
of, and no wrongful dealing with it can amount to theft. The criminal law, however,
secures decent burial for all dead men. The testamentary directions of a man as to the
disposal of his body are without any binding force, save that by statute he is given the
power of protecting it from the indignity of anatomical uses. Similarly, a permanent trust
for the maintenance of his tomb is illegal and void.
The reputation of the dead receives some degree of protection from the criminal
law. A libel upon a dead man is punishable, but only when its publication is an attack
upon the interests of the living persons. By way of testamentary succession, a man for
many years after his death may continue to regulate and determine the disposition and
enjoyment of the property which he owned while living.

Legal S ta tu s of U nborn Persons

An unborn person is a legal person. However, the rights of an unborn person, whether
proprietary or personal, are all contingent on his birth as a living human being. A child
in its mother’s womb is for many purposes regarded by a legal fiction as already born-,
and it can inherit property. It may be one of the beneficiaries of a trust. Significantly,
Paton does not recognize a child in the mother’s womb as a legal person because it is
without rights.
 34 Law Guide for Competitive Examinations

L egal P ersons
Legal persons, being the arbitrary creations of the law, may be of as many kinds as
law pleases. The important ones are: e
(i) Corporations, Companies, etc.
(ii) Associations. Autonomous bodies. Institutions e.g. a church, a hospital
university', a library, a college, a bank, railways, etc.
(iii) Registered trade unions, friendly societies, etc.
(iv) Charitable fund, trust estate (e.g. property of a dead man).
(v) The State.
Legal personality is attained when law recognizes a single entity over and above the
group of the individuals or the thing which though represents the groups of the individuals
or the thing, is distinct from them. The unincorporated associations e.g. a club, are not
a legal person. The rights and duties of a club are nothing more than the rights and duties
of its members.
A partnership firm is not a legal person, but yet resembles one in certain ways. It
can sue and be sued in its own name, and its property is separate from the property of
its members. But the rights of partnership are in fact the rights of the partners, as are its
liabilities, for the partners are in general fully liable personally for the debts of the firm
In contrast, a company or a corporation is in law a district person from its members
(Savigny); the members are not liable personally for the debts of the company. The
corporation is not a mere aggregate of shareholders [Salomon v Salomon & Co. (1897)].
Further Examples
Coparcenary System o f Hindu Law - It may be considered to be more or less, a corporation
sole. The head (Karta) of family acted in a representative capacity and in this capacity
he sued and could be sued. The Joint Hindu Family, however, cannot be considered as
a legal person.
An Idol in Temple - It is a juristic person and as such it can hold property. But it is treated
as a minor, and Pujari or somebody else acts on its behalf as a guardian (Yogendra Nath
v C.I.T, Calcutta (1969) 3 SCR 742).
A Mosque - In Maula Baksh v Hafiz-ud-din (AIR 1926 Lah 372), a mosque was held to
be a juristic person which could sue and be sued. But in Masjid Shahid Ganj case (1940)
67 LA 251, it was held that suits can’t be brought by or against mosques, for they are not
‘artificial’ persons in the eye of the law. However, the question whether a mosque could
be for any purpose regarded as ‘juristic’ person, was left open.
Gurudwara and Guru Granth Sahib - ‘Guru Granth Sahib’, the holy granth of Sikhs is
a legal person. However, Gurudwara and Guru Granth Sahib are not two separate legal
entities. The existence of Gurudwara is because of the installation of ‘Guru Granth Sahib’
which is its nucleus. ‘Guru Granth Sahib’ stands on altogether different footing than the
Holy Books of other religions, namely, Quran, Bible, Ramayan, Bhagwat Gita, etc. because
the latter are not regarded as legal persons. ‘Guru Granth Sahib’ is, on the other hand,
treated and worshipped as ‘Guru’ and considered as the soul and heart of Gurudwara
[Sriomani Gurudwara Prabandhak Committee v Somnath Das (2000) 4 SCC 186].
 Jurisprudence 35

•Math' - It is a juristic person.

4 Slave - In olden days the slaves were not considered legal persons. They were treated
' chattle of their masters, incapable of either rights or liabilities. But after the independence,
0ur Constitution makers have clearly prohibited untouchability, slavery as well as any
form of forced labour derogatory to the personality of the individual.
4 Sanyasi - A person who takes religious/holy order is, for some purposes, considered
to be civilly dead in many societies. For example, in Hindu society when a person
becomes an ascetic (sanyasi), his proprietary rights extinguish and his property goes to
bis heirs as if he were dead. Thus, a sanyasi is not a legal person.
prime Minister o f India - The Prime Minister of India is not a legal person as it cannot
sue and cannot be sued in his/her capacity as a prime minister.
Union o f India/ State - State is a juristic person. It can sue and can be sued. Article 300
of the Indian Constitution provides: ‘The Government of India may sue or be sued by the
name of the Union of India and the Government of State may sue or be sued by the name
o f the State....” In Civil Procedure Code, 1908, provision has been made for making
parties in suits by and against the State.
President/ Governor - They are a corporation sole like the British Crown.
Bench ofJudges/Cabinet o f Ministers - These have no legal personality. There is no distinction
between the individuals who compose the group and the group. It is the State which is liable
for the tort or breach of contract committed by a Minister in his official capacity.
Reserve Bank o f India - It has also a corporate existence.
Union Public Service Commission - It is not a legal person.

C o rp o ratio n : Sole and A g g reg ate

Corporations are persons incorporate or politique created by the policy of man. Corporations
are of two sorts, viz., either sole or aggregate of many. A corporation aggregate is "an
incorporated group of co-existing persons”, and a corporation sole is "an incorporated
series of successive persons.” The former is that which has several members at a time,
while the latter is that which has only one member at a time.
Corporation aggregate are by far the more numerous and important. Examples are
a registered company consisting of all the shareholders, and a municipal corporation,
consisting of the inhabitants of the borough. Corporation sole are found only when the
successive holders of same public office are incorporated so as to constitute a single,
permanent, and legal person. The Sovereign or King, for example, is said to be a corporation
of this kind at common law, while the Postmaster-General, Auditor-General, the Solicitor
to the Treasury, the Secretary of State, Public Trustee, the Ministers, President of India,
have been endowed by statute with the same nature.
The concept of ‘corporation sole' came into being to solve the problem of the
devolution of land held by ecclesiastics in right of their ecclesiastical office. Later on, the
same theory was applied to certain public offices. In some cases this was done through
special statutes. In .Continental law there is no such concept as corporation sole. In
‘corporation aggregate’, the personality is conferred upon groups by law. A corporation
36 Law Guide for Competitive Examinations

can be created by (a) a Royal Charter, or (b) by some special statute, or (c) by rcgistratjon
under the Companies Act. The last is the most prevalent and popular method of creating
a corporation. Groups of individuals are ‘incorporated’ so as to constitute a single legal
person, so that their common interest is protected with more convenience.
Thus, in both corporation sole and aggregate, the legal person is not identical with
any human being. A company (corporation aggregate) is in law something different from
its shareholders or members. Contracts may be made between the company and a
shareholder, as if between two persons entirely distinct from each other.
In the case of corporation sole, it is not the member who from the corporation sole
it is the perpetual office that makes it corporation. Therefore, the individual has “double
capacity.” Any property acquired by him in his private capacity will devolve to his
personal representatives, while the property acquired by him in his corporate capacity will
pass to the extent as the occupant of that particular office. Thus, in corporation sole, two
persons exist behind the same name, the one human being and the other the corporation
sole which is a creature of law and continues to exist though the human beings change.
The purposes of the corporation sole are analogous to those of the corporation
aggregate. The object of this device is to avoid the difficulties which are involved in the
transmission from each officer to his successor of the property, liabilities, and contracts
held, incurred or made by him in his official capacity. Such property, liabilities and
contracts are imputed by the law to the permanent corporations which never dies or retires
from office, instead of the individual holders of the office for the time being.
Double Capacity and Double Personality
A man may have two or more capacities (viz. official, private) but he has no power to
enter into a legal transaction with himself. Thus, double capacity does not mean double
personality. The English law does not recognize double personality and, therefore, a
person cannot sue himself, or contract with himself or convey property to himself in the
guise of double capacity.

T h e o rie s of Legal (C o rp o ra te ) Personality

“When the law grants legal personality to a group, what is the nature of the entity which
is thus recognized?” Most of the theories of legal personality suffer from the common
defect that they have attempted to answer this question. It is impossible to discover a
common essence which unifies all the entities on which legal personality is conferred.
One can reach almost any practical result from any particular theory. Salomon case can
be reconciled with any theory but is authority for none.
(I) Fiction Theory
Its principal supporters are Savigny and Salmond (also, Kelsen and Holland). Juristic
persons are only treated as if they are persons i.e. human beings. In other words, the
theory presupposes that only human beings are ‘properly’ called ‘persons’. The corporation,
not being a ‘real’ person, cannot have any ‘personality’ of its own; it lias no will, no mind,
and no ability to act. It can have only so much as the law imputes to it by a fiction - as
though it were a real person. Savigny said that only the man is capable of rights and the
original concept of personality must coincide with the idea of man.
 Jurisprudence 37

According to Salmond, a legal person is any subject matter other than a human
being to which law attributes personality. It includes an object, a mass of property, an
institution, a group of human beings, etc. Law treats them as right and duty bearing units
0r entities like a natural person. It is by a fiction of law that they are treated as persons.
The law in creating legal persons personifies some real thing or object and then confers
upon it fictitious personality. The former can be called as corpus and the latter the animus
of legal personality.
All that the fiction theory asserts is that some groups and institutions arc regarded
as if they are persons and do not find it necessary to answer why. This gives it flexibility
to enable it to accommodate the cases in English law where groups are treated as persons
for some purposes but not for others. One deduction drawn from the fictional nature of
a corporation was that, as a corporation has only a fictional will imputed by the law, it
could only will lawful things. By definition therefore it could not make itself liable for
certain kinds of legal wrongs - certainly it could not commit a crime involving any mental
element (intention, will, etc.). Thus, some regarded the doctrine of ultra vires as a deduction
from the fiction theory, because a corporation cannot go outside its Memorandum of
Association (Constitution or Charter of the Corporation).
M. Wolff has highlighted some of the suggested defects of this theory: It has been
accused (a) of being incompatible with the conception of subjective rights; (b) of leading
to dangerous political results e.g. confiscation of the property of these personae fictae
(i.e. persons of fiction); (c) of being opposed to the doctrine of free association.
(2) Concession Theory
This is allied to the fiction theory, and in fact, supporters of the one tend also to support
the other (Savigny, Salmond and Dicey). Its main feature is that it regards the dignity of
being a ‘juristic person’ as having to be conceded by the State i.e. the law. The identification
of ‘law’ with ‘State’ is necessary for this theory, but not for the fiction theory.
The concession theory has been used for political purposes to strengthen the State
and to suppress autonomous bodies within it. No such body (i.e. corporation) has any
claim to recognition as a 'person'. It is a matter o f discretion for the State. So far as this
theory maintains that the law is the only source from which legal personality may flow,
it states a truism. Legal personality may be regarded as a matter of fact to be achieved
by a certain degree of inner unity and organization. Even in this sense, however, the law
grants it, since the law lays down the conditions which create legal personality. But, if we
regard this theory as laying down the sociological tmth that all group life (as apart from
tire mere gi ant of legal personality) is created by the State, then it is clearly both mischievous
and erroneous.
(3) Bracket I Symbolist Theory
This theory, put forward by R. Ihering, rests on the proposition that only human beings can
have interests and rights (and thus the word ‘person’ is confined to them), and that a
coiporation is only a legal device or formula which will enable very complex jural relations
to be understood more easily. ‘Juristic person’ is but a symbol to help in effectuating the
purpose of the group, it amounts to putting a bracket round the members in order to treat
them as a unit. A, B and C form a company and as it is inconvenient to refer always to all
 38 Law Guide for Competitive Examinations

of them, a bracket is placed around them to which a name is given - but, in order to
understand the real position or real state of affairs we must remove the bracket.
This theory is criticized as a limited company is not just the same thing as its
members, and statements about the former are not just abbreviations for statements about
the latter. To say that Smith & Co. Ltd. owes me 100 pounds is not an abbreviated way
of saying that every member of the company owes me a debt. Further, a court can pierce
the veil (i.e. mask) of a corporation only under certain conditions. Had this theory been
accepted, there would have been no need of generalizing the conditions under which a
court may lift the veil of corporation. The theory analyses a corporation out o f existence
The theory, thus, does not explain foundations for the benefit of mankind generally
or for animals (a group might be set up to prevent cruelty to animals). Further, one can
hardly make a contract with a bracket (unless that bracket has been recognized by the
legal system as a legal person). It is socially and economically false, as well as legally
untrue, to say that only individual man can be the bearers of legal rights. Courts have
rejected the deductions drawn from this theory repeatedly.
(4) Hohfeld’s Theory
Hohfeld drew a distinction between human beings and ‘juristic persons’. The latter, he
said, are the creation of arbitrary rules of procedure. Only human beings have claims,
duties, powers and liabilities. The ‘corporate person’ is merely a procedural form, which
is used to work out in a convenient way for immediate purposes a mass of jural relations
of a large number of individuals, and to postpone the detailed working out of these
relations among the individuals inter se for a later and more appropriate occasion. The
theory closely resembles the bracket theory.
(5) Purpose Theory
The main exponent of this theory was Brim. It says that only human beings have personality.
Juristic persons are no persons at all. They are simply ‘subject less properties’ meant for
certain purposes. This theory was formulated mainly to explain the stiftung (pious foundations)
of German law and hereditas jacens of Roman law. The theory has no application to English
or Indian law where judges have repeatedly held those corporations are persons.
(6) Realist Theory
According to this theory, a corporation is like a living organism, like a natural human
being, which also possess natural rights. A corporation is not the creation of a State or
fiction. The modem realist theory builds on an analysis of human personality and regards
group personality as in essence possessing the same characteristics. Gierke speaks of the
group as having a real mind, a real will, and a real power of action. A corporation is a
real but mysterious entity with a special type of existence.
If the power of the reason to organize experience and to direct action is emphasized
as the sole essential mark of personality, we may plausibly argue that a group is a person.
The theory, however, fails to prove that the inner-unity of the group exists otherwise than
in the minds of the members who compose it. Also, it is difficult to prove that there is
a psychological continuity (of experiences) in the group mind similar to that of the
individual. The realist theory may be more easily applied to certain groups than to others.
 Jurisprudence 39

. efe may be very real analogies to human personality in the life of a nation, a group,
or a university, but a one-man company or a foundation seems far removed.

Condusi°ns
]vjo single theory takes account of all aspects of the problem, and criticism become easy,
fliere is no ‘essence' underlying the various uses of ‘person’. Its application to things
other than human beings is purely a matter of legal convenience. English law has not
committed itself to any particular theory.
The theories are philosophical, political or analytical, but are not so much concerned
vVjth finding solutions to practical problems as with trying to explain the meaning of the
word ‘person’. The courts, faced with the solving of practical problems, have proceeded
according to policy, not logic. Thus, courts haven’t adopted any particular theory of corporate
personality. It seems that the legal concept of ‘person’ is not efficient in today’s society.

Liability o f Corporations as it Stands Today

A corporation is not a natural person, but a legal one. It neither has its own will nor an
interest of its own. However, law vests rights, duties and property in them. Consequently,
a corporation can sue or be sued and owes both civil and criminal liability for the acts
done by it.
A corporation cannot personally commit a tort. It may, however, be held liable for
the wrongful acts committed by its agents or servants during the course of their employment.
The liability is based on the principle of vicarious liability. Similarly, a corporation can
be held liable for the criminal acts done by its representatives. It may incur criminal
liability in cases involving malice, fraud, or other wrongful motives, it may be held liable
for libel, malicious prosecution or deceit.
An ‘unincorporated corporation’ has no separate existence from its members. It has
no legal personality; it can neither sue nor be sued in its own name. The liability of its
members is unlimited. For instance, a club, a partnership firm, etc. No partner can contract
with the partnership firm because a man cannot make a contract with himself.

6. POSSESSION

Possession of material things is essential to life; it is the most basic relationship between
men and things (Salmond). However, in order to derive some benefit or value from
material objects, some measure of uninterrupted enjoyment is a prerequisite. For this
reason, law must provide for the safeguarding of possession.
Possession is an abstract notion, which is difficult to define; it is a question of fact.
Unlike ownership, possession is not purely a legal concept and is of a temporary duration.
Possession is both a legal and a non-legal or pre-legal concept. The legal meaning of
Possession is different from ordinary meaning, and varies from State to State. 'The concept
°f possession is as difficult to define as it is essential to protect’ (Salmond).
40 Law Guide for Competitive Examinations

Possession in Fact/ Possession in Law

Possession in Fact (Historical meaning of possession) - It is the relationship betw
person and a thing i.e. material object. To possess a thing is to have it under 660 3
physical control- it refers to corporeal possession. Incorporeal possession refers to*16 S
right to trade marks, copyright, goodwill, etc. where physical control is not there °i^e
extent o f one's power over the object itself, the power o f excluding other people, and 6
actual control is abandoned, the possibility of resumption depending on the lack o f o u ^
reference, are the factors to be taken into account. The test for determining whether a
is in possession of anything is whether he is in general control of it. Beside n^vman
control, mental element i.e. intention may be highly relevant in asserting whether possessi
has been acquired, lost or abandoned. °n
Possession in Law - Law can protect the possession in two different ways. First th
possessor can be given certain legal rights, such as a right to continue in possession free
from interference by others. Secondly, the law can protect possession by prescribi
criminal penalties for wrongful interference/ dispossession. By such civil and criminal
remedies the law can safeguard a man’s de facto possession.
Unlike possession in fact, possession in law i.e. legal protection is not restricted to
cases of actual possession (it is to be noted that apart from this, the possession in fact
and possession in law could easily coincide i.e. a man would in law possess only those
things which in ordinary language he would be said to possess). Indeed the protection of
possession would be of little point if legal protection ceased the moment possession was
lost. Accordingly, one who is not actually a possessor is nevertheless considered as such
in the eyes of the law (constructive possession); and conversely one who actually has
possession may be looked on by law as a non-possessor.

T h e o rie s of Possession
(a) Savigny’s Theory
The possession consisted of two ingredients: corpus possessionis (i.e. effective ‘physical’
control) and animus domini (i.e. intention to hold as owner). Possession is both corpus
and animus', the permanent loss of one or the other element brought possession to an end.
In cases in which possession continued although one was lost, he sought to explain them
by conceding that the temporary loss of one did not matter, provided it was reproducible
at will. He distinguished possession from custody and detention.
Savigny’s theory, which was based on Roman law, is criticized on various grounds:-
(i) It was erroneous to assume that corpus and animus, which were only
conditions sometimes required for the acquisition and loss of possession,
constituted possession itself. Possession did sometimes continue despite the
loss of animus or corpus or even both.
(ii) Savigny’s idea of animus domini fails to explain the cases of the pledge,
emphyteuta, sequester, and precario tenens, who had possession but did not
intend to hold as owners. He suggested that they were cases of "derivative
possession” (possession derivative from the owner). If so, why did not
detentors (borrower, tenant) also get possession derived from the owner?
 Jurisprudence 41

(iii) Theory does not explain the continued possession of a ‘fugitive slave’ despite
the owner’s inability to reproduce the corpus element at will, or the continued
possession by a dead man.
(iv) The theory bears little relation to Roman law. Further, it is inapplicable to
incorporeal possession.

(b) Salmond’s Theory

He distinguished between (corporeal) possession of physical objects and (incorporeal)
possession of rights. Corporeal possession is “the continuing exercise o f a claim to the
exclusive use o f it”, which involves two ingredients: corpus possessionis and animus
possidendi. Possession begins only with their union, and lasts only until one or the other
of them disappears.
Corpus is the effective realization in fact of the claim of the possessor. The corpus
possessionis comprised both the powers to use the thing possessed and the existence of
grounds for the expectation that the possessor’s use will not be interfered with. The
animus possidendi (subjective element) is intent to exclude other people, or in other
words, intent to appropriate to oneself the exclusive use of the thing possessed.
The Salmond’s theory is also criticized on the similar grounds, as were the Savigny’s
theory. An expectation of non-interference is not necessary for the continuation of
possession. For example, a man continues to possess his pocket book although swifter
bandits, who will interfere with his use of it in a few moments, are pursuing him. Nor is
it necessary even for the commencement of possession for, a child and a ruffian may both
make for a purse lying on the road, but if the child is the first to pick it up, can it be
doubted that he gets possession even the ruffian is certain to interfere the very next
second.
Salmond denied that there are two different conceptions of possession, i.e. possession
in law and possession in fact. There is only one conception and that is possession in fact,
which is possession, “in truth and in fact”. The possession in law is “fictitious”, according
to him. Dias said that the idea of possession is no longer tied to fact, and it has become
a concept of the utmost technicality. A day-old-baby or a person in coma does not have
possession in fact, but may have possession in law (they do not have any corpus or
animus, but still have possession).

Conclusions
(1) Savigny and Salmond’s theories are relevant for the possession in fact, but not
for possession in law.
(2) Present law is that corpus and animus are relevant or essential conditions for
acquisition or commencement of possession, but not so for its continuance.
However, the corpus and animus theory is only an answer, by no means the only
one, to the question “how is possession acquired?” (Dias). The content of corpus
and animus have varied so much that they cannot provide a reliable criterion.
(3) Possession is one of the most vague of all vague terms, and shifts its meaning
according to the subject-matter to which it is applied. The meaning of ‘possession’
depends on the context in which it is used. Thus, it is a variable concept of the
 42 Law Guide for Competitive Examinations

law. It is not one idea, but many. It is a device o f convenience, utilized chief]
to effectuate the policy o f law in different branches.
(4) Possession has become a pure technicality of the law. ‘Possession is nine points
of law’ i.e. a person in possession is owner, unless the contrary established f0r
example, someone establishes a superior title. Law in certain situations protects
factual possession and in others legal possession.

C ases o f Possession
The cases can be broadly divided into three categories:
(I) Possession of a thing lying loosely on the land.
(II) Possession of a thing attached to/ or embedded in the land.
(Ill) Possession of a thing delivered to someone viz. larceny cases.
(I) Things lying loose on the land are not in the possession of the landowner, but
fall into the possession of the first finder. Thus, a finder will have the legal
possession of such thing unless the true owner came.
In Armorie v Delamirie (1722), a chimney sweep, while cleaning a flue, discovered
a jewel. He was held to have acquired possession.-In Bridges v Hawkesworth (1851) held
that notes found on the floor of a shop passed into the possession of the finder rather than
of the shopkeeper, as the finder had acquired a physical control over notes and has an
animus i.e. intention, while the shopkeeper was not aware of the existence of notes.
In Bird v Fort Frances (1949), a boy found some banknotes lying on a sill in
private premises; held that he acquired possession of them. In Grafstein v Holme &
Freeman (1958), X found a box in the basement of a building and informed his employer,
who instructed him to put it on a shelf. Two years later, X investigated the contents and
discovered banknotes. Held that employer had come into possession when X had reported
the find and had placed the box on the shelf. In Crinton v Minister fo r Justice (1959),
held that if in fact the finder finds as agent for his principal, possession vests in the
principal.
(II) An occupier or owner of land is held to be in possession of objects under or
attached to the land whether he knows of them or not, and not the finder.
In Elwes v Brigg Gas Co. (1886), A gave to B a piece of land on lease for a gas
project. While excavating the land, the workman of B found a prehistoric boat 6 feet’s
beneath the land. B claimed possession of it, as a finder of the thing of which A was
unaware (i.e. A had no corpus or animus). Held that the legal possession of thing is with
A, as he was the possessor of land. Similarly, in South Staffordshire Water Co. v Shannon
(1896), two rings buried in the mud in a pool were held to be in the possession of the
owner of the pool, and not the finder of the rings.
(IB) The old law of larceny in England (which has now been replaced by the Theft
Act, 1968) provided abundant examples of the manipulation of possession to suit
policy; that the possession (legal) is different from the possession in fact and the
legal possession remains with the owner.
 Jurisprudence 43

This offence penalizes the wrongful taking of possession i.e. without the possessor’s
nSent and accompanied by intent to steal (at the time of the taking). However, the
eaning of larceny extended later to cover cases when the intention to steal has been
formed by a person already in possession of a thing. In Heydon v Smith (1610), in order
t0 catch the servant, who formed his intention to steal later, it was said that he had
received only “custody”, not possession, from the master, but that when he formed his
dishonest intention, then and only then did he take possession without consent.
Similarly, when a bailee fraudulently misappropriates the goods bailed to him, he
would be guilty of stealing, thus providing that a bailee who has lawful possession can
nevertheless commit larceny of the goods he possess. In Merry v Green (1847), A sold
g a bureau, which, unknown to both, contains jewels in a secret drawer. Ordinarily a
person with possession of a container gets possession also of the contents. Common law,
however, hold that in such a case, unless the deliverer intends the deliveree to obtain
possession, of the contents, the latter does not acquire legal possession of them until he
discovers them and that if at this stage he decides dishonestly to misappropriate them,
he accordingly becomes guilty o f larceny.
In R. v Ashwell (1855), A gave B a shilling, thinking it to be a shilling. B also took
it believing it to be a shilling. But later B found that it was a note of higher value, and
intended to misappropriate it. B was held guilty of larceny. Thus, it is clear that if a person
unknowingly takes something, which is in another’s possession, he nevertheless takes
possession and commits a trespass against that person.

Kinds o f Possession
(1) Corporeal and Incorporeal - discussed above.
(2) Mediate and Immediate- The immediate possession implies the direct/ primary
possession by a person over an object which he acquires or gets directly or
personally. In case of the possession of a bailee or a custodian, the person
on whose behalf the thing is possessed is called a mediate possessor. Thus,
if A leaves his car with the driver, the driver’s possession will be immediate
whereas that of X would be mediate. Examples of mediate possession include:
agent, servant, borrower, hirer, securities, etc.
(3) Concurrent or duplicate- Two persons can be in possession of the same
thing, viz. mediate and immediate possession, tenants-in-common, corporeal
and incorporeal (A may possess a piece of land, while B may’ve a right to
pass over that land).
(4) Possession in fact and in law (De facto and De jure) - An owner as well
as a tenant has de jure possession of a house. A trespasser has a factual or
de facto possession.
Possession in fact (possessio naturalis), and, possession in law (possessio civilis)
are not always identical. Possession usually does exist, both in fact and in law. It may
exist in fact, but not in law. It may exist in law, and not in fact, viz. “constructive
| Possession”. Thus, X may keep his jewellery in a locked box and leave the box with Y,
staining its key with himself. X is said to have constructive possession of the jewellery.
 44 Law Guide for Competitive Examinations

(5) Adverse possession - It is where one person in possession claims evni

Ai_, . _ J
right to the land of another person (who is nott :in
a1___________ /...u » _____„ ____
possession). _Thusx cif*Usive
v.
openly in possession of Y's land for a continuous period of 12 years ls
more, he can claim a title to it by adverse possession. Y’s legal right or
ownership to the land is destroyed by X’s adverse possession. That is
it is called: “Possession is nine points of law”.

M odes o f A cquiring Possession

(1) Taking: Acquisition of possession without the consent of the previous possesso
It may be rightful or wrongful. ’
(2) Delivery: Acquisition of possession with the consent and cooperation of the
previous possessor.
In actual delivery, there is transfer of immediate possession. In constructive delivery
there is transfer of mediate possession.
Possessory Remedies: These are those legal remedies which exist for the protection of
possession even against ownership. While, proprietary remedies are those which are
available for the protection of ownership itself.
Under English law, prior possession is prima facie proof of title. Thus, the defence
of jus tertii (when the defendant pleads that neither the plaintiff nor he has the title, and
some third person is the true owner) cannot be pleaded usually.

7. OWNERSHIP

In primitive societies only concept known to human mind was that of possession. The
conception of ownership gradually developed out of it due to changes in the economic
structure of the society. The transition from a pastoral to an agricultural economy facilitated
the development of the idea of individual ‘right to property’, which is the basis of the
concept of ownership in a relatively developed society.
In Roman law as well as in ancient Hindu law, possession and ownership were
recognized as two separate and distinct conceptions. In Roman law, two distinct terms
were used o point out the distinction and these were 'dominium' and ‘possessio’; the
former denoted the absolute right to a thing, while the latter implied only physical control
over a thing. Romans attached greater importance to ownership rather than possession. In
ancient Hindu law, the law o f ‘prescription’, ‘bailment’ and ‘sale without ownership’ was
based on this distinction. Thus, a long possession (prescription) could ripen into ownership.
If a man lost his chattel and discovers it in the possession of someone else, he should first
of all, prove by means of witnesses, etc., ownership of that chattel.
English medieval writers emphasize ‘seisin’ and the right to possession. Seisin was
a peculiar feature of land tenures under the feudal system. Under this system the land was
held in return for service. The seisin was a right, which was relied upon to get back the
 Jurisprudence 45

sSion if Person seised was dispossessed. It was a ‘right to possess’ as distinct

^ a i i d superior to ‘possession’. The idea of ‘owner’ and ‘ownership’ in English law
^.■ elo p ed out of this right.
^ However, the English idea of ‘ownership’ differs in certain respects with the Roman
There were no degrees or divisions of Roman dominium as English ‘ownership’ has.
^ gh the power of ‘dominius’ (the person having the dominium or owner) could be
* ted by law but there was never any concept of ‘limited ownership’ (viz. ‘life estate’)
^equitable ownership (viz. ‘trust and trustee’) as it is in English law.

partitions (T h e o rie s) of O w n ersh ip

according to Keeton: “The right of ownership is a conception clearly easy to understand
jut difficult to define with exactitude.” Ownership is a relation of a person to an object,
diich is exclusive or absolute and ultimate. The person who stands in this relation is
(ailed the ‘owner’ and he has a right of complete control and enjoyment of the object.

Justin’s Definition
ge defines ownership “as a right which avails against everyone who is subject to the law
ionferring the right to put thing to user of indefinite nature”. He further says that ownership
aa“right indefinite in point of user, unrestricted in point of disposition and unlimited in point
ofduration”. It is a right in rem which is available to the owner against the world at large.
According to Austin’s definition, there are three elements or attributes of ownership:
(i) Indefinite user- Austin used the term “indefinite”, instead of “absolute” or
“unlimited”. The owner, thus, is not absolutely free to use the thing owned
in anyway he likes. His use of the thing is conditioned by the requirements
or restrictions imposed by the law or can be conditioned by an agreement
between the owner and a third person.
(ii) Unrestricted disposition- There are no limitations upon this power. Thus,
Austin regards right of alienation or transfer as a necessary or very important
incident of ownership.
However, in all advanced legal systems, certain restrictions are imposed on the right
of disposal of the owner. The transfer of property is not allowed if its object is merely
todefeat or delay the creditors. Hindu law does not allow alienation of ancestral immovable
property without the consent of the coparceners except for legal necessity. Moreover, in
England, there is a rule of ‘re legitima prods' which means that a person cannot dispose
ofhis entire property. He has to keep a certain portion of it for the members of his family.
(iii) Unlimited duration- The third incident of ownership is the permanence of
the right of ownership. In other words, ownership of a person cannot be cut
short and the owner can continue to be the owner as long as he likes. It is
perpetual interest, which shall devolve upon the heirs of the owner after his
death, but the right shall not be extinguished.
This is also incorrect since almost under every legal system, the State possesses the
Power to take over the property of any person in public interest (viz. the abolition of
^amindari system in India, the abolition of Privy Purses, Nationalization of banks, etc.).
46 Law Guide for Competitive Examinations

Austin’s definition of ownership has been criticized on various grounds. It is ar„.

that it is fallacious to think that ownership is a single right; in fact it is a bundle of rjg^
including right of user and enjoyment. Even if an owner parts with some of the rights
involved in ownership, the residue are still owned by him. For example, in case of
mortgage by the owner of a land, although he has transferred a right, but he is still the
owner of the mortgaged property.
Austin’s definition, however, is not entirely inaccurate. The ‘right of alienation’ js
considered by Austin as a necessary incident of ownership. A person who is not the owner
cannot normally transfer the right of ownership, even though he may have possession of
the thing in question. The interest of a bailee or a lessee comes to an end when the period
of hire or of the lease comes to an end. The view given by Austin is very close to the
Indian view. Hindu jurists have explained a significant feature of the concept of ownership
as fitness for free disposal.
Austin’s definition of ownership might have been (if not wholly) correct, when the
doctrine of laissez-faire prevailed. Austin’s definition of ownership has been followed by
Holland. He defines ownership as plenary control over an object (unrestricted by law or
fact). According to him an owner has three rights on the subject owned, viz. (a) possession
(b) enjoyment, and (c) disposition.
Salmond’s Definition
According to Salmond, “ownership, in its most comprehensive signification, denotes the
relation between a person and right that is vested in him”. Ownership, in this wide sense,
extends to all classes of rights, whether proprietary or personal, in rem or in personam,
in re propria or in re aliena\ and it applies not only to rights in the strict sense, but to
liberties, powers and immunities.
Thus, ownership vests in the owner a complex of rights, which he exercises to the
exclusion of all others. Further, ownership is incorporeal (immaterial, having no material
body or form). A man may own a copyright, or a right of way in the same way as he owns
a piece of land because in all these cases he owns only a right and not a thing. When one
speaks of the ownership of a material object, this is merely a convenient figure of speech.
Salmond’s view has been criticized by many writers. Prof. Glanvile Williams has
observed that the definition of ownership as given by Salmond suggests that from the
point of time, the concept of ownership of rights must be prior to that ownership of
material objects, but historically it appears just the reverse of it. According to Duguit,
what a person really owns is a ‘thing’ and not a right. The supporters of Salmond point
out that Salmond has defined ownership in two different senses. While the comprehensive
sense includes both corporeal and incorporeal ownership, the narrower or commonest
sense includes only corporeal ownership (i.e. ownership of material objects).
Hohfeld expresses a similar view (like that of Salmond) when he says ownership is
not a right but a bundle of rights, privileges, powers, etc. He adds that this collection of
rights, powers, etc. is frequently found to reside either for a limited period or perpetually
in person other than the owner. Just as we can take ‘one drop or many drops from the
bucket’, likewise we can detach one or several rights from ownership.
 Jurisprudence 47

Qther Definitions
jCocourek says that ownership is the ultimate right (of possession). According to Pollock,
-ownership is the entirety of the powers of use and disposal allowed by law”. He further
says that it is not necessary that all the powers of an owner need be exercisable at once
and immediately; he may remain owner though he has parted with some (or whole) of
them for a time. In short, the owner of a thing is not necessarily the person who at a given
time has the whole power of use and disposal; very often there is no such person.
Keeton expresses a similar view when he observes that ownership is the ultimate
right to the enjoyment of a thing, as fully as the State permits, when all prior rights in that
thing vested in persons other than the one entitled to the ultimate use are exhausted. Thus,
the owner may mortgage his house; give it to tenant, etc., yet he is the person who is
entitled to the ultimate use of the thing after the rights of the mortgagee or tenant are
exhausted.
Conclusions - In view of the complex form of the social organization and the economic
relations in modem times, the term ownership should be given a wider and. comprehensive
meaning. Thus, among the various definitions, discussed above, Salmond’s definition
appears to be most acceptable.
However, the definitions given by Pollock and Keeton give relatively a more proper
connotation of the term ownership. They bring out the most important fact that ownership
is always subject to limitation imposed by law. According to Dias, a person is ‘owner’
at English law when he becomes entitled in specified ways to some thing designated as
such, the scope of which is determined by policy; and his interest, constituted in this way,
will outlast the interests of other persons in the same thing.
We may in conclusion say that:
(a) Ownership is a right, which comprises of powers, claims, privileges, etc.
The main rights of ownership are three: Right of possession, right of
enjoyment and power to dispose of the property.
(b) The rights relating to or connected with ownership are subject to State
regulation i.e. can be limited or restricted by law.
(c) Ownership is residuary in character. Owner is he who is entitled to the
‘residue of rights’ with respect to an object left after the limitation resulting
from the voluntary acts of the owner (mortgage, lease, etc.) or those imposed
by law are exhausted.
(d) Ownership does not imply or indicate absolute or unlimited rights either
regarding use, disposal or duration.
(e) Law does not confer ownership on an unborn child or an insane person
because they are incapable of conceiving the nature and consequences of
their acts.
(f) The right to ownership does not end with the death of the owner; instead,
it is transferred to his heirs.
(g) The 'ownership o f right' or incorporeal ownership describes the jural relation
between a person and a right. In this sense, it denotes that he is neither a
48 Law Guide for Competitive Examinations

possessor nor an encumbrancer, but the owner of the right. This right has to
be distinguished from the ‘right of ownership' or corporeal ownership which
is the complex pattern of the bundle of rights, liberties, powers and immunities
In the case of ownership of a right, it only suggests that there is a particular
legal relationship between a person and a right.
Salmond has supported the view that besides material objects, right may also be
subject matter of ownership though a man is said ‘not to own, but to have a right’. From
this point of view, many rights cannot be considered as subject matter of ownership. For
example, every one has a right of speech or right of reputation blit it is never said that
he owns these rights, nor can he alienate them.
It must also be stated that though material objects form the subject matter of ownership
but there are certain exceptions to this general observation. For instance, wild animals living
in forests cannot be owned. Likewise, since slavery has now been abolished, living persons
cannot form the subject matter of ownership. Again, the air, the sea, the sun, the moon, the
stars, corpses other than anatomical specimens, etc., cannot be owned. However, the law
may provide that die air and the sea might be owned, sold, bought, rented, etc.

Function of Ownership in Social Ordering

Ownership is not only a juridical concept but also a social concept and an instrument of
social/ governmental policy (Dias). There are various duties, liabilities and disabilities,
which prescribe and regulate how an owner should utilize his property for the benefit of
other individuals or society.
Renner’s Theory
According to Dr. Friedmann, the concept of ownership has exerted considerable influence
as a source of social power in various stages of the development of society. Prof. Renner
(Austria) has traced the gradual evolution of ‘ownership’ in its social perspective. In
course of time, the labour movement raised voice against the exploitative tendencies of
industrialists/capitalists as a result of which ‘public ownership’ gained primacy over ‘private
ownership’ [Renner: Institutions o f Private Law and Their Functions (1949)].
Renner has analyzed the concept of ownership from his (Marxist) premises. The main
point of his thesis is that in capitalist society the formal legal concepts cease to correspond
to the real economic content to the concept in the society. Renner presents ‘ownership’ as
an example of it. He says that in medieval times ownership consisted of the relation between
man and things. After Industrial Revolution ‘ownership’ has become a relation between a
man and a complex aggregate of things termed ‘capital’. In modem times, the ownership
of capital virtually means the power over men (labourers, etc.) although in legal theory it
is still taken to be a relation between a person and a thing. Therefore, he suggests that the
ownership in modem times should be treated as a branch of public law, and the State must
interfere with it. Marxists point to the unified concept of ownership as being the villain of
the peace. ‘Private property is robbery, and a State based on private property is a State of
robbers who fight to share in the spoils’: so said Lenin.
Conclusions - Salmond had pointed out that in ancient times the right of ownership vvas
regarded as exclusive and absolute, but in modem times there is growing tendency to restrict
 Jurisprudence 49

right of ownership in the interest of society. In India, there has been a shifting trend
[0vvards giving primacy to public ownership and at the same time to restrict private ownership.
More recently, it is, however, being realized that public ownership is not necessarily
satisfactory solution to the problem, the reason being that it has brought about a division
'tween management and ownership, which has retarded the development of national
economy. Thus, India has initiated concrete economic measures to boost up the morale
0f private entrepreneurs through liberalizing licensing policy. The emphasis is on a ‘mixed
economy’, allowing equal opportunities for public and private sectors.
From all that has been said it should be clear that formal analysis of ownership
alone fails to convey any idea of the part it has played in society. A functional study is
indispensable to a complete understanding, for it reveals that the concept of ownership is
full of potentialities as an instrument of policy and social regulation on a large scale.
Modem developments, especially the severing of control from ownership, now indicate
that it is a man’s position and role in society that determines his relation to things, and
not vice versa as used to be the case (Dias).

Kinds of Ownership
The right to ownership is generally exclusive, immediate, unconditional and beneficial. It
is, however, not necessary that all these elements must be present in the ownership.
Therefore, there may be different kinds of ownership depending on the existence or
absence of any of these elements in it.
(I) Corporeal and Incorporeal Ownership
Corporeal ownership is the ownership of material or tangible things or objects (movable
or immovable). Incorporeal ownership is the ownership of intangible object - object,
which cannot be perceived and felt by touch, i.e. the ownership of a right, for example,
a debt, a patent, goodwill, etc.
(2) Sole Ownership and Co-ownership
The general principle of ownership is that it should vest in one person only (sole ownership).
But, sometimes it is ‘duplicate’ or, in other words, two or more persons have the right of
ownership of the same property vested in them at .the same time (Co-ownership). An
example of co-ownership is partnership. ‘Tenants in common’ and ‘joint tenants' (in
English law) are co-owners of the tenancy. In India, the coparcenary of Hindu law is also
a co-ownership (joint tenancy).
According to Salmond, the main difference between ‘ownership in common’ and
‘joint ownership’ relates to the effect of death of one of the co-owners. In case of
ownership in common, the right of the deceased passes on to his successors like other
inheritable right; but in case of a joint ownership, if one of the two joint-owners dies, his
right of ownership also dies with him (i.e. extinguished) and the survivor becomes the
sole owner by virtue of his right of survivorship. Thus, ownership in common implies
°nly unity of possession but not of title whereas joint ownership implied both unity of
Possession and title.
50 Law Guide for Competitive Examinations

(3) Trust and Beneficial Ownership

Yet another peculiar species of ‘duplicate’ ownership is trust ownership in which tty
persons own property 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. The latter is called the
‘beneficiary’ and his ownership is beneficial ownership. The ownership of the trustee js
a matter of form rather than of substance, it is nominal rather than real because he is
deprived of any right to the beneficial enjoyment of the trust property. According to
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, viz. unborn
persons, infants, lunatics, co-owners, etc.
Salmond distinguishes a ‘trust’ from a mere ‘contractual obligation’ though there is
a close resemblance between the two. A trust is more than an obligation to use one’s
property for the benefit of another. The beneficiary has more than a mere personal right
against the trustee to the performance of the obligations of the trust. He is himself an
owner of the property and, therefore, he also owns what the trustee owns in the trust. A
‘trust’ is also different from ‘agency’. In the case of agency, the property is vested solely
in the principal on whose behalf the agent acts but in trusteeship it is vested in the trustee
as well as in the beneficiaiy. Further, a trustee stands on a better footing than an agent
so far as third persons are concerned.
(4) Legal and Equitable Ownership
Sometimes one person may be the legal owner and another the equitable owner of the
same thing or right at the same time. Legal ownership is that which has its origin in the
rules of common law whereas equitable ownership proceeds from the rule of equity.
In many cases, equity recognizes ownership whereas law does not recognize
ownership owing to some legal flaw or defect. For example, when a debt verbally assigned
by A to B, A remains the legal owner of it but B becomes the equitable owner of it. This
illustration shows that the distinction between legal and equitable ownership is different
from the distinction between legal and equitable right. In this case the right of both, A
and B are legal rights but the ownership of A is legal while that of B is equitable.
Similarly, when property given by A to B for the benefit of C, B becomes the legal
owner and C the equitable owner. Prof. Keeton observes that equitable ownership always
pre-supposes the existence of a legal ownership, the legal owner being restrained by the
rule of equity from using his legal ownership to the detriment of the equitable owner.
Conversely, a legal ownership does not necessarily imply the existence of an equitable
owner. In India, the distinction between legal and equitable ownership is not recognized.
(5) Vested and Contingent Ownership
In vested ownership, the ownership is absolute; in the contingent ownership, it is
conditional. A vested interest is an existing immediate right, even though its enjoyment
may be postponed. It is transferable and heritable. A contingent interest is not a present
right since it is dependent upon a condition, which, if not fulfilled, shall render the interest
null and void. It is not transferable or heritable.
 Jurisprudence 51

Thus, if A sells a house to B for a price settled, the other formalities prescribed by
law e.g. registration, etc. are complied with, B becomes a vested owner of the house.
Similarly, if there is a transfer of property to A for life then to B, here B’s interest is
vested one because B need not fulfill any condition precedent and his title is perfect, he
is entitled to take possession the moment A dies. Thus, aforesaid transfer only postpones
his right to enjoyment to a future date.
Contingent ownership is conditional. Thus, if property is transferred to A for life
than to B, if B marries C, B’s interest is such that it cannot take place as soon as A dies,
because there is a condition which B is to fulfill viz. that he must marry C. Likewise, a
testator may leave property to his wife for her life, and on her death to A, if he is then
alive, but if A is dead, to B. Here A and B are both owners of the property in question,
but their ownership is merely contingent.
Contingent ownership of a thing is something more than a simple chance or possibility
of becoming an owner. It is more than a mere spes acquisitionis/ successionis. A contingent
ownership is based not upon the mere possibility of future acquisition or succession, but
it is based upon the present existence of an inchoate or incomplete tide.
The condition on which ownership depends may be either a condition precedent or
condition subsequent. A condition precedent is one on the fulfillment of which a title is
completed; a condition subsequent is one on the fulfillment of which a title already
completed is extinguished. For example, a testator wills his property to his wife, on the
condition that if she remarries, the property would pass on to his sons. Here wife’s
remarriage is a condition subsequent in respect of her own vested ownership, but it is a
condition precedent in respect of the contingent ownership of the sons.
A condition precedent precedes the creation of an interest but in case of condition
subsequent the interest is created first and the condition subsequent operates and divests
it afterwards. Thus, ownership subject to condition subsequent is not contingent but
vested. An interest once vested can never be divested by reason of non-fulfillment of a
condition precedent, but in the case of condition subsequent, an interest, even though
vested, is liable to be divested by reason of non-fulfillment of the condition.

Acquisition of Ownership
(1) Original mode, and
(2) Derivative mode.
The ‘original’ mode is the result of some independent personal act of the acquirer
himself. This mode of acquisition may be of three kinds- (a) absolute, i.e. when ownership
is acquired over previously ownerless object (res nullius rule - who took it first became
the owner); (b) extinctive, i.e. where there is extinction of previous ownership by an
independent adverse act of acquirer, e.g. prescription (a right of easement acquired after
a passage of time prescribed by law); (c) accessory, i.e. when ownership is acquired as
a result of accession, e.g. owner of an animal has right to its off-springs or the owner of
a tree has the right to the fruits of the tree.
Absolute ownership, again, can be acquired either by ‘occupatio’ or ‘specification’.
For occupatio, physical control of the thing is necessary. For example, ownership over
52 Law Guide for Competitive Examinations

wild animals, birds, fishes in rivers/ ponds, precious stones, etc. can be acquired in this
way. In case of specification, the material belonging to one person is given a new shape
by another e.g. a sculptor making a statute out of clay collected from other person’s land
The sculptor becomes the owner of the statute.
When ownership is derived from a previous owner, it is called ‘derivative’ acquisition
It is derived either by purchase, exchange, will, gift, etc. The law of succession and the
law of transfer of property, etc. are the rules of this kind. According to Salmond, a person
can become the owner of certain property by the operation of law such as the law of
intestacy or bankruptcy.
When in a person all the rights of ownership (i.e., possession, enjoyment and
disposal) are vested without any restriction (except that imposed by law in the interest of
society), his ownership is ‘absolute’ ownership. But when there are limitations on user,
or duration or disposal, the ownership is ‘limited’, e.g. in English law, life tenancy- when
an estate is held only for life; in Hindu law (before 1956), Women’s estate-she held the
property only for her life and had only a limited power of disposal.

Ownership and Possession: Distinction

Possession is a relation of a person to an object which law recognizes as possession. It
has been treated as an external evidence of ownership. According to Ihering, possession
is the objective realization of ownership. Ownership is a relation of a person to an object,
which is exclusive or absolute and ultimate. It may be noted that possession is prima facie
evidence of ownership only in certain situations.
Salmond makes a distinction between the two on the basis of fact and right.
“Possession is in fact what ownership is in right. Possession is the de facto exercise of
a claim; ownership is the de jure recognition of the facts”. For example, a rented house
is actually in possession of the tenant, but the ownership of it is vested in that of the
landlord. A claim to possession may be maintained by one's self-asserting will but a claim
to ownership is legally protected by the will of the State.
It is submitted that a distinction on the basis of fact and right is not tenable. To say
that one is fact and other is right is misleading. Though there may be a difference of
degree, both the things (fact and right) are present in both the concepts. Salmond pointed
out that ownership has the guarantee of law but possession has some measure of security
and value from the facts, without any possibility of support from law.
The separation of possession and ownership is an exceptional incident, due to
accident, wrong or the special nature of the claims in question. ‘Possession without
ownership is like body without soul’ (Dr. Sethna). The two things stand mutually to
coincide. Ownership strives to realize itself in possession and possession endeavours to
justify itself as ownership. Salmond pointed out that “the law of prescription determines
the process by which through the influence of time, possession without title ripens into
ownership and ownership without possession withers away and dies.”
According to Salmond, the subject matter of possession and ownership is more or
less the same. A thing, which may be owned, may also be possessed and vice versa. There
are, however, certain exceptions to this general principle. Man may possess copyrights,
trademarks and other form.* of monopoly though law may refuse to defend the same.
 Jurisprudence 53

There are many rights, which can be owned but not possessed, e.g. right of the creditor
to recover his debt. A right in rem can both be owned and possessed but a right in
personam can be owned but it cannot be possessed.
The rights of possession and ownership are substantially the same. However,
possession and ownership differ in their mode of acquisition. The transfer of possession
is comparatively easier and less technical, but the transfer of ownership in most cases
involves a technical process of conveyancing. Lastly, possession is a juridical concept and
an instrument of judicial policy. Ownership is more than that; it is also a social concept
and an instrument of social policy.

Ownership - W hether Best Right to Possess?

Possession can be segregated into two parts: Possession in fact and Possession in law. As
regards ownership, it cannot be segregated into two parts of fact and law. It is always a
matter of law and factual ownership can only mean to have the possession of the subject
matter. Right to possession is best available at all times with the person who is entitled
to possession in law and not to the owner of the subject matter. Thus, in case of a
mortgage, the owner is the mortgagor whereas the best right to possess lies with the
mortgagee at a particular point of time and this is the very essence of distinguishing
between ownership and possession.
Thus, ownership is not and should not be confused with the right to possession.
Though ownership contains a bundle of rights with it and possession may be one of those
rights but it is not the only right and even in the absence of the right of possession,
ownership may exist. Though, superficially it seems to be correct to say that ownership
is “the best right to possess”, technically it seems to be not foolproof for various reasons.