JURISPRUDENCE

Q1) Discuss the nature and scope of Jurisprudence. What is the importance of this subject
in the study of law? OR “Jurisprudence is the eye of law”.

INTRODUCTION: - Jurisprudence in its nature is entirely a difference subject from other

social science. The reason for this is that it is not codified but a growing and dynamical subject
having no limitation on itself. Its inquiry system is of different status from other subjects.
Every jurist does not base his study on the rules made but tries to understand their utility after
due deliberation Thus the jurisprudence has no limited scope being a growing subject. There is
difference of opinion about the nature of jurisprudence. It is called both art and science. But
to call it science would be more proper and useful. The reasons for this is that just as in science
we draw conclusions after Making a systematic study by investing new methods. In the same
way jurisprudence is concerned with the fundamental principles of law systematic and
scientific study their methods.
Scope of Jurisprudence: - According to justice P.B.Mukherjee: ,” Jurisprudence is both an
intellectual and idealistic abstraction as well as behavioural study of man in society. It includes
political, social, economic and cultural ideas. It covers that study of man in relation to state
and society.”
Jurisprudence involves certain types of investigations into law, and investigation an abstract,
general and theoretical nature which seeks to lay the bare essential principles of law and legal
systems.
Salmond observed: “In jurisprudence we are not concerned to derive rules from authority and
apply them to problem, we are concerned rather to reflect on the nature of legal rules, on the
underlying meaning of legal concepts and on the essential features of legal system.” It
therefore follows that jurisprudence comprises philosophy of law and its object is not to
discover new rules but to reflect on the rules already known.
CONTENTS OF JURISPRUDENCE: - The following are the contents of jurisprudence: -
i) Sources It is true that the basic features of a legal system are mainly to be found in its
authoritative sources and the nature and working of the legal authority behind these sources.
Under this head matters such as custom, legislation, precedent as a source of law, pros and cons
of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the
administration of justice etc., are included for study.
ii) Legal Concepts: - Jurisprudence includes the analysis of legal concepts such as rights,
title, property, ownership, possession, obligations, acts, negligence, legal personality and
related issues. Although all these concepts are equally studied in the ordinary branches of law,
but since each of them functions in several different branches of law, jurisprudence tries to
build a more comprehensive picture of each concept as a whole.
iii) LEGAL THEORY: - Legal theory is concerned with law as it exists and functions in
the society and the manner in which law is created and enforced as also the influence of social
opinion and law on each other. It is therefore necessary that while analysing legal concepts,
and effort should be made to present them in the background of social developments and
changing economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE
It is often said that jurisprudence being an abstract and theoretical subject, is not of any practical
use. But it is not correct to say so. Its utility is as under :-
1. Salmond pointed out that jurisprudence has its own intrinsic interest like and other
subject of serious scholarship, likewise the writer on jurisprudence may be impelled to his
subject by its intrinsic interest. The legal researches on jurisprudence may well have their
effect on contemporary socio-political thought and at the same time may themselves be
influenced by these ideologies.
2. Jurisprudence also has its practical applicability. In other words it serves to render the
complexities of law more manageable and rational and in this way theory can help to improve
practice in the seats of law.
3. Jurisprudence has great educational value. The logical analysis of legal concepts widens
the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their
rigidity and formalism and trains them to concentrate or social realities and the functional
aspects of law. It is not the form of law but the social function of law which has relevance in
modern jurisprudence. For instance, a proper understanding of law of contract may perhaps
require some knowledge of economic and economic theory or a proper grasp of criminal law
may need some knowledge of criminology and psychiatry and perhaps also of sociology.
4. Commenting on the significance and utility of jurisprudence : Holland observed, “ the
ever renewed complexity of human relations call for an increasing complexity of legal details,
till a merely empirical knowledge of law becomes impossible.” Thus jurisprudence throws light
on the basic ideas and the fundamental principles of law in a given society. This why it has
been characterised as “The eye of law.”
5. Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the
laws passed by he legislature by providing the of interpretation.
6. The study of jurisprudence helps in rationalising the thinking the students and prepares
them for an upright civil life. The knowledge of law and legal precepts also helps them to face
every exigency of human affairs boldly and courageously.
7. Jurisprudence may also be helpful o legislators who play a crucial role in the process
of law-making. The study of jurisprudence may familiarise them with technicalities of law and
legal precepts thus making their job fairly easy as also interesting.
According to Dias the study of jurisprudence provides an opportunity for the lawyer to bring
theory and life into focus for it concerns human thought in relation to social existence. The law
should serve the purpose of social-engineering by preserving societal values and eliminating
conflicting interests of individuals in the society.
JURISPRUDENCE IS THE EYE OF LAW:- On account of importance of jurisprudence in the
field of law it is called, “The eye of Law”. The eyes are one of the most important parts of
human body. Almost all human activities and the movements of body are possible only through
them. Unless man can see anything properly, he cannot do any work. The reason of calling
jurisprudence the ‘ the eye of law’ is that jurisprudence functions for law in the same manner
as the eyes do in human body. For example- the interpretation of law is a very difficult task, It
cannot be done without the help of jurisprudence. ‘PATON’ in this connection says that,”
Jurisprudence is a particular method of study, not the law of one particular county but of the
general notions of law itself.’ Whenever any complicated problem regarding law like:-
1 How and when the law developed. 2 What is its object. 3 Whether the law was made
by people or it was due to the inspiration of some Divine force. 4 Whether the law is a command
of a sovereign or it is a result of gradual development of civilization in society. The main
function of jurisprudence is to study the origin of law, its development and its contribution
towards society.
The matters to birth, marriages, death, succession etc., are equally controlled through laws. It
is the well known saying that, “ignorance of law is no excuse,” hence it is essential to know
the correct basic principles of law which are contained only in the jurisprudence. Law is also
connected with civil life. A person who obeys laws is known as a civilized citizen. A person
who does not obey law is punished. It is therefore necessary that all the people should have the
sound knowledge of law which is possible only with the help of jurisprudence. Therefore,
jurisprudence, having so much importance for the society, has rightly been called the eye of
law.

Q2-- Discuss the essential characteristics of the ‘Analytical School’?

INTRODUCTION: The jurists of analytical school consider that the most important aspect of
law is its relation to the State Law is treated as an imperative or command emanating from the
state. For this very reason this school is known as the Imperative school.
The exponents of this school are concerned neither with the past nor with the future of
law but with law as it exists, i.e. ‘as it is (positus). For this reason this school is termed the
positive school. Its founder is John Austin who was the professor of jurisprudence in the
University of London.
He is also considered as the father of English jurisprudence. He studied the Roman Law in
Germany. There he was that Roman Law is very systematic and scientific whereas English
Law is not systematic and scientific. So, he tried to make English law in well manner. For this
purpose, he wrote a book ‘Province of English Jurisprudence’. In this book he defined English
law and made it in a systematic way.
Austin said that only positive law is the subject matter of jurisprudence. He separated both
the morals and the religion from the definition of the law. Prior to Austin the law was based
upon customs and morals but Austin reduced all things from the definition of law. He divided
law into two parts:
i)Law propriety so called (II) Law impropriety so called.
It further divided into two parts: -
(1) Law of God (Divine Law) (II) Law of Men (Human Law)
Law of God is also called divine law. It is a law set by God for human beings on earth. Men
also make law of men is made by men, so it is called human Law. This law makes a relationship
between persons and the Law. This law is imposed upon persons and is made by persons.
Human law is further divided into two parts: -
(I)Positive Law (II) Positive Moral Law
Positive Law is main subject of jurisprudence. This classification can be seen as under :-
 LAW

( Law propriety so called

A) B) Law Improperly so called

A.2) Law of Men

A.1) Law of God
Law of analogy law by Metaphor

A.2.i) Positive Law A.2.ii) Positive moral Law Law of Fashion Law of Gravity

Law impropriety so called: - There are certain laws, which are called impropriety laws e.g.
Divine Law, Moral Law and religious Law. But his law is not the subject of jurisprudence. This
law is concerned only with the administrations of jurisprudence. The law is the subject matter
of jurisprudence.
Analytical school of jurisprudence deals with the following matter: -
(I) An Analysis of the conception of civil law.
(II) The study of various relations between civil law and other forms of law.
(III) An inquiry into the scientific arrangement of law.
(IV) An account of legal sources from which the law proceeds.
(V) The study of the theory of liability.
(VI) The study of the conception of legal rights and duties.
(VII) To investigate such legal concepts as property, contracts, persons, acts and intention
etc.
DEFINITION OF THE LAW
Austin has defined the law is hiss ‘Command Theory’. He says that, “Law is the command of
sovereign.” Sovereign here means a politically superior body or a determinate person or
determinate body of persons like king of council. The command of these persons shall be the
law in the country. This law must be obeyed by certain persons. If it is not obeyed hen the
order of these persons shall not be law. It means there must be politically inferior persons. If
the command is disobeyed then the political superior should have the power to punish, those
persons who have disobeyed the law.

CHARACTERISTICS OF COMMAND THEORY

From the above facts we find that the following characteristics of Analytical School :-
1. Sovereign (II) Command (III) Duty (IV) Sanction Power.
SOVEREIGN: Means the political superior person or a determinate person or body of person
or intelligent persons. This may be compared with the kind or the head of state in monarchy
system and parliament in democracy system.
COMMAND: - There must be some order of the Sovereign. This order may be oral or written.
The Sovereign which is followed by force, is called command.
DUTY: - This command must be followed by some persons, it means the political inferior
persons who are under the control of Sovereign, are under a Duty to follow the order of the
Sovereign.
SANCTION: - There must be sanction or the power of force behind the command of Sovereign
and it there is no force or sanction then such command shall not be law. The sovereign must
have power to punish those who do not obey this command. In this way the above mentioned
things are essential then it will be the law. But Austin excluded some commands from the
concept of the law. These are: -
(I) Explanatory Law: - If there is a command for the explanation of already existed law
command shall not be the law.
(II) The Repeal Law: I there is a command for the repealing of already existed law then
the second command shall not be law.
AUSTIN LAW (AUSIN’S METHOD) Austin adopted analytical method which excluded all
types of morals and religion from Law. His school is also called analytical school or imperative
school. Imperative means force behind law.
CRITICISM OF ANALYICAL SCHOOL
Various writers have criticized the command theory of Austin on the following ground :
1. Customs ignored: - Analytical school is based upon the law. According to Austin the
law does not include customs but we see that customs are a very important part of the society.
There were customs by which the society and later on state came into existence. In state also
customs played an important role in the administration of justice. Even in the modern times the
customs play an important role in the formation of law. So we cannot ignore customs from
law.
2. Precedents ignored: - Precedent means the decisions of the court, which are also called
as judge made laws. Judge made laws because these laws were not the command of the
Sovereign. These laws were not enforceable at that time, so he excluded these laws from his
concept of the law.
3. Conventions Ignored: -There are certain conventions or methods, which are observed
or followed by the coming generation. These conventions or methods later on take the form of
law. The become law afterwards by their regular observance. In England the base of English
Law is conventions, which is very popular in the World. So, we cannot ignore conventions.
But Austin did not include conventions in his concept of law.
4. International Law Ignored: - Austin did not include international law in his law.
According to his law there is no Sovereign for enforcing the international law. But in modern
days we cannot exclude international law from the field of law because it plays an important
role in maintaining peace and society at international level. In other words, it is also a form of
municipal law of civil law.
5. Command Theory is not suitable: - It is not easy to understand the ‘Commands
Theory’ for common persons. It is not necessary that all should be enforceable or all common
person should be considered as law. Only those commands which are related with law and
order, should be law. It is difficult to separate those commands from others by the common
people or persons. So, this theory is not suitable in modern times. It is also an artificial theory
having no sense in the modern world.
6. Only Power Is Not Necessary: - According to the ‘Command Theory’, law can be
imposed only with the help of power, but we have the result of the tyrants or forced rules which
were thrown away by the people of French Revolution, of Panamaeto. Law can be enforced
even without power; it they are suitable to the society.
7. Moral Ignored: - The Command Theory has also excluded morals from the field of
law. But we have observed that morals have also an important role in the formation of law. We
cannot ignore morals from law because laws are meant for the society and such laws must be
according to the feelings of society. The feelings of society are based upon morals. So we
can’t ignore morals from the field of law.
CONCLUSON: -In this way he theory of command has been criticised and which is not
considered as suitable in the modern time. But we also can’t ignore the contribution of Austin
for giving he meaning of law in a systematic way. He gives the concept of law in scientific
manner. This view became the base for the coming writers, jurists and philosophers. So we can
say that Austin contributed a lot in the field of jurisprudence.

Q3--- Define Natural Law theory. Also explain its relevancies in the Modern times.

INTRODUCTION: The Natural Law school is not independent school. It has deep concern
with historical, analytical school. The main contents of this theory is that it has been interpreted
differently at the different times depending on the needs of the developing legal thought but
the greatest attribute of the Natural la w theory is its adaptability to meet new challenges of the
transient society.
According to the pro pounder of this theory says that, Law is a product of the straight thinking
of human mind. According to Socrates, he duly assert it that the positivist authority should be
obeyed but not blindly and it ought to be subject to criticism if deserve so. Plato: He was in the
view that each individual be given best suitable role by reason of his capacity and abilities.
Thomas Acquinas (Roman Thinker):- He means that Natural Law is a part of Divine Law. This
part is applied by human beings to govern their affairs and relations. Thomas Hobbes (Roman
Thinker) :- According to him that there should be an absolute authority which should govern
and control the affairs of human beings in the reciprocal transmission of concerned with every
span of life. Rousseau (Roman Thiner) : He held that there two types of will:1. The will of
individual and 2. General will. The authority through his rule must respect the both and in the
administration of rule making process. This will should be reflected.
Definition: - From the jurisprudence point of view Natural law is not a body of actual enacted
or interpreted law enforced by courts. It is in fact a way of looking at things and a humanistic
approach of Judges and Jurists. It embodies within it a host of ideals such as morality, justice,
reason, good conduct, freedom, equality, liberty, ethics and so on. The phrase Natural Law has
a flexible meaning. The chief characteristic feature of natural law may be briefly stated as
follows: -
i) It is basically a priori method which is different from empirical method. It used to stress
upon a cause and effect relationship between the facts on the verge of logic.
ii) It symbolizes physical law of nature based on moral ideals which has universal
applicability at all places and times.
iii) It has often been used either to defend a change or to maintain status quo according to
needs of the time.
iv) The concept of Rule of law in England and India and due process in USA are essentially
based on Natural Law philosophy.
MODERN NATURAL LAW THEORIS: - The following are the three main thinker who
contribute to the Modern Natural Law theories: -
1. Stammler:- He was much more influence by Positive Law. He says that” all positive law is
an attempt at just law” with regard to will and purpose of the law maker should have the proper
understanding and knowledge of actual social world or social reality. Various a time in his
concept he inter changeable used the word will with the purpose and he conclude that it is the
will of the people which enable them to secure their purpose under social reorganisation.
2. KOHLER: - His thoughts were influenced by Hegal. According to him Law is standard of
conduct which is consequence of in the impulse of human being that urges him towards a
reasonable form of life. It also derives its validity from the moral and ethical standard in society.
So that he laid down stress upon moral and cultural development of society.
3. Finnis: Finnis also is a very famous jurists of the present century. He has given the definition
and place to natural law. According to finnis Natural Law is the set of principles of practical
reasonableness in ordinary human life and human community. He sets up the proposition that
there are certain basic goods for human being. Fennis lists them as under :-
i) Life: - The term life signifies every aspect of vitality in good shape for self determination.
ii) Knowledge: Knowledge is a process of knowing of unknown with the help of sense.
iii) Sociability of Friendship: - Doing something best for the sake of one’s friend’s purposes,
one’s well-being.
iv) Role: - It is the expression of a status of human being in practical form such role is protected
and recognized by law.
v) Religion: - Question of the origins of cosmic order and of human freedom and reason
expressed thus this view is a good that even an ethicist can value.
vi) Practical reasonableness: - This is the logic expression of the ideas and decision in practical
circumstances. This the measurement of just or unjust in a real situation.
Despite the merits of Natural Law philosophy it has been criticized for its weakness on the
following grounds. In other words the demerits of the Natural Law may be read as follows :-
i) Moral proposition i.e. ought to be may not always necessarily conform to the needs of the
society.
ii) The concept of morality is a varying content changing from place to place, therefore it would
be futile to think of universal applicability of law.
iii) The rules of morality embodied in natural law are not amendable to changes but legal rules
do need a change with changing of the society.
iv) Legal disputes may be settled by law courts but disputes relating to moral and law of nature
cannot be subjected to judicial scrutiny.
CONCLUSION: -The brief survey of the theories of Natural law reveals that its concept has
been changing from time to time.

Q4--- Explain the importance of Legislation as source of Law. OR

Distinguish between supreme and subordinate legislation?

INTRODUCTION: - Legislation means the process of law making. This law-making power
is vested in the legislation body which is sovereign body. It is called Parliament at the Centre
level and legislative assembly at the state level. Legislation is the most important and modern
source of Law. This source has played an important role in the development of modern law and
also different from custom and precedent etc.
LEGISLATION AS A SOURCE OF LAW: - The importance of legislation starts from the
beginning of analytical school. This school ignored the importance of custom and gave the
stress on command of sovereign which can make law only through legislation. This school also
ignored the judge made law. About custom they say that the custom are not law but they are
the source of law.
HISTORICAL SCHOOL: - It gives no importance to the legislation rather gives more
importance to custom. According to them the function of law in only to specify and to correct
the custom into law whereas in the modern times the importance of legislation has considerably
been increased. With the coming of existence of the State the legislation has also been come
into existence and become most important source of law. The scope of legislation has become
very wide in the modern times.
KINDS OF LEGISLATION: - There are two kinds of the legislation: -
1. Supreme Legislation: - It has the powers of making law and is known as supreme legislation
in each country. This power is vested in sovereign body in India i.e. Parliament at the centre
and legislation in the State.
2. Subordinate Legislation: It is inferior from supreme legislation and is indirect legislation.
It takes power to make law indirectly from Parliament, who gave him power to make law that
is why is called subordinate legislation authority. It is further divided into the following parts
i) Autonomous Laws: A group of persons for making law is known as autonomous law and
body i.e University or Boards.
ii) Judicial Rule: - means the rules made by judicial body under power owed from supreme
authority i.e. High courts or supreme court etc.
iii) Local Law: means law made by local bodies under the control of SC i.e Zila Parishad,
Municipal Corporation.
iv) Colonial Law: It is for those countries who are under the control of any other country can
make laws with the permission that country.
Executive Law: - The law and the rule can be made by the executive body in the State under
the power conferred by the Sovereign/ Parliament which is also known as delegated legislation.
It includes the following origins:
I) Legislation: - The legislation is the super power to make law for a country.
II) Executive: -The executive body of the nation is to imposes law in the country.
III) Judiciary: - The Judiciary is to explain and implies the law so passed.
Parliament in India delegates its laws making power to the executive body and this power is
called legislated or delegated legislation.
Many reform acts were handing power of making reforms, controlling of employment,
development of education. In 20th century some important matters were given to delegated
legislation to restrict the State to interfere in the daily life of the citizens.
CRITICISM: - Many of the writers has criticized this power because it gives much power to
the executive body and administration body. The legislation has passed by facing the
complicated problems in the constitution. There were some supporters also who were in the
favor of this delegation of power.
REASONS FOR DELEGATED LEGISLATION
i) Lack of Time: The parliament has the shortage of time because of a Public welfare state. It
has to pay much time towards national problems.
ii) Technicality of Matters: - With the progress of society the things have become more
complicated and technical. Therefore, the policy is made by the Parliament and the imposing
matter is left on the masters of it.
iii) Flexibility: Law should be flexible and according to the need & conditions of the Public
along-with the local matters which are different from area to area, So keeping in view of this
reason the power is handed over to the executive.
There are some dangers in delegations of this power: -
i) The executive body may use the more powers than the powers delegated by the
Parliament.
ii) (ii) The Parliament has no time to examine the rules passed by the executive under
delegated legislation.
In India there is a Parliament form of legislation and it is a welfare state and the Parliament
cannot go aside from the constitution. Any cut against the constitution is void.
The Main power of delegated legislation & CONCLUSION is: Power of facing an act into
operation. Power to apply the Act. Power to increase or to decrease the scope of the Act. There
is a parliamentary as well as judiciary control over delegated legislation. This power in India
has also on constitutional basis.

Q5-- Judges are the makers of law not discovers of law. Do you agree with this view?
INTRODUTION: - There are two contrary theories regarding the question as to whether
Judges declare the existing law or make the law. There are two which are as under :-
1. Theory that judges declare the law or Declaratory Theory.
2. Theory that judges make the law or legislative theory. (Law making theory)
1. DECLARATORY THEORY: - The first theory is the declaratory theory as described by
Hall and Blackstone and they supported by Dr. carten also.
According to the declaratory theory no new law is created by the Judge, Courts of Justice
do not make law, their province is to ascertain and declare what the law is. Judges only discover
the existing laws.
Hale enunciates declaratory theory of precedents and contends that whilst Parliament alone
legislates in the strict sense the Judges only expound the law and their decisions are the best
evidence of what law is. The result of his theory is that the effect of the decision is retrospective
for it does not only declare what law is but what it always has been. Nevertheless as Maine
has pointed out once the Judgement has been declared and reported we start with a new train
of thought and frequently admit that the law has been modified.
According to Lord Esher, There is in fact no such hing as Judge-made law, for h judge
do not make the law, though they frequently have to apply the existing law to the circumstances
as to which it has not previously been authoritatively laid down that such law is applicable.”
Declaratory theory is based on the fiction that the English law is an existing something
which is only declared by the Judges. This theory is known as the theory of judicial precedent.
LAW MAKING THEORY
The second theory is that the Judges do not declare law but make the law in the sense of
manufacturing of creating entirely new law. Bentham and Austin, have opposed the traditional
view as a childish fiction and have declared that Judges are in fact the makers and fulfill a
function very similar to that of the legislature.
Lord Becon: The new point decided by the Judges is a direct contribution towards law-making.
Professor Dicey supported this view and gives example of English common law which has
been made by the judges which has been made by the judges through their judicial
pronouncements.
Prof. Gray : supports this law making theory and says that judges alone are the makers of law.
He discredits the declaratory theory.
Judges are without any query law-makers but their power of law making is not un-restricted.
It is strictly limited for instance they cannot over rule a statute where the statute clearly lays
down the law. The legislative powers are restricted to the facts of case before them.
According to Salmond : Who is strong support of this view says that he is evidently troubled
in mind as to the true position of precedent. He further says that both in law and in equity
declaratory theory altogether totally rejected.
Such cases which are not covered by existing laws the judicial decisions created new
notions and formulae new principles which were never contemplated earlier. Supreme court
over-ruled the Golak Nath decision in Keshwanand Bhari’s case and laid down a new basic
structure theory and in Golak nath case the new principle of prospective over-ruling was
evolved by Judges.
RECONCILAION OF THE TWO THEORIES
The above two views about making of law by judges are not exclusive of each other but they
are rather complementary. It will be seen that neither the purely declaratory theory nor the
purely legislative theory represents the whole truth. Judges develop the law but cannot be said
to legislate. The common law is not made but has grown and the more it changes the more it
remains the same thing.
The answer to the question whether the Judges make or discover law much
depends upon the nature of the particular legal system. In common law system it may be stated
that the Judges make law while in other countries where is law is codified the judges only
supplement the law. It is true that custom and statutes do not render the judges some super
fulvous knowledge.
Q6) Explain the phrase, “Law is social Engineering” as propounded by Roscoe Pound.

INTRODUCTION: - Roscoe Pound is considered to be the,” American Leader” in the field of

Sociological jurisprudence. He comes from Harvard Law School and had a great academic
favour. According to him,” the end of law should be to satisfy a maximum of wants with
minimum of friction.” He defined law as containing the rules, principles, conceptions and
standards of conduct and decision as also the precepts and doctrines of professional rules of
art. He considers law as a means of a developed technique and treats jurisprudence as ‘social
engineering’.
The main propositions of Roscoe Pound theory of Social Engineering are as under:-
i) POUND CONCENTRATES ON THE FUNCTIONAL ASPECT OF LAW:- Pound
concentrates more on the functional aspect of law, that is why some writers name has approach
as “ functional school” the law is an ordering of conduct so as to make the goods of existence
and the means of satisfying claims go round as far as possible with the least friction and waste.
ii) THE TASK OF LAW IS “SOCIAL ENGINEERING”:- He says, “for the purpose of
understanding of law of today. I am content with a picture of satisfying as much of the whole
body of human wants as we may with the least sacrifice. I am content to think of law as a social
institution to satisfy, social wants, the claims and demands involved in the existence of civilized
society.
iii) SOCIAL ENGNEERING MEANS A BALANCE BETWEEN HE COMPETING
INTEREST IN SOCIETY: - He lays down a method which a jurist should follow for ‘social
engineering’. He should study the actual social effects of legal institution and legal doctrines,
study the means of making legal rules effective sociological study in preparation of law-
making, study of judicial method, a sociological legal history and the importance of reasonable
and just solutions of individual cases.” He himself enumerates the various interests which are
to be protected by the law. He classifies them under three heads:
i. Private Interests (ii) Public Interests (iii) Social Interests.
PRIVATE INERESTS: - Such as interest of physical integrity, reputation, Freedom of volition
and freedom of conscience. They are safe-guarded by law of crimes, contracts.
PUBLIC INTERESTS: - Main public interests are preservation of the State, State as a guardian
of social interests such as Administ-Ration of trusts, charitable endowments, protection of
Natural environment, territorial waters, sea-shore regulation of public employment and so on.
SOCIAL INTERESTS: - Preservation of peace, general health, preserving of Social institutions
such as religion, political and Economic institutions, general morals, promotes Human
personality, cultural and economic life.
Pound tackled he problem of interests in term as of balancing of individual and social interests.
It is through the instrumentality of law that these interests are sought to be balanced. Justice
Cardozo remarked that,” Pound attempted to emphasize the need for judicial awareness of the
social values and interests.” Roscoe Pound regarded law as a basic tool of social engineering.
How in India the society and law are acting and reacting upon each other can be adjudged from
the following enactments passed after India became Independent: -
a. The special Marriage Act 1954 2. The Hindu Marriage Act 1955 3. The Hindu
succession Act 1956 4. The Hindu Minority and guardianship Act 1956 5. The Hindu
Adoptions and Maintenance Act 1956 6. The Dowry Prohibition Act 1961 7. Child Marriage
Restraint (Amendment Act) 1978 8. The Consumer Protection Act 1986 9. The S.C &
S.T.(Prevention of Atrocities) Act 1989 10. Commission of Sati (Prevention) Act 1987 11.
Bonded labour(Abolition) Act- 1976
INTERESTS AS THE MAIN SUBJECT-MATTER OF LAW:- Pounds theory is that interests
are the main subject matter of law and the task of law is the satisfaction of human wants and
desires. It is the duty of law to make a valuation interests in other words to make a selection
of socially most valuable objectives and to secure them.
To concluding the theory, Pound says that the aim of ‘Social Engineering’ is to
build an efficient structure of the society as far as possible which involves he balancing of
competing interests.
CRITICISM AGAINST POUND’S THEORY: -
i. Engineering not a happy word: It suggests a mechanical application of the principles to
social needs but really the word engineering is used by Pound metaphorically to indicate the
problems which the law has to face.
ii. Classification of interests not useful: Freidmann doubts the value of classification of
interests and the value of such classification.
iii. Ihering & Bentham concludes the theory of Pound’s that, “such classifications greatly
helps to make legislature as well as the teacher and practitioner of law conscious of the
principles and values involved in any particular issue. It is an important aid in the linking of
principle and practice.”

POUND’S CONTRIBUTION
Social Engineering stands on a practical and firm ground. He points out the responsibility of
the lawyer, the judge and the jurists and gives a comprehensive picture of the scope and field
of the subject.

Q7) What do you mean legal personality and its different theories?

INTRODUCTION: - Natural Persons are all human beings who are capable of rights and duties
in law, i.e. who have a status. Legal persons are those to whom law is recognised as a person.
It is either a thing or a mass of property or group of human beings to which law attributes
personality the law confers a legal status and who thus in the eye of law possess rights and
duties as a natural person. Person is of two types :- 1. Natural Person II. Legal Person
According to Gray, “A person is an entity to which rights and duties may attributed.”
According to Salmond, “person is, any being to whom law regards a capable of rights and
duties.”
According to Paton, “Legal personality is a medium through which some such units are created
in whom rights can be vested.”
In the development of society, law developed and with the development of law the
concept of legal personality come into existence. In the ancient times there was no concept of
legal personality but as the society developed the person was recognized as the representative
of the State and a separate personality was given to him. In the due course of time corporation
and companies came into existence such companies and corporate were given the separate
personality so in this way these bodies are now called as legal persons.
There are the following two types of persons: -
i) NATURAL PERSONS (HUMAN PERSONS):- All human beings are natural persons
but in ancient society the slaves were not recognized as natural persons. Similarly, outlaid
persons, unsound persons were not natural persons. In Hindu Law, Manu has mentioned some
persons who were not recognised as natural persons i.e. Born child, deaf persons, sanyasi and
those who are living dead.
1. Unborn person: Unborn person is not a natural person because he is not in existence,
but a child in the womb is natural person because he bears the rights and duties under law.
Person in the womb can represent the position after birth. In IPC the child in the womb is
considered as a natural person as soon as any of his organ will come out from the womb.
2. If the pregnant lady gets the punishment of death sentence. She will be hanged only
after delivery.
3. ANIMALS: - In ancient time the animals were legal persons but in modern time animals
are not the legal persons but in law we find come cases in which some animals have some
rights and duties. Today also the protection of animals some laws have been made which give
rights to the animals. These laws prohibit people to kill them. In this theory the personality has
also been confirmed.
4. Dead Person: - In law dead person has no existence as the dead person has no
personality. But in certain cases, they are considered as person in law. First if any person
defames the dead person and such defamation lowers the reputation of the family members of
the dead person, then a legal action be taken against the wrongdoer who defamed the dead
person. Secondly if any person defames the dead body of deceased person then such person is
liable for damages under law.
ii) LEGAL PERSONS:- Legal person are artificial or imaginary beings to whom law
attributes personality by way of fiction, i.e. law gives them rights and duties like of natural
persons, e.g. King of England has two personalities- first a human being second as head of
state, being head of state he is known as a legal person. Similarly he President of India and the
Governors of the states are legal persons.
CORPORATE PERSONALITY: - Main form of legal personality is the corporate personality.
It is of two kinds: -
1. Corporate sole: means a single body representing any state or any other object. It is
called series of the successive persons. The King of England or the President of India is the
corporate sole. They represent only one man in successive period. The post of corporate sole
remains always alive while the human beings who sit on the post may die.
2. Corporate Aggregate: - When law confers single personality to a group of person then
it is called corporate aggregate e.g. companies are registered according to law of societies or
according to law of land. These companies or corporations etc., are legal persons.
3. In the ancient time the Karta represented the whole Hindu family who was considered
as legal person. It is same as in Roman Society. It is adopted in the shape of Indian companies
Act 1956. The advantages of the corporate personality because they represent an association of
persons as a single person which is helpful in business.
Q. 8). Discuss the status of unborn person and how it can be differentiated with dead
person?
= Synopsis –
1. Introduction.
2. Meaning and definition person.
3. Definition Unborn person.
4. Definition and status of dead person.

1. Introduction -
The word person is derived from Greek Roam Word “
Persona” i.e. actors/mask in very simple and easy kumgage the term person mean
“Human beings” the human beings have peculiar characters such as pooler of though
speech and choice. This characteristic is not found in animals. Their have mainly two
kinds of person are their namely Natural Person and Legal person. The natural person
includes all the living human being such as Lunaic, Minor, and Child in matters womb,
Drunken person etc. and the legal person are those who are created by special law. .
2. Meaning and Definition of Person-
The word person is roginated form Roman word “Personci” legal meaning of
person totally different from ordinary meaning in Jurisprudence, the term person gives
a wide and vogue meaning. It is totally different form ordinary meaning.
GRAY – He Define person as entity to which rights and duties may be
attributed.
3. Definition and status of unborn person –

Unborn person is a person who is in matter wormb he is an restricted natural

personality.
a. Hindu Succession Act- When coparanary property partition takes place and
unborn person is M matter womb than person also get share in the partition and
if is not given the same partition can be re open.
b. Under Muslim succession Act – Property can be transferred to the unborn
person provided that the person should get birth within six months.
c. Under T.P. Act- Under Sec. 13 of transfer of property Act, 1882 property can
be transferred for the benefits of unborn person.
d. Under Cr.P.C.- If the death punishment is given to pregnant women the death
punishment can be post ponded till the birth of child.
e. Under IPC – The Person who makes the abortion, the person is liable for the
punishment of Murder.
f. Constitutional provisions – Directive principles of the status by unborn person
(Article 21).
 g. Definition and status of dead person- “The dead person is a person who is
having no legal entity. In Testamentary transfer the dead person transfers his
property to living person in this the will of dead person secured protected.
Rights of dead person -
1. To dispose off his property as per his will.
2. In T.P.Act U/sec 129.
3. To dispose of the dead body of dead person legally.
4. Right not to defame the dead body.
5. Dead person has right under the copy right act.

Q9) Discuss the essential features of the Historical school. OR Explain in detail the
historical school of Savigny.

INTRODUCTION: - Jurisprudence is a subject in which the definition nature and the sources
of law are studied various writers under various schools have defined law. Austin under
Analytical school says that law is the command of sovereign. He added only the law in the
study of jurisprudence. But under historical school Savigny says that law is the general
consciousness (Volksgeist) of the people. It means what the common people think or behave
is the base of law. Law shows the general nature of the common people. This theory of
Volksgeist is based on the historical method. Savigny is the father of it. According to Savigny,
“Law is the General consciousness of the people.”

HISTORICAL SCHOOL
Historical School is a branch of Law, which studies law from the past history. It says that law
is based on the General Consciousness of people. The consciousness started from the very
beginning of the society. There was no person like sovereign for the creation of law.
The law in the ancient times was based mainly upon simple rules, regulation,
custom, usages conventions etc. These things were later on developed by the jurists and
lawyers. These things were later on converted into set form of law.
CAUSES OF COMMING OF THE HISTORICAL SCHOOL
The Historical school is just opposite to the Analytical school in 18th and 19th century,
the concept of individualism came into existence. Due to this concept the revolutions came like
French revolution, Russian revolution etc. At that time Soveging montasque, Barke, Hngo were
the writers who said that law is the general will of the people or law is based upon common
people and the feelings of the common people.
Law develops like the language and manners of the society. So law has a natural
character. Law has no universal application. It differs from society to society and state to state.
In the same way the languages differ from society to society and locality to locality.
Montasoque has said, “Law is the creation of climate, local situations and accidents.”
According to Hugo hag, “ Law develops like language and the manners of the society and it
develops according to suitable circumstances of the Society. The necessary thing is the
acceptance and observance by society.
According to Burke, “ Law is the product of the General process. In this sense it is dynamic
organ which changes and develops according to the suitable circumstances of society.
SAVEGNY: - Soveging is considered as the main expounder or supporter of the
historical school. He has given the Volkgeist theory. According to this theory, law is based
upon the general will or free will of common people. He says that law grows with the growth
of nations increases with it and dies with the dissolution of the nations. In this way law is
national character. Consciousness of people. In other words, according to this theory law is
based will or free will of common people. He says that law grows with the growth of nation.
A law which is suitable to one society may not be suitable to other society. In this way law has
no universal application because it based upon the local conditions local situations, local
circumstances, local customs, elements etc. Al these things effect law and make it suitable to
the society.
The main features of the Savigny’s theory is :-
1. Law has a national character.
2. Law is based upon the national conditions, situations, circumstances, custom etc.
3. Law is pre historic: means law is found and is not made, the jurists and the lawyers
make it into set form.
4. Law develops like language and manner of the society. In ancient society law was not
in a natural stage or no in a set form. Later on with the development of the society the
requirements and the necessities of the society increased. Due to this it was necessary to mould
law in a set form.
IMPORTANCE OF CUSTOMS
According to Soveging customs are more important than legislation because customs come
before legislation. In other words the customs are the base of legislation.
CRITICISM OF SOVEGING’s THEORY
Savigny’s theory has been criticized on the following grounds:-
1. Inconsistency in the Theory: - Savigny asserted that the origin of law is in the popular
consciousness, and on the other hand, argued that some of the principles of Roman law were
of universal application. Thus, it is a clear-cut inconsistency in his ideas.
2. ‘Volksgeist’ not the Exclusive Sources of law: - There are many technical rules which
never existed in nor has any connection with popular consciousness.
3. Customs not Always Based on Popular Consciousness: - Many customs are adopted
due to imitation and not on the ground of their righteousness. Sometimes customs completely
opposed to each other exist in different parts of the same country which cannot be said to be
reflecting the spirit of the whole community.
4. Savigny Ignored Other Factors That Influence Law: - The law relating to trade unions
is an outcome of a long and violent struggle between conflicting interests within a society.
5. Many Things Unexplained: - Legal developments in various countries show some
uniformity to which he paid no heed. i.e.
6. What is national and what is universal.
7. Juristic Pessimism: - Savigny encouraged juristic pessimism. Legislation must accord
with popular consciousness. Such a view will not find favor in modern times. No legal system
would like to make compromise with abuses. People are accustomed to it.
CONCLUSION
From the facts mentioned above we have gone behind to see the history of the society to check
that what was the position of law in the ancient time. How and in what form law was prevailing
in the society? To find the solution of the questions the supporter of Historical school found
that law is the general consciousness of the common people or it is the free will of common
people on which law developed and converted into a set of form of law.

Q10) WHAT IS ADMINISTRATION OF JUSTICE? EXPLAIN ITS KINDS.

DISTINGUISH BETWEEN CIVIL AND CRIMINAL JUSTICE.

INTRODUCTION: -Administration of Justice: - According to Salmond : -”The administration

of justice implies the maintenance of right within a political community by civilized substitute
for the primitive practice of private vengeance and violent self-help.” This has been criticized
on the ground that it is not the force of the state alone that secures the obedience of law. There
are a number of other factors such as the social sanctions, habit and convenience which help in
the obedience of law. In civilized societies, obedience to law becomes a matter of habit and in
very rare cases the force of the state is used to secure it
According to Austin: ‘Law is the aggregate of rule set by men as politically superior, or
sovereign, to men as politically subject.” It means law is command of sovereign. In his
definition Command, duty and sanction are the three elements of law.
The fundamental difference between the definitions of the two jurists is that whereas in the
definition of Austin, the central point of law is sovereign, in the definition of Salmond, the
central point is Court. In fact, both the definitions are not perfect and present two aspects of
law.
Salmond: Points out that men do-not have one reason in them and each is moved by his own
interest and passions. The only alternative is one power over men. Men is by nature a fighting
animal and force is the ultima ratio of all mankind. As Hobbes puts it “without a common
power to keep them all in awe, it is not possible for individuals o live in society. Without it
injustice is unchecked and triumphant and the life of the people is solitary, poor, nasty, brutish
and short.” Salmond says however orderly a society may be, the element of force is always
present and operative. It may become latent but still exists.
KINDS OF ADMINISTRATION OF JUSTICE
The administrative of justice may be divided into two parts:-
1) Civil.
2) Criminal.
1. Administration of Civil Justice: The wrongs which are the subject-matter of civil
proceedings are called civil wrongs. The rights enforced by civil proceedings are of two kinds
(1) Primary and (2) Sanctioning or remedial rights. Primary right are those rights which exists
as such and do not have their source in some wrong. Sanctioning or remedial rights are those
which come in to existence after the violation of the primary rights. The object of the civil
administration of justice is to ascertain the rights of the parties and the party who suffers from
the breach of such rights is to be helped by way of paying damages or getting injunction,
restitution and specific performance of contract etc.
2. Administration of Criminal Justice:- The object of the criminal justice is to determine the
crime of a person who is charged with the doing of an offence. The criminal court after proving
that the offender is guilty of the offence charged awards him the punishment of fine,
imprisonment as prescribed by criminal law. A convicted person is awarded physical pain.
Thus the main purpose of the criminal justice is to punish the wrongdoer.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL ADMINISTRATION OF JUSTICE
Civil Administration of Justice
In the civil case the suit is Filed in the civil court. Criminal Administration of Justice
In the criminal cases the proceedings Is filed in the criminal court.
The main remedy in civil Cases is damages. The main remedy in criminal cases is to Punish
the offender.
In the civil cases, the court Follows the procedure Prescribed in Civil Procedure Code. In
the criminal cases, the court follows the procedure laid down in criminal Procedure Code.
In civil cases the action is taken By the injured party and the Suit is established by himself By
giving evidence. In criminal cases the proceeding is taken by the state and the injured
party is called out as a witness by the state.

Q11) What is Law? Discuss. Definition given by various jurists?

INTRODUCTION: It is easier to explain than to define it. It means that things are easy to
explain than to define it. Definition is very necessary for the study of the subject, because the
beginning and in one sense it ends is also its definition. To give a definition of Law is
comparatively a hard task due to many reasons:
1. In Hindu: - Dharma
2. In France : - Droit
3. In Rome: - Jur.
4. In Muslim: - Hukma
All these above words convey different meaning. And we can say that a definition which
contain all the above meaning and all elements would be a good definition of law. Endlly
definition given by every person is always different. Because definition given by a lawyer a
philosopher, a student or a lecturer is always different. A definition which doesn’t cover all
these elements would be an in-perfect definition.
DEFINITION OF LAW: - The word, “Law” has been taken from the ‘latin word’ which means
“The body of Rules” various scholars has attempted to define this term according to their own
prospective. Some of them are as under: -
According to Roman Scholars: - The law is concerned with the parameters which is right or
wrong, fair and unfair.
ULPIAN: - The famous Roman scholars and a Juries, he defined the term ,” Law as standard
of what is just and unjust.”
According to Salmond: - The law is the body of principals recognised and applied by the state
in the administration of justice.
According to Positivist Definition: - They are known as a modern thinker and they propounded
a new school in the Law namely, “Analytical School.” This school is also known as a scientific
school. Bentham, Austin and Kelson define the term of Law in the following manners: -
1. AUSTIN: - Austin is the father of English Jurisprudence and according to him, “Law
is the command of sovereign” There are three elements of law according to Austin:
a) Command)
b) Duty) = LAW
c) Sanction)
According to him every law has a command and due to this command, we have the duty
to obey this command and if we don’t obey this duty then there is a sanction.
2. As per Bentham: - The law is the violation of some declarations by the political head
with utility ensuring maximum happiness of the maximum people in the society. Bentham
concept of law revolves around individual utilitarianism and its concern with the theory of pain
and pleasure, which means that the purpose of Law to reduce the pain and harms and pleasure
in the society.
3. According to Kelson: - The law is psychologically command. He is concern with those
commands which purely rest upon the formal expression of law.
3. Sociological Definition: The sociological approach is not a single approach but it includes
a number of thoughts, but all these thoughts related to society, that is why heading is given
them to sociological. And we shall discuss some of true definitions: -
DUGUID: - According to him the law is a set of some formal norms aiming an creation of
solidarity in society.
IHERING:- According to Inhering the Law is a form of guarantees of the conditions of life in
society which are assured by the state’s power of constraint.
EHRLICH :- Ehrlich lays down, “that the law consists of norms coverings social life. But only
the living Law is the actual law.”
ROSCUE POUND: - According to him Law is an instrument for balancing, conflict or
completing interest of people in the society.
REQUIREMENTS FOR LAW
The followings are some requirements for the definitions of law:-
i) Before the law there is a State.
ii) Before the State there must be a society.
iii) State & society develop a legal order to be followed.
iv) And finally, law always has a purpose.
CONCLUSION: -
In end we can say that law is the important and necessary part of the state and developing
the human beings. Law gives rights and duties to human beings. And law is the essential part
of a State. Law is an instrument of social control as well as social change.

Q12) Define ‘Right’ and discuss the essential elements of legal right. OR
What is a ‘Legal Right’? Discuss the characteristics of a legal right.
INTRODUCTION: Right generally means an interest or facility or a privilege or immunity or
a freedom. In this way right for the purpose of jurisprudence is called legal right. Austin in his
theory has separated the subject matter of jurisprudence from morality or materiality. He gave
the concept of positive law. So here also right means positive law right only, which is term of
legal right. Legal right is recognised by law. It is different from moral right. Moral right if
violated is called moral wrong. The violatin of natural right is called natural wrong. But these
wrongs are not remedial under law while if a legal right is violated then it will be legal wrong
which is remedial under law. The different jurists have defined legal right in different ways:-
According to Austin : “ 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 Salmond: - “Right is an interest recognised and protected by
the rule of right.” Here rule of right means rules of law or law of country. When an interest of
a person is protected by the rule of law then it is called right. Salmond definition involves two
points, firstly that right is an interest and secondly it is protected by rule of right. It means that
it relates to his (person) interest i.e., life liberty, heath and reputation etc. Grey has criticized
the interest theory propounded by Salmond, Inhering and Heck and he has supported the view
that right is not an interest but that means by which the interest is secured. According to
Holland, “right is as a capacity residing in one man of controlling, with the assent and assistance
of the state the action of others.”
According to Paton: “That legal right is that it should be enforceable by the legal process of
the state.” He however says that there are three exceptions to this rule :-
1. It is not necessary that the state should always necessarily enforce all the legal rights.
2. There are certain rights which recognized by law but not enforced by it for example :
In a time barred debt, the right of the creditor to recover the debt is an “ imperfect right”
3. There are certain laws which do not confer right of enforcement to the courts, for
example: International Court of Justice has no power to compel enforcement of its decrees
under International Law.
THEORIS OF RIGHT: - There are two theories of right:
1. WILL THEORY: This theory is based upon the will of human beings. It says that a
right reflects the inner will of a human being. Austin, Holland, Holmes recognized this theory
of right. According to them a person wants o remain in the world freely and according to his
own choice because a man is born free.
2. Interest Theory: - This theory says that interest is the base of the right. It is only interest
which is recognised by law. This theory reflects the external nature of the human beings.
Supporter of this theory say that there are many interests in the world. These interest which
are protected and recognized by law are called right.
ELEMENTS OF LEGAL RIGHT: - Following are the elements of Rights: -
1. Subject: here means a person who has right. So, there must be a person for rights
2. Act of Forbearance: - Right means some standard of action permitted by law. In a right
either an act is done or an act is forbidden. This is also called as content of right.
3. Object: - There must be a object upon which the right is exercised. Mainly there are
three essential elements of right e.g. Lives in a house. Here: (i) A has the right to live in the
house. (ii) A is subject, house is object and (iii) His living in the house is act content. But some
writers give some more elements of right.
4. Correlative duty: For right there must be a correlative duty. In the above example ‘A’
has the right to live in the house but other persons have correlative duty not to disturb him.
Almost all jurists agree on the point because one cannot exists without the other. Here Austin
is not agree to this He says that the duty may be divided into two kinds i.e. (1) Absolute and
(ii) Relative.
5. Title: Salmond gives one more element of rights in the form of title. He says that a right
has got also a title. Title may be in the form of the owner or co-owner or mortgager or leaser
or buyer etc.
ILLUSTRATION: If, ‘A’ buys a piece of land from ’B’. A is the subject or owner of the right
so required. The person bound by the co-relative duty is persons in general because a right of
this kind avails against the world at large. The right consists in non-interference with the
purchaser’s exclusive use of the land.
KINDS OF RIGHTS: - The following are the kinds of rights :-
1. Primary right and secondary right: Primary right is an independent right while
secondary right means dependent right. They are also called as principal right and helping right
or remedial right. ILLUSTRATION: - ‘A’ has right of reputation which is his primary and
independent right. If any person defames A then A has the right of damages against the
defamer. This right of damages is called secondary right or remedial right.
2. Positive and Negative Right: - Positive right is linked with negative and negative right
is linked with duty. Positive right permits to do an act while negative right prohibit doing an
act.
ILLUSTRATION: - ‘ A ‘ has the right of reputation. This is his positive right and any person
should not defame him. The defaming his reputation called negative right.
3. Right Rem and Personam:- Right in Rem means right against the whole world while
right in persosnam means right against a definite person.
ILLUSTRATION: ‘A’ has not to be harmed by any person. This is right in rem. On the other
hand, ‘A’ has entered into a contract with ‘B’ and ‘B’ has broken +ve contract. ‘ A “ can enforce
this right against ‘B’. This is known as right in personam.
1. LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):- The division of right has
its origin in England. Legal right is recognised by Law. While equitable right has been
recognised by natural justice. In England there were two types of courts: (i) Legal courts (ii)
Chancery courts
Chancery Courts recognised the conquerable rights on the basis of justice, equity and good
conscience.
4. Vested & Contingents Right: - These rights is of permanent nature that depends upon
the happening of an uncertain event. Thus contingents right becomes full right only when such
uncertain events happen according to the condition.
5. Proprietary and Personal Right:- Proprietary rights which are concerned with property.
A person possessing any property has the proprietary right over it, and personal right means
the right related with a person or a body. Every person has a status. He should not be injured
or defamed. If any person injures or defames another person then the wrong doer infringes the
personal right of a person.
6. Perfect or Imperfect Right:- These rights which are enforceable by law are perfect and
which law does not enforceable are imperfect rights.
7. Right of Re-propia and Right in re-alena:- Right in re-propia means the right in one’s
own thing whereas right in re-aliena means the right in the things of others.

Q13). Define Custom? And what are the essential requisites of valid custom
= Synopsis
1. Introduction.
2. Defilation.
3. Classification of Custom.
4. Essential of value custom.
5. Conclusion.
1. Introduction-

Custom are the primitive and one of the oldest sources of law. In almost all the
countries the custom are the source lf law. Customs are nothing but the usage. While
taking into consideration the custom each and along custom is not a source of law but
some specific and important custom are the sources of law. The customs which are
beneficial to society which are sources of law.
According to Historical Jurists of Germany the customs are noting but the
volkgiest i.e. peoples inner-consciousness for example people accepted the evil custom
of sati, but as the time progresses the evil custom of sati was total abolish.
2. Definition –
a. Holland – All creatures are creatures of hasit.
b. C.K.Allen- “Custom as legal and social phenomena grows up by force inherent
in society, force partly by reason and necessity and partly by suggestion and
limitation”.
c. Austin- “Custom as rule of conduct which is observed spontaneously and not in
pursuance of law said by political superior”.
3. TARDES views-

Trades was a German Jurist custom are nothing but limitation. Trades suggested
that limitation is the character of human beings each and curly human being makes
limitation. The customs which was followed by our ancestors, now our present generations
follows there customs without making any other.
4. Classification of Customs-

Custom

Custom with Sanction Custom without Sanction

Legal Constitutional
Custom Custom

General Local Custom

Custom Custom

1. Custom With Sanction – The customs with sanction are those customs which are
enforced by the state.
2. Custom without sanction- The custom which does not have an obligatory force is
customs without sanction. These customs are followed due to the pressure of public
opinion.
3. Legal Customs- These customs are recognized by the law of land. These customs
are enforced by the courts.
4. Constitutional Customs- these customs are binding not due to any legal authority
but these customs are followed due to the contracts. Ex yearly contract worker in
forms.
5. General Customs- These customs previous through the country ex. Satapdi
Kanyadan are the general customs which provides through the India.
6. Local Customs – These customs previous in specific locally only ex. In some
Gujrat District the Waaf property may be sold by Mohammedon it is the custom of
some specific district but Infart Waraf property is in alienable.
5. Essentials of Valid Custom –

One of the essential element of valid custom is that it should be very old one. In
India especially if the custom is 15 years old, then only it is recognized by law, but in
England if the custom is 1189 A.D. before custom than only it is recognized custom a
custom. Antiquity is support to be one of the essential and vital elements of custom.
The Custom of dowry is although a very old custom, but it has been prohibited
under dowry prohibition Act. Thus we can say that, the custom which is good and useful
is only recognized under the law.

• Cordiality - The custom should be certain. A custom which is vague or

indefinite is not recognized by the law. The custom should be meard for certain
purpose it the custom us uncertain then it is not recognized by the law. In Hindu
Family their was custom of offering a cow after the marriage, but as the time
passed away this custom prouses to be uncertain and hence abolished.
• Reasonableness – The essential characteristic must valid custom is that the
custom must have specific good reasons if the custom is against pulse policy
then it is not recognized as valid custom. Some of the writers suggested that the
 reasonableness is very wide concept ex. The custom os polyandry was
prohibited and regarded as custom without reason.
• Continuity – The custom should be continued from very long period if there is
any gap between the custom then there customs are not called as custom with
continuity. There was a custom m Parsi family that the where property is
inherited to elder son very long period, but now is has been abolished.
• Obligatory force – The custom must have obligatory force. The custom must
be on Joyed by general public at large. It is an obligatory force on individual to
follow the traffic rule where driving a unhide.
• Consistency – The custom must be consistent one the custom should not came
into conflict with other custom it should be found as it was perilously found
there should not be any cuter or changes in the present custom ex. Custom of
satapadi is consistent custom.
• Peaceable enjoyment- The custom present should be enjoyed peaceable, there
should not be only conflict regarding the observance of custom. There was
accustom in Muslim family that no maintenance is given after the divorce, but
due to Sahhano’s case this custom came into conflict with law and thus
under125 of Cr.P.C. maintenance is given to Muslim women.
• Conformity with statute- the last essential element for valid custom is that the
custom must have conformity with law no custom should be against the by
statue are Supreme one, the custom is just a source of law but conflict with state
although according to Historical School the custom is superior ten statute but
his view is never recognized the practice. In the English rule the custom which
is in conflict with law is never recognized in advocate Act 1961 it is duty on
advocate to under the band and the coat while pleading the case.
6. Kinds of Custom –
a. Local Custom – these custom are found in a particular locality only ex. In
Dravida (South) there is a local custom that the widow can only adopt the child
with the consent of deceased husband Sapindas without the consent of Sapindas
the widow cant adopt the child this custom is limited to the south only so it is
called local custom.
b. Family Custom – This custom are found in particular family only ex the
customs of Rajgharana are limited to the particular family of Rajgharana only
so these custom are called family custom.
c. Caste Custom – This customs are found in particular caste only ex. In the law
adaptation amongst Brahmin a Homa is very necessary while adoption, but in
Shrdas giving and taking of boy is sufficient to complete the process of
adoption.
Q. 14). What do you understand by doctrine of stare-decisis? Discuss its
implication in relation to precedent.
= Synopsis –
1. Introduction.
2. Basis/working of stare-decisis.
a. Hierarchy of Court.
b. Binding effect.
3. Operative system.
4. Origin of stare – decisis.
5. Stare- decisis in India.
6. Precedent is based on doctrine of stare decisis
a. Inductive Method – Law Court follow the at higher Court.
b. Deductive Method – Generate now laws by upper court.
1. Introduction –
According to “Oxford dictionary” precedent means previous instances referred
in subsequent case not each and curly decision can be used as precedent but only
certain cases which can be used in future for similar circumstances are used as
precedent. The doctrine of stare decisis and precedent are curly closely related to
each other.

“Roscopound” says that judicial precedent acts like transformer of law. The
precedent is mainly based on doctrine of stare decisis in the doctrine of precedent,
the lower court have very little scope there to apply their minds.
2. Basic/working of stare – decisis – The working or main basis of store decisis is
Hierarchy of Court and binding effect.
a. Hierarchy of Court- The general rule is that any court is bound by the
decisions of all higher courts thus itself. A High Court Judge cannot question
the decision of “Court of Appeal” nor does the “Court of Appeal” refuse to
follow the judgments of “House of Lords”. A general rule is that Higher
Court are bound only the decisions of higher courts or Ellen the court are
not bound by the decisions of courts which are of equal rank.

-- Country Courts.
-- Magistrate Court.
-- Lower Courts.
House of Lords

Court of Appeal
 High Court

Queen’s bench Chancery probate and adulatory

division division division
(Hierarchy of Courts in England)
3. Binding effects –
The binding effect means noting by, the obligatory force of upper courts over
lower courts for example court at appeal is bound by the decision of house of lords
as well as high court is bound by the decisions of court of appeal.
4. Operative System –
The “Ration- decendi” is the operative system in the precedent the precedent
mainly consist tow part 1. Ratio decendi and 2 orbiter dicta the term ratio decendi
means nothing but the guidelines of the upper court judges which has binding effect
while orbitr dictas means on opinion of the judges and which does not have any
binding effect justice Bhagwati had given orbitur dicta in various cases.

5. Origin of stare-
The origin of stare decisis is form England. The hierarchy of court had been
present in England from very long period. From very log period the system of law
reporters under present in England. Before 14th century there was a law reporter
namely “Brackten”. The Brackten was one of the oldest law Reporter from England
it mainly consisted of 500 cases by in Brackten there was not any systematic
arrangement of cases was present. 14th century the 2 law reporter namely “cokes”
and “Year book” was pulished. In the cokes and year book their was systanatuc
arrangement of various cases. There is more clarity in year book and cokes as
comp[are to Brackten.
State-decisis M India- In Inda various hierchy of court are present such as
supreme court is the highest appellate court in India. The supreme court can
overrule its decision, means supreme court has no binding effect of its own decision
under Art. 441 of Indian Constitution the decision of Supreme Court are binding on
all lower courts. When we observe the High Court we can found that Art. 225 of
the Indian Constitution provide that, the decisions of High Courts are binding on all
the lower courts.
The High Courts are not bound by decision of after Higher Court. It is the
discretionary power of the High Court to follow or refuse to follow the decisions of
other High Courts. The Musif Courts are bound by the decisions of JMFC and CJJD.

6. Precedent is based on doctrine of stare-decisis –

 The precedent means nothing but previous instances or cases which may be
applied for future and similar circumstances the precedent and doctrine of state-
decisis are inter related with each after beth there term are in separable form each
ather. Not each and every Judgment is precedent, but only certain cases which can
be used in future for similar circumstances are known as precedent. The main basis
of state decision is Hierarchy of Court and the in precedent their of mainly two
methods are present.
a. Inductive Method- in this the lower court follow the Judgement of Higher
Courts.
b. Deductive Method – in this the new rules are generated and made by the
Higher Court.

7. Conclusion –

Thus from the above whale answer we can made a broad conclusion that
precedent and doctrine of stare decisis are inter related with each other and balth
are in separable from each other
Q15). What do you mean by PIL? Explain its concept in modern society.
= Synopsis –
1. Introduction.
2. Meaning of PIL.
3. Origin of PIL.
4. PIL evolved in Modern Society.
5. Case law.
6. Conclusion.
1. Introduction –

The evolution of “Social action litigation” popularly known as “Public interest

litigation” is a good example of supreme courts activism it is only due to supreme courts
activism the concept of PIL had been introduced. The main the primary object of PIL
is to protect the interest of society at large. The interest of society at large. The PIL is
supposed to be an instrument throw which interest of people can be protected.
While filling the PIL there is no necessity that the person filling PIL should have
any specific interest in that PIL. In PIL the locus standi is relaxed any person can filed
the PIL but the person filling PIL must have bonifed mention and the person should not
be politically maturated here the bonifed intention mean good intention.
2. Meaning of PIL –
The PIL is combination of two words public interest + litigation the PIL is also
called “Social” action litigation”. Public interest means something in which public
community at large has some pecuniary interest or some rights by which their
legal/liabilities are affected. Litigation means legal action including all proceeding
 initiated in court of law with purpose of enforcing the remedy/right as per law of lexicon
it means legal action initiated in court of law for enforcement of public interest or
general interest

3. Origin of PIL : -

The origin of PIL is from USA in year 1960. In India under Article 32 of the
Indian Constitution PIL can be filled in Supreme Court of India and under Article 225
the people can get the relief from and High Court.
4. PIL evolutes in Modern Society –
It can said that public interest litigation has brought about new kind of awareness
about the rights of citizens and duties of the government and Jurisdiction court to
enforce them.
a. PIL is evolved for Social economic Justice the main the primary object of PIL
to seek social and economic justice in the and economic justice in the society
under PIL various matter like wild life environment, literature, culture had been
entertained and appropriate relief had been granted in various case. Under PIL
various social problems such as road sanitation water, air pollution,
maintenance of traffic control has been given appropriate remedy in court of
law. Under Article 32 of the Indian Constitution –
i. A poor in India can seek enforcement of their fundamental by writing a
letter to Supreme Court Judge.
ii. Under Article 32 the court has power to grant remedial relief which
includes the power to grant compensation inappropriate case where the
fundamental rights of poor and disadvantaged persons are violated. The
supreme court of India has entertained various complaints which are
made throw letter by public spirited citizens and social workers for the
benefits of poor, socially and economically backward people who are
unable to approach in the court of law for relief.
b. Relaxation of locus-standi-
in the PIL the concept of locus standi had been completely relaxed any
person haling bonifed intention can file the PIL for the group of people those
who are economically, socially backward and unable to get relief in the court of
law due to their backwardness. While the cases other then PIL are filed their
required a locus-standi, locus standi means interest of individual in particular
case.
5. Case Laws –
a. M.C. Metha V/s State of Tamilnadu; In this case, small children prepares math
box due to which their health seriously affected so one of the public spirited
citizen i.e. social workers filled a PIl under Art, 32 of Indian Constitution the
S.C. had the welfare provisions should be adopted.
b. People’s Union for democratic Rights V/s Union of India ; In this case the court
had that minimum wages should be given to labors.
c. Consumer education Research center V/s Union of India; in this case Supreme
Court gave the direction to compensate for health hazards, which care caused
for workman while working in campus.
d. M.C. Metha V/s Union of India – The court had that four closure of companies
near Kanpur had polluted the Ganga.
e. Ramesh V/s Union of India; in this case the chief judicial magistrate (CJM) was
detained and assaulted by the police the Judge filed a PIL for protecting the
dignity of judges, the court suspended the police office.
f. Conclusion- Thus form above while answer we can conclude that PIL had
created awareness amongst people.