Savingy-Volksgeist

Jurisprudence is the theory and study of law. It studies the

origin and concept of law. Law has a very complex concept.
Its understanding varies from people to people. Everyone
has a different understanding of the law. For example, a
law student and lawyer understand the law as a solution of
every dispute. An ordinary citizen understands the purpose
of the law is to punish them.

The concept and meaning of Historical School of

Jurisprudence

With the changing needs and nature of persons, the law

should be changed. The historical school follows the
concept of man-made laws. ‘Law is formulated for the
people and by the people’ means that the law should be
according to the changing needs of the people. And
everyone understand their own need better than anyone
else.
Historical school of Jurisprudence argued that the law is
the exaggerative form of social custom, economic needs,
conventions religious principles, and relations of the people
with society.
The basic source of the Historical School of Jurisprudence
is the habits and customs of people which changes
according to their needs and requirement.
Reasons for the Origin of Historical School of
Jurisprudence

• It came as a reaction to the natural school of law.

Natural school of law believes that the law is originated
from some divine power. Natural law is also called the
Eternal law. It exists since the beginning of the world. It is
closely associated with the morality and intention of God.
Indian constitution has some relevance of the natural law
in its articles.

Historical school of Jurisprudence focuses on the formation

of law by people not by some divine origin.

• It opposes the ideology of the analytical school of

jurisprudence.
Analytical school of jurisprudence is also called Austinian
School. It is established by John Austin. The subject matter
of Analytical school of Jurisprudence is positive law. It
focuses on the origin of law by the judges, state and
legislators. Historical School laid emphasis on the
formation of law by people through customs and habits,
not by the judges and superior authority.

Who was Savigny (Friedrich Carl Von Savigny)

Savigny was one of the most respected and influential

German jurists of the 19thcentury and known as the
pioneer of the Historical school of law through his concept
of Volksgeist (Spirit of people). He was born on February
21, 1779, in Frankfurt, Germany. He studied at the
Universities of Marburg and Gottingen and obtained a
deeper knowledge of Roman law during his lifetime. He
worked as a Professor at The University of Berlin in 1810.
He was also appointed as the Prussian Minister of Justice in
1848.

His major works are:

• Law of Possession (das recht des bestiges), 1803,

• The History of Roman law in the Middle ages in six
volumes, 1818-31,
• System of Modern Roman law, 1840-49,
• Contracts, 1853.4

Theory of Volksgeist (What is Volksgeist?):

Volksgeist is the concept of law propounded by Savigny.

The term Volksgeist is made by the two words Volks means
people, and geist means their common will. It means
Volksgeist means the law is a common will of the people
(spirit of the people). In a simple sense, Volksgeist is a
general and common perception of the people or the spirit
of the people.

The main idea of Savigny behind this theory was that law is
an expression of the will of the people, and it doesn't come
from deliberate legislation, and it develops as the
consciousness of the nation arises. The core of Volksgeist
was that a legal system of a nation is mainly influenced by
the historical culture and traditions of the people, and its
growth was located in their acceptance.

Jurisprudential study of the theory:

As mentioned above, Savigny believed that the evolution of
law could only be made by taking into account past
considerations, and without doing that, it creates more
confusion rather than solving it. According to Savigny, the
origin of law lies in the Volksgeist. For this, he made a
whole new school known as the Historical school of
Jurisprudence.

The theory of Volksgeist by Savigny can be explained

in the following characteristics:
• Law prevails basically in society:
According to Savigny, the law is the product of the
people's life living in a particular society and it is the
outcome of a culture of a society. It embodies the history
of a nation's culture and reflects inner convictions rooted
in society's common experience. Thus, according to
Savigny, a thorough understanding of the history of
people/society is necessary for studying the law
accurately.

• Law develops like a language:

Savigny stated that law develops like a language. He
said that law is a national character and develops like a
language in the nation, which binds people and also
grows with the development of society.. History is proof
that law is developed according to the pre-existing
manners in society and approved by the national
character, like language.

• Law is a continuous and regular process:

Law is a continuous and unbreakable process bound by
society's common culture and beliefs, not the product of
the day. It develops through the regular and continuous
process of societal Customs and usages .

• Savigny’s opinion on codification of law:

Savigny was against the codification of the law. He
thinks that the development of the law should be based
on historical knowledge and not arbitral legislation.

• The initial development of law is natural, and later

on, it is developed by jurists:
He stated that in the early stages, the law developed
naturally/spontaneously according to the internal needs
of the people. Still, after people reached a certain level
of civilisation, different kinds of national activity
developed the law accordingly.
Criticism:
• Volksgeist not always law:
Dias says that many institutions like slavery have
originated not in Volksgeist but in the convenience of a
ruling oligarchy.
• Not clear who the volk are and whose geist determines
the law: It needs to be clarified who the volk are and
whose geist determines the law, nor it is clear whether
the law may have shaped the Volksgeist rather than
vice-versa.

• Inconsistency of the theory:

Savigny, on the one hand, emphasised the national
character of law, but on the other hand, he
recommended the method of Roman Law to be adopted
for current conditions. Hence there is inconsistency in
the theory of Volksgeist.

• Volksgeist is not an exclusive source of law:

According to Savigny, Volksgeist is the only source of law
in society, but it needs to be corrected. As far as society
is developed, the law is also to be developed by
legislation. Lord Lloyd also said that Savigny underrated
the significance of legislation for modern society.

• Other law influencing factors ignored:

Savigny, in his theory, ignored other factors that helped
to originate law. He totally ignored the judge's function
to create the law. Paton states that the creative work of
the judges and jurists was treated rather too lightly by
Savigny.

• It was unfortunate that the National Socialists used the

doctrine of Volksgeist in Germany for an entirely
different purpose which led to the passing of brutal laws
against the Jews during the regime of Hitler in Germany.
Conclusion:

As per the matter mentioned above, it can be said that

Savigny, in his theory, deliberately focused on his theory of
Volksgeist upon which his research was dependent. In his
theory, he says that law is derived from the customs,
tradition, and rules of the community, and the spirit of the
people are important in the creation of the law, and the
role of the sovereign is very less. He thinks that by deep
and careful study of the customs, the true essence of the
law developed.

Although Savigny's theory was not sufficient for making

law and was criticised by many jurists, as stated above,
despite all these criticisms, Savigny became the founding
stone of the beginning of modern-day jurisprudence.
Legal rights and Duties

Introduction

The law protects the legal right of every citizen. By being a

citizen of the country, the people are given the legal right.
It is the duty of every individual to protect the rights of
each individual.

Meaning

In general word, it means that the action which is

permitted by the law is called legal right or the act which is
recognized or protected by the state is called legal right.

According to Salmond:

A legal right is an “interest which is protected and

recognized by the rule of law”.

In the case of State of Rajasthan vs Union of India, the

Supreme Court stated that “Legal rights in the strict sense
are correlatives of legal duties and legal rights are defined
as the interests which the law protects by imposing duties
on other persons”.

Essential conditions of legal right

According to Salmond, there are five essential conditions

that need to be fulfilled:

• The person of inheritance/ Subject of right:

He shall be the person who is the owner of the right. He is
the subject of the legal right. Such a person is called a
person of inheritance. Example:-Y purchase a van for Rs
20,000. Here Y is the subject of the right.

Even in the case when the property is bequest to the

unborn child, the unborn child is the owner of the property
even though he is uncertain.

• The subject of duty/ the person of incidence:

It is the duty of another person or persons to respect and
recognize the right of the person. Such a person who has a
legal duty is called a person of incidence. Example- If A has
a legal right against B, then it is the duty of B to respect
the right of A.

• Contents or Subject Matter of legal right:

The subject matter of legal right is an essential element. It
is related to do something or to refrain from doing certain
acts or forbearance.

• The object of the legal right:

The object of the legal rights is a thing or object over
which the legal right is exercised. Example- A purchases
the car for Rs 1,00,000. Here the car is the object.

• Title of the legal right:

The title is the process by which the right is vested or
conferred on the person. It is certain events by which right
is acquired from its previous owner. Example- By purchase
or gift or will etc.

Theories Related To The Legal Right

• Interest Theory
Developed by: Rudolf Von Jhering
 Rudolf Von Jhering stated that Legal right is the legally
protected interest. He gave importance to the interest of
the people rather than the will of the people. The main
objective is to protect the interests of the people and to
avoid the conflict between the individual interest.

Their interest exists in the life of the community itself.

They are not created by any statute.

the essence of legal right seems to be, not legally

guaranteed power by itself nor legally protected by itself,
but the legally guaranteed power to realise an interest. It
can be concluded that both theories are the essential
ingredients of the legal right.

• Will theory
Supported by: Kant, Hegel, Hume

According to his theory “rights is an inherent attribute of

the human will”. The purpose of the law is to permit the
expression of free will.

Classi cation of Legal Right

Right in rem and Right in Persona

The right in rem is the right available against society at

large. For Example:- a crime committed under I.P.C
because it is a crime committed against the state.

Right in Persona means right that is available against an

individual. Example breach of Contract. When there is a
breach of contract, the party who has performed the act
files the suit against the breaching party. Right in Persona
is temporary in nature, which can be converted into right in
rem. Right in rem is a permanent in nature.
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Positive Rights and Negative Rights

A positive right is a right when some action needs to be

done by the person who has the corresponding duty. The
person on whom the duty lies must perform some positive
acts.

The negative rights are the rights which omit the person
from performing certain acts. Negative rights correspond to
negative duty. The person on whom such duty is imposed
is restrained from performing certain acts.

Personal and Proprietary Rights

Personal rights are the right to respect the owner of the

right. The personal right has no economic value and this
right is related to personal status or well being. Example
the right to live with dignity, the right to freedom of speech
and expression.

The proprietary right is given in respect of the owner of the

property. These rights are rights which has some monetary
value or economic value and constitute the estate of the
person. Example-patent rights, right to land, debt etc.

Perfect and Imperfect right

Perfect rights are protected and recognized by law and the

suit can be instituted in the court against the wrongdoer
for the breach of it. Example: A has taken the loan from B.
B has the duty to pay the loan and A has the perfect right
to claim the loan amount. If B fails to pay then A has the
right to file the suit in the court.

Imperfect rights are those rights which are neither

recognized nor protected by law. Example: if the loan
becomes time-barred, then he can claim his money back
but it cannot be enforced by law.

Principal and Accessory Rights

The principal right is the most important rights. They are

the basic right that is vested on an individual.

The accessory right is the consequential or incidental right.

They are not important but they are ostensible to basic
right.

Right in Re-aliens and Right in Re-propria

Right in Re-aliena is the right available against the property

of another person. Example- The right of easement.

Right in Re-Propria is the right available in respect of one’s

own property. It results in absolute ownership.

Corporeal and Incorporeal right

Both the rights are protected by law. The corporeal right is

the rights over tangible objects or material objects.
Example: I purchase the watch. The watch has physical
existence so I have a corporeal right over it.

The incorporeal right is the right over the object which

cannot be seen or touched. Example right to reputation.

Public and Private Rights

The public right is the right that is exercised by the State.

Example- right to vote, right to use road etc. The private
right is exercised by an individual for his personal benefit.
Example:- right to sleep, right to clean water.

How Legal Right is Enforced

Ubi jus ibi remedium which means where there is a right

there is a remedy. If the person’s right is violated that can
be approached to the court. They can get relief in the form
of compensation. When the compensation does not satisfy
the claim of the plaintiff then the court may order for the
specific performance of the Contract. It is governed by the
Specific Relief Act.

Duties

When the right is given to the person then it is assumed

that certain duties are also imposed on the person. The
right has its correlative duties. There are two kinds of
duties when it is the obligation of the person to perform his
duty when he has a legal duty but in case of moral duty he
has no obligation. It is on the discretion of an individual.
The duties are classified into absolute and relative duty,
positive and negative duty and primary and secondary
duty.

Classification of Duties

Absolute Duty-Austin’s View

The duties which are always correlated with a right are

called relative duties. Austin, who supported, says that
there are four kinds of absolute duties:

• Duties not regarding persons

• Duties owed to persons indefinitely.
• Self-regarding duties.
• Duties owed to the sovereign.

Positive duty: A positive duty implies some act on the

part of the person on whom it is imposed. If a person owes
money to another, the former is under a duty to pay the
money to the latter. This is a positive duty.

Negative duty: A negative duty implies forbearance on

the part of the person on whom it is imposed. For example,
if a person owns lands, others are under a duty not to
make any interference with that person's use of the land.
This is a negative duty.

Primary and Secondary duties

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 is that
duty whose purpose is only to enforce some other duty. If
a person causes injury to another, the former is under a
duty to pay damages to the latter. This is a secondary duty.
The duty not to cause injury is the primary duty. When a
breach of this duty has been committed, the secondary
duty to pay damages arises.

Duties enriched under Indian Constitution

Article 51-A of the constitution of India guarantees

certain duties to every citizen of India. Article 51-A of the
Indian constitution states that it shall be the duty of every
citizen of India

To respect the provisions of Constitution and respect the National

Flag and National Anthem:
 • To safeguard the sovereignty and integrity of India
• To follow the noble ideals of national struggle
• To defend the country and contribute to national service when
called
• To preserve the national heritage of the country;
• To promote and maintain the harmony of brotherhood amongst
people of India.
• To protect the dignity of women
• To protect the natural habitat and including forests, lakes,
rivers, and wildlife;
• To protect public property and to avoid violence;
• To contribute to the development of the nation in all spheres.

Conclusion

We can conclude that rights and duties are co-existent. In

the words of Salmond, it can be said that no right exists
without the corresponding duty. Every duty of the person
must be the duty towards some person, in whom the right
is vested and conversely every right must be against some
persons upon whom a duty is imposed.

The law of Obligation

De nition of obligation –

• Salmond – According to Sir John Salmond” An obligation,

therefore, may be de ned as a proprietary right in personam or a duty
which corresponds to such a right.” Obligations are all in one
class of duties, namely those which are co-relatives of rights in
personam.
• Savigny – According to Savigny an obligation is the control over
another person
• Paton – According to Prof. Paton, an obligation is that part of
law which creates right in personam
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 • Anson – According to Anson, “an obligation is a control
exercisable by de nite persons over de nite persons for the purpose of
De nite acts or forbearance reducible to a money value“
Kinds of obligations –

1. Sole Obligation – Sole obligation is one in which there is one

creditor and one debtor. e.g. A promise to B to pay $100. In this
example, there is only one creditor and one debtor.
2. Solidary Obligation – In case of Solidary Obligation there are
two or more debtors owe the same thing to the same creditor.
There are three kinds of solidary obligation see kinds of
solidary obligation.
Meaning of Solidary Obligation –

In most cases, the obligation is between two people, but solidary

obligation refers to obligations that involve more than two people.
On one hand, there may be two or more parties, and on the other
hand, there may be two or more parties. When two or more people
owe their obligations to The same person, this is an example of
solidary obligation.

In this case, the person with the right can appoint any of the several
people entrusted with the duty to carry out the task. In other words,
if you have a creditor on one hand and several debtors on the other,
all of whom owe the same debt to the same creditor, the creditor
can ask any of the debtors to pay the debt.

Kinds of solidary obligations –

In English law, solitary obligations are three distinct kinds which

are- several obligation, joint obligations and joint and several
obligations.

• Several solidary obligations – Solidary obligations are several

when, Although the thing owed in the same in each case, there
are as many distinct obligations and causes of action as there
are debtors.
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 • Joint solidary obligation – Solidary obligations are joint when
though there are two or more debtors, there is only one debt or
other cause of action, as well as only one thing owed. The
creditor must sue all of them and release of one operates as a
release of others. For example when a Firm contracts a Debt all
the partners are jointly liable. In English law, the liability of
joint debtors is joint while in India it is joint and several
• Joint and several solidary obligations – Certain solidary
obligations are both joint and several. These obligations stand
Midway between the above two. In this the creditor can sue
one, some or all of them and release of one will not operate as
a release of all other feasors. for example liability of joint tort
committing the Tort jointly or two or more trustees jointly
committing the same breach of Trust or joint debtors under
Indian law.
Sources of Obligations

1. Contractual obligation (obligations ex contractu)

According to Section 2(h) of the Indian Contracts Act, Contracts are
legally binding agreements. These are the obligations that result
from a contract between two people. It establishes in personam
rights between the parties.

It establishes a right in personam between the parties, but there are

some exceptions, such as a promise of marriage that falls under the
law of status. In a contract, one party agrees to do or refrain from
doing something in exchange for the other’s promise. As a result,
we can assume that they have obligations to ful ll rights and duties
on both sides of the contract. In a contract, both the promisor and
the promise perform their duties and have rights against each other,
resulting in mutuality of obligations.

• Delictual obligation (Obligationes ex delicto)

These are the obligations that arise as a result of torts.
As Salmond says “A Tort may be de ned as a civil wrong for which the
remedy is a damages action and which is not solely a breach of contract,
breach of trust, or other merely equitable obligations,”
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Delictual obligations are those in which a sum of money is due as
compensation for a wrongdoing.

• Damages in torts are unliquidated (i.e., the amount of

compensation is not predetermined), whereas
• Damages in contracts are inherently liquidated.
Tortious liability arises from the breach of a duty owed to another
person. “Tortious liability arises from the breach of a duty primarily xed
by law; this duty is towards persons generally, and its breach is repressible
by an action for unliquidated damages,” according to Dr. Win eld.

It means that delictual obligations are the duty to make monetary

restoration for the wrong, i.e. the defendant’s tort. Individuals are
allowed to comply with such a duty established by law, and if they
do not comply with their duty and cause harm to others, the person
against whom tort is committed has the right to claim unliquidated
damages from the one who did not comply with such duty.

• Quasi-contract obligation (Obligationes quasi-ex-contractu)

These are the obligations created by quasi-contracts.

“Quasi” = Latin word = means “as if” or “in a similar way.”

A quasi-contract is one in which the parties do not intend to enter

into a real contract. It is similar to a contract, in which the law
requires a person to perform an obligation on the basis of equity.
The principle of equity states that “a person shall not be allowed to
enrich himself unjustly at the expense of another.” Quasi-contract is
based on this principle. To put it another way, no one should receive
or accept any bene t unfairly. If that’s the case, he owes it to the
rightful owner. Quasi-contractual obligations are such obligations.

For example, “X” accidentally leaves his bag at Y’s house. “Y” is
obligated to return it to “X” under the terms of a quasi-contract.

Under Chapter V of the Indian Contract Act, 1872, quasi-

contractual obligations are very precisely de ned with examples. A
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 parent’s responsibility to their child is a well-de ned example of
quasi-contracts. Another example is a relationship built on trust.

• Innominate obligation
“Innominate obligation is a type of residuary obligation” according
to Salmond,

Innominate obligations are not purely Non-contractual, delictual,

and quasi-contractual obligations . This means they haven’t been
given a name or a label.

For example. With regard to the bene ciary, the trustee has a
duciary obligation. Infringement of a trustee’s obligation on a
bene ciary’s property is directly responsible to the trustee.

Elements of Obligation

• The ACTIVE SUBJECT is the person who has the authority to

demand that the obligation be performed or paid. He is also
known as the creditor or the obligee.
• The PASSIVE SUBJECT is the person who is obligated to
perform or pay something. He is the one who can be held
responsible for the debt. He’s also known as the obligor or
debtor.
• The contract’s object is the PRE-STATION. It is the behaviour
that the debtor or obligor is expected to follow. It could be a
legal obligation to give, do, or not do something.
• The legal or juridical tie is also known as the VINCULUM
JURIS. it’s the legal relationship that exists between the debtor
and the creditor (or obligor and obligee).
Example: Under a contract of sale, D agreed to deliver a book to C
for Rs 1000.

• C is the active subject

• D is the passive subject
• The delivery of the book is the prestation
• The contract of sale is the juridical tie that binds X and Y.
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PROPERTY,OWNERSHIP,POSSESION

The word property is used very commonly. If one looks around

everything is Property. Every object, whether tangible or intangible
having some value to human beings, may be termed as Property.
The essential characteristic of Property is the value attached to it.

Property consists of land, shares, buildings and debts due to

another person. However, the term in the legal sense is the right to
enjoy and to dispose of certain things in an absolute manner as one
thinks it t.

The word property is derived from the Latin word proprietary and
the French equivalent properties, which means a thing owned

Interpretation of the word Property by the Apex Court of India

The honourable Supreme Court of India in the case of R.C. Cooper

vs. Union of India AIR 1970 SC 564, interpreted the concept of
Property in the legal regime. The court, in this case, observed that
the term property includes both corporeal things such as land,
furniture and incorporeal things such as copyrights and patents. The
recent trend of the Apex court, however, has changed. Court has
started viewing Property in the light of Article 21 of the Indian
constitution as liberties exist even reference to the Property owned
and possessed.

KINDS OF PROPERTY

Generally properties can be divided into two- corporeal property

and incorporeal property.

Corporeal property

It is also called tangible property as they can be seen, touched and

felt. They are material objects over which rights can be exercised.
Land, vehicles, buildings, ornaments etc. are all corporeal
properties.
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 Corporeal properties are further divided into two-

• Movable properties
• Immovable properties
The difference lies in their ability of physical mobility.

Movable properties are generally de ned to be tangible properties

of all kinds except that is attached to earth or permanently fastened
to anything that is attached to earth and things attached to earth
can be regarded as moveable once they are severed from earth[8]. In
simple terms, anything that is transportable from one place to
another is a moveable property.

Immoveable properties, as the name suggests, are things that are

permanently xed to the surface of earth. Sec 3(25) of the General
Clause Act of 1897, states that immovable property includes land,
bene ts arising from land, and items permanently fastened to
anything related to the soil[9].

Incorporeal Property

Incorporeal property is any other proprietary right in rem in

abstract form of property. It is also called intangible property. Patent
rights, right of way etc. are examples of incorporeal property. The
need to recognise incorporeal property has increased in the modern
times. The scope of the term property has widened and it has come
to include virtual property as well. Further divided

• Rights in re propria
• Rights in re aliena
Rights in re propria are right of ownership is exercised over a non
material object. It includes products of human intellect, skills and
labour that is not tangible. Therefore one can have absolute legal
right over a property that is incorporeal and does not have physical
presence. The most important of these intellectual properties are-
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 1. Patents– it is a legal right granted to an inventor and his
licensees to exclude others from making, using, or selling an
invention for a limited period of time.
2. Literary,artistic dramatic or musical copyright
3. Trademark- signs of business
4. Trade secret in business. Eg-kfc has secret recipe, their trade
secret or coco cola
5. Industrial design- of a product in market
6. Commercial goodwill, trademark and trade names
Rights in re aliena, also called encumbrances, includes incorporeal
rights over corporeal things. They are rights in rem over properties
of another person. They restrict the legal owner of the property
from exercising certain rights over the property and grants certain
rights in favour of another party who is not legally related to the
property. These encumbrances can be in the following ways-

1. Lease- it is an encumbrance in which the owner of the

property transfers the right of possession and use of his
property to another person for a de nite period in return of
payment of some kind. The title of the property remains with
the transferor (called lessor).
2. Servitude– it is a form of encumbrance which consists of a
right to limited use of land without taking the possession of it,
which makes it different from lease. Examples of servitudes
are- right of a way across the land of somebody, the right of
light and air etc.
3. Security– It refers to holding or retaining of the property of a
debtor by his creditor for the purpose of securing the recovery
of debt. Securities can be in the following forms- mortgage,
lien and pledge.
4. Trust- An encumbrance in which ownership of a property is
granted to a person on behalf of someone else, such that the
former can deal with it in a limited manner only for the bene t
of the bene ciary. The persons in whose favour the trusts are
advanced are infants, lunatics, unborn persons etc.
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 Public Property and Private Property
With reference to the concept of ownership, Property may be
classi ed into public and private property.

The two kinds are discussed below:

• Public Property is owned by the public as such in some
governmental capacity. In other words, it is owned by the
government and used for the bene cial use of the public in
general. A park or a government hospital is a public property.

• Private Property is that Property which is owned by a particular

individual or some other private person. A residential house of
a citizen may be his private property.

THEORIES OF PROPERTY

Natural Law Theory– According to this theory, one who possesses a

property is naturally regarded as the owner of the property.
Possession is given priority here.All things existed without an
owner at rst and whoever occupied them later became its owner.

Metaphysical Theory– Kant and Hegel were exponents of this

theory. This theory suggests that there is a physical connection
between owner and object. Kant says that a thing rightfully belongs
to someone when the use of it without his/her consent can cause
damage or loss to the said person. As per Hegel, property is an
object on which a person has the right to direct his will.

Labour Theory– This is also called positive theory, according to

which a property is the product of the skills and labour of an
individual and therefore belongs to him only. This theory is
impractical in the modern world as people today acquire property
through contracts, will etc.

Historical Theory– This theory traces the slow and steady growth
of private property ownership. At rst things were owned
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collectively by a group. However later when families partitioned or
split, division of property began and individual ownership came
up.

MODES OF ACQUISITION OF PROPERTY

There are four modes in which properties can be acquired –

Prescription, Agreement Inheritance and Possession

1.Prescription– According to Salmond acquisition of property can

be done by way of prescription which may be de ned as effect of
lapse of time in creating and destroying rights .

When by prescription a right is created, it is called positive or

acquisitive prescription. For example- right of way by de facto use
of it for 20 years.

When a right becomes extinct or destroyed by lapse of time, it is

called negative or extinctive prescription. For example, the
destruction of the right to sue for a debt after three years from the
time at which it rst becomes payable.

2. Agreement – Legally enforceable agreements are one of the modes

of acquiring property. When a property is transferred from one
person to another through lawful means in exchange of a
consideration, it is called Sale. On the other hand, when such
transfer takes place with no consideration it is regarded as gift. An
agreement has four essential elements which are as follows –

1) There should be two or more parties to an agreement

2) Mutual consent of the parties .

3) It should be communicated .

4) There should be common intention to affect the legal relationship

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3.Inheritance– the rights which a deceased person leaves behind
him vest in the representative who has been appointed to represent
him either by himself or by the law on his behalf . The
representative of a deceased holds the property on behalf of
creditors and bene ciaries of the estate.

Succession of the property of a deceased may be testate (by means

of will written by the deceased prior to his death) or intestate
(without a will). When there is will, the property diversion will be
done accordingly. When there is no will, the succession would take
place according to the operation of law. In the absence of heirs of
the deceased, the property shall go to the state.

4.Possession – Possession is prima facie evidence of ownership. It is

the ability to exercise physical control over an object. Possession is
said to be nine out of ten parts of ownership.

In case of a property not owned by anyone, the rst possessor of it

can claim a valid title over it. This is called possession by
occupation.

MODES IN WHICH PROPERTY MAY BE DIVESTED

A person may divest his property in the following ways-

1. By contract- by sale, assignment to someone, by loss of equity

of redemption of a mortgage, by exercise of right of lien.
2. By giving in trust
3. By operation of law- by death or insolvency, or by adverse
possession after prescribed time period, or by limitation etc.
4. By forfeiture or attachment or acquisition under law.
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Ownership
According to Austin ownership means a right, which avails against
everyone who is subject to the law conferring the right to put thing
to user of inde nite nature. It is right in rem which is available to the
owner against the world at large. It includes ownership over both
corporeal and incorporeal things. The former refers to physical
objects and the latter refers to all claims. According to Hebert
ownership is a comprehensive right in rem. It is a bundle of four
rights.
1. Right to use a thing.
2. Right to exclude others from using the thing.
3. Right to dispose of the thing.
4. Right to destroy the thing.
Holland ownership is a plenary control over a object. Salmond
the relation between a person and any right that is vested and an
object forming the subject matter of his ownership. Ownership
denotes the relation between a person and right that is vested in
him. Nothing can be owned except the right over a thing. In other
words a thing cannot be owned but a right over such thing can be
owned.

Therefore owning a right is called ownership:

1. Owner can use in many ways or inde nite in point of user.
2. Owner has right of transfer or unrestricted in point of
disposition.
3. Ownership is permanent or unlimited in point of duration.

Modes of acquisition of ownership: The ownership is acquired

in two ways:
1. Original mode: In this mode the owner acquires the
ownership over the owner less objects. They are called res
nullis. Such object belonged to no one. It may be acquired by
means of accession, occupation and speci cation.

2. Derivative mode: In this mode the owner acquires the

ownership by purchasing from the original or previous owner.
The purchaser becomes the owner. It is merely a transfer of
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 existing ownership but not a relation of the ownership ex buyer
derives ownership from seller.

Kinds of ownership:
1. Corporeal and incorporeal ownership: The ownership over a
tangible or material object is called corporeal ownership
2. Trust and Bene cial ownership: The ownership of a trustee is
called trust ownership
3. Legal and Equitable ownership: The ownership which
originated from the rules of common law is called legal
ownership. A assigned a debt to B. A is the legal owner and B
becomes an equitable owner.
4. Vested and Contingent ownership: The ownership which
comes into existence immediately is called vested ownership.
A transfer his property to B an unmarried daughter for life and
to C, an unborn make child. C's ownership is contingent
because C's birth is uncertain.
5. Sole and Co-ownership: An exclusive ownership of an
individual as against the whole world is called sole ownership
single owner. The ownership of two or more persons having
interest in the same property or thing is called co ownership.
6. Absolute and limited ownership: The ownership which vests all
the rights over a thing to the exclusion of all is called absolute
ownership. Ownership which imposes limitations on user
duration or disposal of rights of ownership is called limited
ownership.
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Possession
Possession means custody or control. The idea of ownership
developed slowly with the growth of civilization. According to
Salmomd possession establishes the relationship between men and
the material things. It is a mere fact. According to Pollock
possession is a physical control over a thing. According to Savigny
possession is the physical power of exclusion. Protection of
possession is a branch of protection to the person. Freedom of will
is the ground for the protection of possession.

According to Ihering possession is de facto exercise of a claim over

a thing. According to Roman law possession is a prima facie
evidence of ownership. It supports the title of ownership. The
possessor of a thing is presumed to be the owner. Long enjoyment
of a property creates ownership. This is known as prescription
hence possession in nine points in law.

Kinds of Possession
1. Possession in fact: The actual or physical possession of a
thing is called Possession in fact. Also known as de facto
possession. It indicates physical control of a person over a
thing. There may be a physical relation with the object and the
person. That physical relation or control need not be
continuous.

2. Possession in law: Possession which is recognized and

protected by law is called Possession in law. It is also known
as de jure possession it is a possession in the eye of law.

Elements of possession

1. Animus possidendi: Means intention to possess a thing. It

deals with subjective and mental intention to possess a thing.
It deals with subjective and mental element. It denotes a
strong desire to possess a thing. Here the possessor must
have strong intention to possess a thing he must have an
exclusive claim, Animus Possidendi need not be a claim or
 right and need not be a own claim and it need not be speci ed.

2. Corpus possessionis: Corpus Possession is means physical

possession of a thing it deals with objective element.
According to Savigny the actual physical control over a thing is
called corpus possessionis. The physical control gives to an
assumption that others will not interfere with it. Possessor
must present personally and physically possess. The
possession of a thing extends to accessories too. Possession
includes protection and secrecy of thing.

Acquisition of possession
1. By taking.
2. By delivery.
3. By operation of law.

Types of Possession
1. Corporal and incorporeal possession: The possession of a
material object is called corporeal possession. Actual use or
control over such material object is not necessary e.g.
possession of car. The Possession of other than a material
object is called incorporeal possession. Actual use and
enjoyment of right is necessary.

2. Immediate and Mediate Possession: The direct or primary

possession of a material object is called immediate
possession. The possessor holds thing personally without any
intermediary e.g. possession of a car owner.

Indirect or secondary possession of a material object is called

mediate possession the possessor of a material object is
called mediate possession. The possessor holds the thing on
behalf of another. E.g. possession of a car driver.

3. Representative Possession: The Possession of a thing through

an agent or a servant is called Representative Possession.
The representative is not the real possessor e.g. master's
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 money in the servant pocket.

4. Concurrent Possession: Two or more persons may jointly

possess a thing at the same time. This is known as Concurrent
possession e.g. B may have right of way on the A land.

5. Derivative Possession: The possession of the holder of a thing

is called Derivative possession. He derives title from the
person who entrusts the thing. e.g. a watch repairer. He need
not return the watch until the repair charges are paid.

6. Constructive possession: The possession in law is called

constructive possession. It is not an actual possession. It is a
possession in law and not a possession in fact. Possession of
keys of a car implies the possession of car.

7. Adverse possession: The possession against every other

person having or claiming to have a right to the possession of
that property is called adverse possession. It is a possession
of a thing without the permission of its real owner. Lessee
possession after expiry of lease period.

8. Duplicate possession: The possession of a thing by two

persons is called Duplicate possession. The possession of one
person is compatible with the possession of another person. It
is possible only when two claims are not mutually adverse.

Distinction between Ownership and Possession

1. It is an absolute right. 1. It is an evidence of ownership.
2. It is de facto exercise of fact. 2. It is de jure recognition of claim
3. It is the guarantee of the law. 3. It is the guarantee of the fact.
4. It is related to a right. 4. It is related to a fact.
5. It includes possession. 5. It does not include ownership.
6. It excludes interference. 6. It excludes other except owner.
7. It developed on possession. 7. It is developed with civilization.
8. It provides proprietary remedies. 8. It provides possessory
remedies.
9. Its transfer is too technical 9. Its transfer is less technical.
 Conclusion:
The concept of Property has been in existence since the existence
of human civilization. Over the years, the concept of Property has
witnessed a vast transition. The reason behind this transition may
be the jurisprudential aspect of the concept. Thus, from a piece of
brick to an idea behind a product, Property as a concept has
developed in an unanticipated manner. The research being done in
the eld of property law makes it a dynamic concept which will
continue to evolve in the years to come in the near future.
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Introduction:

The term ‘law’ denotes different kinds of rules and principles. Law
is an instrument which regulates human conduct or behaviour.

Therefore, Law is a broader term which includes Acts, Statutes,

Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason,
Righteous, Rules of court, Decrees, Judgment, Orders of courts,
Injunctions, Tort, Jurisprudence, Legal theory, etc.

Meaning of Law:

LAW= DERIVED FROM LATIN WORD = LEGAM = BODY OF

RULES

• Law in Hindu religion or jurisprudence = ‘Dharma’,

• Law in Islamic religion = ‘Hukum’,
• Law in Romans = ‘Jus’
• Law in France = ‘Droit’, and
• Law in Germany = ‘Richt’.

All these words convey different meaning. Thus, the term law has
different meanings in different places/societies at different times as
it is not static and it continues to grow.

For example:- Law varies from place to place in the sense that while
adultery is an offence in India under Section 497 of IPC, it is not an
offence in America.
 Further, law differs from religion to religion in the sense of personal
laws, e. a Muslim man can have four wives at a time, but a Hindu
can have only one wife living at a time. If a Hindu marries during
the lifetime of rst wife he is declared guilty of the offence of
bigamy under section 494 of IPC.

• Generally, the term law is used to mean three things:

◦ Legal Order: Firstly, it is used to mean ‘legal order’. It
represents the regime of adjusting relations, and ordering
conduct by the systematic application of the force of
organized political society.
◦ Legal Precepts: Secondly, law means the whole body of
legal precepts which exists in an organised political
society.
◦ Of cial Control: Thirdly, law is used to mean all of cial
control in an organised political society.

De nitions of Law:

It is very dif cult to de ne the term law. Various jurists have

attempted to de ne this term. Some of the de nitions given by
jurists in different periods are categorized as follows:

(i) Idealistic De nitions: Romans and other ancient jurists de ned

law in its idealistic nature.

According to Salmond, “the law may be de ned as body of principles,

recognised and applied by the State in the administration of justice”.

According to Gray-, “the law of the state or of any organised body of

men is composed of the rules which the courts, that is the judicial organ of
the body lays down for the determination of legal rights and duties.”

(ii) De nitions of Positivists:

Austin: Austin de ned law as a command of sovereign backed by

sanction. According to him there are three elements of law, i.e
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 • command,
• duty
• sanction.

Thus, every law have a command and due to this command we

have a duty to obey this command and if don’t obey this command,
then there is a sanction.

• H.L.A. Hart: He de ned law as a system of rules- the primary and

secondary rules.

(iii) De nition of Historical School of Law:

The chief exponent of the Historical school is Van Savigny.
Historical jurisprudence examines the manner or growth of a
legal system. He says that the law is not the product of direct
legislation but is due to the silent growth of custom. He says that
law is found in the society, it is found in the custom.
(iv) De nition of Sociological School of Law:
This school de nes the law on the basis of its effect on law and
society and vice versa.
· Ihering de nition of law: He says that law is a means to an end
and the end of law is to serve its purpose which is social and not
individual.
· Roscoe Pound’s de nition of law: He de nes law as a social
institution to satisfy social wants. He says that law is a social
engineering, which means that law is an instrument to balance
between the competing or con icting interests.
(v) Realistic de nition of Law:
It studies law as it is in its actual working and effects.
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 · Holmes J. considered the law to be part of judicial process. He
says, “the prophesies of what the courts will do, in fact and nothing more
pretentions, are what I mean by law”.
It would thus be seen that no single de nition of law
can be treated as satisfactory because law is ever changing in the
dynamic ber of its inherent element.

· According to Roscoe Pound, “The expression ‘the law’ or law

means the legal system operating in a country. On the other hand,
the term ‘a law’ is termed as lex loci in Latin which means a
particular statute in its isolated form.”
According to Jeremy Bentham, the term ‘the law’ means – “neither
more or less than the total of a number of individual laws taken together.”
Thus every Act or Statute of Parliament is called “a law” whereas
the aggregate of Acts comprising legal systems are known as ‘the
law’ or ‘law’ of the country.

Nature or Basic Features of Law:

Law may be described as a normative science, that is, a science

which lays down norms and standards for human behaviour in a
speci ed situation or situation enforceable through the sanction of
the state.

The concept of law may be understood by analysing the features

common to all laws. Among these features, the ones considered as
essential or basic include:-

(i) Generality:- Law is a general rule of conduct. It does not speci c

the names of speci c persons or behaviours. Its generality is both in
terms of individuals governed and in terms of the social behaviour
controlled. The extent of the generality depends upon on whom the
law is made to be applicable.

For example:–
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 • Everyone has the right to life, liberty and security of a person
under Article 3 of the Universal Declaration of Human Right
(UNDHR). This law is made applicable to everyone on this
world, therefore, it is universal.
• The State shall not deny to any person equality before law or
the equal protection of laws within the territory of India
(Article 14 of the Constitution). This law is applicable to every
person residing in India, therefore, it is national in character.
(ii) Normativity:- Law does not simply describe or express the
human conduct it is made to control, but it is created with the
intention to create some norms in the society. Law creates norms by
allowing, ordering or prohibiting the social behaviour. Under this
heading, law can be classi ed as follows:-

• Permissive Law:- It allows or permits subjects to do the act

they provide. E., every person who is arrested has a right to be
produced before the nearest Magistrate within a period of
24hr. of his arrest. The term “has the right” used in this
provision shows that subject is given the right. So it is
permissive law.
• Directive Law:- It orders, directs, or commands the subjects to
do the act provided in the law. It is not optional. E., if there is a
contract between the parties that any particular act must be
performed by the parties themselves, then they must perform
it personally. This is a directive law.
• Prohibitive Law:- It discourages the subject from doing the act
required not to be done. All criminal laws are usually
prohibitive laws. E., no one should enter the property of
another person against the will of that person.

(iii) Sanction:- Each and every member of society is required to

follow the laws. Where there is a violation of law, sanction should
follow.

The term sanction is derived from the Roman word

“Sanctio” which means that part of the statute which imposes a
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penalty or has made some other provision for its enforcement. In
general sanction means ‘penalty’.

Kinds of Legal Sanction:-

Functions/Purposes of Law
The law serves many purposes and function in society. Many jurists
have expressed different views about the purpose and function of
law.
· For example:
According to Holland: “the function of law is to ensure well being of the
society.” Thus it is something more than an institution for the
protection of individual’s rights.
According to Roscoe Pound: there are mainly four functions to law,
i.e.
(a) maintenance of law and order in the society;
(b) to maintain status quo in society;
(c) to ensure maximum freedom of individuals; and
(d) to satisfy the basic needs of the people.
According to Salmond, “the object of law is to ensure justice. This
justice may be distributive or corrective. Distributive justice seeks to
ensure fair distribution of social bene ts among the members of the
community and corrective justice seeks to remedy the wrong”.

The following are the major functions or purposes of law:

• Establishing Standards: The law is a guidepost for minimally

acceptable behaviour in society. Some acts, e., are crimes
because society (through legislative body) has determined that
it will not tolerate certain behaviours that injure or damage
persons or their property. (for example, it is a crime to cause
physical injury to another person without justi cation, as it is
generally constitutes the crime of assault).
• Maintaining Order: Some semblance of order is necessary in a
civil society and is therefore re ected in law.
• Resolving Disputes: Disputes are unavoidable in a society
made of persons with different needs, wants, values and
views. The law provides a formal means for resolving disputes
– the court system.
• Protecting Freedoms and Rights: Every person has some
fundamental freedoms and rights and it is the function of law
to protect these freedoms and rights from violations by
persons, organisations or government. (For example, subject to
certain exception, there is a fundamental right of equality
before law, i. every person is equal in the eyes of law and if
any person feels that his fundamental right is violated may
approach the court for remedy.)

Advantages and Disadvantages of Law:

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 As law is a dynamic concept and is instrument of bringing about
desired social change in the society. Its advantages are many but
there are certain disadvantages as well.

Kinds/Classi cation of Law

As stated earlier, the term ‘law’ is used in different senses. It
denotes different kinds of rules and principles. The jurists have
classi ed law according to their own legal perception.
· Salmond’s Classi cation of Law:
Salmond has referred to eight kinds of laws. These are:-
(1) Imperative Law: It means ‘a rule which prescribes a general
course of action imposed by some authority which enforces it by
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superior power either by physical force or any other form of
compulsion.
He further divided imperative law into two types:
(i) Divine law: It consists of the commands imposed by God
upon men either by threats of punishment or by hope of his
blessings.
(ii) Human law: Human laws are the laws by analogy.
It is further divided into four different kinds:-
· Civil law: imperative law imposed and enforced by State is
called civil law.
· Moral Law: imperative law imposed and enforced by members
of society is moral law.
· Autonomic law: those enforced and enforced by different
institutions or autonomous bodies, like universities, airline
companies etc.
· International law: those imposed upon State by the society of
States and enforced partly by international option and partly by the
threat of war.
(2) Physical or Scienti c Law: Physical laws are laws of science
which are expression of the uniformities of nature. They are not
created by human and can’t be changed by human. They are
invariable forever. The examples of physical law are the law of
gravity, law of air pressure etc.
Natural or Moral Law: Natural law is based on the principles of
right and wrong. It also called universal or eternal law, rational law.
It embodies the (1) principles of morality and is devoid of any
physical compulsion. Many laws of the modern time are founded
on the basis of natural law. E. law of quasi contract, the con ict of
law, law of trust etc. are founded on natural justice.
(2) Conventional law: It is the body of rules or system of rules
agreed upon by persons for their conduct towards each other. E.,
international law and rules of club or cooperative societies, rules of
game or sport are best examples of conventional law.
(3) Customary law: There are many customs which have been
prevalent in the community from time immemorial even before the
States came into existence. They have assumed the force of law in
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 course of time. (e. under hindu personal law, a man can’t marry his
brother’s widow, however, if there is any custom which allows the
same then the marriage will be valid). According to Salmond, “any
rule of action which is actually observed by men when a custom is
rmly established, it is enforced by State as law because of its
general approval by the people.
(4) Practical or Technical Law: Practical laws are the rules meant
for a particular sphere by human activity, e. laws of health, laws of
architecture.
(5) International law: It also knows as law of nations as it applies
to States rather than individuals. It consists of rules which regulate
relations between the States inter-se.
(6) Civil Law: The law enforced by the State is called civil law and
it contains sanction behind it. Civil law is territorial in nature as it
applies within the territory of the State concerned. Civil law differs
from special as the latter applies only in special circumstances.
Austin’s Classi cation of Law

John Austin has classi ed law into following categories

• Divine Law
• Human Law
• Positive Morality
He treats only divine law and human law as law in real sense of the
term and does not consider positive morality as law since it lacks
sanction or binding force.

Holland’s Classi cation of Law:

He classi ed law according to their functions. He classi ed law into

following ve categories.

1. Private and Public law: Private law determines relationship

between person and person where as public law deals with
relationship between person and the State. In private law, State
is only the enforcing authority while in public law, State is an
interested and enforcing party. Examples of private law: laws
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 of property, contracts, torts, trusts etc .are instances of private
law. Example of public law: law of crimes,
Public law is further divided into two parts:

(a) Constitutional law: constitutional law includes all rules

which directly or indirectly affect the distribution or
exercise of the sovereign power of the State. It is the body of those
legal principles which determines the Constitution of State.

(b) Administrative law: it describes in detail the manner in which

the government shall exercise those powers that were outlined in
the constitutional law.

2 .General and Special Law: The territorial law of a country is

called General Law. For example, Indian Penal Code, Indian
Contract Act are the general laws of the country because they have
general application throughout the territory of India. Besides the
general law, there are certain kinds of special laws. E. laws
applicable to particular locality (the Punjab Police Act etc.).

3.Substantive and procedural law: Substantive law is that law

which de nes a right while procedural law determines the
remedies. Substantive law is concerned with ends which
administration of justice seeks to achieve while procedural law
deals with the means by which those ends can be achieved. (E. law
of contract, transfer of property, law of crimes etc. are substantive
law whereas the Civil Procedure Code or Criminal Procedure Code
are procedural laws.

4.Antecedent and Remedial Law: Antecedent law relates to

independent speci c enforcement without any resort to any
remedial law. (e., law relating to speci c performance of a contract
is the best example of antecedent law). The remedial law provides
for the remedy. (e. Law of torts, writs etc. come within the category
of this law)
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 5.Law in Rem and Law in Personam: Law in rem relates to
enforcement of rights which a person has against the whole world
or against the people in general where as law in personam deals
with enforcement of rights available against a de nite person or
persons. (E. law of inheritance, succession, ownership etc. are
subject matter of law in rem, while the law of contract, trust etc. are
examples of law in personam).

Sources of law in jurisprudence

• Types of sources of law

John Salmond, a legal scholar renowned for his ideologies on law in
the eld of jurisprudence, classi ed the sources of law into mainly
two categories ,i.e., material sources and formal sources.

1. Material sources
Material sources of law are those sources from which the law gets
its content or matter, but not its validity. There are two types of
material sources which are legal sources and historical sources.

A. Legal sources

Legal sources are the instruments used by the state which create
legal rules. They are authoritative in nature and followed by courts
of law. These are the sources or instruments that permit newer legal
principles to be created. According to Salmond, legal sources of
English law can be further classi ed into four categories-

• Legislation,
• Precedent,
• Customary law, and
• Conventional law.

B. Historical sources
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 Historical sources are sources that in uence the development of law
without giving effect to its validity or authority. These sources
in uence legal rules indirectly. The difference between legal and
historical sources is that all laws have a historical source but they
may or may not have a legal source. Decisions given by foreign
courts serve as an example for this kind of source.

2. Formal sources

Formal sources of law are the instruments through which the state
manifests its will. In general, statutes and judicial precedents are the
modern formal sources of law. Law derives its force, authority, and
validity from its formal sources.

According to Keeton, the classi cation given by Salmond

was awed. Keeton classi ed sources of law into the following:

• Binding sources
Judges are bound to apply such sources of law in cases. Examples of
such sources are statutes or legislation, judicial precedents, and
customs.

2. Persuasive sources

Persuasive sources are not binding but are taken into consideration
when binding sources are not available for deciding on a particular
subject. Examples of such sources are foreign judgements,
principles of morality, equity, justice, professional opinions, etc.

Precedent as a source of law

Judicial precedents refer to the decisions given by courts in different

cases. A judicial decision has a legal principle that is binding on the
subordinate courts. Once a court has delivered a judgement on a
particular case, the courts subordinate to it must abide by the
precedent while deciding on similar cases with similar facts. Some
of the most in uential judicial precedents in India are the following:
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 • Kesavananda Bharati v. the State of Kerala (1973): This case is
what introduced the concept of the basic structure doctrine in
India, protecting the fundamental features of the Indian
Constitution from being removed.
• Gian Kaur v. the State of Punjab (1996): This judgement
af rmed that the right to die does not come within the scope of
Article 21 of the Indian Constitution. The court af rmed that
every person has the right to die with dignity. The court also
stated that the right to die in a digni ed manner is not the
same as the right to die in an unnatural way.
• Maneka Gandhi v. the Union of India (1978): The court held
Section 10(3)© of the Passports Act, 1967 as void since it
violated Article 14 and 21 of the Indian Constitution.
• Indra Sawhney v. the Union of India (1992): This judgement
set a ceiling of 50% for reservation of backward classes. It also
held that the criteria of classifying groups as backward classes
cannot be limited to economic backwardness.
The doctrine of Stare Decisis

The authority of judicial precedents is based on the doctrine of stare

decisis. The term stare decisis means to not disturb the undisturbed.
In other words, precedents that have been valid for a long time
must not be disturbed.

In India, subordinate courts are bound by the precedents of higher

courts, and higher courts are bound by their own precedents. But
when it comes to High Courts, the decision of one High Court is not
binding on the other High Courts. Their decisions are binding on
the subordinate courts. In cases where there are con icts between
decisions of court with the same authority, the latest decision is to
be followed.

As per Article 141 of the Constitution of India, the Supreme Court’s

decisions are binding on all the courts across the country. However,
the Supreme Court’s decisions are not binding on itself. In
subsequent cases where there are suf cient reasons to deviate from
the earlier decision, the Supreme Court can do so.
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Doctrine of Res Judicata

The term res judicata means subject matter adjudged. As per this
doctrine, once a lawsuit has been decided upon, the parties are
barred from raising the same issue in courts again, unless new
material facts have been discovered. They can’t raise another issue
arising from the same claim either since they could have raised the
same in the previous suit.

Ratio Decidendi

As per Salmond, a precedent is a judicial decision that contains a

legal principle with an authoritative element called ratio decidendi.
Ratio decidendi means reason for the decision. Whenever a judge
gets a case to decide on, he has to adjudicate it even when there is
no statute or precedent concerning it. The principle that governs
such a decision is the reason for the decision which is also called
ratio decidendi.

Obiter Dicta

The term obiter dictum means mere say by the way. This term is
used to refer to statements of law that are not required for the case
at hand. A judge may in the judgement of a case declare some legal
principles to be applied in a hypothetical situation. It does not have
much impact or authority. However, the subordinate courts are
bound to apply the principles.

Types of precedents

1. Authoritative and Persuasive

Authoritative precedents are those precedents that must be
followed by subordinate courts whether they approve of it or not.
They create direct and de nite rules of law. They fall into the
category of legal sources of law. Persuasive precedents on the other
hand do not create a binding obligation on the judges. Persuasive
precedents can be applied as per the discretion of the judge.
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 Authoritative precedents can be classi ed into the following two
types:

A. Absolute authoritative

An absolutely authoritative precedent is binding on subordinate

courts in an absolute manner and it cannot be disobeyed even if it Is
wrong.

B. Conditional authoritative

A conditionally authoritative precedent is binding on other judges

but it can be disregarded in certain special circumstances as long as
the judge shows the reason for doing so.

2. Original and Declaratory

According to Salmond, a declaratory precedent is a precedent that

simply declares an already existing law in a judgement. It is a mere
application of law. An original precedent creates and applies a new
law.

Factors increasing the authority of a precedent

• The number of judges constituting the bench that makes the

decision.
• A unanimous decision has more weight.
• Approval by other courts, especially the higher courts.
• The enactment of a statute that carries the same law
subsequently.
Factors decreasing the authority of a precedent

• Abrogation of judgement by reversal or overrule of a higher

court.
• Abrogation of judgement by a statutory rule enacted
subsequently.
• Af rmation or reversal of decision on a different ground.
• Inconsistency with the previous decision of a higher court.
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 • Inconsistency with previous decisions of the court of the same
rank.
• Inconsistency with already existing statutory rules.
• Erroneous decision.
Legislation as a source of law

Legislation refers to the rules or laws enacted by the legislative

organ of the government. It is one of the most important sources of
law in jurisprudence. The word legislation is derived from the
words legis and latum, where legis means law and latum means
making.

Types of legislation

According to Salmond, legislation can be classi ed into two types-

1. Supreme legislation
Legislation is said to be supreme when it is enacted by a supreme or
sovereign law-making body. The body must be powerful to the
extent that the rules or laws enacted by it cannot be annulled or
modi ed by another body. Indian Parliament cannot be said to be a
sovereign law-making body as the laws passed by the parliament
can be challenged in the courts. The British Parliament, on the other
hand, can be said to be a sovereign law-making body since the
validity of laws passed by it cannot be challenged in any court.

2. Subordinate legislation

Legislation enacted by a subordinate law-making body is said to be

subordinate legislation. The subordinate body must have derived
its law-making authority from a sovereign law-making body. It is
subject to the control of the supreme legislative body.

The following are the different kinds of subordinate legislation:

• Executive legislation: This is a form of subordinate legislation

where the executive is granted or conferred certain rule-
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 making powers in order to carry out the intentions of the
legislature.
• Colonial legislation: Many territories across the globe were
colonised by Britain and such territories were called colonies.
The legislation passed by the legislature of such colonies was
subject to the control of the British Parliament.
• Judicial legislation: Courts also have a role in enacting laws
that aid in regulating the internal affairs and functioning of
courts.
• Municipal legislation: Municipal authorities also possess the
law-making power as they enact bye-laws.
• Autonomous legislation: Another kind of legislation is
autonomous legislation, which is concerned with bodies like
universities, corporations, clubs, etc.
• Delegated legislation: Sometimes legislative powers may be
delegated to certain bodies by the parliament through
principal legislation. A principal act may create subsidiary
legislation that can make laws as provided in the principal
legislation.
Custom as a source of law

Custom refers to the code of conduct that has the express approval
of the community that observes it. In primitive societies, there were
no institutions that acted as authority over the people. This led to
people organising themselves to form cohesive groups in order to
maintain fairness, equality, and liberty. They started developing
rules with coordinated efforts to make decisions. They eventually
started recognising the traditions and rituals practised by the
community routinely and formed a systematised form of social
regulation.

In India, laws relating to marriage and divorce are mostly

developed from customs followed by different religious
communities. Additionally, several communities belonging to the
Scheduled Tribes category have their own customs related to
marriage. As a result of that Section 2(2) of the Hindu Marriage Act,
 1955 has exempted Scheduled Tribes from the application of this
Act.

Requisites of a valid custom

• Reasonability: The custom must be reasonable or practical

and must conform with the basic morality prevailing in the
modern-day society.
• Antiquity: It must have been practised for time immemorial.
• Certainty: The custom must be clear and unambiguous on
how it should be practised.
• Conformity with statutes: No custom must go against the law
of the land.
• Continuity in practice: Not only the custom must be practised
for time immemorial, but it should also be practised without
interruption.
• Must not be in opposition to public policy: The custom must
adhere to the public policy of the state.
• Must be general or universal: There must be unanimity in the
opinion of the community or place in which it is practised.
Hence, it should be universal or general in its application.
Sir Henry Maine’s views on customs

According to Sir Henry Maine, “Custom is conception posterior to that

of Themistes or judgments”. Themistes refers to the judicial awards
dictated to the King by the Greek goddess of justice. The followIng
are the different stages of development of law according to Henry
Maine:

• At the rst step, law is made by rulers who are inspired by the
divine. Rulers were believed to be messengers of God.
• At the second stage, following rules becomes a habit of the
people and it becomes customary law.
• At the third stage, knowledge of customs lies in the hands of a
minority group of people called the priestly class. They
recognise and formalise customs.
• The nal stage is the codi cation of customs.
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Types of customs

1. Customs without a binding obligation

There are customs that are followed in society that do not have a
legal binding force. Such customs are related to clothing, marriage,
etc. Not abiding by such customs can only result in a social boycott
and not legal consequences.

• Customs with a binding obligation

Customs that are meant to be followed by law are called customs
with a binding obligation. They are not related to social conventions
or traditions. There are mainly two types of customs with binding
obligations-

• Legal customs: Legal customs are absolute in sanction. They

are obligatory in nature and attract legal consequences if not
followed. Two types of legal customs are general customs and
local customs. General customs are enforced throughout the
territory of a state. Local customs on the other hand operate
only in particular localities.
• Conventional customs: Conventional customs are those
customs that are enforceable only on their acceptance through
an agreement. Such a custom is only enforceable on the people
who are parties to the agreement incorporating it. Two types of
conventional customs are general conventional customs and
local conventional customs. General Conventional Customs
are practised throughout a territory. Local Conventional
Customs on the other hand is restricted to a particular place or
to a particular trade or transaction.
JUSTICE

The concept of justice is as old as civilization and society. There

can’t be existence of lawful society without the presence of justice.
One of the most important pillars of any nation is justice. A lawful
society can’t exist without the presence of justice. It is one of the
most important pillars behind the growth of any nation.

Also justice means, ‘Justice is the correct application of a law, as

opposed to arbitrariness’. By correct application of law we mean to
say “proper implementation of law”. Justice can be attained in the
society only by correct interpretation and implementation of Laws.

Kinds of Justice

The concept of justice and its administration can be of the following types:

1) Public justice and Private justice

Public justice is basically that kind of justice which the state administers
through its tribunals and courts. It explains the relationship between courts
and citizens of a state. Courts usually enforce laws that the states make
under public justice.

On the other hand, private justice regulates the legal relationship between
individuals. It is limited to people enforcing concepts of justice amongst
each other without approaching courts.

For example, let’s imagine that A and B entered into a business transaction
in which A paid money to B as promised. B, instead of selling goods to A
for the money, refused to ful ll his obligation. If A and B decide to settle
their dispute through means of arbitration or negotiation, it is private
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 justice. However, if A approaches a court and sues B, we refer to that as
public justice.

2) Civil justice and Criminal justice

In terms of the subject matters of justice, we can categorize it as civil and

criminal. Civil justice generally refers to private wrongs that affect speci c
people or entities.

For example, breach of a contract between two parties will affect only one
of them. Trespassing of property is another example. The remedy of such
civil wrongs is generally to approach civil courts.

Criminal justice, on the other hand, affects society in general even if

speci c people are victims. For example, the murder affects speci c
victims only but the law treats it as a crime against society.

Another feature of criminal justice is that it relates to laws made by a

legislature. Only acts that are de ned as crimes can be the subject matter
of criminal justice.

Types of Justice:

• Social Justice:
The state is restricted from discriminating against citizens based on
their birth, caste, race, creed, sex, faith, title or position, or any
combination of these factors. Apartheid and untouchability are
antithetical to the spirit of social justice. The lack of favored social
classes is a crucial feature of social justice.

Social justice means greater good for larger number of people and
unequalls should be treated equally. The apex court in
the Kesavananda Bharati case held that social justice is part of
Basic structure of the Indian constitution.
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Several articles of the Indian Constitution are aimed at ensuring
social, economic, and political fairness. Untouchability has been
declared illegal under the law. Every citizen has the right to obtain
any public venue, an institution of religion, or place of amusement
on an equal basis.

According to social democrats and modern liberal philosophers,

social justice endeavors to reconstruct the social order in line with
moral ideals. Attempts to correct social injustice must be made
constantly. It also stands for a morally good and justi able system
of societal reward and duty distribution free of prejudice or
injustice towards any individual or group of individuals.

In the Case of S.R Bommai v. Union of India, the apex court held
that social justice and judicial review are two basic features of the
Indian constitution.

• Economic Justice
Economic Justice and Social Justice are interlinked since the
economic system is always a part of the social system. Individual
economic rights and possibilities are always a part of the larger
social structure. Economic Justice requires that all citizens have
enough chances to make a living and get fair pay, allowing them to
meet their fundamental requirements and aiding their
development.

The government should provide them with nancial stability

during illness, old age, and incapacity. No individual, group, or
class should be able to exploit others or be exploited. The
distribution of money and resources should be fair and equitable
among all individuals. Everybody must share the bene ts of
wealth.

There are numerous different perspectives on what economic justice

entails. Liberals believe that open competition is fair and that
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private property is valuable. Socialists want to take total control of
society and the whole nancial system. They reject the ownership of
personal property. Whatever philosophy or approach is in place,
one thing is sure: all citizens must have access to fundamental
essentials of existence.

• Political Justice
Political Justice entails providing all citizens with equal political
rights and participating in the country’s government. Citizens
should vote without fear of discrimination based on religion, color,
caste, creed, sex, birthplace, or social position. * Each person should
have the same opportunity to vote and run for of ce.

The drafting of just laws and then doing justice under the rules are
two aspects of legal justice. The rulers’ will should not be forced on
the ruling while creating legislation. Public opinion and public
needs should guide legislation. Social values, morals, customs, and
the concept of right and wrong must all be kept in mind at all times.

• Legal Justice
The term legal justice refers to the rule of law, not the rule of any
individual. It conveys that all persons are equal before the law and
that the law applies equally to all. It ensures that the law protects
everyone. The law makes no distinction between the wealthy and
the needy. The objective and proper administration of justice by
courts of law is a necessary component of legal justice.

When social and economic disparities exist, political and equitable

justice is constantly denied. An oppressed and impoverished
individual can practically not engage in the political process or seek
legal protection from the courts.
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