G. M. Wagh - Jurisprudence (2020)

JURISPRUDENCE
G. M. WAGH
2020
SYLLABUS
UNIT I – INTRODUCTION
1. Meaning and Nature of ‘Jurisprudence’
2. Purpose and Value of Jurisprudence
3. Schools of Jurisprudence
(a) Natural Law,
(b) Imperative Theory,
(c) Legal Realism,
(d) Historical School,
(e) Sociological School.
UNIT II – FUNCTIONS AND PURPOSE OF LAW
1. Functions and Purpose of Law
2. Questions of Law, Fact and Discretion
3. Justice
Kinds of Justice
4. Administration of Justice
(a) Civil, and
(b) Criminal
5. Theories of Punishment
6. Secondary Functions of the Court.
UNIT III – SOURCES OF LAW
1. Legislation
2. Precedent
3. Custom
4. A Comparative Study
2 Syllabus
UNIT IV – LEGAL CONCEPTS I
1. Right and Duty
(a) Kinds of Rights and Duties
(b) Meaning of Right in its Wider Sense;
2. Possession
3. Ownership
(a) Idea of Ownership
(b) Kinds of Ownership,
(c) Difference between Possession and Ownership
4. Personality
(a) Nature of Personality
(b) Status of the Unborn, Minor, Lunatic, Drunken and Dead Persons
UNIT V – LEGAL CONCEPTS II
5. Liability
(a) Conditions for Imposing Liability
(b) Wrongful Act
(c) Damnum Sine Injuria and Injuria Sine Damno
(d) causation
(e) mens rea,
(i) intention, malice, negligence and recklessness
(ii) strict liability
(iii) vicarious liability
6. Obligation
7. Substantive Law and Procedural Law.

SHORT TABLE OF CONTENTS
Syllabus..........................................................................................................(i)
Short Table of Contents.................................................................................(iii)
Table of Contents...........................................................................................(v)
Table of Cases............................................................................................(xvix)
1. Introduction to Jurisprudence.........................................................................1
Part One – Legal Theory
2. Purpose of Legal Theory.................................................................................15
3. Schools of Jurisprudence...............................................................................17
4. Law................................................................................................................56
5. Administration of Justice...............................................................................75
6. Sources of Law...............................................................................................86
Part Two – Legal Concepts
7. Legal Rights and Duties...............................................................................123
8. Personality...................................................................................................142
9. Property.......................................................................................................149
10. Ownership...................................................................................................150
11. Possession...................................................................................................161
12. Obligation....................................................................................................178
13. Liability........................................................................................................179
14. Substantive Law and Procedural Law...........................................................180
Question Bank.............................................................................................224
TABLE OF CONTENTS
SYLLABUS................................................................................................................(i)
SHORT TABLE OF CONTENTS................................................................................(iii)
TABLE OF CONTENTS..............................................................................................(v)
TABLE OF CASES.................................................................................................(xix)
1. INTRODUCTION TO JURISPRUDENCE...................................................................1
About Jurisprudence................................................................................................. 1
Definition and Meaning of Jurisprudence...................................................................1
Analytical Jurisprudence...........................................................................................2
Normative Jurisprudence..........................................................................................2
General Jurisprudence..............................................................................................2
Particular Jurisprudence...........................................................................................2
Historical Jurisprudence...........................................................................................3
Critical Jurisprudence...............................................................................................3
Sociological Jurisprudence........................................................................................3
Economic Jurisprudence...........................................................................................3
Nature of Jurisprudence..............................................................................................3
Scope of Jurisprudence...............................................................................................5
Legal Theory............................................................................................................. 5
Analytical Jurisprudence......................................................................................7
Descriptive Jurisprudence.....................................................................................8
Normative Jurisprudence......................................................................................8
Legal Concepts.......................................................................................................... 8
Value (Significance) of Jurisprudence.........................................................................8
1. Intrinsic Value...................................................................................................... 9
2. Sharpens Lawyer’s Skills.......................................................................................9
3. Educational Value.................................................................................................9
4. Multi-disciplinary Approach................................................................................10
Advantages to the Lawyer....................................................................................10
Advantages to Other Social Scientists..................................................................10
5. Generalisation of Law..........................................................................................11
(vi) Table of Contents
PART ONE – LEGAL CONCEPTS
2. PURPOSE OF LEGAL THEORY.............................................................................15
Necessity of Defining Law........................................................................................15

Law as a Concept........................................................................................................ 15
Difficulties of Defining Law......................................................................................16
3. SCHOOLS OF JURISPRUDENCE...........................................................................17
1. Natural Law School – Law as Dictate of Reason.....................................................18

Essential Principles of Natural Law..............................................................................20
Merits of Natural Law Theory.......................................................................................20
1. As a Touchstone to Test Laws..............................................................................21
2. As a Defence against Ethical Relativism...............................................................21
3. As a Relation between True Law and Human Reasoning.......................................21
4. As a Moderation of Religious Cleavages................................................................21
5. As a Basis of Fundamental Human Rights...........................................................21
Criticism of the Natural Law Theory.............................................................................22
1. ‘Ought’ May Not Always Be Same As ‘Is’...............................................................22
2. ‘Proper Function’ Principle Is Not Suitable to Man................................................22
3. Some Factual Statements Are Bereft of Moral Propositions...................................23
4. In Morals Logical Validity May Not Be of Universal Acceptance.............................23
5. Moral Rules Are Not Amenable to Changes, Legal Rules Are.................................23
6. Legal Disputes Can Be Settled by Courts, Moral Disputes Cannot Be...................23
7. Existence of Law and Merits of Law Are Two Separate Questions..........................24
8. Claim of Natural Lawyers Make Us Forget Other Grounds of Criticism..................24
2. Imperative Law School – Law as Command of Sovereign.......................................24
1. Command............................................................................................................... 24
2. Sovereign................................................................................................................ 25
3. Sanctions................................................................................................................ 26
Exclusions from Positive Law.......................................................................................26
Merits of Imperative Law Theory..................................................................................27
Criticisms of Imperative Law Theory............................................................................28
1. Lack of Moral Requirement..................................................................................28
2. Not Easy to Identify ‘Sovereign’ in All Societies.....................................................28
3. Sovereignty Consists Not in Having Powers But in Having Authority.....................28
4. All Laws are Not Necessarily Made by Sovereigns.................................................28
(a) Customs, International Law, Constitutional Law.............................................29
(b) English Common Law.....................................................................................29
5. In Modern Law-making Process an Intermediate Body of Persons is Sovereign....29
Table of Contents (vii)
6. Laws Continue to Exist Even After the Extinction of Law-giver...........................29

7. ‘Command’ Model is Not Suitable in All Cases....................................................30
(a) Power-Conferring Rules................................................................................30
(b) Procedural Laws...........................................................................................30
8. Laws Which Appoint Sovereign Are Not Made by Sovereign.................................30
9. Bringing All Law in One Type is a Fallacy of Imperative Theory...........................30
10. Fails to Distinguish Between Laws of Terror and Forms of Governance...............31
A Contemporary View.................................................................................................. 31
3. Legal Realism – Law as Practice of Courts............................................................32

Court.......................................................................................................................... 32
Law............................................................................................................................. 33
Two Branches of Realist School...................................................................................33
Holmes’ Version.........................................................................................................34
Merits of Realism.........................................................................................................35
Criticism of Realism.................................................................................................... 35
1. Realism Encroaches Upon the Legal Certainty.....................................................35
2. Statutory Law Is Law As Soon As it Is Made.........................................................35
3. Only a Fraction of Decisions of Courts Create New Laws......................................36
4. Uncertainty in Language Does Not Affect Majority of Cases..................................36
5. Lay Person Seldom Base Their Activities on Judicial Practice................................36
4. Hart’s Theory of Law – Law as System of Rules.....................................................37

Soft Positivism............................................................................................................ 37
Characteristics of Legal Rules......................................................................................38
Rules and Obligations............................................................................................. 38
External and Internal Aspects of a Legal Rule..........................................................39
Criticism of Hart’s Internal Point of View.............................................................40
Neil MacCormick.............................................................................................40
Joseph Raz..................................................................................................... 41
Primary and Secondary Rules of Obligation.............................................................41
Primary Rules..................................................................................................... 41
Secondary Rules................................................................................................. 42
The Rule of Recognition...........................................................................................44
5. Historical School of Jurisprudence......................................................................45

Proponents of Historical School...................................................................................46
Montesquieu........................................................................................................... 46
Schelling and Hugo................................................................................................. 46
Edmund Burke....................................................................................................... 47
Sir Fedrick Pollock.................................................................................................. 47
(viii) Table of Contents
Savigny.................................................................................................................. 47
Basic Concept of Savigny’s Volksgeist.................................................................47
Volksgeist as a Source of Law..............................................................................48
Merits of Savigny’s Volkgeist...............................................................................48
Characteristics of Historical School.........................................................................48
1. Law is Like Language Which Eventually Grows....................................................48
2. Law Cannot be of Universal Validity.....................................................................48
3. Law is Sui Generis............................................................................................... 49
4. Law is Found or Discovered – It is Not Made........................................................49
5. Law is Found on the Basis of Consciousness, Customs and Beliefs of the People. .49
6. Law is a Continuous and Unbreakable Process....................................................49
Criticism of Historical School.......................................................................................50
6. Sociological School of Jurisprudence...................................................................51

Sociological School...................................................................................................... 51
Basic Tenets of Sociological School..............................................................................52
Roscoe Pound............................................................................................................ 52
Theory of Social Engineering................................................................................53
1. Individual or Private Interests..........................................................................53
2. Public Interests...............................................................................................54
3. Social Interests............................................................................................... 54
4. LAW.....................................................................................................................56
About Law............................................................................................................... 56
Meaning and Definition of Law..................................................................................56
Meaning of Law....................................................................................................... 56
Difficulties of Defining Law......................................................................................56
Definition of Law..................................................................................................... 57
Nature of Law............................................................................................................. 57
Authority of Law........................................................................................................ 59
Characteristics of Law...............................................................................................61
The Function and Purposes of Law...........................................................................61
1. Justice................................................................................................................ 61
2. Uniformity and Certainty.....................................................................................62
3. Fairness and Impartiality....................................................................................62
4. Objectivity........................................................................................................... 62
5. Wisdom............................................................................................................... 62
6. Stability.............................................................................................................. 63
Table of Contents (ix)
About Justice.......................................................................................................... 63
Justice........................................................................................................................ 63
Justice According to Law (Legal Justice)..................................................................63
Nomoi (Rules of Just Conduct).................................................................................64
Kinds of Justice (Components of Justice)................................................................65
Distributive Justice.................................................................................................65
Rectificatory or Corrective Justice............................................................................66
Law and Fact........................................................................................................... 67

Questions of Law and Questions of Fact.......................................................................68
1. The First Sense................................................................................................... 68
2. Second Sense...................................................................................................... 69
3. Third Sense......................................................................................................... 69
Discretion............................................................................................................... 70
Functions of Courts.................................................................................................71
Primary Functions.....................................................................................................71
Administration of Justice........................................................................................ 71
Criminal Justice and Civil Justice.......................................................................71
Judicial Review....................................................................................................... 72
Secondary Functions.................................................................................................72
1. Actions against the State.....................................................................................73
2. Declaration of Rights...........................................................................................73
3. Administration of Estate......................................................................................74
4. Creation and Destruction of Titles.......................................................................74
5. Advisory Jurisdiction of Supreme Court of India (Article 143 of the Constitution)..74
5. ADMINISTRATION OF JUSTICE...........................................................................75
Meaning of Administration of Justice......................................................................75

Necessity of Administration of Justice..........................................................................75
Criminal Justice, Criminal Wrong, Civil Justice and Civil Wrong..............................76

Criminal Wrong........................................................................................................... 77
Punishment............................................................................................................... 78
Meaning of Punishment...........................................................................................78
Theories of Punishment........................................................................................78
1. Deterrent Theory.............................................................................................78
2. Preventive Theory............................................................................................79
3. Reformative Theory.........................................................................................79
4. Retributive Theory...........................................................................................80
5. Expiation Theory.............................................................................................80
(x) Table of Contents
Civil Wrong................................................................................................................. 81
Primary and Sanctioning Rights..............................................................................81
Enforcement of Rights.............................................................................................81
Specific Enforcement and Sanctional Enforcement...................................................83
Distinction Between Criminal and Civil Justice.......................................................84

Exceptions.................................................................................................................. 85
6. SOURCES OF LAW...............................................................................................86
Basis, Origin and Sources of Law..............................................................................86
Different Sources of Law..........................................................................................86
Meaning of ‘Sources of Law’.....................................................................................87
1. Legislation...........................................................................................................89
Meaning of Legislation.................................................................................................89
Chief Forms of Legislation (Superior and Subordinate)............................................90
Superior Legislation (Primary Legislation)................................................................90
Subordinate Legislation (Delegated Legislation)........................................................91
Forms of Subordinate Legislation.....................................................................91
1. Colonial Legislation.....................................................................................92
2. Executive Legislation...................................................................................92
3. Judicial Legislation.....................................................................................92
4. Municipal Legislation..................................................................................92
5. Autonomous Legislation..............................................................................93
Objectives of Delegated Legislation..................................................................93
1. To Reduce the Pressure on the Legislature...................................................93
2. To Take the Benefit of Expertise of the Executive.........................................93
3. To Tackle Unforeseen Circumstances..........................................................94
4. To Facilitate for Experimentation.................................................................94
5. To Maintain of Secrecy................................................................................94
6. To Leave Matters to Administrative Nature to Executive...............................94
Advantages of Legislation Over Other Sources of Law..............................................94
1. Prospectivity....................................................................................................... 95
2. Certainty and Objectivity.....................................................................................95
3. Proactivity........................................................................................................... 95
4. Clarity and Conciseness......................................................................................96
5. Advancement of Efficiency by Proper Division of Powers.......................................96
6. Correcting Wrong Laws and Updating Outdated Laws..........................................96
Table of Contents (xi)
Interpretation of Statutes.........................................................................................96
Types of Interpretation of Statutes...........................................................................97
Plain Meaning......................................................................................................... 97
1. Grammatical or Literal Interpretation..................................................................99
2. Logical or Functional Interpretation.....................................................................99
Mischief Rule (Rule in Heydon’s Case)................................................................100
(a) Ambiguity.................................................................................................... 101
(b) Extreme Absurdity (Golden Rule of Interpretation)........................................102
2. Precedent.......................................................................................................... 102
Precedent as a Source of Law.....................................................................................103
Rules of English Doctrine of Precedent...................................................................103
Rules of Doctrine of Precedent in India..................................................................103
Merits of Doctrine of Precedent..................................................................................105
1. Legal Certainty..................................................................................................105
2. Equality Before Law...........................................................................................105
3. Reputation of Court for Fairness and Integrity...................................................105
4. Saves Time and Effort of the Court....................................................................105
Declaratory Theory of Precedents...............................................................................106
Two Senses of the Term ‘Doctrine of Precedent’..........................................................106
Kinds of Precedent..................................................................................................107
1. Binding Precedents............................................................................................107
2. Persuasive Precedents.......................................................................................108
Circumstances Affecting the Force of Precedent....................................................108
1. Abrogation of Decisions.....................................................................................109
2. Affirmation or Reversal on a Different Ground....................................................109
3. Ignorance of a Statute.......................................................................................110
4. Inconsistency with an Earlier Decision of a Higher Court...................................110
5. Inconsistency with an Earlier Decision of a Co-ordinate Bench (Per Incurium).....110
6. Precedent Sub Silentio.......................................................................................111
7. Decision of an Equally Divided Court.................................................................111
8. Erroneous Decision...........................................................................................111
9. Decision Given on Concession...........................................................................111
Prospective Over-ruling...........................................................................................112
Ratio Decidendi and Obiter Dictum........................................................................113
Problems in Finding Ratio Decidendi......................................................................114
Tests for Finding Ratio Decidendi...........................................................................115
Wambaugh’s ‘Inversion Test’.............................................................................115
Goodhart’s ‘Material Facts Test’.........................................................................115
(xii) Table of Contents
3. Custom.............................................................................................................. 117
Custom as a Source of Law......................................................................................117
Types of Customs....................................................................................................118
Codification of Law................................................................................................ 119
PART TWO – LEGAL CONCEPTS
7. LEGAL RIGHTS AND DUTIES.............................................................................123
About Rights and Duties........................................................................................123

Definitions and Meaning............................................................................................123
Correlation Between Right and Duty......................................................................124
Co-existence of Rights and Duties..........................................................................125
Co-extension of Rights and Duties.........................................................................125
Kinds of Rights (and Duties)....................................................................................126
1. Legal Rights and Moral Rights...........................................................................126
2. Public Rights and Private Rights........................................................................126
Animal Rights...................................................................................................127
3. Perfect Rights and Imperfect Rights...................................................................127
Rights Against State..........................................................................................128
Rights, the Enforcement of Which is Prohibited by Law......................................128
Bar on Jurisdiction of Courts............................................................................128
4. Positive Rights and Negative Rights....................................................................129
5. Proprietary Rights and Personal Rights..............................................................129
6. Rights in Re Propria and Rights in Re Aliena......................................................130
7. Principal Rights and Accessory Rights................................................................130
8. Primary Rights and Sanctioning Rights..............................................................131
9. Legal Rights and Equitable Rights.....................................................................131
10. Vested Rights and Contingent Rights...............................................................132
Characteristics of Rights.........................................................................................133
1. It is Vested in a Person......................................................................................133
2. It is Against Another Person..............................................................................133
3. It has a Content................................................................................................133
4. It has an Object or Subject-matter.....................................................................133
5. It has a Title......................................................................................................133
Wrong....................................................................................................................... 134
Table of Contents (xiii)
Hohfeld’s Concept of Right (Right in Its Wider Sense)............................................135

Jural Correlatives......................................................................................................136
Rights and Duties.................................................................................................136
Liberties and No-Rights.........................................................................................136
Powers and Liabilities............................................................................................137
1. Public Power (Authority)................................................................................138
2. Private Power (Capacity)................................................................................138
Immunities and Disabilities...................................................................................139
Jural Opposites......................................................................................................... 139
Jural Contradictories.................................................................................................140
Inter-Relation Between the Legal Conceptions............................................................140
8. PERSONALITY...................................................................................................142
About Personality.................................................................................................. 142

Definition and Meaning – Nature of Personality..........................................................142
Types of Persons........................................................................................................143
1. Natural Persons................................................................................................ 143
2. Artificial (Legal) Persons....................................................................................143
Advantages of Incorporation......................................................................................144
1. Separate Personality and Existence....................................................................144
2. Limited Liability................................................................................................ 144
3. Perpetual Succession.........................................................................................144
4. Separate Property..............................................................................................145
5. The Capacity to Sue and be Sued.......................................................................145
6. Transferable Shares.......................................................................................... 145
7. Flexibility and Autonomy...................................................................................145
Double Capacity and Double Personality................................................................146
Legal Status of Some Special Entities....................................................................147

Unborn Person.......................................................................................................... 147
Minor........................................................................................................................ 147
In Civil Law...........................................................................................................147
In Criminal Law.................................................................................................... 148
Persons Non Compos Mentis (Persons of Unsound Mind).............................................148
Deceased Persons......................................................................................................149
Lower Animals........................................................................................................... 149
9. PROPERTY........................................................................................................151
(xiv) Table of Contents
10. OWNERSHIP....................................................................................................152
About Ownership................................................................................................... 152

Meaning and Definition.............................................................................................152
Bundle Theory...................................................................................................... 152
Full Liberal Ownership..........................................................................................152
The Integrated Theory........................................................................................... 153
‘Standard’ Incidents of Ownership.............................................................................153
1. The Right to Possess (Right of Possession)........................................................154
2. The Right to Use and Enjoy (Right of Use and Enjoyment)................................154
3. The Right to Manage (Right of Management).....................................................154
4. The Right to the Income...................................................................................154
5. The Right to the Capital (Right of Consumption, Wastage and Destruction).......154
6. The Right to Security.......................................................................................155
7. The Incident of Transmissibility (Right of Alienation)........................................155
8. The Incident of Absence of Term......................................................................155
9. The Prohibition on Harmful Use.......................................................................155
10. Liability to Execution.......................................................................................155
11. Residuary Character........................................................................................155
Subject-matter of Ownership..................................................................................156
Kinds of Ownership............................................................................................... 156

1. Sole Ownership and Co-Ownership........................................................................157
Fragmentation of Ownership in Respect of Time.....................................................157
2. Trust Ownership and Beneficial Ownership............................................................158
Trust and Contract................................................................................................158
Trust and Agency..................................................................................................159
3. Legal Ownership and Equitable Ownership............................................................159
4. Vested Ownership and Continent Ownership.........................................................160
Contingent Ownership and Spes Successionis........................................................161
Condition Precedent and Condition Subsequent – Vestitive and Divestitive Facts....161
11. POSSESSION...................................................................................................163
Concept of Possession........................................................................................... 163

Meaning and Definition.............................................................................................163
Possession and Custody............................................................................................ 164
Ownership and Possession........................................................................................165
Possession and Right to Possession...........................................................................165
Table of Contents (xv)
Elements of Possession..........................................................................................166
1. Corpus Possessionis (Fact of Possession)................................................................166
Securing Non-interference.....................................................................................167
1. Physical Power or Force.....................................................................................167
2. Personal Presence of the Possessor (Guarding)...................................................167
3. Secrecy (Concealment).......................................................................................167
2. Animus Possidendi (Intention to Possess)...............................................................167
Kinds of Possession............................................................................................... 168

Possession in Fact and Possession in Law..................................................................168
Possession in Fact (De Facto Possession) – Actual Possession.................................168
Continuity of Possession and Regaining Possession...........................................169
Factors Constituting Concept of Control............................................................169
1. Having Control Over the Property..............................................................169
2. Having Power to Exclude Others from Interfering.......................................170
Possession in Law (De Jure Possession) – Constructive Possession..........................170
Distinction between Possession in Fact and Possession in Law...............................171
Immediate (Direct) and Mediate (Indirect) Possession..................................................171
Concurrent (Duplicate) Possession.............................................................................172
Corporeal and Incorporeal Possessions......................................................................172
Adverse Possession....................................................................................................173
Acquisition of Possession.......................................................................................174
1. Acquisition of Possession by Taking.......................................................................174
2. Acquisition of Possession by Delivery.....................................................................174
Actual Delivery of Possession.................................................................................174
Symbolic Delivery of Possession.............................................................................175
Constructive Delivery of Possession.......................................................................175
1. Traditio Brevi Manu.......................................................................................175
2. Constitutum Possessorium.............................................................................175
3. Attornment...................................................................................................176
3. Acquisition of Possession by Operation of Law........................................................176
Possessory Rights.................................................................................................. 176

1. Right of Non-interference.......................................................................................177
2. Right to Retain Possession.....................................................................................177
3. Right to Regain or recover Possession....................................................................177
4. Right to Prima Facie Title.......................................................................................177
Possessory Remedies............................................................................................. 178

Self Help................................................................................................................... 178
Legal Remedies..........................................................................................................179
(xvi) Table of Contents
12. OBLIGATION...................................................................................................180
About Obligations.................................................................................................. 180

Meaning and Definition – Nature of Obligation...........................................................180
Kinds of Obligations.............................................................................................. 180

Solidary Obligations..................................................................................................180
Types of Solidary Obligations.................................................................................181
1. Joint Obligations...........................................................................................181
2. Several Obligation.........................................................................................181
3. Joint and Several Obligations........................................................................182
Types of Obligations Based on Their Sources..........................................................182

1. Obligations Arising from Contracts........................................................................183
2. Obligations Arising from Torts...............................................................................183
3. Obligations Arising from Quasi Contracts...............................................................185
4. Innominate Obligations......................................................................................... 186
13. LIABILITY........................................................................................................187
About Liability – Meaning and Definition................................................................187
Types of Liabilities................................................................................................ 187

Theory of Penal Liability............................................................................................ 188
1. General Conditions of Penal Liability (Actus Non Facit Reum Nisi Mens Sit Rea). . .188
Actus Reus (Act or Effect of One’s Act)................................................................189
Mens Rea (Guilty Mind).....................................................................................191
2. Incidents of Penal Liability.................................................................................200
3. Extent (Measure) of Penal Liability.....................................................................201
(a) Motive of the Offence....................................................................................201
(b) The Magnitude of the Offence.......................................................................202
(c) The Character of the Offender.......................................................................202
Theory of Remedial Liability.......................................................................................203
Damnum Sine Injuria (Damage Without Injury).......................................................203
Injuria Sine Damno (Injury Without Damage)..........................................................204
Mens Rea in Civil Law...........................................................................................204
Negligence in Civil Law......................................................................................205
Neglect, Negligence and Inadvertence............................................................205
Subjective and Objective Theories of Negligence.............................................206
Duty of Care.................................................................................................206
Standard of Care...........................................................................................207
Degree of Care.............................................................................................. 208
Three Kinds of Negligence.............................................................................208
Table of Contents (xvii)
Strict Liability....................................................................................................... 209

Strict Liability in Civil Law.........................................................................................209
Essentials of Strict Liability...................................................................................211
Exceptions to Strict Liability..................................................................................211
Strict Liability in Criminal Law..................................................................................211
Vicarious Liability................................................................................................. 212

Vicarious Liability in Civil Law – Master-Servant Relation...........................................212
Who is a Servant?................................................................................................. 212
Servant and Independent Contractor.................................................................212
Basis of the Liability of Master...............................................................................213
1. Qui Facit Per Alium Facit Per Se......................................................................213
2. Respondeat Superior......................................................................................213
3. Superior Financial Capacity of the Master......................................................213
4. Instrumentality Principle...............................................................................213
5. Benefits and Burdens of the Enterprise.........................................................213
6. Negligence of the Master in Selecting the Proper Servant................................214
Vicarious Liability Under Criminal Law......................................................................214
Causation.............................................................................................................. 215
Breaking the Chain – Novus Actus Interveniens......................................................217
14. SUBSTANTIVE LAW AND PROCEDURAL LAW...................................................218
About the Classification.........................................................................................218

Substantive Laws vs. Procedural Laws.......................................................................219
Law of Evidence..................................................................................................... 221

Facts, Proof of Facts and Evidence.............................................................................223
Facts.................................................................................................................... 223
Physical Facts...................................................................................................223
Psychological Facts...........................................................................................224
Proof..................................................................................................................... 225
Evidence............................................................................................................... 226
Oral Evidence................................................................................................... 227
Direct Evidence.............................................................................................227
Hearsay Evidence..........................................................................................227
Documentary Evidence......................................................................................227
Proof of a Document and Proof of Contents of a Document.............................228
Two Aspects of Evidence – Admission of Evidence and Appreciation of Evidence.........229
QUESTION BANK...................................................................................................233
TABLE OF CASES
Ashby vs. White................................................................................................................... 204
Bridges vs. Hawkesworth................................................................................................... 114
D & F Estates Limited vs. Church Commissioners..............................................................205
D. Saibaba vs. Bar Council of India.......................................................................................97
Donoghue vs. Stevenson...................................................................................................... 184
Electronic Corporation of India vs. B. Karunakar................................................................110
Gloucester Grammar School Case.......................................................................................204
Golak Nath vs. State of Punjab............................................................................................ 112
Heydon’s Case.................................................................................................................... 100
In Re Polemis Case.............................................................................................................. 215
Jamnadas vs. Income Tax Commissioner...........................................................................104
Kailash Chandar Asthana vs. State of U. P........................................................................110
Kalia Porumal Pillai v. Visalakshmi.....................................................................................165
Kanailal Sur vs. Paramnidhi Sadhukan..............................................................................100
Mohri Bibi vs. Dharmodas Ghosh........................................................................................148
Quinn vs. Leathem............................................................................................................... 113
R. vs. Thabo Mali................................................................................................................. 189
Radha Rani vs. Sisir Kumar................................................................................................ 104
Reparations Case................................................................................................................ 142
Rex vs. Ram Dayal.............................................................................................................. 104
Rylands vs. Fletcher................................................................................................... 116, 210
Shah Bano Case.................................................................................................................. 109
Smith vs. Hughes................................................................................................................. 100
South Staffordshire Water Company Case..........................................................................114
South Staffordshire Water Company vs. Sharman..............................................................114
Srinivas vs. Narayan........................................................................................................... 103
Srinivasa and Others vs. K. V. Srinivasa Rao.....................................................................110
The Wagon Mound (No. 1) Case..................................................................................215, 217
Timmagoudar vs. Dyavamma.............................................................................................. 104
Union of India vs. Mohd. Ramzan Khan..............................................................................110
Vinayak Shamrao vs. Moreshwar Ganesh..........................................................................104
Walker vs. G. N. Railway.................................................................................................... 147
1. INTRODUCTION TO JURISPRUDENCE
ABOUT JURISPRUDENCE
DEFINITION AND MEANING OF JURISPRUDENCE
The term ‘jurisprudence’ is derived from two Latin words, juris which means ‘of law’ and
prudens which means ‘knowledge’, thus meaning knowledge of law.
Jurisprudence is an imprecise term. It is used at different times to mean different things.
1. Sometimes it refers to a body of substantive legal rules, doctrines, interpretations and

explanations that make up the law of a country: thus, English, French or German
jurisprudence refers to the laws of England, France and Germany.
2. Jurisprudence may also refer to the interpretations of the law given by a court. We
speak in this sense of the constitutional jurisprudence of the US Supreme Court and
the High Court of Australia, and the jurisprudence of the European Court of Human
Rights. Jurisprudence in this sense is not synonymous with law, but signifies the
juristic approaches and doctrines associated with particular courts.
3. In another sense of the term, it is a branch of philosophy which deals with

philosophical questions about law. Even in this sense, the term has been used
variously at different times, ranging from its use to describe mere knowledge of the law,
to its more specific definition as a description of the scientific investigation of
fundamental legal phenomena.
“Jurisprudence” is the term normally used in common law countries to refer to general
theoretical reflections upon law and justice. “Philosophy of law” is an equally good label.
A strict definition of jurisprudence is, as is the case with many general terms, difficult to
articulate. The main problem with jurisprudence is that its scope of inquiry ranges over
many different subjects and touches on many other disciplines, such as economics,
politics, sociology and psychology, which would normally be regarded as having little to do
with law and legal study.
As a subject, jurisprudence may be said to involve the study of a wide range of social
phenomena, with the specific aim of understanding the nature, place and role of law
within society.
2 1. Introduction to Jurisprudence
The main question which jurisprudence seeks to answer is of a general nature. It is to

inquire into the nature of law. The inquiry into the nature of law may further be divided
into two sub-inquiries:
1. What is law? and
2. What is good law?
Answers to these two questions constitute two major divisions in jurisprudential inquiry.
These are:
1. analytical jurisprudence; and
2. normative jurisprudence.
These two divisions were first clearly specified by John Austin in his text The Province of
Jurisprudence Determined (1832). Other divisions and subdivisions have been identified
and argued for as the field of jurisprudence or legal philosophy has expanded. The
following are some of the more important divisions and subdivisions of jurisprudence.
Analytical Jurisprudence
Involves the scientific analysis of legal structures and concepts and the empirical exercise
involved in discovering and elucidating the basic elements constituting law in specific
legal systems. The question to be answered is: what is ‘law’?
Normative Jurisprudence
Refers to the evaluation of legal rules and legal structures on the basis of some standard
of perfection and the specification of criteria for what constitutes ‘good’ law. This involves
questions of ‘what a law ought to be’.
General Jurisprudence
Refers to an abstracted study of the legal rules to be found generally in the more
developed legal systems.
Particular Jurisprudence
The specific analysis of the structures and other elements of a single legal system.
About Jurisprudence 3
Historical Jurisprudence
A study of the historical development and growth of legal systems and the changes
involved in that growth.
Critical Jurisprudence
Studies intended to provide an estimation of the real value of existing legal systems with a
view to providing proposals for necessary changes to such systems.
Sociological Jurisprudence
Seeks to clarify the link between law and other social phenomena and to determine the
extent to which its creation and operation are influenced and affected by social interests.
Economic Jurisprudence
Investigates the effects on the creation and application of the law of various economic
phenomena, for example, private ownership of property.
NATURE OF JURISPRUDENCE
As observed by P. J. Fitzgerald “Jurisprudence is the name given to a certain type of

investigation into law, an investigation of an abstract, general and theoretical nature
which seeks to lay bare the essential principles of law and legal systems.” 1
It is a subject which differs in kind from other subjects on the legal syllabus. Because the
typical legal subject, e.g., law of contract law of torts, or law of crimes, consists of a set of
rules to be derived from authoritative sources and applied to factual situations in order to
solve practical problems. Jurisprudence, by contrast, does not constitute a set of rules. It
consists of general principles of law. Jurisprudence is not derived from any authority.
Therefore, it is without practical application.2
Jurisprudence is about the social phenomenon that is known as law and its relation to
justice. While in typical legal subjects we study ‘law’, in jurisprudence we study ‘about
1 Fitzgerald, P. J. Salmond on Jurisprudence 12th Edition, Sweet & Maxwell Ltd., U.K., 1966, p. 1.
2 ibid.
law’. Jurisprudence, thus, is not a study of some branch of law such as law of contract,
law of torts or the law of crimes. It is about past and present theories concerning the
nature of law and justice in general. However, it is not possible to conduct an inquiry of
this nature, let alone make sense of the more important questions, without reference to
actual legal systems and actual laws. Hence, specific rules of law figure in discussions in
jurisprudence.3
Jurisprudence in this sense has been around since at least the time of the philosopher
Socrates (470–399 BC). Great philosophers have sought answers to questions about the
nature of law, right and justice. But questions remain unanswered. At least the answers
are not entirely satisfactory.
There are two reasons for this:
1. the complexity of these ideas; and
2. the limits of our language and reason.
Different philosophers have come out with different theories to explain these ideas. These
theories have themselves become subjects of ongoing debate.
One cannot claim to have the last word on any of these questions. Neither can one seek to
avoid debate and controversy. One may, however, attempt to state in comprehensible
terms the major questions in jurisprudence, assess critically the contributions on these
questions made by various schools of thought, introduce the reader to some new insights
about legal systems and make his own contribution to the conversation about law and
justice. It does not matter that there is no consensus about the meaning of concepts such
as ‘law’ and ‘justice’. One can make up his own mind after getting to know relevant theory.
In so doing learn a great deal about the legal system and the society he finds himself in. 4
Fitzgerald points out two main consequences of this difference.
One result of this difference is that far less agreement is to be found in different
jurisprudence textbooks than in textbooks on other subjects of law. In other subjects of
law all books on a particular subject will have more or less the same matter and more or
less the same view expressed by all authors. Even where the views of different authors are
different, the legal rules remain the same. In jurisprudence, there are no such rules. This
allows a far greater play to the writer’s own personal approach. Thus other subjects of law
are more objective in nature while jurisprudence is more subjective in nature.
3 Ratnapala, Suri Jurisprudence Cambridge University Press, 2009, p. 1.
4 ibid.
Another consequence of this difference is that the method of inquiry proper for
jurisprudence is different from that used in the study and practice of other subjects of
law. In jurisprudence we are not concerned to derive rules from authority and apply them
to problems. We are concerned rather to reflect on the nature of legal rules, on the
underlying meaning of legal concepts and on the essential features of, legal system. Thus,
whereas in law we look for the rule relevant to the given situation, in jurisprudence we
ask what it is for a rule to be a legal rule, and what distinguishes law from morality,
etiquette and other related phenomena.
Thus, jurisprudence comprises philosophy of law, and is a second order subject whose
object is not to discover new rules but to reflect on the rules already known, just as the
philosopher of science concerns himself with scientific laws already discovered rather
than with the discovery of new laws.
SCOPE OF JURISPRUDENCE
The basic features of a legal system are mainly found in its authoritative sources.
Therefore, the investigation of the nature and working of legal authority is a subject of
jurisprudential inquiry.
Jurisprudence consists of scientific and philosophical investigations of the social

phenomenon of law and of justice generally. Every discipline which sheds light on the
nature of law and its relation to society is covered by jurisprudence. It embraces studies,
theories and speculations about law and justice undertaken with the knowledge and
theoretical tools of different disciplines – such as law, history, sociology, economics,
political science, philosophy, logic, psychology, economics, and even physics and
mathematics.
Broadly, this inquiry may be classified under two heads:
1. Legal Theory
2. Legal Concepts
Legal Theory
The term ‘legal theory’ is associated with theories seeking to answer the question: what is
law? It is a specific project within jurisprudence. John Austin, the 19 th century legal
positivist, thought that this was the only project in jurisprudence. Most British legal
positivists since Austin have tended to limit their inquiries to the task of finding a
universally valid definition of law or a set of criteria to distinguish law from other kinds of
rules.
The best known of the modern British legal positivists, H. L. A. Hart, devoted his book The
Concept of Law to the challenge of showing how rules of law are different from:
1. commands such as those of a gunman who relieves you of your wallet;
2. moral rules that fall short of law; and
3. mere coincidences of behaviour that represent social habits or practices.
Legal positivists prefer the term ‘legal theory’ to describe what they do. Legal theory does
not stop with the range of questions posed by the positivists. It is possible to theorise
about many other aspects of the phenomenon of law, such as the law’s origins, its
emergent quality, its role as a factor of production, its psychological force, and so on 5.
These questions are not just interesting in themselves, but are critical for understanding
the phenomenon of law and its relation to justice. They are legitimate questions within
jurisprudence as the discipline is understood.
5 The range of questions about law and justice asked within legal theory is indefinite.
• What is law, and can it be defined?
• What are the historical origins of law?
• How do rules of behaviour emerge in a society even before they are recognised or enforced by
the state?
• Is there a basic set of rules that make social life possible?
• How does law shape society?
• How does society shape law?
• What qualities must law possess to be effective?
• How do judges decide hard cases?
• Whence comes their authority?
• Is there superhuman natural law?
• If so, how do we find its principles?
• Why do people obey some laws even when they face no sanction for disobedience?
• Is there a duty to obey an unjust law?
• Can we make moral (or economic) judgements about particular laws or legal systems?
• What do we mean by justice?
• Is there a special brand of legal justice?
• Are there universal standards of justice?
• What is natural justice and what are its minimum demands?
• What do we mean by social justice?
Legal theory is concerned with
1. law as it exists and functions in society;
2. the way in which law is created and enforced;
3. the influence of social opinion and law on each other;
4. the effectiveness of law; and
5. the part played by sanctions are all points where jurisprudence meets other disciplines
such as sociology, psychology
and so forth.
One task of jurisprudence is to link law with other disciplines and so help to understand
it within its wider social context. Thus, in analysing legal concepts, we must try to present
them against a background of social developments and changing economic and political
attitudes. When we do that we will come to know that principles which were earlier
accepted as self-evident and fundamental to any legal system arose from the social and
economic attitudes of the past. Those attitudes are no longer held at the present time.
This kind of inquiry into law is part of the wider problem of investigating the consistency
between a legal system and the way of life of the society in which it operates.
Legal theory cannot be studied without reference to the current legal system.
In legal theory such matters as the pros and cons of codification, the value of a strict
system of judicial precedent and the methods of judicial reasoning are considered. In
addition to this abstract inquiry jurisprudence looks in more concrete detail at the actual
workings of authority within a particular legal system.
Topics such as the canons of statutory interpretation, the rules about the hierarchy of
judicial precedents and the elucidation of the ratio decidendi of a case are also discussed.
Here to some extent the difference in method between jurisprudence and law becomes
negligible, for the aim of the inquiry is to discover the rules of law which can be applied to
concrete problems.
Analytical Jurisprudence
Analytical jurisprudence studies the nature of law (what makes something law and not
something else?) and the implications of law (what necessarily follows from the fact that
something is law?). Philosophers call these conceptual and metaphysical questions.
Descriptive Jurisprudence
Descriptive jurisprudence examines actual laws and legal systems and offers general
accounts of them. For example, a scholar might examine the Japanese law of inheritance
and try to determine what general values, ideas, and principles it reflects.
Normative Jurisprudence
Normative jurisprudence concerns what the content of the law ought to be, from the
perspective of a conscientious lawmaker. What makes a law good and just? Normative
jurisprudence evaluates existing laws and prescribes revisions.
Legal Concepts
Another branch of jurisprudence consists of the analysis of legal concepts. The law of
contract and tort is concerned with different rights which one person may have against
another. Jurisprudence, on the other hand, studies the meaning of the term “right” in the
abstract and seeks to distinguish the various kinds of rights which are in theory possible
under a legal system. Similarly it investigates such other legal concepts as “act”,
“intention”, “negligence”, “ownership”, and “possession.”
All of these are equally rigorously studied in the ordinary branches of law, but since each
of them functions in several different branches of law, jurisprudence tries to build up a
general and more comprehensive picture of each concept as a whole. Jurisprudence takes
a holistic approach towards these legal concepts.
Jurisprudence also examines such concepts against the background of ordinary language,
in order to see the relation between lay and legal usage and the extent to which legal
problems may be generated by language itself. In this respect the writer on jurisprudence
appears in the guise of a logician, elucidating legal notions unravelling confusions and
constructing syntheses of legal concepts. Fitzgerald opines that whether discussing the
nature of law or the working of authority or the analysis of legal concepts, jurisprudence
should not confine itself to logic.
VALUE (SIGNIFICANCE) OF JURISPRUDENCE
Most of the authors are of the opinion that in general, jurisprudence is a subject without
practical application. If the value of the ordinary legal subject lies in its practical use,
what possible value then can there be in an abstract, theoretical subject like
jurisprudence?
Different authors have found different values of jurisprudence. The following are the main
such values of jurisprudence:
1. Intrinsic Value
Jurisprudence has its own intrinsic interest: In this respect it resembles any other subject
of serious scholarship. For example, mathematicians investigate number theory, not with
the aim of seeing his endings put to practical use, but by reason of the fascination which
it holds for them. It challenges his intellectual capacity.
Similarly the writer on jurisprudence may well be attracted by his subject by nothing
more than its intrinsic interest. In other words, the principal reasons for studying
jurisprudence are intellectual. Its purpose is to achieve a clear understanding of laws. It is
not to improve one’s professional skills.
2. Sharpens Lawyer’s Skills
But Suri Ratnapala finds that the study of jurisprudence brings immediate rewards to the
lawyer. It hardly matters to a physicist or a chemist how anyone defines physics or
chemistry. The physicist and the chemist are not constrained in what they do by
definitions of their disciplines. They simply get on with being physicists or chemists. In
contrast, it is critically important to a legal practitioner to be recognised as doing law,
particularly by judges and clients. A practising lawyer is restricted, if not by a definition of
law, at least by the way law is understood by judges and other officials who enforce the
law. A good lawyer is one who knows when to argue strictly from statutes and precedents,
when to re-interpret laws or distinguish precedents and when to appeal to policy, justice
or the good sense of the judge. This is the stuff of jurisprudence. Make no mistake:
jurisprudence sharpens legal professional skills.
3. Educational Value
A lawyer’s function is basically reasoning and arguing. It may be true that one can learn
to engage in this practice by involvement and experience, without much intellectual
reflection. If so, then one will base his reasoning and arguments on assumptions and
understandings are not seriously tested. The taken-for-granted views of practical men and
women are sometimes the residue of traditional knowledge.
The logical analysis of legal concepts sharpens the lawyer’s own logical technique. In
addition, the study of jurisprudence can help combat the lawyer’s occupational vice of
formalism, which leads to excessive concentration on legal rules for their own sake, to
interest in legal form rather than in social realities, and to resulting disregard of the social
function of law. This is best remedied by setting the law in its proper context, by
considering the needs of society and by taking note of advances in related and relevant
disciplines. Thus, jurisprudence has an educational value.
When the legal order confronts new challenges in a period of dramatic change,
conventional assumptions may need to be identified, and their intellectual credentials
examined. At such a time, the reflective detachment of jurisprudence makes a most vital
contribution, as the most fundamental questions concerning law’s nature and role must
be addressed.
4. Multi-disciplinary Approach
Advantages to the Lawyer
A proper grasp of the law of contract may well need some understanding of economics and
economic theory. A proper grasp of criminal law needs some knowledge of criminology and
psychiatry. And a proper grasp of law in general needs some acquaintance with sociology.
Doctrine of precedent, has a natural tendency to force a lawyer turn to history, to look
backwards instead of forwards and to regard every question as a historical one.
Jurisprudence can teach the lawyer to look, if not forwards, at least sideways and around
him, and to realise that the answers to new legal problems most be found by
consideration of present social needs rather than in the distilled wisdom of the past.
Advantages to Other Social Scientists
There are rewards too for the social scientist and the philosopher. Law is part of the
structure of society, whether modern or primitive. Law shapes society and society is
shaped by law. Law has its influence on every human activity undertaken within society.
Imagine a person going to work at morning. He may go by his own vehicle or take the bus.
If he drives, the road rules will help him get to his office safely. If he takes the bus, the
contract he makes by buying a ticket will oblige the transport corporation to take him to
his destination. When he gets to his office his employment contract (or some law) will
determine his work and his salary. Imagine just about any activity and there is a law
applicable to it – sometimes helping, sometimes hindering. For the sociologist,

anthropologist, economist and just about any social scientist, it pays richly to consider
the nature of law and the legal system.
Law raises critical issues in moral philosophy. The question of why a person should
observe the laws of a society is a moral question. The statement ‘The law should be obeyed
because the law says so’ is not a proper answer. We must look outside the law to find the
duty to obey the law. Law is normative in the sense that it lays down rules of conduct –
what ought to be done and what ought not to be done. Basic laws of society, such as the
rules against harming person and property and the rule that promises must be
performed, are also moral rules.
However, some laws may offend the moral of sense of individuals. Enactments such as
those that authorise war crimes and genocide will shock the human conscience and draw
universal condemnation. Are they laws, and, if so, is there moral obligation to obey them?
5. Generalisation of Law
Fitzgerald, points out another practical value of jurisprudence. That value may, however,
be of a long-term character. He observes that in science and mathematics progress has
been largely due to increasing generalisation, which has
1. unified branches of study previously distinct,
2. simplified the task of both scientist and mathematician, and
3. enabled them to solve by one technique a whole variety of different problems.
In law also generality can mean improvement. The English law, relating to negligence for
example, has progressed from a host of individual rules about particular types of situation
to a general principle. One of the tasks of jurisprudence is to construct and elucidate
organising concepts to make the complexities of law more manageable and more rational.
In this way theory can help to improve practice.
PART I – LEGAL THEORY
2. PURPOSE OF LEGAL THEORY
NECESSITY OF DEFINING LAW
In jurisprudence we study two things: one, about law, and the other, about legal concepts.
Without knowing what is law, both these studies cannot be pursued.
The questions which a jurist answers in legal theory depend upon the premise that they
are pertaining to law. That also presupposes the definition of law.
Questions such as “Whether international law is law” and “Whether unjust law is law”
require some understanding about law to answer them. Because they have to be answered
with reference to the definition of law. These are questions of practical importance.
But can it be said that the advocated argue matters in Courts and judges decide actual
legal cases by reference to a definition of law?
In international courts what is inquired into is whether in the framework of international

law there is a rule as is claimed. Then the next matter inquired into is whether that rule is
applied by municipal courts. This depends upon the rules of conflict of laws of that State.
In case of unjust law, court may refuse to apply it not because it is not law, but because
its injustice runs counter to the fundamental policy of the State’s legal system. In simple
terms, because it is unconstitutional. The unjust law may be modified by recourse to
some principle of statutory interpretation such as harmonious interpretation.
But in none of these cases concept of law itself is not uses as touchstone of their legality.
LAW AS A CONCEPT
Certainly law is not a legal concept. In any subject we study many concepts underlying
that subject, but that subject itself is not a concept studied under it. In geometry, one
studies many geometrical concepts such as a ‘point’, ‘line’, ‘parallel’, ‘circle’ etc. But
‘geometry’ itself is not a concept in geometry.
The same thing is applicable to law. In law we study concepts such as ‘right’, ‘duty’,
‘person’, ‘property’, ‘consideration’, etc. But ‘law’ itself is not a legal concept.
16 2. Purpose of Legal Theory
But it may be treated as a concept in jurisprudence. Other legal concepts can be

discussed without reference to law. But the discussion is not complete without reference
to the concept of law.
DIFFICULTIES OF DEFINING LAW
The idea of law is itself a very complex one. Over that our reasoning, understanding and
language are inadequate to deal with the idea and to express it in a proper manner. Many
jurists have tried to answer this question. Each jurist has defined and described law in
his own way. That itself speaks about the difficulty of defining law.
3. SCHOOLS OF JURISPRUDENCE
The various schools of thought which have defined and described law may be classified as
1. Natural Law School, and
2. Positivist Law Schools
According to the natural law school law is made by God or nature. It pre-exists in nature.
It is to be discovered and followed by humans. On the other hand, the positivists claim
that law consists of the rules established by political superiors in the State. They call it
the positive law, or law existing by position. According to one of the main proponents of
the positive law theories, John Austin, calls it ‘positive morality’. Thus, according to
positivists, laws are made by humans.
The major schools of positivism are
1. Analytical School of Law
2. Realist School Law
According to analysts law is the command of the sovereign. According to realists law is the
practice of the Court.
THEORIES OF LAW
Natural Law Theory Positivists Theories
Analytical Theory Realist Theory
In addition the following schools of law are also noteworthy:
1. Sociological School of Law, and
2. Historical School of Law.
Sociological schools tries to understand law from sociological point of view, whereas
historical school tries to understand law from historical point of view.
18 3. Schools of Jurisprudence
NATURAL LAW SCHOOL – LAW AS DICTATE OF REASON
The idea of a higher moral law that positive human law must not violate has a long and
continuous history in both Western and Eastern thinking.
It is found in Greek philosophy at least from the time of Heraclitus of Ephesus (c. 535–475
BC). In Vedic (Hindu) philosophy the moral law of governance is revealed in the
Dharmashastra. In traditional Sinic culture, Confucian philosophy subordinated law to
ethics. The religious Sharia is a powerful influence on the law of Islamic nations. It has a
central place in Judeo-Christian doctrine as set out in the writings of Augustine, Thomas
Aquinas and the Scholastics. It lived in the natural rights discourses of Grotius, Hobbes,
Locke, Pufendorf and others. In our age, basic human rights are posited as universal
higher norms binding on nation states.
From the time of the ancient Greeks up until the sixteenth or seventeenth centuries, there
really was only one kind of ‘legal theory’ – natural law.
‘Natural law’ is the idea that there are rational objective limits to the power of law making.
The foundations of law are accessible through human reason. Laws made by humans gain
their force from these laws of nature.
According to the ‘Natural Law’ theory, Law is preordained. There are laws that are found
in nature. It comes from superhuman or divine entities, and is discoverable by reason.
‘Natural Law’ is a higher law and is the touchstone of validity of all laws and constitutes
an objective moral order.
Laws made by humans must conform to this objective moral order. Laws made by
humans must have minimum moral content. They must be logical, rational, fair and
reasonable. Unjust law is not law as it is contrary to natural law. Therefore, according to
natural lawyers, unjust law is not binding.
The essence of this legal theory was that the law must be understood as a practical
application of morality. Hence, law and morality are intimately connected. These moral
principles are not subjective. They are objective principles. Therefore, they can be
discovered by natural reason. They are truths about human nature. Therefore, they are
necessarily valid laws.
Accordingly, much of natural law theory sought to show how legal authorities such as
Kings, States, etc., could lay down laws which reflected the true dictates of morality, and
were, therefore, just.
Natural Law School – Law as Dictate of Reason 19
Natural law is so called because it is believed to exist independently of human will. It is

‘natural’ in the sense that it is not humanly created. Natural law theories are theories
about the relation between the moral natural law and positive human law. Natural law
theories vary in aims and content but they share one central idea: that there is a kind of
higher (non-human) ‘law’, based on morality, against which the moral or legal validity of
human law can be measured.
Originally, ‘natural law’ was a general moral theory which explained the nature of
morality, not the nature of law per se. The basic idea was that man, using his reason, and
possibly with the help of the revelation of the Gods or God, could come to understand how
he should act rightly in respect of his fellow man.
This morality of reason and revelation was a morality which purported to take account of
man’s nature, hence the title ‘natural’. And because this combination of revelation and
reason laid down rules for behaviour, the word ‘law’ seemed appropriate, hence ‘natural
law’. Natural law, then, is principally a theory of morality in general, not a theory of law.
But part of the project of acting rightly, of course, was the project of rulers who laid down
law for their subjects. Therefore, the claims of natural law morality applied just as much
to them as to individuals generally. Thus, a part of natural law explained what it was to
rule and legislate and judge cases rightly.
Nowadays, ‘natural law’ is generally taken to mean only that part of the original moral
theory which explains the way that the law, narrowly construed, operates as part of the
broader moral life of human beings. That narrowing of focus is because of the way in
which the nature of morality as explained by natural law theory was drawn upon to justify
existing legal authorities.
However, the most important living natural lawyer, John Finnis, emphasises that the
philosophy of law is continuous with general moral or ethical philosophy.
Radbruch in Five Minutes of Legal Philosophy observed “There are principles of law that
are stronger than any statute, so that a law conflicting with these principles is devoid of
validity. One calls these principles the natural law or the law of reason … the work of
centuries has established a solid core of them.”
ESSENTIAL PRINCIPLES OF NATURAL LAW
It is possible to recognise the following principles among a variety of typical theories of

natural law:
• There are absolute values, and ideals emerging from those values, which can be used as
touchstones in a test of the validity of laws.
• There exists in nature an order which is rational and which can be known by man by
application of reason, so that the norms of human conduct may be considered as a ‘law
of nature’.
• Nature, if observed and understood correctly, will provide criteria allowing us to become
aware of universal, eternal and comprehensible values from which we may derive
appropriate value-statements.
• That which is good is in accordance with nature; that which is evil is contrary to nature.
• A law which lacks moral validity is wrong and unjust. Natural law invalidates certain
manifestations of the positive law and provides an ideal which the positive law should
strive to achieve.
MERITS OF NATURAL LAW THEORY
Natural law theory, in its various forms, represents the moral dimension of the law. The
natural law tradition draws its power from three sources.
1. One is the need to constrain the abuse of the legislative powers by rulers. Unrestrained
power leads inevitably to corruption and abuse. Power corrupts and absolute power
corrupts absolutely. The notion of higher norms which must not be transgressed by
rulers has appeal in every age.
2. A second source of strength is the universal human instinct for self-preservation. No

rational person wishes to be deprived of their life, liberty and possessions. Hence, the
idea of natural rights makes a compelling case for limiting the powers of rules.
3. A third force is the universal aspiration to align the law with a community’s moral
notions, whether they are religious, utilitarian or rationalistic.
Thus natural law served in the following ways:
1. As a Touchstone to Test Laws
Often we need an objective standard to know whether a law is ideal one. This standard
has to be in a higher law than the positive law. Natural law is that higher law which
provides the aspired standard. It is the benchmark to see whether positive law is ideal.
2. As a Defence against Ethical Relativism
‘Ethical relativism’ is the theory that held that morality is relative to the norms of the
culture. Whether an action is right or wrong depends upon the moral norms (standards) of
the society in which it is practised. The same action may be morally right in one society
while it may be morally wrong in another society. Thus, ethical relativists attacked the
very basis of obligatory nature of law.
Natural law showed that though some laws differ from State to State, some laws were
common to all. The very fact that some are laws common to all States shows that it is but
natural to have such laws.
3. As a Relation between True Law and Human Reasoning
Stoic philosophers thought that the distinctive feature of man’s nature is his ability of
reasoning, and that this meant that he should live according to the dictates of reason.
Stoics equated true law with right reasoning.
4. As a Moderation of Religious Cleavages
Natural law moderated religious differences by finding out common moral ground of truth.
Natural law did not depend on any God, but on human reasoning. This enabled the non-
Christians to arrive at the same principles as Christians.
5. As a Basis of Fundamental Human Rights
Natural law shifted the emphasis from the medievalist standpoint of man’s functions and
duties to natural rights of man. Natural law became the basis of fundamental human
rights.
CRITICISM OF THE NATURAL LAW THEORY
The idea of natural law is not without its dangers. As the utilitarian positivists
demonstrated, the failure to separate the positive law from moral law can defeat the
values of clarity, certainty and predictability of rules that are themselves morally worthy
attributes of law.
The following are the main criticisms faced by the natural law theory.
1. ‘Ought’ May Not Always Be Same As ‘Is’
Often there is a difference between ‘is’ and ‘ought’. It is the difference between ‘facts’ and
‘ideals’. ‘Is’ refers to facts while ‘ought’ refers to ideals. Bentham observed that moral laws
and legal laws cannot be confused with laws of nature.
Scientific principles are descriptive. They describe laws of nature. They describe what
generally occurs. For example, law of gravity describes the effect of gravity and explains
why things fall down. Law of gravity does not tell that things should fall down.
Moral and legal laws are prescriptive. They prescribe how one should behave. They do not
describe how one behaves.
To say that it is natural for men to have children shows merely the tendency, but it does
not show an obligatory moral duty that men must have children.
However, this criticism overlooks the fact that scientific rules which are descriptive, also
suggest that things are ordained to behave in a particular way. Thus nature ordains that
things are bound to fall.
2. ‘Proper Function’ Principle Is Not Suitable to Man
The argument of natural lawyers that everything has its proper function may be suitable
in case of things like a clock. But it is not a suitable proposition for a man. Function of a
clock is to show correct time. Therefore, a clock which shows the correct time is a good
clock. A clock is created by its maker for a definitive purpose.
But the same thing cannot be said about a man. To say that God has created man with
certain object may cause further arguments such as the existence of God himself.
3. Some Factual Statements Are Bereft of Moral Propositions
The term ‘function’ is also used without reference to the maker. In that sense, the term
implies the work done by an entity. For example, the function of heart is to pump blood. It
merely means that heart pumps blood. Similarly when we say that man’s function is to
reproduce could mean merely that the human species is in fact self-reproducing.
Statements such as man’s function is to reproduce children are statements of facts. They
do not show any obligatoriness. They are devoid of the basal conception of ‘ought’.
4. In Morals Logical Validity May Not Be of Universal Acceptance
Some moral principles are of universal acceptance. For example, killing another person is
wrong may be universally accepted moral principle. However, even such principles are
subject to context. A soldier has to kill the enemy who attacks his territory. Not killing the
enemy is wrong in that case. So also it is the duty of an executioner to kill the convict who
is given death sentence. Not killing the convict as per the order of the Court is a wrong in
his case.
Slavery was accepted under certain societies such as Greek and Roman, but not accepted
under others. Attitudes towards colour, caste, religion etc. vary from community to
community.
This cannot be justified by saying that natural law is of varying content. Such statement
will itself show that law is not natural, and the very concept of natural law will be
undermined.
5. Moral Rules Are Not Amenable to Changes, Legal Rules Are
The term ‘law’ attached to ‘natural’ gives additional prestige to natural law. But insisting
that moral rules become law is too much. Legal rules may be amended. They may even be
repealed. Moral rules cannot be amended or repealed.
6. Legal Disputes Can Be Settled by Courts, Moral Disputes Cannot Be
Law is objective. Therefore, legal disputes can be settled by Courts in a way acceptable to
everyone. Morality is subjective. Courts cannot settle disputes by applying moral rules.
Decisions based upon moral rules may not be acceptable to every one.
7. Existence of Law and Merits of Law Are Two Separate Questions
Existence of law is one thing, merits of that law is another thing. These two ideas are
independent of each other. Just because a law conflicts with morality it cannot be said
that it is no law.
The claim of natural lawyers that unjust law is no law (lex injusta est non lex) is not
acceptable. Once a rule becomes part of the law of the land, it has to be followed by
everyone. One may, if possible, challenge it as unconstitutional and only when it is set
aside by the Court, the obligation to follow it ceases.
8. Claim of Natural Lawyers Make Us Forget Other Grounds of Criticism
Natural law terminology tends to obscure the possibility of criticising law on other than
purely moral grounds. Law must be evaluated by reference to its efficacy, general
convenience, simplicity and many other factors, as well as by reference to the demands of
justice and morality.
IMPERATIVE LAW SCHOOL – LAW AS COMMAND OF SOVEREIGN
The imperative theory of law seeks to distinguish law from its formal criteria and not by
its contents.
Austin’s theory is that laws (‘properly so called’) are commands of a sovereign backed by
sanctions. Laws exist in a relationship of political superiority and political inferiority. He
clarifies the concept of positive law (i.e., man-made law) by analysing the constituent
concepts of his definition, and by distinguishing law from other concepts that are similar.
1. COMMAND
● Commands involve
1. an expressed wish that something be done, and
2. ‘an evil’ (sanction) to be imposed if that wish is not complied with.
● Rules are general commands applying generally to a class, as contrasted with specific
or individual commands.
Imperative Law School – Law as Command of Sovereign 25
Positive law consisted of those commands
1. laid down by a sovereign directly, or indirectly through his agents,
2. which are of a general nature,
3. to a person or persons in a state of subjection to him.
2. SOVEREIGN
The ‘sovereign’ was defined as a person (or collection of persons) who receives habitual
obedience from the bulk of the population, but who does not habitually obey any other
person or institution. Austin thought that all independent political societies, by their
nature, have a sovereign.
Law is a law only if it is effective. The effectiveness of law depends upon the general
obedience to it. Perfect obedience is neither feasible nor necessary. Violations are bound
to be there. Just because some people violate the rules, they do not cease to be laws. The
reasons for disobedience to law is not a matter of law or jurisprudence. It is a matter of
psychology, sociology, criminology etc. Law may be obeyed out of respect, fear, wisdom,
habit, necessity, etc. What is important is that law is obeyed by the majority.
Hierarchy of Legislators
A subordinate legislator may be over-ruled by a superior legislator. Where there are

several authorities having the power to make laws, there is normally a hierarchy among
the laws made by them. This hierarchy may be different from the hierarchy among the
authorities themselves.
In India,
1. Statutes are made by the Parliament and state legislatures.
2. Executive (Government) or Judiciary (Courts) may make Rules under the rule-making
powers delegated to them by the legislatures.
3. The higher judiciary (Supreme Court and High Courts) lay down precedents.
If there is a conflict between statute and rules, statute prevails. If there is a conflict
between precedents and statute or rules (normally subsequent) such statute or rules, as
the case may be prevails.
Such a system is absolutely necessary. Otherwise, a conflict between laws made by two
authorities, will cause confusion and problems of implementation and enforcement.
Therefore, if the Constitution places restrictions and limits on the law-making powers of
an authority it cannot be treated as a paradox to the analytical law theory. There is
neither legal nor logical necessity that the law-making power of the sovereign should be
unlimited.
3. SANCTIONS
The necessity for law to be command of superior to subject necessarily indicates the
existence of sanction behind it. Sanction is some evil or undesired consequence which
follows the disobedience of law.
Analytical school requires that people should obey the law whether they like it or not.
They cannot obey and disobey laws at their pleasure and convenience. This obedience is
enforced through sanctions.
Usually sanctions are prescribed in the form of punishments. But punishments are not
the only type of sanctions.
In law of torts and law of contracts, where a person violates the rights of another person,
he has to compensate the aggrieved person for the loss suffered by that aggrieved person
on account of the wrongful act of the wrong-doer.
Similarly under many laws mandatory formalities are prescribed for the transactions
under them. If these formalities are not fulfilled law will not recognise those transactions.
EXCLUSIONS FROM POSITIVE LAW
Positive law should be contrasted with ‘laws by a close analogy’ (which includes positive
morality, laws of honour, international law, customary law, and constitutional law) and
‘laws by remote analogy’ (e.g., the laws of physics).
Austin also wanted to include within ‘the province of jurisprudence’ certain ‘exceptions’ –
items which did not fit his criteria but should nonetheless be studied with other ‘laws
properly so called’: repealing laws, declarative laws, and ‘imperfect laws’ (laws prescribing
action but without sanctions, a concept Austin ascribes to ‘Roman [law] jurists’).
In the criteria set out above, Austin succeeded in delimiting law and legal rules from
religion, morality, convention and custom. However, also excluded from ‘the province of
jurisprudence’ were customary law (except to the extent that the sovereign had, directly or
indirectly, adopted such customs as law), public international law and parts of
constitutional law.
Within Austin’s approach, whether something is or is not ‘law’ depends on which people
have done what: the question turns on an empirical investigation, and it is a matter
mostly of power, not of morality. Of course, Austin is not arguing that law should not be
moral, nor is he implying that it rarely is. Austin is not playing the nihilist (non-religious
person) or the sceptic (doubter). He is merely pointing out that there is much that is law
that is not moral, and what makes something law does nothing to guarantee its moral
value.
While Bentham was an opponent of judicial lawmaking, Austin had no objection to it,
describing it as ‘highly beneficial and even absolutely necessary’. Austin simply
incorporated judicial lawmaking into his command theory by characterising that form of
lawmaking, along with the occasional legal (judicial) recognition of customs by judges, as
the ‘tacit commands’ of the sovereign, with the sovereign’s affirming the ‘orders’ by its
acquiescence.
MERITS OF IMPERATIVE LAW THEORY
Imperative law theory consists of a lot of truth. Its approach is more practical compared to
the approach of natural law theory.
Imperative law theory gives more objectiveness to law than natural law theory which is
largely subjective in nature. What is moral and what is just depends up on each persons
perception that the rule itself. But what is law is objective. Law does not depend upon any
person’s personal view.
In the contemporary world, laws are made by the authorities and their violations are
punished under law is a well-known fact. Therefore, in respect of such laws analytical law
theory is the most appropriate theory.
CRITICISMS OF IMPERATIVE LAW THEORY
1. Lack of Moral Requirement
Natural lawyers attack the positivist stand that it lacks moral and ethical standard for
law. Positivist theory of law does not conform to the natural needs of man. Mere positive
law can rarely be equated with good law.
2. Not Easy to Identify ‘Sovereign’ in All Societies
It is often claimed that in many societies, it is hard to identify a ‘sovereign’ in Austin’s

sense of the word. When discussing about States like Mexico Austin dismissed the
difficulty by saying it was a matter of factual analysis. But it may be noted that he had to
describe the British ‘sovereign’ rather awkwardly as the combination of the King, the
House of Lords, and all the electors of the House of Commons. In other places Austin
talked even more loosely about using ‘sovereign powers’. Putting the focus on a ‘sovereign’
as the source of law makes it difficult to explain the continuity of legal systems. A new
ruler will not come in with the kind of ‘habit of obedience’ that Austin sets as a criterion
for a system’s rule-maker.
However, one could argue that the sovereign is best understood as a constructive
metaphor: that law should be viewed as if it reflected the view of a single will. Ronald
Dworkin also expressed a similar view, that law should be interpreted as if it derived from
a single will.
3. Sovereignty Consists Not in Having Powers But in Having Authority
As sovereignty does not mean mere power but authority, political sovereign may be
different from legal sovereign. The political sovereign has the ultimate authority to make
laws, while the legal sovereign has the power to enforce them. Often legislatures make
statutes not at the desire of the sovereign, but at the desire of the electorate, trade unions
and other pressure groups.
4. All Laws are Not Necessarily Made by Sovereigns
The analytical law theory that law is the command of sovereign is not of universal
application. There are laws and rules which have legal force though they are not made by
any sovereign.
(a) Customs, International Law, Constitutional Law
Rules of customary law (i.e., customs having the force of law), International Law and the
Constitutional Law of England which are habitually obeyed by the people and enforced by
the Courts of law are not made by sovereigns.
Customary law has origin in habitual behaviour. It attracts obedience by habit. The origin
of International Law lies in State practices and agreements. The Constitutional law of
England is based on conventions.
(b) English Common Law
English common law is the result of decisions of the English Courts. Even in India major
part of the law is made of precedents laid down by the Supreme Court and High Courts.
Austinians may argue that in England judges are appointed by State and may be removed
by the Parliamentary procedure. But the law-making power of the judges are co-extensive
with the power of Parliament to make laws. It is not based or derived from any law.
It may be remembered that the precedents of the Supreme Court are laws by virtue of
Art. 141 of the Constitution and the precedents of High Court are binding up on the
subordinate Courts by virtue of the law laid down by the Supreme Court under Art. 141.
In India, and other States where there is a written Constitution, Courts may declare
statutes made by Parliament or legislatures as null and void.
5. In Modern Law-making Process an Intermediate Body of Persons is Sovereign
In modern legal system the law-making procedure is so complex that sovereign really
becomes an intermediate body of persons. In federal States the identification becomes
even more difficult.
6. Laws Continue to Exist Even After the Extinction of Law-giver
Normally laws do not change with the change in sovereignty or authority. This may be
taken as adoptions of the laws made by earlier sovereign by the new sovereign.
Thus, by not repealing or changing the laws made by the earlier sovereign, the new
sovereign commands the subjects to follow the laws made by the earlier sovereign. But
Salmond does not accept that implied command is a command at all.
But, in India the laws made by the British before independence of India were expressly
adopted by the independent India. Art. 372 of the Constitution does the same.
7. ‘Command’ Model is Not Suitable in All Cases
(a) Power-Conferring Rules
It is also a common criticism that a ‘command’ model seems to fit some aspects of law
poorly. For example, rules which grant powers to officials and to private individuals. Rules
for making wills, trusts and contracts are examples of the rules which grant powers to
private individuals. At the same time, the ‘command’ model excludes other matters such
as international law and parts of constitutional law, which we are not inclined to exclude
from the category ‘law’.
(b) Procedural Laws
Some laws merely lay down the procedures to carry out a transaction. Some of these
procedures may be mandatory, and may be commands of the law-making authority that
the transaction cannot be done in any other manner. Where the prescribed procedure is
not followed the transaction may be null and void.
But there are many procedures which are not mandatory. Registration of wills is not
mandatory. Therefore, procedure for registration of wills is not in the form of a command.
8. Laws Which Appoint Sovereign Are Not Made by Sovereign
Every State has some basic rules which define sovereignty. These rules are not made by
any sovereign. In England rules of succession to the British throne indicate who shall be
the sovereign even before he gets power to make laws. In India Constitution creates the
legislature. It cannot be said that it is command of any sovereign.
9. Bringing All Law in One Type is a Fallacy of Imperative Theory
More generally, it seems more distorting than enlightening to reduce all law to one type.
For example, rules that empower people to make wills and contracts perhaps can be re-
characterised as part of a long chain of reasoning for eventually imposing a sanction on

those who fail to comply with the relevant provisions. However, such a re-characterisation
as this misses the basic purpose of those sorts of laws – they are arguably about granting
power and autonomy, not punishing wrongdoing.
10. Fails to Distinguish Between Laws of Terror and Forms of Governance
A powerful criticism is that a theory which portrays law solely in terms of power fails to
distinguish rules of terror from forms of governance sufficiently just that they are
accepted as legitimate by their own citizens.
Austin laid out the structure for modern legal positivism and when Hart revived legal
positivism in the middle of the twentieth century. He did it by criticising and building on
Austin’s theory. In some respects he followed the legal pluralism obvious from Austin’s
first lecture: for example, Hart’s theory did not try to reduce all laws to one kind of rule,
but emphasised the varying types and functions of legal rules.
A CONTEMPORARY VIEW
Austin’s work was highly fashionable in the late nineteenth century and for part of the
twentieth. Then came a period of deprecation. Today he is reassessed. Put in his historical
context, Austin can be seen as all too trusting of centralised power and his writing as a
strange mixture of analyticism and realism.
Certainly Austin kept the political nature of law and the connection of law and power at
the centre of his analysis. When circumstances seem to warrant a more critical, sceptical
or cynical approach to law and government, Austin’s equation of law and force will be
attractive, as with Yntema, who simply stated in 1928: ‘The ideal of a government of law
and not of men is a dream.’ Such a reading may today be from Austin’s own mixture of
liberal and conservative utilitarian views at the time of his writing, and his even more
conservative political views later in his life.
In our contemporary times, as we see the failed states of Iraq and various other nations,
the message of Hobbes that security comes before all else is treated as a common-place.
Whether law could be used as a rational instrument of government is another matter.
LEGAL REALISM – LAW AS PRACTICE OF COURTS
Legal realism is the other school of positivism. They also believe that laws are not made
nature or any other superior force. They believe that laws are made by humans who have
the authority of the State. But for realists this authority is Court, while for imperative
theorists it is the Parliament or legislature. Realists do not differ from or dispute the claim
of imperative theorists that law is the command of the sovereign. But they claim that that
sovereign is Court and not Parliament.
Salmond, in the 7th edition of his book Jurisprudence defined law as the body of principles
recognised by State in administration of justice. Thus, law consists of rules recognised
and acted upon by the Courts of law.
COURT
‘Court’ is an institution established by the State for resolution of disputes. If this is the
definition of ‘Court’, does it include tribunals? In modern States administrative authorities
decide many disputes, sitting as quasi judicial bodies. Legislatures are empowered to take
action in cases of breach of their own privileges. Can these bodies be called ‘Courts’?
These cases are marginal cases. They form a very small minority of cases answering the
definition of ‘Court’. Every word has a core meaning and a peripheral meaning. Cases
falling on the periphery do not affect the core meaning of the term. Therefore, we may
conveniently exclude quasi judicial bodies and legislatures from the definition of ‘Court’.
Further, quasi judicial bodies are actually administrative bodies which are not established
by State for resolving disputes. They are established for administration of the State. Some
disputes are resolved by them as part of administration. This also keeps them outside the
definition of ‘Court’.
Similarly, legislatures are established for making laws. They are not established for
resolving disputes. Therefore, just because they resolve the cases of breach of privileges of
Houses, they cannot be termed Courts.
The main function of Courts is to resolve disputes, while it is not the main function of
executive and legislature to resolve disputes.
Legal Realism – Law as Practice of Courts 33
LAW
The definition of ‘law’ by realists is squarely applicable to the case law, but is it applicable
to the statutory law?
A statute becomes law as soon as it is enacted. It does not await a case to go to Court and
then receive the judicial recognition. Courts recognise statutes as laws because they are
laws, not vice versa. Statutes are not laws because they are recognised by Courts as such.
Salmond replies that as long as there is harmony between Courts and legislatures, it does
not make any difference whether a statute is applied by Courts because it is law, or it is
law because the Courts recognise and apply it.
But the problem arises when Courts declare a statute as unconstitutional and void, and
strike it down. There arises the disharmony between Courts and legislature. In this case
one cannot answer with confidence whether such statute can be called ‘law’.
Salmond again observes that it is also marginal case, and does not affect the definition of
law as provided by realists.
TWO BRANCHES OF REALIST SCHOOL
There are two main branches of realist school. American Realism and Scandinavian
Realism.
The U.S. legal realism movement commenced in 1881 when the Oliver Wendell Holmes Jr.
expressed that
“The life of the law has not been logic; it has been experience… The law embodies the
story of a nation’s development through many centuries, and it cannot be dealt with as
if it contained only the axioms and corollaries of a book of mathematics.”
Thus, the American realists claim that the law in real life is very different from the law
stated in the law books. The real law, they say, depends on how appellate courts interpret
written words and how trial courts determine the facts in particular cases. There is
uncertainty at both ends.
Scandinavian realism is a movement that started with Axel Hägerström’s attempt to find a
scientific theory of law that did not involve metaphysical explanations.
Hägerström and those who followed him down this path found that the force of law could
not be explained by physical facts alone. They claim that, however hard you try, it is not
possible to find a corporeal thing that corresponds to concepts such as property, right or
duty.
Law, according to the Scandinavian realists, exists by the psychological effects caused by
certain facts. Whereas American realism is mainly about getting the facts right about law
making, Scandinavian realism concentrates on the psychological pressures that make
people observe the law.
HOLMES’ VERSION
Justice Holmes next introduced his most important and influential argument, the ‘bad-
man’ theory of law6. He viewed the concept of law from the point of view of a bad man.
When a bad man wants to achieve his selfish interest, he does not care for what the law
made by the legislature says. What he cares is what the Court will do if he is caught and
prosecuted.
Laws made by the legislature are in general terms. They are applicable to general facts.
Courts have to deal with particular facts. The function of a judge is to see whether or not
the particular fact to which he has to apply a law falls within the general terms of that
law. If it falls, that law is applicable to it, otherwise not.
Holmes pointed out that language has several defects. Often communication becomes
uncertain because of these defects. Law is a communication. Therefore, quite often law is
uncertain. The Court has to clarify law. How the Court will clarify law cannot always be
predicted. The way a judge will perceive a law depends upon several factors including his
background. His upbringing, his background, his temperament, etc. are the other factors
which decide the way a judge decides.
On this basis, Holmes came to the conclusion that
“The prophecies of what the Courts will do in fact and nothing more pretentious are what is
mean by law.”
6 "[I]f we take the view of our friend the bad man we shall find that he does not care two straws"
about either the morality or the logic of the law. For the bad man, "legal duty" signifies only "a
prophecy that if he does certain things he will be subjected to disagreeable consequences by way
of imprisonment or compulsory payment". – Oliver Wendell Holmes Jr., "The Path of the Law", 10
Harvard Law Review 457 (1897).
Legal Realism – Law as Practice of Courts 35
MERITS OF REALISM
There is some truth in the arguments of the realists. The letter of law is not always the
same as the spirit of law in its application. Blackstone firmly believed that the function of
a judge is merely cognitive one. But realists argued and demonstrated that more often
than none, the function of a judge involves creativity.
As once observed by the great judge Benjamin Nathan Cardazo, if the function of a judge
is merely finding law and applying to the facts of the case, librarians and not lawyers who
are better suited to be judges. On another occasion he also pointed out that he had not
become judge not only to follow precedents, but also to lay down precedents.
Indeed, judicial function not only involves mere settlement of disputes before them, but
also involves complex problems of judgements on the questions of policy.
CRITICISM OF REALISM
Like other theories of law, realism is also subject to several criticisms. The main criticisms
faced by the theory are as under:
1. Realism Encroaches Upon the Legal Certainty
Theoretically one may imagine a State where Courts are free to decide cases as they feel
proper. The decisions of the Courts will be the laws of that State. In such a State there will
not be any legal certainty, because till the Courts decide a case and lay down a precedent,
no one will know what the law will be. Law, as a result, will become unpredictable. Judge-
made laws are ex post facto laws and suffer from the vice of retroactivity. They do not
afford the opportunity for the people to adjust their conduct to the laws of the land.
But in reality it is not so. Legislatures, in advance, declare the law. Any uncertainty of law
in such cases may arise from the interpretation of laws. Such uncertainty is only marginal
and occasional.
2. Statutory Law Is Law As Soon As it Is Made
A law made by the legislature becomes law as soon as it is made. It does not need judicial
recognition to become law. A statutory law is recognised by the Courts because it is law. It
is not law because it is recognised by the Courts.
3. Only a Fraction of Decisions of Courts Create New Laws
Functions of judges is cognitive as well as creative. It is long settled that Blackstonean

doctrine that judges only declare law and that they do not create law is far from truth.
Judges do make laws.
Law as a system would be undermined if the Courts, because of an apparent absence of

relevant statutory law, are unable to give a decision based on statutory law 7. Such a
situation is avoided by Courts by the deducing of relevant rules from already existing
rules, or from basic legal principles, such as justice and equity.
Thus, the Courts have to plug the gaps in the statutory laws and decide cases. In that
process they do make laws. But such cases are not frequent and abundant. In a great
majority of cases Courts apply the statutory laws and decide cases.
4. Uncertainty in Language Does Not Affect Majority of Cases
Similarly, though language has many defects which make it uncertain, often any such
uncertainty is cleared by the context in which that language is used. Only in a very few
cases the uncertainty will have to be resolved by the Courts. Only in such cases there is a
scope for judicial law-making. In a great majority of cases such an occasion for judicial
law-making does not arise. The statutory will have to applied as it is.
5. Lay Person Seldom Base Their Activities on Judicial Practice
Very often people base their activities on what they understand law to be. They do not
take any legal advice or predict the judicial practice.
They apply their common sense and practice of others who are engaged in similar
activities.
While doing more serious activities people may consult lawyers and seek their advice and
opinion. These advices and opinions are based not only judicial practices but also on laws
made by legislatures – both superior and subordinate. In many cases, the trade practices
and customs having the force of law.
Where a provision in a statute has more than one meaning, the Courts themselves may
look at the long-standing practice of the people to select the right meaning.
7 Such a situation is referred to as non liquet.
Hart’s Theory of Law – Law as System of Rules 37
HART’S THEORY OF LAW – LAW AS SYSTEM OF RULES
Legal positivism as propounded by Bentham and Austin was subject to severe criticisms.
Until Hart8 arrived, legal positivism’s critics were mostly those outside that tradition. Hart
sought to rescue legal positivism from the factual and conceptual traps into which
Bentham and Austin had led it.
Like Bentham and Austin, Hart was a utilitarian in philosophical outlook, and like them
he saw public benefit in separating law from rules of other kinds. But unlike Austin and
Bentham, he realised that this cannot be done by identifying law exclusively with the
commands of a sovereign. To do so is seriously to misunderstand the nature of law and
the legal system. The command theory does not account for all the different kinds of rules
that we justifiably call law.
The first part of Hart’s book is a sustained criticism of the command theory. The
command theory is premised on the existence of a sovereign commander whose power is
unlimited and cannot be legally limited. Hart argued, correctly, that in many legal
systems, including that of Britain, there is no such sovereign. The British sovereign is a
creation of law, including the rules of royal succession. It is practically unreasonable to
say that these rules are rules of morality but not law.
The idea of law as a command that people obey because of the threat of sanction misses
an important quality of law – the reflective acceptance of the law as binding by the people
to whom it is directed. A person may compel another to obey a command by threatening
evil, as when a robber demands my wallet by threatening to shoot me. But the robber is
not making law but violating the law.
Bentham and Austin would have agreed that the robber’s command is not law because
the robber is not the sovereign. Hart’s answer is that a sovereign is no different from a
robber if people obey their commands solely due to fear of sanction. It is misleading to
understand law in this way.
SOFT POSITIVISM
Hart called his theory a version of soft positivism. It is ‘soft’ in two ways.
8 Herbert Lionel Adolphus (HLA) Hart (1907–92) was Professor of Jurisprudence at the University
of Oxford from 1952 to 1969. His work, particularly The Concept of Law, dominated British
jurisprudence in the final decades of the 20th century.
1. It accepts that law may exist in society as a matter of practice and observance, even if
it is not officially declared to be law. This is the practice thesis.
2. It accepts that the legal system may permit a court to apply a moral standard in
resolving a case before it. This does not mean that morality trumps law, but only that
the rules of recognition in the legal system allow the court discretion to take morality
into account in identifying the law or in creating new law.
CHARACTERISTICS OF LEGAL RULES
Rules and Obligations
To properly understand Hart’s positivism it is necessary to appreciate the nature of

obligation. Sometimes we feel obliged to do or not do something. For example, when the
robber threatens to shoot us if we don’t hand over the money. But it is very odd to say
that we have an obligation in that situation.
Hart argued that the concept of law as sovereign command backed by a threat overlooks
the element of obligation that characterises law. We know that in some societies people
are terrorised into obeying the commands of rulers. This is the robber situation writ large.
In normal society there are a vast number of rules that people observe, not because they
fear punishment but because they think that it is right to do so. These rules are used by
individuals to justify their actions, to make claims of right and to criticise the conduct of
others.
People depend up on these rules to be observed in their day to day affairs. This is an
important insight. If most people do not voluntarily observe the law most of the time, there
is something seriously wrong in that society. Perhaps there is no society at all, because
society is founded on shared rules of behaviour.
This lack of observance is not the case in normal society. There are many laws that
individuals do not like, but in viable societies most people will agree that the rules made
according to certain accepted processes ought to be obeyed. Hence, a theory that identifies
law solely with sovereign commands is flawed from the start.
The idea of a rule implies an obligation, but not all rules are thought to be obligatory.
Rules of social etiquette and rules of grammar are rules. They are not just convergent
habits but expected ways of doing things in a given society. But there may not be a sense
of obligation attached to them.
The sense of obligation arises from social pressure. The point at which a rule becomes a
rule of obligation is uncertain. But the fact that it happens is not uncertain.
There are degrees of social pressure. Where the pressure is generated by common hostility
that produces feelings of guilt or shame but stops short of physical sanctions, we find
moral rules imposing moral obligations.
When the pressure takes the form of physical sanctions there is a primitive or
rudimentary kind of law imposing legal obligations. The sanctions may be socially
implemented even in the absence of a government. Ostracising, excommunication,
stigmatising and other forms of punishment existed in societies long before any kind of
government was established.
Obligation rules arise out of the common belief that they are necessary to maintain social
life or a prized feature of it. They generally take the form of negative injunctions that limit
the freedom of individuals for the common good: for example, thou shall not kill; thou
shall not steal; thou shall not dishonour thy promises.
External and Internal Aspects of a Legal Rule
Hart argued that the appreciation of the sense of obligation allows us to perceive the
internal aspects of a legal rule in addition to its external manifestation.
Hart claimed that the command theorists had lost sight of the internal aspect. The
external aspect of a rule is its objective existence. The internal aspect of a rule reveals the
sense of obligation to observe the rule.
An Indian may say: ‘It is the law in the Kingdom of Saudi Arabia that persons must not
consume alcohol’. He makes a statement of observed fact and thereby capture the
external aspect of the rule. However, he does not engage with the internal aspect of the
rule as he does not have a sense of obligation to follow the rule.
On the contrary, when he says that he has an obligation under Indian law to observe
speed limits when driving his car, he is not only stating the law as fact but he is
expressing a sense of obligation not to drive faster than the speed limits.
A person looking at a society from an extreme external point of view may only see
regularities of behaviour. The proverbial Martian may conclude after observing a
controlled intersection that vehicles are likely to stop when the red lamp lights up, and
think no further about it. This is the extreme external point of view.
A less extreme external point of view may make the Martian realise that the drivers of the
vehicles accept the ‘stop on red light’ rule as binding. This is sometimes called the
‘hermeneutic view’. Drivers may see the rule from the fully internal point of view and may
believe that they ought to stop at the red light even if there is no risk of an accident or of
being arrested and punished.
Hart conceded that often people do not accept a rule but follow it to avoid sanction. But
he observed that the challenge for the legal theorist ‘is to remember both these points of
view and not to define one of them out of existence’.
Hart accused the proponents of the predictive theory of obligation of this very sin.
Predictive theory, associated with the school of American realism, rejects the notion of
rules altogether and regards law as made up of predictions of what the courts actually do.
According to predictive theory, the lawyer’s task is to predict how a citizen’s case will be
decided by the court.
Criticism of Hart’s Internal Point of View
Neil MacCormick
Neil MacCormick, another British positivist, noted that Hart’s explanation of the internal
point of view conflates two distinct points of view that need to be separated if we wish to
understand accurately the concept of a rule.
MacCormick accepted that the focus on the purely external aspect of a rule hopelessly
distorts its nature. However, he pointed out that an inquiring external observer (not a
robotic Martian) may understand that members of a society consider a rule as binding
from a reflective internal point of view, although the observer may not have reason to
accept the rule. An American may not accept the rule that a person must not drink beer,
but he can understand that most citizens of Saudi Arabia accept the rule willingly as
worthy of observance.
What this American has is not an external point of view but a non-volitional cognitively
internal point of view. In contrast, most Saudi Arabian citizens may accept the rule
voluntarily and hence have a volitionally internal point of view. It is the shared volitionally
internal point of view that gives rise to a rule.
Joseph Raz
Joseph Raz also identified a third kind of viewpoint between the external and the internal.
This is the detached viewpoint expressed in statements that lawyers and law teachers
typically make in explaining the law on some matter.
One may use normative language without normative commitment (e.g., an Indian may say
that in France, drivers must drive on the right side of the road). Hart accepted this
refinement of his theory, conceding that it is possible for lawyers ‘to report in normative
form the contents of a law from the point of view of those who do accept its rules without
themselves sharing that point of view’.
Primary and Secondary Rules of Obligation
Primary Rules
Every society, including the most primitive, displays obligation rules. It is hard to conceive
a social order that does not rest on some commonly accepted rules of conduct.
Some rules – such as those against murder, theft, violence and the breaking of promises –
are ubiquitous (omnipresent). Others are indigenous. These are primary rules of
obligation that arise spontaneously and pre-date the establishment of formal legislatures,
courts and governments.
Primary rules of obligation in primitive society are not simply regularities of habits or
convergent practices of individuals. They are rules considered by members to be binding
and enforced by social sanctions. Unlike the early positivists, Hart had no doubt that
these may properly be called laws.
Small social groups bonded by kinship and shared beliefs living in a stable environment
may survive by these rules alone. But as society gets larger and more complex, the
shortcomings of a rudimentary set of laws based on diffused social pressure become
evident and the need for a different type of rules is felt. Hart called these ‘secondary rules
of obligation’.
There are three chief defects in a primitive system of laws.
1. There is no authoritative means of resolving doubts about the meaning and application
of laws.
This is not a serious problem in close-knit groups who live by a few simple rules in a
stable environment where disagreements can be resolved consensually. Legal
uncertainties increase in larger societies, where most members are strangers and life is
complex.
2. Primary rules of obligation in primitive societies are relatively static.
New rules crystallise slowly through convergence of practice and the build up of
pressure to conform. Conversely, old rules that outlive their value linger while the
pressure to conform dissipates slowly. The lack of a legislative body prevents society
from deliberately adapting laws to changing conditions.
3. Primitive society has nothing resembling courts that can authoritatively resolve
disputes arising from the violation of laws, and no specialised agency to enforce
judgements and mete out punishments.
Secondary Rules
Developed societies have secondary obligation rules that address these defects. The
secondary rules provide for the authoritative recognition of legal rules, for changing legal
rules and for adjudicating disputes concerning the observance of legal rules.
These rules typically establish courts, legislatures and executive governments. They define
the powers of these bodies, lay down procedures for the exercise of powers and prescribe
criteria for the recognition of primary legal rules. Rules of this type, by their union with
primary legal rules, bring about a legal system.
Whereas primitive society has a set of laws, modern society has a system of laws. Hart
used the terms ‘set’ and ‘system’ in an arbitrary way.
In most countries the secondary rules of obligation are set out in a written constitution. In
the United Kingdom they are part of the customary constitution.
Written or unwritten, their existence depends on acceptance by legislators, courts,

executive government, public service and other officials on whose conduct the legal
system depends.
Whereas primary rules of obligation apply to all people, secondary rules have particular
application to officials. Official acceptance is the critical internal aspect that makes these
rules possible.
Primitive Society Modern Society
Social Rules
Pressure to Conform No Pressure to Conform
Obligation Rules No Obligation
Pressure Short of Pressure Results in

Sanctions Sanctions
Secondary Legal Rules for
Recognising, Changing
and Applying Primary
Legal Rules and an
Ultimate Rule of
Recognition
Moral Rules Primary Obligation Rules
Developed Legal System
Diagram Showing H. L. A. Hart’s Positivism (Illustration by Suri Ratnapala)

The Rule of Recognition
Secondary obligation rules typically stand in a hierarchical relation to each other. This
relation is determined by a superior rule that Hart called the ‘rule of recognition’.
In most countries the rule of recognition is stated in the constitution. In England, it is

accepted that the common law overrides custom and that laws of Parliament override
common law.
This does not mean that the Queen in Parliament is a sovereign in the Austinian sense.
Austin’s sovereignty is unlimited and illimitable. The Queen in Parliament is a superior
source of law but it is also the creation of the rule of recognition.
Hart also rejected Austin’s view that common law is tacit sovereign commands, or that
legislation is the ultimate source of all law. The common law is law, however precarious its
existence. It is not derived from legislation, although legislation may alter it.
The rule of recognition provides the ultimate criterion for verifying the validity of laws.
When parliament enacts laws and when judges find rules to be valid according to the rule
of recognition, they are not obeying anyone’s command. It is possible to say that they are
obeying the rule of recognition by stretching the meaning of ‘obey’. It is more exact to say
that they are accepting and observing, from the internal point of view, the obligatory effect
of the rule of recognition.
A legal system in the modern sense arises when two conditions converge.
1. The primary rules that are considered valid by the rule of recognition are generally
obeyed by citizens.
2. The rule of recognition is accepted by officials as the standard of official behaviour.
The rule of recognition may change through peaceful transition, as when Britain granted
its colonies degrees of self-government and finally independence.
It could also change through foreign conquest or by violent domestic revolution, as

frequently observed in parts of the world where stable constitutional democracy has not
taken root.
The primary rules of obligation may remain largely unaffected while the struggle over the
rule of recognition goes on. This was not the case, though, in Russia and China, where
communist revolutions simultaneously overthrew existing regimes and fundamentally
changed the country’s primary legal rules.
Historical School of Jurisprudence 45
HISTORICAL SCHOOL OF JURISPRUDENCE
Historical school of jurisprudence believes that law originates from the social custom,
conventions religious principles, economic needs and relations of the people. Therefore, it
is an outcome of a long historical development of the society.
According to this theory, the law is the product of the forces and influence of the past.
Law is based on the general consciousness of people. The consciousness starts from the
very beginning of the society. There was no person like sovereign for the creation of law.
The historical school follows the concept of man-made laws. Everyone understands his
own needs better than anyone else. ‘Law is formulated for the people and by the people’.
Law should be change with the changing needs and nature of the people.
Historical school emerged as a reaction to legal theories propounded by the analytical

positivists and the natural law philosophers.
This school rejects the idea of law’s origin from some divine relevance. They viewed the
law, not as principles of morals but principles of customary action. Historical jurists
banished the ethical consideration from jurisprudence.
It also rejects the ideas of formation of law by judges. Historical jurists rejected all creative
participation of judge and jurist or lawgivers in the making of law.
The basic belief of the Historical School of Jurisprudence is that the habits and customs
of people change according to their needs and requirement. It is also called the
Continental School of Jurisprudence.
Historical school does not attach much importance to the relation of law to the state but
gives importance to the social institutions in which the law develops itself. While the
analytical school presupposes the existence of a well developed legal system.
The task of the historical school is to deal with the general principles governing the origin
and development of law and with influence that affects the law. This school concentrates
on the evolution of law from the primitive legal institutions of the ancient communities.
In the words of Salmond,
“That branch of legal philosophy which is termed historical jurisprudence is the general
portion of legal history. It bears the same relation of to legal history at large as analytical
jurisprudence bears the systematic exposition of the legal system. It deals, in the first place,
with the general principles governing the origin and development of law, and with the
influences that affect the law. It deals, in the second place, with the origin and development
of those legal conceptions and principles which are so essential in their nature as to deserve
a place in the philosophy of law – the same conceptions and principles, that is to say, which
are dealt with in another manner and from another point of view by analytical
jurisprudence. Historical jurisprudence is the history of the first principles and conceptions
of the legal system.”
PROPONENTS OF HISTORICAL SCHOOL
Montesquieu, Savigny, Sir Edmund Burke, Sir Henry Maine, Sir Fedrick Pollock, Schelling
and Hugo are the renowned jurists of this school.
Montesquieu
According to Sir Henry Maine, Montesquieu was the first jurist who adopted the historical
method of pursuing the study of legal institutions. The credit of laying down the
foundation of the historical school in France goes to Montesquieu through his classical
work ‘Spirit of Laws’.
Montesquieu held that law should be adapted to suit the people, for whom they are
framed, keeping in view the degree of liberty which the constitution desires to grant to its
people. He pointed that “law is the creation of the climate and local situation”, and the law
must keep pace with the changing needs of the society.
Therefore, he said that is nothing like good or bad in law, as it essentially depends on
political and social conditions and environment prevailing in the society.
Montesquieu was opposed to natural law and he laid the foundation of comparative and
sociological jurisprudence.
Schelling and Hugo
Schelling and Hugo supported the view that law is a historical thought which evolved
according to customs, traditions, culture, and sentiments of the people.
Hugo pointed out that law is like the language and habits of the people which forms and
develops itself as suited to the circumstances. The essence of law is in its acceptance,
observance, and regulations by the members of the society.
Edmund Burke
Edmund Burke considered the evolution of law as an organic process and an expression
of common beliefs, faiths, and practices of the community as a whole.
Sir Fedrick Pollock
Sir Fedrick Pollock aptly remarked that historical method is nothing but the Doctrine of
Evolution applied to human institutions and societies.
Savigny
Savigny is the main exponent of this historical interpretation of the law and is considered
to be the founder of the historical school of jurisprudence. He traced the development of
law as an evolutionary process much before Darwin gave the theory of evolution in the
field of biological science. Therefore, Dr. C. K. Allen described Savigny as ‘Darwinian
before Darwin’ for his contribution of applying the evolutionary principle to the
development of the legal system.
He stated that a law made without taking into consideration the past historical culture
and traditions of community is likely to create more confusion rather than solving the
problem.
Savigny firmly believed that law is the product of General Consciousness of the people and
manifestation of their spirit. The origin of law lies in the popular spirit of the people which
Savigny termed as ‘Volksgeist’ (‘popular spirit’).
Basic Concept of Savigny’s Volksgeist
According to Savigny’s Volksgeist, the law is the product of general consciousness of the
people or the will of the people at large.
The concept of Volksgeist served as a warning against the hasty legislation and introduced
the revolutionary abstract ideas on the legal system. People will not accept a law unless it
supports the general will of the people.
Basically, Savigny was of the view that law should not be found from deliberate legislation
but should be made and arises out of the general consciousness of the people.
Volksgeist as a Source of Law
Savigny’s work on the law of possession (Das Recht Des Vestiges) which was published in
1803 is said to be the starting point of Savigny’s historical jurisprudence.
He firmly believed that all law is the proof of common awareness (manifestation of
common consciousness) of the people and it grows with the growth of the people and
strengthens with the strength of the people and dies away as the nation loses its
nationality.
MERITS OF SAVIGNY’S VOLKGEIST
Being conservative in its outlook it relies on past, however, its merit is that it shows that
law must change with the changes in society. It clearly believes that if a law is not
according to the will of the people, it will never be obeyed. In this way, it supplemented
the analytical school of law.
CHARACTERISTICS OF HISTORICAL SCHOOL
Freedman lists Savigny’s contribution to the historical school briefly as under:
1. Law is Like Language Which Eventually Grows
Law has a national character and it develops like a language and binds people into one
whole because of their common faiths, beliefs, and convictions. Law, language, custom,
and government have no separate existence from the people who follow them.
At the early stages law develops automatically according to the internal needs of the
community. But after a certain level when it reaches civilization it is developed by jurists.
In simple terms, the political element of law and juristic element both play a significant
role in the development of law.
2. Law Cannot be of Universal Validity
Law cannot be of universal validity nor be constructed on the basis of certain rational
principles or eternal principles.
3. Law is Sui Generis
Savigny argued that law is like the language having its own national character. So, it can’t
be universally applied and varies according to the people. 9
4. Law is Found or Discovered – It is Not Made
Law cannot be made artificially like the invention of an object.
5. Law is Found on the Basis of Consciousness, Customs and Beliefs of the People
Law should not be found from deliberate legislation but should be made and arises out of
the general consciousness of the people.
6. Law is a Continuous and Unbreakable Process
Tracking out the evolution of law from volksgeist, Savigny considered its growth as a
continuous and unbreakable process bound by common culture, traditions, and beliefs.
He wanted German law to be developed on the pattern of Roman law. According to him,
the codification of law may hamper its continuous growth, and when the legal system gets
fully developed and established then the codification may take place.
Therefore, Savigny opposed codification of German Law. However, he was not totally
against the codification of the German law on the French pattern. But he did not find is
proper to codify the German Law at that time because Germany was then divided into
several small states and its laws were primitive, immature and lacked uniformity. He
stated that the German law could be codified when there is a prevalence of one law and
one language throughout the country.
Since Volksgeist had not adequately developed at that time, therefore codification would
have troubled the evolution and growth of law.
Savigny considered lawyers and jurists to be the true representatives of the popular
consciousness rather than the legislators whose power has been united to lawmaking
only.
9 He mentioned this in the self-written pamphlets “Vom Berufunserer Zeit für Gesetzgebungand
Rechtswissenschaft (On the Vocation of Our Age for Legislation and Jurisprudence).”
CRITICISM OF HISTORICAL SCHOOL
The following are the criticisms of Historical School:
1. If law is not created by reasoning then what is custom then?
Historical lawyers claim that law is not created by applying reason. But they claim that
law is developed from the customs and traditions of the people. They ignore the fact
that customs and traditions are also developed based on reason.
2. Historical School considered only customs. It ignored statutes and precedents.
Historical school claims that laws should be and are in existence as a result of popular
spirit in the form of customs. They ignore the facts that major part of laws of most of
the States consist of statutory laws and precedents laid down by the superior Courts.
3. Custom is not based on spirit of people. Sometimes it is what a small minority of the
people want. Slavery, Domination over lower caste, women etc. are the glaring
examples.
4. Law is not always voksgeist. Often foreign laws are also accepted. Constitution of India
is a good example, where provisions from different Constitutions across the world are
adopted. Even Indian Penal Code, Indian Evidence Act, 1872 are the examples of laws
which are not the result of volkgeist. In fact, these laws contain provisions designed to
suppress the volkgeist.
5. Law sometimes grows because of constant struggle between conflicting interests not
always on the spirit of the people. For example, Divorce Laws, Trade Union and
Industrial Laws are
6. Law is not subordinate to custom. Custom becomes law only if law accepts them.
For example, usages of trade are enforceable in the Courts of law only to the extent
they are adopted by the statutory law. Foe example, the Sale of Goods Act adopts some
trade usages. Those trade usages not adopted by the law are not enforceable in Courts.
7. In the era of globalisation, economic needs of a State may force it to enact laws or
amend the existing laws to attract foreign investment. Right to Information Act, 2015,
Arbitration and Conciliation Act, 1996 are the examples of enactment of new Act and
substitution of the existing Act respectively. Patent Act was amended for the same
reason. Here the pressure is not from volkgeist.
Sociological School of Jurisprudence 51
SOCIOLOGICAL SCHOOL OF JURISPRUDENCE
Comte was the first writer to use the term sociology. ‘Sociology’ is defined by Faris as:
‘a branch of the science of human behaviour that seeks to discover the causes and effects
that arise in social relations among persons and in the intercommunication and interaction
among persons and groups.’
Sociologists point out that human beings are more dependent on social organisation than
is any other species. Therefore, institutionalised social forms such as law, State, etc. are of
considerable significance in the life of a community.
The study of law in its social setting, as a social institution, is the basis of the sociological
approach to jurisprudence.
Sociological jurisprudence and its related field sociology of law together constitute an
immense field of study, embracing all aspects of the relations and interactions between
law and society.
Sociology of law should, however, be distinguished from sociological jurisprudence.

Sociology of law primarily studies society and studies law only peripherally. On the other
hand, sociological jurisprudence primarily studies law but in doing so it studies its
relation with an impact on society.
The sociologist of law approaches law from the viewpoint of society and its diverse forms of
social control. These inquiries lead to the discovery of the specialised and organised form
of social control which is the lawyer’s law. The sociological jurist starts from the opposite
end, the organised form of control that is the lawyer’s law, and moves towards sociology in
search of ways to improve the capacity of law to serve the ends of society.
SOCIOLOGICAL SCHOOL
The term ‘sociological jurisprudence’ was coined by its most famous proponent, Roscoe
Pound10. The sociological school considers law as a social phenomenon and examines the
law in relation to society. Sociological jurisprudence links law with other social science
disciplines and treats it as a synthesis of psychology, philosophy, economics, political
science, sociology, etc. Law, according to sociological jurisprudence, is an applied science
employing functional methods of investigation and analysis for solving social and
individual problems.
10 Nathan Roscoe Pound (1870–1964) is also known as ‘Dean Pound’ because of his
extraordinarily long tenure as the Dean of the Harvard Law School.
Bentham, who was an analytical positivist, had, by expounding the principle of utility,
provided indirect support to the sociological formulation of law. In the nineteenth and
twentieth centuries, the sociological approach was developed and elaborated by the jurists
like Duguit, Ihering, Ehrlich, Roscoe Pound and many others.
BASIC TENETS OF SOCIOLOGICAL SCHOOL
Following are the basic tenets or characteristics of the sociological school.
1. Sociological jurists regard the working of the law rather than the abstract content of
the authoritative precepts.
2. Sociological jurists regard the law as a social institution, which may be improved by
intelligent effort. Hence it is the task of the jurists to find out the best means of
furthering such efforts.
3. Sociological jurists lay stress upon the social purposes which the law serves rather
than upon sanctions.
4. Sociological jurists look on legal institution and doctrines and precepts functionally.
They regard the form of legal precepts are a matter of means only.
5. According to this school, the main function of law is to fulfil the needs if society. Social
requirements are accomplished by law. Law is also a social instrument for maintaining
law and order in society.
ROSCOE POUND
Roscoe Pound is regarded as one of the most noted American Sociological jurists of the
twentieth century.
Roscoe Pound differed from the previously considered theorists in an important way.
Whereas the others were concerned with the law in the broader social sense, Pound was
mainly focused on the lawyer’s law – the law that legislators, judges and other authorised
officials make. He was not unmindful that the term ‘law’ has wider connotations, but the
task he set himself was the discovery of the ways in which the formal legal order serves its
social purpose. The legal order is not simply the set of legal rules but the whole legal
system, comprising its institutions, doctrines, rules and techniques.
Pound called for a new functional approach to the law based on sound theorizing as to its
purpose in a particular age.
The law was not an instrument for social change. Law’s primary role was seen in the 17 th
and 18th centuries as the provision of maximum individual liberty consistent with the
similar liberty of others. Pound merged this idea of the law’s task with the aim of ‘bringing
about and maintaining a maximum strength and efficiency in organised society,
identifying the political organisation of society with civilisation’.
Theory of Social Engineering
Pound frequently stated that the task of a lawyer is analogous to that of an engineer.
Pound defined interests as wants or desires which are asserted by individuals in a
society.11
Pound classified various interests as follows:
1. Individual or Private Interests
Individual interests are ‘demands or desires involved in or regarded from the standpoint of
the individual life’.
They comprise the following:
(a) Personality: This involves those interests pertaining to an individual’s physical and
spiritual existence, e.g., physical security, health, freedom of will, privacy and
sensibilities, beliefs and opinions.
(b) Domestic Relations: This relates to the interests of parents and children and the
protection of marriage.
(c) Substance: This concerns interests of property, succession and testamentary

disposition, freedom of industry, contract and association, i.e., those claims or
demands ‘asserted by individuals in title of the individual economic existence’.
11 In his famous book Outlines of Lectures on Jurisprudence (1943) he stated:

‘Interest is a demand or desire or expectation which human beings either individually or in groups or
associations or relations, seek to satisfy, of which, therefore, the adjustment of human relations and
ordering of human behaviour through the force of a politically organised society must take account.’
2. Public Interests
Public interests are ‘demands or desires involved in or looked at from the standpoint of life
in a politically organised society, asserted in title of political life’. They comprise the
following:
(a) Interests of the State considered as a juristic person, i.e., its integrity, freedom of
action, security.
(b) Interests of the State as the guardian of social interests.
3. Social Interests
Social interests are ‘those wider demands or desires involved in or looked at from the
standpoint of social life in civilised society and asserted in title of social life’. These are the
interests pertaining to the social life of an individual and generalised as the interests of
social groups.
These may pertain to:
(a) General Security, including claims to peace and order (against those actions likely to
threaten the very existence of society), safety, health, security of transactions and
acquisitions.
(b) Security of Social Institutions (domestic, religious, political and economic).
(c) General Morals, i.e., security of social life against acts offensive to general moral
sentiments.
(d) Conservation of Social Resources, e.g., use and conservation of natural resources,
protection and education of dependants and defectives, protection of the
economically-dependent.
(e) General Progress, i.e., the self-assertion of the social group toward higher and more
complete development of human powers, including economic progress (freedom of
property, trade, industry), political progress (freedom of criticism), cultural progress
(freedom of science, improvement of education and aesthetic surroundings).
(f) Individual Life is, perhaps, the most important interest of all, involving the claim or
demand of each individual to live a full life according to society’s standards.
Law must attend to such assertions to create an organised society. According to Pound,
the purpose of social engineering is to build a society in which maximum wants are
satisfied with minimum friction and waste. Thus, it must balance competing interests.
For Pound, the law is the body of knowledge and experience with the aid of which a large
part of social engineering is carried on.
Like an engineer’s formulae, they represent not only experience, scientific formulations
but also invented skill in conceiving new devices and formulating the requirements by
means of a developed technique.
Pound argued that from a functional point of view law is really an attempt to reconcile,
harmonise or compromise overlapping or conflicting interests.
The appropriate ‘balancing process’ is related to problems of ‘eliminating friction and

precluding waste in human enjoyment of the goods of existence’. It is a kind of ‘social
engineering’, the brunt of which falls upon the legal order.
Interests must be balanced ‘fairly’. This involves examining a conflict of interests on an

appropriate plane. Thus, an individual interest ought not to be weighed against a public
interest.
The process of balancing may necessitate reference to the following forms of law:
1. Rules, i.e., ‘precepts attaching a definite, detailed legal consequence to a definite,

detailed statement of facts’.
2. Principles, i.e., ‘authoritative starting points for legal reasoning employed continually
and legitimately where cases are not covered or are not fully or obviously covered by
rules “in the narrower sense”’.
3. Conceptions, i.e., ‘authoritative categories to which…cases or situations are referred,

in consequence of which a series of rules, principles and standards become applicable’.
(Pound suggests that these are chiefly the work of law teachers and writers.)
4. Standards, i.e., ‘the general limits of permissible conduct to be applied according to

the circumstances of each case’.
Pound recognised Ihering’s view of the law as a reconciler of conflicting interests but at
the same time gave it certain distinctive features.
4. LAW
ABOUT LAW
MEANING AND DEFINITION OF LAW
Meaning of Law
In its widest sense the term law includes any rule of action. It is any standard or pattern
to which actions are or ought to be conformed.
According to Blackstone,
“Law in its most general and comprehensive sense signifies a rule of action, and is applied
indiscriminately to all kinds of action whether animate or inanimate, rational or irrational.
Thus we say, the laws of motion, of gravitation, of optics or mechanics, as well as the laws
of nature and of nations.”
We are concerned mainly of what Austin referred to as ‘law properly so called’ or what
sociological jurists call ‘lawyer’s law’.
Difficulties of Defining Law
Various schools have given different definitions of law. Each school has seen law from a
different perspective. This is because of the complexity and various dimensions of the
term ‘law’. It is almost impossible to cover all the aspects of law by a single definition. Any
attempt to cover some aspect of law will leave out the other aspects of law.
Moreover, there are other sets or systems of rules which are not ‘laws properly so called’
but share some of the aspects of ‘laws properly so called’. A proper definition of ‘law’
should exclude these ‘laws not properly so called’ from its ambit. But often a definition of
law includes aspects of these rules also.
As observed by Salmond, classification of rules of law is equally difficult task. The same
rule may possess more than one aspect or quality, by virtue of which it may belong
concurrently to more than one class of law.
These two facts are sufficient to demonstrate the complexity of the subject, which is one of
the causes of difficulty of defining the term ‘law’.
About Law 57
Another cause of difficulty is the shortcomings of our languages. Languages are fraught
with many problems. Vagueness and ambiguity are the two main problems of language.
Even carefully constructed sentences often turn out to be ambiguous, and sometimes
vague.
As a result of both the above problems, namely the complex nature of law and problems
associated with language, any discussion as to the rightful claims of any of the classes of
rules to be called laws—any attempt to distinguish laws properly so called from laws
improperly so called—would seem to be nothing more than a purposeless dispute about
words.
Definition of Law
Salmond has attempted a simple and a more convincing definition of law as under:
“The law may be defined as the body of principles recognised and applied by the
state in the administration of justice. In other words, the law consists of the rules
recognised and acted on by courts of justice.”
Having so defined law, Salmond anticipates criticism of his definition on the ground that a
rule is not law because it is recognised and acted upon by Courts, but it is the other way
round. Courts recognise and act upon a rule because it is law.
Salmond counters this ‘possible’ criticism of his definition by observing that it is based on
an erroneous conception of the essential nature of the administration of justice. He points
out that the primary function of State is administration of justice. Law is only a tool of
administration of justice. Administration of justice is perfectly possible without law at all.
Though Salmond himself could not properly express it, it is clear that he was not claiming
that a rule is law only if a Court recognises and applies it in deciding a case before it.
What he was suggesting was that Courts apply a rule only if it is a rule of law. If the rule
is not a rule of law, Courts cannot, and therefore do not, apply it to decide a case.
NATURE OF LAW
Salmond states that law is the wisdom and justice of the organised commonwealth,
formulated for the authoritative direction of those to whom the commonwealth has
delegated its judicial functions.
58 4. Law
Law consists of the authoritative rules which judges apply in the administration of justice,
to the exclusion of their own free will and discretion. Courts are not at liberty to do that
which seems right and just in their own eyes. They are bound by law to act in a
predetermined manner.
In the famous words of Lord Denning Courts have to do justice, but that justice should be
justice according to law.
Justice is the end, law is merely the instrument and the means, and the instrument must
be defined by reference to its end.
According to Salmond, the chief uses of the law are three in number:
1. The first is that it imparts uniformity and certainty to the administration of justice.
It is vitally important not only that judicial decisions should be correct, distinguishing
accurately between right and wrong, and appointing fitting remedies for injustice, but
also that the subjects of the State should be able to know beforehand the decision to
which, on any matter, the courts of justice will come.
2. In the second place, the necessity of conforming to publicly declared principles

protects the administration of justice from the disturbing influence of improper
motives on the part of those entrusted with judicial functions.
The law is necessarily impartial. It is not made for any particular person. It is also not
made for any individual case.
3. Finally, the law serves to protect the administration of justice from the errors of
individual judgement.
The establishment of law of the law is the substitution of the opinion and conscience of
the community at large for those of the individuals to whom judicial functions are
entrusted.
The principles of justice are not always clearly legible by the light of nature. The
problems offered for judicial solution are often dark and difficult. There is great need of
guidance from that experience and wisdom of the world at large of which the law is the
record.
The law is not always wise, but on the whole, and in the long run, it is wiser than
those who administer it.
About Law 59
AUTHORITY OF LAW
It is an undisputed fact that Courts are under an obligation to observe the law in the
exercise of their function of administering justice, instead of acting in accordance with
their own views of right and wrong.
It is now necessary to consider the nature of this authority and of this obligation. In what
sense and by what means is a judge bound, for example, in deciding a case to follow the
precedents set in former cases, instead of following the dictates of his own reason?
In the first place, judges are under a moral obligation to observe the law. This is the
business for which they were appointed. It is the function of their office. This is the duty
which they undertook by their judicial oaths, when they swore to administer justice
according to law. Wilful refusal of a judge to apply the established law would amount to
misconduct in his office, for which he could rightly be removed.
In case of inferior Courts which are subject to a superior Court by way of appellate or
superintending jurisdiction, the duty of the inferior Court to observe the law is enforced as
a legal obligation by the superior Court. If the lower Court goes wrong in law, its
judgement will be reversed and a correct judgement in accordance with law will be
substituted. If the lower Court refuses to exercise its lawful jurisdiction, or claims to
exercise a jurisdiction beyond that which the law confers on it, the revisional jurisdiction
of a higher Court may be used to compel observance of the law.
So far as inferior Courts of justice are concerned, therefore, there is no difficulty in

recognising, not merely a moral, but also a legal obligation to administer justice according
to law. But in the case of a superior Court (a Court which is not subject to the appellate or
superintending authority of any other Court), such a legal obligation is impossible. There
is no other Court in which any such obligation could be recognised or enforced.
Moreover, the system of a hierarchy of Courts, some of which possess jurisdiction over
others, is not an essential part of the constitution of a state. A system is possible in which
the public justice of a state is administered by a single Court, or by a series of co-ordinate
Courts, without the existence of any appellate or other controlling jurisdiction. In such
cases there can be no legal obligation imposed on the Courts to observe the law.
A legal obligation is imposed by a rule of law, and there can be no rule of law unless there
is a Court having jurisdiction to declare, apply, and enforce it. To suppose, therefore, that
60 4. Law
every Court is bound by a rule of law, and by a resulting legal obligation to observe the
system of law in force in that Court, is clearly a fallacy.
Observance of the law may be enforced on an inferior Court by a superior, and upon that
superior Court by another superior to it, but the process must stop somewhere. The
world, as has been determined by Eastern philosophy, may stand on an elephant, and the
elephant on a tortoise, but the tortoise must be self-supporting.
The High Court may enforce the law upon the County Courts, the Court of Appeal may
enforce it upon the High Court, and the House of Lords upon the Court of Appeal But this
process cannot be endless.
The duty of the final tribunal to administer justice according to law must be recognised as
a moral obligation merely. If the House of Lords were wilfully to misconstrue an Act of
Parliament, the interpretation so placed on that Act would ipso facto be the law of
England, for there is no other judicial tribunal with jurisdiction and authority to decide
the contrary.
In India, however, if a judge of Supreme Court refuses to decide cases in accordance with
the law made by legislatures, an impeachment motion may be moved against him in the
Parliament, and may be removed. However, if the Supreme Court interprets law in a way
contrary to the intention of the legislature, the concerned legislature may at the most
amend the law to abrogate the ruling of the Supreme Court. No action can be taken
against the judge for misinterpreting the law.
Therefore, the Courts cannot be universally under a legal obligation to observe and apply
the law. No such legal obligation can be regarded as forming a part of the definition of law.
Such a definition would amount to reasoning in a circle. Law is law, not because the
Courts are under any legal obligation to observe it, but because they do in fact observe it.
No rule that is not thus in fact observed in accordance with the established practice of the
Courts is a rule of law. Conversely, every rule that is thus in fact observed amounts to a
rule of law. It is to the Courts of justice, and to them alone, that we must have recourse if
we wish to find out what rules are rules of law and what are not.
In the last resort the authority of the law over the Courts themselves has its source merely
in the moral obligation of the judges to observe their judicial oaths, and fulfil their
appointed functions, by administering justice according to law.
About Law 61
CHARACTERISTICS OF LAW
If we analyse the definition of law carefully, we can reach at a conclusion that law is a
body of rules recognised and maintained by the State to regulate the human behaviour
and conduct in a society. Thus, a law presents the following characteristics:
1. It is a set of rules.
2. It regulates the human conduct.
3. It is created and maintained by the state.
4. It has certain amount of stability, rigidity and uniformity.
5. It is backed by coercive authority.
6. Its violation leads to punishment.
7. It is the expression of the will of the people and is generally written down to give it
definiteness.
8. It is related to the concept of 'sovereignty' which is the most important element of

State.
THE FUNCTION AND PURPOSES OF LAW
1. Justice
Law is not an end in itself. It is a means to an end. The end is justice. Therefore, the
primary function of law is securing justice. Jurists ranging from St. Thomas Aquinas to
Salmond have agreed that securing justice is the function and purpose of law.
St. Thomas Aquinas claimed that an unjust law is not law at all (lex injusta non est lex).
Salmond defined law as those principles recognised and applied by State in
administration of justice.
Others, such as analytical jurists may not agree that there is any essential or logical
connection between law and justice, but they still agree that justice is highly relevant to
critical evaluation of law.
62 4. Law
2. Uniformity and Certainty
Law aims at uniformity. Often, law should be uniform, definite and certain, even at the
cost of justice. A law which is certain being fixed may cause hardship, inconvenience or
injustice in a few cases. But it is still better than a law which is fair, convenient and just,
but uncertain.
A certain law is predictable and gives prior notice to the people about their expected
conduct. People may, accordingly, adjust their conduct and avoid evil consequences of
violation of law.
3. Fairness and Impartiality
Law is made generally and applicable to all in the same manner. If there is any difference
in application of law, that is on the basis of some reasonable classification.
Courts are bound to apply law to the facts while arriving at a decision in a case. They
cannot decide the cases according to their personal views of right and wrong. This
eliminates the personal affiliations and biases of the persons entrusted with the function
of administration of justice. It also protects the administration of justice from disturbing
influence of improper motives on the part of such persons.
4. Objectivity
Law brings objectivity in decision-making process. It helps the judges to decide cases
without bringing subjectivity in the decisions made by them. This means that similar
cases are decided by different judges in more or less uniform manner. In the absence of
law, different judges may apply their minds in different ways to similar sets of facts and
arrive at different decisions. This further leads to equality before law.
5. Wisdom
Cases coming before Courts of justice are often complicated ones. To decide such cases lot
of knowledge, wisdom and experience is necessary. Law provides the same. However
eminent a person may be, his knowledge, wisdom and experience are very limited. Law
carries knowledge, wisdom and experience of generations. Therefore, law can properly
guide judges in an efficient, just and fair manner.
About Law 63
6. Stability
Another function of law is to maintain stability and security of social order. However, in
the modern State, laws are continuously changed due to experimentation in political
philosophy, and this function of law is put to great harm.
In the modern State, the complexities of society require various competing interests to be
balanced. This leads to continuous passing of new laws. Different aspects of the same
subject are governed by different laws. Therefore, often citizens may find it difficult to
know where to find the law applicable to their case.
ABOUT JUSTICE
JUSTICE
Justice is a universal aspiration, and the sense of injustice is a powerful human emotion.
It is strongest when a person’s own interests are harmed, but is also aroused in civilised
people when they witness wrongs done to others.
Widespread and unrequited injustice inevitably leads to conflict. A society that does not
have justice as a governing principle is an unstable society that will be held together, if at
all, by force.
Justice is also a perennially controversial idea in human affairs. People are united in their
belief in justice as an ideal, but are divided on what justice means or requires.
Justice has no universally valid definition. It means different things to different people
and its requirements may change over time. Different kinds of justice are not always in
harmony. One person’s claim for legal justice may conflict with another person’s demand
for distributive justice. The legal requirements of procedural justice may constrain the
pursuit of substantive justice.
JUSTICE ACCORDING TO LAW (LEGAL JUSTICE)
Most of the time people look to the law for justice. The demand for justice is made in the
form of a legal or moral claim. In one sense every legal claim is a claim of justice.
64 4. Law
Examples
A person accused of a crime claims the right to a fair trial or procedural justice.
People’s demand for punishment of a criminal act is a demand for justice.
The claim of a worker to be paid the agreed wages for his work is a demand for justice.
A pedestrian’s claim for damages for personal injury caused by a road accident is a
claim for justice.
A citizen’s claim to equality before the law is a claim of justice.
Every claim of right based on existing law is a demand for ‘justice according to law’, or
simply ‘legal justice’. Legal justice requires that every person and every authority act
according to established law. Legal justice, in this sense, has little to do with the moral
justness of the law. A court that enforces a morally unjust law upholds legal justice,
though not moral justice.
Nomoi (Rules of Just Conduct)
There is a core body of legal rules that most societies expect persons to observe as a
matter of basic justice.
Examples
The rules in the criminal law against murder, assault and other wilful acts harming
person and property.
The fundamental rules of private law that impose obligations to perform contracts and
make reparations for damage caused by negligent acts.
These are what Adam Smith called ‘rules of justice’ and FA Hayek termed ‘nomoi’, or the
‘rules of just conduct’.
Rules of just conduct are so called because they are indispensable to social life. They have
generally grown with the society and are recognised by most people as rules that ought to
be followed. In the past, law generally reflected the rules of social life as they had evolved.
The law of our age is very different. In addition to its ancient function of stating the rules
of just conduct, law has become the means for making various types of material
allocations to different groups, often at the expense of other groups.
About Justice 65
Examples
Income extracted by taxes on the rich pays for the welfare of the poor.
Subsidy schemes favour some industries as against others.
Consumer protection laws are designed to favour consumers at the expense of sellers
and manufacturers.
In contrast, import controls favour local manufacturers at the expense of consumers.
Law does not recognise every moral claim for justice. Hence, persons who make moral
claims naturally wish to have their claims converted to legal rights so that they become
matters of legal justice. Moral claims are transformed into legal claims by legislative acts
of parliaments or judicial decisions.
KINDS OF JUSTICE (COMPONENTS OF JUSTICE)
Aristotle divided particular justice into two kinds: ‘distributive justice’ and ‘rectificatory
justice’. ‘Rectificatory justice is also called ‘corrective justice’. Distributive justice is the
domain of legislature while corrective justice is the domain of judiciary.
Distributive Justice
Distributive justice is meant for social equilibrium. It demands that every one similarly
situated must be treated alike. That ‘like should be treated alike and unlike should be
treated unlike’.
In Aristotle’s teleological scheme all persons were not equal. Each person and class of
persons had a particular station in life and a particular function. Aristotle said that just
distribution is equal distribution, but by ‘equal’ he really meant ‘equitable’ (‘proportional’).
Example
If A is worth 2 and B is worth 1 in the scheme of society, in distributing 6 apples A

should be given 4 and B only 2.
Virtuous, wise and courageous persons should receive more than immoral, ignorant or
cowardly persons. The rationale of distributive justice is that ‘if the distribution is made
from common funds it will be in the same ratio as the corresponding contributions bear to
66 4. Law
one another’. In other words, persons who contribute more to the production of the
common wealth get more from it in return.
The major problem with distributive justice concerns how we determine what just
distribution is. We may say that it is just deserts – that a person must be given what they
deserve. This answer takes us nowhere, since it poses the same question in a different
way. How do we decide who deserves what? Justice may be defined as fairness, but then
we need to define what fairness is.
Karl Marx stated the communist principle of distribution as: ‘From each according to his
ability, to each according to his needs’. Marx thought that this principle would work in a
society of ideal citizens.
Even if we concede for argument’s sake that it will work in an ideal society, it seems
unachievable in our own. An omniscient, omnipotent and disinterested ruler will be
required to determine the capacities and needs of individuals but, as history and common
sense tell us, such a ruler is inconceivable. Hence, liberal philosophers have abandoned
the quest for just distribution and sought to formulate the rules of a just political system.
Rectificatory or Corrective Justice
Rectificatory justice, according to Aristotle, operates in relation to private transactions. It

is not about shares of the public goods but about wrongs done by one person against
another.
There are two branches of rectificatory justice, which correspond to voluntary and
involuntary transactions.
Voluntary transactions refer to contracts for the sale of property, letting and hiring,
pledging, lending money with or without interest, and so forth.
Involuntary transactions are those that constitute crimes and torts in present day legal
language. Here the parties are treated as equal and the question is not about distribution
but about rectifying wrongs.
Aristotle observed, ‘It makes no difference whether a good man has defrauded a bad man
or vice versa, nor whether a good or a bad man has committed adultery; all that the law
considers is the difference caused by the injury; and it treats the parties as equals, only
asking whether one has committed and the other suffered an injustice, or whether one
has inflicted and the other suffered a hurt’.
Law and Fact 67
LAW AND FACT
To arrive at the decision in a case and to pronounce judgement, a Court has to do two
things:
1. It has to find the facts of a case, and
2. It has to apply law to the facts so found.
Facts of a case are found, in the first instance, in the pleadings of the parties. The party
instituting the case presents his pleadings in which he avers the facts according to him.
On the basis of these facts he claims some rights and, in turn, claims some reliefs. Then
the Court issues notice to the opposite party, and the opposite party appears and presents
his pleadings mentioning his version of facts.
Thus, the Court now has two sets of facts.
1. One according to the party instituting the case and
2. the other according to the party contesting the proceedings.
The Court compares these facts and arrives at two other sets of facts, namely,
1. admitted facts, and
2. disputed facts.
Admitted facts are the facts alleged by both parties. Disputed facts are those facts which
are alleged by one party and denied by the other party.
The Court has no function to discharge in respect of the admitted facts, because in
respect of those facts there is no dispute between the parties.
But in respect of the disputed facts, the Court has to find out which version of the facts is
true. To do this, the Court needs evidence. Then the question is who has to adduce the
evidence? This is decided by the rules of law of evidence relating to burden of proof. In
India sec.s 101-117 of the Indian Evidence Act, 1872 lay down the rules relating to the
burden of proof.
The Court, after comparing the pleadings of both the parties, and after determining the
facts in dispute, frames issues.
68 4. Law
Issues are the points which the Court has to decide in order to arrive at the judgement in
the case. They are in the form of questions which the Court has to answer in order to
decide the case.
Often, the parties may be at lis not in respect of fact, but in respect of application of law to
the case. For example, the defendant may claim that the suit is barred by limitation, or
that the Court has no jurisdiction to try and decide the case, etc. These points also form
the subject matter of issues in the case.
Thus, there are mainly two types of issues, namely, issues of fact and issues of law. As
issues are questions, they may also be termed as questions of fact and questions of law.
Apart from questions of fact and questions of law, there is often a third category of
questions before a Court, that is the mixed question of law and fact. Majority of questions
of law cannot be answered without reference to the facts. Thus, “Is the suit within
limitation?” is a question of law. But it has two components:
1. When did the cause of action arise?
2. What is the period of limitation?
The first of these questions is a question of fact, while the second one is a question of law.
Therefore, the question “Is the suit within limitation?” is a mixed question of law and fact.
But when a mixed question of law is disintegrated we are left with the same two types of
questions, namely question of fact and question of law. Therefore, in the ultimate analysis
we have only two types of questions.
QUESTIONS OF LAW AND QUESTIONS OF FACT
Now the question is what is a question of fact and what is a question of law?
Salmond notes that the expression “question of law” is used in three different senses.
Therefore, in contradistinction to these senses, the expression “question of fact” also has
three different senses.
1. The First Sense
Where a Court is bound to answer the question in accordance with a rule of law and not
in terms of its own estimation, it is said to be determining a question of law. All other
questions are questions of fact.
Law and Fact 69
In other words, a question of law is a question answer to which is found in a book of law.
A question which cannot be answered by looking into books of law is a question of fact.
What is the period of limitation for instituting a suit for recovery of a debt is a question of
law inasmuch as it can be answered by looking into a book of law, i.e., Limitation Act.
Whether the delay in performance of a contract is unreasonable is a question of fact as

the same cannot be answered by looking into a book of law.
But where there is a presumption in law, a question of fact may become a question of law.
Thus, whether a person had sufficient mental capacity to form an intention to commit an
offence is a question of fact. But where the age of such person is below seven years, the
same question becomes a question of law, because sec. 82 of the Indian Penal Code
provides for an irrebuttable presumption that a child below age of seven years is doli
incapex, i.e., incapable of committing an offence because of its mental incapacity to form
an intention to commit offence.
2. Second Sense
A question as to what law is applicable to a particular case is a question of law. All other
questions are questions of fact.
In the first sense, the rule of law was predetermined and clear. In the second sense the
rule of law is ambiguous, unsettled or yet to be determined. Therefore, in the first sense
this may be a question of fact. But once the question is authoritatively determined by a
superior Court it becomes precedent, and hence, a settled rule. Now it becomes a question
of law in the first sense.
Thus, it is a continuous process of questions of law in the second sense becoming

questions of law in the first sense as Courts authoritatively answer the questions of law in
the second sense and set precedents.
3. Third Sense
In this sense the questions which are to be answered by the judge in a case are questions
of law, and the questions which are to be answered by the jury are questions of fact.
This is a limited proposition as all cases are not conducted with a jury. In India jury
system is abandoned long back. Therefore, it is not applicable in India.
70 4. Law
Further, even where there are jury trials, in appropriate cases, the judge may withdraw
any question from the jury and decide the same himself. Even more, some laws may
provide that certain questions of fact should be determined by the judge and not jury.
DISCRETION
Salmond observed that the entire judicial field is not completely covered by only law and
fact. A large portion of the judicial filed is covered by what is called ‘judicial discretion’. In
addition to judicial discretion, there is also small field called ‘judicial opinion’.
Whether a person has committed an offence is a mixed question of fact and law.
The first question is, whether the accused has committed the act accused of. This is a
question of fact, as it cannot be answered by looking into a book of law.
Once it is found that the accused has committed the impugned act, the next question
whether he has committed an offence by committing that act. This is a question of law, as
it can be answered by looking into the book of law, such as the Indian Penal Code.
Once it is decided that the accused is guilty of committing an offence, the next question is
about the punishment to which he is liable. This is also be a question of law, as a book of
law, i.e., Indian Penal Code answers this question also.
The next question is what is the punishment that should be awarded in this case. As we
know Indian Penal Code provides for ‘maximum’ punishments. The judge may sentence
the accused to undergo any amount punishment not exceeding this maximum
punishment. He may also choose between fine and imprisonment. That is where judicial
discretion steps into.
In judicial decision making—the supposition that judges, in making decisions in ‘hard

cases’, that is, cases where there is no clear rule of law which is applicable or where there
is an irresolvable conflict of applicable rules, make decisions which are based on their
own personal and individual conceptions of right and wrong, or what is best in terms of
public policy or social interest, and that in so deciding they are thereby exercising a quasi-
legislative function and creating new law. Many positivists, for example, John Austin and
H. L. A. Hart, would allow for the fact that where there is no clearly applicable rule of law
judges do in fact exercise their discretion in deciding cases. Ronald Dworkin, however,
strongly denies this and argues that judges have no discretion in ‘hard cases’ and that in
every case there is always a ‘right answer’ to the question of who has a right to win.
Functions of Courts 71
FUNCTIONS OF COURTS
Though administration of justice is the primary function of Courts, Courts discharge

many other functions which are closely associated with administration of justice.
Therefore, Salmond classifies the functions of Courts as ‘primary functions’ and
‘secondary functions’.
PRIMARY FUNCTIONS
Administration of Justice
Natural and other resources are limited while human desires are unlimited. This makes
clashes of interests and passions inevitable. These clashes take the shape of legal
disputes.
A legal dispute arises when one person or a group of persons assert some right or rights
and another person or group of persons deny that right.
Legal disputes are resolved by the Courts. This function of the Courts is called
administration of justice. There are two categories of administration of justice.
1. Administration of Criminal Justice; and
2. Administration of Civil Justice.
Criminal Justice
A criminal wrong arises when a person’s public right is violated. A public right is a right of
an individual given to him as a member of the public, for the protection of the public.
Violation of a public right amounts to an offence.
Object of criminal justice is to punish the wrong-doer, i.e., the offender. Criminal law
focuses on the accused. If he is guilty of crime he will be punished. Whether the victim
has suffered any injury or not is immaterial.
Civil Justice
A civil wrong is a violation of a person’s private right. A private right is a right of an

individual given to him in his personal or private capacity, for his own protection.
72 4. Law
Private rights are further classified into two categories:
1. private right in rem; and
2. private right in personam.
Violation of private right in rem amount to a tort. Violation of private right in personam
amounts to breach of contract.
Object of civil law is to compensate the victim. Whether the wrongdoer had any intention
to commit the wrong or not is generally immaterial.
Judicial Review
In States where there is a written Constitution, Superior Courts, i.e., the higher judiciary
has an additional role to play. It has to see that no organ of the State functions in
contravention of the provisions of the Constitution. These Courts have the power of
judicial review of the actions of, especially, executive and legislatures.
SECONDARY FUNCTIONS
By administration of justice means forcible defence of rights and suppression of wrongs.

He states that it is the application of sanction of physical force to the rules of justice, by
the State. In all such cases there are tow parties. One, instituting the case and the other,
contesting the case. Salmond says that this is narrowest and proper sense of the term
‘administration of justice’.
According to Salmond, the term ‘administration of justice’ in its widest sense includes all
the functions of Courts. He further says that all these other functions may be called the
secondary functions of Courts. As these functions do non fall under the domain of
administration of criminal justice, he puts them under the class of administration of civil
justice. He lists four functions of Courts as secondary functions:
1. Actions against the State
2. Declaration of Rights
3. Administration of Estate
4. Creation and Destruction of Titles
5. Advisory Jurisdiction of the Supreme Court of India (Art. 143 of the Constitution)
Functions of Courts 73
1. Actions against the State
In law, State has two capacities – one, as State, and the other, as an individual. In the
second capacity, there is no difference between State and any ordinary individual. Sate
may be sued and be held liable for a wrong committed by it in the same way as an
individual can be. Therefore, actions against State really do not stand on a different
footage. It is the same administration of civil justice.
Salmond calls this a secondary function of Courts because at that time, no suit lied
against State for any wrong alleged to be committed by the State. A ‘petition of right’ 12 lied.
Further, it was not possible to enforce the judgement of Courts against State on the
ground that State cannot exercise its power against itself. One cannot be at both ends of
the same action. But now Courts can enforce their judgements against the State.
2. Declaration of Rights
Salmond says that a litigant seeks assistance of the Court to declare his right not because
his right is violated, but because his right is uncertain. He wants an authoritative decision
of his right. Examples of such cases, he says, are declarations of legitimacy, ownership of
a property, etc. Salmond observes that he does not desire any remedy against his
adversary.
Here, Salmond has overlooked the fact that no one goes to the Court to get a confirmation
of his right. Such an action is not maintainable. Only where there is a dispute as to the
right of a person and hence there is a likelihood of violation or actual violation of rights he
approaches the Court for preventing the violation of his right or to get remedy for violation
of his right. Declaration is only a basis for enforcement of his right.
In fact, as a general rule, a suit for bare declaration is not maintainable. Where the
plaintiff is entitled to a consequential remedy, he must seek it. Thus, the suit may be for
declaration and injunction, declaration and possession, etc.
Therefore, this is also a function, being administration of civil justice, a primary function.
12 Petition of Right (1628) was a statement of civil liberties sent by the English Parliament to
Charles I. The Petition of Right, initiated by Sir Edward Coke, was based upon earlier statutes
and charters.
It asserted four principles:
1. No taxes may be levied without consent of Parliament;
2. No subject may be imprisoned without cause shown (reaffirmation of the right of habeas
corpus);
3. No soldiers may be quartered upon the citizenry;
4. Martial law may not be used in time of peace.
74 4. Law
3. Administration of Estate
Courts sometimes undertake administration of estate or distribution of property.

Examples are administration of trusts, liquidation of companies, etc.
4. Creation and Destruction of Titles
Another secondary function of Courts is where the orders of the Courts create or
extinguish rights. Orders of divorce or judicial separation, order of discharge of insolvent,
order of appointing or removing a trustee, grants of probate, letters of administration are
cited by Salmond as examples of such function.
5. Advisory Jurisdiction of Supreme Court of India (Article 143 of the Constitution)
Under art. 143(1) of the Constitution, the President of India may refer the question to that
Court for its consideration any question of law or fact of public importance. The Court
may, after such hearing as it thinks fit, report to the President its opinion thereon.
Under art. 143(2), the President may refer a dispute of the kind mentioned in the proviso
to art. 131 to the Supreme Court for its opinion. The Supreme Court shall, after such
hearing as it thinks fit, report to the President its opinion thereon.
5. ADMINISTRATION OF JUSTICE
MEANING OF ADMINISTRATION OF JUSTICE
In law, a ‘person’ is defined as any legal entity having rights and duties. Therefore, rights
and duties are the hallmarks of personality. There cannot be a person without rights and
duties, because in that case the entity does not fit within the definition of ‘person’.
When a person has a right, there necessarily is another person having a corresponding
duty. If that other person does not discharge his duty, he is said to have committed the
breach of his duty towards the person having the corresponding right. Breach of duty
necessarily involves the violation of the corresponding right.
Violation of a right is called a ‘wrong’. The person who violates another person’s right is
called a ‘wrong-doer’, and the person whose right is violated is called the ‘victim of the
wrong’ or simply ‘victim’. He is also called the ‘aggrieved person’.
Where a person asserts a right and the person allegedly having the corresponding duty
denies it, it amounts to a dispute between them. As a dispute involves refusal on the part
of the person alleged to have a duty towards the person asserting his right, to discharge
the alleged corresponding duty, the person asserting the right claims that his right is
violated.
When a person’s right is violated, and if he does not get redressal out of the Court, as a
last resort he approaches a Court having jurisdiction to try and decide the case, seeks
relief for his grievance. The Court, after hearing both the parties, and appreciating the
evidence adduced by both the parties, pronounces judgement. By doing so, the Court
gives appropriate reliefs to the parties. This process is called ‘administration of justice’.
NECESSITY OF ADMINISTRATION OF JUSTICE
Where people are living together, disputes are bound to happen. A society is no exception.
If these disputes are not settled, and in a satisfactory and authoritative manner, the
society will disintegrate.
Many resources are limited and needs of the individuals in a society are unlimited. It is
not possible to satisfy the needs of all persons in any society. Therefore, clashes of
interests and passions are inevitable. In a barbaric (uncivilised) society, these clashes are
76 5. Administration of Justice
resolved by use of force. It is like a jungle raj where ‘might is right’. But in a civilised
society, these clashes are resolved by application of legal rules. These legal rules are
created by authorised institutions. They (legal rules) provide for distribution of rights and
maintenance of order.
Jeremy Taylor observed,
“A herd of wolves is quieter and more at one than so many men, unless they (men) all
had one reason in them or have one power over them”
As it is practically impossible to have one reason in many men, the only alternative is to
have one power over them.
Hobbes in his celebrated work Leviathan observed the same. He stated that when men live
without common power to keep them all in awe they are in a state of war amongst
themselves and life of man becomes, in the celebrated words of Hobbes, “solitary, poor,
nasty, brutish and short”.
Salmond observes that in modern societies the element of force in administration of

justice is invisible. Most of the people are law-abiding. In a society where power of State is
never called for does not mean that the control of the State has disappeared. In fact, it is
the success of the State.
Salmond further observes that the power of the State must be backed by public opinion.
Where the control does not have support of the people, it is unstable and short lived.
If the force is altogether withdrawn, it will give rise to group interests. In such a case
social force becomes insufficient. It needs institutional reinforcement. Institutionalised
law protects the law-abiding majority from the lawless minority.
Initially, this institutionalised justice was individual justice. Slowly it developed into tribal
or clan justice. Today it is the justice administered by State.
CRIMINAL JUSTICE, CRIMINAL WRONG, CIVIL JUSTICE AND

CIVIL WRONG
A person may be ‘natural’ person or an ‘artificial’ person. An artificial person is also called
‘legal’ person, ‘juristic person’ or ‘corporate’ person. A human being is a natural person. A
legal person may be a human being or a non-human being. A company, a university, etc.
are the well known examples of legal persons.
Criminal Justice, Criminal Wrong, Civil Justice and Civil Wrong 77
Law seeks to protect the public. To do so, law has to give rights to the public. But if rights
are given to public, public becomes a person. This is undesirable. Because public is an
indeterminate body of persons. One cannot say how many members were there in a public
at any given point of time, let alone who those members were.
Company and other legal persons have a determinate number of members. One can tell
with certainty who were the members of a legal person such as a company, at any given
point of time. Therefore, if the legal person commits any wrong, we know who should be
made liable. This is not possible in case of public.
Therefore, law cannot bestow rights on the public. Therefore, law has chosen the
alternative of protecting each person on the public by giving certain rights to every person
in the public. These rights are called ‘public rights’.
Public rights are rights given to an individual not in his individual capacity, but in the
capacity of a member of the public. They are not his ‘private’ rights, but they are the
rights of the public, vested in him. They are not given to him for his own protection, but
for the protection of the public.
Rights which protect a person as against public are called ‘private rights’. Private rights
are rights of an individual in his individual capacity. They are his own rights. They are
given to him for his own protection.
Private rights fall into two categories:
1. Private Rights in Rem; and
2. Private Rights in Personam.
A private right in rem is a right available against the entire world. A private right in
personam is, on the other hand, available against only a particular person or persons. A
public right is always in rem.
A right in rem can be created only by law. A right in personam is created by individuals by
entering into contracts.
CRIMINAL WRONG
Violation of a public right is an ‘offence’, also called a ‘crime’. The person committing an
offence is called an ‘offender’. An offender incurs criminal liability, which will be enforced
through a criminal Court. A person charged with (alleged of) an offence is, if found guilty,
liable to be punished. Object of criminal law is to punish the wrongdoer, the offender.
PUNISHMENT
Meaning of Punishment
Punishment means infliction of suffering on another. Punishment is considered in two

different perspectives.
1. as an institutionalised imposition for some definite end; and
2. as an end in itself.
In the first perspective punishment is only a means to achieve some other end, while in
the second perspective, punishment is the end in itself. These two perspectives have lead
to different theories of punishment.
Theories of Punishment
The following are the five main theories of punishment:
1. Deterrent Theory;
2. Preventive Theory;
3. Reformative Theory;
4. Retributive Theory; and
5. Expiation Theory.
The first three theories advocate three different objects of punishment. Therefore,
according to these theories punishment is not an end in itself, but is a means to achieve
those objectives, namely, deterrence, prevention and reformation. The last two theories
advocate that punishment is not just means to achieve some other end, but is an end in
itself, namely retribution and expiation.
1. Deterrent Theory
Deterrence means threat. The proponents of this theory believe that crimes are the result
of conflict of interests. Some conflicts of interest may be real while others imaginations of
the parties. The offender always gives preference to his own interest as against the
interests of others. As long as others are harmed by his acts, he does not care. But where
his own interests are affected by his own acts, he is more careful. Therefore, if he finds
that crime does not pay, i.e., the advantage he derives from committing a crime is less
than the loss he may suffer by punishment, he will hesitate to commit the crime.
In short, punishment makes commission of a crime a bad bargain, and thereby

discourages a person from committing crimes. Deterrence acts on the motive of the person
2. Preventive Theory
According to the preventive theory, punishment prevents the offender from committing
further offences or repeating the offence. This is done by causing some disability or
incapacity to commit crime. It mainly aims at physical restraint.
There are three ways of doing this:
1. capital punishment (death sentence);
2. imprisonment; and
3. disqualifications.
Death sentence is the permanent disablement, where repetition of offence is impossible.

Imprisonment is a temporary disablement. Similarly disqualifications such as suspending
licence, debarring from some activity such as from being candidate at an election, etc.
create temporary disability.
3. Reformative Theory
This is the prevailing theory in modern law. According to the reformative theory, object of
punishment is to make the offender realise his fault and correct himself. Thus by bringing
a positive change in the offender, punishment seeks to make him more useful member of
the society.
This theory shifts the focus from crime to criminal. A normal criminal is an abnormal
person. Normal persons have full control over their emotions. An ordinary criminal does
not have such control. He is overcome by his passions and causes harm to others. If he is
made to control his emotions and passions, much harm to others can be avoided.
This theory accepts only those punishment which have the effect of reforming an offender.
Death sentence which ends the life of the offender forecloses any possibility of reformation
Other corporeal punishments have provocative effect on the offender and his passion to
commit offence is aggravated by such punishments. They turn an offender into a
hardened criminal.
The proponents of this theory encourage the humane treatment of the offender. His case
history should be carefully studied in the same way as a doctor studies the case history of
his patient. Only then the appropriate treatment can be decided. Correction homes,
rehabilitation places, open air prisons are preferred methods of correction.
To make a person liable for his acts there are three requirements:
1. The person knows the natural consequences of his acts, i.e., he has the capacity of
judgement.
2. Using that capacity of judgement, he has taken a fair decision.
3. He has control over his acts and conduct, i.e., his acts are voluntary acts.
But in many cases any one or more of these factors may be missing. Infancy, insanity and
intoxication are the well known instances. These instances diminish the responsibility.
4. Retributive Theory
Retribution means revenge. The principle behind this theory is that a man should be dealt
in the same manner as he has dealt with others.
This theory is based on the primitive theory of justice normally attributed to Hammurabi,
“An eye for an eye – a tooth for a tooth”. The only difference is that under Hammurabi’s
rule, the victim, or his family where the victim was deceased, was allowed to take revenge
against the offender. Under the retributive theory the society does takes revenge.
Thus punishment is an end in itself. There does not remain anything is to be achieved. At
the most it may make the offender realise how the victim felt when the offence was
committed against him.
5. Expiation Theory
Expiation or atonement means doing some act for a wrong committed. By doing such act
the crime is wiped out. Thus guilt followed by punishment is equal to innocence. The guilt
of the accused is seen as a debt to the victim and expiation as its repayment. Repayment
extinguishes the liability. But here also retribution is not private retribution. It is done
through law.
Community service is a form of expiation. It is common in the US and is now being

introduced in India also. Along with the offender being relieved of his guilt, the society is
also benefited by this mode of punishment.
CIVIL WRONG
Violation of a private right gives rise to civil liability, which will be enforced through a civil
Court. The object of the civil law is to compensate the victim.
Violation of a private right in rem is a tort. A person committing a tort incurs tortuous
liability.
Violation of private right in personam is a breach of contract. A person committing a

breach of contract incurs contractual liability.
Primary and Sanctioning Rights
Object of civil law is to compensate the victim against the loss suffered by him by the
wrongful act of the wrongdoer. Therefore, where a victim’s rights are violated by the
wrongdoer, the victim gets a right to remedy. The right which is violated is called the
‘primary right’ and the right to remedy is called the ‘sanctioning right’.
Primary rights can survive without the sanctioning rights, though they may, in such a
case, be meaningless. The well known maxim ‘Ubi jus ibi remedium’ (where there is a right
there is a remedy) states this. Sanctioning rights, however, cannot exist independent of
the primary rights, because unless a primary right is violated sanctioning right does not
come into existence. If there is no primary right, violation of primary right does not arise.
A sanctioning right depends upon wrong. Primary right is independent of wrong. It is

based on some other thing such as a contract. Once two or more persons enter into a
contract, they get primary right towards each other. That right requires other parties to
the contract must perform their respective duties under the contract. If any one party
commits breach of his duty under the contract towards any other party to that contract,
such first party gets a sanctioning rights against the party committing breach of duty.
Enforcement of Rights
Law seeks to enforce primary rights. This is expressed by the Latin maxim ‘restitutio in
integram’. This means that the victim’s position must be restored to what it was prior to
the commission of wrong. In other words, the position of the victim before the commission
of the wrong and his position after the right is enforced must be the same. Thus, the
wrong must be completely wiped out, as if it was never committed.
Example
A has Rs. 10,000. He has suffered a loss of Rs. 3,000 because of the wrong committed
by B against him. Now there is a change in his position, i.e., he has only Rs. 7,000.
If B pays him Rs, 3,000 his position which was there before the commission of the
wrong is restored, because now he has again Rs. 10,000.
Thus his positions before and after the wrong are exactly the same, and he will not feel
as if any wrong was committed against him.
But primary rights cannot always be enforced. On some other occasions it may not be
expedient to enforce primary rights, though practically they may be enforced.
Examples
1. Because of a wrong committed by A, B’s house is destroyed. Now B’s right to reside
in that house can never be enforced.
2. A enters into a contract of marriage to B. But later he refused to marry her. Though
he may be physically compelled to marry B, law does not find that it is proper to do
so, because that will result in an unstable marriage.
In such cases, the law will enforce the sanctioning rights in the form of compensation
wherever possible, and in the form of damages where compensation is not possible, or
where compensation is not the adequate remedy.
In addition to enforcing a primary right by way of compensation after it is violated, law

often prevents the violation of primary right by issuing injunction to prospective violator.
In the first example, though it may be impossible for B to reside in his original house, he
may reconstruct the house and reside in it. However, in doing so he will incur expenses. If
A pays that amount to B, B’s loss is fully compensated. Such loss which may be
adequately compensated by payment of money is called a ‘reparable loss’ and the money
paid is called ‘compensation’.
In the second example, B may marry another man. But it is not the same as marrying A.
The emotional loss suffered by B by A’s refusal to marry her after agreeing to marry her
cannot be compensated by payment of any amount of money. But as there is no other way
of enforcing her right, Court will order A to pay a certain amount of money to B. This
amount of money is called ‘damages’. The loss which cannot be compensated by payment
of money is called ‘irreparable loss’.
Specific Enforcement and Sanctional Enforcement
Direct enforcement of primary right is called the ‘specific enforcement’. Thus, where the
Court orders the defendant to handover the possession of a property to the plaintiff, or
orders the defendant to discharge his duty under a contract, or orders the defendant to
repay the loan taken by him from the plaintiff, it is specific enforcement.
Indirect enforcement of primary right through compensation or damages is called the

‘sanctional enforcement’.
These remedies may be classified as
1. Restitution; and
2. Penal Redress.
Salmond points that though these remedies may not make any difference to the victim,
they may be significantly different for the wrongdoer.
Examples
1. A has the possession of B’s house. The Court orders A to handover the possession
of that house to B. A handsover the the possession of the house to B.
B has got his remedy. A has not suffered any loss.
2. A, by his negligence, destroys B’s house. The Court orders A to pay the money
needed to reconstruct the house, to B. A pays the money to B.
B has got his remedy. But A has suffered loss by paying money to B.
In both the examples, B’s position is the same. He has got remedy for the wrong suffered
by him. But the positions of A are different in the two examples. In the first example he
did not suffer any loss while in the second example he suffered loss.
‘Restitution’ means restoring or returning. It must be noted that restitution is of two

types:
1. Restitution in species; and
2. Restitution in genus or gerera.

Restitution is restoring or returning of the thing wrongfully taken by the wrongdoer from
the victim. ‘Species’ here means a specific thing, while ‘genus’ means some other thing
belonging to the same class – similar another thing.
If the wrongdoer returns the very thing taken by him from the victim, it is restitution in
species. If he is unable to return the very thing taken by him from the victim, because
may be he has lost it, or may be because the thing is destroyed, etc. and therefore he
returns a very similar thing to the victim, it is restitution in genus.
Example
A has taken B’s book for reading. He has not returned that book to B. Assume that
Court orders A to return the book to B.
1. A has the book and he returns it to B. This is restitution in species.
2. A has lost that book. He purchases a new book and gives it to B. This is restitution
in genus.
Restitution in species is the direct enforcement of primary right, i.e., specific enforcement.
Restitution in genus is the indirect enforcement of primary right, i.e., sanctional
enforcement.
DISTINCTION BETWEEN CRIMINAL AND CIVIL JUSTICE
The following are the differences between criminal and civil justice:
1. Crime, i.e., criminal wrong arises due to the violation of the public right of the victim. A
civil wrong arises due to the violation of the private right of the victim.
2. Thus, a crime is not only a wrong against the victim, but against the entire public.
There may be victimless crimes. Civil wrongs are wrongs only against the victim. There
cannot be victimless civil wrongs.
3. Therefore, in criminal justice system, the State is the party instituting the proceedings.
In civil justice system, the individual victim is the party instituting the proceedings.
4. The object of the criminal justice system is to punish the wrongdoer, i.e., the offender.
The object of the civil justice system is to compensate the victim.
Distinction Between Criminal and Civil Justice 85
5. Therefore, judgements of the criminal courts are penal in nature, while the judgements
of the civil Courts are remedial in nature.
6. Therefore, the focus of the law is on the offender in a criminal proceedings. Mens rea
plays an important role in fixing the liability of the offender. The injury to the victim is
generally not relevant. Even where the victim has not suffered any injury, the offender
may be held guilty.
The focus of the civil law is on the victim. The mens rea of the wrongdoer is not
generally relevant in a civil case. Conversely, if the victim has not suffered any loss,
generally he is not entitled to compensation. Because if there is no loss, there is
nothing to be compensated.
7. Attempt to commit an offence is an offence. But attempt to commit a tort or attempt to

commit a breach of contract are not wrongs.
8. The degree of evidence necessary to hold the accused liable is different from the degree
of evidence necessary to hold the defendant liable.
The prosecution has to prove the guilt of the accused beyond all reasonable doubts. The
liability of the defendant in a civil case may be fixed by the preponderance of probability
EXCEPTIONS
There are exceptions to the above differences between criminal and civil justice systems:
1. In many cases where the State is a party to the proceedings, the case is still of civil
nature and not of criminal nature.
2. A feloneous tort is an act which is simultaneously tort as well as an offence. Therefore,

the wrongdoer incurs both civil and criminal liabilities simultaneously.
3. In a civil case the Court is empowered to impose punitive damages, while in a criminal
case the Court may order compensation to be paid by the accused. Under sec. 250 of
the CrPC, Court may order the complainant to pay compensation to the accused.
Further, in some cases such as sec. 138 of the Negotiable Instruments Act, criminal
Court may order payment to the victim out of the fine imposed on the accused.
4. There are offences of absolute liability where absence mens rea on the part of the
accused is immaterial.
6. SOURCES OF LAW
In any legal system there must be some accepted criteria by which ‘laws’ are established.
In other words, there must be clear sources of law.
Rules and norms of any legal system derive authority from their source. The ‘sources’
articulate what the law is and where it can be found. In a developed legal system, sources
may be readily identifiable in the form. This is because in most developed states it is
usually possible to identify the legislative, executive and judicial branches.
Having done so, one can then ascertain the precise sources of law, which makes
identification of legal rules and their sources a more or less straightforward process.
BASIS, ORIGIN AND SOURCES OF LAW
Basis of law should not be confused with its origin or sources. ‘Basis of law’ refers to the
aspects which give authority or binding effect to the law. ‘Origin of law’ deals with the
historical aspects of development of law, while ‘sources of law’ tells where the provisions of
law may be found.
DIFFERENT SOURCES OF LAW
Laws are made by the various bodies having authority to make laws. Such bodies are
usually established by the Constitution of each State and are known by various names. In
addition to the provisions of the Constitution, the laws made by such bodies constitute
the source of laws for that country.
In India, for example,
1. Laws are made by Parliament and state legislatures. Such laws are called Acts. They
are also called statutes or enactments.
2. Under many statutes legislatures delegate their law-making powers to the executive. In
exercise of these powers, the executive makes Rules.
3. Under art. 141 of the Constitution, decisions of the Supreme Court are to be followed
by the lower courts. Similarly precedents laid down by High Courts are also to be
followed by the courts subordinate to the High Courts.
4. Some customs may also have the force of law.

Different Sources of Law 87
Thus, in India, sources of the law may be clearly listed as,
1. Acts,
2. Rules,
3. precedents, and
4. customs.
In this way, the sources of laws are identified with reference to the law-making bodies
which make those laws.
Many states today have a written constitution that sets out such matters in considerable
detail. In such a system one might begin by studying the written constitution of the State.
While legal systems may differ in the way their vertical systems of rule-making function
and apply, there is always a clear hierarchy to the sources of law. This hierarchical
structure also lends a degree of certainty, stability and predictability to the legal process.
The roles of the different institutions involved make the ascertainment of rules easier. In
ordinary cases a lawyer will be able to advise confidently, on the basis of such materials,
as to the conclusion that a judge is likely to reach in a particular case.
MEANING OF ‘SOURCES OF LAW’
The term ‘sources of law’, however, has generated considerable debate among writers and
is capable of conveying more than one meaning.
In English jurisprudence at least, the classic scheme of the sources of law is that of
Salmond, who divided them first into two classes:
1. ‘formal’ sources; and
2. ‘material’ sources.
‘Formal’ sources are the sources which impart to a given rule the force of law.
Constitution, for example, gives validity and binding force to the laws.
‘Material’ sources are the sources from which the substance of law is drawn. Statutes,
rules and precedents give the substance of law.
88 6. Sources of Law
Salmond further subdivided ‘material sources’ into
1. ‘legal’ sources; and
2. ‘historical’ sources.
‘Legal’ sources are those which the law itself acknowledges, such as statute and judicial
precedent in India.
‘Historical’ sources are those which, though possibly no less influential, are not so
acknowledged, as, for instance, the Roman legal system from which, via judicial
precedent, many common law rules are derived.
Legal source is recognised by law itself, while historical sources lack such formal
recognition. Legal sources are authoritative while historical sources are persuasive.
Though historical sources lack authority, they help in development of law.
A law enacted by legislature immediately becomes law while an idea written by an author,
however eminent, remains only persuasive till it is adopted by a statutory law or a
precedent. Legal sources are the only gates through which new principles can find
entrance into the law. Historical sources only act mediately and indirectly. The basic norm
of a system, such as Constitution, lays down how new principles can become law and the
old principles can be replaced by the new principles.
Finally, in a footnote, Salmond distinguished a category of ‘literary’ sources. ‘Literary’

sources consisting in ‘the sources of our knowledge of the law, or rather the original
authoritative sources of our knowledge, as opposed to later commentary and literature’.
SOURCES OF LAW
Formal Sources Material Sources
Literary Legal Historical

Sources Sources Sources
Though its primary distinction between ‘formal’ and ‘material’ sources, however difficult of
application in practice, still commands some general acceptance.
Legislation 89
LEGISLATION
MEANING OF LEGISLATION
The term ‘legislation’ has several meanings. It includes both, the law-making process as
well as the law made by following that process.
In its widest sense ‘legislation’ mean ‘law-making’. It is making of law by any means, by
any authority. For example, laying down a precedent by a Court is called the ‘judicial law-
making’.
In its narrowest sense, ‘legislation’ means law-making by the legislatures.
Quite often, the term ‘legislation’ includes both, the law made by the legislature as well as
the law made by the executive or judiciary in the form of delegated legislation. Thus, the
law made by the legislature (parent legislation) is called ‘superior’ 13 legislation, and the
delegated legislation is called the ‘subordinate’ legislation.
Salmond observes that apart from making ‘laws properly so called’, legislatures also pass
Acts to ratify a treaty, to alter the coinage, to declare war, to annex or to cede territories,
etc. In the normal sense of the expression ‘legislation’ these Acts are not ‘legislation’.
Laws made by legislatures are proactive, i.e., they are applicable to future facts, except in
some cases where the law is retrospective. Laws made by the Courts are retroactive, i.e.,
they are applicable to the facts which were already existing when the law was made.
Legislature is concerned with the future facts. Courts are concerned with the existing
facts.
For legislatures, law-making is the main function. For Courts law-making is the incidental
function.
Delegated legislation is made by executive or judiciary in exercise of the powers delegated

to them by the legislature. Therefore, in making the law, they act as the agents of the
legislature. As act of an agent is act of the principal, delegated legislation is deemed to be
the law made by the legislature, and hence treated as the extension of the statute under
which it is made. But, if there is any conflict between the parent Act and the delegated
legislation, the parent Act prevails.
13 Salmond uses the expression ‘supreme’ legislation. This term may not be appropriate in India,
as in India Constitution is the supreme legislation. Further the comparison being only between
two laws, one may be said to be ‘superior’ to the other. ‘Supreme’ is an appropriate expression
when there are more than two entities to be compared.
CHIEF FORMS OF LEGISLATION (SUPERIOR AND SUBORDINATE)
Legislation, in its ordinary sense, means law made by the legislature. Constitution
appoints the legislatures and gives them the law-making powers. In the exercise of the
powers given by the Constitution, legislatures make laws.
But in a modern State, the affairs are so complex that the entire law cannot be made by
the legislature alone. There are various reasons for this. Therefore, the legislatures often
delegate their law-making powers to executive, and sometimes to the judiciary. This is
called the delegation of legislative powers. The executive or judiciary makes law in exercise
of the law-making powers delegated to it by the legislature.
In such a case, the law made by the legislature is called the ‘parent Act’ or ‘enabling Act’.
The law made by the executive or judiciary is called the ‘delegated legislation’.
When we compare the law made by the legislature and the delegated legislation, the law
made by the legislature is called the ‘superior’ legislation, while the delegated legislation is
called the ‘subordinate’ legislation.
Superior Legislation (Primary Legislation)
The law made by the legislature, in comparison with the delegated legislation, is called the
superior legislation. It is also called ‘primary’ legislation because it proceeds from the
supreme or sovereign power of the State. It cannot be altered, repealed or otherwise
controlled by any other authority.
To this list, Salmond also adds one more term ‘annul’. The law made by the legislature
cannot be annulled by any other authority. But that is the position in England. In
England, Parliament is sovereign, and the law made by the Parliament cannot be called in
to question before any Court. But, in India and other States having a written Constitution,
the laws made by legislatures can be challenged before superior Courts on the ground of
unconstitutionality and the Court, if it finds that the law is unconstitutional, can annul it
in its entirety or in part.
The sovereignty of the sovereign power giving law-making powers to the legislature is a
question of law. It is not the question of fact in the Austinian sense of general obedience.
The sovereignty of the law-making authority does not depend upon the habitual obedience
of the people, but it depends upon some rule of law in the legal system.
Legislation 91
Such a rule defines the following three things:
1. The identity and composition of the law-making authority;
2. The procedure for making law by that authority; and
3. The legislative competence of the authority.
These may appear to put limits on the sovereignty of the authority. But that is a natural
incident of a written Constitution.
In England the doctrine of Parliamentary Sovereignty implies that there are no limits on
the powers of the Parliament. But in States having written Constitution, there are limits
on the powers of the Parliament, which are the natural consequences of having a written
Constitution.
Subordinate Legislation (Delegated Legislation)
In India basically the delegated legislation is called the subordinate legislation. There are
different authorities make laws in the form of delegated legislation. The laws made by all
these authorities are subordinate legislation.
In England, especially when Salmond wrote his book on Jurisprudence, there were other
forms of legislation which were subordinate to the laws made by the Parliament in the
sense that,
1. They could be abrogated by the law made by the Parliament; and
2. If there was any conflict between the law made by such authority and the law made by
the Parliament, the law made by the Parliament prevailed.
Forms of Subordinate Legislation
Salmond lists five types or forms of subordinate legislation:
1. Colonial Legislation;
2. Executive Legislation;
3. Judicial Legislation;
4. Municipal Legislation; and
5. Autonomous Legislation.
1. Colonial Legislation
When Britain had colonies and other dependencies, there were local legislatures. These
legislatures derived their powers from the imperial legislature and were controlled by the
imperial legislature. Thus, they were subordinate to the imperial legislature. But it was
held in many cases that within the colony or the dependency, they were supreme.
2. Executive Legislation
The complexity of the modern State makes it very difficult, if not impossible, for the
legislatures to make the entire law for the State. Therefore, the legislature delegates some
of the powers to the executive. These powers are mainly executive in nature. The powers
of any organ of the State are now classified as
1. Essential Powers; and
2. Incidental Powers.
Essential legislative powers cannot be delegated. Delegation of essential legislative powers

is called ‘excessive delegation’, and is unconstitutional. Delegation of incidental legislative
powers is constitutional and valid. Such laws are normally titled ‘Rules’, but sometimes
they are also titled ‘Regulations’.
3. Judicial Legislation
Sometimes legislature delegates law-making powers to the judiciary also. These are in
respect of what may be called the ‘law of practice’. The substantive law and the procedural
law are made by the legislature and the power to make law regarding the finer aspects of
practice are left to the judiciary.
In exercise of these powers higher judiciary lays down the rules of practice for itself as
well as for the subordinate judiciary. Such laws are also titled ‘Rules’. Supreme Court
Rules, Karnataka High Court Rules, Karnataka Civil Rules of Practice and Karnataka
Criminal Rules of Practice are the main examples of judicial legislation.
4. Municipal Legislation
Municipal Corporations and Municipal Councils are also given powers to make laws in the
form of delegated legislation. Such laws made by the Municipal bodies are normally titled
‘Bye-laws’.
Legislation 93
5. Autonomous Legislation
Some other autonomous bodies are also given the power to make laws. Bar Council of
India, Tea Board, Coffee Board, Universities and such other bodies have the powers to
make laws for regulating their internal affairs. Normally such laws are also called ‘Rules’,
but they may have other titles also.
Objectives of Delegated Legislation
The following are the objectives of delegated legislation:
1. To Reduce Pressure on the Legislature
2. To Take the Benefit of Expertise of the Executive
3. To Tackle Unforeseen Circumstances
4. To Facilitate Experimentation
5. To Maintain Secrecy
6. To Leave Matters to Administrative Nature to Executive
1. To Reduce the Pressure on the Legislature
India has adopted the welfare state model and accordingly, it has undertaken a vast
variety of functions, both sovereign and commercial. Because the State functions are
more, the laws required to carry out these functions are more. As a result, the pressure on
the legislature has increased to a great extent. Legislature does not find time to make all
the laws necessary for the functioning of the State. Therefore, some of its burden is to be
transferred to the other organs of the State to relieve pressure on the Legislature.
2. To Take the Benefit of Expertise of the Executive
As the functions of the State are of wide variety, legislature does not find itself well
equipped with the necessary expertise to make laws in all the fields of activity of the State.
Executive which is the organ looking after the administration of the State as many
Departments specially dealing in different areas of such activities. In these Departments
many experts are working, who have both expertise and field experience in different fields.
Therefore, executive has the expertise to make the laws. To make use of this expertise,
legislature delegates its legislative functions to the executive.
3. To Tackle Unforeseen Circumstances
In fast changing socio-economic-political situations, many unforeseen contingencies may

be confronted by the State. To deal with such situations new laws are needed urgently.
Legislature does not function throughout the year. It can make laws only when both the
Houses are in session. Further, the legislative procedure is time-consuming. Therefore,
legislature cannot make laws quickly to meet the urgent situations. Executive, on the
other hand, is functioning throughout the year and its law-making procedure is much
simpler and quicker than that of the legislature. Therefore, to enable the executive to
make laws to meet urgent situations, legislature delegates its legislative powers to the
executive.
4. To Facilitate for Experimentation
In new fields law-making requires much experimentation. That is, the laws will have to be
changed very frequently. This is not possible for the legislature, but executive can do so
much easily. That is another reason for the delegation of legislative powers by the
legislature to the executive.
5. To Maintain of Secrecy
Certain laws need to be secret till they actually come into force. If, for example, the prices
of goods will increase after the coming into operation of the law, people will buy such
goods beyond their needs and the sellers will try to hoard the goods, as a result artificial
scarcity may be created and the prices of the goods may sky rocket. To avoid this the law
should be made secretly and be published only after it is brought into operation.
6. To Leave Matters to Administrative Nature to Executive
Certain aspects of law are in relation to the implementation of the legislative policy. Such
aspects being administrative in nature and can be better managed by the executive rather
than the legislature. Hence the same may be delegated to the executive.
ADVANTAGES OF LEGISLATION OVER OTHER SOURCES OF LAW
Earlier law of England was in the form of Common-Law, i.e., law made by the Courts. In
other European States also the same or similar types of laws were in force. In France,
Napoleon brought into existence the practice of codification of laws.
Legislation 95
Following the French model other European States including England started enacting
laws. This form of law quickly became popular owing to some of its clear merits over the
judge-made laws.
In India and many other countries laws were in the form of traditions and customs. These
laws were also codified and replaced by statutes.
The following are the advantages of legislation over the other sources of law, especially
over precedent, which is its closest rival:
1. It is generally prospective in nature which gives prior notice of law to the people.
2. It is in writing which gives certainty and objectivity to law.
3. It is proactive, and can make laws to cover anticipated circumstances.
4. It lays down the law in a clear, specific and concise manner.
5. It increases efficiency by proper division of functions.
6. It can undo and amend the wrong or outdated laws.
1. Prospectivity
Law made by legislature satisfies the rules of natural justice that law shall be known in
advance. Law is first made and then it is applied to the facts taking place after it is made.
Precedent is made and applied to the facts in the same case. It is applicable to the facts
which happened before the date on which the precedent was established.
2. Certainty and Objectivity
Legislation is always in writing. It is rigid, and can be changed only by a procedure

established by law. This makes the law certain. It also makes the law predictable.
Further, the law in writing makes it objective. Anybody may read the law and ascertain it.
There is no subjective element involved.
3. Proactivity
Legislature may make laws for future facts anticipating them. It need not wait for the facts
to occur and then make law. Precedents cannot be laid down to take care of facts which
have not happened. Precedents are always retroactive.
4. Clarity and Conciseness
Legislation is always made in clear and systematic manner. It also uses concise language
and it is easy to find and understand the law. Precedents are to be extracted from
judgements which are often verbose. Finding the ratio decidendi is not an easy task. How
ratio decidendi in a case is to be found is in itself a debatable issue. Different jurists have
prescribed different methods of finding ratio decidendi.
5. Advancement of Efficiency by Proper Division of Powers
Legislation is a specialised function discharged by the legislature. It is in line with the

doctrine of separation of powers. Precedent merges the legislative function with judicial
function. This transgresses the doctrine of separation of powers.
6. Correcting Wrong Laws and Updating Outdated Laws
Legislation can be amended to correct the wrong laws. Amending power may also be used
to update the outdated laws, and thereby to keep law in pace with the changes in the
society. Legislation can also abrogate the precedents which are either wrong or outdated.
Though Courts can overrule the past wrong decisions and update the outdated ones. But
to do that they need opportunity. In other words, they may overrule an earlier ruling only
when a case involving same subject matter comes before them.
INTERPRETATION OF STATUTES
‘Interpretation’ means finding meaning. Interpretation of statute is the process by which a

judge seeks to ascertain the intention of the legislature expressed through the medium of
statutes.
According to Keeton the function of the judges in interpreting a statute is twofold.
1. The judge has to decide upon the exact meaning of what legislature has actually said,
and
2. The judge has to consider what the legislature might have intended to say, but did not
say because of some reason.
In short, interpretation is the method by which the meaning of the language is

ascertained, thereby making clear what was previously unclear, ambiguous and vague.
Legislation 97
Types of Interpretation of Statutes
According to Salmond, there are two cases in which the litera legis need not be taken as
conclusive and to find out the sententia legis external aid may be sought.
1. When the letter of law is obviously defective and fails to express a single, definite
coherent and complete idea.
2. When the text leads to such an unreasonable result that it is self evident that the
legislature could not have meant what it has said.
This leads us to two types of interpretation.
1. Grammatical or Literal and
2. Logical or Functional Interpretation.
When the language of the statute is plain, Courts have to interpret the statute literally.
When the language of the statute is not plain, the statute is not plain it is interpreted
logically.
Plain Meaning
When the words of a statute or any other communication have only one meaning, it is
said that the meaning of the provision or the communication is plain. Apparently in such
a case the question of interpretation can hardly arise, and the function of the court is only
to read the provision and give effect to it. However, in reality it is not so.
Before such a course is adopted the court should ensure that the meaning of the provision
is plain. This task in itself is not so plain. As observed by the Supreme Court of India in
D. Saibaba vs. Bar Council of India, “it is not possible to decide whether certain words are
plain or ambiguous unless they are studied in their context and interpreted”.
Therefore, the plain meaning rule can be stated thus:
“First the provision should be interpreted in its context, and once you come to the
conclusion that it bears only one meaning, effect should be given to that meaning by
applying the rule of literal interpretation.”
A provision is not ambiguous merely because it contains a word which in different context
capable of different meanings. A provision is ambiguous only when it is capable of more
than one meaning in the particular context in which it should be read.
INTERPRETATION INTERPRETATION OF STATUTES CONSTRUCTION
Cognitive Function Ascertaining Meaning of a Provision in a Creative Function
Finding the meaning of the statute Statute Giving meaning to thee statute by
without any addition or deletion of A process by which a judge seeks to ascertain the adding or deleting words which ought
words. intention of the legislature expressed through the to have been or ought not to have
medium of statutes. been there
GOLDEN RULE OF
LITERAL INTERPRETATION FUNCTIONAL INTERPRETATION
INTERPRETATION
If literal interpretation leads to

absurdity or nullity, the meaning may
be modified only to the extent
necessary, and no further
Rule 1 Rule 2
REGARD TO SUBJECT REGARD TO
Words of the statute must be Language of the statute must
AND OBJECT CONSEQUENCES
given their natural, ordinary or be preserved.
OF THE STATUTE OF THE STATUTE
popular meaning.
Sub Rules Sub Rules
1. Words must be given their 1. No words should be added
natural and grammatical or substituted. Long title and preamble Interpretation to Avoid
meaning. 2. Casus omissus should not be may be considered Hardship, etc.
2. Exact meaning should be supplied
preferred to loose meaning. 3. No word should be rejected
3. Technical words must be as surplus or redundant
construed in their technical Mischief Rule (Rule in Harmonious
sense. Heydon’s Case) Interpretation
Four Questions
1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law
did not provide?
3. What remedy the Parliament hath resolved and appointed to
cure the disease of the State?
4. What is the true reason of the remedy?
Legislation 99
1. Grammatical or Literal Interpretation
Literal interpretation is made by reference to the laws of speech to the words used in the
statute. It takes into account only the words used in the statute. Here the statute is
interpreted from its dictionary meaning of the words and phrases, and by applying the
rules of grammar to the phrases and sentences.
In this regard two fundamental rules must be noted. Each fundamental rule covers sub-
rules.
1. The statute must be given its natural, ordinary and popular meaning.
(a) It should be assumed that words and phrases of technical legislation are used in
their technical sense if they have any, otherwise they are used in their ordinary
sense.
(i) Words must be given their natural and grammatical meanings.
(ii) Exact meaning should be preferred to loose meaning.
(iii) Technical words must be read in their technical sense.
(b) Phrases and sentences are to be understood according to the rules of grammar.
2. The language of the statute must be preserved.
(a) Courts should not add words to the statute or substitute different words for the
words used by the legislature.
(b) Matter which should have been included by the legislature, but has not been
included (casus omissus) should not be supplied by the Courts.
(c) No word should be rejected as surplus or redundant.
2. Logical or Functional Interpretation
Logical interpretation gives effect to the intention of the legislature by taking into account
other circumstances permissible according to the settled rules of interpretation.
When the language of a statute is not plain, literal interpretation has to give way to
functional interpretation.
This includes
1. Having regard to the purpose of the Act: This is called ‘Purposive Construction’.
(a) having regard to the subject and object of the Act; and
(b) Mischief Rule or Rule in Heydon’s Case.
2. Having regard to the consequences of its Application:
(a) construction to avoid hardship, inconvenience, injustice, absurdity, and anomaly
(b) construction to avoid inconsistency or repugnancy and uncertainty or friction within

the system of law (Harmonious Construction).
Mischief Rule (Rule in Heydon’s Case)
In Kanailal Sur vs. Paramnidhi Sadhukan the Supreme Court of India described this rule
as a classic rule to be followed in construction of any statute irrespective of the nature of
that statute, where the material words are capable of bearing two or more constructions.
S. R. Das, C.J., described it as a sound rule of construction of a statute established in

England as far back as 1584 when Heydon’s Case was decided. For the sure and true
interpretation of all statutes in general four things are to be discerned and considered:
1. What was the law before the making of the Act?
2. What was the mischief or defect for which the earlier law did not provide?
3. What is the remedy that the Act has provided?
4. What is the reason of the remedy?
Smith vs. Hughes
Sec. 1(1) of the Street Offences Act, 1959 prohibited soliciting in a street. The question
before the Court was whether the prostitutes soliciting from the balconies or windows
were covered by this provision. Lord Parker, C. J. held that it did, and observed:
“I approach the matter by considering what is the mischief aimed at by this Act.
Everybody knows that this was an Act intended to clean up the streets, to enable people
to walk along the streets without being molested or solicited by common prostitutes.
Therefore, the precise place from which a prostitute addressed her solicitations to
somebody walking in the street is irrelevant.”
Legislation 101
The following are the circumstances in which literal interpretation is not adopted:
(a) Ambiguity
When a single communication has more than one alternative meaning and each meaning
is equally appropriate, there is ambiguity. In other words, an ambiguous communication
is capable of multiple interpretations.
Ambiguity arises due to multiple meanings of a word. This is called ‘semantic’ ambiguity.
For example, in “Where is your residence?” ‘residence’ may mean domicile of the person or
it may mean where he resides.
There is also another type of ambiguity called ‘syntactic’ ambiguity. ‘Syntax’ mean the
arrangement of words in a phrase or a sentence. This type of ambiguity arises due to
wrong arrangement of words in a phrase or sentence. Simple instances include:
1. Squinting Modifiers
“The trustees shall require him promptly to repay the loan”
Here does ‘promptly’ apply to ‘require’ or to ‘repay’?
2. Modifiers preceding or following a series
“Charitable corporations or institutions performing educational functions”
Here is ‘charitable’ applicable to ‘corporations’ only or to both ‘corporations’ and

‘institutions’? Similarly, is ‘performing educational function’ applicable only to
‘institutions’ or to both ‘corporations’ and ‘institutions’?
The above types of ambiguities may be called ‘linguistic’ ambiguities because they arise
due to defective language. In law they are called ‘patent’ ambiguities. Mere reading of the
word or sentence reveals the ambiguity.
On the other hand, what may be called ‘contextual’ ambiguity arises due to the
circumstance in which a communication operates. In law it is called ‘latent’ ambiguity. By
mere reading of the communication one cannot find any ambiguity. But when the
communication is sought to be given effect to, the ambiguity surfaces.
For example, a testator makes the following bequest, “I give my horse to X.” There is no
ambiguity in this sentence. But after the death of the testator when the executor of his
will wants to give the horse to X, he finds that the testator has two horses. He cannot
figure out which horse was intended by the testator. This is contextual ambiguity.
(b) Extreme Absurdity (Golden Rule of Interpretation)
Mere absurdity, injustice, inconvenience or anomaly is not a ground for dispensing with
literal interpretation.
But absurdity, injustice, inconvenience or anomaly of such nature that it cannot be

assumed by any stretch of imagination that the legislature intended such kind of
absurdity, injustice, inconvenience or anomaly, the Courts will modify the language of the
statute by adding, substituting or omitting some word or words in the statute.
The modification of the language of the statute is no more than what is absolutely
necessary to avoid the absurdity, etc. Therefore, the rule involved in this kind of
interpretation is called the ‘Golden Rule’. It strikes the golden balance between sticking to
the language of the statute and departing from the language of the statute.
The golden rule of interpretation is considered to be extension of the rule of literal

interpretation.
PRECEDENT
The Random House Dictionary defines precedent as
“in general context – a preceding instance of a case, which may serve as an example for
or a justification in subsequent cases; in legal context – a legal decision or form of
preceding, serving as an authoritative rule or pattern, in future similar or analogous
cases.”
As per Osborne Dictionary precedent means,
“a judgement or a decision of a court of law, cited as an authority, for deciding a similar

set of facts.”
As per Oxford Dictionary precedent means,
“a previous instance or a case, which may be taken as an example or rule for

subsequent cases or by which some similar act or circumstance may be supported or
justified.”
Thus, precedent is nothing but a previous decision of a court. Courts must follow the
previous decisions in subsequent cases, which have facts similar to those of the previous.
Precedent 103
PRECEDENT AS A SOURCE OF LAW
The English doctrine of precedent provides the basic principle of administrative tendency,
that is, “like cases should be decided alike”. i.e., a judge tends to decide a case, in the
same way as that in which a similar case has been decided by another judge in a previous
case. In America, the similar rule is stare decisis which mean stick to your decision.
This tendency is a little more than an inclination to do as others have done before. It is
outcome of a positive obligation to follow a previous decision in the absence of a
justification for departing from it. The following of precedent implies the saying that
“trodden path is better than the untrodden path”.
Rules of English Doctrine of Precedent
Sir Rupert Cross distinguishes three fundamental rules of precedent in English law, viz.,
1. All courts must consider the relevant case law.
2. Lower courts must follow the decision of courts above them in hierarchy.
3. Appellate Courts are generally bound by their own previous decisions.
Rules of Doctrine of Precedent in India
The following rules in respect of doctrine of precedent in India may be extracted from the
provisions of the Constitution and decisions of the Supreme Court and High Courts.
1. Art. 141 of the Constitution provides, “The law declared by the Supreme Court shall
be binding on all Courts within the territory of India.”
2. In the United Motors Case the judges expressed the view that the Supreme Court was
not bound by its previous decisions, and could in appropriate cases overrule them.
However, the Court will surely be slow to do so unless such previous decision appears
to be obviously erroneous.
3. Only majority decision of the Supreme Court is binding on the lower Courts under
art. 145(5) of the Constitution and sec. 98 of CPC.
4. In Srinivas vs. Narayan it is held that the Supreme Court of India is not bound by the
decisions of the erstwhile Federal Court of India or by those of the Privy Council.
5. In Jamnadas vs. Income Tax Commissioner it was held that the decision of the
Supreme Court binds the court and not the legislature.
Legislatures are free to enact laws contrary to the decisions of the Supreme Court,
and in such a case the law made by the legislature will prevail over the decision of the
Supreme Court.
6. Under art 141 of the Constitution, High Courts are bound by the law declared by the
Supreme Court.
7. In Radha Rani vs. Sisir Kumar it was held that the High Courts in India are still
bound by old decisions of the Privy Council unless the same have been overruled by
the Supreme Court or abrogated by a statute.
Art. 372(1) of the Constitution provides all the law in force in the territory of India
immediately before the commencement of this Constitution shall continue in force
therein until altered or repealed or amended by a competent Legislature or other
competent authority.
8. In Timmagoudar vs. Dyavamma it was held that High Courts are not bound by the
decisions of the former Federal Court of India on the ground that it was located in an
Indian State and not in British India.
9. The law declared by a High Court shall be binding on all Courts within the
jurisdiction of that High Court (Vinayak Shamrao vs. Moreshwar Ganesh), unless the
decision is inconsistent with a statute or has been overruled by the Supreme Court.
Subordinate Courts cannot depart from the decision of the High Court on the ground
that they consider it wrong or against their conscience. Any disregard of authority by
subordinate courts amounts to insubordination and dereliction of duty, and therefore
to be deprecated.
In Rex vs. Ram Dayal, Seth, J. expressed his view that, omission to follow precedent
of High Court is as much dereliction of duty as omission to refer to sections of the
statute.
10. However the subordinate courts are not bound to follow the decisions of the other
High Courts which have only a persuasive authority.
Therefore, in India, doctrine of precedent is the Constitutional mandate, not just a rule of
practice.
Precedent 105
MERITS OF DOCTRINE OF PRECEDENT
Doctrine of precedent serves more than one purpose. The significant among them are
1. It gives certainty to law.
2. It achieves equality before law.
3. It upholds the reputation of the Courts for fairness and integrity.
4. It saves time and efforts of the Court by avoiding the need to solve the same problem
repeatedly.
1. Legal Certainty
As similar cases are decided in similar manner, law becomes certain and hence
predictable. This enables advocates to advice their clients with confidence, and enables
people to regulate their conduct in a manner required by law.
2. Equality Before Law
Decisions are based on the facts of the cases. They are not based on the parties to the
cases. Therefore, Courts decide like cases in like manner irrespective of parties. This
means that all the parties are treated equally.
3. Reputation of Court for Fairness and Integrity
If similar cases are decided in different ways, people will lose confidence in Courts. They
will doubt the fairness and impartiality of Courts. They may even doubt the integrity or
competence of the judges. Where like cases are decided alike people will have confidence
in the fairness and impartiality of Courts, and integrity and competence of judges.
4. Saves Time and Effort of the Court
When a new type of case comes before a Court, the Court will have to find the law
applicable to the facts of the case. It has to interpret the law. And after that applying the
law to the facts of the case, the Court has to decide the case.
When a similar another case comes before the Court, the Court need not repeat that
entire process again. It has already decided a similar case and has already determined the
law applicable to the facts, Now it has to apply the same law and decide the new case.
DECLARATORY THEORY OF PRECEDENTS
It was believed that laws may be made only by the King and the Parliament. The function
of Courts is to interpret laws, not make one. Therefore, Courts may only declare, i.e.,
clarify the law made by the legislatures. Sir Mathew Hale, in his famous work Common
Law, said that the ‘declarations of law’ made by the Courts have, nonetheless, a great
weight and authority in expounding, declaring and publishing what the law is.
But, this opinion, that the Courts cannot and do not make laws, did not last long. The
Courts of Chancery in England laid down the principles of equity, which were not derived
from any custom or law made by the Parliament. The origin of these principles was in the
decisions of the Courts only.
Even in case of the English common law we may see that judges in addition to applying
the existing rules, not only widen and extend the application of the existing rules of law,
but also create an entirely new principle.
In India, art. 141 of the Constitution provides that the law declared by the Supreme Court
shall be binding on all Courts in India. The expression ‘declared’ shows the influence of
this old belief which is not in currency any more. Supreme Court has made new principles
in the exercise of its power under art. 141. Most important example is Visakha Case.
That means, all the Courts in India have to apply the law made by the Supreme Court of
India. Therefore, people in India have to take notice of the law and regulate their conduct
accordingly. Thus, indirectly, the law made by the Supreme Court is binding on the people
TWO SENSES OF THE TERM ‘DOCTRINE OF PRECEDENT’
Salmond points out that the term ‘the doctrine of precedent’ has two meanings. One loose
meaning and the other strict meaning
In the loose meaning, the term means merely that precedents are reported, may be cited,
and will probably be followed by the Courts. This was the doctrine that prevailed in
England until the nineteenth century, and it is still the only sense in which a doctrine of
precedent prevails on the Continent.
In the second, the strict meaning, the phrase means that precedents not only have great
authority but must (in certain circumstances) be followed. his was the rule developed
during the nineteenth century and completed in some respects during the twentieth.
Precedent 107
Salmond further observes that most of the arguments advanced by supporters of the
doctrine of precedent, such as Holdsworth, may be found to support the doctrine in the
loose rather than in the strict meaning. On the other hand, those who attack it, such as
Dr. A. L. Goodhart, attack it in its strict and never in its loose meaning.
Thus the two sides are less at variance than would appear on the surface. The real issue
is whether the doctrine of precedent should be maintained in its strict sense or whether
we should revert to the loose sense.
There is no dissatisfaction with the practice of citing cases and of attaching weight to
them; the dissatisfaction is with the present practice of treating precedents as absolutely
binding.
KINDS OF PRECEDENT
Precedents are classified as
1. Binding (Authoritative or Coercive) Precedents; and
2. Persuasive Precedents.
1. Binding Precedents
A precedent laid down by a superior Court is binding on all Courts subordinate to it. They
have to follow it whether they approve of it or not. So also, precedent laid down by a Court
is binding on that Court. In higher judiciary, i.e., in High Courts and Supreme Court,
there are many benches. These benches are of three types.
1. single judge bench (one judge);
2. division bench (two judges); and
3. full bench (three or more odd number of judges)
There is a hierarchy among these benches. A division bench is superior to a single judge
bench, and a full bench is superior to a division bench and a single judge bench.
Benches of equal number of judges are called ‘co-ordinate benches’. Precedent laid down
by a bench is binding not only on the subordinate Courts and inferior benches of the
same Court but also on the co-ordinate benches of the same Court.
Judicial decorum or judicial comity requires that no bench can disregard or refuse to
follow a precedent laid down by a co-ordinate bench. If a bench disapproves of the
precedent of a co-ordinate bench, it has to request the Chief Justice to form a higher
bench and refer the matter to that bench. The decision of that higher bench will be now a
precedent binding on the inferior benches and also on co-ordinate benches.
2. Persuasive Precedents
Precedent laid down by a Court in a jurisdiction is not binding on Courts in another

jurisdiction. Thus, the precedent laid down by a High Court is binding on all Courts
subordinate to it, but they are not binding on the Courts subordinate to some other High
Court. But they have persuasive effect on those Courts.
The following are the instances of persuasive precedents:
1. Decisions of one High Court have persuasive effect on other High Courts and on Courts
subordinate to other High Courts.
2. Decisions of foreign Courts have persuasive effect on Indian Courts.
3. Decisions of the Privy Council in appeals from other countries have persuasive effect on
Indian Courts.
4. Decisions of the Federal Court of India have persuasive effect on Indian Courts.
5. Decisions of an inferior Court has persuasive effect on a superior Court. Decisions of

High Courts can have persuasive effect on Supreme Court.
CIRCUMSTANCES AFFECTING THE FORCE OF PRECEDENT
There are various circumstances in which the force of a precedent is affected. Some of
these circumstances may reduce the force of a precedent, while others may totally
abrogate the precedent. Salmond lists eight circumstances affecting the force of precedent
1. Abrogation of Decisions;
2. Affirmation or Reversal on a Different Ground;
3. Ignorance of a Statute;
Precedent 109
4. Inconsistency with an Earlier Decision of a Higher Court;
5. Inconsistency with an Earlier Decision of a Co-ordinate Court;
6. Precedent Sub Silentio;
7. Decision of an Equally Divided Court;
8. Erroneous Decision.
1. Abrogation of Decisions
A precedent will lose its force altogether in two circumstances:
(a) When a legislature enacts a statute or amends a statute with a provision inconsistent
with the precedent.
Example
Decision of the Supreme Court in Shah Bano Case was abrogated by the Parliament by
enacting the Muslim Women (Protection on Divorce) Act, 1986.
(b) When a higher Court overrules the precedent.
(c) Where a higher Court reverses the decision of the lower Court in the case in which the
precedent was laid down. Reversal of the decision normally means that the reason
given by the lower Court is incorrect.
2. Affirmation or Reversal on a Different Ground
If an appellate Court reverses the judgement in which the precedent was laid down on a
different ground, it becomes unclear whether the reasoning given by the lower Court was
right or wrong. Here, the precedent does not lose its force altogether, but its validity
becomes doubtful. That reason may still be correct because the appellate Court did not
reverse the decision by deciding that that ground is wrong.
Similarly, even though the appellate Court upholds, the decision of the lower Court in
which the precedent was laid down, it may do so on a different ground. Thus, both the
lower Court and the appellate Court may give the same decision on different grounds.
Here, the appellate Court giving a decision on a different ground casts a shadow of doubt
on the correctness of the decision of the lower Court, and the precedent becomes one of
doubtful validity.
3. Ignorance of a Statute
A decision given in ignorance of a provision of a statute or any other rule having the force
of a statute is not binding. Similarly, if the Court though had the knowledge of the
existence of such a provision, misread the provision, the decision is not binding.
Example
Sec. 57 of the Indian Succession Act, 1925 provides, “... all wills and codicils made by
any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, …”
1870 was read as 1970 in a case by the Karnataka High Court in Srinivasa and Others
vs. K. V. Srinivasa Rao.
4. Inconsistency with an Earlier Decision of a Higher Court
If the decision is inconsistent with an earlier decision of a higher Court, it cannot have a
binding force.
5. Inconsistency with an Earlier Decision of a Co-ordinate Bench (Per Incurium)
A bench of a High Court or Supreme Court is bound by the precedents laid down by an
equal bench (co-ordinate bench). But if that decision was given in ignorance or
forgetfulness of a conflicting decision of another co-ordinate bench of the same Court, it is
not binding. Such a decision is called a decision per incurium.
Salmond observes that, curiously, in that case, the earlier decision also loses its binding
effect and a later co-ordinate bench is free to follow either of them.
But in India, in such a case, the later co-ordinate bench which finds two conflicting views
of two co-ordinate benches of the same Court, requests the Chief Justice to constitute a
higher bench and let it decide which one should be the precedent. The higher bench may
also discard both the conflicting views and give its own different view.
Example
In Kailash Chandar Asthana vs. State of U. P., it was held by a bench of the Supreme
Court that giving copy of the report of the enquiry officer in a departmental inquiry to
the party is not mandatory. But in Union of India vs. Mohd. Ramzan Khan a co-ordinate
bench of the Supreme Court held per incurium supply of the copy of report to the
opposite side is mandatory. In Electronic Corporation of India vs. B. Karunakar another
co-ordinate bench got the matter referred to a larger bench.
Precedent 111
6. Precedent Sub Silentio
A precedent is said to pass sub silentio if the decision is given without considering a point
of law involved.
Example
A case involves two points A and B. Decision on B cannot be given without first giving
decision on A. But the Court gives decision on B without adverting to A. Decision of the
Court does not become binding.
7. Decision of an Equally Divided Court
Where an appellate Court having an even number of judges is equally divided the decision
cannot become precedent. Here the appeal is technically dismissed and the decision of the
lower Court is upheld.
This is normally not possible now, as all full benches consist of odd number of judges.
Therefore, there will be majority decision and minority decision. The majority decision
becomes precedent.
In case of a division bench if there is division of decision, the point is referred to a third
judge, and his decision becomes the majority decision, and hence, becomes precedent.
8. Erroneous Decision
Though a decision based on erroneous interpretation of law or on a wrong principle of law,

it is still binding on the lower Courts. Judicial decorum does not permit even a co-
ordinate bench to refuse to follow the precedent. It may request the Chief Justice to
constitute a higher bench to decide the matter.
One more reason may be added to this list.
9. Decision Given on Concession
Where one of the parties concedes that it has no case, i.e., it has no claim or defence, as
the case may be, the Court may decide the case in favour of the opposite party. Here, the
Court has not applied its mind to the case, and therefore such a decision cannot serve as
a precedent.
PROSPECTIVE OVER-RULING
Traditionally, in England or in USA, as well as in India, when a precedent is overruled, the

overruling is given both retrospective and prospective effect. That is disputes are governed
by the overruling decision, whether they occurred before or after it.
However, when a court overrules prospectively it says that in future a distinction will be
made between disputes arising before the decision and those arising after the date of the
decision. Those which have taken place before will be decided according to the old law, as
stated in the overruled precedent, and those which will take place afterwards by the new
rule of the overruling decision.
At this stage two points should be made clear, namely,
1. Date: The critical date should be the date of the overruling decision. The date of facts
will decide whether the old precedent should be applied to them or the new precedent
should be applied. Date of the institution of the case and date of the judgement are
irrelevant.
Thus, if the facts took place before overruling, old precedent is applicable even though
the case was instituted after the overruling.
2. Parties: The second point flows from the first. The parties to the suit in which the old
decision is overruled will necessarily be litigating a dispute which took place before the
overruling decision. Hence, the old rule should be applied in the overruling case itself.
Prospective overruling has the advantage that it protects the vested rights and does not
belie the legitimate expectations of the people. People who have acted in reliance of the
precedents laid down by the Court will not be put to disappointment.
In India, for the first time in the history of the constitution the “Doctrine of Prospective
Overruling” was applied in the famous case of Golak Nath vs. State of Punjab (1967). In
this case the Supreme Court held that the Parliament cannot amend the Part III of the
Constitution, so as to take away or abridge the fundamental rights conferred by this part.
If this judgement were to be given retrospective effect, as all the judgements of court must
be, the First, Fourth and Seventeenth amendments and with them a large number of
statutes that were enacted to protect would become ultra vires the Constitution. Therefore
the Court ruled that their judgements would only have prospective effect.
The Court emphasized that this technique of prospective overruling would be exercised
only by the Supreme Court and limited to Constitutional matters.
Precedent 113
RATIO DECIDENDI AND OBITER DICTUM
A judgement of a Court has the following components:
1. cause-title of the case;
2. summary of pleadings of the parties;
3. issues or points for consideration, as the case may be;
4. decision on the issues;
5. reasons for the decision; and
6. order.
The order in the judgement is called the operative portion of the judgement. It is a matter
inter partes, i.e., matter between the parties, and therefore, is binding on parties only. It
binds them as res judicata. Thus, the parties are bound to follow the judgement.
The reason for the decision is called ratio decidendi (pl. rationes decidendi). It has the
binding nature as precedent.
Ratio decidendi is the proposition applied or acted upon by the Court or regarded as
binding by the Court. In Quinn vs. Leathem, Lord Halsbury observed, “A case is an
authority for what it decides …”
Sometimes, a Court may, after giving a decision on the facts of the case, go on to discuss
what the decision could have been if the facts were different. Here, the Court gives an
opinion on hypothetical facts.
Such observation is called the side observation, or obiter dictum (pl. obiter dicta).
According to Dias, pronouncement of law, which is not part of the ratio decidendi is
classed as obiter dictum.
Obiter dicta do not have any binding effect. They are not binding on the parties, because
they are not made in respect of the facts of their case. They are not binding as precedent
because they are not acted upon by the Court, i.e., no order is passed by the Court based
on that principle. However, obiter dicta of the Supreme Court cannot be lightly taken by
the lower Courts, especially the subordinate judiciary. They carry highly persuasive value.
Problems in Finding Ratio Decidendi
It is not an easy task to find the ratio decidendi in any particular decision. In practice, the
task of extracting the ratio of a decision is beset with technicalities. Therefore, it is
perfectly possible for any two courts to drive at diametrically opposite views as to the real
ratio of a decision.
There are many reasons for this difficulty. Salmond states four reasons for the difficulty.
1. The ratio decidendi may be stated in very wide language. The Court laying down the
ratio does not stipulate the exceptions because they are not necessary for the decision
in that case. These exceptions are laid down in subsequent cases by different judges.
Different exceptions may be laid down in different cases.
Example
In Bridges vs. Hawkesworth (1851), it was held that where a customer found some
money on the floor of a shop, he, rather than the shopkeeper, may keep it. The rule laid
down is popularly known as the ‘finders-keepers’ rule.
In South Staffordshire Water Company vs. Sharman (1896) where the defendant found
two gold rings in a private pool owned and occupied by the plaintiffs it was held that
the defendant cannot keep the rings.
South Staffordshire Water Company Case was distinguished from the Bridges vs.
Hawkesworth, on the ground that in the first case the pool was not open to the public,
while in latter case, the shop was open to the public.
Thus, after forty five years after the general rule was laid down in Bridges vs.
Hawkesworth, the exception was laid down. In some other cases the situation may be
even worse. After the ratio is laid down in a case, in a series of subsequent cases a
series of exceptions may be laid down, a person may be left wondering how many more
such exceptions are to follow.
2. Where the judge does not cite any reason for the decision, one has to guess the reason
in the mind of the judge.
3. Where the judge discusses many propositions on which the decision can be justified, it
is difficult to find out exactly which proposition was applied to arrive at the decision.
4. A number of decisions on the same facts may be given in different cases, each on a
different ground.
Precedent 115
Tests for Finding Ratio Decidendi
Eminent Western Scholars like Wambaugh, Goodhart, Gooderson et al have propounded

theories to ascertain true rationes decidendi.
Wambaugh’s ‘Inversion Test’
Wambaugh propounds his famous ‘inversion test’ with an assumption that ratio decidendi
is a general rule without which a case might have been decided otherwise. He propounded
this test of inversion for determining whether a given proposition is ratio or not.
For the better understanding of this test it is better to put the test in his own words.
“First carefully frame the supposed proposition of law. Then in that proposition insert a
word reversing its meaning. Then enquire whether if the Court had conceived this
proposition to be good and had had it in mind, the decision would have been the same.
If the answer is “yes” then the case is not a precedent for that proposition. On the other
hand if the answer is “no” the case is an authority for the original proposition and
possibly for other propositions also”.
In short, when a case turns on only one point the proposition or doctrine of the case,
the reason of decision, the ratio decidendi must be a general rule without which the
case must have been decided otherwise.
The more important point is according to Wambaugh a proposition of law which is not
a ratio decidendi under the above test constitute a mere obiter dictum.
This method does not succeed where the judge does not give any reason for his decision,
or where the judge gives several reasons for his decision. In the first case there is no
proposition to be reversed. In the second case, even if any one of the reasons is reversed,
still the decision may not change because there are other reasons to support it.
Goodhart’s ‘Material Facts Test’
According to Dr. A. L. Goodhart the ratio decidendi of a case is determined by ascertaining

the facts treated as material by the judge. It is the principle to be derived from the judge’s
decision on the basis of those facts. Any court bound by the case must come to a similar
conclusion unless there is a further fact in the case before it which it is prepared to treat
as material, or unless some fact treated as material in the previous case is absent.
This test suggests two steps to extract the ratio decidendi of a case:
1. Determination of all the facts as seen by the judge.
2. Find out the facts as stated is first step , as seen by the judge which facts he found as
material for his judgement.
Illustration
Dr. Goodhart illustrates his telling remark that it is by his choice of the material facts
that the judge creates law by referring to Rylands vs. Fletcher.
In that case the defendant employed an engineer to make a reservoir on his land.
Owing to the engineer's negligence some water escaped and flooded the plaintiff's land.
Dr. Goodhart analyses the case in the following manner:
Facts of the Case
Fact 1: D had a reservoir built on his land.
Fact 2: The contractor who built it was negligent.
Fact 3: Water escaped and injured P.
Material facts as seen by the Court: Fact 1 and Fact 3
Conclusion: D is liable to P.
By the omission of Fact 2 the doctrine of absolute liability was established.
Therefore, to determine the principle of a case the most essential step is to determine
what were the material facts on which the judge has based his conclusion.
1. When the Court specifically states any of the facts to be material must be considered
as material.
2. When the Court specifically states any of the facts to be immaterial must be
considered as immaterial.
But judges rarely say which facts are treated by them as material or immaterial.
Therefore, we have to find out the facts which are treated as material by the judge. There
are no rules which will help us in isolating these material facts. However the following
tentative suggestions may prove of some aid:
1. The facts of a person, time, place, kind and amount are presumably immaterial unless
stated to be material.
Precedent 117
Because as a rule the law is the same for all persons, at all times and at all places
within the jurisdiction of the court.
2. If there is no opinion, or if the opinion does not contain a statement of the facts, then
we must assume that all the facts given in the report are material except those which
on their face are not.
3. Where there is an opinion but the facts are not stated in it, we must examine the report
with great care because the reporter may have left out an essential point.
It is for this reason in particular that it is useful to compare the various reports of the
same case if there is any doubt as to the principle involved in it.
A judge may expressly or impliedly treat certain facts as material or immaterial. It is

comparatively seldom that a judge expressly indicates which facts he considers material
or immaterial.
CUSTOM
Custom is a rule in force by virtue of long usage and has obtained the force of law. It may
be private, public or a general custom. According to Salmond, “custom is frequently the
embodiment of those principles which have commended themselves to the national
conscience as principle of justice and public utility.”
A custom is generally taken to mean the particular rule of a family, a locality or a district
which has existed from the time immemorial or from long usages and has obtained the
force of law.
The requirement of long usage in essential and the practice must be shown to have
continued in such circumstances and for such length of time that it has come to be
exercised as of right.
CUSTOM AS A SOURCE OF LAW
For a custom to have the force of law, the following requirements should be satisfied:
1. It must be ancient i.e., its existence is beyond human memory—“Time whereof the
memory of man runneth not to the contrary.”
2. It must be continuous and conform. It means that if possession for some time is
disturbed, the claim to enjoy custom is not abandoned.
3. It must be peaceable.
4. It must be certain, definite and constant.
5. It must be compulsory and not optional.
6. It must not be against morality or public opinion.
7. It must be reasonable.
8. It must not be expressly forbidden by law.
TYPES OF CUSTOMS
There are various types of customs, such as
1. General Custom: General custom are those customs that prevail throughout its
territory of the state. The burden of proving that a general custom is not recognized in
a particular locality lies on the person who makes allegation.
2. Private Custom: It affects particular family or group of families. The burden lies on
him who claims advantages from such custom. The family custom must be alleged and
proved with distinctness and certainty.
3. Public Custom: Public custom is such type of custom which govern the common
interests of public at large of the particular area. Examples of public custom are right
to way, right to bath, etc.
4. Local Custom: The local customs means those customs which apply only to a definite
locality. Local customs may be
(a) Geographical local; and
(b) Personal local customs.
Local custom is ‘binding in all persons in the local area and differs entirely from family
custom.’
5. Custom Without Sanction: Customs without sanction are those which are non-
obligatory.
Custom 119
6. Custom Having Sanction, i.e., Legal Custom: These customs are binding having the
force of law. They are recognized by the courts and have become part of the law.
7. Conventional Custom: Conventional customs are those customs which govern the
parties to an agreement. Such customs are binding “not due to any legal authority
independently possessed by them, but because it has been expressly or impliedly
incorporated in a contract between the parties to it.”
CODIFICATION OF LAW
Precedents and customs are important sources of law. But legislation as a source of law
has its own advantages over precedents and customs. Certainty and objectivity,
conciseness are main such advantages. Amendments are easier. Moreover, the law is
better published.
These advantages outweigh the defects of legislation that in modern times is to convert all
the laws to the form of legislation. This process is called ‘codification’ and legislation is
called the ‘codified law’.
In England, portions of the common law are codified. In India, the traditional laws such as
the Hindu law are codified.
There are two variants of codification:
1. codification simpliciter; and
2. codification with amendment.
For example, Hindu Marriage Act, 1955 codifies traditional Hindu law on marriage with
amendments. Bigamy which was recognised by the traditional law is abolished by the
Hindu Marriage Act. On the other hand, divorce which was not recognised by the old
Hindu law is introduced by the codified law.
Codification cannot, however, replace the precedents. There will be precedents giving the
interpretation of the codified law. In such cases precedents supplement, interpret,
reconcile and develop the law covered by a legislation.
PART II – LEGAL CONCEPTS
7. LEGAL RIGHTS AND DUTIES
ABOUT RIGHTS AND DUTIES
Rights and duties, along with person and property, are among the most fundamental
concepts of law.
Rights and duties may be moral rights and duties as well as legal rights and duties. In
jurisprudence, our focus will be on legal rights and legal duties.
In law, a ‘person’ is defined as an entity having rights and duties. Therefore, rights and
duties vest in a person. There cannot be a person without rights and duties. On the other
hand, there cannot be rights and duties without a person.
The very purpose of law is to enforce rights and duties. Therefore, without rights, there is
no function of law, and therefore, there is no need for law.
DEFINITIONS AND MEANING
‘Right’ may be defined as the capacity of a person to compel another person to do or not
do an act. The person having the right is called the ‘owner of the right’.
‘Duty’ may be defined as the obligation of a person to do or to abstain from doing a act at
the instance of another person. The person having the duty is called the ‘owner of the
duty’.
The expressions ‘legal right’ and ‘legal duty’ are used in two senses. First, in their wider
sense, they mean rights and duties created by law as well as rights and duties recognised
by law. Second, in their narrower sense, they mean the rights and duties created by law,
but not the rights and duties not not created by law but only recognised by law.
In this second sense, rights and duties are classified as ‘legal rights’ and ‘legal duties’ on
one hand and as ‘contractual rights’ and ‘contractual duties’ on the other hand. Here,
legal rights and legal duties are created by law, while contractual rights and contractual
duties are not created by law, but are recognised by law. Therefore, in the first sense both
legal rights and legal duties as well as contractual rights and contractual rights and
contractual duties are called ‘legal rights’.
124 7. Legal Rights and Duties
Legal Rights and Legal Duties

(In their wider sense)
Legal Rights and Legal Duties Contractual Rights and Duties

(In their narrower sense)
Rights ans duties created by law Rights ans duties recognised by law
CORRELATION BETWEEN RIGHT AND DUTY
Every right must have a corresponding duty. Conversely, every duty must have a
corresponding right. In other words, there cannot be a right without a corresponding duty
and there cannot be a duty without a corresponding right.
Further, a right and its corresponding duty must vest in different persons. A right and its
corresponding duty cannot be vested in the same person.
Example
In case of a loan, the creditor has a right to recover the loan from the debtor. The
debtor has a corresponding duty to repay the loan to the creditor.
The creditor and the debtor must be two different persons. A person cannot be his own
debtor. Similarly, a person cannot be his own creditor.
But, a person may be creditor and debtor in two different capacities.
Illustration
A is uncle and B is his nephew. B needs money for setting up business. A gives him a
loan of Rs. 5 lakhs. A writes a will and makes bequests to his children and also makes
a bequest to B. He appoints B as his executor under that will.
After the death of A, B has the duty to recover the debts of A from A’s debtors. Thus, B,
in the capacity of A’s executor is the creditor and in his individual capacity debtor.
If there is no duty corresponding to a right, then the right cannot be enforced. Thus, if
there is no debtor, creditor cannot recover the debt. There is no one against whom he may
enforce his right. In the same manner, if there is no corresponding right, the duty need
not be discharged. If there is no creditor, the debtor need not repay his loan. There is no
one who can enforce his duty.
About Rights and Duties 125
A right and its corresponding duty are correlated to each other, that is to say, a right and
its corresponding duty are
1. coexisting; and
2. coextensive.
Co-existence of Rights and Duties
A right and its corresponding duty coexist. That means they come into existence at the
same moment and they cease to be in existence at the same moment. Either of them
cannot come into existence before or after the other. Similarly, neither of them can cease
to be in existence before or after the other.
Illustration
A gives a loan to B. The moment A gives the loan to B, A gets a right to recover loan
from B. At the same moment, B gets a duty to repay the loan to A.
If A’s right comes into existence before B’s corresponding duty comes into
existence, then till B’s duty comes into existence, there will be only a right without
a corresponding duty. Similarly, if B’s duty comes into existence before A’s
corresponding duty comes into existence, till A’s right comes into existence, there
will be only duty without a corresponding right.
Co-extension of Rights and Duties
A right and its corresponding duty are coextensive. That means that their extent is the
same. Right cannot be larger than its corresponding duty. And duty cannot be larger than
its corresponding right.
Illustration
A gives a loan of Rs. 10,000 to B. A has a right to recover Rs.10,000 from B. And B has
a duty to repay Rs. 10,000 to A. A cannot have right to recover an amount larger or
smaller than the amount repayable by B to A.
If A has a right to recover Rs. 10,000 from B and B has duty repay Rs. 12,000 to A,
then in respect of Rs. 2,000 there will be only duty without corresponding right.
Similarly, if A has a right to recover Rs. 10,000 from B and B has a duty to repay only
Rs. 8,000 to A, then in respect of Rs. 2,000 there is only right without duty.
KINDS OF RIGHTS (AND DUTIES)
1. Legal Rights and Moral Rights
Rights and duties may be
1. legal rights and legal duties; and
2. moral rights and moral duties.
There are only two sources of rights and, therefore, of duties:
1. Law; and
2. Contract.
Moral rights have only one source, that is, morality.
A legal right is an interest recognised and protected by law. A moral right is an interest
recognised and protected by morality.
Therefore, legal rights are enforceable in Courts. Moral rights, as such, are not enforceable
in Courts. They may be enforceable in Courts if they are adopted by some source of law,
such as a provision of a statute or a rule customary law.
2. Public Rights and Private Rights
We have already noted that legal rights may be classified as public rights and private
rights.
Public rights of a person are the rights given to him for the protection of the public. They
are not his rights, but are the rights of the public vested in him.
Violation of a public right is an offence or crime. The entire public is the aggrieved party.
The wrong-doer is liable for punishment.
Private rights of a person are the rights given to him for his own protection. They are his
own rights.
Violation of a private right is a civil wrong. Only the victim is the aggrieved party. The
victim is entitled to compensation.
Private rights are further classified as private rights in rem and private rights in personam.
A right in rem is a right available to the owner of the right against the entire world.
Therefore, every person other than the owner of the right in the world has the
corresponding duty. A public right is always a right in rem. Only law can create a right in
rem. Therefore it is a legal right14. Violation of a private right in rem amounts to tort.
A right in personam is a right available to the owner of the right against only one or some
persons. A right in personam is created by the parties by entering into contract. Therefore
it is called a contractual right. Violation of a right in personam amounts to breach of
contract.
Animal Rights
Though we often speak and hear about animal rights, animals have no rights. Otherwise
they could have acquired personality. Salmond says that a person does not have any duty
towards animals, but he has duties in respect of them.
A person may have duty not to ill-treat a child. In that case, the child has a right not to be
ill-treated by that person. Thus, there is a legal relationship, vinculum juris15, between that
person and the child. If such person ill-treats a child he violates the right of that child.
A person may also have a duty not to ill-treat a dog. But the dog does not have a right
against that person. there is no legal relationship, vinculum juris, between that person and
the dog. Ill-treating the dog does not amount to violation of the rights of that dog.
A duty corresponding to the so called ‘animal right’ is, in reality, a public duty. Breach of
that duty attracts punishment.
3. Perfect Rights and Imperfect Rights
A perfect right is a right which is recognised by law and also enforced by law. An imperfect
right, on the other hand, is a right which is recognised by law, but it is not enforced by
law.
A perfect right becomes an imperfect right after the expiry of the period of limitation.
Thus, a right to recover a debt is a perfect right, but a right to recover time-barred debt is
an imperfect right. Thus, limitation bars the remedy, but does not extinguish the right.
14 In the narrower sense of the term.

15 Vinculum juris means bond of legal obligation, because of which a legal relationship arises
between the parties.
Rights Against State
State, as a legal person, is liable under law in the same manner as any other individual.
State may be sued in the same manner as any other person, by a person aggrieved by the
State action which amounts to a tort or breach of contract. Thus a person may enforce his
legal right against the State.
Salmond states that such a right is an imperfect right because a judgement of a Court
against the State cannot be executed. This is not true in the present day India, and the
right of a person against the State is a perfect right.
Rights, the Enforcement of Which is Prohibited by Law
Salmond gives another instance of an imperfect right. That is a right the enforcement of
which is barred by law. These are the same instances as limitation. The enforcement of a
right is barred because of some fault of the aggrieved person or other reason.
Law of limitation bars the enforcement of a right because the aggrieved person was not
quick enough to enforce it. The maxim “Vigilantibus non dormentibus jura subvenient” (law
helps one who is alert about his right, not the one who sleeps over the right) is applicable
to such cases.
But others may be only the instances of bar on a suit or other proceedings, not
necessarily bar on enforcement of right of the person. Res judicata and doctrine of double
jeopardy are the instance of such cases. Here the rights of the person are already decided
by some Court, and hence he cannot again bring the same right for adjudication.
Ubi jus ibi remedium (where there is a right there is a remedy) is applicable to all cases.
And the law cannot give a right and bar the remedy. If law does not provide any specific
remedy for a right, still the Courts may apply general principles and provide remedy to the
person whose rights are violated.
Bar on Jurisdiction of Courts
In India, right to judicial review is a part of the basic structure of the Constitution. A law
may bar the jurisdiction of a Court in respect of enforcement of a right. But while doing
so, the law has to create an equally efficacious alternative forum where the right can be
enforced. Therefore, the right is still a perfect right. Only the forum of its enforcement
changes.
4. Positive Rights and Negative Rights
A right is a capacity of a person to compel another person to do or to abstain from doing

an act.
This means that the owner of a right may compel the owner of the corresponding duty to
do some act which is the subject-matter of the right. In that case the right is called a
‘positive’ right.
It also means that the owner of a right may prevent the owner of the corresponding duty
from doing some act which is the subject-matter of the right. In that case the right is
called a ‘negative’ right.
In the first case, i.e., of the positive right, the corresponding duty is a positive duty. It is
an obligation of the owner of the duty to do an act at the instance of the owner of the
corresponding right.
In the second case, i.e., of the negative right, the corresponding duty is a negative duty. It
is the obligation on the part of the owner of the duty to abstain from doing the act.
5. Proprietary Rights and Personal Rights
A person gets some rights in his own capacity, while he gets some other rights as a person
having interest in a property. The former are called ‘personal’ rights and the latter rights
are called ‘proprietary’ rights.
Personal rights of a person are attached to himself. He will lose those rights only when
some law, for some reason, divests him of those rights. Otherwise he will enjoy them till
his death.
A personal right is neither transferable nor heritable. This means that a personal right
cannot be transferred to another person. A person’s personal rights die with him. His legal
heirs cannot inherit them. E.g., right to reputation of a person is his personal right.
Proprietary rights of a person are attached to the person’s property. They run with the
property. If the person transfers the property to another person, he will lose the right and
the transferee acquires the right. After the death of the person his legal heirs inherit the
right. A proprietary right is both transferable as well as heritable. E.g., right to ownership
of a property is a proprietary right.
Therefore, a personal right is not valuable, a proprietary right is valuable.

6. Rights in Re Propria and Rights in Re Aliena
A right ‘in re propria’ is the right of a person in respect of his own property, while a right
‘in re aliena’ is the right of a person in respect of a property of some other person. Rights
in re aliena may be called encumbrances.
A right of ownership is clearly a right in re propria. An easement is an instance of a right

in re aliena. Thus where two lands are adjacent to each other and belonging to two
different owners, the owner of one land may have a right of way on the other land
belonging to the other owner.
Illustration
← A’s Right of Way →
LAND X LAND Y
Land belonging to A Land belonging to B
Dominant Heritage Servient Heritage
In this example, the two lands X and Y are adjacent lands belonging to two different
owners A and B, respectively. A, the owner of the land X has a right of way on the land
Y belonging to B. This right of A over the land of B is called an easement.
If A transfers his land to C, C will have the right of way on B’s land. If B transfers his
land to D, A or C, as the case may be, will have right of way on D’s land.
Sometimes, a person’s right over his own property is abridged by an adverse right of
another person over his property. Lease is a common example of this kind. The lessor’s
right over his property is limited by the right of the lessee over that leased property. Once
the property is leased, lessor loses his right to possess and enjoy his own property. The
lessee has the right to possess and enjoy the lessor’s property. Lessor’s rights over his
property are rights in re propria, while lessees rights over lessor’s property are rights in re
aliena.
7. Principal Rights and Accessory Rights
Every person has the capacity to enjoy his right in any way he likes. But in doing so, he
cannot violate the laws of the land and the rights of others. Thus, the rights of a person
may be limited or qualified by the rights of others. Salmond calls this an ‘adverse effect’.
At the same time the rights of that other may be enhanced by the limitation of the rights
of the person. Salmond calls this a ‘beneficial effect’.
In case of an easement, the rights of the owner of the servient heritage are affected by the
easement on his land while the rights of the owner of the dominant heritage are enhanced
by the same easement.
The right of the owner of the dominant heritage over his own land is the principal right,
and his right of easement over the servient heritage is the accessory right.
8. Primary Rights and Sanctioning Rights
When a person violates the right of another person, that other person acquires a right to
remedy against the wrong-doer. The right which is violated is called the ‘primary’ right.
The right to remedy arising due to the violation of the primary right is called the
‘sanctioning’ right. Thus, a sanctioning right is nothing but a right to remedy.
A primary right may be a right in rem or a right in personam. But a sanctioning right may
only be a right in personam. A sanctioning right cannot be a right in rem.
9. Legal Rights and Equitable Rights
In England there were two sets of Courts, namely, the Common-Law Courts and Courts of
Chancery. The decisions of the Common-Law Courts were based on law, while those of the
Courts of Chancery were based on equity.
The rights which were derived from the decisions of Common-Law Courts were called the
‘legal’ rights. The rights derived from the decisions of the Courts of Chancery were called
‘equitable’ rights.
Now all the rights are based on laws made by the Parliament and on the precedents laid
down by the Courts.
In India, this dichotomy between Courts of Law and Courts of Equity has never existed.
All the rights of a person are derived from the laws made by the Parliament and the state
Legislatures. Most of these laws are either new laws or laws based on the principles laid
down by the Common-Law Courts in England. The rights created by these laws are legal
rights.
But some laws or provisions of some laws are enacted based on the principles enunciated
by the Courts of Chancery in England. The rights created so are called ‘equitable’ rights.
Right to injunction is an example of equitable right.
In some cases, the courts are permitted to give remedies by travelling beyond the law laid
down by the legislature. Thus, legal set-off is a set-off allowed by Order VIII, Rule 6 of the
Civil Procedure Code, 1908. This set-off may be allowed only if the conditions mentioned
in Rule 6 are present. But, even where those conditions are not present, still a Court may,
at its discretion, allow set-off. This is called the equitable set-off 16.
The distinction between legal rights and equitable rights is not just a verbal distinction of
academic interest. It has got significant practical implications in practice.
The first is an equitable remedy is an extra-ordinary remedy. An extra-ordinary remedy

does not lie where ordinary remedy is available and is an adequate remedy for the
violation of right. Only where ordinary remedy is not available or the ordinary remedy,
though available, is not adequate relief, extra-ordinary remedy may be granted.
The second is that, the rule of equity is applicable where a person seeks equitable remedy.
The rule of equity requires that to seek equity, one must do equity. A person whose own
acts are not clean, cannot seek equitable remedy.
10. Vested Rights and Contingent Rights
Where a person gets a right immediately he has a vested right. So also, where the vesting
of a right in a person depends upon the happening of a future certain event, the right is a
vested right.
Where the vesting of a right in a person depends upon the happening or non-happening of
a future uncertain event, the right is a contingent right.
In the first case, i.e., where the contingent right depends upon the happening of a future
uncertain event, the right vests in the person when that future uncertain event happens.
In the second case, i.e., where the contingent right depends upon the non-happening of a
future uncertain event, the right vests in the person when the happening of that future
uncertain event becomes impossible. In these circumstances, the contingent right is said
to crystallise into the vested right.
16 Order XX, Rule 19(3) of the Civil Procedure Code, 1908 recognises equitable set-off. It states,
“the provisions of this rule shall apply whether the set-off is admissible under Rule 6 of Order
VIII or otherwise.”
CHARACTERISTICS OF RIGHTS
According to Salmond, every legal right has the following characteristics:
1. It is Vested in a Person
As already noted, a right must be vested in a person. If it vests in any other entity, i.e., a
non-person, that non-person becomes a person.
Salmond calls the person in whom a right is vested, the ‘owner of the right’, or the ‘subject
of the right’, or the ‘person entitled’, or the ‘person of inherence’.
2. It is Against Another Person
For a right to exist meaningfully, there must be a corresponding duty. Further, that duty
must be vested in another person, i.e., a person other than the owner of the right.
Such other person may be called the ‘owner of the duty’, or the ‘subject of the duty’, or the
‘person bound’, or ‘person of incidence’.
3. It has a Content
A right puts a person having the corresponding duty under an obligation to do an act or to
omit to do an act at the instance of the person having the right.
Salmond calls this obligation the ‘content of the right’.
4. It has an Object or Subject-matter
The obligation to do an act or to omit to do an act is in respect of something.
Salmond calls that thing the ‘object of the right’, or the ‘subject-matter of the right’.
5. It has a Title
A right vests in the owner of that right because of some facts or some events.
Salmond calls these facts or events the ‘title of the right’.

Illustration
A gives a loan to B.
A gets a right to recover the loan to B. A is the owner of the right.
B gets a corresponding duty to repay the loan to A. B is the owner of the duty.
Duty to repay is the content of the right.
The loan is the object or the subject-matter of the right.
Advancing the loan by A to B is the title of the right.
Salmond observes that every right involves a threefold relation for its owner:
1. It is a right against some person or persons.
2. It is a right to an act or omission by such person or persons.
3. It is a right over or to some thing to which that act or omission relates.
WRONG
In law, ‘wrong’ means violation of a right 17. Violation of a legal right is a ‘legal wrong’ and
violation of a moral right is a ‘moral wrong’.
Violation of a ‘public right’ is a ‘criminal wrong’, which is also called a ‘crime’ or an

‘offence’. Violation of a ‘private right’ is a ‘civil wrong’, which may be a ‘tort’ if the private
right violated is a right in rem, and it is a ‘breach of contract’ if the private right violated is
a right in personam.
Salmond states that “‘wrong’ is simply a wrong act – an act contrary to the rule of right
and justice. But every wrong act cannot be called a ‘wrong’ in law. Even an act contrary to
law cannot be called a ‘wrong’. Thus, for example, an immovable property is transferred
by the transferor to the transferee orally, or through an unregistered deed. This is
contrary to law. But we cannot say that the parties have committed any ‘wrong’. Their act
may be contrary to law, and hence it is not recognised by law. As far as law is concerned
the act does not exist. The act, i.e., transfer in this case, is described as null and void.
Bigamy is an interesting case. A bigamous marriage is contrary to law and is is null and
void. It not recognised by law as valid. But it is recognised by law only for the purpose of
punishment under sec.s 494 or 495 of the Indian Penal Code, 1860.
17 In legal language, ‘error’ must be distinguished from ‘wrong’ and ‘mistake’. ‘Wrong’ is violation
of right. ‘Mistake’ means misunderstanding i.e., an erroneous understanding. A ‘mistake of law’
is a misunderstanding of a provision of law. A ‘mistake of fact’ is a misunderstanding of a fact.
Hohfeld’s Concept of Right (Right in Its Wider Sense) 135
HOHFELD’S CONCEPT OF RIGHT (RIGHT IN ITS WIDER SENSE)
Hohfeld argued that there is more to law than just rights and duties, and that legal rules
can be understood accurately only if we discern the most basic legal categories or
conceptions and the relations among them. Consider the following five statements:
1. I have a right to be paid my wages under the contract of service.
2. I have a right to walk in my yard.
3. I have a right to leave my property to another by will.
4. I have a right not to be arrested without a warrant.
5. I have a right to be respected by my colleagues.
The word ‘right’ is used in each of these sentences. A moment’s reflection reveals that the
term ‘right’ has a different meaning in each sentence 18. Hohfeld19 argued that these
distinctions have always been present in the law.
Hohfeld broke the term ‘right’ into four distinct basic conceptions:
1. Claim Right or Right in the Strict Sense: The term ‘right’ may be used for simplicity.
2. Privilege or Liberty: Hohfeld preferred the term ‘privilege’ to ‘liberty’ because he felt
that ‘liberty’ had wider connotations. In current usage, ‘liberty’ is probably more precise
than ‘privilege’. Hence, Glanville Williams, used the term liberty to refer to Hohfeld’s
privilege, noting that the two may be interchanged without violence to the system.
3. Power: Hohfeld regarded power as a special case of liberty. He considered this

distinction to be critical for accurate legal thinking.
4. Immunity: Immunity is a special case of right and, again, it is important to distinguish

the two for clear understanding of the law.
Each of these conceptions makes sense only when we take account of their correlatives
and opposites.
18 The right to be paid wages according to a contract is a claim, which Hohfeld called a right in
the strict sense. The right to walk in one’s yard is a privilege or liberty. The right to bequeath
property by will is a power to bestow rights on others. The right not to be arrested without a
warrant is immunity. What about the right to be respected by one’s fellows? It is not a legal
right at all, but a moral claim.
19 Wesley Newcomb Hohfeld who was Professor of Law at Stanford University published the first of
his two famous articles under the title ‘Some Fundamental Legal Conceptions As Applied in
Judicial Reasoning’, in 1913 in the Yale Law Journal.
JURAL CORRELATIVES
Each of the conceptions ‘right’, ‘liberty’, ‘power’ and ‘immunity’ has an indispensable
correlative. The jural correlative can be technically defined as follows:
“In any legal relation between two parties concerning a single act or omission, the
presence of one conception in one party entails the presence of the correlative in the
other party.”
Thus, if A has a right to recover Rs. 10,000 from B, then B has a corresponding duty to
pay Rs. 10,000 to A.
The vertical arrows in the following figure represent the jural correlatives.
RIGHT LIBERTY POWER IMMUNITY
DUTY NO-RIGHT LIABILITY DISABILITY
Rights and Duties
See supra at p. 124 – Correlation Between Rights and Duties.
Liberties and No-Rights
A person having a duty is under an obligation to do or to abstain from doing some act at
the instance of another person having the corresponding right.
But if a person has no duty, then he is not under any obligation to do any act or to
abstain from doing an act at the instance of some other person. He is free to act or omit to
act according to his own will. This freedom is called liberty.
This is an area where law does not interfere with a person’s volition. But in doing so, one
cannot interfere with the rights of another person.
Art. 19 ensures six freedoms to the citizens of India. Under art. 19(1)(a) citizens of India
have ‘freedom of speech and expression’. They have liberty to express their opinions. But
in doing so they may be subject to reasonable restrictions which may be imposed under
art. 19(2).
Art. 19 is ‘Right to Freedom’. This means Art. 19 not only grants freedoms to the citizens
of India, but also protects those freedoms from interference by State or any other person.
That is the meaning of ‘right to freedom’.
But all freedoms are not protected by law. For example, a licence is a freedom. ‘Licence’
means ‘permission’. A may give permission to B to enter upon his land. In other words, B
has licence to enter upon A’s land. Which is the freedom or liberty enjoyed by him 20. Here,
B does not have right to his freedom. A has a right to revoke the licence at any time.
Liberty may be treated as ‘right in the wider sense’, a right to act or omit to act according
to his will. But this ‘right in the wider sense’ is distinct from the ‘right in strict sense’. If,
for example, A has a ‘right is strict sense’, his right is about what another person shall do
for A. On the other hand, if A has liberty which is a ‘right in wider sense’, his right is
about what he may do for himself.
Therefore, liberty is absence of duty – it may be described as ‘no-duty’. If the correlative of

a duty is a right, then correlative of no-duty, i.e., liberty, is no-right. No-right simply
means the absence of right. As right corresponds to a duty, absence of right, i.e., no-right,
corresponds to absence of duty, i.e., no-duty or liberty.
No-right or absence of right may arise not only from absence of duty, but also from
absence of law or contract on a particular matter. If there is no law and no contract
applicable to a matter, there cannot be any rights and duties.
Powers and Liabilities
A power is the ability of a person to alter his own position or the position of others. Here
‘position’ means the rights, duties, liabilities or other legal status or relationships.
Powers may be
1. public powers; or
2. private powers.
20 Licence makes an act lawful which would otherwise have been unlawful.
1. Public Power (Authority)
Public power is a power vested in a person as an agent of the State. Such power is called
‘authority’. This power may be legislative, judicial or executive power. The holder of the
pubic power may be called a ‘public functionary’, ‘State instrument’, ‘public authority’ or
‘public officer’. Using this power, a person may alter the position of another person.
2. Private Power (Capacity)
Private power is a power vested in a person for his own use, not as an agent of the State.
Such power is called ‘capacity’. Right to make a will, right to alienate a property, voting
rights, right to sue, right to prosecute, a lessor’s right to re-entry, a mortgagee’s right of
sale, etc. are not ‘rights in strict sense’, but are ‘rights in wider sense’. They are powers.
Using these powers a person may alter his own position and also, in some cases, of
others.
A power differs from a right stricto sensu (in strict sense) in that a power does not have a
corresponding duty in some other person.
A power also differs from liberty. An act which is done by a person having liberty is a
wrongful act in the absence of liberty. In other words, liberty converts a wrongful act into
a lawful one. Power does not have the effect of converting a wrongful act into a lawful one.
An act which is done by a person having power is a void act in the absence of power. Thus
power converts a void act into a valid one.
The jural correlative of power is liability. Power enables a person to alter the position of
another person. Conversely, that other person has a liability to have his position altered
by the person having a power to alter it. For example, a lessor has the power to re-enter
upon his land after the termination of the lease. The lessee is liable to have the lease
terminated by re-entry. A mortgagee has the power to sell the mortgage property of the
defaulting mortgagor. The defaulting mortgagor is liable to have his mortgage property
sold by the mortgagee.
But, here the term liability is not used only in a negative, i.e., a detrimental sense. It is
not always burdensome or adverse to the interest of a person. For example, in case of a
will the liability of a legatee, and in case of a gift the liability of the donee are not
detrimental. They benefit the person. They may be called ‘beneficial’ liabilities.
Immunities and Disabilities
Immunity is the exclusion from the power of another person. A person having a power to
change the legal position of another person cannot change the legal position of the person
who has immunity from the operation of that power.
Thus, a person having power will have disability towards the person having immunity
from that power. Namo dat quod non habet means a person cannot give what he does not
have. In other words, a person has disability to transfer property not belonging to him.
Thus, in short, disability is absence of power.
JURAL OPPOSITES
Each of the conceptions ‘right’, ‘liberty’, power’ and ‘immunity’ has a jural opposite. The technical
definition of jural opposite is as follows:
“In any legal relation between two parties concerning a single act or omission, the
presence of one conception in one party means the absence of the jural opposite in that
party.”
Thus A, who has a right to recover Rs. 10,000 from B does not also have a no-right to
recover Rs. 10,000 from B. B, who has a duty to pay Rs. 10,000 to A, does not have a
liberty not to pay. This follows from the law of non-contradiction 21.
The diagonal arrows in the following figure represent the jural opposites.
21 As Aristotle stated: ‘It is impossible for the same man to suppose that the same thing is and is
not. One cannot say of something that it is and that it is not in the same respect and at the
same time’. Either Socrates is alive or he is dead. Socrates cannot be alive and dead at the
same time.
JURAL CONTRADICTORIES
Hohfeld identified only the jural correlatives and opposites. Glanville Williams perceived a
third set of jural relations, which he termed contradictories. The technical definition of
contradictory is as follows:
In any legal relation between two parties concerning a single act or omission, the
presence of one conception in one party means the absence of the contradictory in the
other party.
Thus, if A has a right to recover Rs. 10,000 from B, B has no liberty not to pay Rs. 10,000
to A. Jural contractories are corollaries of jural opposites.
The horizontal arrows in the following figure represent the jural contradictories.
INTER-RELATION BETWEEN THE LEGAL CONCEPTIONS
Hohfeld’s analysis shows that ‘right’, ‘duty’, ‘liberty’ and ‘no-right’ are connected in a
fundamental way with each other. The existence of one brings about the existence of the
others. The conceptions ‘power’, ‘liability’, ‘immunity’ and ‘disability’ are similarly
connected.

The overall connections are shown in the above figure. The vertical arrows show the
correlatives, the diagonal arrows indicate the opposites, and the horizontal arrows the
contradictories.
Consider the box on the left.
A has a right to recover Rs. 10,000 from B:
Correlative: A has a right to recover Rs. 10,000 from B and B has a duty to repay Rs.
10,000 to A.
Opposite: Since A has a right recover Rs. 10,000, A cannot have no-right to recover.
Contradictory: Since A has a right to recover Rs. 10,000 from B, B cannot have a
liberty not to pay.
Now consider the box on the right.
A has power to arrest B:
Correlative: A has power to arrest B and B is liable to be arrested by A.
Opposite: Since A has power to arrest, A cannot have disability to arrest.
Contradictory: Since A has power to arrest B, B has no immunity from arrest.

8. PERSONALITY
ABOUT PERSONALITY
DEFINITION AND MEANING – NATURE OF PERSONALITY
Personality means the status of being a person. In law ‘person’ is a legal entity having
rights and duties. These rights and duties are granted by laws. They are the rights and
duties in the narrower sense of the term ‘legal rights’, i.e., they are the rights created by
law. As a consequence, a person is a creature of law. Personality cannot be created by
contract. Once an entity becomes a person, it may enter into contracts and acquire
contractual rights and duties.
Only persons can have rights and duties. Because if rights and duties, or even rights or
duties, are granted to any entity, that entity ipso facto (by that fact i.e., the fact the it has
rights and duties) becomes a person.
Conversely, any entity which has no rights and duties is not a person in law. For example,
when slavery was recognised and permitted by law, slaves were not having any rights and
duties. Therefore, though they were human beings they were not persons in law. They
were called ‘non persons’. In law their status was that of properties.
In International Law, at one time States were the only entities having personality.
Oppenheim observed that International Law is the ‘law of nations’.
After the World War II, new actors emerged in the international scene, such as public
international organizations established by States, non governmental organizations, etc. It
became necessary that some sort of international legal personality be granted to these
entities. Thus, international organizations became persons under International Law. It is
clarified by the International Court of Justice (ICJ) in Reparations Case that an
international person need not possess all the international rights, duties and powers
possessed by States.
In the due course of time, it was felt that certain special entities should have rights under
the International Law so that they may seek protection under the International Law. Thus,
indigenous peoples and minority groups got rights and became persons under the
International Law. Similarly, it was also felt utmost necessary the certain other special
entities should have duties under the International Law so that they can be controlled.
Belligerent groups and multinational corporations are the examples of such entities.
About Personality 143
TYPES OF PERSONS
Thus, in law, we have persons which are not human beings. Further even abstract entities
i.e., entities which have no physical existence are persons.
This makes two types of persons:
1. Natural Persons; and
2. Artificial Persons.
1. Natural Persons
Human beings are natural persons. Earlier only those human beings having rights and
duties were persons. Slaves, though human beings, were not persons. But now as slavery
is abolished by law, law does not recognise or permit slavery. Therefore, all human beings
are persons. Human beings are called ‘natural’ persons because they are created by
nature. But they are given personality by law.
2. Artificial (Legal) Persons
All other persons which are not human beings, are artificial persons. 22 They are called
‘artificial’ because they are not ‘natural’. They are also called ‘legal’ persons or ‘juristic’ or
‘juridical’ persons because they are created by law. Salmond calls them ‘fictitious’ persons
because they are not real persons (in ordinary language).
The process of creating artificial person is called ‘incorporation’. Therefore, an artificial

person is also called a ‘corporate person’, its personality is called ‘corporate’ personality.
A company, a municipal corporation, a university are the major examples of artificial

persons. State is another example of artificial persons. An idol of God in some temples
may have artificial personality. The idol of Lord Srinivasa at Tirupati has such personality.
A company, a municipal corporation, a university, a State are artificial persons composed

of several persons. They are, therefore, called ‘corporate aggregate’. An idol is a single
entity having personality. Therefore, it is called ‘corporate sole’.
22 Even some human beings may have artificial personality. See infra “Double Personality and
Double Capacity”.
144 8. Personality
ADVANTAGES OF INCORPORATION
The following are the advantages of incorporation, especially of a company:
1. Separate Personality and Existence
2. Limited Liability,
3. Perpetual Succession,
4. Separate Property,
5. The Capacity to Sue,
6. Transferable Shares, and
7. Flexibility and Autonomy.
1. Separate Personality and Existence
An incorporated company is a legally recognised entity that exists separately from its
shareholders. As per sec. 9 of Companies Act, 2013 after registration the subscribers to
the Memorandum of Association shall become members and shall be capable of exercising
all functions of the incorporated company.
2. Limited Liability
If a company is dissolved, i.e., is liquidated or wound-up, the members of the company are
solely liable to contribute to the assets and liabilities of the company. But, none of its
members is legally bound to contribute to anything more than the nominal value of shares
held by the member which still remain unpaid. The advantage of having limited liability
for its members is one of the major reasons for setting up an incorporated company.
3. Perpetual Succession
As provided by sec. 9 of the Companies Act, 2013, an incorporated company has the
perpetual succession. That means, even if there are any changes in members of the
company, the company will be the same entity with the same privileges, immunities,
estate, and possessions.
The death or insolvency of individual members does not affect the incorporated company
in any way or form. The company will continue to exist indefinitely till the it is liquidated.
About Personality 145
Therefore, it is said, ‘Members may come and members may go, but the company can go
on forever.’
4. Separate Property
A company as a recognised legal entity is permitted to own its own funds and also other
assets. The property of the company is not the property of shareholders, it is the property
of the company. The company is the real person in which the property is vested, and by
which it is controlled, managed and disposed of.
Thus, if a majority shareholder of the company uses the company’s resources for personal
reasons, he is liable to be held for criminal misappropriation of company funds.
5. The Capacity to Sue and be Sued
As a separate legal entity, a company has the right to sue other persons including other
companies. In turn, it can be sued by other persons and companies. The managing
directors and other directors are not liable to be sued in the name of the company.
6. Transferable Shares
Sec. 44 of the companies act states, “The shares or debentures or other interest of any
member in a company shall be movable property transferable in the manner provided by
the articles of the company”.
This leads to the investment of funds in shares. It is done so that members can members
can encash shares at any given time upon their will. It also serves the purpose of
providing liquidity to the investors. They can sell shares, at any time they are willing to,
on the open market or the stock exchange.
7. Flexibility and Autonomy
The company has an autonomy and independence to form its own policies and further
implement them.
However, they are subject to the general principles of law, equity and a good conscience.
The company has to act in accordance with the provisions that are mentioned in the
Companies Act, Memorandum and Articles of Association.
146 8. Personality
DOUBLE CAPACITY AND DOUBLE PERSONALITY
Often persons act in different capacities. Thus, an individual who is President of India has
two capacities – one capacity as the President and the other his personal capacity.
Director of a company has two capacities – one as director and the other as an individual.
Salmond states that double capacity does not give double personality. This is because, if a
single individual has double capacities, he may, in law, transact with himself, and that
would lead to conflict of rights and duties.
Therefore, a person cannot enter into any transaction with himself. A person being his
own creditor or lessee, etc. are not permitted by law. A lessor may sell the property leased
by him to a third person. In that case the purchaser becomes the lessor in place of the
seller. The lessor may sell the property to the lessee himself. But in that case the lessee
does not become his own lessor. Here doctrine of merger comes into play. The lease
merges with sale and disappears. The lessee becomes the owner of the property.
But this rule causes hardship in many cases. For example, a creditor may become the
executor of his debtor’s estate. To recover the loan, the creditor may have to sue himself in
the capacity of the executor of his debtor. This situation is avoided by law by giving right
of retainer to the creditor who is the executor or administrator of his debtor’s estate.
A person suing or prosecuting himself is inconceivable in law. A person cannot enter into
a contract with himself. Where a person entered into a contract with himself on one side
and himself and some others on the other side, under the old English Law, the contract
was void. But under the present law, the contract is enforceable as if it was made with the
others only.
In England, by a historical accident, namely, the effect given to the Statute of Uses, it
became possible for a man to convey to himself. This power which was theoretically
anomalous, was found to be practically useful. Therefore, it is preserved in the modern
legislation, i.e., Law of Property Act, 1925 which repeals the Statute of Uses.
In India also, sec. 5 of the Transfer of Property Act, 1882 defines ‘transfer of property’ as
under:
5. “Transfer of property” defined. … “transfer of property” means an act by which a

living person conveys property, …, to one or more other living persons, or to himself,
or to himself and one or more other living persons; … .
Legal Status of Some Special Entities 147
LEGAL STATUS OF SOME SPECIAL ENTITIES
UNBORN PERSON
A child en ventre sa mere (child in womb) is not a person for most of the purposes. A child
en ventre sa mere is recognised by law as person for some purposes only.
Under law of torts, in Walker vs. G. N. Railway it was held that a child cannot maintain an
action for injuries sustained while en ventre sa mere.
Where a person’s death is caused by the wrongful act of another, and the injured person,
if he had lived, could have sued the wrongdoer, wife, husband, parent, and child of the
victim may sue the wrongdoer. In George and Richard it is held that here ‘child’ includes a
child en ventre sa mere.
A child en ventre sa mere cannot own a property. Therefore, property cannot be

transferred to an unborn person. But under sec. 13 of the Transfer of Property Act, 1882,
a property may be transferred to the ‘interest’ of an unborn person through one or more
intermediate life interests. The child must be born before the last of these life interests
comes to end. Otherwise, the property reverts to the transferor. The same is the position
in case of a bequest under sec. 113 of the Indian Succession Act, 1925.
Under the Mitakshara school of Hindu Law, an unborn child will have an interest in
coparcenary property. It is entitled to its share in the coparcenary property on its birth. If
the karta or any other member of the Hindu Joint Family of that child has alienated any
property for any purpose other than for legal necessity, the child may challenge the same.
MINOR
According to sec. 3 of the Indian Majority Act, 1875, minor is a person who has not
attained the age of 18 years. A minor is a person for all purposes, and has the same rights
and duties as a person who has attained majority.
In Civil Law
However, a minor is not sui juris, i.e., a minor cannot exercise his rights himself. It is a
protection given by law to a minor. A minor does not have exposure to the outside world.
Therefore, to avoid a minor being deceived by others, this protection is given.
148 8. Personality
A minor has to exercise his rights through his guardian. Similarly, when a duty of a minor
is to be enforced, it should be enforced through the guardian of the minor.
A minor cannot enter into contract. In Mohri Bibi vs. Dharmodas Ghosh, it is held that any
agreement made by a minor is completely void.
If a minor misrepresents his age and enters into a contract, he will not be estopped from
claiming that the contract is not binding on him by putting forth his minority.
In Criminal Law
In criminal law, a child below the age of seven years is presumed to be doli incapex, i.e.,
incapable of committing a crime. This presumption is conclusive. This presumption is
based on the premises that being too young the child cannot understand the natural
consequences of its acts, and therefore, cannot understand that what it is doing is wrong.
Thus age is a complete defence under sec. 82 of the Indian Penal Code, 1860.
But under sec. 83 of the Indian Penal Code, 1860, age is a partial defence from the
criminal liability available to a child above the age of 7 years and below the age of 12
years. The child between the 7 years and 12 years may or may not be capable of
understanding the natural consequences of the act that it has committed. Therefore, the
liability depends upon each case. If the child was capable of understanding the natural
consequences of its act in that case, the child is liable, otherwise not.
PERSONS NON COMPOS MENTIS (PERSONS OF UNSOUND MIND)
A person, though major, may not be in a position to understand the natural consequences
of his acts due to his mental condition. There are several causes for this.
1. The person may be suffering from unsoundness of mind. This condition is normally
called ‘insanity’. Insanity may be of continuous nature, in which case it is called ‘idiocy’
or it may be in phases, in which case it is called ‘lunacy’.
2. The person may be under the influence of intoxicating substance such as alcohol,
narcotic drug or psychotropic substance. This is called ‘substance abuse’.
3. The person may be suffering from some severe illness. Heavy fever may cause
temporary dysfunctionality of brain. This condition is called ‘delirium tremens’.
Legal Status of Some Special Entities 149
A person non compos mentis cannot enter into contracts. If the unsoundness of mind is of
temporary nature, the person is temporarily disqualified from entering into contract. Thus
a person suffering from delirium or in intoxicated condition, he cannot enter into contract
as long as that condition lasts. A lunatic may enter into contracts during lucid intervals.
The same principle is applicable to criminal cases. If a person commits an offence during
incapacity of mind, he cannot be held liable for that offence. Insanity is a defence under
sec. 84 of the Indian Penal Code, 1860.
An intoxicated person is not liable for offence committed by him during intoxicated state
only if the intoxication is involuntary. Voluntary intoxication is no defence under sec. 85
of the Indian Penal Code, 1860.
DECEASED PERSONS
A person loses all his rights and duties on his death. Personal rights and obligations of a
person die with him, and his proprietary rights and obligations vest in another person.
But a person may dispose of his property through a will, where the disposition of the
property takes place after his death.
Therefore, a deceased is not a person under law. A dead body is neither a person nor a
property. It cannot be transferred. Taking a dead body does not amount to theft.
Though a person may lose his personality on his death, law protects things in which he
might be interested if he were alive – his body, his reputation and his estate.
Law ensures a descent disposal of a dead body. Taking a dead body, though not a theft,
may be an offence as it hurts the sentiments of the family of the deceased. Similarly
reputation of a deceased is also protected by law by making it an offence to commit
defamation of a deceased person. In this case also it is the sentiments of the family of the
deceased is sought to be protected.
LOWER ANIMALS
Lower animals, i.e., animals other than humans, are not persons inasmuch as they have
no rights. They are properties. In other words, lower animals cannot be subjects of rights
but may be objects of rights.
150 8. Personality
Animals can commit acts. They may also do the acts intentionally. But in law, their acts
cannot be said to be lawful or unlawful. Their interests are not recognised by law.
Therefore they do not have any rights or duties.
However, there are two cases where it may appear as if animals have rights – one the so
called ‘animal rights’ and the other trusts for the benefit of animals.
Animal rights are not rights of animals, but denotes duties of persons not to harm
animals. Cruelty to an animal is an offence irrespective of whether or not it is owned by a
person. But the offence is not against the animal, as the animal has no rights. Harming
an animal owned by a person is a wrong against its owner as the animal is his property.
Sometimes trusts are created for the benefit of a class of animals such as stray dogs, and
in India cows or other cattle. Such trusts are valid and enforceable as public trusts or
charitable trusts. But the animals, though beneficiaries, do not have any rights in respect
of the trust. The rights are public rights vested in the community at large.
ARTIFICIAL INTELLIGENCE (ROBOTS)

9. PROPERTY
Just as the term ‘person’, the term ‘property’ also has a special meaning in law. In law, the
term property is defined as ‘a legal entity which can be owned’.
Similar to ‘person’ a ‘property’ may also be an entity with or without physical existence. A car,
a building, a land are the examples of properties having physical existence. They are called
‘corporeal properties’ or ‘tangible properties’. Copyright, trademark, patents are the examples
of properties which have no physical existence. They are called ‘incorporeal properties’ or
‘intangible properties’.
Properties are also classified as movable and immovable properties. As a property may or may
not have a physical existence, the terms movable and immovable are not necessarily
connected with the mobility of the properties.
The term ‘movable property’ is defined as all properties other than immovable properties.
‘Immovable property’ includes any one of the following three things -
1. Land
2. Benefits attached to land
3. Things attached to land
(a) Things rooted in land
(b Things embedded in land
(c) Things permanently fastened to things attached to land
Land is a definite portion on the earth’s surface. Therefore, a lake is also a land – land covered
by water. A forest is a land covered by trees.
Benefits attached to land are such benefits that they are part and parcel of the land so that
they may also be called immovable properties. They cannot exist separate from and
independently of the land to which they are attached. They are necessarily intangible
properties. Fishing right, ferrying right, right of easement are some of the examples of such
properties.
• Things attached to land such as trees, shrubs, etc. which are rooted in land.
• Walls, buildings, etc. which are embedded in land are also immovable properties.
• Similarly doors, windows, door locks, knobs, etc. which are permanently attached to the
building, i.e., a thing attached to land, are also immovable properties after such
attachment, though they were purchased as movable properties.
10. OWNERSHIP
ABOUT OWNERSHIP
MEANING AND DEFINITION
‘Ownership’ is the relationship between a person and a property owned by him. It is a

bundle of rights which the owner of a property has towards his property. According to
some authors these rights themselves are the ‘property’.
Bundle Theory
Bundle Theory states that there is no pre-existing, well-defined and integrated concept of
property that guides our understanding of property-entitlements, or the creation or
interpretation of property-entitlements in law.
Instead, the law grants specific entitlements of people to things. The property that a person
holds in any given instance is simply the sum total of the particular entitlements the law
grants to him in that situation.
These particular entitlements are metaphorically termed ‘sticks’, and the property that a
person holds is thus the particular bundle of sticks the law grants to him in the given
instance.
Changes to law can alter property entitlements by adding or removing particular sticks from
the bundle.
Also, several people may have property-entitlements in one resource, as the sticks are
spread amongst them, each person with his own bundle. In such cases, Bundle Theory
says, it is meaningless to try to determine who the real owner is; each person simply has
the entitlements the law grants to them.
In its thinking, the State should decide which entitlements to confer on an individual in any
given case; that bundle of sticks thereafter constitutes the property that individual holds.
Full Liberal Ownership
William Blackstone in his “Commentaries on the Laws of England” (1776) propounded Full
Liberal Ownership. In the opening lines of the Second Book Blackstone declares property to
be:
“that sole and despotic dominion which one man claims and exercises over the external
things of the world, in total exclusion of the right of any other individual in the universe.”
About Ownership 153
The Integrated Theory
Taking a broader perspective than Honoré, many contemporary property theorists accept a
three-part approach to property. The general idea of private property, it is held, consists of
the following three elements:
1. Exclusion: others may not enter or use the resource;
2. Use: the owner is free to use and consume the resource;
3. Management and Alienation: the owner is free to manage, sell, gift, bequeath or
abandon the resource.
On this account, property owners are expected to have some level of each of these three
types of entitlements.
Full Liberal Ownership will emerge as the limit case of private property, arising when a
property-holder has the maximum possible entitlement on the three dimensions of
exclusion, use and alienation. Lesser types of property are still possible, provided they
contain some threshold amount of these three elements.
This view is thus less absolutist and less comprehensive than Full Liberal Ownership;
private property may be regulated or taxed, yet it still displays the signature properties of
exclusion, use and alienability—it remains property.
Integrated Theory departs from Bundle Theory by viewing property as a consolidated

concept.
‘STANDARD’ INCIDENTS OF OWNERSHIP
In 1961 the renowned legal scholar A. M. Honoré set down what he viewed as the eleven
‘standard’ incidents of ownership. But these rights are generally subject to two limits:
(a) the law of the land, and
(b) rights of the others.
Thus, while enjoying his right to his property, the owner cannot violate the laws of the
land and also he cannot infringe the rights of others. One cannot use the national flag
disrespectful manner, just because he owns it. Similarly a person cannot use loud music
in his property so as to cause annoyance to the neighbours.
Further, most of these rights have their negative implications. A right to use a property,
for example, includes a right not to use the property.
154 10. Ownership
1. The Right to Possess (Right of Possession)
It is the right to have exclusive physical control of the property owned. It is a right not to
be deprived of the possession of that property. This is ‘right to retain the possession’.
The property might have been lost or stolen. In that case, the owner may have lost the
possession of the property, but his right to possession is not lost. Here, the right to
possession is ‘right to regain (recover) the possession’.
Where the owner of a property has lent the property to some other person, that other
person will have the actual possession of that property. But he holds that property for (on
behalf of) the owner. The owner has the constructive possession of the property. But if the
person to whom the property is lent denies the owner’s right to the property, the owner
will lose the possession of the property. But he does not lose the right to possession. He
has right to regain (recover) the possession.
The same is the position where the owner has pledged the property with a pledgee.
2. The Right to Use and Enjoy (Right of Use and Enjoyment)
This is the right to have an exclusive and open-ended capacity to personally use the
property. Normally the owner of a property may use and enjoy his property as he likes.
3. The Right to Manage (Right of Management)
This is the right to decide who is allowed to use the property and how they may do so.
4. The Right to the Income
This is right to the fruits, rents and profits arising from one’s possession, use and
management of the property. A person may let out the property to another person and
may receive rent from him.
5. The Right to the Capital (Right of Consumption, Wastage and Destruction)
This is the right to consume, waste or destroy the property, or parts of it. It includes the
right to abandon the property. This right also includes the right to modify the property.
About Ownership 155
6. The Right to Security
This is the right to have immunity from others being able to take ownership of
(expropriating) the property.
7. The Incident of Transmissibility (Right of Alienation)
This is the right to transfer the entitlements of ownership to another person, i.e., to
alienate or sell the thing or bequeath it through will.
8. The Incident of Absence of Term
This is the right to be entitled to the endurance of the entitlement over time. Right of
ownership has the characteristic of being indeterminate in duration.
Generally, right in re propria is indeterminate, rights in re aliena are determinate in

duration, i.e., they are determinable at a point of time. The right of a lessee, bailee or
pledgee comes to an end when the lease, bailment or pledge comes to an end.
Salmond observes that the right of the owner of a property does not come to an end even
on his death. This is not correct as he himself states that the ownership devolves upon his
legal heirs or legatees on his death.
9. The Prohibition on Harmful Use
This is the right to require that the property may not be used in ways that cause harm to
others. Where the property belonging to owner is in possession and enjoyment of another,
the owner may require that other person not to use the property to the detriment or harm
of another.
10. Liability to Execution
This is the right to allow that the ownership of the property may be dissolved or
transferred in case of debt or insolvency.
11. Residuary Character
This is the right to ensure that after everyone else’s entitlements to the property ends, the
ownership returns to vest in the owner. Thus, when all the lesser rights such as lease,
bailment, pledge, etc. end, the rights vest in the owner.
156 10. Ownership
SUBJECT-MATTER OF OWNERSHIP
Property is defined as something which may be owned. Therefore, the natural corollary of
this definition is that property is the subject-matter of ownership.
Properties may be corporeal or incorporeal. Both types of properties are subject-matter of

ownership.
Rights in re propria, i.e., rights in one’s own properties are not the only subject-matter of
ownership. Rights in re aliena, i.e., rights in others properties are also subject-matter of
ownership.
For example, in a lease, the lessor transfers his right to possession and enjoyment of the
property to the lessee. Thus, lessee gets right to possess and enjoy the lessor’s property.
These rights are called the ‘leasehold rights’. Leasehold-rights is an immovable property.
The lessee is the owner of this immovable property.
What may be owned and what may not be owned depends upon law, because law creates
rights and duties and also persons. Persons, by holding the rights given to them by law,
can become owners of properties, in respect of which those rights are created by law.
Slaves, though human beings, were properties in some legal systems at some point of time
in the history. They could be owned by persons, and thus, were subjects-matter of
ownership.
Things such as air, under ground water, water in lakes, rivers, light, etc. are res
communes. They belong to the entire community and cannot be owned by any one person.
They are also res extra commercium, i.e., things which cannot be subject-matter of
commerce. They cannot be sold and bought because they cannot be owned.
KINDS OF OWNERSHIP
Salmond notes the following classifications of ownership:
1. Sole Ownership and Co-Ownership (Joint Ownership)
2. Trust Ownership and Beneficial Ownership
3. Legal Ownership and Equitable Ownership
4. Vested Ownership and Contingent Ownership

Kinds of Ownership 157
1. SOLE OWNERSHIP AND CO-OWNERSHIP
Normally a property is owned by only one person at any given point of time. But it also
common that sometimes a property may be owned by more than one person at any given
point of time. This results in a ‘duplicate ownership’.
A ‘partnership property’23 is an example of co-ownership property. The partners are the

joint owners of that property. A HUF (Hindu Undivided Family) property is another
example of co-ownership property.
Partition brings an end to co-ownership and brings into existence sole ownership. Each
owner who was hitherto entitled to the entire property, will be henceforth entitled to a
specific part of the property. The co-ownership is said to be dissolved.
Co-ownership may be of two kinds:
1. Common Ownership; and
2. Joint Ownership.
In the first case, the shares of each owner is fixed. But those shares are not identified. In
the second case, each co-owner is entitled to the entire property.
Fragmentation of Ownership in Respect of Time
An owner of a property may give the property to two or more persons as co-owners or he
may divide the property in to different shares and give each share to a different person to
be enjoyed as a sole owner.
A person may also transfer the property to a trustee as a legal owner for the benefit of
another person as a beneficial owner.
A person may also transfer his property to one person as a life tenant and after his death
to another person called the remainder man. The life tenant may enjoy the property
during his life time and thereafter the property goes to the remainder man. The life tenant
cannot alienate the property. The life tenant and the remainder man cannot be called co-
owners. They cannot be sole owners also. The life tenant has life estate vested in
possession. The remainder man has interest in the property not vested in possession.
23 A partnership firm under the Partnership Act, 1932 is not a person. Therefore, it cannot own a
property. But the property owned by the partners and used for the business of that partnership
firm is called a ‘partnership property’ for convenience.
A partnership firm under the Limited Liability Partnership Act is a person similar to a
company. It can own a property. But, then, it is a case of sole ownership.
158 10. Ownership
2. TRUST OWNERSHIP AND BENEFICIAL OWNERSHIP
Trust is an example of duplicate ownership where rights of management and rights of

enjoyment are separated.
Trust properties are simultaneously owned by two persons – trustee and beneficiary.
Though in practice, trustee is only holding the property as an agent of the beneficiary and
is managing the property for the beneficiary, in law he is treated as the owner of the
property. As between the trustee and the beneficiary, beneficiary is the owner of the
property. As between the trustee and the rest of the world, trustee is the owner.
Trusts are normally created to manage the properties of owners incapable of managing
their own properties. Thus, trusts are created for the properties of minors, persons of
unsound mind, infirm and absent persons. Trusts are also created to take care of the
properties transferred to the interest of unborn persons till they are born.
Where a large number of persons have varied interests in the property, trust may be
created to avoid complexities of co-ownership arising due to conflicting interests.
Trusts may also come into existence unintentionally. Where a property comes into the
hands of a person, and it is inequitable to disregard the interests of others, he hold the
property in trust for those others. This is called a ‘constructive trust’.
Trust ownership and beneficial ownership are independent of each other. Either of them
may be transferred without affecting the other. Where the trustee assigns the trust to
another person, there is a change in trustees, but the beneficiary remains the same. So
also, where the beneficiary assigns his interest to some other person, the trustee remains
the same, but the beneficiary changes.
Where the beneficial ownership is encumbered by the creator of the trust the trustee
holds the trust property for the benefit of the beneficiary as well as the emcumbrancer.
Where the trust ownership and beneficial ownership merge into one single, person trust
comes to an end.
Trust and Contract
Where a person gratuitously agrees with another to settle the property on that other
person, the person continued to be the owner the property till it is actually transferred to
that other. Till then the other person does not own the property or any part of it.
But where a person declares himself to be the trustee of that other person, the beneficial
ownership forthwith goes to that other. But still the person continues to be the owner of
that property. His ownership is converted into trust ownership.
Thus, the difference between the two is that, in case of the contract, the obligation of the
owner is to use his property for the benefit of the other. In case of trust the obligation of
the owner is to use his property for the benefit of the other in whom the property is
already concurrently vested.
Trust and Agency
In case of an agency, the property is vested in the principal. The agent acts on behalf of
the principal. In case of a trust the trust property is vested in both the trustee and the
beneficiary simultaneously.
A trustee may transfer a good title to the trust property to a bona fide purchaser having
no notice of the trust. But an agent cannot do so except in some cases. Namo dat quod
non habet is applicable to transfer by agent.
An agent has to carry out the instructions of the principal. Trustee has considerable
discretion within the four corners of the trust instrument.
A trust necessarily involves a property. Agency does not necessarily involve a property.
An agent can create obligations between the principal and a third person. A trustee can
create obligation on the trust property. He cannot create obligations for the beneficiary.
3. LEGAL OWNERSHIP AND EQUITABLE OWNERSHIP
In England, there were two sets of Courts. Common Law Courts and Chancery Courts.
The rules laid down by the Common Law Courts were rules of law. The rules laid down by
the Chancery Courts were rules of equity.
Ownership under rules of law is called ‘legal’ ownership, while ownership under equity is
called ‘equitable’ ownership.
The Judicature Act, 1873 merged both the types of Courts. Now in England there is only
one set of Courts. All the ownership is under rules of law. But still the distinction between
legal ownership and equitable ownership continues in England.
160 10. Ownership
In India, there was never such distinction. But in India also the distinction is recognised.
This is natural because the law of India is based on the English Law.
The difference between legal ownership and equitable ownership is not based on the
difference between legal rights and equitable rights.
Equitable ownership of a legal right and ownership of an equitable right are two different
things.
Illustration
A has given a loan to B. A has a right to recover the loan from B. A orally assigns this
right to C. Now C also gets the right to recover the loan from B. A continues to have
right to recover the loan from B.
A’s right is legal right. C’s right is equitable right. But the loan is only one. Just
because there are two rights to recover the loan, one cannot assume that there are two
loans. There is only one right to recover but there are two owners of the right.
Similarly, the ownership of an equitable mortgage is different from the equitable

ownership of a legal mortgage.
Legal and equitable ownerships in a property is not necessarily the same as the trust
ownership and beneficial ownership in a property.
Illustration
A creates a trust in respect of his property. B is the trustee and C is the beneficiary.
The legal ownership of the trust property is in B, the trustee, and the equitable
ownership of the same is in C, the beneficiary.
C creates a trust in respect of his property, i.e., in respect of his equitable interest in
the trust created by A. D is the trustee and E is the beneficiary. But here, as the trust
property itself is the equitable right, both D as well as E can have only equitable
properties.
4. VESTED OWNERSHIP AND CONTINENT OWNERSHIP
If the acquisition of the ownership is immediate or is dependant on the happening of any

future certain event, the ownership is vested in the person, and the owner’s title is perfect.
The ownership is absolute.
If the acquisition of the ownership is dependant on the happening or non-happening of

any future uncertain event, the ownership is contingent. The owner’s title is imperfect.
The ownership is only conditional on the happening or non-happening of any future
uncertain event. On the happening of that future event or till the happening of that future
event becomes impossible, the title becomes perfect and the ownership becomes vested.
Illustration
A testator bequeaths his property to his wife for life, and on her death to A if A is living
at her death, and if A is not living at her death, to B.
Now both A and B become owners of the property on the death of the testator. But their
ownerships are contingent. A’s ownership is contingent on his surviving the testator’s
wife. B’s ownership is contingent on A dying during the lifetime of the testator’s wife.
Contingent Ownership and Spes Successionis
Contingent ownership is not a mere chance or possibility of acquiring the ownership, i.e.,
spes successionis. Spes successionis is a mere chance of acquiring ownership in the
future. Contingent ownership is an imperfect ownership, which is already acquired.
Illustrations
1. A has a car. A has purchased a lottery in which the first prize is a car. A promises to
his son B that if he wins the lottery, he will give B the car won in the lottery. B has
only spes successionis.
2. A has an old car. A has purchased a lottery in which the first prize is a car. A
promises to his son B that if he wins the lottery, he will give B his old car. B has
contingent ownership of his father’s old car. The contingency is his father winning
the lottery.
In the first Illustration A did not own the car which he had promised to his son. In the
second case, A had the ownership of the car which he had promised to his son.
Condition Precedent and Condition Subsequent – Vestitive and Divestitive Facts
A condition ‘precedent’ is a condition on the fulfilment of which ownership of a property

vests in a person. Till the condition is fulfilled, the ownership is conditional and
contingent. On the fulfilment it becomes absolute. Therefore, the condition is a ‘vestitive’
condition. The fact which results in vesting of the ownership is called ‘vestitive fact’.
162 10. Ownership
A condition ‘subsequent’ is a condition on the fulfilment of which the ownership of a

property which is vested in a person is divested from him. The condition is a ‘divestitive’
condition. The fact which results in divesting a person of his ownership is called a
‘divestitive fact’. The owner holds the property subject to some condition. If there is a
breach he loses the ownership. But it should not be mistaken that the ownership of the
person in contingent. It is a vested ownership.
A condition or a fact may be both divestitive and vestitive at the same time.
Illustration
A gives a property to B with a condition that the property shall go to C on B’s

marriage.
B’s marriage is a condition subsequent for her ownership, while it is a condition

precedent for C’s ownership.
On B’s marriage, B loses the ownership of the property and C gains the ownership
of the property. Thus, B’s marriage is a divestitive fact for B’s own ownership and a
vestitive fact for C’s ownership.
11. POSSESSION
CONCEPT OF POSSESSION
Possession is perhaps the most difficult legal concept to define. It is very complex at times.
The differences between different cases where a person may or may not be said to have
the possession of a property is very fine.
Possession of a property means having control over the property.
Normally the owner of a property has the control over his property. But sometimes a
person other than the owner may have control over the property. In many such cases, the
owner as well as a person who is not the owner of the property may simultaneously have
control over the property.
For example, in case of a lease, the lessee has the control over the property leased to him.
Therefore, lessee has the possession of the property. The lessee is holding the property for
the lessor, i.e., his control over the property is not adverse to the interest of the lessor. The
lessor does not lose control over the property. If the lessee uses the property contrary to
the terms of lease, lessor can intervene. Thus, in law, lessor exercises control over the
property through the lessee.
Thus, the lessee and the lessor have control over the leased property simultaneously. That
is, they have the possession of the leased property simultaneously. The lessee has the
direct control or actual control over the property. Therefore his possession is called the
‘actual’ possession. In case of immovable property, ‘actual’ control is also called
‘occupation’ and the person having the actual possession is called the ‘occupant’ of the
property. The control of the lessor is indirect, and not actual. Therefore his possession is
called the ‘constructive’ possession.
Possession includes a two elements:
1. power of control over a property, and
2. intention to exercise that power.
The test is whether a person is in general control over the property.

164 11. Possession
Where the plaintiff is made to lose his control over the property, he is said to be
dispossessed. Thus, where a person having actual possession of an immovable property is
removed from the property, or a movable property in his actual possession is snatched
from him, he loses the control over the property, and hence loses the possession of the
property. He is said to be dispossessed of the property.
Where a person has the constructive possession of a property, some other person has the
actual possession of the property. If the person having actual possession of the property
denies the possession of the person having constructive possesssion, the person having
the constructive possession loses the possession. For example, if the lessee denies that
the lessor is the lessor, the lessor loses possession over the property leased by him.
Similarly, where there several joint owners of a property, each one of them may be in
possession of the property for himself and the other joint owners. If any joint owner’s right
to possession is denied by those in possession of the property, only then such joint owner
loses the possession.
This is called ‘ouster’. The person having constructive possession is said to be thrown out
of the property.
Where the plaintiff does not have possession of a property, actual or constructive, cannot
be dispossessed.
POSSESSION AND CUSTODY
Having a property with a person is called ‘custody’ of the property. A person having the
possession of the property may or may not have the property with him. The lessor does
not have the property with him, but he has constructive possession of the property.
Conversely, a person may have the property but he may not have control over the property
Normally, a person has custody coupled with possession of his property. Owner of a
property or a lessee of the property have possession as well as custody of the property.
But a person may have possession of a property without having custody of the property.
Lessor has the possession of his property leased to the lessee. But he does not have the
custody of the property.
On the contrary, a person may have custody of the property without having possession of
the property.
Concept of Possession 165
Kalia Porumal Pillai v. Visalakshmi
An old lady had given some gold ornaments to a goldsmith for melting and converting
them into new ornaments. The lady was sceptical. She used to keep those ornaments
locked in a box. Everyday she used to open the box in the morning and give the
ornaments to the goldsmith for working, and in the evening she used to receive them
from the goldsmith and lock them in the box. She used to leave the box with the
goldsmith. But she used to retain the key with her.
One night the ornaments were stolen. The lady sued the goldsmith contending that he
was the bailee of the ornaments left by her in his possession, and therefore, he was
under a duty to return them to her.
It was held that the defendant goldsmith did not have any control over them while they
were locked in the box and the key was retained by the plaintiff lady. Therefore, the
defendant did not have the possession of the ornaments. He had only the custody of
the ornaments. The plaintiff herself was having the possession of the ornaments.
OWNERSHIP AND POSSESSION
Ownership is a bundle of rights which includes right to possession. Therefore right to

possession is one of the several rights an owner may have over his property.
The duration of ownership is permanent. Right to possession is temporary unless it is

coupled with the right of ownership.
Ownership is purely a question of law. Possession is sometimes a question of fact and

sometimes it is a mixed question of law and fact.
POSSESSION AND RIGHT TO POSSESSION
Possession should not be confused with right to possession. Possession is having control
over a property. Right to possession is, therefore, right to have control over the property.
Possession lasts as long as the person has the control over the property. But a person
may have the right to possession of a property not only as long as he is in possession of
the property, but also before he gained the possession or even after he lost the possession.
On the other hand, a person may have possession of a property without any right to
possession.
166 11. Possession
Illustrations
1. A sells his property to B and delivers possession to B. B has both possession and
right to possession of the property.
2. A sells his property to B, but keeps the possession of the property with the consent
of B. Both A and B have possession of the property as well as the right to possession
of the property. A has the actual possession while B has constructive possession.
3. A sells his property to B, but refuses to deliver the possession of the property to B. B
does not have possession of the property, but he has the right to possession of the
property. A has possession of the property though he does not have right to
possession of the property.
4. A steals B’s property. B has does not have possession of the property, but has the
right to possession. Thief (A) has possession of property but not right to possession.
5. A gives his book to his friend B for reading. C, another friend of A also wants to
borrow the book from A. A instructs B to give the book to C after finishing reading of
the book. A and B have possession of the book as well as right to possession. A’s
possession is constructive, B’s possession is actual. C does not have possession. But
he has right to possession of the book as against B, though not as against A.
ELEMENTS OF POSSESSION
Possession has two elements:
1. Corpus Possessionis (fact of possession); and
2. Animus Possidendi (intention to possess)
1. CORPUS POSSESSIONIS (FACT OF POSSESSION)
It is the physical aspect of possession. It implies two things:
1. Possessor’s physical relation to the res, i.e., the object; and
2. The relation of the possessor with the rest of the world.
There must exist some physical control of the possessor over the property so as to give
rise to a reasonable assumption that others shall not interfere with the possessor’s right
of use and enjoyment of that thing.
Elements of Possession 167
Securing Non-interference
This non-interference can be secured in the following ways:
1. Physical Power or Force
2. Personal Presence of the Possessor
3. Secrecy
1. Physical Power or Force
A person may use walls, vaults, safe etc. to secure the thing in his possession. He may
also use his physical power to prevent a person from dispossessing him of his property.
Law of Torts permits a person to use ‘self help’ to retain the possession of a property. He
may not, however, use excessive force, i.e., more force than what is reasonable under the
particular circumstances. Further, force cannot be used to regain the possession.
2. Personal Presence of the Possessor (Guarding)
Most of the times, a possessor need not use any force to prevent others from interfering
with his possession. His mere presence is sufficient to discourage others from interfering
with his possession. Force is necessary to prevent only criminal minded people.
3. Secrecy (Concealment)
Possession of a property may be protected from the interference of others by keeping it

hidden from others.
2. ANIMUS POSSIDENDI (INTENTION TO POSSESS)
The person holding a property must have an intention to possess it. Mere holding a
property without any intention to possess it does not amount to possession. It amounts
only to custody of the thing.
Examples
1. A person drops his gold ring without his notice. Another person who sees that the
ring has fallen picks it up and hands it over to the person who dropped the ring. It
cannot be said that the person who picked the ring up had the possession of the ring
while he was returning it to its owner though he was holding the ring.
168 11. Possession
2. In the above example, before the finder of the ring can approach the owner, the
owner moves away. Now, the finder forms an intention to hold the ring for the
owner till he may find him and return the ring to him. His custody of the ring now
becomes possession.
Even if the finder of the ring intends to misappropriate it, in law it amounts to possession.
In other words, the intention may be lawful or unlawful.
The intention to possess the property need not be specific.
Example
A person who has taken a mango tree on lease has the intention to possess all mangoes
grown on the tree, though he may not know how many mangoes are on that tree.
The intention need not be to possess the property absolutely.
Examples
The intention may to possess the property subject to the rights of some other person or
persons. A lessor has the intention to possess the property subject to the lessee’s right.
Owner of a servient heritage has the intention to possess the property subject to the
right of way of the owner of the dominant heritage over the servient heritage.
The intention may be to possess the property as the owner thereof, or to possess it in
some other capacity such as a bailee, pledgee or lessee, etc.
KINDS OF POSSESSION
POSSESSION IN FACT AND POSSESSION IN LAW
Possession is sometimes a question of fact and sometimes a mixed question of law and
fact. Some things are incapable of being possessed. The sun, the moon, stars, a sea, an
ocean, etc. They cannot be subject-matter of possession. But in respect of other things
there can be possession, and the question of the nature of possession arises.
Possession in Fact (De Facto Possession) – Actual Possession
When the possession is actual possession it is a possession in fact. The person having the
possession may or may not have right to possess the property in his possession. But he
has the physical control over the property possessed. The person having actual possession
Kinds of Possession 169
has both custody as well as control over the property. A person who has captured an
animal has the possession of the animal. If that animal escapes, he loses its possession.
Continuity of Possession and Regaining Possession
But the control over a thing need not be continuous. When a person is holding a book, he
is having actual physical possession of that book. If he keeps the book on a table before
him, still he has the actual physical possession of the book. If he keeps that book in a
cupboard in his house and goes to the college, he has the possession of the book. Even
where he forgets where he has kept the book, his possession of the book continues.
In all the above cases, the person’s custody and control over the property is not lost. He
may resume his control over the property at any time according to his desire.
But if the person has lost the book, as distinguished from misplaced it, he has lost the
possession. Similarly, if the book is stolen or robbed from him, he has lost the possession.
When he finds the lost book or retakes the book from the thief or robber, he has regained
the possession.
Salmond observes that where a person has temporarily relinquished his control over a
property, he has not lost the possession of that property. This is not correct. Once a
person has lost the control over a property, he has lost its possession. Consequently,
Salmond’s view that where a person has means to regain his possession he has
possession of the property is also not correct.
Regaining possession is nothing but having fresh possession of the property. There is no
continuity of possession. There is a gap between the two possessions – one, before the
loss of possession and the other, after it was regained.
Factors Constituting Concept of Control
1. Having Control Over the Property
To be said to have possession of a property, a person must have control over the property.
But, the extent of control over different types of properties may be different. A person has
complete control over things like books, clothes, phone, etc. But he cannot have the same
kind of control over an animal like a tiger. He may exercise control over the animal by
putting it in a cage. A person’s actual control over his ship on the sea may be still less.
But that does not affect the fact that he has control over all these things. However less the
control may be, as long as he has control over a thing, he has possession of that thing.
170 11. Possession
2. Having Power to Exclude Others from Interfering
The ability to exclude others from interfering with the control over, i.e., possession of a
thing, depends on several things. In some cases it may need the physical power of the
possessor or some other person helping the possessor to retain his possession. In some
other cases mere presence of the possessor may be sufficient. In yet another case, the
security may be achieved by secrecy, i.e., the place where the property is kept.
In some cases, there may not be anyone to be excluded. Therefore, even without power,
presence or secrecy, the possession may be kept secured. Salmond gives the example of a
person fishing on an uninhabited island. The moment he catches a fish he has the
possession of that fish. There is no question of excluding anybody as there is nobody to be
excluded. Mere intention of the person to have exclusive control over the property may be
sufficient in such cases.
Possession in Law (De Jure Possession) – Constructive Possession
De jure possession or possession in law is the possession of a person having a right of

possession of a property. He may or may not have the actual possession of the thing.
A person may be having a property with a right to possess it. In that case he has both de
facto as well as de jure possession. Holding the property is de facto possession, while
having right to possess it is de jure possession.
A person who has given his property to some other person temporarily, has the de jure
possession of the property. The person who has borrowed a property from another person
holds the property for the person who has given him that property. He has to use that
property in accordance with the terms and conditions of the loan. If the borrower tries to
deviate or deviates from those terms, the lender can prevent him from doing so.
If a third person snatches the property from the borrower or steals it, the lender has the
right to recover the property from the snatcher or the thief.
Thus, the lender has the control over the property though it is not with him. He has
control over the property but does not have the custody of the property. Therefore, he has
possession of the property. But that possession is not de facto or actual possession. It is
de jure or constructive possession.
Normally knowledge is an element of possession. But sometimes a person may possess a

property without his knowledge.
Distinction between Possession in Fact and Possession in Law
1. Possession in fact or de facto possession is the physical possession. Possession in law

or de jure possession is legal possession, i.e., possession in the eye of law, it is
recognized and protected by law.
2. Possession in fact is actual possession, possession in law is constructive possession.
3. For possession in fact, the property which is the subject-matter of possession must be
with the possessor. For possession in law, the property is with some other person.
IMMEDIATE (DIRECT) AND MEDIATE (INDIRECT) POSSESSION
Actual possession may be called immediate possession or direct possession. It is the

possession acquired or held by the person himself.
Constructive possession may also be called mediate possession or indirect possession. It

is possession through some other person.
Salmond has given three instances of mediate possessions:
1. Possession acquired through an agent or servant;
2. Possession held through a borrower or hirer or lessee, where the property may be
demanded at will;
3. Possession is held through a person who is bound to return the property after a certain
period or on the fulfilment of certain conditions, like, the pledgee is bound to return the
goods pledged when the debt is paid.
Some authors have criticised these examples. Firstly, it has been pointed out that in case
of an agent or servant, he does not possess the thing but merely has custody of it as here
the animus is lacking. But this is not correct. The agent or servant has the control over
the thing till it is handed over to the principal or master, and there is an intention to
exercise that control.
Secondly, it is said that two persons cannot have possession of a property simultaneously.
Salmond himself points out that exclusiveness is the essence of possession. The situation
is different in case of co-owners as none of them has the right to exclude other co-owners.
The first category of possession is called ‘representative’ possession. Some call it a type of
‘duplicate’ or ‘concurrent’ possession. The other two are called ‘derivative’ possessions.
172 11. Possession
CONCURRENT (DUPLICATE) POSSESSION
Under the civil law, exclusiveness was the essence of possession. Today it means that it is
not possible that two persons have an independent as well as adverse claim to possession
of the same thing at one time. But it is possible that two persons have concurrent claims
to the possession of the same thing at the same time. But their claims cannot be mutually
adverse. Such a possession is called ‘concurrent’ or ‘duplicate’ possession.
The most important and common example of concurrent possession is mediate and
immediate possession, such as of lessor and lessee respectively or of bailee and bailor, etc.
The joint possession of co-owners is another example of concurrent possession. It is called

compossessio in Roman Law.
Corporeal and incorporeal possession may also co-exist in respect of the same material
object. For example, a person has corporeal possession over a piece of land while another
has a right of way over it, which is incorporeal possession of it.
CORPOREAL AND INCORPOREAL POSSESSIONS
Properties have physical existence are called ‘corporeal’ properties. Most of the properties,
both movable and immovable, have physical existence, and are known to everyone. Lands,
buildings, trees, vehicles, furniture, etc. are the examples of corporeal properties.
Possession of corporeal property is corporeal possession. Corporeal possession is called

possessio corporis, i.e., possession of a thing. Corporeal possession consists of continuous
exercise of control over a corporeal property.
Incorporeal properties do not have physical existence. They have only legal existence. They
are not generally known to lay persons. Incorporeal properties, though they have no
physical existence, may still be movable or immovable properties. Fishing rights, ferrying
rights, leasehold rights in immovable properties etc. are the instances of immovable
incorporeal properties. Copyright, trademarks, patents are the examples of movable
incorporeal properties.
Possession of incorporeal property is incorporeal possession. Incorporeal possession is

also called possessio juris, i.e., possession of a right.
Incorporeal possession consists of continuous exercise of claim to a right over a property.

The claim may be in respect use of some corporeal property as in case of fishing rights,
ferrying rights, leasehold rights. It may also be unconnected with the use of any corporeal
property, as in case of copyrights, trademarks and patents.
Actual use of the property is not essential. Even where a person does not use a property
over a period of time, he does not lose the right to possession. However, it may be a good
evidence of intention to abandon the property.
Further, only a property may be possessed. A person cannot be possessed by another

person. A child cannot be in the possession of the parents or guardian. A child is said to
be in the custody of its parents or guardian. Police may take a person into their custody.
ADVERSE POSSESSION
It is the possession of a property without the consent and against the wish of the owner of
the property or of a person having right of possession of the property. Thus, it is against
i.e., adverse to the interest of the owner or possessor of the property.
If the adverse possession continues, undisturbed, for the prescribed period which is 12
years in India, then the title of the real owner comes to an end and the possessor becomes
the owner thereof. This is called perfecting title by adverse possession, or ‘prescription’.
It has two effects:
1. positive or acquisitive for the person in whose favour the right of ownership is created,
and
2. negative or extinctive for the person whose right is extinguished.
The requisites of adverse possession can be mentioned as:
1. Continuity of possession for the prescribed period;
2. Adequate publicity, that is, the possession must not be held in secrecy but openly; and
3. Peaceful or undisturbed possession for the prescribed period.

174 11. Possession
ACQUISITION OF POSSESSION
There are three important modes of acquisition of possession:
1. By Taking
2. By Delivery
3. By the Operation of Law
1. ACQUISITION OF POSSESSION BY TAKING
It is the acquisition of possession without the consent of the owner or possessor. It may be
rightful or wrongful.
As Keeton says, where an inn-keeper seizes the goods of his guest, who has failed to pay
his bill, there is acquisition of possession by rightful taking. But where a thief steals
something, he acquires possession wrongful taking.
But it is not necessary for acquisition of possession by taking that the thing must be
already in the possession of some other person. For example, acquiring possession of a
res nullius, i.e., a thing belonging to no one, such as a wild animal or bird, etc. is also by
way of taking.
2. ACQUISITION OF POSSESSION BY DELIVERY
Delivery of possession is, so to say, transfer of possession. Delivery of possession may be
1. Actual Delivery of Possession
2. Symbolic Delivery of Possession
3. Constructive Delivery of Possession
Actual Delivery of Possession
Where a corporeal movable property is capable of being handed over, handing over the
property amounts to actual delivery of possession of that property. Delivery of possession
of jewellery may be done in this manner.
Acquisition of Possession 175
Symbolic Delivery of Possession
Where a corporeal property is incapable of handing over, delivery of possession of such

property is done by some other means. Delivery of possession of a car may be done by
handing over the keys. Similarly foodgrains may be kept in a warehouse and keys may be
handed over. A building may be locked and keys may be handed over.
Constructive Delivery of Possession
Constructive delivery of possession is delivery of constructive possession. There are three

types of constructive delivery of possession:
1. Traditio Brevi Manu;
2. Constitutum Possessorium;
3. Attornment
1. Traditio Brevi Manu
It is the giving up of possession to someone who already has the immediate possession.
Illustrations
1. A lessor sells the leased property to his lessee. The intention on the part of the lessor to
give up his constructive possession of the property coupled with delivery of title
documents of the property to the lessee is constructive delivery of possession of the
property by the lessor to the lessee.
2. A person sells a book to the hirer thereof who is already in immediate possession of the
book. So, in other words, it is only the animus that is transferred as the transferee
already has the corpus.
2. Constitutum Possessorium
As opposed to traditio brevi manu, constitutum possessorium means that the mediate
possession is transferred and the immediate possession remains with the transferee.
Illustrations
1. A purchases a bicycle from B who also does the work of giving bicycles on hire. A
allows B to keep the bicycle and continue to use it for hiring purpose.
176 11. Possession
Here, although the immediate possession is still with B, A has got its possession
through constructive delivery.
2. Owner in possession of a house sells it to a person. According to the agreement

between the seller and buyer, the seller continues in possession of the house as a
lessee of the buyer. The seller will continue in possession of the house and delivers
constructive possession to the buyer who is now his lessor. The seller hands over the
title documents to the buyer.
3. Attornment
In this kind of delivery, there is transfer of mediate possession while immediate

possession is in the hands of a third person.
Illustration
A has goods in the warehouse of B. A sells them to C. In this case A has

constructively delivered the goods to C as soon as B agrees to hold them for C and
no longer for A.
Delivery of possession of a property which is already in the possession of the person to

whom it has to be delivered is also an instance of constructive delivery of possession.
3. ACQUISITION OF POSSESSION BY OPERATION OF LAW
A person may become owner of a property, or otherwise entitled to possession of a

property by the operation of law. A person who succeeds to a property becomes entitled to
the possession of that property. Under the Transfer of Property Act, 1882, on the death of
a lessor his legal heirs become lessees in his place, and hence become entitled to the
possession of the leased premises.
POSSESSORY RIGHTS
Possessor of a property, whether he is the owner of the property or not, has some rights.
The main such rights are:
1. Right of Non-interference
2. Right to Retain Possession
3. Right to Regain Possession
4. Right to Prima Facie Title to the Property

Possessory Rights 177
1. RIGHT OF NON-INTERFERENCE
The possessor of a property has a right that his possession should not be interfered by
others who do not have right of possession in respect of that property.
A possessor tries to avoid interference of others by use of physical force, or his personal
presence at the property, i.e., by guarding the property or by concealing the property 24.
2. RIGHT TO RETAIN POSSESSION
The person having right to possession of a property has the right to continue in the
possession of the property as long as his right continues. Only when he loses the right to
possession or his right is superseded by a superior right, he loses his right to possession.
Till then he has right to retain the possession of the thing. This right is similar to the right
to non-interference. There is a very slight difference between the two. Right to retain
possession is right not to be dispossessed. Right to non-interference covers those cases
where someone may, without dispossessing the owner causes disturbance to the peaceful
enjoyment of the property by the possessor.
A possessor may use his physical force to prevent his dispossession. This is called the
right to ‘self help’. But the use of force must be proportionate to the risk of dispossession.
3. RIGHT TO REGAIN OR RECOVER POSSESSION
If the possession of a person having right to possession is lost, then he gets a right to
regain possession. But he may do so only by peaceful means. He cannot use force to
regain possession. He is not entitled to use ‘self help’ but to use legal process to regain the
lost possession.
4. RIGHT TO PRIMA FACIE TITLE
Salmond rightly observes that for a layman ‘possession’ is an absolute term. Either one
has the possession of a thing or he does not have possession of a thing. But for a lawyer
‘possession’ is a relative term. Possession of a person may be good against one person, but
not as against another person.
24 For more details see supra, ‘Securing Non-interference’ at p. 167

178 11. Possession
A trespasser to a property has a good title against the entire world except the true owner
of the property. He may exercise right of non-interference, right to retain possession as
against all others, but not against the true owner of the property.
Under the Transfer of Property Act, 1882, possession amounts to constructive notice of
the title of the possessor of the property.
Sec. 110 of the Indian Evidence Act, 1872 speaks about the burden of proof as to
ownership. When the question is whether any person is the owner of a property of which
he is shown to be in possession, the burden of proving that he is not the owner is on the
persons who affirms that he is not the owner.
POSSESSORY REMEDIES
‘Possessory’ remedies are remedies available to a person entitled to possession of a

property against third person when his right of possession is endangered or infringed by a
third person. If the person is the owner of the property he is entitled to ‘proprietary’
remedies. If the person entitled to possession of a property is not the owner of the
property, he may use possessory remedies even against the owner.
SELF HELP
A person in possession of a property has a right to use force to protect his possession.
This right is the right to self help. There are four conditions for the use of self help.
1. The person must have the possession of the property. The right may be used to retain
the possession. It cannot be used to regain the possession. Once the possessor is
dispossessed, he loses his right to self help.
2. Before using force attempt must be made to avoid dispossession by amicable means.
Only when amicable means fail, force may be used to avoid dispossession.
3. There should not be enough time to obtain legal remedies.
4. The force must be proportionate to the threat. Only so much of force as is necessary
should be used, i.e., force should not be excessive.
If the above conditions are not satisfied, the possessor himself may be liable for assault
and battery.
Possessory Remedies 179
LEGAL REMEDIES
If the possessor is not able to retain possession by using self help, or does not succeed in
retaining the possession by self help, or he is dispossessed without his knowledge, he has
to use the remedies provided by law to regain possession.
The following are the remedies to which a possessor is entitled:
1. Injunction;
2. Declaration and Injunction;
3. Possession;
4. Declaration and Possession;
5. Compensation; and
6. Mesne Profits.
12. OBLIGATION
ABOUT OBLIGATIONS
MEANING AND DEFINITION – NATURE OF OBLIGATION
In ordinary language ‘obligation’ and ‘duty’ are more or less synonymous. But in law they
are not quite synonymous.
‘Obligation’ is only a species of ‘duty’. It is a duty it is correlated to a ‘right in personam’.

Salmond states that the right in personam which is correlated to an ‘obligation’ is always
a proprietary right. A right related to a person’s status, though a right in personam, is not
correlated to an obligation. Therefore, an obligation is a duty correlated to a proprietary
right in personam.
Salmond further states that in law ‘obligation’ means both a duty and a right. For the
person entitled to a right, an obligation is a right. For the person under the duty
obligation is a duty.
KINDS OF OBLIGATIONS
SOLIDARY OBLIGATIONS
In a normal case there is one creditor and one debtor. But sometimes two or more
creditors may be entitled to the same obligation, or two or more debtors may be liable for
the same obligation.
A case of co-owners is the example of two or more persons entitled to a common right. A
case of partners of a firm having common rights over the partnership properties is an
instance of such co-ownership.
On the other hand, the liabilities of partners of a firm is the example of common liabilities.
Their liabilities are joint.
Illustration
Partners of a firm, A and B owe Rs. 10,000 to C. Their liabilities are not Rs. 5,000 and
Rs. 5,000 respectively. A and B each owe Rs. 10,000 to C. But that does not mean that
there are two debts, or that C is entitled to Rs. 20,000. Once the debt is paid by A or B,
the debt is discharged in respect of both A and B.
Kinds of Obligations 181
Such obligations are called ‘solidary’ obligations because each debtor is bound in solidum
i.e., for the whole of the liability, and not pro parte i.e., for a proportionate part. The
liability of joint tort feasors is another example of solidary obligations.
Therefore, solidary obligation may be defined as an obligation in which two or more

debtors owe the same thing to the same creditor.
Types of Solidary Obligations
Solidary obligations may be of three types:
1. Joint
2. Several
3. Joint and Several
1. Joint Obligations
In this case, there is only one debt, only one thing owed or only one cause of action, but
there are more than one debtors. The vinculum juris is single. There is only one contract
between the creditor and the debtors.
Anything discharges any one of them discharges all of them. Liabilities of partners are the
examples of joint obligations. Most of the contractual obligations are joint unless they are
expressly made joint and several.
Illustration
A agrees to give a loan to B but demands security from B for repayment of the loan. C
agrees to stand as surety for B. A bond is executed by B and C whereby B promises to
repay the loan and C agrees to pay the loan amount if B fails to repay the loan.
Here B and C are bound to C through only one contract in respect of one and the same
subject matter, i.e., the repayment of the loan advanced by A to B. Their obligations are
joint. Discharge of obligation by one is discharge of obligations of both B and C.
2. Several Obligation
In this case, there is only one thing owed, but there are as many obligations as there are
debtors. Each debtor is bound by a separate and distinct vinculum juris to the creditor.
182 12. Obligation
Each debtor has an independent obligation towards the creditor. Each debtor is bound to
the creditor under a different contract in respect of the same thing.
As each contract is in respect of one and the same thing, discharge of liability of one
debtor discharges all of them.
Illustration
A gives a loan to B. B executes a bond in favour of A and agrees to repay the loan in
instalments. But B does not pay the instalments regularly as promised. A demands
security from B for repayment of the loan. C agrees to stand as surety for B. C executes
an agreement in favour of A in which he agrees to pay the loan amount if B fails to
repay the loan.
Here there are two separate and distinct agreements independent of each other. The
first is the agreement between A and B. The other is A and C. They are in respect of the
same thing i.e., repayment of loan advance by A to B. Discharge of obligation by one is
discharge of obligation of both B and C.
Similarly, the obligations of two or more co-sureties who guarantee the same debt
independently of each other are several. Discharge of debt by one surety discharges all.
3. Joint and Several Obligations
An obligation which is in between joint obligation and several obligation is called joint and
several obligation. For some purposes law treats the obligation as joint and for some
purposes law treats the obligation as several. In other words, for some purposes law treats
the obligation between the creditor and the debtors as a single obligation. For other
purposes law recognises as many obligations towards the creditor as there are debtors.
Example of joint and several liability is liability of joint tort feasors.
TYPES OF OBLIGATIONS BASED ON THEIR SOURCES
Obligations may be classified in to the following four types based on their sources:
1. Contractual – obligationes ex contractu;
2. Tortuous or Delictal – obligationes ex delicto;
3. Quasi-Contractual – obligationes ex quasi contractu;
4. Innominate
Types of Obligations Based on Their Sources 183
1. OBLIGATIONS ARISING FROM CONTRACTS
The first and the most important class of obligations consists of the obligations created by
contract. A contract creates rights in personam between the parties to that contract. Thus,
a contract also creates mutual obligations. The major part of the law of contract falls
within the law of obligations.25
2. OBLIGATIONS ARISING FROM TORTS
The second class of obligations are those created by torts. These are called ‘delictal’
obligations. Under the Roman law of obligations they were called obligationes ex delicto.
A delictal obligation is an obligation to compensate the victim of a tort for the loss suffered
by him due to the tort committed against him.
Tort is a violation of a private right in personam. It is a class of civil wrongs. The victim’s
remedy is an action for damages.
First, tort is to be distinguished from a crime in that tort is a civil wrong, while crime is a
criminal wrong. Though both are violations of rights in rem, tort is a violation of a private
right in rem, while crime is a violation of a public right in rem.
At times, however, torts and crimes overlap. Such wrongs are called ‘felonious torts’. The
victim has remedy under both laws, i.e., law of torts and law of crimes.
Second, every civil wrong is not a tort. A breach of contract is a civil wrong. But it is not a
tort. Though both tort and breach of contract are violations of private rights, tort is a
violation of a private right in rem, breach of contract is a violation of a private right in
personam.
Further, tort is a wrong for which remedy is lies in an action of damages. There are other
forms of civil remedies such as specific restitution, injunction etc.
Third, if a wrong is exclusively breach of contract, it is not a tort. A Tort may either be
exclusively a tort or it may be both tort and breach of contract. This may happen at least
in two ways.
25 Some contracts do not fall under the law of obligations. For example, a contract of marriage
falls under the law of status, not law of obligations.
184 12. Obligation
One, where a person contracts to do an act doing which is already his duty under law.
That is, he was already having a duty to do that act independent of contract.
Example
A bailee who does not return the goods bailed to the bailor, he is liable for breach of
contract, because under the contract of bailment he was under a duty to return the
bailed goods to the bailor on the termination of bailment.
His omission also amounts to a tort namely, conversion. This wrong is independent of
the contract of bailment. That means even if there were no contract of bailment
between the parties, still liability for conversion would arise.
Other, in some cases breach of contract between two parties may create liability towards a
stranger to the contract, i.e., a person who is not a party to the contract. A basic rule of
law of contract is that to be able to sue under a contract one must have privity of contract
In many cases a person may not be able to sue ex contractu i.e., under a contract, but he
may be able to sue ex delicto, i.e., under the Law of Torts. To be able to do so, he must
have suffered injury arising out of the breach of contract between two others.
Illustration
According to a contract between A and B, B agreed to carry A’s son C safely to college
everyday for a monthly payment of Rs. 5,000. Due to B’s negligence an accident took
place and C was injured. Thus, B committed breach of contract with A.
A may sue B under the contract. But C may not sue B under the contract because
though he is the beneficiary under the contract, he is not a party to it. Therefore he
does not have privity of contract.
But C may sue B under the law of torts for the injury caused to him in the accident
caused by the negligence of B.
Donoghue vs. Stevenson
The famous Plaissey Snail Case is the well known example of a case under the Law of
Torts where the aggrieved customer was able to sue and recover damages from the
manufacturer of defective goods, independent of any contract between them.
Fourth, torts are also different from breaches of trust and other equitable obligations.
Trusts and other equitable obligations are excluded from torts because of historical reason
Torts originated in the common law courts while trusts originated in Courts of Chancery.
Types of Obligations Based on Their Sources 185
3. OBLIGATIONS ARISING FROM QUASI CONTRACTS
Some obligations are not really arising out of contracts, but law treats them as if they are
arising out of a contract. But the contract imagined by law is quite different from the
contract, if any, between the parties. In many cases, there may not be any contract
between the parties.
Illustrations
1. A, a minor enters into agreement with B for supply of necessaries for a monthly
payment of Rs. 10,000. B supplies the necessaries to A, but A does not make the
payment as agreed.
A being a minor, the contract is null and void. But law treats as is there is a contract
between them. A is liable to pay the reasonable value of the necessaries to B, not the
agreed amount of Rs. 10,000.
2. A is the lessee of a premises leased to him by B. B fails to pay tax in respect of the
said premises. The revenue officers come to forfeit the premises for default of tax. A
makes a payment of tax to the officers in order to protect his possession of the
premises. Thus, law creates a contract between A and B.
Though there is no contract between A and B law will treat as if there is a contract
between A and B under which A has agree to pay tax on behalf of B, and B has
agreed to reimburse the amount of tax to A.
Thus, in the first example, law substitutes a contract in place of the contract between A
and B, while in the second example, law creates a contract between A and B. As these
contracts, one substituted by law and the other created by law are not really contracts.
But they resemble contracts. Therefore, they are called quasi contracts.
A quasi contract is a contract implied by law. It should be distinguished from the

contracts implied from facts.
Illustration
When a person boards a bus, he impliedly proposes to travel by the bus by paying the
fair. When the conductor hands him over the ticket, he agrees impliedly to carry the
passenger to the destination for the fair paid by the passenger.
A contract implied from facts is an actual contract. It exists in reality. A contract implied
by law is a constructive contract. It is a legal fiction.
186 12. Obligation
4. INNOMINATE OBLIGATIONS
Apart from the above classes of obligations, there may be other obligations. For example,
the obligations of the trustees to their beneficiaries does not fall under any of the above
classes of obligations.
These obligations are called ‘innominate’ obligations, i.e., obligations without any name.
They are the obligations of the residuary class.
13. LIABILITY
ABOUT LIABILITY
A person who owes a duty to another person is responsible to that person. ‘Responsibility’
is the obligation of a person having a duty to answer when questioned by the person
having a corresponding right. In law, the term ‘answerability’ is also used. A person is not
responsible or answerable when questioned by a person who does not have the right
corresponding to his duty.
Illustrations
1. A has given a loan to B. B had promised to repay the loan within six months. But B
has not repaid the loan as promised by him. A may question B about the repayment
of loan B has to answer, i.e., B is answerable to A.
2. A has given a loan to B. B had promised to repay the loan within six months. But B
has not repaid the loan as promised by him. A’s father C questions B about the
repayment. B is not answerable to C, because he does not owe the duty to repay the
loan to C.
If the person who is responsible is unable to answer or if the person’s answer is not
satisfactory to the person having the corresponding right, the person incurs liability. In
the above example, if B fails to answer A when questioned by A, or B’s answer is not
satisfactory to A, B incurs liability.
TYPES OF LIABILITIES
Thus, liability may arise due to failure of a person to respond. In fact, liability is the
consequence of breach of a duty. Depending upon the nature of the duty, liability may be
1. (a) civil, or
(b) criminal; or
2. (a) remedial, or
(b) penal.
188 13. Liability
In case of penal liability, the object of law is to punish the wrongdoer. All cases of criminal
liability are penal.
In case of remedial liability, the object of law is restitution. In some cases of remedial
liability, the object of law is to compensate the victim. For example, where due to the
negligence of the defendant the plaintiff has suffered loss, the defendant incurs remedial
liability and becomes liable to compensate the plaintiff for the loss suffered by him.
In some other cases of remedial liability, object of law is to restore to the plaintiff what is
withheld from him by the defendant. In the first example, B is made to repay the loan to A
Thus, civil liabilities may be either remedial or penal. Where the defendant has to pay
compensation to the plaintiff, the civil liability has the appearance of penal liability in the
sense that the defendant suffers loss. Where the defendant has to restore the plaintiff’s
right such as by repaying loan, the civil liability is remedial liability, as the defendant does
not suffer any loss.
THEORY OF PENAL LIABILITY
The object of penal liability is to protect the society from crimes. It is sought to be
achieved through punishment, the object of which is, in turn, deterrence, prevention or
reformation. Deterrence is found to be the primary object of punishment.
There are three important aspects of punishment. They are:
1. General Conditions of Penal Liability
2. Incidents of Penal Liability
3. Extent of Penal Liability
1. General Conditions of Penal Liability (Actus Non Facit Reum Nisi Mens Sit Rea)
The famous Latin maxim actus non facit reum nisi mens sit rea 26 suggests that to hold a
person penally liable, the following two conditions must be satisfied:
(a) actus reus (effect of one’s act)
(b) mens rea (guilty mind)
26 The Latin maxim mentioned above is somewhat vaguely translated into English as “to
constitute a crime act and intent must concur”.
Types of Liabilities 189
Only commission of an act amounting to an offence is not sufficient to hold a person

guilty of offence. The act must have been committed with a ‘guilty intent’. Conversely, only
guilty intent is not sufficient to hold a person guilty. That intent must be converted into
an overt act27.
Further both the intent and the act done in pursuance of that intent must concur. If not,
the person is not liable for the offence.
Illustration
A has a quarrel with B. Out of anger, A intends to kill B. After some time A cools down
and drops the intention to kill B. On the same day, while A was driving home, B
suddenly comes before A’s car. As A had not expected B coming before his car, A fails
to control his car. As a result A’s car collides with B and B dies.
A is not guilty of murder. When A had an intention to kill B, he had only mens rea. But
he did not kill B. Thus, there was no actus reus. When A killed B in the accident, he did
not have any intention to kill B. Therefore, there was only actus reus but no mens rea.
R. vs. Thabo Mali
In this South African Case the accused, husband and wife, had lodging facility for
tourists in their house. A tourist was accommodated by them during a night. He had
some money and valuables with him. In order to rob him, the couple tried to kill him by
hitting on his head. The tourist became unconscious. Thinking that he was dead, the
couple threw him out. That night there was heavy snow fall and the tourist died due to
exposure to cold.
It was argued that when the accused hit the victim on his head they had mens rea i.e.,
intention to kill him. But he did not die. Therefore, there was no actus reus. But when
they threw him out, they thought that he was already dead. Therefore they could not
have had the mens rea to kill him. But as he died, there was actus reus. Thus, mens
rea and actus reus did not concur, and hence, the accused were not guilty of murder.
But the Privy Council upheld the decision of the lower Court that there was continuity
of acts and hence, the accused were guilty of murder.
Actus Reus (Act or Effect of One’s Act)
Actus reus means the effect of one’s act. But where the act is intrinsically wrongful, the
act itself may amount to actus reus.
27 An ‘overt act’ is some physical act as opposed to mere thinking.

190 13. Liability
Illustrations
A stabs B with a knife. Stabbing is the act committed by A. But it is not the actus reus.
1. Due to the stabbing a small cut is caused on B’s arm. Under IPC it amounts to
simple hurt.
2. Due to the stabbing severe injury, B suffers an injury which becomes septic and B’s
hand is amputated. It amounts to grievous hurt under IPC.
3. The knife pierces through B’s heart and B dies. It amounts to murder under IPC.
The same act of stabbing results into minor injury which amounts to simple hurt, a
major injury which amounts to grievous hurt or death which amounts to murder. This
hurt, grievous hurt or murder is the actus reus. Thus, act may be same, but actus reus
may be different in different cases.
Act
In ordinary language, ‘act’ means a ‘deed’ i.e., doing something. In law, for achieving
brevity and convenience, depending upon context, ‘act’, may mean any of the following:
1. an act
2. an omission
3. an act and an omission
4. series of acts
5. series of omissions
6. series of acts and omissions
7. an act and series of omissions
8. an omission and series of acts
Committing an act which is prohibited by law is be an offence if there is a punishment

prescribed in law for doing that act. Not doing an act, i.e., an omission to do an act is an
offence if there is a duty on the part of a person to do that act, and the omission is
punishable in law.
Acts may be classified as
1. Voluntary Acts; and
2. Involuntary Acts.
An act done by a person out of his own free will is his ‘voluntary’ act. Salmond lists the
following acts as involuntary acts:
1. acts which are outside human control, e.g., heart beats;
2. reflex actions, e.g., sneezes, twitches; and
3. acts performed by a person in an abnormal condition, e.g., sleep, fits.
Salmond further observes that in most of the cases the above involuntary acts are
harmless, and those involuntary acts which are harmful are rare.
But for the purpose of law, we may add two more types of involuntary acts:
4. acts of a person who has lost physical control over himself, e.g., slipping; and
5. acts if a person who is controlled by another person, e.g., at the point of a gun.
In the second case, i.e., where a person’s acts are controlled by another person, the act
done by the former may be treated as the acts of the latter.
But where a person who deliberately puts himself in a condition where he knows that he
may commit an involuntary act, involuntariness of his act may not be a good defence for
him. For example, where a person rides a motorcycle on a slippery road at an excessive
speed, he cannot escape liability if his motorcycle slips and causes injury to another.
Similarly, where a person knows that he is likely to commit an involuntary act, does not
take precaution to avoid it, he may not use involuntariness as a defence. For example, a
person who frequently suffers from epileptic fits drives a vehicle and an accident takes
place when the driver suffers epileptic fit.
Mens Rea (Guilty Mind)
A person may not be held liable for his acts unless there is some guilty state of mind
behind that act. The form of mens rea depends upon the legal system. Thus, under the
English Common Law, there are the following three forms of mens rea:
1. Intention
2. Rashness
3. Negligence
192 13. Liability
Based on mens rea, wrongs may be classified into three classes as under:
1. Intentional or Reckless Wrongs;
2. Wrongs of Negligence;
3. Wrongs of Strict Liability.
In the third category of wrongs mens rea has no role to play.
Intention
Generally, intention is the purpose or design with which an act is done. Sometimes, the
purpose may be to do that act by itself. But often, an act is done in order to do some other
further act or achieve some consequence.
Illustration
1. A sees a beautiful knife. He is attracted by its looks, he wants to have it. Therefore,
he purchases that knife. His intention is to have that knife, and nothing further.
2. A wants kill B. He sees a knife. In order to kill B by stabbing A purchases the knife.
Here A’s intention is not merely possess the knife, but he has the further intention
of using that knife to kill B.
Technically, where a person knows the natural consequences of his act and commits that
act desiring those consequences is said to have committed that act intentionally. Thus,
intention includes both foresight and desire.
Illustration
A, knowing fully well that B is in the room locks the room. A not only knows that B will
miss his examination if he is so locked, but also desires that B should miss the
examination. A is said to have intention to cause B to miss his examination.
Unintentional acts lack any such purpose or design.
Illustrations
1. B’s land does not have a clear, visible boundary. A through oversight enters upon
the land of B. A does not have intention to commit trespass over B’s land.
2. A aims at a distant target. He aims at it and shoots. While shooting he does not take
into consideration the deviation of the bullet due to wind. The bullet deviates due to
wind and causes injury to B. A did not intend to injure B.
3. A goes into forest for hunting. A he hears a sound in a nearby bush. Thinking that
an animal is trying to attack him, he shoots and injures B who was behind the bush.
A did not intend to injure B.
Some acts may be partly intentional and partly unintentional.
Illustration
A’s husband B is not heard of since last 10 years. She marries C. B is alive. Here A
intended to marry C, but she did not intend to commit bigamy.
Mistake
‘Mistake’ means misunderstanding. Mistake may be
1. of Law; or
2. of Fact.
Ignorentia juris non excusat, ignorentia facti excusat (Ignorance of law is not excused,
ignorance of fact is excused).
‘Ignorance of law’ means not only not knowing law but also not knowing the correct law.
Therefore, mistake of law i.e., misunderstanding law is not excused.
But mistake of fact may be a good defence depending upon circumstances. The true fact is
substituted by the mistaken fact. In other words, the mistaken fact is treated as a true
fact. In the light of the substitution, the liability of the accused is determined.
Illustrations
1. A picks up a book belonging to B.
(a) A says that taking property belonging to others is a wrong. He is pleading

ignorance of law. It is no defence in a case for theft.
(b) A says that he took the book believing it to be his own book. He is pleading
mistake of fact. Here there are two facts
(i) The true fact – The book belonged to B.
(ii) The mistaken fact – The book belonged to A.
If the mistaken fact is taken as the true fact, A has taken his own book, which
does not amount to theft. Therefore, here mistake of fact is a good defence.
194 13. Liability
2. A intends to murder B. A goes to B’s house with a gun. He peeps through a

window and sees someone sitting in B’s chair. Believing him to be B, A shoots and
kills him. But the victim turns out to be C. A says that he killed C mistaking him
to be B. A is pleading mistake of fact. Here, therefore, there are two facts.
(a) True fact – A committed the murder of C.
(b) Mistaken fact – A committed the murder of B.
If the mistaken fact is taken as true fact, A has murdered B. Committing murder
of B is also an offence. Therefore, here mistake of fact is not a good defence.
Salmond suggests that the phrase ‘with intent to’ which is frequently found in definitions
of offences may have any one or more of the following four things:
1. The intention shall be the sole or exclusive intention;
2. The intention may be any one of the alternative intentions;
3. The intention shall be the ‘dominant’ intention, while others may be subordinate or
incidental intentions;
4. The intention should be a ‘determining’ intention, i.e., in the absence of that intention,
the act would not have been committed, the other intentions being insufficient to
motivate the act.
Motive
Often a wrongful act is not committed for its own sake. Such wrongful act may be simply
a means of achieving an ulterior object. Motive is that ulterior intention. It is the reason
behind the intention.
Illustration
A shoots B and kills him. A knew that B will be killed if he is shot. A desired that B
should be killed. Therefore, A had and intention to kill B.
But the question is why did A intend to kill B? The reason behind the killing of B by A
is called the ‘motive’ of killing.
Taking revenge, obtaining property, eliminating competition, etc. are some of the
frequent motives for murders.
Intention and Motive
Intention relates to the immediate objective of an act. Motive relates to the objective or
series of objectives with which an act is done.
Illustrations
1. A prepares a die to print fake currency.
2. A prints that fake currency to circulate it.
3. A so circulates fake currency to earn money dishonestly.
Each act is, by itself, a distinct offence. Each act in lines 1, 2 and 3 is done with an
immediate intention to achieve some result in the same line.
But the act in line 1 is done with a motive to achieve the results in lines 2 and 3.
Similarly, the act in 2 is done with a motive to achieve result in line 3.
Sometimes motive to do an act may be good, but the intention to do an act to achieve that
motive may be bad.
Illustration
A has no money to pay the examination fee. He may lose one year if he does not pay the
examination fee. B wants to help A, but he himself is also poor. C has the money to
help A, but he refuses to help A. B commits theft of C’s money in order to help A.
B’s motive of helping A is good, but his intention to commit theft is bad.
Further, an intention may be complex in the sense that it may be committed with an
intention of achieving two or more motives.
Relevant and Irrelevant Motives
In law, generally a man’s motives are irrelevant. An act not otherwise unlawful cannot
generally be made actionable by an averment that it was done with evil motive. A wrongful
act does not become lawful, however noble the motive may be. Conversely, a malicious
motive per se does not amount to an injuria or legal wrong28.
28 Allen vs. Flood. Lord Herschell observed, “much more harm than good would be done by
encouraging or permitting inquiries into motives when immediate act alleged to have caused
the loss for which redress is sought is in itself is innocent or natural in character and one
which anybody may do, or leave undone without fear of legal consequences.”
196 13. Liability
Exceptions to Irrelevant Motives
Salmond points out that there are the following exceptions to irrelevant motives:
1. Attempts to Commit Offences
If an offence is committed with good or bad motive it is punishable. Where the commission
of an offence fails, it amounts to ‘attempt to commit offence’. Normally, attempt to commit
an offence is itself an offence. But, if a person does the same act without a criminal
motive, the act does not amount to an offence. Therefore, here motive is not irrelevant.
Illustrations
A standing near B’s haystack strikes a match.
1. The motive of striking the match is to put the haystack on fire. If he puts the
haystack on fire, he is guilty of the offence. But if he fails to put the haystack on fire
for any cause, he is guilty of the attempt to commit the offence.
2. The motive of striking the match is to light his cigarette. He is not guilty of any
offence.
In the first example, his motive in striking the match was criminal. He was, therefore,
guilty. In the second example, he has committed the same act with a motive which is not
criminal. Therefore, he is not guilty. Thus, motive plays an important role in deciding
whether an act is attempt to commit an offence or not.
2. Offences of Specific Intent
Under the English Common Law, mens rea is a necessary element of a crime. One of the
forms of mens rea is intention. But under statutory laws such as the Indian Penal Code,
the form of mens rea is specified in the definition of an offence. For example, acting
‘dishonestly’ may be the ingredient of an offence. Here, mere act, though intentional, is
not sufficient to constitute the offence. Motive of committing the act must be dishonest.
Illustrations
Sec. 378 defines theft. According to this definition, “Whoever, intending to take
dishonestly any moveable property out of the possession of any person without that
person’s consent, moves that property in order to such taking, is said to commit theft.”
A takes a movable property out of the possession of B without B’s consent and moves
that property in order to such taking.
1. A’s motive in taking the property is to dishonestly appropriate it. He is guilty of theft.
2. A’s motive in taking the property is to save it from the fire which has spread in that
area. His motive is honest. He is not guilty of theft.
Thus, the motive is relevant to decide the culpability of the act in such cases.
Even in many cases in which motive is not relevant, once the guilt is established motive
becomes relevant to decide the quantum of punishment in criminal cases and quantum of
damages in civil cases.
Malice
Malice is a term with many meanings.
1. Ordinary Meaning of Malice
Firstly, it is often used to mean spitefully or with ill-will. This is the ordinary sense of the
term. It is the narrowest meaning of the term.
2. Legal Meaning of Malice
Malice has a second, legal meaning. In this sense, malice means the intentional
commission of an act with any improper motive or without just cause or excuse. This is
much wider than the layman’s use of the word malice. Thus, in law, the term malice is
applied to both intention and motive. Sometimes this gives rise to ambiguity and,
therefore, to confusion. For example, if it is said that “A has done an act maliciously”, this
statement may mean one of the two following things:
1. A has the act intentionally or rashly.
2. A has done that act with some wrongful motive.
3. Archaic Meaning of Malice
The third sense in which the term ‘malice’ is used is its archaic sense. In this sense
‘malice’ simply means an intentional performance of a wrongful act. It is in this sense that
pleaders in libel and slander actions traditionally allege that the defendant “falsely and
maliciously…”. In fact, this means merely that the defendant’s publication of the
198 13. Liability
defamatory matter was either intentional or negligent. Malice in this sense would appear
to be a confusing and unhelpful use of the word, and hence, should be avoided.
Malice in Fact and Malice in Law
It is of two kinds, ‘malice in fact’ (or express malice or actual malice) and ‘malice in law’
(or implied malice). The first is what is called malice in common acceptation, and means
ill-will against a person. The second means a wrongful act done: intentionally without just
cause or excuse29 where a man has a right to do an act, it is not possible to make his
exercise of such right actionable by alleging or proving that his motive in the exercise was
spite or malice in the popular sense30.
Jus Necessitatis
The familiar proverb is necessitas non habet legum, i.e., necessity knows no law. Necessity
is a good defence under the law of crimes. Under sec. 81 of the Indian Penal Code, 1860
doing an act without criminal intent to avoid a greater harm is a general exception.
Acts Which Are Necessary and Acts Which Are Inevitable
Where an act is inevitable, i.e., unavoidable, the person committing the act has no choice.
Where an act is necessary, the person committing an act has alternative choices, but
there are compelling reasons to choose only one of them to the exclusion of the others.
In cases of necessity, there are competing values. One, avoiding commission of an offence.
The other, avoiding a harm. Sec. 81 of IPC provides that a person is not guilty if the harm
avoided or sought to be avoided is greater than the harm caused by committing an offence
Example
In a locality there are twenty huts in a row. Each hut is very close to the huts next to it.
The first hut is on fire. A pulls down the second hut to create a gap between the first
hut which is on fire and the third hut. By doing so he has committed an offence.
If A does not pull down the second hut, all the twenty huts would have burnt down.
Thus, the harm caused would have been much greater than the harm caused by A by
pulling down one hut. In other words, by pulling down one hut, he saved eighteen. He
is not guilty of the offence committed by him.
29 Bromage vs. Prosser. Here the term ‘malice’ is subjective.

30 Mogul Steam Ship Co. vs. M’gregor, Gow & Co. Here the term ‘malice’ is objective.
Sometimes, the motive behind committing an offence is so strong that the person
committing it is not deterred by the punishment or any other adverse consequences, at
least at the moment of committing the act amounting to the offence. One such case is that
which involves a risk to the life of the person. He does the act for self preservation 31. In
such cases no moral or legal consequences can dissuade him from doing the act.
On the one hand, where the motive of committing an act which amounts to crime cannot
be controlled by any reasonable punishment, it is morally unjust to award punishment. In
such cases no ordinary person can resist doing the act.
On the other hand, if no punishment is given in such cases, others may take it as an
excuse to commit the act, though they are not really motivated by necessity. In majority of
the cases it is very difficult to distinguish cases of real necessity from those which are not.
Rashness (Recklessness)
Where a person knows the consequences of his act, but does not desire them, he is said to
have acted rashly. Thus, rashness includes foresight of the consequences but not desire of
those consequences.
Example
A drives his vehicle at an excessive speed. A knows that accident may happen, but he
does not desire that accident should happen. A is driving the vehicle rashly.
But in all cases where there is foresight but no desire, the act cannot be said to be rash.
Example
A doctor puncture the abscess of a patient. He knows that it will cause pain to the
patient. But he does not desire the pain. We cannot say that doctor has acted rashly.
Because his desire is to treat the patient and recovery of the patient.
Similarly, where a doctor conducts surgery knowing that there is a risk of death of the
patient, but without desiring the death of the patient, we cannot say that the doctor
acts rashly. Because here also his desire is the recovery of the patient.
This means that mere absence of desire of consequences may amount to rashness, but if
there is a desire of good consequences of one’s act, it may not amount to rashness. A
driver driving a vehicle at an excessive speed may desire to reach his destination early, or
he may simply desire to enjoy fast driving. Such desires cannot be said to be good desires
so as to say that the driving was not rash.
31 R vs. Dudley and Stevens
200 13. Liability
Negligence
Where a person fails to discharge duty of care prescribed by law in doing an act, he is said
to have acted negligently.
Example
A, while driving his car sees a child playing on the road. A reasonable man in his
position would have slowed down the car. A does not slow down the car and as a
consequence accident takes place and the child is injured. A has acted negligently.
2. Incidents of Penal Liability
Every wrong consists of an act which is injurious in the eye of law. It is an act to which
law attributes harmful consequences. Salmond observes that such consequences may be
of two kinds:
1. actual; and
2. merely anticipated.
Therefore, Salmond says that an act may be harmful in two ways:
1. in its results; or
2. in its tendencies.
Therefore, legal wrongs are also of two types. The first corresponding to the first type of
act. Such acts are wrongful only when some harm is caused by the act. The second
corresponds to the second type of act. Such acts are wrongful even when no harm ensues.
In case of the first category of wrongs, it is not sufficient to prove only the act. Its harmful
consequences must also be proved to establish the liability of the wrongdoer. In the
second case, the proof of the act is sufficient to establish the liability of the wrongdoer.
Such acts are actionable per se.
Criminal liability arises when a person does an act prohibited by law. In a majority of
cases it is not necessary that the act should have resulted in harmful consequences.
Criminal law generally prohibits ‘commission of acts’ and not ‘commission of the acts if
harmful consequences result from the act’. Therefore, attempt to commit an offence is an
offence by itself.
3. Extent (Measure) of Penal Liability
Other things being equal, in determining the criminal liability, i.e., in determining the
amount of punishment to be given to an offender three factors may be considered:
1. the motive of the offence;
2. the magnitude of the offence; and
3. the character of the offender.
1. Motive of the Offence
The greater is the temptation to commit an offence, the greater should be the punishment.
This is based on the first principle of criminal liability.
One of the objects of punishment is preventive, i.e., prevent commission of offences.

Behind an offence, there is always some motive. If law creates a counter motive, i.e.,
motive not to commit the offence, the person may avoid committing the offence. That
counter motive is punishment. Law creates an artificial motive to counter the natural
motive of a person to commit an offence.
A person who desires to commit an offence may avoid committing it to avoid punishment.
If the motive is stronger, the counter motive must also be equally stronger. Otherwise, it
will not be effective in preventing the offence.
2. The Magnitude of the Offence
The greater the offence, i.e., the greater is the evil consequences of the act, the greater
should be the punishment.
Normally it is thought that punishment should be measured by the profit derived by the
offender, and not by the harm suffered by the victim. Thus, if motives are equal, the
punishments must be equal. Salmond shows two reasons for stating that it is not so.
First, the profitability of punishment in preventing the offence. Punishment puts some
cost on the State. To prevent a smaller offence incurring more cost is not wise.
Secondly, a persons motive may offer him alternative offences to commit. In such cases,
he is likely to choose that offence which has the least punishment. If all offences have
202 13. Liability
similar punishments, he may choose any one of them. But if the smaller offence has the
lesser punishment, he will choose the smaller offence.
3. The Character of the Offender
Most of the persons are discouraged from committing offences by punishments. But the
severity of punishment necessary for dissuading a person from committing an offence
varies from person to person.
Some are influenced by other causes such as religion, humanity, love for others, etc. In
such cases, punishment is only an additional factor. Even a small punishment and the
stigma it brings to one’s character may be sufficient to dissuade them from committing an
offence. But for some others punishment may be the only dissuasive factor. They are not
bothered about the stigma punishment brings. Unless the punishment is severe, they
cannot be prevented from committing offences.
Thus, sensitivity to punishment differs from person to person. As the sensitivity of a

person to punishment decreases, the quantum of punishment has to increase. The
sensitivity of a person to punishment may be assessed roughly from the following factors
among others:
1. Repetition of the offence shows that the person is not discouraged by the punishment
which discourages a normal person from committing the same offence.
2. Commission of offence which is disproportionate to the benefit derived by committing it.

For example, a person committing a murder to avoid repayment of a loan of Rs. 10,000.
3. Commission of offences such as patricide, fratricide, etc. which not committed by a

normal person.
THEORY OF REMEDIAL LIABILITY
Where there is a right there is a remedy – ubi jus ibi remedium. Generally, therefore, a
right has to be specifically enforced. But there are some exceptions where a right either
cannot be specifically enforced, or a right should not be specifically enforced.
In the first case, it is impossible to enforce the right specifically.
In the second case, though it is possible to enforce the right specifically, it is not proper to
do so. In such cases the remedy to the victim lies in damages.
The following are some such instances:
1. If a wrong is transitory, its corresponding right cannot be specifically enforced once it

is violated. But if the wrong is continuing one, the right can be specifically enforced
even after it is violated.32
Right to reputation of a person cannot be specifically enforced once defamation is

committed. But, the right to reputation of the plaintiff in future may be specifically
enforced by restraining commission of defamation.
Similarly, if a person’s house is demolished wrongfully, his right to reside in his house
cannot be specifically enforced. But if he is dispossessed, his right to reside in his
house can be specifically enforced by restoring his possession.
2. Some contracts such as contracts of marriage can be specifically enforced, but it is not
proper to do so. Even if the contract is specifically enforced, it will not give satisfactory
results in majority of cases.
3. Imperfect rights, though can be specifically enforced, law does not find it proper to do
so. Thus, a time-barred debt cannot be recovered through legal proceedings.
4. In some other cases where a right may be specifically enforced, law prefers to enforce
them through criminal law rather than civil law.
Damnum Sine Injuria (Damage Without Injury)
Here there is no legal loss. i.e., though there is a loss caused to the plaintiff by the act or
omission of the defendant, law does not consider it to be a loss. In the eye of law there is
no loss. This is because, there is no violation of plaintiff’s right by the defendant.
Illustration
In sports, the better player wins, and therefore the other player loses. He cannot say
that the winner has committed any wrong against him as he does not have any
exclusive right to win.
Gloucester Grammar School Case
The defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Due to
the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence
per scholar per quarter. They claimed the compensation for the loss caused. It was
held that the plaintiffs had no remedy for the loss thus suffered by them.
32 It should be remembered that wrong and its effects are two different things. ‘Wrong’ is the act
causing violation of right. Injury to body is a transitory wrong. But its effect maybe continuing.
204 13. Liability
Injuria Sine Damno (Injury Without Damage)
Here the torts are actionable per se, i.e., actionable without the proof of any damage or
loss. E.g. Trespass to land is actionable even though no damage has been caused as a
result of the trespass;
Illustrations
1. If the plaintiff is wrongfully detained against his will, he will have a claim for
substantial damages for wrongful imprisonment even if no consequential loss was
suffered upon the detention.
2. If a tenant makes improvements to the property leased without the right to do so,
the tenant commits the tort of waste and is liable for damages even though the
premises may be improved and rendered more valuable by the alterations.
Ashby vs. White
The plaintiff was a qualified voter at a Parliamentary election. The defendant, a

returning officer wrongfully refused to take plaintiff’s vote. The Plaintiff suffered no
damage as the candidate for whom he wanted to vote won the election in spite of that.
Still the defendant was held liable.
Mens Rea in Civil Law
Generally speaking, mens rea is not relevant for fixing civil liability. Mens rea is totally
irrelevant for the liability for breach of contract. In Law of Torts, mens rea may have some
role to play. Negligence is often necessary to establish tortuous liability. Motive may not be
relevant in fixing tortuous liability, but may be relevant in assessing the quantum of
damages.
Negligence in Civil Law
Negligence per se is not a wrong, but is only what may be called ‘unreasonable conduct’,
which a reasonable man tries to avoid because it involves undue risk of injury to another.
Mere negligence which does not cause harm to others is not actionable in law of torts,
though such a conduct may be an offence. A person is liable to another only when his
negligent conduct causes some injury to that another.
In D & F Estates Limited vs. Church Commissioners, it is observed, “‘Actionable negligence’

is the neglect of use of ordinary care and skill, by which neglect the plaintiff has suffered
injury to his person or property.”
Negligence is breach of duty caused by the omission to do something which a reasonable

prudent man would do, or refrain from doing some act which a reasonable prudent man
would not do.
Neglect, Negligence and Inadvertence
Neglect is wilful. The person foresees the consequences and also intends them. In that
sense, neglect is very similar to intention.
Where the person fails to observe the duty of care imposed on him by law, he is said to be
guilty of negligence. Such negligence is called ‘culpable’ negligence.
According Salmond, negligence arises where the person though foresees the consequences
does not intend them. This is in fact rashness. Salmond says that such negligence is
culpable because once a person foresees consequences of his act, he should take care to
avoid them.
Where a person does not violate the duty of care, but still fails to take care of lesser
degree, the act is affected by inadvertence. The person neither foresees the consequences
nor does he intend them, though he is expected to have foreseen and avoided them.
Inadvertence is not a wrong in law as he has not committed breach of any duty imposed
by law.
Subjective and Objective Theories of Negligence
In the modern Law of Torts, the word ‘negligence’ has two meanings which arise out of two
separate theories of negligence, viz.,
1. subjective theory; and
2. objective theory.
1. Subjective Theory
This theory is propounded by Sir John Salmond. According to this theory, negligence is
the state of mind of the person doing an act. Salmond says that negligence is a mental
attitude of undue indifference with respect to one’s conduct and its consequences.
206 13. Liability
Therefore, if the person committing the act is mindful of the consequences of his act and
takes care to the best of his ability, he is not guilty of negligence.
As the ability to take care differs from person to person, the degree of care depends upon
the person. Hence this theory is called the ‘subjective’ theory.
2. Objective Theory
This theory is propounded by Sir Frederick Pollock. Here, negligence is a type of conduct
which the law deems wrongful. It is not the state of mind of a person but the type of
conduct of the person which will decide whether the act is negligent act or not.
Under this theory, it is the law which decides the degree of care that a person ought to
take while doing an act. If the degree of care taken by the person falls short of this
standard, the person is guilty of negligence. It is immaterial that he took care to the best
of his ability. Therefore this theory is called the ‘objective’ theory.
Duty of Care
The extent of care that a person is required to take while doing an act depends upon the
nature of the act. In normal cases the duty of care is viewed from the standard of a
reasonable person. But in special circumstances, law may impose a higher duty of care.
There are two aspects of duty of care:
1. standard of care
2. degree of care
Standard of Care
The standard by which to determine whether a person has been guilty of negligence is the
conduct of the prudent or careful or diligent man.
In such cases whether the person was negligent is decided by the general practice of
prudent or careful or diligent men of the same occupation, when such a practice exists.
When no such practice exists, the question is decided upon the reasonably supposable
conduct of the prudent man acting under the circumstances. The test of the prudent
man’s conduct holds good in the following three cases:
1. The person was at the material time engaged in his own business or avocation. For
example a taxi driver while driving a taxi is engaged in his own avocation.
2. The person was at the material time engaged in some other work in which he has
acquired skill. For example, a taxi driver who is also trained in truck driving, is driving
a truck. Though it is not his usual work, he has the necessary skills to drive a truck.
3. The person was at the material time engaged in doing something which all men can do
alike, i.e., which does not require any special training or skill. For example, when the
taxi driver is washing his taxi, he is doing something anyone can do without special
training.
Within these limits the test requires that the defendant should be judged by the conduct
of the prudent man.
Beyond cases of this class the test fails. If the person exceeds his ability, there is a prima
facie case of negligence against him. This is because, a prudent man will not do
something to do which he has no ability, and expose others to danger.
Thus, for example, when a taxi driver drives a taxi, he is performing his normal work, and
he has to take care which a prudent tax driver would take while driving a taxi. But,
without being trained in truck driving, if the taxi driver drives a truck, he has exceeded
his normal ability of driving, hence standard of prudent truck driver will not hold good.
He, not being versed with truck driving, has to to take special care, i.e., more than
reasonable care.
Degree of Care
The amount of caution required of a citizen in his conduct is proportioned to the amount
of apparent danger.
In estimating the probability of a danger to others, we are entitled to assume, in the

absence of anything to show the contrary, that they have the full use of common faculties,
and are capable of exercising ordinary caution.
The normal measure of the caution required from a lawful man must be fixed with regard
to other men’s normal powers of taking care of themselves. Abnormal infirmity can make
a difference only when it is shown that in the particular case it was known or apparent.
Greater care is required of us when it does appear that we are dealing with persons of less
than ordinary faculty.
208 13. Liability
Thus for example, when a person driving a car sees a normal person crossing the road, he
has to take normal care, as the pedestrian crossing the road is capable of saving himself if
the driver is unable to control the car to avoid accident, unless the car is too fast and the
driver is too rash and negligence.
But if the pedestrian is blind or under the influence of intoxicating substance, the driver
has to be more careful than usual, as the pedestrian cannot save himself in the same way
as a normal pedestrian. However, this duty to take higher degree of care arises only if the
driver can know that the pedestrian is blind or drunken.
Similarly, if a person is handling normal goods has to take normal care as any
mishandling will result into normal damage. If the same person is handling some
explosive material, he has to take extra care as the damage that may happen in case of
mishandling is more than normal.
In brief, standard of care expected from one is that of a prudent man and the degree of
care expected is proportionate to danger.
Three Kinds of Negligence
1. Gross Negligence – Lata Culpa
It is the omission of that care which even inattentive and thoughtless men never fail to
take of their own property. It is a failure to take any care at all, i.e., the defendant has not
taken any care at all.
2. Ordinary Negligence – Levis Culpa
It is the want of that diligence which the generality of mankind use in their own concern,
that is, of ordinary care. It is a failure to take reasonable care. The defendant has taken
less than reasonable care.
3. Slight Negligence – Levissima Culpa
It is the omission of that care which very vigilant and attentive persons take of their own
goods, or, in other words, of very exact diligence. It is the failure to take special care, i.e.,
more than reasonable care. Defendant might have taken reasonable care.
Strict Liability 209
STRICT LIABILITY
STRICT LIABILITY IN CIVIL LAW

Word ‘tort’ is coined from the Latin term ‘tortus’ which means ‘wrong’ in the sense of
‘fault’. Thus, notion of wrongdoing, blameworthiness or fault is embedded in the term
‘tort’. Hence, Salmond propounded the ‘fault theory’, which requires that there should be
some fault on the part of the defendant to hold him liable for committing a tort.
According to this principle one liable under law of torts one must prove violation of legal
duty due to:
1. fault,
2. negligence or
3. wrongful intent
of the person.
If there is no fault, or negligence or wrongful intent on the part of the defendant, then he
will escape liability.
Therefore, a general misconception is that fault liability is defeasible by excuse, i.e., that
fault liability is liability only for one’s culpable (blameworthy) conduct.
A closer examination will show that this is not always so. Often, though a person may not
be morally wrong, he may still be legally wrong. Under the fault liability theory, a person
is liable for the injuries caused by him by a conduct not in conformity with the conduct
expected of a reasonable person. That a person is not a reasonable person of ordinary
prudence does not discharge his liability.
For example, if an educated person injures another person by shooting him, that he did
know anything about guns is no justification.
Thus, fault liability is also not defeasible by excuse. Then how are they different from each
other? The main difference between the two is that in case of the fault liability the
defendant may escape the liability by acting in a reasonable manner or in a manner which
may be justified, whereas in case of strict liability his conduct does not count at all.
Thus, fault liability can be undermined by justification, strict liability cannot be (subject
to a very few exceptions).
210 13. Liability
The other way of putting the difference is in terms of duties. In some cases, the duty on a
person is not to injure others by his fault. For example, a driver has a duty not to injure
by faulty driving. He is liable only when he injures someone by faulty driving.
In some other cases the duty on the person is not to injure others. For example, in case of
blasting, the blaster has a duty not to injure by blasting. However careful the blaster may
be, he is liable the moment he injures someone by blasting.
Case Law: Rylands vs. Fletcher
Justice Blackburn’s judgement in Rylands vs. Fletcher is acknowledged to be the first

case in which strict liability was applied.
In 1860, John Rylands contemplated a new reservoir to be constructed for supplying

water to the Ainsworth mill. He appointed a competent contractor to execute the plan.
Thomas Fletcher had a mine in the neighbourhood. There were some old disused shafts
which lead from defendant’s land to the plaintiff’s mines. Though the contractor was
aware of this, he did not take care in filling them. As a result when the reservoir was
filled, these shafts succumbed to the pressure and water entered the plaintiff’s mines
and damaged them It was accepted that the defendant was not negligent, though the
contractor was. But still the defendant was held liable.
Principle: The person who brings on to his land and collects and keeps there
something likely to do mischief if it escapes must keep it in at his peril and if he does
not do so, he is liable for all the damage which is the natural consequence of its escape.
Condition: Use of land must be non-natural.
Essentials of Strict Liability
An analysis of Rylands vs. Fletcher shows that the following are the three requirements for
application of rule:
1. Something dangerous must be brought, collected and kept on the land.
2. It must be non-natural use of land.
3. The thing must escape.

Strict Liability 211
Exceptions to Strict Liability
In the following circumstances, the rule of strict liability is not applicable.
1. Act of God (Vis Majeur)
2. Act of Third Party
3. Plaintiff's Consent
4. Common Benefit of Plaintiff and Defendant
5. Plaintiff's Own Default
6. Statutory Authority
STRICT LIABILITY IN CRIMINAL LAW
Mens rea being one of the necessary elements in criminal law, strict liability can only be
an exception to the principles of criminal liability. Whenever the strict doctrine of mens
rea would hamper the administration of justice doctrine of strict liability is applied in the
criminal law.
In statutory offences, which are now, almost the only type of offences in India, the
elements of each offence are provided in the definition of the offence itself. The type of
mental element required to constitute the offence is mentioned in the definition itself.
Thus, acting dishonestly, fraudulently, maliciously, knowingly, etc. denote the mens rea to
be involved in the offene.
But sometimes, legislature may silent about the mental element required to constitute the
offence. In such cases the question is whether mens rea in its traditional sense is required
or is mens rea is excluded and strict liability is established. It is a matter of interpretation.
VICARIOUS LIABILITY
Generally speaking, one cannot be held responsible for the commission of torts by other.
However, a person may be held liable in respect of wrongful acts or omissions of another
in some cases. This liability of one person for the acts or omissions of another person is
called vicarious liability.
212 13. Liability
VICARIOUS LIABILITY IN CIVIL LAW – MASTER-SERVANT RELATION
In Law of Torts, master is held liable for the torts committed by his servant in some
circumstances.
To make the master liable for the torts committed by the servant, following conditions
should be satisfied:
1. Tort is committed by the servant.
2. The servant must have committed the tort while acting in the course of employment of
his master.
Who is a Servant?
To establish relationship of master and servant, two tests should be passed.
1. Authorisation
2. Control
In case of master and servant, the master authorises the servant to do an act for the
master. While the servant is doing that act the master has control over the servant, and
he can instruct the servant how that act is to be done.
Servant and Independent Contractor
A servant and independent contractor are both employed to do some work of the employer
but there is a difference in the legal relationship which the employer has with them.
A servant is engaged under a contract of service whereas an independent contractor is

engaged under a contract for services.
In relationship of principal and independent contractor passes only the first test.
Basis of the Liability of Master
The following points in support of the doctrine of vicarious liability.
1. Qui Facit Per Alium Facit Per Se
2. Respondeat Superior
Vicarious Liability 213
3. Superior Financial Capacity of the Master
4. Instrumentality Principle
5. Benefits and Burdens of the Enterprise
6. Negligence of the Master in Selecting the Proper Servant
1. Qui Facit Per Alium Facit Per Se
He who acts through another acts by himself, and is liable for the faults of that other.
2. Respondeat Superior
The superior (master) who is in position to control the inferior (servant) must properly
control him. If any fault is committed by the inferior, it is sue to the failure on the part of
the superior to properly control the inferior for which he has to be responsible.
3. Superior Financial Capacity of the Master
The servant who is the actual wrong-doer is financially incapable of paying the
compensation. Hence, the master, while doing whose work the servant committed the
wrong, must pay the compensation.
4. Instrumentality Principle
In this case the competing parties are master and the victim. Both are innocent. In such a
case often law chooses the one who is less innocent, to suffer. Here, the victim is
completely innocent as the tort was not committed due to any act on his part. Whereas,
the master cannot be said to be completely innocent. He is instrumental in happening of
the wrong. Hence, he being less innocent must bear the responsibility, and the loss.
5. Benefits and Burdens of the Enterprise
The one who is benefited by the act must also bear the burden arising from the act. One
cannot take benefit and reject burden.
6. Negligence of the Master in Selecting the Proper Servant
The master did not entrust the work to a servant who is efficient and capable of executing
it. Hence the act which resulted into the injury to the victim took place. Therefore, the
responsibility of this is to be borne by the master.
214 13. Liability
VICARIOUS LIABILITY UNDER CRIMINAL LAW
The justifications applicable to vicarious liability under civil law are not appropriate to
criminal law. A person cannot be held liable for the crimes committed by another person.
Where a person causes another person to commit a crime, he may be guilty of abetment of
that crime. Under sec. 107 of IPC abetment may take place in three ways.
1. by instigation
2. by conspiracy
3. by intentional aid
But abetment is not a case of vicarious liability. The abettor is liable for abetment of crime
The abettor has himself committed the abetment. The abettor is liable for the act under
IPC irrespective of whether or not the person abetted commits that act.
Under the Indian Penal Code, 1860, where an offence is committed by several persons
with a common intention or common object of all, all will be liable for any act done by any
one or more of them in furtherance of such common intention or common object. This is
the real case of vicarious liability under the Indian Penal Code, 1860.
The following may be cases where vicarious criminal liability is created by law:
1. A statute may create strict liability in the master and make him liable for the offence
committed by his servant.
For example, Drugs Act imposes liability on a shopkeeper even in cases where spurious
drugs are sold in the shop by his servant without his knowledge.
2. In cases of licences, the conditions of licence are to be fulfilled by the licensee. If he

employs a servant for doing the licensed act and that servant violates the conditions,
the licensee cannot escape the liability.
3. In case of nuisances and some minor offences, vicarious criminal liability may be
recognised.
4. Where a person entrusts an act which requires some special skill and efficiency, to a
servant who does not have the necessary skill or efficiency, the master will be liable to
any offence arising out of the execution of that work by such servant.
Causation 215
CAUSATION
One may be held liable for the consequences of his acts. Thus, to hold a person liable for
his acts, there must be a ‘causal’ relationship between his acts and the injury to the
victim.
‘Causal’ relationship is nothing but the relationship between a cause and its effect. A
causal relationship may be ‘immediate’ or ‘remote’.
Where A is the cause and B is its effect, it is said that A is the cause and B is its
immediate effect, or that A is the immediate cause of B. ‘Immediate’ means ‘nothing in
between’.
A→B A→B + B→C = A→B→C
Where A is the cause and B is its effect, and B is the cause and C is its effect, it is said
that A is the cause and B is its immediate effect, and B is the cause and C is its
immediate effect. Therefore, A is the cause and C is its remote effect.
A person may be liable in law for
1. the dangerous tendencies of his acts; or
2. the injurious consequences of his acts.
In the first case liability does not depend upon causal relationship between a person’s act
and its consequences. In the second case, causal relationship plays an important role in
fixing the liability of a person for his acts.
Illustration
A shoots at B. Before A’s bullet reaches B, B dies of heart attack unconnected to the
threat of being killed. It cannot be said that A’s act is the cause of B’s death.
If A’s liability depends upon the dangerous tendency of his act, he is liable for his act.
If A’s liability depends upon the consequences of his act, he is not liable.
In Law of Torts liability is based on the proximity of damages. This principle is based on
the maxim “In jure non remota causa sed proxima spectator” (In law not remote but
proximate cause is seen). Proximity of damages may depend upon the directness of
damages (In Re Polemis Case) or foreseeability of damages (The Wagon Mound (No. 1) Case)
216 13. Liability
The concept of causation in law is not necessarily same as the common sense concept of
causation. In some cases both may be the same. But in many cases they may not be the
same. Salmond mentions three circumstances in which the legal concept of causation
may differ from its common sense concept.
1. The legal concept of causation may have philosophical principles underlying it.
2. Often legal concepts deviate from their common sense counterparts because of the
needs of the lawyers.
Illustration
A’s travel agent B loads A’s luggage in a wrong train by negligence. The train derails
and the goods are destroyed. What is the cause of loss of A’s goods? B’s negligence
or derailment of the train?
3. An investigation into causation in law may involve both exploratory and attributive
parts.
Illustration
A throws a stone at his college laboratory. An explosion takes place and the entire
building is destroyed.
Exploratory inquiry will investigate into the cause of the explosion. It is revealed
that the laboratory was full of inflammatory gases. The stone hit a marble slab and
a spark caused the explosion.
The attributive inquiry follows the exploratory inquiry. The question is can the
destruction of the building be attributed to the throwing of stone by A?
Courts of law are normally engaged in both types of inquiries. As a part of the exploratory
inquiry, they receive evidence and appreciate the evidence so received. After appreciating
the evidence they give findings of facts.
In the light of those findings of facts the Court has to decide the liability of the defendant
or accused, as the case may be. In other words, the Court has to decide whether the
injury to the victim should be attributed to the act or omission on the part of the
defendant or accused, as the case may be.
Sometimes there may be other attendant circumstances along with the act of the person
accused of the consequences. In such cases the Court has to decide whether they can be
the cause of injury to the victim and not the act of the person, or whether they only
contributed to the act of the person.
Causation 217
Breaking the Chain – Novus Actus Interveniens
There may be several links which may form a chain of events. But this chain must be
continuous.
A→B→C→D→E →F
If any new fact intervenes, this chain may be broken and the person who is the cause of
the first act may not be liable for the effect.
(A→B→C)G(D→E →F)
Illustration
A stabs B. B is hospitalised for stab wounds. A nurse injects heavy dose of terramycin
to which B is allergic. B dies due to the injection. The injection acts as novus actus and
cuts the chain of causation between the stabbing by A and death of B.
There are two theories regarding the proximity, i.e., non-remoteness of damages.
1. Directness of Damages (In Re Polemis Case)
2. Foreseeability of Damages (The Wagon Mound (No. 1) Case)
If the plaintiff has some abnormality and the act of the defendant causes abnormal injury
to the plaintiff because of the plaintiff’s abnormality, the defendant is still liable for such
abnormal injury. He cannot take the defence of novus actus. Defendant has to take the
plaintiff as he finds him.
But in some cases such as rescue cases the defendant may allege that the novus actus
was the result of the plaintiff’s own fault.
14. SUBSTANTIVE LAW AND PROCEDURAL LAW
ABOUT THE CLASSIFICATION
Laws are classified as substantive laws and procedural laws. Procedural laws are also
called ‘adjective laws’. Substantive laws are those laws which provide for the rights, duties
and liabilities of the persons governed by the concerned law. For example, Indian Penal
Code prohibits certain acts which it declares to be offences and imposes a duty on people
not to commit those acts. A person who violates the said law will be liable to the
punishment prescribed under the Indian Penal Code. Law of Torts declares that certain
acts are torts and prohibits people from committing the same. A person who commits the
prohibited act is liable to pay compensation to the person who has suffered loss due to the
tort committed by the wrongdoer. Similarly, Contract Act prescribes right, duties and
liabilities of the contracting parties.
Substantive law which lays down the liabilities of the persons violating the law does not
mention how to enforce the liability so incurred. This is the realm of the procedural laws.
In case of the Indian Penal Code and other criminal laws the Criminal Procedure Code,
1973 prescribes the procedure for enforcing the criminal liability, while in case of Law of
Torts, Law of Contracts and other civil laws, the Civil Procedure Code, 1908 provides for
the procedure for enforcing the liability.
It should be noted that very few laws can be classified as purely substantive and purely
procedural. Most of the laws contain both types of provisions – provisions which lay down
the rights, duties and liabilities of the parties and also the procedure for enforcing the
liabilities. Even in Civil Procedure Code, 1908 there are provisions which deal with
substantive aspects. For example right to appeal against the judgement of a lower court is
a substantive provision.
Procedural laws prescribe the broad procedure for enforcing the liabilities. They do not
deal with their implementation as such, i.e., the steps to be taken to follow this procedure.
This aspect of the procedure is done by the Rules of Practice framed by the High Courts
for the subordinate courts.
Karnataka Civil Rules of Practice, 1967 and Karnataka Criminal Rules of Practice framed
by the Karnataka High Court take care of the rules of practice in civil and criminal cases
respectively.
About the Classification 219
Further, Civil Procedure Code by itself does not provide for all the procedural aspects of a
civil case. Many other statutes, which are also procedural in nature, such as the Indian
Evidence Act, 1871, the Karnataka Civil Courts Act, 1964, the Limitation Act, 1963, the
Karnataka Court Fees and Suits Valuation Act, 1958 are few examples of the statutes
which have to be read with Civil Procedure Code to know the complete procedure to be
followed in a civil case.
LAWS
Substantive Laws Procedural Laws
Law of Rules of
Procedure Practice
Substantive laws and procedural laws are interdependent. Without substantive laws there
cannot be procedural laws. If there are no rights and liabilities to be enforced, there is no
need for the procedure. On the other hand, if there are no procedural laws, substantive
laws become useless. If the rights and liabilities cannot be enforced, their existence
becomes meaningless. The well known legal maxim ubi jus ibi remedium stresses upon the
importance of procedural laws.
Further, the efficacy of the substantive laws greatly depends upon the quality of
procedural laws. If the procedure is simple, expeditious and inexpensive, the
implementation of substantive laws becomes effective and successful. Otherwise, however
good and strong the substantive laws may be, they remain ineffective.
SUBSTANTIVE LAWS VS. PROCEDURAL LAWS
As observed by Lord Halsbury, “there is at the outset a vital and essential distinction
between substantive and procedural law. The function of substantive law is to define,
create or confer substantive legal rights or legal status or to impose and define the nature
and extent of legal duties. The function of procedural law is to provide the machinery or
220 14. Substantive Law and Procedural Law
the manner in which the legal rights or the status and legal duties may be enforced or
recognised by a court of law or other recognised or properly constituted tribunal.”
Substantive law enables the parties to approach the court for redressal of their
grievances, while procedural law enables the court to redress the grievances of the parties
in a just and fair manner. Procedural law guarantees impartiality, fairness and justice in
a case. It makes the proceedings of the court definite and hence predictable.
Decision of a court on the basis of substantive law involves the decision of rights and
liabilities of the parties. Thus if the court finds that the defendant is not liable, and hence
dismisses the case, the court has given its decision on the basis of the substantive law.
Such a decision is called a decision on the merits of the case. Decision of a court on the
basis of the procedural law involves the decision regarding the way the case was
conducted. If the suit is dismissed by the court on the ground that it was barred by
limitation, the court’s decision is based on procedural law. The court does not decide that
the plaintiff is not entitled to the relief sought by him or that the defendant is not liable in
that case. Such a decision is called a decision on technicalities.
A decision on merits of the case bars a future case between the same parties on the same
facts and grounds, a decision on technicalities does not.
Briefly, the following are the differences between substantive laws and procedural laws:
1. Substantive law determines the conduct and relations of the parties inter se in respect
of the matter litigated whereas the procedural law regulates the conduct and relations
of courts and litigants in respect of the litigation.
2. Substantive law deals with the ends which the administration of justice contemplates
while the procedural law deals with the means and instruments by which the ends of
administration of justice are to be attained.
3. The question as to what facts constitute a wrong is determined by the substantive law,
while what facts constitute proof of a wrong is a question of procedure.
4. Substantive law defines the rights whereas the law of procedure defines the modes and
conditions of the enforcement of the rights.
5. Substantive law relates to the matter outside the courts. Whereas the procedural law
regulates affairs inside the courts.
Law of Evidence 221
LAW OF EVIDENCE
A legal dispute arises between the parties to a litigation when one of the parties asserts
some right and the other party denies it. The aggrieved party, i.e., the party whose rights
are denied approaches a Court having jurisdiction by presenting his pleadings.
In the pleadings presented by him, the party instituting the case pleads facts and claims
relief based on certain grounds.
Example
In case of a civil suit, the party instituting the case is called the ‘plaintiff’. The
pleadings presented by him is called the ‘plaint’. In the plaint, the plaintiff avers the
facts of the case from his point of view. On the basis of these facts, the plaintiff makes
out some grounds. On the basis of these facts and grounds the plaintiff claims some
reliefs against the defendant.
The facts, grounds and reliefs claimed by the plaintiff are together called the ‘plaintiff’s
case’. Often only the facts asserteed by the plaintiff are called the ‘plaintiff’s case’.
The Court issues summons to the opposite party. Along with the summons a copy of the
pleadings presented by the party instituting the case is supplied to the opposite party.
The opposite party appears before the Court and presents its pleadings in reply to the
pleadings submitted by the party instituting the case.
In the pleadings submitted by the opposite party, he pleads his version of facts, and seeks
dismissal of the case against him.
Example
In case of a civil suit, the opposite party is called the ‘defendant’. The pleadings
presented by him is called the ‘written statement’. In the written statement, the
defendant avers the facts of the case from his point of view. On the basis of these facts,
the defendant prays for the dismissal of the suit instituted by the plaintiff against him.
The facts asserted by the defendant are called the ‘defendant’s case’.
The Court compares the two pleadings, one submitted by the party instituting the case
and the other submitted by the opposite party. By doing so, the Court separates two sets
of facts from the all the facts mentioned by both the parties.
1. Facts pleaded by the party instituting the case and admitted by the opposite party.
These set of facts are called ‘admitted facts’.
2. Facts pleaded by the party instituting the case and denied by the opposite party. These
facts are called the ‘disputed facts’.
Admitted Facts
Plaintiff’s Case
Facts asserted by Plaintiff and
Facts according to Plaintiff
accepted by Defendant
Disputed Facts
Defendant’s Case
Facts asserted by Plaintiff and
Facts according to Defendant
denied by Defendant
Example
A institutes a suit against B. In his plaint, A avers
1. that A and B are friends,
2. that B’s daughter secured admission to a Medical College in 2018,
3. that B needed Rs. 2 lakhs towards the payment of fees,
4. that B approached A for a loan of Rs. 2 lakhs,
5. that A advanced a loan of Rs. 2 lakhs to B on 23.4.2018.
B presents his written statement. In his written statement B admits that A and B are
friends. He also admits that his daughter secured admission to a Medical College in
2018. Though he admits that he needed Rs. 2 lakhs for fees, he contends that he had
saved sufficient money for his daughter’s medical education, and as such he did not
have necessity of borrowing money from anybody. Therefore, he denies that he
approached A for any loan. Therefore, he further denies that A advanced any loan to
him at any time.
Thus B admits the first three facts averred by A in his plaint, but denies the last two
facts facts averred in the plaint. Therefore, the first three facts mentioned in the plaint
are admitted facts and the last two facts mentioned in the plaint are disputed.
In respect of admitted facts there is only one version. Therefore, sec. 58 of the Indian
Evidence Act, 1872 provides that admitted facts need not be proved. But in respect of
disputed facts there being two versions of each fact, the Court has to find out which
version is true. Therefore, the Court has to call upon the parties to prove these facts.
Law of Evidence 223
FACTS, PROOF OF FACTS AND EVIDENCE
These are the three connected concepts which should be clearly understood to
understand the Law of Evidence33.
Facts
Fact is something which may be perceived. Sec. 3 of the Indian Evidence Act, 1872 defines
‘fact’ as under:
“Fact” means and includes–
(1) any thing, state of things, or relation of things, capable of being perceived by the
senses;
(2) any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a
fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or
fraudulently, or uses a particular word in a particular sense, or is or was at a
specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
Thus, the definition of “fact” includes two parts. The first part deals with what may be
called the “physical facts”, while the second part deals with what may be called
“psychological facts”.
Physical Facts
“Physical facts” means and includes any thing, state of things, or relation of things,
capable of being perceived by the senses. Thus the definition of “physical facts” consists of
three elements, all of which are capable of being perceived by the senses:
33 See also Law and Fact supra.

1. things
2. states of things
3. relation of things.
Illustrations (b) and (c) give the example of “things”. Something which is heard by
someone, i.e., a sound is a “thing”. Something which is seen by someone, i.e., an object, is
a “thing”. So also taste, feeling and smell are “objects”.
Illustration (a) illustrates the first and the third elements. That certain objects exist is a
fact. That they are arranged in a certain order is also a fact, which is in respect of the
relative position of objects. That they are in a particular place also speaks of relationship
between the objects and the place where they are situated.
“State of thing” refers to the condition of things. For example, whether an object was
stationary or in motion is a fact. Whether a person was sitting, standing, walking etc. are
facts regarding state of things.
Psychological Facts
Psychological facts speak about the existence of the state of mind of a person. State of
mind of a person includes “sensation” or “bodily feeling” and “opinion”.
However, there is a significant difference between physical facts and psychological facts.
While physical facts are capable of being perceived either through the human senses
directly or through some instruments indirectly. Psychological facts are not capable of
being perceived directly through the human senses.
Therefore, under the Evidence Act, unlike in the case of the physical facts, in the case of
the psychological facts there is no condition that they should be “capable of being
perceived by the senses”. However, what cannot be perceived cannot be proved or
disproved. Put together, this means that though psychological facts need not be
perceivable by themselves, one may be “conscious of them”.
Illustration (d) gives examples of different psychological facts.
The first one is “opinion held by a person”. This should be distinguished from the “opinion
expressed by a person.” Opinion expressed by a person orally is “capable of being heard”
and opinion expressed by a person in writing is “capable of being seen”, and thus amount
to physical facts.
Law of Evidence 225
“Opinion held by a person” is fact only when one may be “conscious of it”. The person who
holds the opinion is naturally conscious of it. But others may be conscious of the opinion
held by a person from his expressions or conduct or both. The same holds good in respect
of other states of mind such as intention, good faith, bad faith, etc.
That a person was “conscious of a particular sensation” may be inferred from his
spontaneous overt reaction or from his expressions.
Reputation of a person is the opinion about his character in the mind of others. One can
become conscious of it from the statements made by those persons, their behaviour with
the person in question, etc.
Proof
Normally “proof” and “evidence” are mistaken to be synonymous. “Proof” of a fact is

showing the existence of the fact. Thus, a fact may be “proved”, “disproved” or “not
proved”.
According to sec. 3 of the Evidence Act,
“Proved”
A fact is said to be proved when, after considering the matters before it, the Court
either believes it to exist, or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the supposition that
it exists.
“Disproved”
A fact is said to be disproved when, after considering the matters before it, the Court
either believes that it does not exist, or considers its non-existence so probable that a
prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it does not exist.
“Not Proved”
A fact is said not to be proved when it is neither proved nor disproved. Thus, where
neither party can produce evidence in its favour, the fact is said to be not proved.
In normal parlance, expression “proof” included “dis-proof” also. Thus “burden of proof” is
burden not only of proving but also disproving depending upon circumstances.
In simple words, a fact is said to be “proved” when the Court is convinced about its
existence. A fact is said to be “disproved” when the Court is convinced about its non-
existence. A fact is said to be “not proved” when the Court is neither convinced about its
existence nor about its non-existence.
Evidence
“Evidence” is something which is used to prove or disprove a fact. Evidence, is itself a fact.
The fact to be proved is called “facta probanda” and the evidence is called the “facta
probantia”.
Rules of natural justice, and hence rules of procedure require that facta probanda must
be disclosed to the opposite party in advance. Facta probantia need not be disclosed to the
opposite party in advance. Under the Civil Procedure Code, 1908, it is required that facts
must be pleaded and proved. A fact which is not pleaded cannot be proved.
Evidence is classified in different ways. Most significantly evidence is classified as:
1. oral evidence, and
2. documentary evidence.
In some legal system, there is also a third type of evidence, namely, the real evidence. Real
evidence does not find place in the Indian Evidence Act, but the same may be covered by
the expression ‘the matters before it’ in the definitions of ‘proved’ and ‘disproved’ in sec. 3
of the Act.
Sec. 3 of the Act defines “evidence” as under:
“Evidence”
“Evidence” means and includes–
(1) all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry; such statements are called
oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called
documentary evidence.
Law of Evidence 227
Oral Evidence
Sec. 3 of the Evidence Act provides that “oral evidence” includes all statements which the
Court permits or requires to be made before it by witnesses, in relation to matters of fact
under inquiry.
Oral evidence is further classified as
1. ‘direct’ evidence, and
2. ‘hearsay’ evidence.
Direct Evidence
Direct evidence is the evidence given by a witness who has himself perceived the fact.
Thus a person who has seen a fact gives the evidence of that fact, the evidence is called
direct evidence.
Example
A has seen B committing the murder of C. A gives the evidence of the fact (murder of C
by B). The evidence given by A is direct evidence.
Hearsay Evidence
Hearsay evidence is the evidence given by a witness who has not perceived the fact
himself. He has heard about the fact from some other person, and giving the evidence of
the fact before the Court.
Example
A has seen B committing the murder of C. A tells about that murder to D. D gives the
evidence of the fact (murder of C by B). The evidence given by D is hearsay evidence.
Documentary Evidence
Sec. 3 defines documentary evidence as all documents produced for the inspection of the
Court.
It should be noted that there is a difference between the proof of a document and the
proof of the contents of a document.
Proof of a Document
Proof of a document means showing that the document is genuine. A document is said to
be genuine when the signature on the document is put by the person whose signature it
purports to be. Simply put, a genuine document is one which is not a forged document.
Example
A document shows that the signature on the document is put by A. If the document is
really signed by A, the document is a genuine document. If it is signed by some other
person, it is a forged document. It is not a genuine document.
If it is proved that the signature on the document is put by A, the document is said to
be proved.
Proof of Contents of a Document
Proof of the contents of a document means showing that the contents of a document are
true, i.e., what is written in the document is true.
The contents of a document may be proved by producing the document before the Court.
Documentary evidence is also classified as
1. primary evidence, and
2. secondary evidence.
Primary Evidence
The original document is the primary evidence of its contents.
Secondary Evidence
Copy of a document is called the secondary evidence of its contents.
Where copies are made from the same original, at the same time, using some mechanical
process, each copy is the primary evidence of the contents of all other copies, but each
copy is a secondary evidence of the original.
Law of Evidence 229
TWO ASPECTS OF EVIDENCE
There are two aspects of evidence.
1. Admission of evidence; and
2. Appreciation of evidence.
Admission of evidence deals with the receiving of evidence in a case. This is an aspect of
law and is governed by the law of evidence. In India, the general law of evidence is
contained in the Indian Evidence Act, 1872. The rules enunciated in the Indian Evidence
Act, 1872 provide for admission of Evidence.
After admitting evidence the Court has to analyse it and give findings of facts. In other
words, the Court has to state what facts are proved and what facts are disproved. The
Court has also to state what facts are not proved. This process is called appreciation of
evidence.
QUESTION BANK
UNIT 1 – INTRODUCTION
1. Define Jurisprudence. Explain the nature, scope and significance of Jurisprudence.
Explain the meaning and scope of jurisprudence.
Explain the nature and value of jurisprudence.
2. Explain the various schools of jurisprudence.
3. Discuss the ‘Natural Law’ Theory.
Explain law as a dictate of reason.
“Reason alone should make law.” Explain the statement in the light of natural law.
‘In reality law consists of rules in accordance with reason and nature’. Elaborate.
4. Discuss the natural law theory. State the criticisms against natural law theory.
5. Examine the “Austinian Concept of Law”.
Critically examine “Law as a command of the sovereign”.
6. Discuss Hart’s analysis of the concept of law.
Discuss Hart’s theory of law.
Narrate law as a system of rules.
7. Explain the theory of legal realism.
8. Discuss legal realism. How is it different from Austin’s theory of law?
9. Analyse the theory of historical school and point out the major criticisms.
10. Explain the contributions of Roscoe Pound to sociological school.
Short Notes
1. Meaning of Jurisprudence 7. Gunman Law
2. Value of Jurisprudence 8. Characteristics of Legal Rules
3. Natural Law 9. Social Engineering
Concept of Natural Law 10. Historical School of Jurisprudence
4. Commands of the Sovereign 10. Characteristics of Historical School of

Jurisprudence
5. Sanction as One of the Essentials of Law
12. Volkgeist
6. Legal Realism
UNIT 2 – LAW AND ADMINISTRATION OF JUSTICE
1. Define Law. Explain the functions and purposes of law.
2. Define the term ‘Law’. Explain the nature, characteristics and purposes of Law.
3. Discuss the nature of Law and difficulties in the definition of Law.
4. What is justice? Enumerate kinds of justice.
Explain the components of justice.
5. Write a note on primary and secondary functions of courts of law.
6. Analyse the question of law and question of fact.
7. What is meant by administration of justice? What is its necessity? Explain.
8. Discuss civil and criminal justice.
Explain the administration of civil and criminal justice.
9. What do you understand by civil and criminal justice? Distinguish between the two.
10. Narrate the purpose of civil and criminal administration of justice.
11. Discuss the purpose of criminal justice in the light of the various theories of punishment.
12. Explain the various theories of punishment.
13. Discuss the theories of punishment with their relative merits and demerits.
Short Notes
1. Purpose of Law 8. Necessity of Administration of Justice
2. Authority of Law 9. Punishments
3. Secondary Functions of the Court 10. Meaning of Punishment
4. Justice 11. Reformative Theory
5. Kinds of Justice 12. Questions of Law
6. Law and Justice 13. Law and Fact
7. Civil Wrong 14. Void and Voidable Agreements

UNIT 3 – SOURCES OF LAW
1. Explain the different sources of law.
2. Explain legislation as source of law.
Critically examine legislation as source of law.
3. What is meant by legislation? What are its chief forms?
4. Define legislation. Explain the various kinds of subordinate legislation.
5. What is subordinate legislation? Explain the various forms of subordinate legislation.
6. What are the advantages of legislation over precedent?
7. Enumerate the advantages of legislation over other sources of law.
8. Define ‘precedent’. Explain its kinds.
9. Analyse the ‘precedent’ as a source of law.
10. Explain the circumstances destroying or weakening the binding force of precedent.
11. Explain the concept of ratio decidendi with special reference to the tests applied for
ascertaining it.
12. Explain custom as a source of law.
13. Explain the requirements of a valid custom.
14. “Custom must be in conformity with statute law” – Elucidate.
Short Notes
1. Primary Legislation 7. Ratio Decidendi
Supreme Legislation 8. Obiter Dictum
2. Subordinate Legislation 9. Prospective Overruling
3. Objectives of Delegated Legislation 10. Customs
4. Rules of Interpretation 11. Codification
5. Mischief Rule 12. Comparative Law
6. Judge Made Law

UNIT 4 – LEGAL CONCEPTS I
1. Define legal right. Explain the various kinds of legal rights.
2. Explain the concept of legal right.
3. Examine the characteristics of a legal right.
4. Discuss ‘Right’ in wider sense of the term.
Narrate Hohfeld’s analysis of right.
5. Explain the concept of possession.
6. Define possession. Explain the various kinds of possession.
7. State elements of possession.
8. What is possession? Distinguish between possession in fact and possession in law.
9. What is personality? Explain the advantages of incorporation.
10. Define and explain the concept of person.
11. Define ‘person’. Discuss the legal status of unborn and dead persons.
Discuss the status of lower animal, unborn and dead person.
12. Explain the concept of ownership.
‘Ownership is a bundle of rights’. Explain.
Define ownership. What are the essential characteristics of ownership?
13. Discuss the various kinds of ownership.
14. Explain the idea of ownership. Distinguish between trust and beneficial ownership.
“A trust is a curious instance of duplicate ownership where the powers of management

and rights of enjoyment are separated” – Explain.
Short Notes
1. Right and Duty 12. Legal Status of Unborn Person
2. Characteristics of Legal Right 13. Legal Status of a Dead Man

3. Primary and Sanctioning Rights 14. Characteristics of Ownership
4. Right in Re-propria and Right in Re-aliena 15. Subject-matter of Ownership

5. Privilege and Immunity 16. Kinds of Ownership
6. Duty 17. Vestative Facts

7. Kinds of Duties 18. Elements of Possession
8. Person 19. Acquisition of Possession

9. Uses and Purposes of Incorporation 20. Kinds of Possession
10. Double Capacity and Double Personality. 21. Possessory Rights

11. Legal Status of Minor 22. Possessory Remedies
UNIT 5 – LEGAL CONCEPTS II
1. What is meant by obligation? Explain the different kinds of obligation.
Explain the term obligation. What are the different kinds of obligation?
2. State the nature of obligation. Explain the different kinds of solidary obligation.
3. Discuss the different sources of obligation.
4. Explain the importance of chain of causation in establishing liability.
5. Explain Actus non facit reum nisi mens sit rea.
6. Explain with the help of illustrations the scope of the legal terms, intention, motive and
culpable negligence.
7. Distinguish between Intention and Motive.
8. Explain the concept of liability.
9. Define the term “Negligence”. Explain the essentials of negligence.
10. Explain the theories of negligence.
11. Define the term “Negligence”. Explain the theories of negligence.
12. Explain the theory of strict liability.
Explain the theory of ‘Strict Liability’ with case law.
13. Explain the exceptions to strict liability.
14. Explain vicarious liability.
Analyse the master and servant relationship under vicarious liability.
15. What is meant by vicarious liability? How does it differ from strict liability?
Short Notes
1. Obligations 9. Remedial Liability
2. Sources of Obligations 10. Damnum Sine Injuria
3. Solidary Obligation 11. Injuria Sine Damno
4. Mens Rea 12. Rule of Strict Liability
5. Intention 13. Vicarious liability
6. Motive 14. Negligence
7. Motive and Intention – Differences 15. act
8. Jus Necessitates

G. M. Wagh - Jurisprudence (2020)

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G. M. Wagh - Jurisprudence (2020)

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JURISPRUDENCE

1. Meaning and Nature of ‘Jurisprudence’

2. Purpose and Value of Jurisprudence

(a) Natural Law,

(b) Imperative Theory,

(c) Legal Realism,

(d) Historical School,

(e) Sociological School.

UNIT II – FUNCTIONS AND PURPOSE OF LAW

1. Functions and Purpose of Law

2. Questions of Law, Fact and Discretion

(a) Civil, and

6. Secondary Functions of the Court.

UNIT III – SOURCES OF LAW

UNIT IV – LEGAL CONCEPTS I

1. Right and Duty

(a) Kinds of Rights and Duties

(b) Meaning of Right in its Wider Sense;

(a) Idea of Ownership

(b) Kinds of Ownership,

(c) Difference between Possession and Ownership

(a) Nature of Personality

UNIT V – LEGAL CONCEPTS II

(a) Conditions for Imposing Liability

(b) Wrongful Act

(c) Damnum Sine Injuria and Injuria Sine Damno

(e) mens rea,

(i) intention, malice, negligence and recklessness

(ii) strict liability

(iii) vicarious liability

7. Substantive Law and Procedural Law.

Short Table of Contents.................................................................................(iii)

Part One – Legal Theory

2. Purpose of Legal Theory.................................................................................15

Part Two – Legal Concepts

7. Legal Rights and Duties...............................................................................123

14. Substantive Law and Procedural Law...........................................................180

SHORT TABLE OF CONTENTS................................................................................(iii)

PART ONE – LEGAL CONCEPTS

2. PURPOSE OF LEGAL THEORY.............................................................................15

Necessity of Defining Law........................................................................................15

Difficulties of Defining Law......................................................................................16

1. Natural Law School – Law as Dictate of Reason.....................................................18

6. Laws Continue to Exist Even After the Extinction of Law-giver...........................29

3. Legal Realism – Law as Practice of Courts............................................................32

4. Hart’s Theory of Law – Law as System of Rules.....................................................37

5. Historical School of Jurisprudence......................................................................45

6. Sociological School of Jurisprudence...................................................................51

Law and Fact........................................................................................................... 67

Meaning of Administration of Justice......................................................................75

Criminal Justice, Criminal Wrong, Civil Justice and Civil Wrong..............................76

Distinction Between Criminal and Civil Justice.......................................................84

Basis, Origin and Sources of Law..............................................................................86

Different Sources of Law..........................................................................................86

Meaning of ‘Sources of Law’.....................................................................................87

Codification of Law................................................................................................ 119

PART TWO – LEGAL CONCEPTS

7. LEGAL RIGHTS AND DUTIES.............................................................................123

About Rights and Duties........................................................................................123

Hohfeld’s Concept of Right (Right in Its Wider Sense)............................................135

About Personality.................................................................................................. 142

Double Capacity and Double Personality................................................................146

Legal Status of Some Special Entities....................................................................147