ChapterI

Jurisprudence
Introduction
Like many other branches of
(1) ULPHIAN-
knowledge, study of Jurisprudence
started at Romans first the word Jurisprudence is made from latin
knowledge of word "Jurisprudentia'" which nmcans knowledge of law the meaning

thing which is Jurisprudence conveys in modern times is the result of course

Science ot rignt
of evolution.
and wrong9
Ulpian the great Roman jurist defined Jurisprudence asThe
knowledge of things.devineand human The scicncc o right and wrong."
believed that there They believed the idea that there was some absolute right and law should
are some
know it.
absolute night and contomm and jurist imust
law should Another great jurist Paulus_said that "Law is not to be deduced
confom and junst
must know it.
rom the role but the rule from law.
2. POULOUS- These definition and conception of Jurisprudegce howsoever vogue.
law is not to be inadequate and primitive but they deserve special/eredit because they
deduced from rule put the idea of special scince. The continentalJurisprudence does not
but rule from law.
distinguish between law and justice English Jurisprudence distinguishes
3. Confusion inade two.
quate and primi-
tive definition. In
England thestudy ofJurisprudence.started verylate Hobbes was
Continental juris. an English Jurisprudence. Blackstone is also an English jurist. Bentham
prudence does too was an English jurist.
not differntiate b/w
law and justice.
Austins jetermined "the province ofJurisprudence".According te
5. HOBBEs him,Scjence of Jurisprudenceisconcernedwithpositivelaw with laws
Elementive Scuy so Callea, Law is nothing to do with goodness and badness of
philosophiul law He further divided the subject inio general and partieular
t help the study of Jurisprudence. general Jurisprudence includcs such subjects or ends of
history of
law as are commontoallsystem which Jurisprudence is confined only
jurisprudence to study ofl any actual system of law or portion of it.
6. Austine solmond,
Hallond Austin has defined Jurisprudence asJurisprudenee is the
7. LASK- philosophy of posivive law. Its real meanung is formal analysis of legal
Eye of law cOncepts."
Holland defined Jurisprudence as " the formal seienee of positive

aw. He criticised the division of subject into general and particular

given by Austine
8. SOLOMOND-
Scieence of civil
Most popular amon lnlian studenis i the detinition ot
Jurisprudence given by Solnond. He detmed Jurisprudence as the
law
"Science of law' By which he meus the lawoi land or cViTlaw.So he
science of
first
gave two delinitios.
aqVetwo definitions.
principle of civil
law . Jurisprudence is(scienee of civil law
generic A Jurisprucdence isscience of first principle of civil law.
specific
2/Jurisprudence&Legal Theory
analytical e makesdistinction between the use of term Jurisprudence in
ethical generic" and "specific". the former, includes entire body of legal
of
historical dogtrines where as the latter mecans onlý a particular department such
9. BENTHAM
doctrine
the word Jurisprudence: in its specific sense he has made a
Taking
Authontative division of subject into three branches i.e.
L Local
1. Analytical
Universal 2. Historicalt
constitute English Jurisprudence
3. Ethical: It constitute or may be called continental Jurisprudence
Agreat English jurist Prof Allen has defined Jurisprudence "asthe
scientific synthesis of essential principle of law."
Roscoe Pound has defined it "as science of law."
Keeton has defined it "as knowledge of general principle of law
only. According to Julius stone it is lawyers extravesion techniques ideal
and precept of law."
According toBias and Huge: "Jurisprudence is legal training and
education"
According to Claro "Jurisprudence is philosophical Aspect of
knowledge
Benthamhas divided Jurisprudencein
(i) Authoritative Jurisprudence
(i) Inauthoritativecal
in
authoritati ve Jurisprudence
Jurisprudence universal "nauthoritativë Jurisprudence
So, Jurisprudence is study relating .to law, following are sorme of

uses of.study of Jurisprudence

the study of
(i) It gives an understanding of nature of law. It helps in
actual rules of law and in tracing out principles lying therein
) it helps in making a scientific development of law
(1i) it help in understanding legal expressions and terminologies.

Chapter-2
1. LIMIT OF JURIS
PRUDENCE-
Analytical School
Defined John Austine (1790-1859): Founder of Analytical Sehoo:
Bentham He is considered as father of English Jurisprudence. The method which
2. EXPONENT he applied was essentially of Englsh origin, he avoided metaphysical
Amos-Judge method which is a German charactristics. he wrote a book under title
Mark'y-Judge "The pravine ot urisprudence determined". later on he wrote a
i o l l a n d FPret A e ior tie constttu on".
Solmond-Jüige Theinetihod which Austin Àylied is il.t Analytical method and
Sheldon-Juris
he confined his field of study only to the positive law.
Prof Allen thinks it proper to call the Austin's school as
 Jurisprudence &Legal Theory/3
Imperative school this name he gave on the basis of Austin's conception
of law (law is command).
He defined the law as a rule laid down for the guidance of an
intelligentthingby an intelligent being having power overhim."
School: This school is also called -Analytical school
-Positive School
-Analytical Positivism
-Imperative school
Other components of this schools are Salmond, Holland, Sheldon
Amos, Markby (all are English men). Gray, Honfeld, Kocowreck
(USA) Kelson and Kerkunov (Continental)
Analytical and Historicalschoolboth arereactionagainstthenatural
aw school.
Austine declare that state law i.e."positivelaw" or "law as it is"
7isalonthe subjectmatterof Jurisprudence. heexcluded theforeignand
external m tters.
ProfHLA.Hart calls Analyticalschool asconfluence ofstate,
soverignity and sanction.
Prof. LK Allen Calls Austin as Palm treein Jurisprudence
Main Aspect of Austinian Philosophy:
He said subject matter to Jurisprudence is law as it is not "law as
þught to be". Only state law is to subject matter of Jurisprudence the
positive law isthe generalcommand ofsoverignlaw isman madeitis
backed by sanction.Itsbreach is punishable. Since internationallaw is
notsupported by sanction, henc it is not a positive law itis rere positive
morality. Jurisprudence must be studied by using Analytical method.
State is essential organisatior Soverignity is enevitable the pure and
good law can't be made in absence of state and Sovereignity. In Austinian
theory there is no place for judgemade law
Followings are irrelevant in the analogis and examination of
orinciple of law-Historical aspect, social aspect, Móral aspect, ideals
morality religion, consideration ofjust and in just.
Law

Properly
s0 calied
1mproper
So called

made
God made
Law by anology law by Metapher)

(1) law mde by private

)enorLaw made by sup
1or his Subyect person not supenor
(01) Law made by' person in dw n o made by one in
pFOVInce er legal nght pe t n c e o e" nent
**
4 Jurisprudence &Legal Theory
Criticism:
Avoidance of eustom and usage
International law is a law

Constitutional convention to acquire force of law

priviledge
lgnorance of procedural law and law conferring
historical aspect of law
gnored moral, sociological and
Misfit for democratic setup.

According to Austin, there are three kinds of law which though

not commands are still within province of Jurisprudence they are-

) Declaratory or explanatory law

(i) Law to repeal law
(ii) Law of imperfect obligation

Chapter-3
Neo-Austinian School

w Chipman Gray is the founder of this school

Main exponents of this school
are-

the Austin School

Solmond, Hollond, Chipman gray it Improved
and adjected it with other.
Over imphesisation on sanctional aspect of law, not recognising
international law as true law, not recognising custom and usage as part

of law, over ruling of school and moral aspect of law are few shortcomings
remove all these defects this school was
evolved.
of
Austinian school. to he said
(Jurist Solmondaccepted International law as true law
that it is true that law and state are connected but it is not true that
M O T a U H

amrality is nothing to do with law. He declaredof two. that law is not right
or might
pnProf alon but perfect combination
Gray (USA) declared that law is not only command of state.
customand usage are real souree of law,. Judge make rules and there
and
arg infiuenced by personality, philosophy, background ofjudge
oner consideratiOn.
(Jethrow Brown)re stated Austinian phiolosophy, he declared that
power and
law is a expression of general will. Ji is entorced through
might of state. It is directed to the realisation of good.
 Chapter4
Kelson's Pure theory of law
Kelson: He was essentially a Positivist. he was Prof at Viena
University. his thoughts usually published in quarterly review. He
improved the Austrinian Positivism and his approach is phycological.
In his view, subject matter of Jurisprudence is positive law according
to him "law as it is" is the subject matter of Jurisprudence.

7pure'science
Main aspect of his theory: Subject matter of Jurisprudence is
of law. It is not politics of law. the study must be scientific.
the law and theory of law both are different. Law may contain
contlicting rules while theory of law harmonise those rule. Theory of
awmust be universal.
Jurisprudence is normative science. It is not characterised by
causative relationship therefore, rule of law may not hold good in a
given set up case, yet they may continue to be valid.
Jurisprudence is the knowledge of Hirarey of normative
relationship. In Hirarcy of normative relationship. Each norm
derives validity from a higher norm. Norm making power dissent
gradually. In this way pyramid of norm is formed. The highest norm is
occupied by ground norm. Legal theory consider relationship berween
ground norm and other norm. Validity of ground norm cannot be
examined.
Form of law need not be imperative: Law need not be imperative
theory of law must be
universal. Customs are form of law.
International
law is superior to Municipal law. There is no difference between
natural person and legal person. There is no dualism in state and
law both are two sides of same coin. State do not create law.Law (
creates by itself. Law can not be defined in term of justice. It may be
unjust.
Criticism of Kelson theory:
Y Lauter Pacht: by giving precedent, International law over
municipal law Kelson has allowed back door entry to the natural law
ZProf. Laski: Kelson's theory is futile intellectual exercise. It he
no praçtical significance inreallife.
Fried Mann: Kelson's theory can't alter solution to Modem lega.
system.
 Chapter-55
Historical School
1. MONTESQUE
Itisalsoarcactionagainst naturalschoollikeanalyticalschool. the
First jurist who main exponents of this school are-
propounded Motesque
theory
avigny
law creation of-
(a) climate Hegel
(6) imposture Hugo
(c) local situation Henry Maine
2. HUGO-
Vinograff
S Law like
and
language
maner of
Pollock
people foms itselt Thisschool belongs to the continent. Montesque was the first
3. SAVIGNY VOD philosopher who employed historical method. Savigny is the chief
KGEIST-
law is vokgiest of exponentof Historical school.
people LMontesque: Maine describe him as the first jurist who preceded
Law always on historical method. He said that laws are the creation of climate,
particular not localsituation,accident or imposture.
universal
Role of
lawyer Huge:Accordingto his viewlaw, likelanguage, and mannr of
the people, forms itself and
greater as iaw develops as suited to the circumstances.
maker the essence of law is its acceptance, regulation and observance by people.
Osocial pressure is Sayhny: He was teacher in the university of Berlin. he wrote
real sancton following book: (1) The law of possession. v
a w grows and i) The History of Roman law in
dim n ish middle agev
according to (ii) The system of Modern Roman Law and y
society iv) Van Buruf_v
4. CRITIEISM
his philosophy was inspired by Edmund burg and Gustor Hugo.
ininccon: ncy
He
noring of other
gnon
propounded the theory of volkgiest.
source Views of
Savigny: hcriticised the codification. according to him
Custom not based
on
codification is improper. Law is volkgiest of people expressinng
popular themselves in
custom and usage. It grows gradually, Law cannot be
consiousness
aiways universal. He told that law always is particular
Many
emphosising upon
thing inOIe o lawYer ne told that role of lawyer is greater than of law makers
in law making.
excluded He told that social presser is real sanction. he
emphasises, historical order of law. The most important thought he
expressed was that the law changes with volkgeist. It develops with .

state and disintegrate with disintigration of state.

Criticism of Savigny's theory:
I. There is inconsistency in the
theory of him
2. Volkgeist can not be exclusive source of law
3. Custom not always based on
popular consiousness
4. Ignorance of other fact that influence law
 Jurisprudence&Legal Theory/7
5. Many things inexplaincd
6. According to Pound he encouraged Juristic Pestimism.
5. PUCHTA
Puchta: Selt interest causes a connict between individual will
law-due to conflict and general will. This brings out the idea of law. Then state came into
betw e en existence. he told that neitherstate nor people alone is the source of law.
individual interest
and General will Comparison between Historical school and Analytical school:
Neither people Ahaltical School
alone nor state
a w is creation of state it is commond of soverign
alone is souroe of
aw t emphasis that state made law is positive law. Custom and usage
finds no place.
State is anterior to law
Fear of punishment is real sanction.
aw is expression of sovereign desire and will
Historical School
Law relates to inner consciousness it is not made or codified. it is
to be
found in society in form of custom and usage.
Customary rules and prevalent usage are natural and Superior
Law is anterior to state
social pressure is real sanction
Law is expression of volkgost
Menry Maine:He was assosiated with corpas cristie ofOxford. he
was member of Governor General council in India he made extreme
study of Hindu Law. His works are-
. The Ancient Law
2. Village community
3. Early History ofinstitutior
4. Discussion on early law
and custom.
His views: He said that there societies first static society
are two
and second dynamic society. there wassomestages of development of
law. in first four stage development of law was similar in both
societies. then further development continued in dynamic society.
These four stages are-
In first phase, law was mde by commond of ruler believed to be
acting under divine inspiration.
In second phase, the command ery stalised into
custonmary law.
third phase, the knowledge and admniStrat+on of eustom
In
goes
into hands of a minority, usually religious nature, due to weakening of
law makers.
Infourth phase, era ofcoding came. Now law is promulgated in
form of a code.
The dynamic societies developed after fourth
phase by three method
 8/Jurisprudence &Legal Theory
Legal fiction

Equity
Legislation Then status
status has special significance.
In primitive societies, of
important he declared custom
to contract and now status again more
codification as
essential mehod of law. While
formal law, legislation as
proper.
Chapter6
Philosopbical Schoo
in Germany.
Analysis caused another
movement
The historical
HEGEL- by giving
state and law-Hegel. Kohler,
and many
other developed a legal philosophy
a new interpretation to History
product of
school
evolution This Approach is named as philosophical or Metaphysical
exponents
based onbut Prof Friedman call it
"Philosophical historism" Main
VOLaw is
place because of stagnation
moral and ethic of this school are Hegel and Maine. It took
School.
t is concerned a inAnalytical and Historical
with ideal future of Hegel-Hegel may be said to be most influential main thinker and
of this movement. According to him, the state and law both
are
w
of evolution is of
-aw
evolutionary products of reason. his philosophy
man.
manifestation ofrdlonar seil realisat1on and freedom of
society VHe mixed up law and moral. this approach 1s more concerned

thesis antithesis with 1deal

future of law and its present or past. a greater consideration
ynthesis
is given for moral and ethical basis of rule rather than their sanction.
History March of
Law has an expressionofsociallife. Itis not only the menifestation
freedom of social life. Various manifestation ofsocial life are result ofevolutionary
dynamicprocess Evolutionary dynamic process is expressed in following
GRATIOUS

Jure bellie et
(a) thesis (b) Antithesis (C) SynthesiS
De Humanspirit gives an ideait may becalled a thesis. in the next age
poce
of Historyan oppositeideaie.antithesis comesintoexistence. acogflict
father of is noticed between two ultimately a syhthesis is accepted this process is
philosophica repeated successtully in HIstory.
school
He told that History is march ofspirit offreedomY
3. KANT
rotious: He isknown asfatlher ofphilosophicalschool. He wrote
German bbokcalled De Jure bellie et pecie. He told in this book that system
Lectures on ethics o atural law imay be evolved because of man's social nature and his
reason and wisdom. The systenm shall have moral worth. Therefore, it
thics
Law and ethics shall has universal application.
are diferent
Immanual Kant: He was a German scholar. He wrote the book
A Law
is means t lectures on ethic. He
distinguish law and ethics in his treatise.
reconcile generdl
will with individual Hetold that subject matter of law and ethies
will
but still they are different. ethic deals with are overlapping
man in life while law deals
 Jurisprudence & Legal Theory /9
pbject of law
with his extermal affairs. ethic is not binding upon a man while law 15
t o provide feld of bnding upon bim.ethics isscience of virtue while lawis science of
free activity
right.
(2)provide perfection He told that universal civil law must be evolved. all law may be
and enoblement devolved from this universal law. through it he made universal civil law
of man as a source

He declare that chief purpose of law to provide

Activity to individual. Law is a means to harmonise field of free
win with genreral will. the ultimate obiect of lawtheisindividual
to afford
perfeetion and enoblement of man.

1. COMTE-
Father
Chapter-7
sociology Sociological school
Comte method of
study may be AugusteComte was the first to use the term Sociology" and by
called as some jurist he is considered as founder of science of sociology. Comte
sociological method may be called scientític positivism.
posivitism In field of legal theory
Comte's ideas inspired Durkheim and who in his form enspiredDuguiyA
rather of.
school is Jhering
Sociological school is the greatest achievement in the field of law
n he present age. Rudolf von Jhering is the father of sociological
O TH E RSch0ol.
EXPONENTS Other exponents of this school are Duguit, Bentham, Eherlic, Dean_
Duguit, Bentham, Rusco Pound ect.
Eherlic, Pound
CK Allen called it ro CK.Agn called sociological school as method of)
method afreconciliation while Patton called sociological school as function
reconciliation School because it emphasis on functional aspect of law. It accepts the
Potton-functional law as instrument of sOcial engineering.
aspect of law.
It does not
This school does not consider moral aspect of law.
consider moral hering view: He isfather of sociological school. According to"
aspect of law him law is complex or compound form of social condition. the main
3. IHERING aim law is to improve or furthering socialinterest by harmonizing
Father of this private in*erest. he told that law can be enforced by extemal compulsion
school through state power. Law aims at protecting and fulfling social interest
Law
is.complex or
and it can be done by either reward
punishment. Development of
or

Compound rom law is referable to continued struggle and cônfliet for peace and
$Ociety
aw aim at order a conilict goes on betWeen individualinterest and social
furthering social interest, Purpose of law to reconcile them and avoid contlict between
interest by them. Society is controlled by different element, law is one of those
harmonising element.
individual interest.
a w is enforced Bentham's view: He propounded Doctrine or Laiseez laire. by
Vby çompulsion by declaring main purpose law he told that maximum happiness to
stae power maximum people is the main purpose of law. he
was mainly positivist
Eward of and individulaist. but he shows sOCiological view by saying
that principle
punishment
granted inlawPurpose of law is to further social interest and human pleasure. While
 10/Jurisprudence &Legal Theory
be and Pain must
law is instrument considering evolution human conduct pleasure
of 5Ocial control considered the purpose of law is to ensure subsistence, abandance, ideal
4. EHERLIC aintenance
of security.
aw-changes with view: He to study law in his social context and
time and place Eherlic's suggest
emphases its close relation with the life of the society. Though he appears
source
eal many respect. his him in
traditional source to adopted savigry's view, he differs from
have
He concentrated on present
and fomal law
approach is more practical and purposeful.
of gravity than past. In making and administrating law, the requirement of
Centre more
sOciety
means of
society must be taken into consideration.
Law is herlic forous social justice. Here law means law which changes
V social control
for development of
Living law which WIh time and place. Society is centre ofgravity
V combing with law. He gave more than
importance to or
society legislation judiçial
custom
a decision. Fundamental legal rules depends
on social fact. Therefore,
ttradition
r o study o f the s o c i a l condition within w h i c h l a w o p e a r a t e m u s t b e s t u d i e d .

moral and other State law is means of social control. State law becomes living law
means after combing with custom and usage, social tradition, Moral, other
Non living law means. an enactment which is not obeyed practically is not part of living
which is not
law
f o l l a wed
practicallyY REalsanctionis social pressure.
5. DUGUIT VDuguit: Duguit was a teacher of constitutional law at Bordex
of unjversity of France, He is chiefly known for his theory of social
Jeacher
Vconstutional jaw solidarity. As stated tarlier he was inspired by Durkheim. Durkheim's
i raex main point on which duguit built upon was that hè made a distinction
university betweèn two kinds of need of men in society. Firstly, there are common
inspired view
/Durkheim's need of individuals which are satisfied by mutual assistance and
Social solidarity Secondly, there are diverse need of individuals which are satisfied
theony by exchange of services. Therefore division of labour is the most
Social solidarity important fact of socíal cohesion. He named it social solidarity. his treatise
Vme an s was "Law in Modern State. he was also a positivist and advocated
interdependence
of men in sOCiety exclusion Metaphysical elements TOm lay.
of

is also a Public service is basis of theory of state. The main objectivedf

State
hum an society is to
further men towards happier life through mutual co-
Did
organisation
not r e c o o n i s e P 1 o n .

Social solidarity means interdependence of men in

V
S
reign tMd men has not right. he has only duties, he told
society. he
that purpose of
Man has no
rights1awand private law are same i.e. strengthen social solidarity whichpublic
does
only duties
Book law in
notdo,it is no law
By derecognizing soverign and sanction he told
that
modern state indespensible. it is
a state is not
Basis o only a kind of human
organisation it is
state
public service
is
extent it strengthen social solidarity. He was
good to the
realistic and accepted
chief objective ofmpirical mcthod.
sOciety further
man
Duguit'say: Law is rule which men possess not virtue of
a

toward higher principle whatever-g0od, interest or by any

happier happiness but
through perforce fact because they live in society and can live
of by virtue and
CO-operalion. society."
 Jurisprudence &Legal Theory 1
Roscoe Pound: He is considered to be American leader in the
field of sociological
Jurisprudence. He came from Haward Law Schools/
He worked also in Nibraska as teacher and judge. He is the most
systematic writer on socioligical jurisprudence. He concentrated on more
functional aspect of law. That is why paton called it functional school.
Dias declared his school as Jurisprudence.of interest. Llyod Denis told
it Jurisprudence of social engineering. CK Allen called it method of
practical reconciliation, and experimental Jurisprudence.
He wrote trities
some
law and morals N
Task of law
Social control through lawy
Ahe spirit of common lawy J
Views: He declared main function of law is to maintain development
Those
of civilisation. principles must be found which helps in
development of human civilisation i.e. Jural postulates must be found.
Human interest must be protected and must be furtherd. It contributes to
development of civilisation. Functional aspect of law must be studied.
Law is instrument of social engineering. Human interest are of
following kinds ie. (i) Individual interest
(ii) Public interest
ii) Social interest all must be harmonised and it can bé done through
W.

Chapter-8
Realistic School
The realistic movement is part of the sociological approach and is
sometimes called "left wing of functional school." It different from
sociological school in this respect that it is little concerned with ends
of law.
The birth place of realism is United States. Main exponents of
this school are:
0.W.Homes (Father of realis)
- J.Frank

-J.C. Gray
A Hagerstrom
Landstett
ross
Oliver crona
BNCorzodo
12/Jurisprudence & Legal Theory
follows:
Main aspects of Realism sehool are as

It appears to be
Realism is influenced by pragmatic philosophy.
antithesis to idealism.
Law is an oflicial action. It js not only body of rule of law or principle
court. Decisions of courts do
not entirely
of law which are onforced by
factors in judge, lawyers and othe
depends on formal Jaw. Human
role in decision mak ing process. Ingtead of
persons concern also play
a
of law
domestic formulation, actual working
focussing and relying upon
examined.
and factors influencing that must be scientifically
they
interpret the law. Therefore,
Law emanates from judge They
are imoulders of justice.
of social forces.
is of complex social world. It is product
part
Law
truth of law is truth of social
realities to know the truth Or law emphasis
books.
be given in law in action rather than law in
must is myth. Those who
search
According to Frank certainty in law
certainty in law are suflering from Father complex.
Law is what the judge declare. Role of
Views of Chipman Gray: dicision making
ofjudge is decisive in
personality and personal outlook
influence judgements.
process. Extremous consideration alsorealism is more a new methodoly
Views of Llevellyn-He told that
than a new school. It is thought and work about law.
a movement in
It is a subject of examination as
Society changes faster than law.
to how the law will meet the problem of contemporary
society.
what the court and people do
More emphasis should be given to

rather than upon rules and principles.

Following must be examined-
-

Personality of judge
- Pre-legislation activity
- Process of legislation
Activities of administrative bodies
Other concermed thing

Chapter-9
Natural Law theory
This school is also known as ethical or Mctaphysical school. Natural

law theory wa_ first reflected in Greece philosophy. Saint Augustine

gave it a new interpretation.
The main exponents of this school are Grotitous, Pufendroff of
Hobbs, Hegel, Kant.
The form ofthis school was religious till 17thcentury gradually it
was identified with (i) Justice and virtues inharent in human nature and
 Jurisprudence &Legal Theory / 13
i) Human reason and logic.
This schoollinkslaw withideals.Jt declares the realisation of ideals
as the ultimate object of law. It declares law as productof human reason
of wisdom
According to this school ultimate object of law is
Realisation of ideals
-Evaluation and envolvement of human personality
To perfection to human personlity
Main Aspect:
Natural law is universal, everlasting and binding. Man must be
virtuous and must act accordingly. This is natural or Godly imperative
Ultimate object of law is to maintain peace and order with physical
force of stateand fend to perfection to humanpersonality.
Obedience is essençe of law and man has learnt obedience from
nature.
Asystem ofnaturallaw may be evolve from man's socíal nature.
This system shall have inherent moral worth therefore it shall have
inherentmoralworth. Therefore it shall have universal recognition.
Natural law is basis of international law and personal liberty.

Chapter-10
Legal Personality
The personality word is derived from greece word "Persona"
which literalymeans mask of an actor inlegal senseits means arights
and duties bearing on it
Persons are of two kinds-(i) Natural (i) Legal in case of natural
person there are further two types of person (i) De facto as weli as de
jure (ii) de facto. Slaves were regarded as de facto only because they are
presumed as incapable of holding rights and duties.
The another type of person is legal person. It is offspring of law. It
is also called juristic Artificial person.
In creating legalpersonality lawpersonifies real thing Therefore
every legal person is personified thing. However, all personified things
are not legal persons.

Natural person Artilicial. legal jurnsiie person

T
e lacto CpoTAtion
de lacto as well Iistetath o n l s state
person ly
as de
nxat1 agpregal
14/Jurisprudence &Legal Theory
1. ZITELMANA
Definition of Legal Personalty:
Personality
The German jurist 7itelnana considered will as alegal personality
p
will y orHe told that"Personality is a legal capacity of a wl, bodilness of
2. SOLOMOND Jen for their personality a wholly irrelevant afiribute.
Solomond defines a person as "any being.to whom the law regards
Legai person as capable ofrights and duties. Any being that isso capable, is a person
whether hunan being or not and nofhing that is not so capable is a person
CapableofR&D even though he be a man"
Patonde tincs legal persomality as medium
through which some such
whether human units are created in whom rights can be vested.
being or not
3.PATON- Some illustration of personality-
Slaves- No legal personality only de facto person.
egal personality -

Child and unsound- Restricted Personality

-Jury, Bench, minister-No personality legal
Medium
Estate of deceased-No legal personality
-

throughwhich such
-

Ido-legal person and Preist is guardian

units are created in Guru Granth Sahab CJJ-legal person
-

whom night can be

vested Gurudwara
&UPSC-Not legal person
In of
Pramatha Nath Mallick v/s Prudumya Kumar Mallick
case
-

ldols were declared as legal person.

In case of
Soloman v/s soloman, Corporation was held as lega
-

person.
In case of
Masjid Sahid Ganj, the Privy Council held that Mosque
-

is not legal person. But it is not absolute role.

SGPC v/s Somnath
-

Das-SC held that Guru Granth Sahib is a

legal person.
legal status of an unborn
birth and ends with death.
unborn
an
person-Personality
starts with
child in mother's womb is by fiction child has legal a
personality. AA
treated as already
borm and
as person lor many purpose.
right contemed on
regarded
unborm child is, however.
contingent when he takes birth
alive it converts into vested.
Montreal Tramway co v's
Leveille relate
unborn) to
legal personality of
The above
principle is based on
legal Maxim "Nasciturus Pro
Jom nato habetor".
Legal Status of a Dead
Solmond person-
observes that
human being ay generally speaking. the
his death but
be siaid to
conence with his birth
and
personality
of a
according to him a dead has ceases with
(a) body right in three
conditions-
(b) Goodwill
 JursprUdcnccC 1Cgal Tncory 15
(c) property or corpus

Legal Status of Animal-Iaw docs not recognise beasts or

lower animals. Animals as person because they are mercly thinggs and
have no natural or legal right. Salmond regards them as object not
subject of them.
Types of legal Person-Hlibbert views:
Predium dominance and serviance
Accordingto Hibbert1
-I leriditous Jacian
Not applicable in India and England

Aggregate
corporation-
There are threc types of Legal persons Institution Lsole
Funds/Estate
Corporation-It is a legal person. According to(Mait land
"corporationis afictitious personwithoutcapacity torun andmarry
and it never falls ill".
According to Solomond, "Living persons comes and go but
offspring of law remains lorever sam
Corporation is a group of person or series of person. It is created
and extinguished by law. It has perpetual existance. Its duties and powers
are determined by law.
It is of two types-Corporation aggregate and corporation side
(i) Corporation aggregate-It is an association person. associated
to further their interests, for explanation-a registered company. A
registered company is different from its members. Its assets and liabilities
are not assets and liability of its members.
(ii) Corporation sole- It is basically an oftice It is a series of
Successivc persons. It has only one member at a given time. the power
and dutics are exercised by a
atural person. he is agent of corporation
sole. It is a mythical thing, living person comes and goes but a mythical
person remains forever. In this way this is perpetual succession in
Corporat1on. According to Solomomd umder certain circumstances It is
suspended not even though it is not extincted. There it is suspended on
the death of holder of ollice until new appointment is made.
Nature of Budy Corporation: Ivery body incorporate is not legal
cntity, very legal person is a personilied thing but every personitied
thing is not necessarily a legal person.
For creation of legal entity it necesary that () a body corporate
is a proup ot united lor JurtfheranCe oL commen
person interest and (ii)
for
ollowingarethe. ap.cts o1 ieal personaltyof a corporate.-
16/ Jurisprudence &Legal Theory
Corpus of corporation i.e. member
Organ of corporation i.e. staff
ect
- Animus of corporation i.e. Attribution of will by fiction of law

Unincorporated Association: According to total Solmond

of its
Unincorporated association
is nothing more than Sum
the property
members. right and duties are not different from its members.
is joint property of member and corporation partnership is an example
ofit. not be a
case of Salmon v/s Salmon) it was held that there can Single
m

partnershipfirm of single partner but there may be acompany

with
ember
person. It cant
Liability of Corporation: Corporation is a legalprescribe limits
appoint its agent. lts agent is appointed by law. Law
the relation between corporation
within which agent will do function. can be
and staff is similar to Master and servant and so, corporation

vaçcariously held liable-

In case ofcitizens life Insurance Co v/s Brown) it was held that
4. SO, CIVIL
LIABILITY company would be liable
for wrong including malice. so corporation
Defamation
can be held liable for Malice
Malicious"
Act done for the purpose
and in course of incorporation bind the
Prosecution be liable for
corporation. Therefore, corporation may
Deceit
Malice
Malicious prosecution
a l l act done for Defamation
purpose
course
and in
of Deiet ofPoulton v/s London and south western Railway co. it was
incorporation In case
for such acts of its
not liable servants which
criminal liability held that a corporation is
are not authorised by Article of incorporation.
fine
is also under criminal liability the will or desire of the
forfeit ure of prop. Corporation
is deemed to be the will of corporation.
controller of corporation
M.R. v/s ICR Haulage Ltd. it was held that company is liable for
a n d other person.
gonspiracy along with managing director
Court inflicts only following punishment corporation fine
on

- Fine

-Forefeiture it is not possible to inflict corporal punishment on the

corporation.
Theories of incorporation
-Fictitious theory
Concessional theory
-Realistic or organic theory
Institutional theory
-Bracket or simbolistic theory
-object theory
 Jurisprudence e Legal heory T7

-Honfeld theory
-Kelson's theory
6. FICTITIOUS
THEORY- Jfictitious theory: Supporter of this theory
S avi gn y Savigny IS,S.D)
Salomond Diecy - Dicey
only man can be
person tor certain Solomand
Purp o s e
Only man can be person anythingotherthan mancan be person
personality may
be granted
only for certain purposes butthey have no real personality
Corp no wil/No personality of corporation is fictitious and without any body and
domin
soul.
No Criminal
liabilily -The will of legal person is also artificial. therefore. it can not commit
6. CONS ESSI. an offence.
ONAL THEORY
2)Concessional theory-Supporters aresame as offictitious theory.
personality by state lt
[inks state with law. Body incorporate is personality to the extent it
aw
was allowed by law of state.
To the extent alowed
(3,Realistic theory-Girkeand maitland are the chiefsupporter oi
by state law this theory. lts personality is real. It does not depend to upon state
7. It has real will. real mind and
REALlSTIC
THEORY
recognition and not created by state law.
real power
Mait land/Girk Institutional theoryfHuriouý it supporter of this theory. It is

Corp-real personality
alsosimilar to Realistictheory. Itisbased oncollectiveoutlook
5 Bracket or symbolic theory
Not created by law
and state
Thistheory is propounded byhering Man alone har personality.
8.INSTITUTIONALOporadonnas no personality. Legal personality is onl a
svmboB. In
THEORY- order to show conveniently the law putsabracket around the members
to suggest it as unit.
Hourious (C6.The purpose theory-Thepropounder is Brinz (German). This

Collective outdook theory propounded to explain

was German concept of "stifling"
9. BRACKET (7.Honfield theory-This theory is simikartothat ofBrackettiheory.
Man alone has rights and duties and corporate personality is merely a
Jhering
procedural form. Corporate personality is used to work vut-in a
Man alone has convenient way.
personality