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Unit-I

Qs. Definition, Nature and scope of Jurisprudence

Ans. The history of the concept of the law reveals that jurisprudence had its evolutionary
beginning from the classical Greek period to 21st-century modern jurisprudence with numerous
changes in its nature in various stages of its evolution. Jurisprudence is a concept to bring theory
and life into focus. It deals with the fundamental principles on which rests the superstructure of
law.

The concept of jurisprudence basically helps in cultivating one’s own ideas in relation to a
particular theory. In abstract jurisprudence is a subject whose knowledge is the basis and the
foundation of the whole legal studies. Jurisprudence is a name given to a certain type of
investigation into a law, where we are concerned to reflect on the nature of legal rules and on the
underlying meaning of legal concepts and on the essential features of the legal system.

Jurisprudence is both an intellectual and idealistic abstraction as well as a behavioural study of

man in society. 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.

Meaning

The term jurisprudence has been derived from the Latin word ‘jurisprudentia’ which means ‘skill
or knowledge of law’. In the early decades of the 19th century with the theories propounded by
Bentham and Austin, the term ‘jurisprudence’ acquired a definite meaning. Bentham is known as
Father of Jurisprudence was the first one to analyze what is law. He divided his study into two
parts:

1. Examination of Law ‘as it is’ i.e. Expositorial Approach– Command of Sovereign.

2. Examination of Law ‘as it ought to be’ i.e. Censorial Approach– Morality of Law.

However, Austin concerned himself mainly with the formal analysis of the English law and its
related concept, which still continues to be the basic concept. Austin’s ideology that ‘law is the
command of the sovereign’ became the structure of English Legal System, which remained with
the formal analysis of law as ‘it is’ (Expositorial) and never became ‘as it ought to be’
(Censorial).

Definition of Jurisprudence:

It is very difficult to define term 'jurisprudence', However, several attempts were made in this
context to define the term. Some of the definitions of the term "jurisprudence" given by various
eminent jurists as under –

I) Austin
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Austin was the first jurist to make jurisprudence as a science. He defines 'jurisprudence' as "the
philosophy of positive law." He opines that the appropriate subject to jurisprudence is a positive
law i.e. law as it is (existing law). In other words, jurisprudence is not a moral philosophy but it
is a scientific and systematic study of the existing, actual and positive law has distinguished from
natural, ideal or moral law.

Austin divides jurisprudence into two classes. Viz 'general Jurisprudence and Particular
Jurisprudence. According to him 'General Jurisprudence is the philosophy of positive law. On the
other hand 'particular jurisprudence is the science of any such system of positive law as now
actually obtains or once actually obtained in a specifically determined nation or specifically
determined nations.

Criticism: Austin's definition criticised by Salmond and Holland and other Jurists on the ground
that it is not proper and appropriate to classify as the general Jurisprudence and Particular
Jurisprudence.

II) Holland:

An English Jurist Sir Thomas Erskine Holland defines, Jurisprudence as, " Jurisprudence is the
formal science of positive law'" According to him jurisprudence should only concern itself with
the basic principles of concepts underlying in any natural system of law.

Criticism: Many eminent jurists have criticised the definition of Holland that jurisprudence is
the formal science of positive law. It is not free from defects. The question arises what is a
formal science? Holland himself explains that by the term 'formal' he means that jurisprudence
concerns itself with human relations which are governed by the rules of law rather than the
material rules themselves, for the latter are the subject of legal exposition, criticism or
compilation rather than jurisprudence.

III) Salmond:

Salmond defines Jurisprudence as, " Jurisprudence is the science of the first principle of the civil
law." According to Salmond Jurisprudence can be defined in two senses (1) in the 'Generic
Sense' jurisprudence can be defined as Science of Civil Law' and (2) in the 'Specific sense'
Jurisprudence can be defined as the science of the first principle of civil law.

The Civil law consists of rules applied by Courts in the administration of Justice. Salmond agrees
with both Austin and Holland only to the extent that jurisprudence is 'a science, a systematic
study of basic principles of legal systems.

Criticism :Salmond's Definition has been criticised on the ground that he has narrowed down
the field of jurisprudence by saying that it is a science of civil law and hence covers only
particular legal system.
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IV) Keeton:

Keeton Defines jurisprudence as " the study and systematic arrangement of the general principles
of law.

V) Roscoe Pound:

Dean Roscoe Pound defines jurisprudence as " the science of law, using the term law in the
juridical sense, as denoting the body of principles recognised or enforced by public and regular
tribunals in the administration of justice".

VI) Dr K. C. Allen:

Jurisprudence is the scientific synthesis of all the essential principles of law.

VII) G.W. Paton:

Jurisprudence is a particular method of study, not the law of one country, but of the general
notion of law itself.

VIII) Julius Stone:

"Jurisprudence is the lawyer's extraversion. It is the lawyer's examination of the precepts, ideals
and techniques of the law in the light derived from present knowledge in disciplines other than
the law.

IX) Gray :

According to John Chipman Gray " jurisprudence is the science of law, the statement and
systematic arrangement of the rules followed by the Court and the principles involved in those
rules."

Scope of Jurisprudence

The following are the contents of jurisprudence:-

1. Sources:- It is true that the basic features of a legal system are mainly to be found in its
authoritative sources and the nature and working of the legal authority behind these sources.
Under this head matters such as custom, legislation, precedent as a sources of law, pros and cons
of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the
administration of justice etc., are included for study.

2. Legal Concepts:- Jurisprudence includes the analysis of legal concepts such as rights, title,
property, ownership, possession, obligations, acts, negligence, legal personality and related
issues. Although all these concepts are equally studied in the ordinary branches of law, but since
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each of them functions in several different branches of law, jurisprudence tries to build a more
comprehensive picture of each concept as a whole.

3. LEGAL THEORY:- Legal theory is concerned with law as it exists and functions in the
society and the manner in which law is created and enforced as also the influence of social
opinion and law on each other. It is therefore necessary that while analysing legal concepts, and
effort should be made to present them in the background of social developments and changing
economic and political attitudes.

Significance and Utility of the Study of Jurisprudence

This subject has its own intrinsic interest and value because this is a subject of serious
scholarship and research; researchers in Jurisprudence contribute to the development of society
by having repercussions in the whole legal, political and social school of thoughts. One of the
tasks of this subject is to construct and elucidate concepts serving to render the complexities of
law more manageable and more rational. It is the belief of this subject that the theory can help to
improve practice.

Jurisprudence also has an educational value. It helps in the logical analysis of the legal concepts
and it sharpens the logical techniques of the lawyer. The study of jurisprudence helps to combat
the lawyer’s occupational view of formalism which leads to excessive concentration on legal
rules for their own sake and disregard of the social function of the law.

The study of jurisprudence helps to put the law in its proper context by considering the needs of
the society and by taking note of the advances in related and relevant disciplines.

Jurisprudence can teach the people to look if not forward, at least sideways and around them and
realize that answers to a new legal problem must be found by a consideration of present social
needs and not in the wisdom of the past.

Jurisprudence is the eye of law and the grammar of law because it throws light on basic ideas and
fundamental principles of law. Therefore, by understanding the nature of law, its concepts and
distinctions, a lawyer can find out the actual rule of law. It also helps in knowing the language,
grammar, the basis of treatment and assumptions upon which the subject rests. Therefore, some
logical training is necessary for a lawyer which he can find from the study of Jurisprudence.
It trains the critical faculties of the mind of the students so that they can dictate fallacies and use
accurate legal terminology and expression.

It helps a lawyer in his practical work. A lawyer always has to tackle new problems every day.
This he can handle through his knowledge of Jurisprudence which trains his mind to find
alternative legal channels of thought.

Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws passed
by the legislators by providing the rules of interpretation. Therefore, the study of jurisprudence
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should not be confined to the study of positive laws but also must include normative study
i.e. that study should deal with the improvement of law in the context of prevailing socio-
economic and political philosophies of time, place and circumstances.

Professor Dias said that “the study of jurisprudence is an opportunity for the lawyer to bring
theory and life into focus, for it concerns human thought in relation to social existence.”

Jurisprudence is Lawyer’s extraversion

In the words of Julius Stone, the study of jurisprudence should be integrative, synthetic and
purposive while concentrating towards the need of humanistic justice. He firmly believed that
jurisprudence is lawyer’s extraversion as it is the lawyer’s examination of precepts and
techniques of the law in the light derived from present knowledge in disciplines other than law.

A lawyer should not be a mere legal technician knowing legal texts and procedure but, he should
be a social activist. The ‘extra-legal version’ approach to as an instrument of social change and
reforms has found favour with the judges of the Supreme Court, notably Justice
S.N.Gajendragadkar, Justice Y.V.Chandrachud, Justice Chagla, Justice P.N.Bhagwati, and
others.

Adopting a pragmatic to the application of law, Justice Y.V.Chandrachud in Vishnu Agencies

(P) Ltd. v. C.T.O.[AIR 1978 SC 449] observed that “legal fraternity should not construe the
provisions of the constitution in a narrow and pedantic sense, instead a broad and liberal spirit
should inspire those whose duty is to interpret the law. A constitution is a living and organic
thing which of all instruments has the greatest claim to be construed ‘ut res magis valeat quam
pereat’ (it is better for a thing to have effect than to be made void)- the lawyers and judges ought
to extend the constitutional provisions for elimination of poverty, social inequalities, and
economic injustices.”

Mr Justice Krishna Iyer, a former judge of the Supreme Court, expounded the philosophy of
jurisprudence as a lawyer’s extraversion. [(Rohtas Industries v. Its Staff Union, AIR 1976 SC
425); (Indian Express Newspapers (P) Ltd. v. Its Workers Union, AIR 1979 SC 137); (Som
Prakash Rakhe v. UOI AIR 1981 SC 212), and other cases] He firmly believed that “the
problem of law is, at bottom, projections of life…. The root of jurisprudence lies in the soil of
society’s urges and the bloom in the nourishment from the humanity services.”

Relationship of Jurisprudence with other Social Sciences

Jurisprudence is closely inter-related with other social sciences since all of them are concerned
with human behaviour in society. Dean Roscoe Pound who propounded the theory of law as a
‘social engineering’ pointed out that jurisprudence is closely interlinked with ethics, economics,
politics, and sociology which though distinct enough as the core, are shade into each other. All
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other social sciences must co-ordinate with jurisprudence to make it a functional branch of
knowledge.

Sociology and Jurisprudence

This branch is based on social theories. It is essentially concerned with the influence of law on
the society at large particularly when we talk about social welfare. G.W. Paton gave 3 obvious
reasons as a relation between law and sociology:

I. It enables a better understanding of the evolution and development of law;

II. It provides great substream for an identity of law commensurate with human needs and
social interests;
III. and provides objectivity to legal interpretation which is need of the hour.

Jurisprudence and Psychology

No human science can be described properly without a thorough knowledge of Human Mind.
Hence, Psychology has a close connection with Jurisprudence. Relationship of Psychology and
Law is established in the branch of Criminological Jurisprudence. Both psychology and
jurisprudence are interested in solving questions such as the motive behind a crime, criminal
personality, reasons for crime etc.

Jurisprudence and Ethics

Ethics has been defined as the science of Human Conduct. It strives for ideal Human Behavior.
This is how Ethics and Jurisprudence are interconnected:

I. Ideal Moral Code– This could be found in relation to Natural Law.

II. Positive Moral Code– This could be found in relation to Law as the Command of the
Sovereign.

Ethics is concerned with good human conduct in the light of the public opinion. Jurisprudence is
related to Positive Morality in so far as the law is the instrument to assert positive ethics.
Jurisprudence believes that Legislations must be based on ethical principles. It is not to be
divorced from Human principles. Ethics believes that No law is good unless it is based on sound
principles of human value.

A Jurist should be adept in this science because unless he studies ethics, he won’t be able to
criticize the law. However, Austin disagreed with this relationship.

Jurisprudence and Economics

Economics studies man’s efforts in satisfying his wants and producing and distributing wealth.
Both Jurisprudence and Economics are sciences and both aim to regulate the lives of the people.
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Both of them try to develop the society and improve the life of an individual. Karl Marx was a
pioneer in this regard.

Jurisprudence and History

History studies past events. Development of Law for the administration of justice becomes sound
if we know the history and background of legislation and the way law has evolved. The branch is
known as Historical Jurisprudence.

Jurisprudence and Politics

In a politically organized society, there are regulations and laws which lay down authoritatively
what a man may and may not do. Thus, there is a deep connection between politics and
Jurisprudence.

Qs. Analytical school of Law and its criticism.

Ans. Analytical school is also known as the Austinian school since this approach is established
by John Austin. It is also called as an imperative school because it treats law as the command of
the sovereign. Dias terms this approach as “Positivism” as the subject-matter of the school is
positive law.

Legal positivism is the most powerful school of thought in jurisprudence. The positivist
movement began at the beginning of the 19th century. The analytical school is positive in its
approach. The jurists of the school consider that the most important aspect of the law is its
relation to the state. Law is treated as command emanating from the state. Due to this reason, this
school is also known as the imperative school.

John Austin (1790-1859) was a Legal Expert who greatly shaped Legal Systems all over the
world through his Analytical Approach to Jurisprudence and Theory of Legal Positivism. The
reader must not fret upon these hefty phrases as they will be discussed in coming paragraphs. In
furtherance of his “Legal Positivism” theory was his notion “Law as a Command”. Owing to his
works he has been saluted as “Father of English Jurisprudence”.

Exponents of Analytical School

The prominent exponents of this school are Bentham, Austin, Holland, Salmond, Kelsen, Gray,
Hoffield and Hart.

Bentham

Jeremy Bentham can be said to be the founder of the Analytical school. In one of his books, he
rejected the clinches of natural law and expounded the principle of utility with scientific
precision. He divided jurisprudence into expository and censorial.
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The former deals with the law as it is while the latter deals with the law as it ought to be.
Bentham’s analysis of censorial jurisprudence is indicative of the fact that the impact of natural
law had not completely disappeared that’s why he talked of utility as the governing rule.
Perhaps, because of this reason, Bentham is not styled as the father of analytical school. He,
however, believes that law is a product of state and sovereign.

Austin

In 1832, John Austin’s lectures were published under the title of “the Province of Jurisprudence
Determined”. This was the first systematic and comprehensive treatment on the subject which
expounded the analytical positivist approach and as a result of this work, Austin is known as the
father of the Analytical School. He limited the scope of jurisprudence and prescribed its
boundaries. His approach was analytical.

Austin built on the foundation of expository jurisprudence laid by Bentham and did not concern
himself with extra-legal norms. He distinguished between the science of legislation and law from
morals.

To Austin, jurisprudence meant the formal analysis of legal conceptions. He divides

jurisprudence into general jurisprudence and particular jurisprudence. Austin took a legal system
as it is that is positive law and resolved it into its fundamental conception.

The science of jurisprudence is only concerned with the positive laws. According to Austin,
analysis of positive law is to be done by the operation of logic on the law without consideration
of the history of ethical significance. Austin ignored social factors as well as in his analysis of
law, he emphasized that by the operation of logic, it is impossible to find out the universal
elements in law, for example, notions were common in all mature legal systems.

Austin’s approach, analysis and deduction are, however, applicable to a unitary polity based on
parliamentary sovereignty. It does not have that relevance to legal systems as in India and the
United States of America.

Holland

Holland is another supporter of the analytical school. He is the follower of Austin. However, he
differs from Austin as to the interpretation of the term positive law. For him, all laws are of not
the command of sovereign, rather, he defines law as rules of external human action enforced by a
sovereign political authority.

Salmond

Salmond also belongs to the analytical school but differs from his predecessors in a number of
ways. These are :
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I. He gives up the attempt to find the universal elements in law by defining jurisprudence as
science of civil law. According to him, there is nothing like universal element in law
because it is the science of law of the land and is thus conditioned by factors which
prevail in a particular state.
II. He deals with low as it is but the law to him is to be defined not in terms of the sovereign
but in terms of courts. Law is something which emanates from courts only.
III. He did not agree with Austin that analysis of law can be done with the help of logic
alone. He points out that the study of jurisprudence which ignores ethical and historical
aspects will become a barren study.

What is analytical approach to jurisprudence?

“Analysis” is breaking down a problem into smaller problems so they can be solved individually.
Analytical Approach in general parlance is a method through which a broad subject is broken
down into smaller topics and subtopics in order to solve problems, conduct studies or resolve
uncertainties.

In Austin’s Analytical Approach, his effort is to gain a precise and in-depth understanding of
Fundamental Concepts of legal reasoning. He chooses to exclude all external influence or even
history and completely indulges in gaining access to first principles of law as it is, regardless of
its “goodness” or “badness” or “moral worthiness”. This approach leads to reading of “Law as it
is” or “Positum” (and not the ideal law) also called “Positive Law”, advocated by Austin in
his Theory of Legal Positivism. From now, we have a fair idea of what is Austin’s analytical
approach which gives us the theory of legal positivism.

Positive law is basically human-made law. It includes statutes laid down by legislatures or rules
and regulations by the human institution. Black’s law dictionary defines positive law as “Law
actually and specifically enacted or adopted by proper authority for the government of an
organized society.” This is principally how Austin frames his notion of Law, which
fundamentally constitutes Positive Laws for him.

Feature of analytical School

Difference between law as it is and law as ought to be – This is a trait of all positivism
thinkers for example, Bentham’s Law and Morals have same course but different circumference.
Austin does not deny that moral factors work in the creation of law, however, he does not allow
any place to morals in his theory. To him, positive law carries its own standard itself. This
approach has been criticized by Dias, Hughes, Paton, Stone, Fuller, etc.

Concentration of positive law – Analytical jurists look exclusively at the positive law. They
prefer to be concerned only with what is the pure fact of law. Representing to themselves the
whole body of legal precepts that obtain in a given system as made at one stroke on a logical
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plan to which they conform in every detail, the analytical jurists set out to discover the plan by
analysis.

Law in terms of and a product of State – Analytical jurist regards law as something made
consciously by lawmakers, whether legislative or judicial. They emphasize not the way in which
the precepts originate with respect to their content but the fact that they get the conscious stamp
of the authority of the state. Thus the most important fact is establishment or authoritative
recognition by the state, of a rule of law. In this sense law is a product of conscious and
increasingly determinate human will.

Logic – For studying law, analytical jurist have mainly taken resort of logic and rejected ethical
elements. There is no value of historical or social factors for jurists of analytical school.

Statute – Law is that which is made consciously by the state. Statute law is the main concern of
the school.

What is “Law” For Austin?

“Law is the aggregate of rules set by men as politically superior, or sovereign, to men
as politically subject.” In other words, he says, laws are man-made rules by sovereign imposed
upon the society it governs. He equates a law to a “command” by a body which is politically
higher.

Thus we have following essentials

I. Sovereign, which makes a

II. Command, which imposes a
III. Duty, which IF NOT followed calls for
IV. Legal sanction.

Sovereign

According to Austin, every political set up has a sovereign power which is habitually obeyed by
the people in the society. There is only one sovereign in the society and it can be a single person
or a group. It is the sole source of power and creator of laws and thus there can be no legal limits
or “de jure” limits to its power. There can, however, be “de facto” or physical limits since the
extent of the coercive force of the commands and their obedience by people have practical limits.

A good example is a well-known quote of De Lolme- “British parliament can do anything but
make a woman a man and a man a woman.”

The only boundaries of sovereign power are physical limits. If read into an existing situation, he
refers to statutes, legislated by the parliament or any parallel body, which has to be obeyed by
the people, regardless of how the statute is.
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Command

His definition is also called “Command theory” or “Imperative theory” of law. “Imperative Law
is a rule which prescribes a general course of action imposed by an authority which enforces it
by superior power either by physical force or any other form of compulsion.”

Duty

The command levies a “legal duty” on those who are politically subject to the “commander” who
is sovereign. Every duty supposes a command by a sovereign by which it is created.

Legal sanction

It is implied in the theory that this sovereign has with itself a power to punish or penalize for
noncompliance of laws. This penalty or punishment imposed is called Legal Sanction. The dread
of legal sanction, as an evil consequence in case of disobeying, is the motivation behind one’s
adherence of law and thus is a requisite part.

Contribution of Analytical school

I. By keeping law aloof from all external factors, Analytical Jurisprudence takes for
granted, the history and development of the Legal system and concerns itself with basic
concepts as the legal system is. It spares the reader from redundant information which
might cloud his judgement.
II. It lays down a systematic explanation of actual facts of law and purely law. The first job
is to lay down a scheme following which analysis is to be performed. Then the laws are
broken down to fragments, each of which is separately explained. By keeping them
isolated from ethical concerns, morality, and justice, an accurate meaning of the law is
established.
III. The approach also helps in the establishment of the relationship between two or more
concepts in a more lucid and fundamental manner.
IV. This approach is often lauded for bringing precision, simplicity, and clarity in legal
thinking. It gives clear, definite and scientific terminology. He removed many false
notions which had obscured the meaning of legal terms.
V. He also made it very clear that the law is, after all, at the mercy of the all-powerful and
condescending state and not the god or religion or even morality.

Criticism

1. When Austin comments that sovereign is the creator of laws, he ignores the fact that
foundation of law lies in common consciousness of the people which manifests themselves in
customs and thus also overlooks Customary law which has always been widely respected and
followed.
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Personal laws like Hindu Law, Canon Law or Muslim law, existed long before a sovereign began
to legislate, and yet, these laws were not only acknowledged but followed with immense
devotion.

Secondly, Legal character of the law becomes obvious when it is applied by a Court of Law in
the administration of Justice. Even Legal Sanctions, though created by the “sovereign” but are
used through the courts. Courts may misinterpret a statue or reject a custom. In this process, the
court often lays down Precedents or Case-Laws which are often religiously followed in future
cases.

2. Austin’s theory does not apply to Constitutional law. The sovereign, no matter how strong will
always be subjected to the Constitution and the latter cannot be equated with a “command” of a
state. It will be an absurd idea to say that Constitution, which is a command of the sovereign,
will, in turn, direct the sovereign. Further, the Constitution is primarily the highest law and
essentially comes before the state. It defeats Austin’s preposition that Sovereign creates the law
laid by the constitution.

3. The definition is majorly applicable on Monarchical Police State which authors the law and
has the power to inflict evil on those who do not comply. In the modern era, there are
empowering and enabling laws which confer privileges on the citizens. They are purely of
permissive nature and give discretion to the individual himself. They cannot be called a
command in their true sense.

For e.g. The law which gives me my right to vote does not command me to do so neither tells me
who to vote.

The law which gives me a right to write a will does not penalize me if I don’t.

There are laws based on the idea of protection like Laws against untouchability or bigamy.

4. Unlike what is believes, the sanction is not the only motivation behind adherence to the law. It
is also respected out of prudence and morality. One does not normally enter into a second marital
relationship during the lifetime of the first spouse because they are scared of being penalized but
also because of love and respect. Also, if everyone decides to challenge the law given by
sovereign, it is bound to collapse…legal sanctions have practical limitations.

5. Austin fails to recognize that International Law is not created by a sovereign and yet is
recognized and appreciated by the majority of states as a law. There is no authority in
International Arena which can enforce international obligations or sanction them. Yet, they are
largely expected to be adhered to.

6. Law is not always “Generally” applicable to all. Many times, it is specially designed to
address certain people or certain situations.
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Divorce laws, for example, is only applicable to those who want a divorce.

There are laws which are corporate or position centric.

Austin fails to consider such specialized or particular laws in his definition.

7. Law, most importantly, is an instrument for the attainment of Justice. Any definition is
incomplete if it fails to acknowledge that the end of law is justice.

8. Another limitation is the indifference towards ethical elements which determine the law. The
ethics on which a law is construed are essential in order to truly understand the nature and
requirement of Law.

It has to be borne in minds that despite the fair criticisms Austin’s theory stands as one of the
most important legal philosophies and some of its aspects still hold relevance.

Qs. Historical school of Law and its criticism.

Ans. Historical School is a branch of Law, which studies law from the past history. It says that
law is based on the General Consciousness of people. The consciousness started from the very
beginning of the society. There was no person like sovereign for the creation of law.

The law in the ancient times was based mainly upon simple rules, regulation, custom, usages
conventions etc. These things were later on developed by the jurists and lawyers. These things
were later on converted into set form of law.

Causes of coming of the historical school

The Historical school is just opposite to the Analytical school in 18th and 19th century, the
concept of individualism came into existence. Due to this concept the revolutions came like
French revolution, Russian revolution etc. At that time Soveging montasque, Barke, Hngo were
the writers who said that law is the general will of the people or law is based upon common
people and the feelings of the common people.

Law develops like the language and manners of the society. So law has a natural character. Law
has no universal application. It differs from society to society and state to state. In the same way
the languages differ from society to society and locality to locality.

Montasoque has said, “Law is the creation of climate, local situations and accidents.”

According to Hugo hag, “ Law develops like language and the manners of the society and it
develops according to suitable circumstances of the Society. The necessary thing is the
acceptance and observance by society.

According to Burke, “ Law is the product of the General process. In this sense it is dynamic
organ which changes and develops according to the suitable circumstances of society.
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SAVIGNY (1779–1861)

Historical School was a reaction against priori notion of natural philosophy, i.e., unhistorical
assumptions of the natural law & rationalism (as the French Revolution instead of fulfilling the
dreams of the people disappointed them). According to Savigny, the source of law was
the general consciousness of the people and cannot be borrowed from outside. He believed
that law has a national character. A nation, to him, meant only a community of people linked
together by historical, geographical & cultural ties. Law grows with the growth & strengthens
with the strength of the people & finally dies away as the nation loses its nationality. He
contended that it is the broad principles of the system that r to be found in the spirit of the people
& they manifest themselves in customary rules. Law is a matter of unconscious & organic
growth (i.e., not made deliberately). Law is found & not made. Further, law is not universal in
nature. Like language, it varies with people & age. Law is a product of the people’s life. Law
has its source in the general or common consciousness (Volksgeist) of the people. Lawyers
remain only the mouthpiece of popular consciousness & their work is to shape the law
accordingly. Any law-making should, therefore, follow the course of historical
development. Custom not only precedes legislation, but it is superior to it. Law should always
conform to the popular consciousness, i.e., Volksgeist. Savigny opposed the codification of
law while pointing out the defects of contemporary codes; codification could never cater
exhaustively for all problems & it would highlight the loopholes & weakness of the
law. Codification, in Savigny’s view, should be preceded by an organic, progressive, scientific
study of the law. Hence, he never opposed codification of German law for all times to come.

Friedmann summarised the features of Savigny’s theory as follows :-

I. Law is discovered or found & can’t be artificially invented or made;

II. Law is fundamentally organic & developmental in character which can be found both in
primitive & modern communities in varying forms of popular consciousness, beliefs,
customs, traditions, habits & practices which finally contribute to people’s law or
Volksgeist.
III. Law is sui generis. It is peculiar to a people like its language so can’t be of universal
validity.

Savigny’s revolutionary contribution is highly appreciated by jurists all over the world.
However, the only defect with the theory was that it exaggerated that aspect. He ruined his
theory by its overemphasis. Another criticism is that he was so occupied with the source of law
that he almost forgot the stream.

Criticisms of Savigny’s Theory:

I. Volksgeist not the exclusive source of law: There r many technical legal rules which
never existed in nor has any connection with popular consciousness.
 15

II. Inconsistency in the theory: He emphasised national character of law, but at the same
time recommended a method by which the Roman law could be adopted to modern
conditions & advocated for the acceptance of Roman law as the law of
Germany. However, this proposition fails to show how an alien system was better able to
express it than the indigenous law.
III. Customs not always based on popular consciousness: Many customs originated only
for the convenience of a powerful minority such as slavery. Similarly, customs
completely opposed to each other exist in different parts of the same country (local
customs).
IV. Limitations of Volksgeist: In modern times, function of Volksgeist is that of modifying
& adapting rather than creating. Today, it is of little or no relevance.
V. Other factors: Savigny ignored other factors that influence law such as he forgot the
stream. He overlooked the forces & factors which influence & determine the growth of
law, e.g., law relating to trade unions.
VI. Juristic pessimism: His contention was that legislation should conform to existing
traditional law or it is doomed, which view will not find favour today.

Applicability of Savingy’s Theory to India:

I. Federal Constitution: In a federal Constitution (there is a division of powers b/w

the federal/Central & the State Govts. & both r independent in their own
spheres), law lacks a ‘national’ character as envisaged by Savigny.
II. Source of Indian Constitution: The framers of Indian Constitution incorporated
various provisions of the Constitutions of world in order to avoid defects &
loopholes that might come in future such as (i) Chapter on F.R.s – U.S.A.; (ii)
Parliamentary System of Govt. – U.K.; (iii) Directive Principles – Ireland; & (iv)
Emergency Provisions – Germany. Since it has many features borrowed from
other nations, it does not fit properly in the Savigny’s scheme.
III. Common law in India: The process of reception of English law through the
agency of the judiciary continued unabated – law of torts, doctrine of cruelty, etc.
IV. Deliberate legislation–making: In modern times, many new doctrines don’t
always reflect the popular consciousness, e.g., reservations for backward classes,
uniform civil code, etc.
V. Judicial activism: Savigny ignored the creative function of the judges. Judge-
made law (precedents) or judicial legislation is a common feature today.

SIRHENRY MAINE (1882 – 1888):

Savigny’s method of the historical school was followed in England by Sir Henry Maine, Lord
Bryce & many others who made studies of various legal systems on historical lines. Maine
published his first work ‘Ancient Law’ in 1861. This is considered to be the manifesto of his
lifework in which he stated his general doctrines. He also wrote Village
 16

Communities (1871), Early History of Institutions (1875) & Dissertations of Early Law and
Custom (1883). He was law member in the Council of the Governor–General of India b/w 1861
& 1869, which provided him an opportunity for the study of Indian legal system.

Maine inaugurated both comparative & anthropological approaches to the study of law. Unlike
Savigny, Maine favoured legislation & codification, he did not share Savigny’s mystique of the
Volksgeist & he used the study of legal history mostly to understand the past & not to determine
the future course & standards.

Maine classified the development of law in the following stages :

I. In the beginning, law was made by the commands of the ruler believed to be
acting under the divine inspiration, e.g., Themistes of ancient Greek. When a
king decided a dispute by a sentence, the judgment was assumed to be the result
of direct inspiration. The king was not the maker of law, but merely an executor
of judgments of the God.
II. In the second stage, the commands crystallise into customary law. Customs seem
to have succeeded to the prerogatives of the king. Hwr, they don’t appear to hv
pretended to direct inspiration for each sentence & the progress of thought no
longer permits the solution of a particular dispute to be explained by supposing an
extra–human interposition.
III. In the third stage, the knowledge & administration of customs goes into the hands
of a minority, due to the weakening of the power of the original law-
makers, usually of a religious nature, e.g. priests. The ruler is superseded by a
minority who obtain control over the law.
IV. In the fourth stage, the law is promulgated in the form of a code

Qs. Sociological school of Law, with special reference to the contribution of Roscoe Pound,
Ihering and Ehrlich.

Ans. In early time, rules and laws are originated from the only custom to govern the society
which had only a social sanction. Then, the supremacy of King and priest came. then, after the
revolution and changes, the balance between the individual interest and welfare of society was
realized. The main subject matter of sociology is Society. Sociology is the study of society,
human behavior, and social changes. And jurisprudence is the study of law and legal aspect of
things. The Sociological school of Jurisprudence advocates that the Law and society are related
to each other. This school argues that the law is a social phenomenon because it has a major
impact on society.

August Comte (1798-1857) was a French Philosopher. The term “Sociology” was first used by
the Comte and he described Sociology as a positive science of social facts. He said that Society
is like an organism and it could progress when it is guided by Scientific Principles. Thus, he
makes great efforts to use the law as a tool by which human society maintains itself and
 17

progresses. After Comte, many Writers and Jurist tried to connect the society and law together.
And tried to find a link between law and sociology.

Meaning of Sociological school of Jurisprudence

The idea of Sociological School is to establish a relation between the Law and society. This
school laid more emphasis on the legal perspective of every problem and every change that take
place in society. Law is a social phenomenon and law has some direct or indirect relation to
society. Sociological School of Jurisprudence focuses on balancing the welfare of state and
individual was realized.

In the words of Ehrlich, “At the present as well as at any there time, the centre of gravity of
legal development lies not in legislation, nor in the juristic decision, but in society itself. ”

Sociological School of Jurisprudence studies the relationship between the law and sociology.
Every problem or concept has two different aspects. One is sociological view and other is a legal
aspect.

Eugen Ehrlich (1862-1922)

Eugen Ehrlich was considered as the founder of Sociology of law. Sociology of law is the study
of law from the sociological perspective. Ehrlich considered society as a main source of the law.
And by society, he means “association of men”.

Ehrlich had written that “Centre of gravity of all legal developments is not in legislation or
judicial decisions but in society itself.” He argued that society is the main source of law and
better source of law than legislation or judicial decision.

Roscoe Pound:

He was one of the most leading and important jurists who developed American sociological
jurisprudence is a systematic manner. His major works are:

A. Spirit of the common law.

B. An introduction to the philosophy of law.
C. Interpretation of legal history.
D. Law and morals.
E. The formative era of American law.
F. Administrative law.
G. Social contract through law.
H. The task of law.

He treated law as a means of affecting social control and his contribution to jurisprudence is
great.
 18

The functional aspect of the law:

Roscoe Pound gave stress on the functional aspect of law. He defines law as containing the rules,
principles, conceptions and standard of conduct as a developed technique of social engineering.
The main function of law is to satisfy the maximum number of people. Not only this function but
also to reconcile the conflict in the interest of individuals and society.

Social Engineering:

He describes that there are various kinds of interests in society and the main task of law is to
make all possible efforts to avoid conflict between them. Thus, courts, legislature, administrators
and jurists must work with a plan and make efforts to balance these three categories: Public,
Private and Social Interests.

Public Interest:

Main public interest is interest in the preservation of States. Administration of trust, charitable
contracts, protection of the environment, regulation of public employment, etc. are being
protected by the States.

Private Interests:

The individual’s interest is known as private interest like physical integrity, reputation, etc. and
they’re protected by the law of crime, torts and Contract Law, etc. Domestic relations of a person
such as a husband and a wife, parents and children, etc. are protected by Personal Law. The
interest of the property, succession, contractual relations, testamentary relations, etc. are
protected by Property Laws.

Social Interests:

I. Interest in preservation of peace and health.

II. Preserving social institutions of religion, politics and economics.
III. Preserving certain prohibiting acts like prostitution, gambling, etc.
IV. Conservation of social and natural resources.
V. General progress including economic, political and cultural areas. For e.g.- Freedom of
Trade and Commerce, Speech and Expression, etc.
VI. Interest to make a political, physical, social and economic life to promote personality.

Jural postulates:

According to Roscoe Pound, every society has certain basic assumptions for proper order and
balance in society. These assumptions are implied and not in expressed form and are called as
Jural Postulates of the legal system of that society. These assumptions of man related to the
reference for what they want from the law or legal system or we can say that it is the expectation
of a man from the law. He has mentioned five kinds of jural postulates:
 19

I. In a civilised society, man must be able to assume that others will not commit any
intentional aggression on him.
II. In a civilised society, man must be able to assume that they must control for beneficial
purposes. E.g.- control on whatever they discover or create by their own labour.
III. In a civilised society, man must be able to assume that those with whom they deal as a
number of societies will act in good faith.
IV. In a civilised society, man must be able to assume that the people will act with due care
and will not cast unreasonable risks of injury on others.
V. In a civilised society, man must be able to assume that certain people must restrain from
doing harmful acts under their employment and agencies which are otherwise harmless to
them.

So, these Jural Postulates are a sort of ideal standards which law should pursue in society for
civilised life and with the changes in society, the jural postulates may emerge or originate in
society.

Ihering:
Ihering was another sociological jurist known for his monumental work ‘spirit of the law’. He
was against the theory of individuals welfare and favours the factor that social interest of society
must have a priority over an individual’s interest and the purpose of the law is to protect the
interest of society, that is why his theory is known as ‘Jurisprudence of Interest’ which
emphasises on the sociological aspect of Sociological School of Law. He described the law in
following aspects:

1. Law as a result of Constant Struggle: Ihering pointed out that the social struggle gives
birth to law and the role of law is to harmonize the conflicting interests of individuals for
the purpose of protection of interest of society. He gave importance to living law which
develops with the struggles of society.
2. Law as a means to serve Social Purpose: According to him, the ultimate goal of the law
is to serve a social purpose. It is the duty of the state to promote social interests by
avoiding various clashes between social and individual interests. According to him, “law
is coercion organised in a set form by the state”, which means that he justified coercion
by the state for the purpose of social welfare.
3. Law as one of the means to control society: Law alone is not a means to control
society, there are some other factors also like climate, etc. Like Bentham, Ihering favours
the interest in the achievement of pleasure and avoidance of pain but for the society,
that’s the reason that Ihering theory is also known as the theory of “Social
Utilitarianism”.

So, according to the Ihering, the social activities of individuals can be controlled by the state by
means of coercion, reward and duty for achieving social control for the welfare of
society. Friedman said that “Ihering was declared as the father of modern sociological
 20

jurisprudence because of his concept of law as one of the important effective factors to control
social organisms.”

Criticism

It undermines individual interest

A fundamental problem in society is the constant conflict between individual and societal
interest. The Sociological School disregards individual interest as it supposes Law to be
primarily applicable to society and not the individual.

Suppose a judge is deciding a case of Rape. The accused is viewed by everyone as guilty and
society has already passed judgement on him. In this case, it is the judge’s duty to view the facts
and evidence objectively and decide accordingly. The social interest or opinion should be of no
importance to the judge, and if there is a lack of evidence, the accused must be set free.

This shows that Individual identity holds more interest in the eyes of Law then Group identity.
People are not products of their race, sex, nationality etc. but distinct, independent beings who
cannot be tyrannized due to their conflicting interests by Society.

Subjectivity of Social Ideals

According to the SA, Law should help society progress towards an ideal. This poses two
problems. First of all, who decides what direction a society can take? After all, society is just a
combination of conflicting individual interests. For some, Homosexuality is a valid sexual
orientation, for others it is sin. Which interest should prevail and should law be conscious of
every differing interest?

For example, in the early 20th century America, alcohol was prohibited and sale of it was
banned. This meant people’s productivity increased, crime decreased and married women were
happy. But ultimately, an underground mafia developed which started a huge black market of
alcohol, this brought in much more crime and death, along with frequent clashes between police
and criminals. Moreover, the law had overstepped by taking away the free choice of a person to
consume what he wants.

Law cannot be a mere balance of interests

If society is made up of individual interests, there are bound to be disagreements. Social

jurisprudence says that Law should act as a mediator between these interests, trying to fulfill the
needs of as many people as it can. This is in consonance with Bentham’s idea of the greatest
good for the greatest number, and this is a principle law should abide by.

But this assertion assumes that Law is an impartial overseer, but we know that Law is also not
free of opinion, law has its own ideas of justice, and interprets liberty and fairness in its own
way.
 21

Law cannot balance all the interests in society. It is objective and chooses, as per its own biases
and standards of judgement, what is lawful and what is not.

Therefore, the idea that law is impartial and a mitigator if all interests is flawed and inadequate.

Goes beyond the tenets of Sociology

Sociology is essentially a descriptive study of social facts, but Sociological School of Law delves
into jurisprudence, which is the philosophy of Law, and here the Sociological School makes a
leap into being a normative study, directing and aspiring towards something, and actively trying
to realize it.

Roscoe Pound, an influential thinker of the school, regarded Sociological School as

jurisprudential, advocating for an involved, active study of Law.

Therefore, it ceases to be a mere description of a sociological perspective of law, and becomes a

normative study of law as a catalyst for social change.
 22

Unit-II

Qs. Pure theory of Law, with special reference to the contribution of Kelson and Hart.

Ans The Pure Theory of Law is given by Kelson. This theory is also known as “Vienna School”
because Kelson is the productor of Vienna University. This theory resembles with Austin’s
command theory because in Kelson’s theory there must be sanction behind law. Austin gave it
the name of command theory and Kelson gave it the name of grandnorm theory. Kelson is
affected by local conditions, natural condition and international condition. After studying all
these conditions he gave this theory of Law, which is known as pure theory of law and
grandnorm theory .

Concept of pure theory of Law:-

At the time of Kelson there are Ist world was which destricted the property of human beings at
international level. So he gave power to the international law and avoiding the destructions of the
world. Secondly during that time many countries adopted written constitution. So Kelson also
get influenced from these written constitutions and gave his own theory which is based on
grandnorms.

Grandnorm

Grand means great and norm means Law, So it means a great law the superior authority from
which law comes out. He compared the grandnorm with written constitution. According to him
written constitution is the highest authority in the country which is known as grandnorms. In
England the Parliament is a grandnorm, in USA written constitution is grandnorms and in India
too written Constitution is grandnorm. State is not above the grandnorm. Sovereignty also liven
in grandnorm. Accoding to Kelson law is a motive nor science, it means science of norms. In
laws only those rules are taken which are related with legal aspects. Any others like moral rules,
religious rules, ethical rules do not come under the concepts of grandnorm. Here Kelson is equal
to Austin. When he excludes morals relation or ethics from the field of law.

System of Normative Rules:- System of normative rules was Hierarchy. In hierarchy system
there is one highest authority and all other are lower authorities. This highest authority was
grandnorm which was in the form of written constitution and other authorities are below the
constitution. The source of power in a state for all bodies is written constitution.

Internation Law:- Kelson says that norms have a force behind it. This force lies in the
grandnorm. If this legal norm is not obeyed then one person will be punished for it. He also says
that at this time international law is immature. It is in primitive stage. It is developing.

Nature of Grandnorm:- According to Kelson each country has the formation of grandnorm
according to local conditions. The duty of jurists is to interpret the grandnorm in their own
language. They are not concerned with the goodness or badness of the grandnorm. They are not
 23

concerned with the origin of the grandnorm. In this way the grandnorm is the main source of all
the laws in the country.

Elements of Pure Theory:- Kelson gave his view under this theory about State, sovereignty,
public and private law, public and private rights, international law private and juristic law.

Feature of Kelson’s theory:-

1. Grandnorm as a source of law:- Grandnorm is the source of all laws. Grandnorm is in the
form of written constitution. Any such body, which contains rules, or any such legal system in a
country.

2. No difference between law and state:- Kelson says that there is no difference between law
and State between because they get power from the same grandnorm. Law comes from the
grandnorm and the state also comes from the grandnorm.

3. Sovereign is not a separate body:- Austin says sovereign is a politically superior person
which keeps controls over the politically inferior persons. But Kelson says that the power of
sovereign lies in the people. So the Sovereign is not separate and superior from the people of the
country.

4. No difference between public law and private law:- The public law is related with the state
and the private law is related with the individuals as Kelson says that there is no difference
between public law and private law. The law which creates a contract between individuals is
called private law.

5. Supremacy of internationally laws:- The main prupose of Kelson was to decrease the
tension at world level because there was Ist world war which destroyed millions of persons and
property. He also said that the internaiton law is in primitive stage or immature stage. It means it
is in developing stage. One day will come when international law will get equal to that of
municipal law. So this is also enforceable.

Criticism of Kelson’s theory:- In-spit of having good concept of pure theory given by Kelson
some of the criticism faced by him, which are as under:

a. Grandnorm is a vague concept:- The concept of grandnorm is not clear. It cannot be applied
where there is no written constitution. The base of grandnorm in the form of positive norms or
the rules based only on legal order is not clear. The rules, which are not linked with morals
ethics. Customs and religion are not the norms. But we can not ignore the role of these norms in
the development of law.

b. Interantion Law is a weak law:- Kelson advocated the supremacy of international law. But
even upto now we see that is no force behind international law.
 24

c. No difference between state and law:- this point is also criticised by various writers. Law as
a separate thing from the State. State is body is law in, which law is a rule that regulates the
state.

d. Difference between public law and private law:- Kelson says that there is no different
between public law and private law. Which is also not right in the modern days.

e. Customs and Precedents ignored:- He also customs as a source of law while we see that
customs are the source of all laws.

Harts theory of Jurisprudence

H.L.A. Hart is generally regarded as the face of British Positivism. He has strongly criticized
Austin’s view of law as “command”. He uses the concepts of “power” and “rule” to counter
Austin’s analytical legal positivism. Prof. Hart has mainly studied law as a collection of legally
binding rules.

Primary & Secondary Rules

Rules, according to Hart, may be categorized into primary rules and secondary rules. Primary
rules are those rules which require human beings to do or abstain from doing certain things.
Secondary rules are those which are secondary to the primary rules and lay down certain acts
which may, upon commission, lead to the creation of new primary rules. Duties can be said to
primary rules, whereas, powers can be said to be secondary rules.

Defects in Primary Rules

Hart has identied the following three defects in primary rules:

1. Uncertainty- The rst and foremost defect is with regards to the uncertainty of primary rules. If
a dispute arises with regards to the scope of a particular primary rule, there exists no set
procedure to resolve such a dispute.

2. Static Character- Another defect in primary rules is with regards to its static character.
Primary rules may undergo a change only by way of the gradual evolution of society. Thus, the
process makes primary rules quite rigid and static.

3. Ineciency- Disputes with regards to the violation of a primary rule shall always occur and
there exists no set mechanism or procedure or any competent authority to deal with such
disputes. Thus, the “ineciency” of primary rules forms its third defect.

Remedies for the Defects

According to Hart, the simplest remedy for the aforesaid defects is to introduce secondary rules
for each one of them. The proposed remedies are as follows:
 25

1. “Rule of Recognition”- In order to cure the defect of uncertainty, a secondary rule of

recognition may be introduced whereby the primary rules may be codied in the form of an
authoritative text.

2. “Rules of Change”- In order to cure the defect of the static character of primary rules,
secondary rules of change providing a procedure for amending or changing primary rules may be
introduced.

3. “Rules of Adjudication”- Secondary rules of adjudication may be created which would

empower certain individuals to authoritatively decide upon disputes related to primary rules and
adjudicate upon the same.

Criticism

Lord Lloyd has stated that Hart’s classication of primary and secondary rules is an extremely
helpful tool in analyzing legal concepts. However, he expresses his doubts over the proposition
that all legal rules can be classied as primary and secondary rules. He further goes on to express
his concern over the uncertainty and immeasurability of Hart’s “internal aspect” of law. Prof.
Ronald Dworkin criticizes Hart’s theory on the grounds that he recognizes only rules. He
counters it with his concept of “principles”. Eckho has contended that Hart has confused the
binding part of the law with the other aspects of law.

Qs. Nature Law School, Ancient, Medieval, Renaissance and Modern theories.

Ans. The Natural Law school is not independent school. It has deep concern with historical,
analytical school. The main contents of this theory is that it has been interpreted differently at the
different times depending on the needs of the developing legal thought but the greatest attribute
of the Natural law theory is its adaptability to meet new challenges of the transient society.

According to the pro pounder of this theory says that, Law is a product of the straight thinking of
human mind. According to Socrates, he duely assert it that the positivist authority should be
obeyed but not blindly and it ought to be subject to criticism if deserve so.

Plato: He was in the view that each individual be given best suitable role by reason of his
capacity and abilities.

Thomas Acquinas (Roman Thinker):- He means that Natural Law is a part of Divine Law. This
part is applied by human beings to govern their affairs and relations.

Thomas Hobbes (Roman Thinker) :- According to him that there should be an absolute authority
which should govern and control the affairs of human beings in the reciprocal transmission of
concerned with every span of life.
 26

Rousseau (Roman Thiner) : He held that there two types of will:1. The will of individual and 2.
General will. The authority through his rule must respect the both and in the administration of
rule making process. These will should be reflected.

Definition

From the jurisprudence point of view Natural law is not a body of actual enacted or interpreted
law enforced by courts. It is in fact a way of looking at things and a humanistic approach of
Judges and Jurists. It embodies within it a host of ideals such as morality, justice, reason, good
conduct, freedom, equality, liberty, ethics and so on. The phrase Natural Law has a flexible
meaning. The chief characteristic feature of natural law may be briefly stated as follows :-

I. It is basically a priori method which is different from empirical method. It used to stress
upon a cause and effect relationship between the facts on the verge of logic.
II. It symbolizes physical law of nature based on moral ideals which has universal
applicability at all places and times.
III. It has often been used either to defend a change or to maintain status quo according to
needs of the time.
IV. The concept of Rule of law in England and India and due process in USA are essentially
based on Natural Law philosophy.

MODEN NATURAL LAW THEORIS:- The following are the three main thinker who
contribute to the Modern Natural Law theories:-

1. Stammler:- He was much more influence by Positive Law. He says that” all positive law is an
attempt at just law” with regard to will and purpose of the law maker should have the proper
understanding and knowledge of actual social world or social reality. Various a time in his
concept he inter changeable used the word will with the purpose and he conclude that it is the
will of the people which enable them to secure their purpose under social reorganisation.

2.KOHLER:- His thoughts were influenced by Hegal. According to him Law is standard of
conduct which is consequence of in the impulse of human being that urges him towards a
reasonable form of life. It also derives its validity from the moral and ethical standard in society.
So that he laid down stress upon moral and cultural development of society.

3.Finnis: Finnis also is a very famous jurists of the present century. He has given the definition
and place to natural law. According to finnis Natural Law is the set of principles of practical
reasonableness in ordinary human life and human community. He sets up the proposition that
there are certain basic goods for human being. Fennis lists them as under :-

I. Life:- The term life signifies every aspect of vitality in good shape for self determination.
II. Knowledge: Knowledge is a process of knowing of unknown with the help of sense.
 27

III. Sociability of Friendship:- Doing something best for the sake of one’s friend’s
purposes, one’s well being.
IV. Role:- It is the expression of a status of human being in practical form such role is
protected and recognised by law.
V. Religion:- Question of the origins of cosmic order and of human freedom and reason
expressed thus this view is a good that even an ethicist can value.
VI. Practical reasonableness :- This is the logic expression of the ideas and decision in
practical circumstances. This the measurement of just or unjust in a real situation.

Despite the merits of Natural Law philosophy it has been criticized for its weakness on the
following grounds. In other words the demerits of the Natural Law may be read as follows :-

I. Moral proposition i.e. ought to be may not always necessarily conform to the needs of the
society.
II. The concept of morality is a varying content changing from place to place, therefore it
would be futile to think of universal applicability of law.
III. The rules of morality embodied in natural law are not amendable to changes but legal
rules do need a change with changing of the society.
IV. Legal disputes may be settled by law courts but disputes relating to moral and law of
nature cannot be subjected to judicial scrutiny.

Qs. Administration of Justice; Advantages and Disadvantages of Administration of Justice;

Division of Administration of Justice.

Ans. State maintain law and order and establish peace and social security. Administration of
Justice is one of the primary functions of the State. The main function of the administration of
justice is the protection of individuals' rights, enforcement of laws and punishment of wrongdoer.
In determining a nation's rank in a political organization, no test is considered more decisive than
its administration of justice, for it has been conceived as one of the firmest peelers of any
government.

What is Administration of Justice

In simple words administration of Justice means justice according to law. Justice generally
means the quality of being just. For example the awarding of what is due. Justice consists of
impartiality, integrity or rightness etc Administration of justice is generally divided into two
parts- viz Administration of Civil Justice and Administration of Criminal Justice. A State may
not be called a State if it has failed to discharge its functions concerning the administration of
justice. Life may not be lived in a society in which there is no preservation of the rights of man
and no prevention of injustice.
 28

Definition

According to Salmond : -”The administration of justice implies the maintenance of right within
a political community by civilized substitute for the primitive practice of private vengeance and
violent self-help.”

This has been criticized on the ground that it is not the force of the state alone that secures the
obedience of law. There are a number of other factors such as the social sanctions, habit and
convenience which help in the obedience of law. In civilized societies, obedience to law becomes
a matter of habit and in very rare cases the force of the state is used to secure it

According to Austin: ‘Law is the aggregate of rule set by men as politically superior, or
sovereign, to men as politically subject.” It means law is command of sovereign. In his definition
Command, duty and sanction are the three elements of law.

The fundamental difference between the definitions of the two jurists is that whereas in the
definition of Austin, the central point of law is sovereign, in the definition of Salmond, the
central point is Court. In fact, both the definitions are not perfect and present two aspects of law.

Origin and Growth of Administration of Justice -

The origin and growth of administration of Justice is identical with the origin and growth of man.
In modern civilized societies, it has evolved through stages.

First Stage – In early stage when society was primitive and private vengeance and self-help
were the only remedies available to the wronged person against the wrongdoer. He could get his
wrong addressed with the help of his friends or relatives.

Second Stage –The second stage of development of the society was characterized by the state
coming into existence in its rudimentary form when its functions where only persuasive in
nature. It did not have enforcing power by which it could punish the wrongdoer.

Third Stage –In the third Stage of development of society, wrongs could be redressed by
payment of compensation by the wrongdoer to the wronged(victim) who was affected by the
wrongful act.

Thus up to this time, the justice remained private in nature without the compulsive force of the
State.
Advantages of Administration of Justice -

Advantages of Administration of Justice are as follows –

Uniformity and certainty - Legal Justice ensures uniformity and certainty. Everybody knows
what the law is and there is no scope for arbitrary action. Even Judges have to give decisions
 29

according to the declared law of the Country. As the law is certain, citizens can shape their
conduct accordingly.

Impartiality - Another Advantage of Administration of Justice, there is impartiality in the

administration of justice. Judges are required to give their decisions according to the pre-
determined legal principles and the cannot go beyond them.

Disadvantages of Justice –

Despite the aforesaid advantages there are certain disadvantages of Legal Justice which are as
follows –

Rigidity - One Disadvantage of Legal Justice is that it is Rigid. Law has already been laid down
in precedents. It is not always possible to adjust it to the changing needs of society. Society may
change more rapidly than legal justice and may result in hardship and injustice in certain cases.
Judges act upon the principle that "hard cases should not make bad law".

Technicalities - Another disadvantage of legal justice is its technicalities (formalism). Judges

attach more importance to legal technicalities than they deserve. They give importance to form
than to substance.

Complexity - Modern society is becoming more and more complicated and if made from time to
time to codify or simplify the legal system but very soon law becomes complicated

Types of Administration of Justice -

a) Criminal Administration of Justice –

Administration of criminal justice deals with public wrongs. all offenses included in Indian Penal
Code(IPC) are public wrongs. The administration of criminal justice is to punish the offender.
Punishment may be described as the infliction by State Authority, of a consequence normally
regarded as an evil (for example imprisonment or death) on an individual found to be
legally guilty of a crime.

Importance and Purpose of Criminal Justice

The main purpose and object of criminal justice is to punish the wrongdoer (offender) and to
maintain law and order in society. It is the State which punishes the Criminal. Punishment
necessarily implies some kinds of pain inflicted upon the offender or loss caused to him for his
criminal act which may either be intended to deter him from repeating the crime or maybe an
expression of society disapprobation for his Anti Social conduct or it may also be directed to
reform and regenerate him and at the time ported the society from criminals.

b) Civil Administration of Justice –

 30

The main object of the administration of civil justice is to provide relief by way of compensation
or other relief to the injured party. The rights enforced by Civil proceedings are of two kinds viz.,
Primary rights and Sanctioning rights. Primary rights are those which exist as such. They do not
have their source in some wrong. Sanctioning or remedial rights are those rights which come into
being after the violation of a primary right. A primary right is right arising out of conduct or as a
jus in rem. A sanctioning the right is one which arises out of the violation of another right

For example, if X enters into a valid contract, his right to have the contract performed is a
primary right. If the contract is broken, his right to damages for the loss caused to him for the
breach of contract is sanctioning right. A primary right may be enforced by specific enforcement.
A sanctioning right is enforced by sanctioning enforcement. Purpose of Civil Administration of
Justice.

The purpose of civil justice is the enforcement in civil proceedings, either a primary or a
sanctioning right.

Difference between civil and criminal administration of justie

I. In the civil case the suit is Filed in the civil court. In the criminal cases the proceedings Is
filed in the criminal court.
II. The main remedy in civil Cases is damages. The main remedy in criminal cases is to
Punish the offender.
III. In the civil cases, the court follows the procedure Prescribed in Civil Procedure Code. In
the criminal cases, the court follows the procedure laid down in criminal Procedure Code.
IV. In civil cases the action is taken by the injured party and the Suit is established by himself
by giving evidence. In criminal cases the proceeding is taken by the state and the injured
party is called out as a witness by the state.

Qs. Theories of Punishment.

Ans: it is said about punishment that uninvestigated criminals are an expensive luxury. This
statement is correct. The punishment is directly related with crime. The punishment is given
according to the nature of crime. While awarding punishment, to the criminal, the surrounding
circumstances are also taken into account. Many things assist in commitment of crime viz
circumstances under which crime has been committed, conduct of criminal, his conscience, the
conduct of aggrieved party and his status, they all determine the form and quantum of
punishment.

Many times crimes are committed under compulsion and adverse circumstances. The criminal
has to repent afterward on his act. The spent of reform arises in him. While passing order for
punishment, this thing has also to be taken into account. Further, this is also one aim of
punishment that the severest possible punishment should be given to the criminal so that crimes
may be prevented, terror may be created in the society and nobody may dare to commit crime
 31

considering all these things into account, some theories of punishment have been propounded.
The main theories are as follow:

1) Deterrent theory;
2) Preventive theory;
3) Retributive theory;
4) Expiratory theory; and
5) Reformative theory.

(1). Deterrent theory- this is the oldest theory of punishment. Its main objective is to keep
separate the criminal from the crime by terrorising him by means of punishment. In addition of
this, its objective is to terrorise the other person in the society so that they may remain separate
from crimes. Thus the main objective o this theory is to check crime by means of terror of
punishment. The main assumption of the supporters of this theory is that the criminals should be
given very rigorous punishment, torture etc should be given so that the criminal himself and the
whole society may become terrorized and may not to dare to commit crime in future.

Though this theory is practiced in some countries but it has been criticized by many
criminologists. The critics have to say that the crimes cannot be checked by means of
punishment only. From severe punishment, the possibility may exist of increasing rather than
reduction in crime. The critics treat it as barbaric and cruel and, therefore, it has no place in the
present system of punishment.

Sutherland is one of the same view. According to him, many criminals do not think over
punishment, even they are not under terror because they have defective mentality. Many times,
crimes are committed under severe excitement and emotions which have no relation with the
form and quantum of punishment.

(2). Preventive Theory- this theory is of most rigorous type. The objective of this theory is to
make the criminal disabled and to provide the security to the society. The supporters of this
theory have to say that the criminals are thorns for a society. They create chaos and insecurity in
the society. Thus such criminals should be ekpt separate from the society.

The following forms of punishments are proper for them:

a). death penalty;

b).lifetime imprisonment; and

c). banishment

this theory of punishment is based on the maxim that, prevention is better than cure. Instead of
taking revenge from the criminal, the crime itself should be prevented. The famous Jurist Fische
has to say that the aim of all penal laws is that they should not be applied i.e. such conditions
 32

should not be created so that they are to be applied. It means, that the main objective of
punishment is that the people should not commit crime; and when they will not commit crime;
there will be no need to apply the penal laws.

Bentham and Mill are the strong supporter of this theory. According to them, the death penalty is
awarded to the criminal not on the basis that he should not commit crime in the future but
awarded so that the society may get rid of such person.

This theory is also subject to criticism. The critics have to say that hoe long a society may be
kept separate from the criminal? On some day or other, he will be turned out of the prison. After
turning out, he will not commit cannot be guaranteed. Therefore, this is not the final solution of
commitment of crime.

In spite of this, the forms of punishment viz. death penalty and lifetime imprisonment have been
given important place in the penal system of various countries.

(3). Retributive theory- it is also known as revengeful theory. The main objective of this theory
is to take revenge from the criminal. The main idea lies behind this theory is that, “as you sow so
shall you reap”. Life shall go for life, hand for hand and foot for foot, eye for eye and tooth for
tooth.

According to P.K.Sen, “evil for evil without thinking of consequences is the main objective of
this theory”.

Plato has to say that, “Justice is the goodness of soul and health and injustice is illness and evil
whose remedy is punishment.”

In the words of Bradley, “the relation between criminal law and revenge is such as it is between
marriage and affection.”

But some critics have criticized this theory. Salmond has to say that , “revenge is not the remedy
of crime but cause of increase in crime”. Other critics consider it as the punishment of very low
or degraded nature.

Alongwith criticism, some thinkers have supported this theory. In the opinion of Dr.
M.J.Setahna, “the objective of retributive theory is not revenge but it is the wrongful act. What
a man does, he should get the like results.”

Professor Keetan this theory as ethical. His view is that this theory is relevant in the changed
context of today.

(4). Expiatory theory- this is the theory of expiation. Since crime is considered as sin in our
society. Therefore, expiation is necessary for this sin. In reality, it is not a legal theory of
punishment because it is based upon religious concepts. It has no legal effects. It is not necessary
that a criminal should not be punished after his expiation for his sin.
 33

(5). Reformative theory- this is the modern theory of punishment. The main objective of this
theory is to give the chance to the criminal to reform. It clears the way of society after reforming
the criminal. It is based on the maxim ‘hate the crime not the criminal’. A man is not criminal by
birth, if the circumstances which make him criminal. Poverty, emotions, compulsion and family
atmosphere are such causes which make a man criminal. After commitment of crime, the
criminal repents upon his acts many times. He wants to reform himself. Keeping all things into
account, the reformatory theory has been evolved.

According to this, a criminal is not awarded the punishment of imprisonment but is given the
chance to reform himself by means of the following:

I. probation;
II. admonition;
III. parole;
IV. keeping in a reformatory house;
V. to pay remuneration for the work done; and
VI. rehabilitation etc.

Bentham ,Ferri, Garefalo, and Walter Reckless are the strong supporter of this Sutherland is
also supporter of this theory. In Shiwaji V/s State of Maharashtra, 1972, Criminal Law Journal,
1783 SC), Justice Krishna Aiyyar considered present penal system as not suitable to the present
society and recommended reformatory theory of punishment.

This theory has also been criticized. According to critics:

I. the terror of punishment is necessary for prevention of crime;

II. there is a strong possibility of misuse of reformatory system;
III. The reformatory measures cannot prove successful for habitual offenders; and
IV. the effect of this theory may be experienced only on juvenile delinquents and emotional
criminals.

In an American report titled ‘struggle for Justice’ it has been said that, “The reformatory theory
is nothing except as a show. The main objective behinal adoption of this theory by prison
authorities is to increase their powers.

Conclusion

From the above, it is clear that each theory has its own advantage and disadvantage. In the
present context, no single theory can prove successful. For prevention of crime, severe
punishment is necessary for creating terror. The criminal should get the result of his act. Along
with this, if the crime has been committed under compulsion, emotions, and if he expiates for
that, he should be given the chance to reform himself.
 34

Therefore, it is desired that a universally acceptable theory of punishment should be evolved

which may take into consideration the surroundings circumstances, age, character, nature of
crime and spirit of reforms etc.
 35

Unit-III

Qs. Sources of Law: Legal, Historical and Material Sources.

The term "Sources of law" means the origin from which rules of human conduct came into
existence. The term has been used in different senses by different writers and different views
have been expressed from time to time.

Definition

According to C. K. Allen " agencies through which the rules of conduct acquire the character of
law by becoming definite, uniform and compulsory".

According to Keeton Source means "the material, out of which is eventually fashioned, through
the activity of judges".

Oppenheim defines source of law as " the name for a historical fact out of which the rules of
conduct came into existence and acquire legal force".

Kinds of Sources of law:

Sources of law may be classified into - Formal Sources and Material Sources

i) Formal sources:

The formal sources law also be called the Actual or ultimate Sources of law. According to Sir
John Salmond, that "sources " from which a rule of law derives its force and validity.

ii) Material Sources:

The material sources of law are those which gives the matter or content of a principal of law. As
the word material suggests, material sources deal with the substance, elements or constituent
material of law. Material sources of law tells us what is contained in the law. According to
Salmond, material sources are of two kinds -

1. Historical Sources and

2. Legal Sources

Historical Sources:

Historical Sources of law are those which expresses the history or evolution for the principal of
law and the circumstances through which it attained the form of law. These Sources are
unauthoritative, they are Sources in fact but they have no legal recognition. And have only
persuasive value. Historical Sources may become legal if they are recognised by law.
 36

Example: Acts of Parliament is a Legal source and the work of H. L. A Hart is a Historical
Source.
Legal Sources:

Legal Sources are those Sources which are the instruments or organs of the State by which legal
rules are created. Salmond has classified the Legal Sources of English Law into four divisions
are as follows:

a) Legislation

b) Precedent

c) Custom

d) Agreement

A) Legislation: which gives rise to enacted law. According to Salmond Legislation is that
source of law which consists in the declaration of legal rules by a competent authority.
B) Precedent: Precedents signify past judicial decisions. Judicial Precedents are an important
source of law. They have enjoyed high authority at all times and in all countries.

C) Custom : Custom is also an important source of law. Custom signifies the habits and
practices of the people. Custom gives rise to customary law.

According to Salmond, Custom is the embodiment of those principles which have commended
themselves to the national conscience as principal of justice and public utility.

D) Agreement : An Agreement is the state of being in accord of conformity such as to agree to

the details of a transaction. An agreement may be defined as the expression by two or more
persons communicated to each other of a common intention to affect the legal relations.

Qs. Custom; Early importance of Customary Law; Requirements of a Valid Custom, kinds
of Custom.

Ans. Custom is a habitual course of conduct observed uniformly and voluntarily by the people.
Custom occupies an important place in regulation of human conduct in almost all the societies.
In fact, it is one of the oldest sources of law-making. But with progress of the society custom
gradually diminish and legislation and judicial precedents become the main source. Custom is
created by the people, by their unconscious adoption of a certain rule of conduct whenever the
same problem arises for solution and its authority is based on nothing but its long continued use
and recognition by the people. Custom is some kind of special rule which is followed from time
immemorial. Law based on custom is known as customary law. Custom, as a source of law,
involves the study of a number of its aspects: its origin and nature, its importance, reasons for its
 37

recognition, its classification, its various theories, its distinction with prescription and usage, and
the essentials of a valid custom.

Meaning of custom

The word ‘custom’ is derived from an old French word ‘Coustume’. Some says that the word
‘custom’ is based on Latin word ‘Consuetudo’,some says that the word ‘Custom’ is derived from
the word ‘Consuetus’, while others say that it is the part participate of word ‘Consuescere’ which
means ‘ accustom’. Some says that it is derived from two words ‘con’ means,‘expressing
intensive force’and ‘suescere’ means ‘become accustomed’. In Hindi the word ‘custom’ means
‘reeti’,‘vyavahar’,‘rasm’, or ‘riwaj’. The word ‘custom’ literally, grammatically, or ordinarily
means; tradition, practice; usage; observance; way; convention; procedure; ceremony; ritual;
ordinance; form; formality; fashion; mode; manner; shibboleth; unwritten rule; way of doing
things; formal; praxis; 2 style; etiquette; routine; habit; usual; rite; Solemn; unwritten code;
conventional social behaviour; etc.

The word ‘custom’ generally means the following:

I. It means a usage or practice common to many or to particular place or class or habitual

with an individual.
II. It is long established practice considered as unwritten law
III. It means repeated practice.
IV. It is the whole body of usages, practices, or conventions that regulate social life.
V. It means frequent repetition of the same act; way of acting commonto many;  ordinary
manner; habitual practice; usage; method of doing or living.
VI. It means a long established practice, considered as unwritten law, and resting for 
authority on long consent, usage, and prescription.
VII. It means familiar acquaintance or familiarity.
VIII. It means to make familiar or to accustom.
IX. It is a tradition passing on from one generation to another.
X. It means a usual, habitual practice, or typical mode of behavior
XI. It means long established habits or traditions of a society
XII. It is a long established collectively habit of a society.
XIII. It is a long established convention of a society.
XIV. It means established way of doing things.
XV. It is a specific practice of long standing.
XVI. It is a traditional and widely accepted way of behaving or doing something that is specific
to a particular society, place, or time. It means whole body of usage, practices, or
conventions that regulate social life.
XVII. It is a thing that one does habitually.
 38

Definitions of custom

Some of the important definitions of custom are as follows:

Salmond:

According to Salmond, “custom is the embodiment of those principles which have commended
themselves to the national conscience as principles of justice and public utility”.

2. Austin:

According to Austin, “custom is a rule of conduct which the governed observe spontaneously
and not in a pursuance of law set by a political superior”.

3. Allen:

According to Allen, “custom as a legal and social phenomenon grows up by forces inherent in
society, forces partly of reason and necessity and partly of suggestion and limitation.”

4. Holland:

He defined custom as “a generally observed course of conduct.”

5. Keeton:

According to him, “customary law may be defined as those rules of human action established by
usage and regarded as legally binding by those to whom the rules are applicable, which are
adopted by the courts and applied as source of law, because they are generally followed by the
political society as a whole, or by some part of it.”

6. Harprasad v. Shivdayal.

In this case the judicial committee of the Privy Council observed, custom as a rule which in a
particular family or in a particular district or in a particular sect, class or tribe, has from long
usage obtained the force of a law.

7. Halsbury laws:

“A custom is a particular rule which has existed either actually or presumptively from time
immemorial, and has obtained the force of law in a particular locality, although contrary to or not
consistent with the general common law of the realm.”

8. Herbert spencer: According to him, “before any definite agency for social control is
developed there exists a control arising partly from the public opinion of the living, and more
largelyfrom the public opinion of the dead.” Thus it is tradition passing on from one generation
to another that originally governed human conduct.
 39

Kinds of custom

Customs are of two kinds (1) legal and (2) conventional. The first kind consists of custom which
is operative per se as a binding rule of law, independently of any agreement on the part of those
subject to it. The second kind consists of custom which operates only indirectly through the
medium of agreement, express or implied, whereby it is accepted and adopted in individual
instances as conventional law between the parties.

Legal custom

The legal custom is one whose legal authority is absolute. It possesses the force of law proporio
vigore. The parties, affected may agree to a legal custom or not but they are bound by the same.
Legal customs are of two kinds (1) local and (2) general. Local customs apply only to a locality
and a general custom applies to the whole country.

Local custom

Local custom is one which prevails in some definite locality and constitutes a source of law for
that place only. Every local custom must satisfy certain conditions. It must be reasonable. It must
conform to the statue law. It must have been observed as obligatory. It must be of immemorial
antiquity.

General custom

A General custom is that custom which prevails throughout the country and constitutes one of
the sources of the law of the land. There was a time when common law was considered to be the
same as the general custom of the realm followed from ancient times. There is no unanimity of
opinion on the point whether the general custom must be immemorial or not.

Conventional custom

A conventional custom is one whose authority is conditional on its acceptance and incorporation
in the agreement between the parties to be bound by it. A conventional custom is an established
practice, which is legally binding because it had been expressly or impliedly incorporated in a
contract between the parties concerned.

Essential requisites of valid custom

Each and every custom cannot be legally enforced. They must be proved before the courts like
any other thing before they can have the force of law. Custom to be legally recognized by the
courts and acquire the binding force of law evolved some judicial tests. These tests are as
follows:
 40

1. Immemorial Antiquity:

The first test of a valid custom is that it must be immemorial. It must be old or ancient and must
not be of recent origin. Allen, Paton, Salmond and all other jurists are of the views that before
custom can be have the validity in law; it must be shown that the custom is of immemorial
antiquity or origin. In the words of Allen, “a mere habit, practice, or fashion which has existed
for a number of years nobody supposes to be Ipso factoan obligatory custom; antiquity is the
only reliable proof of resistance to the changing conditions of different ages.”

In ancient Hindu law also, the antiquity was one of the essentials for the recognition of custom.
Manu said, “Immemorial custom is transcendental law. The Calcutta High Court, on the other
hand, in Ambalika Dasi v. AparnaDasiwas of the view that either 1773 A.D. or 1793 A.D. is
the date for treating a custom which has been in existence as immemorial.

2. Reasonableness

The second important judicial test of a valid custom is that it must be reasonable. It must not be
unreasonable. It must be useful and convenient to the society. If any party challenges a custom, it
must satisfy the court that the custom is unreasonable. That is the burden of proof lies upon the
person who challenges the custom. To ascertain the reasonableness of a custom it must be traced
back to the time of its origin. The unreasonableness of a custom must be so great that its
enforcement results in greater harm than if there were no custom at all. According to prof. Allen,
the unreasonableness of the custom must be proved and not its reasonableness.

The judicial committee of the Privy Council, delivering its judgmentthrough Sir James Colville
in Raja Varma v. Ravi Varmaobserved that a custom which is not reasonable is invalid in law
and not binding.

3. Morality

Third test of a valid custom is that a custom, to be valid, must not be immoral. It is a well-
recognized rule that a custom should not be opposed to decency and morality. A custom must not
be opposed to public plicyor justice, equity or good conscience. In Mathura Naikin v.
EsuNaikin, the Bombay High Court has held that the custom of adoption of girls for immoral
purposes, like dancing is illegal as it was designed to perpetuate this profession. In case of
Balusami v. BalaKishna, the custom permitting marriage with daughter’s daughter has also
been held immoral. In Gopi v. jaggo, the Privy Council allowed a custom which recognized and
sanctioned re marriage of a woman who had been abandoned and deserted by her husband.

4. Continuance

The fourth test for a valid custom is that it must have been continuously observed without any
interruption. General rule is that if a custom has not been followed continuously and
uninterruptedly for a long time, the presumption is that it never existed at all. It must have been
 41

in existence and recognized by the community without any intervening break, for such duration
as may, under the circumstances of the case, be recognized as reasonably long.In case of
Muhammad Hussainforki v. Syed Mian Saheb,it was held that unless there is continuity there
is no custom. A custom may be abrogatory and if it abrogates another custom, such other custom
ceases to exist.

5. Peaceable enjoyment

The next important test is that custom must have been enjoyed peaceably. If a custom has been in
dispute for a long time in a court of law or otherwise, it will negate the presumption that it did
originate by consent as most of the custom naturally did. Therefore, for the enforceability of a
custom; it is necessary to show that the custom has been enjoyed without any disturbance or
contest. A custom is based on consent or habit, and unless there was an undisturbed existence of
the custom, we cannot say that it was based on the general consent of the people.

6. Consistency

The test for a valid custom is that it must be in conformity with the statute law. It should not be
contrary to the statutory law. A custom should necessary yield where it conflicts with a statutory
law. This rule is observed as a positive principle of law in England and countries like India
which follow English law. The Roman law and various continental systems, however, do not
adhere to this rule. Justinian in his corpus juris mentions several statutes which have fallen into
disuse by a posterior contrary custom. That is to say, the latter rule prevails over the earlier,
regardless of their origins and legislation has no inherent superiority in this respect over custom.
If an enacted law comes first it can be repealed or modified by a later custom and vice versa.

7. Certainty

Certainty is an indispensable condition of a valid custom. A custom, however, ancient must not
be indefinite and uncertain. In Wilson v. Willes, it was held that a custom must be certain and
not vague. A custom which is vague or indefinite cannot be recognized. It is more a rule of
evidence than anything else.

8. Compulsory observance

A custom to be legally recognized as a valid custom must be observed as a right. It means that
custom must have been followed by all concerned without recourse to force and without the
necessity of permission of those who are adversely affected by it. It must be regarded by those
affected by it not merely as an optional rule but as an obligatory or binding rule of conduct. If a
practice is left to individual choice; it cannot be treated as a customary law. These requisites are
expressed in the form of the rule that the user must be nec vi nec clam necprecario- not by force,
nor by stealth, nor at will. In Hamperton v. Hono, it was held that if the observance of a custom
is suspended for a long time, it would be assumed that such a custom was never in existence.
 42

9. Juridical nature

A custom must be of a juridical nature. A custom must refer to legal relations. A mere voluntary
practice not conceived of as being based on any rule of right or obligation does not amount to a
legal custom.

10. Public policy

Another test for the validity of a custom is that it should not be opposed to public policy. This
test may be included in the test of reasonableness, as it is very wide term and it may include
public policy as well. In case ofBudanso v. Faturr, a custom which would enable a woman to
marry again during the life time of her husband without any defined rules by which the marriage
with the first husband is dissolved before the second marriage is contracted, was held to be
contrary to public policy. In nut shell a custom is valid if it not contrary to justice, equity or good
conscience or opposed to public policy

Qs. Precedent: Authority of Precedent, ratio decidendi and obiter dicta, circumstances
destroying or weakening the binding force of Precedent.

Ans. Precedents literally means previous judicial decision. The decisions of the higher courts are
binding on the lower courts. The binding force of decision is called precedent. The precedents
play an important role in the development of law. It is the second important source of law. First
source is customs and the third source is legislation. Sometimes act may be insufficient for the
case or there may be an vacuum or any thing missing in the act. Under these circumstances the
court can apply their own mind. These independent decisions becomes precedents which are
followed later on by the same & Lower courts. This method of decision is also called as Judge
made law. The English and American law is mostly based upon the precedents. In India Art.141
of Indian Constitution says that the decision of the higher courts shall be binding upon the lower
courts.

Meaning of precedents

Precedent means judgment or decision of a court of law cited as an authority for the legal
principle embodied in it. The doctrine of precedent which is also known as stare decisis, i.e.
stand by the decision, is based on the principle that like cases should be decided alike. Once a
case is decided by judge by applying the principle, a case on similar facts which may arise in
future must also be decided by applying the same principle. This is not always saves the time and
labour of judges, but also secures certainty, predictability and uniformity in the applications of
law.

Definition of precedents
 43

Precedents are a decision of a court which is also called judicial decision. According to the
Oxford University, “Precedents means the previous decision case given by a court according to
rules.”

Various writers have given the definition of precedents is conduct of court adopted by the lower
court in similar facts and in similar circumstances in a case. Particularly the precedents means
the Judge made law. When the court gives its own ideas for creating new rules. England,
America and China also follow the previous decisions as the source of law but the continent
countries like Germany, Japan does not accept the previous decisions as the source of law. The
method of taking precedents as source of law is called inductive method, while the method of
continental countries not following previous decisions of the court is called deductive method.

Case law

Ram Jivan v. Smt. Phoola (dead) by L.Rs. and others, AIR 1976 SC 844; 1976(1) SCC 852 .

Precedents which enunciate rules of law form the foundation of administration of justice. It has
been held time and again that a single Judge of a High Court is ordinarily bound to accept as
correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full
Benches of his Court and of Apex Court. The reason of the rule, which makes a precedent
binding lies in the desire to secure uniformity and certainty in the law.

Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel and others, AIR 1968 SC
372;70 Bom LR 73.

Precedents which enunciate rules of law form the foundation of administration of justice. It has
been held time and again that a single Judge of a High Court is ordinarily bound to accept as
correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full
Benches of his Court and of Apex Court. The reason of the rule, which makes a precedent
binding lies in the desire to secure uniformity and certainty in the law.

Ration decidendi and Obiter dicta (precedents are binding)

Ratio Decidendi’

It means reasons for the decision. If a question comes before the Judge which is not covered by
any authority he will have to decide it upon principle, that is to say, he has to formulate the rule
for the occasion and decide the case applying that rule to the facts of the case. The rule that he
formulates in deciding the case will be law for all subsequent like cases. Thus, whatever rule
a .yige enunciates just for the purpose of deciding the case before him, that is to say, the rule
declared and applied by the Judge in deciding a case before him, is a valid and authoritative act
on his part. Hence, to extract the law is a precedent.
 44

One has to study the material facts of the case, the decision thereon, the rules and principles
enunciated by the Judge in the course of such decision, and then pull out that rule or principle
which is actually made use of by the Judge in deciding the dispute in the case. The legal
principle formulated for, and actually applied in deciding the problem in the case is called ‘Ratio
decidendi’. It is the legal principle which forms the basis of: adjudication of the points in issue.
This ratio decidendi has to be determined by the judge and he has to apply it to the facts of a case
which he is going to decide. This provides anj opportunity to the judge to mould the law
according to changed circumstances.

Obiter Dicta

It means ‘things said by the way’. It is the statement of law which is not strictly relevant to the
facts of the case and goes beyond the requirements of the points in issue. Obiter dicta are of little
legal authority.: At best they amount only to persuasive precedent. They do not even bind the lips
that utter them. However, the obiter dicta pronounced by highest tribunals of justice are at times
binding like the obiter dicta of Supreme Court of India conclusively binding on all inferior
courts. Things said by the judge by way of illustration or just to make the point clear to the
persons can also be termed as obiter dicta.

Difference between Ratio Decidendi and Obiter Dicta

Ratio Decidendi

I. Meaning: ratio = the measure of a quantity in terms of another; decidendi = decision.

II. Salmon defines: “the ratio decidendi may be described roughly as the rule of law applied
by and acted on by the court, or the rule which the court regarded as governing the
case……..
III. The ratio decidendi has binding authority. It is more authoritative than obiter dicta.
IV. Rupert cross says: “if ratio decidendi is a rule of law expressly or impliedly treated by the
judges as a necessary step in reaching his conclusion…….
V. Salmond opines: “if we think of the rule of law as a line on graph, then the case itself is
like a point through which that line is drawn………
VI. Dr. Good hart propounded “material test”. The rules of law based on “material facts” are
ratio decidendi. It is the best method in finding “ratio”.
VII. Professor wambaugh propounded “reversal” test. According to this method, the decision
and reasons given by the judge shall be reversed and observed.
VIII. If the result is quite opposite, then it is “ratio”. It is also the best way in finding “ratio” of
case.

Obiter Dicta

I. Meaning: obiter = by the way; dicta (pl.) = sayings; dictum (sing.) = saying.
 45

II. An obiter dictum is a statement made by a judge in course of his judgment which may not
be precisely relevant to the issue before him.
III. An obiter dictum has no such binding authority. It is a by-product of the original
judgment. They are only remarks and opinions of the judge.
IV. A dictum is a rule of law stand by a judge which was neither expressly nor impliedly
treated by him as a necessary step in reaching his conclusion.
V. Obiter dicta are unrealistic and contrary to current practice.
VI. The rules of law based on “hypothetical facts” are mere dicta.
VII. If the result is the same, giving no affect on the decision, then it is “obiter dictum”.

Classification of Precedent

Persuasive precedents

Judicial decisions may be distinguished as authoritative and persuasive. An authoritative

precedent is one which judges must follow whether they approve of it or not. A persuasive
precedent is one which the judges are under no obligation to follow and which they will take into
consideration and to which they will attach such weight as it seem to them to deserve.
Authoritative precedent are legal sources of law, while persuasive precedents are merely
historical.

Persuasive precedents

Foreign judgments and obiter dicta are not binding upon courts, however they have persuasive
value.

Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others, AIR 1954 SC 236:
Supreme Court although can be guided by English judgement but can not ignore the rulings of
Supreme Court itself.

Samant N. Balakrishna, etc. v. George Fernandez and others etc. AIR 1969 SC 1201;
1969(3) SCC 238. American cases relating to American constitution cannot be relied for the
purpose of examining fundamental rights under Indian Constitution because of difference of
social conditions and habits of people of both the countries.

Circumstances destroying or weakening the binding force of precedents.

1. ABROGATED DECISIONS: A decision ceases to be binding if a statute or statutory rule is

inconsistent with it is subsequently enacted or if it is reversed or overruled by a higher court.

2. IGNORANCE OF STATUTE: A precedent is not binding if it was rendered in ignorance of

a statute or rule having the force of statute i.e. delegated legislation. Such decisions are per
incuriam and not binding . The mere fact that the earlier court misconstrued a statute or ignored a
rule of construction is no ground for impugning the authority of precedent. It is clear law that a
 46

precedent loses its binding force if the court that decided it overlooked an inconsistent decision
of a higher court . Such decisions are also per incuriam. A court is not bound by its own decision
that is in conflict with one another. If the new decision is in conflict with the old, it is given per
incuriam and is not binding on later courts. In this circumstances the rule is that where there are
previous inconsistent decisions of its own , the court is free to follow either i.e. earlier or later.

To come within the category of per incuriam it must be shown not only that the decision
involved some manifest slip or error but also that to leave the decision standing would be likely,
inter alia, to produce serious inconvenience in the administration of justice or significant
injustice to citizens.

3 SUB SILENTIO: Precedents sub silentio or not argued: A decision passes sub silentio when
the particular point of law involved in decision is not perceived by the court or present to its
mind. When a decision is on point A upon which judgement is pronounced but there was another
point B on which also court ought to have pronounced before deciding he issue in favour of the
party, but that was not argued or considered by the Court. In such circumstances although point
B was logically involved in the facts and although the case had a specific out come , the point B
is said to pass sub silentio.

A decision is an authority only for what it actually decides and not for what may logically or
remotely follows from it. Decision on a question which has not been argued cannot be treated as
precedent. M/s. Goodyear India Ltd. v. State of Haryana and another, AIR 1990 SC 781:
1990(2) SCC 71: 1989 Supp. (1) SCR 510: 1989(2) Scale 982.

5. DISTINGUISHING: A binding precedent is a decided case which a court must follow. But a
previous case is only binding in a later case if the legal principles involved is the same and the
facts are similar. Distinguishing a case on its facts, or on the point of law involved, is a device
used by judges usually in order to avoid the consequences of an earlier inconvenient decision
which is, in strict practice, binding on them. Income Tax Officer, Tuticorin v. T.S. Devinatha
Nadar etc., AIR 1968 SC 623 Even Apex Court is bound by its earlier decisions. It is only when
the Supreme Court finds itself unable to accept the earlier view, it shall be justified in deciding
the matter in a different way.

6. OVERRULING: A higher court can overrule a decision made in an earlier case by a

lower court eg. the Court of Appeal can overrule an earlier High Court decision. Overruling can
occur if the previous court did not correctly apply the law, or because the later court considers
that the rule of law contained in the previous ratio decidendi is no longer desirable.

7. REVERSING:.Reversing is the overturning on appeal by a higher court, of the decision of the

court below that hearing the appeal. The appeal court will then substitute its own decision.
 47

8. CONCESSION: Concession made by counsel on a question of law is not binding as

precedent. The Government of Tamil Nadu and others v. Badrinath and others, AIR 1987
SC 2381: 1987(4) SCC 654; State of Rajasthan v/s Mahaveer Oil Industries (1999) 4 SCC
357.

9. CONSENT: When a direction or order is made by consent of the parties, the Court does not
adjudicate upon the rights of the parties nor lay down any principle. Municipal Corporation of
Delhi v. Gurnam Kaur, AIR 1989 SC 38: 1989(1) SCC 101; 1989 Supp. (2) SCR 929.

10. NON SPEAKING ORDER: Non speaking order dismissing special leave petition would
not constitute binding precedent as to the ratio of the High Court involved in the decision against
which special leave petition to appeal was filed. Ajit Kumar Rath v/s State of Orissa (1999) 9
SCC 596.

11.SPECIFIC EXCLUSION: A judgment stating therein itself that the ratio laid down there in
shall not be binding precedent or shall not be followed or relied upon , can not be treated as
binding precedent. Kendriya Vidyalaya Sangathan v/s Ram Ratan Yadav(2003) 3 SCC 437.

12 .ON FACTS: If a judgment is rendered merely having regard to the fact situations obtaiing
therein , the same could not be declaration of law within meaning of Article 141.UP State
Brassware Corp. Ltd v/s Uday Narain Pandey AIR 2006 SC 586 ;(2006)1 SCC 479;.

There is nothing in the Constitution which prevent the Supreme Court from the reversing its
previous decision. State of West Bengal v. Corporation of Calcutta, AIR 1967 SC 997:
1967(2) SCR 170.

Advantage and Disadvantage of Precedents

Merits of precedents:-

Precedents are a very important source of Law. They play an important role in the development
of law, so they have certain advantages as:

1. Precedents show true respect to the ancestor’s means by adopting the previous decision of the
higher court to decide the present case, it is a kind of respect to elders.

2. Precedents are suitable to the present situation means after some times the circumstances of
the society can change with the change of time so the precedents they are more suitable and fit
for the present time and circumstances.

3. Precedents are based on customs means the law in the form of act which based upon customs.
Court interprets the customs while interpreting any act.

4. Precedents are convenient and easy to follow because they are available in the form of written
reports.
 48

5. Precedents bring certainty in law, once decision is given in a case there would be no need to
repeat all precedents in any other case if it resembles to the former case.

6. Precedents are the best guide for the Judges: They play an important role in the judiciary
because the precedents are the guide lines for the courts.

Demerits of the precedents:-

Although the demerits are very few but these are as under :-

1. The decisions are given by the human beings while performing the duties as judge, his
decision may not be suitable to all persons who have different mind and thinking. This
will be a bad effect on Judiciary.
2. Sometimes the decisions of the higher courts contradictory to each other. It becomes
harder to another judge to apply the same verdicts as a precedents of higher court
3. Sometimes the higher courts give a wrong decision and over pass the important factors of
the case due to one reason or the others.

Qs. Legislation: Supreme and Subordinate legislation, Delegated legislation, Reasons for
the Delegated legislation and Safeguards against eh Delegated legislation. Rights and
Duties: Theories of Right; Elements of a legal right; Classification rights.

Ans. Legislation is that source of law which consists in the declaration of legal rules by a
competent authority. It is such an enunciation or promulgation of principles as confers upon
them the force of law. It is such a declaration of principles as constitutes, legal ground for their
recognition as law: for the future by the tribunals of the state.

Meaning

The term 'legislation' is derived from two Latin words, meaning law and latum meaning to make,
put or set. Etymologically, legislation means the making or the setting of law.

Definition

According to Salmond: "Legislation is that source of law which consists in the declaration of
legal rules by a competent authority."

According to Gray, legislation means "the formal utterances of the legislative organs of the
society".

According to Holland: "The making of general orders by our judges is as true legislation as is
carried on by the Crown." Again, "
 49

in legislation, both the contents of the rule are devised, and legal force is given to it by acts of the
sovereign power which produce written law.

Supreme and Subordinate Legislation

According to Salmond, legislation is either supreme or subordinate. Supreme legislation is that

which proceeds from the sovereign power in the State. It cannot be repealed, annulled or
controlled by any other legislative authority On the other hand; subordinate legislation is that
which proceeds from any authority other than the sovereign power. It is dependent for its
continued existence and validity on some superior authority. The Parliament of India possesses
the power of supreme legislation. However, there are other organs which have powers of
subordinate legislation.

What is subordinate legislation?

Under the general law, the term ‘subordinate legislation’ is often used to refer to a legislative
instrument made by an entity under a power delegated to the entity by the Parliament. It can be
necessary for legislative power to be delegated for any of the following reasons:

• to save pressure on parliamentary time

• the legislation is too technical or detailed to be suitable for parliamentary considerations.

• to deal with rapidly changing or uncertain situations

• to allow for swift action in the case of an emergency.

Salmond refers to five kinds of subordinate legislation.

(i) Colonial: As regards subordinate legislation in the colonial field, the powers of self-
government entrusted to the colonies and other dependencies of the Crown are subject to the
control of the imperial legislature which may repeal, alter or supersede any colonial enactment.
However, it is to be noted that after the passing of the Statute of Westminster of 1931, the
Dominion Legislatures have been given the power to make any law they please. No law passed
by them after the Act of 1931 can be declared inoperative or void on the ground that it is
repugnant to the law of England or any Act of Parliament. Every Dominion legislature has the
power to repeal or amend any law.

(ii) Judicial: In the same way, certain delegated legislative powers are possessed by the
judicature. The superior courts have the power of making rules for the regulation of their own
procedure. This is judicial legislation in the true sense of the term, differing in this respect from
the so-called legislative action of the courts in creating new law by way of precedent. It is a true
form of legislation although it cannot create new laws by way of precedents.
 50

(iii) Municipal: Municipal authorities are also allowed to make bye-laws for limited purposes
within their areas. Offences against these bye-laws are punishable on conviction by summary
process by fines. The range of subjects dealt with is immense: to take the commonest, we may
note building, advertisements, care of the sick (hospitals, vaccination, infectious diseases),
cleanliness of dwelling-houses, housing of the working classes, town-planning schemes,
nuisances, scavenging and cleansing, police, rating, education, traffic, highways, burials, and the
conduct generally of persons in public places. All these matters and their many analogs in local
government; count for no less in the daily lives of ordinary citizens than the enactments of
Parliament. The far off dignity of the House of Commons, though to the instructed it may
symbolize the majesty of the Constitution, to the plain law abiding man is but a name compared
with the immediate discipline of magistrates, policemen, and inspectors.

(iv) Autonomous: Sometimes the State allows private persons like universities, railway
companies, etc., to make bye-laws which are recognized and enforced by law courts. Such
legislation is usually called autonomic. The railway company may make bye-laws for the
regulation of its undertaking. Likewise a university may make statutes for the government of its
members. Autonomic law and conventional law distinguished Conventional law is the law which
has its source in the agreement of those who are subject to it. Agreement is a law for those who
make it, which supersedes supplements or derogates from the ordinary law of the land. Eg.
Articles of association of a company, Articles of partnership. There is a close resemblance
between Autonomic law and conventional law but there is also a real difference between them.
The creation of each is a function entrusted by the state to private persons. But conventional law
is the product of agreement and. therefore is law for none except those who have consented to its
creation. Autonomic law on the contrary is the product of a true form of legislation.

(v) Delegated Legislation: Another kind of subordinate legislation is executive legislation or

delegated legislation. It is true that the main function of the executive is to enforce laws but in
certain cases, the power of making rules is delegated to the various departments of the
government. This is technically called subordinate or delegated legislation. Delegated legislation
is becoming more and more important in modern times.

Delegated legislation is a kind of subordinate legislation. Gen-erally, the ‘delegated legislation’

means the law made by the executive under the powers delegated to it by the supreme legislative
authority. The term ‘delegated legislation’ has two meanings :-

1. Firstly, it means the exercise of power that is delegated to the executive to make rules.

2. Secondly, it means the output or the rules or regulation etc. made under the power so given
Reasons for Delegated Legislation In modern times, delegated legislation has become imperative
and inevitable due to the following reasons:-
 51

1. Want of time.—The Parliament is so much occupied with matters concerning foreign policy
and other political issues that it has no time to enact social legislation in all its details. Therefore,
the Parliament frames only the broad rules and principles, and the departments are left to make
rules and to fill in details.

2. Technicality of the matters.—With the progress of the society things have become more
complicated and technical. All the legislators may not know them fully and, hence, they cannot
make any useful discussion on it. Therefore, after framing of the general policy by the
Parliament the government departmental or other bodies who know its technicalities are given
the power to lay down the details.

3. Emergency.—During the times of emergency quick and deci-sive action is very necessary,
and at the same time, it is to be kept confidential. The Parliament is not at all fit to serve this end.
Therefore, the executive is delegated the power to make rules to deal with situations. In England,
the Defense of Realm Act, 1914-15, the Emergency Powers Act,1920 and the Emergency
Powers (Defense) Act, 1939-40 are examples of such delegation during the First and Second
World Wars.

4. Flexibility.—To adapt the law according to future contingen-cies or any other adjustments
which are to be made in the Act in future can be done efficiently and effectively only when a
small body is given the powers to do so. Otherwise amending acts will become necessary and
that would cause wastage of time and money. Therefore, delegation to the departments becomes
necessary.

5. Local matters.—There are local matters which concern only a particular locality .or.
particular group of profession. Any legislation on these matters needs consultation with the
people of that particular locality group or profession. Thus regarding such legislation the
department are given powers to make charges and sales. In consultation department with the
person acquainted with and interested in it.

6. Experimentation.—Some Acts of Parliament provide for their coming into operation in

different localities on different dates according to their suitability, and as a matter of experiment.
For this purpose the ministers are given power to make orders about the date of its application.
Some other reasons.—In addition to what has been discussed above, there are many other
reasons also which have contributed to the growth of delegated legislation as a matter of course.
The change in the concept of state—its turning into a welfare state and, hence, plans and a flood
of social legislation, the close links between legislature and executive, the organisation of
political parties on new lines and emphasis on party discipline, etc., are some other such reasons.
These developments have made the cabinet as the exclusive driving force in matters of
legislation. The new scientific inventions, the development of nuclear weapons, the atmosphere
of cold war and tensions have created a. perpetual emergency. These all have added to the
 52

growth of delegated legislation. Now it has become an usual practice and has assumed the
present shape.

Danger of Delegated Legislation

Prof, Keith has, in great detail, described the dangers of the delegated legislation. Some
important of them are :

(1) Legislation may be passed in too skeleton a form and wide powers of action to make new
laws and to impose tax may be given.

(2) Parliament gets inadequate time to scrutinise the regulations.

(3) Some of the regulations attempt to deprive the subjects of re-course to the law courts for
protection. (4) The procedural advantages of the Crown against the subject (Crown Proceedings
Act, 1947 has improved the position to some extent but renders it difficult for him to obtain
redress for illegal actions done under the authority of delegated legislation. Keeton has
summarized the darken under two heads: (1) Excessive power may be delegated.

(2) The Government Departments may assume a wider legislative competence than what the
Parliament has granted. Safeguards against the Delegated Legislation

The following safeguards have been generally suggested by jurists against delegated
legislation:

Delegated legislation is controlled in the following ways:

(a) Parliamentary Control: Parliament has always general control. When a bill is before it, it
can modify, amend or refuse altogether the powers which the bill proposes to confer on a
minister or some other subordinate authority.

(b) Parliamentary Supervision: A second way of controlling delegated legislation is that laws
made under delegated legislation should be laid before the legislature for approval and the
legislature may amend or repeal those laws if necessary.

(c) Judicial Control: While parliamentary control is direct, the control of courts is indirect.
Courts cannot annul subordinate enactments, but they can declare them inapplicable in particular
circumstances. The rule or order frowned on by the courts, though not actually abrogated,
becomes a dead letter because in future no responsible authority will attempt to apply it. lf it is
applied, nobody will submit to it. Judicial control operates through the doctrine of ultra vires. All
delegated legislation is subject to the test whether or not it falls within the periphery of the power
thus conferred. If they do not, they are of no effect. Courts also possess certain direct power over
the acts and procedures of public authorities. The most important of them are called writs. The
other methods are injunctions and declarations.
 53

(d) Trustworthy Body: An internal control of delegated legislation can be ensured if the power
is delegated only to a trustworthy person or body of persons.

{e) Publicity: Public opinion can be a good check on the arbitrary exercise of delegated statutory
powers. Public opinion can be enlightened by antecedent publicity of the delegated laws.

(f) Expert's Opinions: In matters of technical nature, opinions of experts should be taken. That
will minimise the danger of vague legislation and "blanket" delegation. C.T. Carr has suggested
certain safeguards to avoid the evils of delegated legislation which is otherwise inevitable.
Delegation of legislative powers should be made to a trustworthy authority. The limits within
which the delegated powers are to be exercised should be defined clearly and the courts should
be given the power to declare any piece of delegated legislation as ultra vires, which is beyond
the power given to the authority concerned. The particular interests involved should be consulted
by the authority concerned at the time of issuing orders-in-council. There should be antecedent
publicity for delegated legislation and also for amending or revoking delegated legislation. The
rules and regulations made under delegated legislation should be put before the legislature before
they come to have the force of law. If they are not approved by the legislature they must lapse.
Expert advice should also be taken at the time of making rules and regulations.

Qs. Rights and Duties: Theories of Right; Elements of a legal right; Classification rights.

Ans. The development of society is credited to the constant evolution of law. When people come
into contact with each other, everyone has certain rights and duties obligated towards one
another. A right and duty are the pillars of law, and are hence consequently protected by it. Both
these concepts are intertwined.

Rights are those important conditions of social life without which no person can generally realize
his best self. These are the essential conditions for health of both the individual and his society. It
is only when people get and enjoy rights that they can develop their personalities and contributes
their best services to the society.

Definition

In simple words, rights are the common claims of people which every cultured society
recognizes as essential claims for their development, and which are therefore enforced by the
state.

According to Laski, “Rights are those conditions of social life without which no man can seek
in general, to be himself at his best.”

T. H. Green explained that “Rights are powers necessary for the fulfilment of man’s vocation
as a moral being.”
 54

3. Beni Prasad stated that “Rights are nothing more nor less than those social conditions which
are necessary or favourable to the development of personality”

Other moral theorists like Isaiah Berlin defines rights in terms of positive liberties and negative
freedoms. A positive right is an entitlement to; A right to free expression, for instance, entitles
one to voice opinions publicly. A negative right is a freedom from; Freedom of person is a right
to be free of bodily interference. Most rights are both positive and negative.

The Apex Court of India defined legal right in the case of State of Rajasthan v. Union of
India [AIR (1977) SC 1361]

“In strict sense, legal rights are correlatives of legal duties and are defined as interests whom the
law protects by imposing corresponding duties on others. but in a generic sense, the word ‘right’
is used to mean an immunity from the legal power of another, but in a generic sense, the word
‘right’ is used to mean an immunity from the legal power of another, immunity is exemption
from the power of another in the same way as liberty is exemption from the right of another,
Immunity, in short, is no subjection.”

Main features of Rights

I. Rights exist only in society. These are the products of social living.
II. Rights are claims of the individuals for their development in society.
III. Rights are recognized by the society as common claims of all the people.
IV. Rights are rational and moral claims that the people make on their society.
V. Since rights are here only in society, these cannot be exercised against the society.
VI. Rights are to be exercised by the people for their development which really means their
development in society by the promotion of social good. Rights can never be exercised
against social good.
VII. Rights are equally available to all the people.
VIII. The contents of rights keep on changing with the passage of time.
IX. Rights are not absolute. These always bear limitations deemed essential for maintaining
public health, security, order and morality.
X. Rights are inseparably related with duties. There is a close relationship between them
“No Duties No Rights. No Rights No Duties.” “If I have rights it is my duty to respect the
rights of others in society”.
XI. Rights need enforcement and only then these can be really used by the people. These are
protected and enforced by the laws of the state. It is the duty of a state to protect the
rights of the people.

Elements of a Legal Rights

According to Sir John Salmond, each legal right has 5 essential elements –
 55

The Person of Inherence – Person of Inherence means the subject matter . in simple terms it
means who the right is vested. There can be no right without a subject. The person of inherence
not only includes an individual but also society at large.

The Person of Incidence – the person of Incidence is a person who is under a duty to obey the
rights of another person. In general, it means if the person has committed the breach of his duty
then the other has the right against him.

Contents of the Right – Contents of Rights include that the person is under obligation to
perform an act.

The subject matter of Right – It is something to which the act or omission relates, that is the
thing over which a right is exercised. This may be called the object or subject-matter of the right.
Some writers, although argue that there are certain rights which have no objects.

Title of the Right – Salmond has given the fifth element also, that is, “title”. He says that “every
legal right has a title, that is to say, certain facts or events by us by which it was acquired from its
former owner”

Theory of rights

1. The Theory of Natural Rights:

The theory is based on the assumption that certain rights belong to man by nature. John Locke
was its main exponent. The sociological school has given them a new significance. They regard
natural rights as immunities and freedoms of man which are highly conducive to perfect living in
society. The theory is criticized on the ground that rights cannot exist prior to state.

2. The Historical Theory of Rights:

According to this theory, rights are the product of history. These are found in ancient customs
and traditions. The theory is criticized on the basis that rights do not always exist in customs and
traditions. Rights change from age to age.

3. The Legal Theory of Rights:

According to this theory rights are created and maintained by the state. The political pluralists
object to this theory, because the state does not create rights but it only recognizes them.

4. The Social Welfare Theory of rights

The Utilitarian’s defend it. Utility is the measuring rod of a particular right. The theory has its
appeal in the sense of justice and reason.

5. Idealistic Theory of Rights:

 56

The idealists deify the state which creates rights. The state has all claims against the individual
but the individual has no claims against the society. The theory has little appeal to reason or
logic.

Kinds of Legal Rights

In simple words, the court of law can enforce legal rights against persons and also against the
government. A legal right is an interest accepted and protected by law. Also, any debasement of
any legal right is punishable by law. Legal rights affect every citizen. Legal rights are equally
available to all the citizens without the discrimination of caste, creed & sex.

I. Perfect & Imperfect Rights

The perfect right has the following features:

I. It is recognized by law.
II. It is enforceable by law. So, in the case of breach of this right, a person may go to court
for enforcing this right.

Thus, all fundamental rights, viz. Right to equality, right to religion, etc. are perfect rights as
these are enforceable by law.

The imperfect right has the following features:

I. It is recognized by law.
II. It is not enforceable by law. This means that a person cannot go to court for the breach of
imperfect right.
III. All the time-bound claims or debts come under the category of imperfect rights.

II. Positive & Negative Rights

The basis of distinguishing right as positive or negative is the nature of correlative duty it carries
with it. Under Positive rights, the person has to perform some positive duty to fulfill this right.

Negative rights prevent a person to do some act, that is it corresponds to a negative duty.
Example: Right to life under article 21 of the Indian constitution is a negative right because it
prevents a person to kill another person.

III. Real & Personal Rights

Real right or right in- rem corresponds to the duty imposed upon the people in general. It is
available against the whole world in general. Example: Tort or crime is a real right.

Personal right or right in-persona is available against a particular person & it corresponds to duty
the duty imposed upon a particular person. Therefore, the personal right generally arises out of
contractual obligation. Example: breach of contract is a personal right.
 57

IV. Proprietary & Personal Rights

A proprietary right is available with respect to a property that is it relates to the owner & his
assets. The assets must have some monetary value. Example: the right to ownership of property,
Right to patent, Right to goodwill, etc.

A personal right is related to a person’s life i.e. his reputation or standing in the society. These
rights promote a person’s well being in society & have no economic value. Example: Right to
life.

V. Public & Private Rights

The rights which are vested in a person by state or govt. or constitution is called public rights.
Example: Right to vote, Right to use public parks, etc.

Private rights are connected with private individuals or persons. Example: A contract entered
into by two people gives rise to private rights to them.

VI. Inheritable & Uninheritable Rights

Inheritable rights can be passed from one generation to another, i.e. this right survives even after
the death of its owner. Example: A son is a legal heir to the property of his father after his death.

Uninheritable rights die with the death of its owner. Example: All personal rights are
uninheritable rights.

V. Right in repropria & Right in realiena

A person possesses Right in repropria with respect to his own property. He can use, dispose of,
destroy, modify or exclude others from his property. Thus, this right gives a person, absolute
ownership over the property.

Right in realiena is the right in the property of another person. Example: Right of way over the
neighbor’s field. So, it is not an absolute right.

Rights guaranteed by the Indian Constitution

The Constitution of India has guaranteed certain rights to the citizens of India which are known
as Fundamental Right which is considered to be the most important rights. If these rights get
violated then the person has the right to move to the Supreme Court of India or The High Court
for enforcing rights. Following rights are guaranteed by the Court.

1. Right to Equality (Article 14)

2. Right to freedom (Article 19)
3. Right against Exploitation (Article 23 and 24)
4. Right to Freedom of Religion(Article 25)
 58

5. Right to Life (Article 21)

6. Right to Constitutional Remedies (Article 32)

Duty

A duty is an obligatory act a person has to perform in favour of another person. If the person has
breached his duty and infringed anyone right then he has to suffer consequences arisen from the
breaching the right many prominent jurists also defined duty in the following manner

Keaton – A duty is an act which should be enforced by the state in preserving the rights given to
the people and also in order to protect the interest of the people.

Salmond – A duty is an act which every citizen have obliged to perform, in furtherance of
protecting the rights of the other people.

A duty is of two kinds – 1. Moral and 2. Legal

Classification of Duties

Duties are classified under the following categories –

Primary and Secondary Duties – A primary duty which is independent of any other duty and
does not have to depend upon other duties. On the other hand secondary duty which is also
known as a remedial duty which depends on other duties.

Positive and Negative Duties – Duties which is prescribed by Law is Positive Duty and which is
prohibited by the Law is called the Negative duty.

Absolute and Relative Duties – Austin has classified duties into absolute and relative. Relative
duties are that duty which is related to some right and absolute rights are those which does not
relate with any right. Austin also given classify absolute rights –

I. Self-regarding duties such as a duty not to commit suicide or not to consume drugs or
liquor, etc.
II. Duties towards society e.g. a duty not to commit a nuisance.
III. Duties towards other than human beings such as duty towards God or animals, birds, etc.
IV. Duty towards the sovereign or the state.

Duties enriched under Indian Constitution

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

1. To respect the provisions of Constitution and respect the National Flag and National
Anthem;
2. To safeguard the sovereignty and integrity of India;
 59

3. To follow the noble ideals of national struggle

4. To defend the country and contribute to national service when called
5. To preserve the national heritage of the country ;
6. To promote and maintain the harmony of brotherhood amongst people of India.
7. To protect the dignity of women
8. To protect the natural habitat and including forests, lakes, rivers, and wildlife;
9. To protect public property and to avoid violence;
10. To contribute to the development of the nation in all spheres.

A comparative study between Fundamental duties and Fundamental rights

Fundamental Rights and Fundamental Duties both emanate from the Constitution and the
difference therein lies between the connotation of the terms ‘Rights’ and ‘Duties’

A Fundamental right is guaranteed to all citizens and is enforceable by the law if any of the
Fundamental rights of an individual is violated then the person has the right to move in the court.
Therefore, an individual right to free speech, education, shelter et al are your fundamental rights
– impregnable, untouchable and unfettered (subject to reasonable restraints in the interest of
national security, public order, decency, morality, etc). Therefore, in the concept of rights, it can
be said that they are legally recognizable.

Fundamental duties, on the other hand, are not legally enforceable. It the duty of the states and
individuals to perform their part of duty for the welfare of the society. So the duty to preserve
your heritage, to respect national symbols, to keep your surroundings clean et al is a duty which
one cannot have redress against in the Courts but in good faith is expected to follow to ensure a
well-functioning society. Therefore, it can be said that the duty is moral in nature, they are no
sanction if one does not perform their duty but if the rights are violated then the there are legal
sanction of infringing one right of enjoying.
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UNIT-IV

Qs. Person: The nature of personality, Natural Persons; Status of Dead Persons, Unborn
Child, and Animals; Corporation as a legal person, Evolution of corporate personality in
England and India.

Ans. Personality in the philosophic sense means the rational substratum of a human being. In law
it means a right and duty bearing unit. Personality should be distinguished from humanity.
Humanity means only the natural human beings but personality has a technical meaning and it
includes inanimate objects also. Thus personality is wider than humanity. Sometimes, humanity
and personality coincide and sometimes, they do not. In the same way there are legal persons
who are not human beings, such as an idol or a corporation.

Meaning

The term person is derived from Latin word persona which means a mask worn by actors playing
different roles in a drama. In modern days it has been used in a sense of a living person capable
of having rights and duties. Now it has been used in different senses in different disciplines.

Definition

Savingy has defined person as the subject or bearer of right. But Holland has criticised this
definition on the ground that persons are not subject to right alone but also duties. He says: the
right not only resides in, but is also available against persons. There are persons of incidence as
well as of inherence.

Kelson rejected the definition of personality as an entity which has rights and duties. He has also
rejected the distinction between human beings as natural persons and juristic persons. He says
the totality of rights and duties is the personality; there is no entity distinct from them. However,
Kelson’s view has been criticised for the reason that in law natural person is different from legal
persons who are also capable of having rights and duties and constitute a distinct entity.

Salmond’s definition seems to be more correct than the earlier definitions. In the words of
Salmond: “So far as legal theory is concerned, a person is any being whom the law regards as
capable of rights and duties. Any being that is so capable is a person, whether a human being or
not, and no being that is not so capable is a person even though he be a man.”

Salmond further explains that the extension of the conception of personality beyond the class of
human beings is one of the most noteworthy achievements of the legal imagination.

Natural and legal persons:

Natural persons mean human being. Legal persons mean beings and things which are treated as
persons by law. Thus ‘legal person' includes those things which are treated in the same way as
human beings for the legal purposes.
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Natural persons:

In ancient times, in some societies, the persons declared ‘outlaws' were not considered as persons
in the eye of law, and therefore, to kill them was not homicide. In ancient Hindu law, persons
having certain physical disabilities were considered as disqualified to inherit property. (Impotent
persons and outcastes blind and deaf: as well as mad men, idiots, the dumb, and those who have
lost a sense or a limb). Lunatics and infants have only a restricted legal personality. The legal
personality granted to human beings begins at birth and ends with the death.

A natural person is legally defined as a living human being. A natural person is a being, to whom
the law attributes personality in accordance with reality and truth. Natural person is a human
being who is regarded by law as having rights and being bound by duties. A human being must
satisfy two conditions in order to be a natural person in law, namely, he must be a living human
being and he must be recognized by the state as person so he must not be a slave in the absolute
control of his master or otherwise civilly dead as a monk who has renounced the world.

Feature of Natural person

I. A natural person is a human being and is a real and living person.

II. He has characteristics of the power of thought speech and choice.
III. Unborn, dead man and lower animals are not considered as natural persons.
IV. The layman does not recognize idiot, company, corporation, idol etc. as persons.
V. He is also a legal person and accordingly performs their functions
VI. Natural person can live for a limited period i.e. he cannot live more than 100 years.

Status of different Natural personalities

Legal Status of Unborn Person

A child in mother’s womb is by legal fiction regarded as already born. If he is born alive, he will
have a legal status. Though law normally takes cognizance of living human beings yet the law
makes an exception in case of an infant in ventre sa mere.

Under English Law

a child in the womb of the mother is treated as in existence and property can be vested in its
name. Article 906 of the French Civil Code permits the transfer of property in favour of an
unborn person. But, according to Mohammedan Law a gift to a person not in existence is void. A
child in the womb of the mother is considered to be a person both under the law of crimes and
law of torts.

Indian law

Under section 13 of the Transfer of Property Act, property can be transferred for the benefit
of an unborn person by way of trust. Similarly section 114 of the Indian Succession Act, 1925
 62

provides for the creation of prior interest before the unborn person may be made the owner of
property – corporeal or incorporeal, but no property will be deemed to be vested in the unborn
person unless and until he is born alive. In Hindu Law also a child in the womb of the mother is
deemed to be in existence for certain purposes. Under Mitakshara law, such a child has interest
in coparcenary property.

Under section 315 of the Indian Penal Code, the infliction of pre natal injury on a child, which
is capable of being born alive and which prevents it from being so could amount to an offence of
child destruction. Section 416 of Criminal Procedure Code provides that if a woman sentenced to
death is found to be pregnant, the High Court shall order the execution of the sentence to be
postponed, and may if it thinks fit, commute the sentence to imprisonment for life. It has been
held that in a Canadian case that a child could succeed in tort after it was born on account of a
deformity which was held to have been caused by a negligent pre natal injury to mother.

Though there is no Indian case on this point but it is expected that a liberal view would be taken
on this line and a child would be getting the right to sue. In an African case it was held that a
child can succeed in tort after it is born on account of a deformity caused by pre injury to his
mother.

In India as well in England, under the law of tort an infant cannot maintain an action for injuries
sustained while on ventre sa mere. However, in England damages can be recovered under Fatal
Accidents Act, 1846 for the benefit of a posthumous child. In short, it can be concluded that an
unborn person is endowed with legal personality for certain purposes.

Legal Status of Dead Man

Dead man is not a legal person. As soon as a man dies he ceases to have a legal personality.
Dead men do not remain as bearers of rights and duties it is said that they have laid down their
rights and duties with their death. Action personalis moritur cum persona- action dies with the
death of a man. With death personality comes to an end. A dead man ceases to have any legal
right or bound by any legal duty. Yet, law to some extent, recognises and takes account of the
desires or intentions of a deceased person. Law ensures a decent burial, it respects the wishes of
the deceased regarding the disposal of his property, protects his reputation and in some cases
continues pending action instituted by or against a person who is now deceased.

As far as a dead man’s body is concerned criminal law secures a decent burial to all dead men.
Section 297 of Indian Penal Code also provides punishment for committing crime which
amounts to indignity to any human corpse. The criminal law provides that any imputation aganist
a deceased person, if it harms the reputation of that person if living and is intended to hurt the
feeling of his family or other near relatives, shall be offence of defamation under sec 499 of the
Indian Penal Code.
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The Supreme Court in the case of Ashray Adhikar Abhiyan v Union of India has held that
even a homeless person when found dead on the road, has a right of a decent burial or cremation
as per his religious faith.

In English Law as well as in Muslim Law the violation of a grave is a criminal offence. As
regards reputation of a dead man, it is to some extent protected by criminal law. Under Roman
law any insult to the body of the deceased at the timing of funeral, gave the deceased’s heir a
right to sue for the injury as it is treated as insult to the heir. Under the law of France the relative
of the defamed deceased can successfully sue for damages, if they can prove that some injury it
suited from the defamation. Thus, it is not the rights and the hence the personality of the
deceased that the law recognises and protects but it is the right and interest of living descendants
that it is protected.

Regarding the property of the dead man the law carries out the wishes of the deceased example, a
will made by him regarding the disposal of his property. This is done to protect the interest of
those who are living and who would get the benefit under the will. This is subject to the rule
against perpetuity as well as law of testamentary succession. Indian Transfer of Property Act,
section 14 incorporates the rule against perpetuities, which forbids transfer of property for an
indefinite time thereby making it alienable. Section 14 of the TPA restrains the power of
creating future interests by providing in the rule against perpetuities that such interest must arise
within certain limits. The rule of perpetuity looks to the date at which the contingent interest will
vest, if it vests at all, and hold it to be void as “perpetuity if this date is too remote”.

Similarly, section 1 and 4 of the Indian Succession Act, 1925 forbids the creation of a will
whereby vesting of property is postponed beyond the lifetime of one or more persons and the
minority period of the unborn person.

Legal Status of Lower Animals

Law does not recognise beasts or lower animals as persons because they are merely things and
have no natural or legal rights. Salmond regards them mere objects of legal rights and duties but
never subjects of them. Animals are not capable of having rights and duties and hence they are
not legal persons.

In Ancient Law

However, in ancient times animals were regarded as having legal rights and being bound by legal
duties. Under the ancient Jewish Code ‘if an ox gore (wound with a horn) a man or woman
resulting in his or her death, then the ox was to be stoned and its flesh was not to be eaten. There
are many examples in ancient Hebrew Codes where cock, bulls, dogs and even the trunk of trees
which had fallen on human beings and killed him were tried for homicide.’
 64

There are similar instances in India as well. In number of cases found that, animals were sued in
courts in ancient India. There is popular story about the Mughal Emperor Jehangir in which the
bullock was presented before the Emperor. However these instances are merely of historical
interest and have no relevance in modern law.

In Modern Law

Modern Law does not recognise animals as bearer of rights and duties. Law is made for human
beings and all things including animals are for men. No animal can be the owner of property
from a person to an animal. Animals are merely the object of transfer and are a kind of property,
which are owned and possessed by persons. Of course, for the wrongs done by animals the
master is held liable. This duty or liability of the master arises due to public policy and public
expediency. The liability of the master is strict and not a vicarious liability. The animal could be
said to have a legal personality only if the liability of the master is considered vicarious.

In certain cases, the law assumes the liability of the master for an animal as direct while in other
cases, liability is not direct. Thus, for keeping animals that are not of dangerous nature the master
is not liable for the damage it may do, unless he knows that it was dangerous. The knowledge of
the defendant must be shown as to their propensity to do the act in question. However, if the
animal is of ferocious nature, the master is responsible for the wrong if he shows negligence in
handling it. The owner of animals of this class is also responsible for their trespasses and
consequent damage. If a man’s cattle, sheep or poultry, stray into his neighbour’s land or garden,
and do such damage as might ordinarily be expected to be done by things of that sort, the owner
is liable to his neighbour for the consequences.

A charitable trust can be created for the maintenance of stray cattle, broken horses and other
animals. Such a trust is created with a view to promote public welfare and advancement of
religion. However, if the charitable trust is created only for the benefit of a single horse or a dog,
it cannot be regarded as public charitable trust for instance in Re Dean Cooper Dean v. Stevens a
test of charged his property with the payment of annual sum of trustees for the maintenance of
his horses and dogs. The court held that it is not valid trust enforceable in any way on behalf of
these animals. It was observed that the trustee could/spend the money if they pleased in the
manner desired by the testator. But if they did not spend the money it would not be considered a
breach of trust and in such a situation the money so spent will be of the representatives of the
testator.

Similarly, a bequest for the maintenance of the testator’s favourite black mare a bequest of an
annual sum for the maintenance of testator’s horses and hounds for a period of 50 years if nay
those animals should so long live a trust for the benefit of a parrot during the life of two trustees
and survivor of them have all been held valid.

Legal person
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Legal persons are real or imaginary beings to whom personality is attributed by law by way of
fiction where it does not exist in fact. Juristic persons are also defined as those things, mass of
property, group of human beings or an institution upon whom the law has conferred a legal status
and who are in the eye of law capable of having rights and duties as natural persons.

Law attributes by legal fiction a personality of some real thing. A fictitious thing is that which
does not exist in fact but which is deemed to exist in the eye of law. There are two essentials of a
legal person and those are the corpus and the animus. The corpus in the body into which the law
infuses the animus, will or intention of a fictitious personality. The animus is the personality or
the will of the person. There is a double fiction in a juristic person. By one fiction, the juristic
person is created or made an entity. By the second fiction, it is clothed with the will of a living
being. Juristic persons come into existence when there is in existence a thing, a mass of property,
an institution or a group of persons and the law attributes to them the character of a person. This
may be done as a result of an act of the sovereign or by a general rule prescribed by the
government.

A legal person has a real existence but its personality is fictitious. Personification is essential for
all legal personality but personification does not create personality. Personification is a mere
metaphor. It is used merely because it simplifies thought and expression. A firm, a Jury, a bench
of judges or a public meeting is not recognised as having a legal personality. The animus is
lacking in their case.

Feature of Legal Person

Legal person is being, real or imaginary whom the law regards as capable of rights or duties.

Legal persons are also termed “fictitious”, “juristic”, “artificial” or “moral”.

In law, idiots, dead men, unborn persons, corporations, companies, idols, etc. are treated as legal
persons.

The legal persons perform their functions through natural persons only.

There are different varieties of legal persons, viz. Corporations, Companies, Universities,
President, Societies, Municipalities, Gram panchayats, etc.

Legal person can live more than 100 years. Example: (a) the post of “American President” is a
corporation, which was created some three hundred years ago, and still it is continuing. (b) “East
India Company” was established in sixteenth century in London, and now still is in existence.

Legal personality is a fictitious attribution of personality by law, a sort of personification of law.

Legal persons being artificial creations of law can be of as many kinds as the law devises.
Continental jurisprudence recognizes three kinds of legal persons, namely:
 66

i. Groups or series of men, usually called corporations: The first class of legal persons
consists of corporations, namely those which are constitutes by the personification of
groups (e.g., corporation aggregate) or series of individuals (e.g., corporation sole). In
State Trading Corporation of India v. Commercial Tax Officer, the Court observed
that corporation are undoubtedly legal persons but is not a citizen within the meaning
of Article 19 of the Constitution and cannot ask for the enforcement of fundamental
rights granted to citizens under the said article.
ii. ii. Institutions like hospitals, libraries etc.: The second class is that in which
corporations or object selected for personification not a group of series of persons but
an institution is. The law may, if it pleases, regard a church, a hospital or a university
or a library as a person. That is to say it may attribute personality not to any group of
persons connected with the institution, but to the institution itself. In the tradition and
practice of English Law, legal personality is not limited by any logical necessity or
indeed by any obvious requirement of expediency to the incorporated bodies of
individual persons. In India, institutions like university, temple, public authorities,
etc. are considered as legal persons. Under Indian law, trade unions and friendly
societies are legal entities. They own properties and suits can be brought in their
names though not regarded as corporations.
iii. Funds or estates like the estates of deceased persons: The third kind of legal person is
that in which the corpus is some fund or estate devoted to special uses, a charitable
fund for example, or a trust estate, or the p English Law

In England, there are two main types of juristic persons:

1. Corporation Sole.
2. Corporation Aggregate.

Corporation sole:

Corporation sole is defined as an ‘incorporated series or successive persons'. The concept

of corporation sole seems to have come into existence somewhat accidentally, and comparatively
late. It came into being to solve the problem of the devolution of land held by ecclesiastics in
right of their ecclesiastical office.

Later on, the same theory was applied on certain public offices. In some cases this was done
through special statutes. A very popular example of corporation sole, in England, is the King. He
is so by common law. There is a distinction between the King as an individual and the King as
the head of the state. In the later capacity, he is corporation sole. The King never dies and the
Kind is dead, long live the King are based upon the King's position as corporation sole.

The distinction between the two capacities of the King is drawn in the Crown Proceedings Act,
1947, Section 40, Common wealth has created another peculiarity in the personality of the King.
 67

The Crown is considered as the symbol of the unity of the Commonwealth nations. It means that
for some purposes the Crown is regarded not as one person, but as unity or combination of many
personalities, each representing one part of the Commonwealth (except the countries which are
republics). Other examples of Corporation Sole are the Post Master General of England, the
Solicitor of the Treasury etc. They have been made Corporation Sole by special statutes. In
Continental law, there is no such concept as Corporation Sole.

Corporation aggregate:

corporation aggregate means an incorporated group of co-existing persons. The personality is

conferred upon groups by law. In the thirteenth and the fourteenth centuries, in England, there
were various kinds of groups such as ‘boroughs' and ‘merchant guilds'. Though they possessed
corporate characteristics, they had no legal personality. Even in the time of Bracton the concept
of the corporate personality had not occurred to jurists. It was in the sixteenth century that the
idea of incorporation took birth and it developed very rapidly.

By the time of Coke it was established that the corporations cannot arise at their own initiative.
There must be some constitutive act or authority to create a corporation. They could be created
either under common law, or by a Royal Charter, or by a statute, or by prescription. Thus, in
every case there must be some lawful authority for their incorporation.

A large number of corporations were made in Britain during this time and afterwards. These
corporations played a very important part in the development of British Empire. They received
some setback due to South Sea Bubble. The stupendous growth of commerce and industry in
19th century again caused growth and development of corporations.

The first Companies Act was passed in 1862. According to this Act, persons could combine
together for the purposes of commerce etc. by fulfilling the conditions given in the Act. In this
way incorporation takes place. These corporations are legal persons. The Interpretation Act,
1889, Section 19 says; the expression ‘persons' shall unless the contrary intention appears
include any body of persons corporate or unincorporated.roperty or a dead man or of a bankrupt.

Concept of Legal Personality In India

In ancient India, like Roman law, the concept of legal personality was not clearly understood nor
was there any necessity for it. The coparcenary system of Hindu law may be considered to be
more or less, a corporation. The head or the karta of the family acted in a representative capacity
and in this capacity he sued and could be sued. There were many kinds of groups also where
some members of it acted in a representative capacity. But they cannot be said to be legal
persons in the modern sense of the term.

Corporations:
 68

However, in ancient Hindu system some form of corporation was recognised. We find its
evidence in certain text, as: (Among heretical sects, trading corporations, trade guilds, unions,
troops, tribes and other associations-the King should maintain the conventions, as also in regard
to fortified towns and the open country-Narada, 10, 2). (Whatever is obtained by a member of
the corporations shall belong to all in common-Bhrihaspati).

Idols and Funds: Idol was considered to be a juristic person. It owned property. It could sue and
could be sued. A fund dedicated for a religious purpose was also of the nature of a legal person.
It has certain right and received certain protection from law, such as the property dedicated to a
math. Now a brief account of the position of legal personality in modern times shall be given.

State: state is a juristic person. It can sue and can be sued. Article 300 of the Indian Constitution
provides; The Government of India may sue or be sued by the name of the Union of India and
the Government of State may sue or be sued by the name of the State ..... In Civil Procedure
Code, 1908, provision has been made for making parties n suits by and against the State.

Idol: idol is a juristic person and as such it can hold property (Pramatha Nath v. Pradyumn,
(1925) L.R. 52). But it is treated as a minor and Pujari or somebody else acts on its behalf as its
guardian.

Mosque: mosque is not a juristic person. In a Lahore decision (Maula Buksh v. Hafiz-ud-din,
AIR 1926 Lah. 372) it was held that a mosque was a juristic person and could sue and be sued,
but in the Masjid Shahid Ganj Case (1940, 67 I.A. 251) it was decided by the Privy Council that
suits cannot be brought by or against mosques, for they are not ‘artificial' persons in the eye of
the law. However, they left the question open whether a mosque could for any purpose be
regarded as ‘juristic' person. 'In Masjid Shahid Ganj v. Shiromani Gurudwara Prabandhak
Committee, (AIR 1938 Lah. 369) a Full bench of the High Court held that a mosque was juristic
person. This decision was taken in appeal to the Privy Council which confirmed the said
judgment.

Guru Granth Sahib

In Gurudwara Prabandhak Committee v. Somnath Das, (2000) 4 SC 146, the Supreme

Court stating the historical background and sanctity of Guru Sahib held it to be a juristic person.
It was stated: The last living Guru, Guru Gobind Singh, expressed in no uncertain terms that
henceforth there would not be any living Guru. The Guru Granth Sahib would be the vibrating
Guru. He declared that henceforth it would be your Guru from which you will get all your
guidance and answer. It is with this faith that it is worshipped like a living Guru. It is with this
faith and conviction, when it is installed in any gurudwara it becomes a sacred place of worship.

Sacredness of the gurudwara is only because of placement of Guru Granth Sahib in it. This
 69

reverential recognition of Guru Granth Sahib also opens the hearts of its followers to pour their
money and wealth for it. It is not that it needs it, but when it is installed, it grows for its
followers, who through their obeisance to it, sanctity themselves and also for running the (anger
which is an inherent part of a Gurudwara.

Companies, associations and groups: Companies, associations and many other kinds of groups
are legal persons. They have been expressly so recognised in a number of statutes. For example,
Transfer of Property Act, 1882 (Sec. 5, para II) says; in this section living person includes a
Company or association or body of individuals, whether incorporated or not.

Companies and Registered Societies: Companies incorporated in accordance with the Indian
Companies Act are juristic persons. An incorporated company has a separate existence and the
law recognises it as the legal person separate and distinct from its members.

This new legal personality emerges from the moment of incorporation and from that date the
persons subscribing to the memorandum of association and other persons joining as members are
regarded as a body corporate or a corporation aggregate and this new person begins to function
as an entity. Societies registered under Societies Registration Act, 1860 are also held to be legal
person. Sections 2, 5, 6, 8, 9, 10, 11 and 13 of the said Act make it amply clear. Such a society
has a separate name and can hold property through trustees, it can sue and be sued and any
person having a claim against it must look to its property and not that of its members for
satisfaction of his dues (Ganga Sahai v. Bharat Bhan & Others, AIR 1950 All. 480).

Thus, a society registered there under even if not a corporation in the full sense is certainly a
legal person. However, all kinds of societies cannot be registered under the Societies
Registration Act 1869 Section 20.

The societies that can be registered are charitable societies the military orphan funds or societies
established at the several Presidencies of India, societies established for the promotion of the
science, literature or the fine arts, for instruction, the diffusion of useful knowledge, the political
education, the foundation or maintenance of laborers or reading rooms for general use among the
members or open to the public, or public museums and galleries or paintings and other works or
arts, collections of natural history, mechanical and philosophical inventions, instruments, or
designs.

Groups, Personalities by statutes: Groups, such as registered trade unions and friendly
societies also are legal entities. They own properties, and suits can be brought in their names.
Apart from these there are associations, institutions and many kinds of autonomous bodies upon
whom legal personality has been conferred by statutes.

Company not a citizen: However, an incorporated company or a group recognised as juristic

entity is not necessarily a citizen of India though all the members constituting it may be Indian
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citizens. It has been held in S.T. corp. of India v. Commercial Tax Officers, AIR 1963 SC
1811,

Qs. Possession: Concept of Possession, Rights of Possessor and kinds of Possession.

Ans. Possession means physical control over an object or thing. Though in law it is difficult to
define the concept of possession because there is no precise definition of possession. It is factual
as well as a legal concept. But, we can say that it is the physical custody, control or occupancy of
any object with a definite intention of ownership.

Meaning:

Possession" literary means physical control over a thing or an object. It expresses the closest
relation of fact that can exist between a thing and the person, who possess it. In law, possession
means it includes not only physical control over a thing but also an intention to exercise that
physical control. Example: A has an article in his hand. In other words, he is in possession of that
article. The person who is in possession is called a 'Possessor'. In human life, consumption of
material things is very essential and it would be Impossible without the position of the material
things. Therefore the concept of possession is of utmost practical importance in human life.

Definition:

The concept of possession is though basic and essential in human life, it is a difficult to define.
There is no fixed or precise definition of possession because it is legal as well as factual concept.
Supreme Court in Superintendent Remembrancer Legal Affairs vs Anil Kumar, AIR 1980 SC
52, held that it is impossible to work out a completely logical and precise definition of
Possession uniformly applicable to all situation in the context of all the statutes.

It is very difficult to define the term Possession. Some Jurists have given different definitions.

John Salmond:

Salmond defines Possession as, "possession is the continuing exercise of a claim to the Exclusive
use of an object."

Savigny:

Savigny defines Possession as, "intention coupled with physical power to exclude others from
the use of material object.

Salmond criticized Savingy's definition and ground that Savingy committed an error by
including the element of physical power in his definition

O.W. Holmes:
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Holmes defines Possession as, "To gain Possession a man must stand in a certain physical
relation to the object and to the rest of the world, and must have certain intent."

Maine

Maine defines the possession as, "physical detention coupled with the intention to hold the things
detained as one's own.

Sir Frederick Pollock:

Sir Frederick Pollock defines Possession as, "In common speech a man is said to possess to be in
possession of anything of which he has the apparent control from the use of which he has
apparent power for excluding others."

Ihering:

The best among them is the definition given by Ihiring. According to him, "whenever a person
looked like an owner in relation to a thing, he had possession of it unless Possession was denied
to him by rules of law based on practical convenience."

Elements of Possession

From the above definition we could see in that possession has two essentials –

1) Actual power over the object possessed. i.e. corpus possessionis and

2) Intention of the possessor to exclude any interference from others. i.e. animus possidendi.

According to John Salmond, both corpus and animus must be present to constitute Possession.
Ownership is a legal concept whereas Possession is factual as well as legal concept.

The term CORPUS and the term ANIMUS, both the terms borrowed from the Roman Law.

Possession in Law and Fact

Possession has thus been divided into two categories which are as follows.

1. Possession in Fact
2. Possession in Law

Possession in Fact

It indicates physical possession of an individual and a thing.

For instance, if an individual has confined a parrot, he would be deemed to have possession of it
in as much as the parrot is in the possession of that man yet when the parrot escapes from the
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man then if it counterbalances freely then only he would have possession over it. Certain points
regarding possession, actually, must be painstakingly evaluated. They are as follows.

A. There are certain things over which an individual can’t have physical control.
B. The physical command over the item need not be continuous. For instance, I have my
jacket when I am wearing it, regardless I have possession of it when I take it off and hang
it on a pag when I rest. The fundamental idea is that I ought to be in a position to resume
power over it in the typical course at whatever point I so desire. In other words, physical
control may continue regardless of whether an individual relinquishes real control briefly.
C. In order to comprise possession actually, just having physical control of a thing isn’t
sufficient yet it must be joined by the ability to exclude others from the possession of it.
Be that as it may, a few legal scholars don’t consider the component essential for
possession.
D. In simple words, the relation between a person and a thing which he possesses is called
possession in fact or “de facto possession ”.

Possession in Law

Possession in law is likewise named as “de jure” possession. It has just been expressed that the
law secures possession for two clear reasons, in particular, which are as follows.

A. By conferring certain lawful rights on the owner

B. By penalizing the people who interfere with the possession as an individual or by making
him pay harms to the holder.

At whatever point an individual brings a suit for possession, the principal thing that the court
ascertains regardless of whether the plaintiff was some time ago in genuine possession of the
thing in debate. The facts demonstrate that in the more significant part of the real possession
which affirms legitimate possession yet there are numerous circumstances when an individual
does not have possession in law in spite of the fact that he is in real possession of the article.

In a legitimate sense, possession is utilized as a relative term. The law is by and large not worried
about the inquiry with respect to who has the best title; however, it is worried concerning which
of the gatherings before it has a superior title.

Type of possession

1) Corporeal Possession :Those things, which are having physical or material existence,
wherein direct relationship with the thing, are possible. for example, House has physical
existence which can be perceived by our senses. The possession in the house therefore is
Corporeal Possession. Therefore corporeal possession is the possession of material things,
movable as well as immovable such as the Car , book , pen, wristwatch, etc.
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2) Incorporeal Possession :It means Possession of immaterial or intangible things. These are
the things, which do not have physical existence and therefore cannot be perceived by our
senses. Therefore possession in respect of this thing is known as incorporeal possession. for
example - Copyright, Trademark, Patent, Goodwill etc .According to Salmond, corporeal
possession is Possession of an object whereas incorporeal possession is the possession of a right.

3) Mediate Possession :

It is the Possession of a thing through another, either through his friend, servant for agent. As the
thing remains, in possession with another, the possessor has lesser degree of physical control
over such things.

Illustration :

a) 'X' has a car, which he leaves with his driver. The possession of the driver will be immediate
whereas the Possession of 'X' will be mediate.

b) 'A' purchased a house through his agent and the agent got the possession. A's possession is
said to be the mediate possession.

4) Immediate Possession :

It is also called as Direct Possession. Direct or primary possession by a person over a particular
object, which acquires or gets directly or personally. In immediate possession, as the thing is in
possession of the possessor directly, he has higher degree of control over such thing. It means
that there is no other person holding the thing.

Illustration :

a) 'X' has a car and he keeps it in his garage, this constitutes immediate possession.

b) 'A' purchased a house and takes Possession of the property it is called direct or immediate
Possession.

5) Constructive Possession :

Constructive possession is not actual possession it is a possession in law and not possession in
fact. According to Pollock and Wright, it is a possession which arises only by the construction of
law.

Example : The delivery of the keys of a building.

6) Adverse Possession: It means holding the land on his own behalf of some other person. if
adverse possession continues peaceful and undisturbed for that number of years, he can claim
ownership and the true owner's right( ownership) gets extinguished.
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7) De facto Possession: De facto Possession exists where the thing is in the immediate
occupancy of a party. The person in de facto possession has the physical control of the thing to
the exclusion of others and has Animus and Corpus over the material object. De facto possession
may be described as actual Possession.

8) De jure Possession : De jure possession can be described as posssession in law. De jure

possession exists when person claims a thing as his own in natural normal legal manner by
occupying a thing without any dispute as to his legal right to possess and enjoy the thing. Legal
possession may exist with or without property in possession. In case of De jure possession it is
just possible that a man I have ceased to live in a house but without intending and to abandon it
for good as the owner of the house.

The possessor must have the physical power to ensure his exclusive use of the thing he
possesses. If one puts money into a box and locks it, he is said to be in possession of the same
until he is in possession of the box or the key to the box. The possession o f the same until he is
in possession of the box or the key to the box. The possession of the key or the box indicates the
intention of the possessor to the exclusive use of the money.

Qs. Ownership: Definition of Ownership, Rights of ownership, Classification of ownership

and Modes of Acquiring Ownership.

Ans. Ownership is linked with possession. Possession is the first stage of ownership. It means
for ownership possession is necessary. Possession and ownership both are two sides of the same
coin and one cannot exist without the other.

Ownership gives the full right over the thing. Ownership is ultimate and final right for disposing
the property. It means to transfer that property in any way. Ownership is a relation ship between
the person and the thing. For ownership there must be a thing and the owner of thing. The
concept of ownership was absent in the ancient society. There was also no concept of possession
too. Slowly and slowly as the society developed the concept of possession also developed. The
idea of ownership came into existence. So this way after the progress of the concept of
ownership the person became the full owner of his property.

Definition :- Before to define the ownership we have to discuss the various kinds of law :-

Roman Law:- As evident from history that the Roman Law was the first law in the world. It is
considered the ancient law. All concepts of law begin from the period of Roman society. Under
the Roman Law the concept of ownership is defined in the form of dominion that means to have
the right control of a thing. The concept of ownership developed in the form of a right over the
thing. Dominion is distinguished from possession. Possession means to have possession over a
thing but dominos means to have a right over the thing.
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Hindu law:- Hindu Law is also considered as the most ancient law in the world. In Hindu law
the concept of ownership also has been discussed. In Hindu Law ownership is said a ,
“According to Hindu Law ownership means a relationship between person and a thing. Person is
called owner and a thing is called property. Means a property which is in the control of a person
is his property.

Views of modern & western jurists

The western jurists like Austin, Holland and Salmond defined the concept of ownership.

Austin:- According to him ownership is the relationship which exists in between the person and
the thing.” This definition resembles with the definition under Hindu Law. Austin says that in
ownership a person has the following relations with the thing.

1.Indefinite Use :- It means to use that thing in any way whether to use it for agriculture or for
industry, residence but there is a restriction that one cannot use one’s property in such a way
which destructive in the living of others.

2. Un-restricted power of dispose:- Means to transfer that thing or property according to his
choice. He can sale or to mortgage even to give on lease or gift to anybody. But under art. 19(2)
of the Constitution reasonable restrictions can be imposed by the Govt., in the interest of public
policies.

3. Un-limited duration of time :- means the right of transfer of his property will remain always
in the name of owner. After his death it will go to his heirs so there is no time limits.

4. Domination :- It means to have control over the thing. For this purpose both elements of
possession corpus and animus should be there. If the conditions are there between person and
the thing and then the person is owner of that thing.

According to Holland: He defined the ownership as a plenary control of a person over a thing.
The definition also contains the following conditions :-

1. Possession 2. Enjoyment 3. Disposal.

According to Salmond:- Salmond defines ownership as a relationship between person and the
right. Right means to have a thing under possession. Thing always represents physical objects.
But right always represents a thing which is not in physical existence like copy right and
allowances are always thing which are called property. And which are not in physical existence.

Salmond has included all those right which are property in the concept of ownership. In view of
the above it is learnt that Austin and Holland definitions are not complete. But salmond is
completely perfect in his definition.
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Characteristics of ownership

An analysis of the concept of ownership, it would show that it has the following characteristics:

I. Ownership ma either be absolute or restricted, that is, it may be exclusive or limited.

Ownership can be limited by agreements or by operation of law.
II. The right of ownership can be restricted in time of emergency. For example, building or
land owned by a person can be acquired by the state for lodging army personnel during
the period of war.
III. An owner is not allowed to use his land or property in a manner that it is injurious to
others. His right of ownership is not unrestricted.
IV. The owner has a right to posses the thing that he owns. It is immaterial whether he has
actual possession of it or not. The most common example of this is that an owner leasing
his house to a tenant.
V. Law does not confer ownership on an unborn child or an insane person because they are
incapable of conceiving the nature and consequences of their acts.
Ownership is residuary in character.
VI. The right to ownership does not end with the death of the owner; instead it is transferred
to his heirs.
VII. Restrictions may also be imposed by law on the owner’s right of disposal of the thing
owned.
VIII. Any alienation of property made with the intent to defeat or delay the claims of creditors
can be set aside.

Kinds of ownership

There are various kinds of ownership which are as under :-

1. Corporal and Incorporeal ownership: Corporeal and incorporeal ownership also called
material and immaterial ownership. Corporeal ownership is the ownership of a material object
and incorporeal ownership is the ownership of a right. Ownership of a house, a table or a
machine is corporeal ownership. Ownership of copyright a patent or a trade mark is incorporeal
ownership.

2. Sole and co-ownership:- The general principal of ownership is that vested in one person only.
But some times it vested in many persons in other words two or more person have the right of
ownership. If only one person have right of ownership that known as sole ownership and where
two or more persons have the right of ownership then know as co-ownership.

3. Vested and contingent ownership:- Ownership is either vested or contingent it is vested

ownership when the title of the owner is already perfect. It is contingent ownership when the title
of the ownership is yet imperfect.
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4. Absolute and Limited ownership:- means owner is one in whom are vested all the rights
over a thing to the exclusion of all or when a person has an absolute right over his property
known as absolute ownership. When there are limitations on the user duration or disposal of
rights of ownership the ownership is limited ownership.

5. Legal and Equitable ownership:- Legal ownership is that which has its origin in the rules of
common law. Equitable ownership is that which proceeds from the rules of equity. Legal right
may be enforced in rem but equitable rights are enforced in personam.

Difference between possession & ownership

1. Possession is a primary stage of ownership which is in fact. Ownership is in right.

2. Possession does not give title in the property defacto exercise of a claims. While in ownership
it gives title in the property dejure recognisation.

3. Possession is a fact. Ownership is a right and superior to possession.

4. Possession tends to become ownership. Ownership tends to realize itself in to possession.

5. Possession dominion corpus and animus are necessary. Ownership they are not necessary
because law gives full rights.

6. Transfer of possession is comparatively easier. Ownership most of the cases involves a

technical process i.e. conveyance deed etc.

7. Possession is nine points of law. Ownership always tries to realize itself in possession i.e.
complete thing.

Modes of acquiring of ownership

Public Grant is the administrative method of acquiring public lands, such as homestead
settlement, free patent and sales patent.

Private Grant is the voluntary transfer or conveyance of privately owned property by an

owner, such as by sale or donation. It is the transfer of title to land by the owner himself or his
duly authorized representative to another by mutual consent. The Consent of the grantor is an
essential element.

Voluntary Transfer of Private Grant is the process by which a land is transferred with the
consent and conformity of the owner such as by sale or donation.

Involuntary Alienation or Involuntary Grant is the process by which a land is taken against
the consent of the owner, such as expropriation proceedings, execution of judgment, tax sales
and foreclosure. This method of transfer does not require the consent or cooperation of the owner
of the land, since this is usually carried out against his will.
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Descent or Devise (Descent) is acquired by virtue of inheritance, which requires a degree of

relationship. (Devised) In devise, succession need not be in favor of a relative. Title to the
property is transferred by way of will executed by the Testator. Title by descent may be acquired
by virtue of hereditary succession to the estate of a deceased owner. To be an heir, it requires
certain degree or relationship with the decedent. In the case of devise, however, succession need
not be in favor of a relative. Even a stranger may acquire title by devise if appropriate disposition
has been made in his favor by the testator in the latter’s will.

Reclamation is the filling of submerged land by deliberate act of the Government. In the
Philippines, there exists no such grant, express or implied, to private landowners. It is only the
government that can assert title to reclaimed land.However,the government may declare it
property of the adjoining owners and as an increment thereto only when it is no longer necessary
for public use.

Accretion is the process by which a riparian land gradually and imperceptively receives addition
made by the water to which the land is contiguous. However, this law cannot be invoked for
application to cases where the accretion is caused by action of the bay which is a part of the sea,
since such alluvial formation along the seashore is part of the public domain and, therefore, not
open to acquisition by adverse possession by private persons.

Art. 457. To the owners of lands adjoining the banks of rivers belong the accretion which they
gradually receive from the effects of the current of the waters. (336)

Prescription is when one acquires ownership and other real rights through the lapse of time in
the manner and under the conditions laid down by law. It is a mode of acquisition of title through
continuous, open, adverse possession in the concept of an owner for the period fixed by law.