Discuss the theory of Punishment this theory believes in the philosophy of "an

eye for eye" and " a tooth for a tooth"

Answer : OBJECTS OF CRIMINAL
JUSTICE OR THEORIES OF REFORMATIVE THEORY OF
PUNISHMENT: PUNISHMENT:

The objects of criminal justice or the various Reformative punishment tries to check the
theories of punishments are as follows: commission of crimes by bringing about a
change for the better in criminal's character.
1.DETERRENT THEORY OF Criminologists believe that criminal tendency
PUNISHMENT is a disease. Just as a disease can be cured in
its early stages, so first or young offenders
2. RETRIBUTIVE THEORY OF
can be cured of their tendency to commit
PUNISHMENT
crimes by confinement and suitable treatment
3. PREVENTIVE THEORY OF in reformatories.
PUNISHMENT
EXPIATORY THEORY OF
4. REFORMATORY THEORY OF PUNSIHMENT:
PUNISHMENT
The great religions preach the maxim that 'to
5. EXPIATORY THEORY OF understand all is to forgive all'. Therefore,
PUNISMENT. divine justice requires that those who repent
for their act or Omission and commission
DETERRENT THEORY OF should be forgiven on the basis of 'Father
PUNISHMENT: forgive him for they know not' principle. The
Hindus in the ancient India and the Christians
The primary theory of punishment is to deter adhered to this aspect of punishments. This
people from committing crimes. The idea is expiation by way of Denance was a common
not to punish the wrong doer only but other and an effective method of punishment
should also learn a lesson that committing a according to old Hindu and Christian
crime leads to painful consequences. An jurisprudence.
exemplary punishment should be given to the
criminal so that others may learn a lesson
from him.

DETERRENT THEORY OF
PUNISHMENT:

The primary theory of punishment is to deter

people from committing crimes. The idea is
not to punish the wrong doer only but other
should also learn a lesson that committing a
crime leads to painful consequences. An
exemplary punishment should be given to the
criminal so that others may learn a lesson
from him.

PREVENTIVE THEORY OF
PUNISHMENT:

According to this theory, the object of

criminal justice is preventive punishment. It
means that the punishment should be
preventive or disabling, that is the offenders
should be prevented from committing a crime
or they should be disabled.

RETRIBUTIVE THEORY OF
PUNISHMENT:

According to the followers of this theory, the

purpose of criminal justice is vengeance. If
one person has done something wrong then
he must be dealt in the similar manner. Thus
 including the element of physical power in be lawful. If it is lawful then it is legal
his definition. possession. i.e. possessio-juri.
Define Possession..What are the types of
Possession:: O W. Holmes: Holmes defines Possession as, * Operation of law: A third mode of the
"To gain Possession a man must stand in a
Answer : "Possession" literary means certain physical relation to the object and to acquisition of possession is by operation of
physical control over a thing or an object. It the rest of the world, and must have certain law. It takes place when by the operation of
expresses the closest relation of fact that can intent." law goods are removed from the possession
exist between a thing and the person, who of one person to the other. For example,
possess it. Maine. Maine defines the possession as, when a person dies, the things in his
"physical detention coupled with the possession pass to his personal
In law, possession means it includes not only intention to hold the things detained as one's representatives.
physical control over a thing but also an own.
intention to exercise that physical control. Kinds of Possession
Example: A has an article in his hand. In Categories of Possession:
other words, he is in possession of that Following are the important kinds of
article. Possession is divided into two categories. possession.

The person who is in possession is called a a) Possession in fact and * Corporeal Possession: Those things, which
Possessor' are having physical or material existence,
b) Possession in law. wherein direct relationship with the thing, are
Definition: possible. For example, House has physical
Modes of acquiring possession:
existence which can be perceived by our
The concept of possession is though basic senses. The possession in the house therefore
There are 3 modes of acquiring possession
and essential in human life, it is a difficult to is Corporeal Possession. Therefore corporeal
define. There is no fixed or precise definition * Delivery: Delivery completes voluntary act possession is the possession of material
of possession because it is legal as well as from one person to another. The transferor things, movable as well as immovable such
factual concept. Supreme Court in gives actual position to the transferee. It is as the Car, book, pen, wristwatch, etc.
Superintendent Remembrancer Legal Affairs usually a lawful mode of possession.
vs Anil Kumar, AIR 1980 SC 52, held that it Delivery may be actual of constructive. In * Incorporeal Possession: It means
is impossible to work out a completely actual delivery the thing is physically Possession of immaterial or intangible things.
logical and precise definition of Possession delivered. These are the things, which do not have
uniformly applicable to all situation in the physical existence and therefore cannot be
context of all the statutes. perceived by our senses. Therefore
possession in respect of this thing is known
It is very difficult to define the term * Taking: Taking implies an Act exclusively as incorporeal possession. For example -
Possession. Some Jurists have given different on the part of the person who physically takes Copyright,
definitions. the Possession. It is acquisition of the
Possession without the consent of previous * Incorporeal Possession: It means
John Salmond: Salmond defines Possession Possessor. Possession of immaterial or intangible things.
as, "possession is the continuing exercise of a These are the things, which do not have
claim to the Exclusive use of an object" Modes of acquiring possession: physical existence and therefore cannot be
perceived by our senses. Therefore
Savigny: Savigny defines Possession as, There are 3 modes of acquiring possession
possession in respect of this thing is known
"intention coupled with physical power to
* Delivery: Delivery completes voluntary act as incorporeal possession. For example -
exclude others from the use of material
from one person to another. The transferor Copyright, Trademark, Patent, Goodwill etc.
object.
gives actual position to the transferee. It is
* According to Salmond, corporeal
It is very difficult to define the term usually a lawful mode of possession.
possession is Possession of an object whereas
Possession. Some Jurists have given different Delivery may be actual of constructive. In
incorporeal possession is the possession of a
definitions. actual delivery the thing is physically
right.
delivered.
* John Salmond: Salmond defines Possession
* Mediate Possession: It is the Possession
as, "possession is the continuing exercise of a * Taking: Taking implies an Act exclusively
claim to the Exclusive use of an object." on the part of the person who physically takes of a thing through another, either through his
the Possession. It is acquisition of the friend, servant for agent. As the thing
Savigny: Savigny defines Possession as, Possession without the consent of previous remains, in possession with another, the
"intention coupled with physical power to Possessor. It is the possession without the possessor has lesser degree of physical
exclude others from the use of material consent of the Possessor. Sometimes it is said control over such thing.
object. to be unilateral act. Transferee acquires the
possession without the knowledge or consent Illustration:
Salmond criticized Savingy's definition and
of the former Possessor of the thing. It is
ground that Savingy committed an error by a. 'X' has a car, which he leaves with his
usually possessio-civilis. It may or may not
driver. The possession of the driver will be
immediate whereas the Possession of 'X' will there is only one conception. which is
be mediate. possession in fact.

1. 'A' purchased a house through his agent * Salmond's Theory

and the agent got the possession. A's
possession is said to be the mediate Salmond denied that conception of
possession. possession in fact and possessions in law are
two different conceptions and observed that
b. Immediate Possession: It is also called as there is only one conception, which is
Direct Possession. Direct or primary possession in fact.
possession by a person over a particular
object, which acquires or gets directly or * Holland's Theory
personally. In immediate possession, as the
Holland's theory of possession is founded on
thing is in possession of the possessor
preservation of peace in society. In his view,
directly, he has higher degree of control over
the predominant motive that has induced the
such thing. It means that there is no other
law to give protection to possession was
person holding the thing.
probably a concern for the preservation of
Theories of Possession peace. Possession connotes respect for
rightful claim of a person.
1. Savigny's Theory of Possession

Savigny founded his theory of possession on

the text of Roman jurist Paul and emphasised
that possession has two basic elements,
namely,

* Corpus Possessionis, an

* Animus Domini..

By corpus, he meant effective physical

control of the thing, that is, immediate
physical power to exclude any foreigh
agency's interference by the possessor.

The animus in possession signified mental

element or conscious intention to hold the
object or thing as owner against all others.
Savigny conceived that there can be no
possession by fraud or force, is unlawful.

* Ihering's Theory of Possession

Thering's theory of possession appears to be

more practical and realistic. He justified
protection of possession under Roman law
and said, "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."

Thus, Ihering was more practical in approach

and did not insist on presence of animus as an
element of possession. He considered animus
only as a supplemental element for
possession.

* Salmond's Theory

Salmond denied that conception of

possession in fact and possessions in law are
two different conceptions and observed that
 Consistency

A Custom must be in consistency with the

law and should form the basis of law
Q..No..5) Define Custom: Essential
Elements of Custom:: Continuity

Answer : *Customs are known as the earliest A Custom must be a continuous and should
source of law and they form the basis of the not be interrupted.
English common law system They are
basically the cultural practices which have Theories of Custom as a Source of Law
backing of obligation and sanctions just by
Historical Theory
virtue of the widespread practice and
continue presence. Custom contains its own legitimacy, since it
would not exist at all except if some profound
Meaning and definitions of Customs
needs of the general population or some local
John Salmond nature of societal needs offer validity to it.

"Custom is the embodiment of those Analytical Theory

principles which have commended
Austin was the main proponent of the
themselves to the national conscience as
Analytical theory. For him, Customs did not
principles of justice and public utility."
have any legally binding force in themselves.
C.K. Allen Their legal character is always subject to the
assent of the Sovereign. For him, customs
C.K. Allen defines custom as "legal and were merely reflection of law, and were not
social phenomenon growing up by forces 'real law'.
inherent in society-forces partly of reason and
necessity, and partly of suggestion and
imitation."

J.L. Austin

"Custom is a rule of conduct which the

governed observe spontaneous and not in
pursuance of law settled by a political
superior."

The Essential of a Valid Customs in

Jurisprudence

The essential of a valid customs are as

follows:

Reasonability

The Custom must be in conformity with

conformity with basic morality, justice,
health, public policy, If it is not reasonable in
its origin or practise, it cannot be considered
a valid custom

Conformity with Statute Law

It Must be clear and unambiguous so to what

the custom is and how it is practised.

Certainty

It must be clear and unambiguous as to what

the custom is and how it is practised. A
custom can only hold up in a court of law
when it is not indefinite or uncertain.
 unborn child, but this usually requires a trust
arrangement where the property is held for
Discuss the Idea of Legal personality and the benefit of the child if they are born alive.
examine the status of Unborn person
Protection from harm: Some laws may
Answer : * The concept of legal personality provide criminal penanties for harming a
is fundamental to understanding who or what pregnant woman in a way that could injure
can hold rights and duties within a legal the fetus, even if the fetus is not considered a
system. Here's a breakdown of the idea and legal person.
the specific status of unborn persons:
Abortion laws: The legal status of an unborn
Legal Personality: person is most heavily debated in the context
of abortion laws, where different jurisdictions
Definition:
have varying views on when a fetus gains
Legal personality signifies the capacity of an legal rights or personhood.
entity to possess legal rights and obligations.
Important factors to consider:
It's the recognition by law that an entity can
be a subject of legal relations. Stage of development:

Essentially, it's what allows someone or Some legal arguments may consider the stage
something to "stand" before the law. of fetal development when determining the
extent of legal protection.
Scope:
Jurisdiction:
Traditionally, natural persons (human beings)
are the primary holders of legal personality Laws regarding the legal status of an unborn
person vary significantly between countries.
However, legal systems also extend this
and states.
status to artificial persons, such as
corporations, companies, and certain other
entities.

The core of legal personality is the ability to

have rights and duties, to sue and be sued,
and to own property.

Legally, an unborn person is not considered a

"person" with full legal rights, meaning they
cannot directly exercise rights like owning
property or suing someone; however, in
certan situations, legal systems recognize the
concept of a "potential person" within the
womb, allowing for some legal protections
depending on the jurisdiction and specific
circumstances, usually contingent on the
child being born alive.

Key points about the status of an unborn

person:

Not a legal person: Under most legal systems,

a fetus in th womb is not considered a legal
person with full rights until they are born
alive.

Legal fiction: Some legal systems use the

concept of "nasciturus pro jam nato habetur"
(a person not yet born is considered as
already born) to grant certain rights to an
unborn child, like the ability to inherit
property if born alive.

Property inheritance: In some cases, laws

allow for property to be transferred to an
 founder of sociological approach of
jurisprudence in America
Briefly explain Roscou Pound's Social
Engineering Theory:: (2) Sociological school studies law in action
and not in books. All the jurists of this school
Answer : * The sociological school devotes study law in relation to society. This
itself to the study of law as social approach emphasis the practical aspect of
phenomenon and tries to examine the law.
consequences of law in civilized societies.
According to this school law is mainly (3)According to this school, the main
concerned with the social purpose. This function of law is to fulfil the needs of
school thinks that social needs give birth to society, social requirements are accomplished
law, that is, law must fulfill the needs of by law. Law is also a Social instrument for
society. maintaining law and order in the society.
Paton is of the view that law a social
Salmond says that, the chief concern of machinery for securing order in the
sociologist is "not with the rules themselves community.
but with the extent to which the rules fulfill
their purposes, and the human consequences (4) Sociological jurists are more concerned
of the working of the legal machinery' with the working of law rather than the
abstract nature of law. Ehrlich was of the
CHARACTERISTICS OF SCHOOL view that the peopl should go the factories
ACCORDING TO ROSCOE POUND: and find our how law works there in order
ascertain actual functioning of law.
Roscoe Pound speaks of four characteristics
of the Sociological School of Jurisprudence (5) Sociological approach of Jurisprudence
which are given below: considers law as a social institution. This
school synthesises both the analytical and
This school looks more to the working of law
historical approach of law.
than to its abstract content.

This school regards law as social institution

which may be improved by intelligent human
effort and hold it their duty to discover the
best means of furthering and directing such
effort.

This school lays stress upon the social

purposes which law subserves rather than
upon sanction.

This school urges that legal precepts are to be

regarded more as guides to results which are
socially just and less as inflexible moulds.

The main and the common field of study of

the jurists who made such app (8 is the effect
of law and society on each other. This
approach takes law instrument of social
progress. Therefore it is concerned with
values Many jurist have pleaded that under
sociology of law the relation betwe positive
law and ideals of justice should also be
studied.

SALIENT FEATURES OF
SOCIOLOGICAL SCHOOL OF
JURISPRUDENCE:

According to this approach, law is the

product of social requirements. It means that
law fulfils needs of the society. The main
jurists of this school are Pound, Ihering,
Ehrlich and Duguit. Pound is accredited a the
What are the Legal Rights? Explain the 3. It is a capacity of creating, divesting or is one, which is available against a particular
kinds of Legal Rights.. altering rights. The proper term for right is individual only. A right in rem is a right
'power'. vested in some determinate person and
Answer : *10. Discuss the rights and Duties:: available against the world at large.
4. It means certain conditions, liberties and
Answer LEGAL RIGHTS privileges.

MEANING AND DEFINITION OF LEGAL 5. It is used as an adjective, which means

RIGHT: just. Thus it gives effect to moral right.

SALMOND'S VIEW: Salmond says that INGREDIENTS OF LEGAL RIGHT:

right is an interest, which is recognised and
protected by rule of right. Thus right is an From the above definitions it is clear that
interest, respect for which is a duty and right has the following ingredients:
disregard of which is a wrong. That means, it
must be such an interest, which casts duty on 1. It is an interest.
someone else to respect that interest. Some
2. This interest is recognised and protected by
one else must be under an obligation to do or
courts, that is, by rule of right or justice.
to abstain from doing something for the
person who has an interest. 3. This interest must be respected by
someone else, against whom, interest is
Thus, according to Salmond, legal right is an
claimed. That other person is under a duty.
interest recoghised and protected by a rule of
legal justice. In order that an interest may 4. If this interest is not respected then the
become a legal right, it may obtain not person who disregards it is said to have
merely legal protection but also legal committed a wrong.
recognition.
KINDS OF RIGHTS:
HOLLAND'S DEFINITION:
PERFECT AND IMPERFECT RIGHT:
Holland defines a legal right as " a capacity
residing in a man of controlling with the Perfect right means complete right. It means
assent and assistance of the State, the actions a right for which there is remedy also. If a
of others". breach is made of a perfect right, then the
aggrieved person has remedy and he can
AUSTIN'S VIEW: enforce the right.
According to Austin legal right is "a faculty POSITIVE AND NEGATIVE RIGHTS:
which resides in a determinate party or
parties by virtue of a given law and which The positive right is a right to be positively
avails against a party or parties other than the benefited while the negative
party or parties in whom it resides". He
observes that a person has a right when right is merely a right not to be harmed. The
another or others are bound or obliged by law positive right is a right to receive something
to do or forbear towards or in regard of him. more than one already has, such as my right
to the money in the pocket of my debtor
GRAY'S DEFINITION: while negative right is a right to retain what
one already has, such as my right to the
According to Professor Gray, "right is not the money in my pocket.
interest itself. It is the means by which the
enjoyment of the interest is secured". A negative right corresponds to a negative
duty and is a right that the person bound shall
protetite by law. refrain from some act, which would operate
to the prejudice of the person entitled. For
ROSCOE POUND'S VIEW ON LEGAL
example my right to keep my things in my
RIGHT:
possession is a negative right because all
According to Roscoe Pound, the word right other persons are to refrain from interfering
has five analogous meaning in legal sense: with my possession over my things.

1. Right means an interest, which is secured RIGHT IN REM AND RIGHT IN

and protected by law. PERSONAM

2. It means the recognised claims to make the A right in rem is one, which is available
interest effective. against the whole world. A right in personam
Write Short Notes:: (6 Marks) Natural Law, in legal philo-sophy, refers to across cultures, making it difficult to apply in
a theory that posits the existence of inherent, practice.
i..Animus Domini universal moral principles derived from
nature and discoverable through reason, Enforcement Challenges:
ii) Natural Law
which should form the basis of all human
Since natural law is not codified in a legal
iii) Ratio Decidendi laws, meaning that certain rights and values
system, it can be challenging to use it as a
are inherent in human nature and not solely
basis for legal decisions.
Answer : * "Animus domini" is a Latin legal dependent on societal constructs or legal
term that's crucial in discussions about enactments; essentially, it ar-gues that "just" Potential for Abuse:
possession and ownership, particularly within laws should align with these natural moral
legal frameworks. Here's a breakdown: principles. Some argue that natural law can be used to
justify oppressive laws by claiming they are
* Meaning: Key Points about Natural Law: aligned with higher moral principles.

* It translates to "the intention of the master" Universal Morality: Ratio Decidendi?

or "the intention of the owner."
Natural law proponents believe that there is a "Ratio decidendi" translates to "reason for
Essentially, it signifies the mental state of set of universal moral standards that apply to deciding." In the legal context, it justifies
someone who holds a thing, demonstrating all people, regardless of culture or society, arriving at a judgment on an issue. These
their intent to possess it as their own. and these standards can be understood hold the utmost importance in a judge's
through reason. discourse and are considered the crux. Case
Legal Significance:
laws or precedents have been and remain
Basis in Human Nature:
It's a key element in establishing legal globally recognized as law sources. The term
possession. Simply having physical control of These moral principles are considered to be 'precedent' originates from 'precedence,'
something ("corpus possessionis") isn't inherent in human nature, meaning they are signifying being of greater importance or
enough; there must also be the intention to part of our natural being and not created by coming before other things. 'Precedent'
own it. external forces. commonly denotes a previous action or
decision taken in similar circumstances as a
* Legal Significance: Opposition to Positive Law: reference or guidance for future actions. This
notion asserts that once a court has ruled,
It's a key element in establishing legal Natural law contrasts with "positive law" there's no need to alter it. The ratio decidendi
possession. Simply having physical control of which refers to laws created by human can be pinpointed by highlighting pertinent
something ("corpus possessionis") isn't authorities, arguing that if a law contradicts information while excluding less relevant
enough; there must also be the intention to natural law, it is not a true law and should not details. Another technique for discerning
own it. be followed. ratios is to narrow down the relevant
precedents for resolving the case.
* This concept is often discussed in relation Role of Reason:
to: Rules of Ratio Decidendi
Reason plays a crucial role in identifying and
Property law: Determining who has rightful understanding natural law principles. * There are two approaches for determining
possession of land or other assets. ratio decidendi. The first is the traditional
Core Principles of Natural Law:
procedure, while the second is the inversion
* Jurisprudence: Exploring the philosophical
* Do good and avoid evil: This is often test.
underpinnings of possession.
considered the primary principle of natural
* The traditional technique establishes
Property law: Determining who has rightful law, signifying the basic moral imperative to
specific principles that must be followed to
possession of land or other assets. act righteously.
comprehend what constitutes the ratio in any
Jurisprudence: Exploring the philosophical * Preservation of life: Protecting human life given verdict.
underpinnings of possession. is considered a fundamental natural right.
* The following are the guidelines:
Key points. Right to liberty: Freedom from arbitrary
* The ratio decidendi must be the result of a
constraints is another key natural right.
The concept is used to describe the mental legal dispute.
intention to hold a thing as an owner. Justice: The principle of fairness and
* The component must be required for
equitable treatment is central to natural law.
determining the list.
Criticisms of Natural Law:
It is often used in context to property law. * It must have been debated and decided after
Subjectivity: careful deliberation.
In essence, "animus domini" highlights the
importance of mental intent in legal matters Critics argue that identifying "natural" moral
of possession and ownership. principles can be subjective and may vary
Define Sources of Law:: Explain the
formal and material sources of Law::

Answer : * "Material sources of law" refer to

the underlying factors, social conditions, and
societal influences that shape the content and
substance of a legal system, essentially
providing the "matter" from which laws are
derived, but not directly constituting the law
itself; while "formal sources of law" are the
official channels through which laws are
created and expressed, like statutes, case law,
and constitutions.

Key points about material sources of law:

Not legally binding:

Unlike formal sources, material sources do

not have direct legal authority and cannot be
used in court to enforce a legal decision.