JURISPRUDENCE -MODULE I

Jurisprudence is the study and theory of law, particularly the philosophy of law. It
involves examining the fundamental principles and concepts of law, the role and function of
law in society and the methods and techniques used to interpret and apply the
law. Jurisprudence explores the nature of law, legal systems and legal institutions and seeks to
understand the social, political and cultural contexts in which law operates. It is a broad field
that encompasses a range of perspectives, including legal positivism, natural law, legal realism
and critical legal studies. Through the study of jurisprudence, scholars and practitioners seek
to develop a deeper understanding of the law and its role in shaping society.

Austin defines Jurisprudence as the “philosophy of positive law”------By positive law or

jus positivism, he means the law laid down by a political superior for controlling the
conduct of those subject to his authority
Holland has defined jurisprudence as the “formal science of positive law”.
Salmond defines jurisprudence as “the science of the first principles of the civil law.”
Kant defines jurisprudence as “the science of right.”
Roscoe Pond defines jurisprudence as “the science of law”.
Keeton defines jurisprudence as “Jurisprudence’ is the study and systematic arrangement
of the general principles of law.”
Jullius Stone defines jurisprudence as a “lawyer’s extraversion.”

NATURE OF JURISPRUDENCE

Jurisprudence is the study and theory of law and it plays a critical role in shaping our
understanding of the legal system. This field provides insights into the fundamental
principles and concepts of law, including the meaning of rights, duties, possessions,
property and remedies. By examining these concepts, jurisprudence helps us to better
understand the role and function of law in society.

One of the key aspects of jurisprudence is its focus on the sources of law. This field
provides insights into the various sources of law, including statutory law, common law and
constitutional law. Through the study of jurisprudence, scholars and practitioners seek to
develop a deeper understanding of how these sources of law interact with each other and
how they influence the development of legal systems over time.
Another important aspect of jurisprudence is its role in clarifying the concept of law itself.
While the law is often thought of as a set of rules and regulations, jurisprudence helps us
to understand that law is a complex and multifaceted concept that cannot be reduced to a
simple definition. Instead, the law is a dynamic and evolving concept that is shaped by a
range of social, cultural and political factors.

It is important to note that jurisprudence is not a substantive or procedural law. Rather, it

is an uncodified law that provides a framework for understanding the legal system as
a whole. Jurisprudence serves as the “eye of law,” providing insights into how the law
operates and how it can be used to achieve justice and fairness in society.

SCOPE OF JURISPRUDENCE

Jurisprudence is a field of study that encompasses a wide range of topics and disciplines. It
explores the relationship between law, culture and society and it seeks to understand the
fundamental principles and concepts that underpin the legal system. One of the key aspects
of jurisprudence is its focus on legal logic, which involves the study of legal frameworks,
bodies of law and the reasoning behind legal decisions.

However, the scope of jurisprudence goes beyond just the study of legal logic. It also
encompasses other fields, such as psychology, politics, economics, sociology and ethics.
This is because the law is not created in a vacuum, but rather is shaped by the social, cultural
and political context in which it operates. Therefore, jurisprudence seeks to understand how
these various fields intersect with the law and how they influence the development and
application of legal principles.

The study of jurisprudence is also important for understanding the nature of law itself. It
explores questions such as the origin of law, the need for law and the utility of law and
seeks to develop a deeper understanding of how the law operates in practice. This includes
studying various legal systems and traditions and how they have evolved over time.

Jurisprudence plays a crucial role in the development of legal systems and societies, as it
provides a theoretical framework for understanding the law and its underlying principles.
Through jurisprudence, we gain knowledge about the basic principles of law and the
 sources from which they are derived. It helps us to understand the legal systems of different
countries and the cultural, social and economic factors that shape them.

Furthermore, jurisprudence is not just a theoretical abstraction; it has practical implications

as well. It provides guidance to lawyers, judges and policymakers in making legal decisions
that are just and equitable. Therefore, the study of jurisprudence is essential for anyone who
wishes to understand the law and its role in society.

DIFFERENCE BETWEEN JURISPRUDENCE AND LEGAL THEORY

• Jurisprudence and legal theory are two related but distinct fields of study. Jurisprudence
is a broader field that encompasses the study of the nature of law and its principles,
while legal theory is a subset of jurisprudence that specifically examines the
philosophical content of the law.
• Jurisprudence covers a wider field of study compared to legal theory. It involves an
investigation of abstract, general and theoretical aspects of the law. In contrast, legal
theory seeks to clarify the most fundamental legal concepts and answer the question,
“what is law?”.

ANALYTICAL POSITIVISM OR ANALYTICAL SCHOOL OF JURISPRUDENCE

Analytical positivism (also known as the Analytical or Imperative school of law) is the most
important school of thought in jurisprudence. The analytical school of jurisprudence is one of
the most renowned contributions of Austin. It, therefore, explains law with reference to nature,
purpose, characteristic, and function of the same. This school describes the history and
philosophy of motion of emerging human thoughts on the aspect of law.

The positivist movement had been started at the beginning of the 19th decade because in this
period of time the natural theory of law was not considered as relevant due to the influence of
the scientific method on the concept of social sciences including jurisprudence.

Jurists of the school such as Austin, Hart, and others analyzed the same sense of law i.e. positive
law. They did not rely on the concept of ‘law ought to be’ instead considered the concept of
‘law as it is’ existing. They also considered that law contains no relation with moral principles.

The jurists were named ‘positivists’= school was known as ‘positivist school’.
Different positivists had the same objective and perspective in their thoughts where few basic
assumptions are followed by them which include;

• Sovereign or Grundnorm – As the law created by the authority.

• Relied on the ‘law as it is’ not on ‘the law ought to be’ – ignored morality and natural
law.
• Determined and encouraged the concept of sanction – sanction which was
substantive before the enforcement of laws.

Features of Analytical school of Jurisprudence

• Concerned with strictly so called i.e. what law is, not what it ought to be?.
• Law is not based upon idea of good or bad, it is based upon power of superior
• There is no moral law.
• Law and justice differs
• This school is reaction against natural law theories, which are based upon
rationalization or nature confined law or God and gave importance to ethical and moral
issues.

Jeremy Bentham (1748-1832)

Bentham is considered to be the founder of ‘positivism’ in the modern sense of the term. He
preferred to divide jurisprudence into ‘expository’ and ‘censorial’ jurisprudence. Expository or
analytical jurisprudence is concerned with law, it is without any regard to its moral or immoral
character. On the other hand censorial jurisprudence is concerned with ‘science of legislation’
that is what the law ought to be.

Bentham in his book ‘limits of jurisprudence defined’ said that its duty of state to provide
maximum happiness and maximum liberty. In other words he means to test every laws and
keep a check whether they are providing maximum happiness and liberty, leading to principle
of utility i.e. ‘Greatest Happiness of the Greatest Number of People’.

Bentham had defined law with the help of two important aspects such as;

• Law is “Happiness is the Greatest Good”: According to Bentham, the laws framed
must promote pleasure and decrease any kind of pain to human beings.
 • Law is the command of the sovereign: The concept of sovereignty came into
existence by Bentham before Austin would compose it. Bentham says the law is the
command given by the sovereign.

Bentham’s Philosophy of Individualism

The legal philosophy of Bentham is called “Individualism” because he was an individualist and
propounded that the law is to be made for the emancipation of the individuals and restraining
on their freedom.

Principle Of Utility

According to him the consequences of good and evil are respectively ‘pleasure’ and ‘pain. In
simple words, the basic thing which come under principle of utility i.e. pleasure and pain.
Principle of utility recognizes the role of pleasure and pain as human life.

Pleasure = ‘everything that is good’

Pain = ‘everything that is bad or evil’.

Therefore, keeping the consequences of good and bad in human life the principle approves or
dis-approves action on the basis of pleasure and pain. He believed that happiness of social order
is to be understood in the objective sense and it broadly includes satisfaction of certain needs,
such as need to be fed, clothed, housed etc. According to him, happiness changes its
significance in the same way as the meaning also undergoes changes with the changes in
societal norms.

Austin (1790 – 1859)

John Austin is the founder of the Analytical school and father of the English
Jurisprudence. He was born in 1790. He was elected to the chair of Jurisprudence at the
University of London in 1826. His lectures delivered in the London University were published
in 1832 under the title ‘the Province of Jurisprudence Determined’.

Austin defined law as ‘a rule laid down for the guidance of intelligent being by an intelligent
being having power over him’.

• Austin’s Definition of Law

“Law is a command of the sovereign backed by a sanction.”

LAW = COMMAND + SOVEREIGN + SANCTION

His notion was that where there is no sovereign, there is no independent political society and
vice versa is also applicable. For him, Law, was a set of rules established by men as politically
superior, or sovereign, to men as politically subject.

The fundamentals of his theory are: Command, Sovereign and Sanction.

Command: Commands are the rules or expressions of imposed by a superior authority

(by force or compulsion) on the Inferiors. The former is the sovereign which authorize
the rules of conduct of the latter, the general public.

The commands may be

• General Command = issued for the guidance of a whole community, or

• Particular command = issued for the guidance of a particular community/ Individual.

Austin emphasizes that only General Commands form laws and they must be lawful and
continuous.

• Sovereign: Sovereign is a source of law and every rule emerges from a sovereign. A
sovereign may be any individual or body of individuals, whom the politically
influenced mass of people habitually follow. However, he himself does not obey an
individually or body of individuals.
• Sanction: To ensure and administer justice the state, applies physical force as sanction.
Therefore, it is the sole crux of Positive Law. It instils fear of punishment in case one
disobeys the laws. Sanction is related to duty shaped by the command of a sovereign
authority and sanction becomes absolute necessity for enforcement of law.

Classification of Law by Austin:

(Austin theory of Imperative Law)

Austin separated law as improperly so-called and law properly so-called. He encourages
positive law only because he is a positivist.
He recognized that law can be set by both God (divine law) or by men to men, where law set
by God is regarded as ambiguous and misleading according to him and on the other hand laws
set by men to men is of three types;

• Laws set by political superiors to their inferiors – law properly so-called.

• Laws set by men who are not political superiors – positive morality.

Criticism:

Australians theory has been criticized by a number of jurist points of the criticism against
Austin theory of law which are as follows:-

1. Custom ignored:- As per Austin’s theory law is the command of the sovereign. Austin
mainly focuses on the commands that are given by the sovereign are the laws. But in
the earlier times, not the command of any superior but custom regulates the conduct of
the people. Some jurists are in favour of the customs as laws and they say that laws
are not the command of the sovereign but the custom followed by the people for a long
time. But Austin in his theory of law emphasized only the law as the command of the
sovereign and ignored the custom as a law.
2. Judge made law:- Austin in his theory has not provided any place for judge-made law.
In the course of their duty judges make law by applying precedents and interpreting the
law. Though an Austinian would say that judges act under the powers delegated to them
by the sovereign, therefore, their acts are the commands of the sovereign body, in
modern times, will deny that judge perform a creative function and Austin’s definition
of law does not include it.
3. As against the command:- Austin believes that the determination of human
superiority is the only law-maker and its commands are laws. But with other historic
jurists, Sir Henry Main criticized Austen’s theory of sovereignty and condemned it. Sir
Henry Maine believes that sovereignty does not exist in the determination of human
superiority. According to him, “a large population of influences, which we can call for
a lesser ethic, which permanently shapes, limits or prohibits the real direction of forces
by its sovereign”.
4. This theory makes the sovereign completely absolute:- This theory makes the
sovereign completely absolute, but in practice, it is not possible to be completely
 absolute. In the ancient and medieval era, there were absolute monarchs. But the
monarchs could not remain completely absolute in his actions and behaviour. They
were subject to ethics theory, code of conduct, and investigation of religion. If he tried
to violate established moral, ethical, and religious canons, he was in danger of facing
rebellion.
5. This theory is not even applicable to Europe:- Austin has claimed that the King-in-
Parliament is sovereign in England. But legally, this claim is not right because neither
the king nor the parliament can go to the extent of becoming completely absolute. The
reality is that the public is the ultimate source of power. It is public which empowers
Parliament.

Holland (1835-1928)

Holland is a follower of Austin. He followed the concept of the analytical approach of the study
of law which is thoughts of Austin and the same was carried further by him. He rejected
Austin’s thoughts on ‘Particular Jurisprudence’ by stressing that if the jurisprudence is science
then it is always general and universal but not particular.

His famous book is “The Elements of Jurisprudence”.

• According to Holland, Jurisprudence is

“the formal science of that relation of mankind which is generally recognized as having legal
consequences – the formal science of positive law”.

The important terms to be remembered here is:

• Formal: The jurisprudence concerns the human relation which is governed by the rules
of law.
• Positive Law: Holland deals with the law as it is or existing law and does not concern
with the law ought to be, which is the same as the concept of Austin.

Sir Thomas Erskine Holland (1835-1926) was a British jurist and a theorist of International
Law. According to him, the law governing the international community is at a ‘vanishing
point of jurisprudence’-- Holland believed that both jurisprudence and international law are
on the opposite sides of the spectrum and hence can never be met. The dictionary meaning of
‘vanishing point’ is a point of disappearance, cessation, or extinction. Usually a vanishing
point is a particular point where two parallel lines, on the same plain, intersect and since
Holland believed International Law not belonging to the same category as that of municipal
law, the former was considered to be vanishing. The following four, among many reasons
were cited as to back up his findings:

1. No sovereign authority to command;

2. There exists no sanctions if the rules are violated;

3. An absence of a judge or arbiter to decide international disputes;

4. International Law only followed as a moral courtesy by States.[2]

Salmond (1862 – 1924)

Salmond is a legal positivist and belongs to an analytical school. He says jurisprudence is a

science as same in the eyes of Austin and Holland. He has defined law in a unique way which
is different when it is compared to Austin.

Salmond’s famous book is “Jurisprudence or Theory of the law”.

Salmond’s Contribution to the Analytical school of jurisprudence

• According to Salmond, the law is “the body of principles recognized and applied by the
state in the administration of justice”. It means the law is rules which are acted by the
courts of justice. The final and true test of the adequacy of law is defined by the
enforceability of law in the courts of justice.
• According to Salmond, Jurisprudence is “the science of first principles of the civil law”.
• The civil law here is the law that is applied by the administration in the court of justice
and it is the first principle and the final test of the adequacy of law.
• Salmond’s definition of law has brought a drastic change in the thoughts of analytical
positivists.
• Inspired by him many realist jurists have considered law as it is and not law which
ought to be.

Salmond’s Criticism
 • Vinogradoff criticized Salmond’s definition of law, according to his law is to be
formulated precisely by applying it in a court of justice.
• Critiques also said that the definition is itself defective because on their thoughts law is
logically subsequent to the justice of administration.
• The definition of law is vitiated because when the rule has existed for the purpose of
applying it in the court of justice.
• The purpose of the law is not only justice but it also must be accepted universally.
• He has also narrowed the field of law according to the critiques.

Hans Kelsen (1881 – 1973)

Kelsen has contributed the pure theory of law to the analytical school of jurisprudence. He
also accepted the concept of law as normative in nature and not a natural science.

Hans Kelson was an Austrian jurist, legal philosopher, and political Philosopher belonging to
a legal positivism school of thought. Roscoe Pound was appreciated as Kelson’s “undoubtedly
the leading jurist of time.”

His famous book is “The Pure Theory of Law”.

Pure Theory of Law or Vienna School

Kelsen defines law as

“the body of norms which stipulates sanction”.

Here, the norm is a pattern or model, the definition says that a kind of directive by which a
certain act is permitted or authorized or commanded. His theory says to be pure because he
eliminates alien elements which make the structure of the legal system improper. According to
him, the law must be positive law.

According to Kelsen, Jurisprudence is “the study of a hierarchy of norms, the validity of each
norm depending on that of a superior norm ‘Grund Norm’.

For example– Constitution is our Grundnorm, all the other laws like IPC, CrPC, CPC, and
other laws check their validity from the Grundnorm which is Constitution. If in IPC any such
law made which is against the Grundnorm then they will become invalid.
His definition executes the relationship between the Grund norm and all other norms. For him
norm is a ‘rule of conduct’ and grund norm is the superior norm. The grund norm delegates
authority to inferior norms which derives their validity from the norms superior to themselves.

The validity of other inferior norms can be defined by testing against grund norm.

Key Features of Kelsen’s Pure Theory

1. Law as Science: Kelsen tried to present a theory that could be attempted to change Law
in science, a theory that could be understood through logic.
2. As a positive law: In the first paragraph of the pure theory of law, Kelsen introduces
his theory as a theory of positive theory. This principle of positive law is then presented
by Kelson as a hierarchy of laws that begins with one basic norm, i.e. Grundnorm ‘,
where all other norms are related to each other either being inferior norms.
3. Law “As it is”: Kelsen emphasized that analysis should focus on the law ‘as it is’ in
fact laid down, not as ‘it ought to be’.
4. Law and morality: Kelsen’s strict separation of law and morality is an integral part of
his pure theory of law.
5. The theory of law should be uniform: According to Kalsen, the theory of law should
be applied at all times and in all places.
6. Static Aspect of Law: Kelsey distinguished the static theory of law from the dynamic
theory of law. The static theory of law represented the law as a hierarchy of laws where
individual laws were related to each other either being inferior, the one to other, or
superior with respect to each other.

Kelsen’s Criticism

• The concept of Grundnorm is vague and creates confusion.

• His theory of him did not give importance to his practicality of it.
• He directly ignored morality and natural law.
• As he says his theory is pure and excludes improper elements in it but the critiques say
that it is not possible to maintain purity.

NATURAL LAW THEORY OF JURISPRUDENCE

There is no unanimity about the definition and exact meaning of Natural Law.
In jurisprudence = ‘Natural Law’ = rules and principles which are supposed to have originated
from some supreme source other than any political or worldly authority.

It symbolizes Physical Law of Nature based on moral ideals which has universal applicability
at all places and terms. It has often been used either to defend a change or to maintain status
quo according to needs and requirement of the time.

For example,

Locke used Natural Law as an instrument of change but Hobbes used it to maintain status quo
in the society.

The concepts of ‘Rule of Law’ in England and India and ‘due process’ in USA are essentially
based on Natural Law.

Natural Law is also the Law of Reason, as being established by that reason by which the world
is governed, and also as being addressed to and perceived by the rational of nature of man. It
is also the Universal or Common Law as being of universal validity, the same in all places and
binding on all peoples, and not one thing at Athens.

Lastly in modern times we find it termed as “moral law” as being the expression of the
principles of morality. The Natural Law denies the possibility of any rigid separation of the ‘is’
and ‘ought’ aspect of law and believes that such a separation is unnecessarily causing confusing
in the field of law. The supporters of Natural Law argue that the notions of ‘justice’, ‘right’ or
‘reason’ have been drawn from the nature of man and the Law of Nature and, therefore, this
aspect cannot be completely eliminated from the purview of law. It has generally been
considered as an ideal source of law with invariant contents.

Features of Natural Law:

• Natural Law is eternal and unalterable, as having existed from the commencement of
the world, uncreated and immutable.
• Natural Law is not made by man; it is only discovered by him.
• Natural Law is not enforced by any external agency.
• Natural Law is not promulgated by legislation; it is an outcome of preaching of
philosophers, prophets, saints etc. and thus in a sense, it is a higher form of law.
• Natural Law has no formal written Code.
 • Also there is neither precise penalty for its violation nor any specific reward for abiding
by its rules.
• Natural Law has an eternal lasting value which is immutable.
• Natural Law is also termed as Divine Law, Law of Nature, Law of God, etc. Divine
Law means the command of God imposed upon men.

Socrates (470 – 399 B.C.)

Socrates said that like Natural Physical Law there is a Natural or Moral Law. ‘Human Insight’
that a man has the capacity to distinguish between good and bad and is able to appreciate the
moral values. This human ‘insight’ is the basis to judge the law. Socrates did not deny the
authority of the Positive Law. According to him, it was rather the appeal of the ‘insight’ to
obey it, and perhaps that was why he preferred to drink poison in obedience to law than to run
away from the prison. He pleaded for the necessity of Natural Law for security and stability of
the country, which was one of the principal needs of the age.

Aristotle (384 – 322 B.C.)

According to him, man is a part of nature in two ways;

• Firstly , he is the part of the creatures of the God, and

• Secondly, he possesses insight and reason by which he can shape his will.

By his reason man can discover the eternal principle of justice. The man’s reason being the
part of the nature, the law discovered by reason is called ‘natural justice’.

Positive Law should try to incorporate in itself the rules of ‘Natural Law’ but it should be
obeyed even if it is devoid of the standard principle of Natural Law. The Law should be
reformed or amend rather than be broken. He argued that slaves must accept their lot for slavery
was a ‘natural’ institution. Aristotle suggested that the ideals of Natural Law have emanated
from the human conscience and not from human mind and, therefore, they are far more valuable
than the Positive Law which is an outcome of the human mind.

Natural Law in India

Hindu legal system is perhaps the most ancient legal system of the world. They developed a
very logical and comprehensive body of law at very early times. A sense of ‘Justice’ pervades
the whole body of law. But the frequent changes in the political system and government and
numerous foreign invasions, one after the other prevented its systematic and natural growth.
Under the foreign rule no proper attention could be paid to the study of this legal system. Many
theories and principles of it are still unknown, uninvest gated. However, some principles and
provisions can be pointed out in this respect.

According to the Hindu view, Law owes its existence to God. Law is given in ‘Shruti’ and
‘Smritis’. The king is simply to execute that law and he himself is bound by it and if goes
against this law he should be disobeyed. Puranas are full of instances where the kings were
dethroned and beheaded when they went against the established law.

This Human Law or ‘Positive Law’, therefore, must remain within the limits of that of which
it is a part. It means that Positive Law must conform to the Law of the Scriptures. Positive Law
is valid only to the extent to which it is compatible with ‘Natural Law’ and thus in conformity
with ‘Eternal Law’.

Modern Period

The Natural Law theory received a setback in the wake of 19th century pragmatism. The
profounder of analytical positivism, notably, Bentham and Austin rejected Natural Law on the
ground that it was ambiguous and misleading. The doctrines propagated by Austin and
Bentham completely divorced morality from law.

In the 19th century, the popularity of Natural Law theories suffered a decline. The ‘Natural
Law’ theories reflected, more or less, the great social economic and political changes which
had taken place in Europe. ‘Reason’ or rationalism was the spirit of the 18th century thought.
A reaction against this abstract thought was overdue. The problems created by the new changes
and individualism gave way to a collectivist outlook.

HISTORICAL SCHOOL OF JURISPRUDENCE

It may be defined as history of fundamental principles of a legal system. Historical school of

Jurisprudence argued that the law is the exaggerative form of social custom, economic needs,
conventions religious principles, and relations of the people with society. The historical school
follows the concept of man-made laws. ‘Law is formulated for the people and by the people’
means that the law should be according to the changing needs of the people. And everyone
understand their own need better than anyone else.
The followers of this school argued that law is found not made. The historical school doesn’t
believe and support the idea of the natural school of law which believe that the origin of law is
from superior authority and have some divine relevance.

Reasons for the Origin of Historical School of Jurisprudence

The Historical School believe that law is made from people according to their changing needs.
Habits and customs are the main sources of the Historical School of Jurisprudence. According
to Dias, Historical school arose as a reaction against the natural law theories.

• The reasons for the emergence of this school are:

• It’s a reaction against the natural law theories.: Natural school of law believes that
the law is originated from some divine power. Natural law is also called the Eternal
law. It exists since the beginning of the world. It is closely associated with the morality
and intention of God. Indian constitution has some relevance of the natural law in its
articles. Historical school of Jurisprudence focuses on the formation of law by people
not by some divine origin.
• It opposes the ideology of the analytical school of jurisprudence. : Analytical school
of jurisprudence is also called Austinian School. It is established by John Austin. The
subject matter of Analytical school of Jurisprudence is positive law. It focuses on the
origin of law the judges, state and legislators. Historical School laid emphasis on the
formation of law by people through customs and habits, not by the judges and superior
authority.
• Rationalism in Europe: the spread of the spirit of rationalism in European people was
the reason for the emergence of this school. This school emphasis on the development
of law, take into account the historical facts.

Montesquieu

According to Sir Henry Maine, the 1 st Jurist to adopt the historical method of understanding
the legal institution was Montesquieu. He laid the foundation of the historical school in France.
According to him, it is irrelevant to discuss whether the law is good or bad because the law
depends on social, political and environmental conditions prevailing in society. Montesquieu
concluded that the “law is the creation of the climate, local situation, accident or imposture”.
He was of the view that law must change according to changing needs of the society. He did
not establish any theory or philosophy of the relation between the law and society. He
suggested that the law should answer the needs of the place and should change according to
time, place and needs of the people.

One of the best-known works of Montesquieu was his book ‘The Spirit of laws’. In this book,
he represents his beliefs in political Enlightenment ideas and suggests how the laws are
required to modify according to the needs of people and society.

Savigny (1779-1861)

Savigny is regarded as a father of the Historical school. He was a German Philosopher, in

1810 he went to work as a professor at the University of Berlin. In 1803 he established his
reputation with a book The Jus Possessionis of the Civil Law.

The Law has source within the general consciousness of the people. He said that Law develops
like language and Law features a national character. Law, language, customs and government
haven’t any separate existence. There’s one force and power in people and it underlies all the
institutions. The law, language, develops with the lifetime of people.

• Savigny’s theory is often summarized as follows:

i. Law is found and not made.

ii. According to him, law is Volkesgeist.

Volkesgeist = Volkes + Geist i.e.

(People Consciousness) = (People )+ (Consciousness)

Therefore, people Consciousness is Law

i. That may be a matter of unconscious and organic growth. No efforts are needed to make
the law.
ii. Law cannot be of universal validity nor be constructed on the basis of certain rational
principles or eternal principles. Savigny argued that law is like the language having its
own national character. So, it can’t be universally applied and varies according to the
people.

Basic Concept of Savigny’s Volksgeist

Volksgeist means “national character”. According to Savignty’s Volksgesit, the law is the
product of general consciousness of the people or will. The concept of Volksgeist was served
as a warning against the hasty legislation and introduce the revolutionary abstract ideas on the
legal system. Unless they support the general will of the people.

Basically, Savigny was of the view that law should not be found from deliberate legislation but
should be made and arises out of the general consciousness of the people.

Criticism of Savigny’s theory

1. Inconsistency within the theory: He emphasized the national character of law, but at
the equivalent time he recommended a way how the Roman law are often adapted.
2. Customs not always supported on popular consciousness: Savigny’s view is whole
not perfectly sound, because many customs originated just for the convenience of a
powerful minority. Sometimes, customs completely against one another exist within
the different parts of the country which can’t be reflecting the spirit of the whole
community.
3. He ignored other factors that influence law: Another criticism against him was ‘so
occupied with the source of law that nearly forgot the stream’. The creative function of
the judge was also ignored by the Savigny’s theory.
4. Many things were unexplained: Certain traits, like mode of evolution and
development weren’t explained by the Savigny.

Maine favored legislation and codification of law, unlike Savigny.

Maine describes the development of law in four stages:

• Ruler as law maker

Rulers are believed to be acting under divine inspiration. And the laws are made on the
commands of the rulers. For example, Themistes of ancient Greek. The judgment of the king
was considered to be the judgment of god or some divine body. King was merely an executor
of judgments of God, not the law-maker.

• Custom
Then the commands of King converted into customary law. The custom prevails in the ruler or
majority class. Customs seems to have succeeded to the right and authorities of the king.

• Aristocracy stage

The knowledge & administration of customs goes into the hands of a minority, Due to the
weakening of the lawmaking power of the original law-makers like Priests the knowledge of
customs goes into the hands of a minority class or ordinary class. And the ruler is superseded
by a minority who obtain control over the law.

• Codification stage

In the fourth and last stage, the law is codified and promulgated.

Legislation is made up of 2 words:

LEGISLATION = LOGIS + LATIS i.e.

( Law Making) = (Law) + (Making)

Criticism:Maine is criticized for oversimplifying the nature and structure of early society for
the following reasons: Early society does not show an invariable pattern of movement from the
three-stage development of law – from personal commands and judgments of patriarchal rulers
through law as custom upheld by judgments to law as code. The so-called rigidity of the law
has repeatedly be challenged by contemporary anthropologists who are of the opinion that
primitive peoples were adaptable and their laws flexible.

SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

The main exponents of sociological jurisprudence are: Montesquieu, Auguste Compte, Albert
Spencer, Ihering, Ehrlich, Duguit, Roscoe Pound etc. The French thinker Auguste Compte is
regarded as founding the father of the sociological school of law.

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
progresses.

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.

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. For example Sati.

Background Of Sociological Jurisprudence

The factors which led to the establishment of sociological school are as follows:

• The 19th century witnessed a shift of emphasis from the individual to the society. This
happened as a result of the shocking consequences resulting from the Laissez faire
doctrine.
• The Historical School which was a reaction to the intense individualism of the
19th century by its emphasis on the Volkgeist spirit of the people – indicated that law
and the social environment in which it develops are intimately related. This idea was
worked out by the jurists of sociological school.
• Prior to the 19th Century matters like health, welfare, education etc were not the concern
of the state. In the 19th Century because of the adverse effects of laissez faire doctrine,
 the state became more and more concerned with numerous matters encompassing
almost all aspects of human life and welfare. This implied regulation through law,
which compelled legal theory to re-adjust itself so as to take account of social
phenomena.
• Also there was a dire need to study law not in near abstraction, but in its functional and
practical aspects. By this time the shortcomings of purely formal analysis (as
propounded by analytical jurists) were being felt. Therefore the Sociological school of
jurisprudence was established as a reaction against too much theorising of the law.
• Prior on account of economic and social conflict towards the beginning of 20th century
led to growing disbelief in the eternal principles of natural law of which had until now
placed an idea of harmony before the individual. To solve and bring harmony between
the people, a sociological school of thought was inspired.

These factors contributed to the Rise Of The Sociological School.

The main feature of Sociological school of law

• Sociological School of Law is emphasis more on the functional aspect of law rather
than its abstract content.
• They consider law as a social institution essentially interlinked with other scientists and
the direct impact of the law on society with its formation according to social needs.
• Sociological School of Law completely neglects positivism i.e. the command of
sovereign and also historical jurisprudence.
• Sociological jurists describe the perception of the law in different ways like the
functional aspect of law or defining the law in terms of courts rulings and decisions
with a realistic approach of law.

Montesquieu (1689-1755)

Montesquieu was the French philosopher and he paved the way of the sociological school of
jurisprudence. He was of the view that the legal process is somehow influenced by the social
condition of society. He also recognized the importance of history as a means for understanding
the structure of society. And explained the importance of studying the history of society before
formulating the law for that society.
In his book ‘The Spirit of Laws’, he wrote “law should be determined by the characteristics of
a nation so that they should be in relation to the climate of each country, to the quality of each
soul, to its situation and extent, to the principal occupations of the natives, whether
husbandmen, huntsmen or shepherd, they should have relation to the degree of liberty which
the constitution will bear, to the religion of the inhabitants, to their inclinations, riches,
numbers, commerce, manners, and customs.”

Eugen Ehrlich (1862-1922)

Ehrlich another eminent jurist of the sociological school primarily expounded the social basis
of law. Like Savigny, he believed in the spontaneous evolution of law but he did not hang on
to the past but conceived law in the context of existing society and thus evolved his theory of
living law.

According to Ehrlich, the institution of marriage, domestic life, heritage, possession, contract,
etc. governs society through living law which dominates human life. By living law, he meant
the extra-legal control that controls social reality. The central point of Ehrlich’s thesis is that
the law of a community is to be found in social facts and not in formal sources of law.

He says, “at present as well as at any other time, the centre of gravity of legal development lies
not in legislation nor in juristic science, nor in judicial decisions, but in the society itself.”
Hence the living law is the fact that governs life and a proper study of law requires the study
of all the social circumstances in which the law functions in society. A statute that is habitually
disregarded is no part of living.

The use of the word ‘sociological jurisprudence’ means that the law should be made in society,
and its needs should be given more attention. To achieve this end, a very close study of the
social conditions of society, in which law is to be worked, is indispensable.

For example: There may be some enactments enforced in the sense that courts may apply them
in the decisions in any issue but a community may ignore the enacted laws and lives according
to the rules created by their mutual consent, like dowry system in India.

Inhering (1818-1892)

Inhering was a German jurist and described as ‘the father of modern sociological
jurisprudence’.
His main work is ‘The spirit of law’. But he is very well known for his principal:

Wor Der Zweck in Reett (1877-83) = ‘Law as a means to an End’.

He rejected the Analytical and Historical jurisprudence as the jurisprudence of conceptions. He

says that the law is coercion organized in Act by the state. It is a way to achieve a proper
balance between social and individual interests. It is through two impulses- coercion, and
reward that society compels individuals to subordinate selfish individual interests to social
purposes and general interests. Thus his insistence on the need to reconcile competing
individuals and social interests made him ‘the father of the modern sociological jurisprudence
that inspired jurists like Roscoe Pound and others.

• He described the law in following aspects:

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

Roscoe Pound (1870-1964)

Pound was an American Legal Scholar. His view is that law should be studied in its actual
working and not as it stands in the book. He was one of the most leading and important jurists
who developed American sociological jurisprudence is a systematic manner.

Theory of Social Engineering

The American Jurist, Roscoe Pound propounded the theory of social engineering.
According to him, as Engineers need to use their engineering skills to manufacture new
products, Social Engineers too need to develop a type of structure in the society which provides
utmost happiness and minimum friction. He said that everyone has their individual interests
and consider it to be supreme to all other interest. The law focuses on seeking a balance between
the interests of the people.

Article 19(1)(a) of the Constitution of India can help us understand this ‘balancing element’ in
a better way. Although, Article 19(1)(a) guarantees the ‘Rights to speech and expression’, it
also gives the State the liberty to put reasonable restrictions contained in Article 19(2).

With the help of law, Social Engineering aims at balancing the conflicting interest of the
individual and the state. Law helps in solving conflicting interest and problems in the society.
This body of knowledge helps carrying out social engineering.

Interest Theory

Roscoe Pound in his interest theory mentioned the three kinds of interest. To avoid the
overlapping of the interests, he put boundaries and divide the kinds of interests.

HART–FULLER DEBATE

The Hart–Fuller debate is an exchange between the American law professor Lon L.
Fuller and his English counterpart H. L. A. Hart, published in the Harvard Law Review in 1958
on morality and law, which demonstrated the divide between the positivist and natural
law philosophy. Hart took the positivist view in arguing that morality and law were separate.
Fuller's reply argued for morality as the source of law's binding power.

The debate discusses the verdict rendered by a decision of a post-war West German court on
the following case:

"In 1944, defendant, “A German woman denounced her husband to the authorities in
accordance with the anti-sedition laws of 1934 & 1938. He had made derogatory remarks about
Hitler. The husband was prosecuted and convicted of slandering the Fuhrer, which carried the
death penalty. Although sentenced to death he was not executed but was sent as a soldier to the
Eastern front. He survived the war and upon his return instituted legal proceedings against his
wife. The wife argued that she had not committed a crime because a court had sentenced her
husband in accordance with the relevant law of the time. However, the wife was convicted of
‘illegally depriving another of his freedom’, a crime under the Penal Code, 1871, which had
remained in force throughout the Nazi period. The court described the Nazi laws as “contrary
to the sound conscience and sense of justice of all decent human beings” (1951)”

If we follow Harts positivist views, the decision given by the Court was wrong, because hart
believes that no matter how heinous the Nazi laws were, they were in accordance with the
Enabling Act passed by the Reichstag, and were valid. It satisfies Hart’s rule of
recognition. Fuller contended that Hitler’s regime was so harmful to morality, that there was
nothing in the system that could qualify to be called a law as they did not comply with his
desiderata. He stated that the Nazi laws lacked the necessary internal morality required in the
process of law making, which gives laws respect and makes them obligatory to be followed by
citizens. Fuller believed that unless the Nazi laws were treated as non-laws, the perpetrators of
evils under the Nazi regime would go unpunished

COMPARATIVE JURISPRUDENCE

Comparative law is the systematic application of the comparative technique, a discipline and a
method by which the values of human life are known and evaluated. It is not a law in itself but
a method of looking at legal problem, a comparative approach to the study of laws and legal
Institutions of two or more countries. It is not a particular branch of law nor a subject but a
process of study of foreign laws in comparison with local laws.
It is a technique of looking one's own law through the mirror of analogous laws of other
countries. It is a process of gaining from the laws as they obtain in foreign countries. It
ascertains the differences and similarities in the legal rules, principles and Institutions of two
or more countries with a view to finding solutions for local problems. It helps in establishing
harmonious relations with other countries.Comparing the laws of different nations or even
cultures provides for a unique way to develop laws in a better manner. Comparative law is one
such method which describes the comparisons between different legal systems.

LEGAL REALISM
Legal realism is a naturalist philosophy to law. It is of the perspective that jurisprudence should
imitate the natural science methodologies, that is, relying on empirical evidence. Assumptions
must be put to the test by global findings. Legal realists conclude that legal science can analyze
law exclusively through natural science’s value-free tools, rather than by metaphysical inquiry
into the essence and purpose of the law, which is different and distinct from the law. Legal
realism, in fact, states that the law can not be isolated from its implementation, and cannot be
easily interpreted. This illustrates the importance of recognizing the considerations present in
judicial decision-making by identifying the essence of law in fields such as legal decisions
issued by judges and their deference or rejection to the previous precedent and the doctrine to
final judgment.Legal realism is characterized as a type of jurisprudence by its emphasis on the
law as it currently appears in reality, rather than the way it works in the books. To this end, it
addressed mainly the conduct of the judges and the conditions that behaviour affect judicial
decision-making processes

KARL MARX – MARXIST JURISPRUDENCE

Karl Heinrich Marx (1818-1883)-- In the Marxist view of the law, the bourgeoisie and the
proletariat are the two classes fighting for power. Societies are considered unjust if they permit
and provide freedom to the bourgeoisie to frame laws and present moral decisions. In the
Communist Manifesto, Marx explains that the law is simply a reflection of the desires of the
Bourgeoisie class. He says to the Bourgeoisie that -our jurisprudence is but the will of your
class made into a law for all, a will, whose essential character and direction are determined by
the economic conditions of existence of your class”-- Marx criticizes the entire tradition of
government under the rule of law as no more than a mere expression of the“bourgeois”
aspirations. Marxism is also known as conflict theory because it expresses the conflict among
people in society. In the Marxist theory of law, there are three basic assumptions. The first one
is that law is the product of economic forces. Marx said that the way you work will shape your
law and other institutions. He believed in the ‘two-level model’ in which ‘economy’ was the
‘base’ and law as well as other institutions were in the ‘super-structure’. His main argument
was that in a capitalist economy, the working classes (or proletarian) were exploited by the
capitalist class (or the bourgeois). The second important doctrine is the doctrine of the class
character of law. According to Marx and Engels, the law is believed to be the apparatus of the
ruling class to maintain its powers over the ruling classes. Law is characterized as an expression
of class will.The third important doctrine is often recognized as the ‘withering away’ of law in
the future communist society.

Setback of Marx

The identification of law with the attention of the dominant class is one of the flaws in Marxist
legal theory because it is evident that there are few laws that do not support those interests.

Feminist Jurisprudence
Feminist jurisprudence has two terms. The term feminist refers to ‘in favour of female’ and
Jurisprudence means ‘study of law’. There is no specific definition of feminist jurisprudence.
Different jurists gave different opinions about this. But in a nutshell, feminist jurisprudence is
the philosophy of law based on three equality which are political, economic, and social equality
of sexes. According to this theory, law is not neutral and power is given in the hand of males.
This theory believes, Mainstream is ‘Malestream’. This theory is also known as ‘Feminist
Legal Theory. Many scholars are against this theory. According to them, there is no need for a
different school of legal thought deserving the title ‘Feminist Jurisprudence.’ But many
scholars have argued this view and in modern times this concept is actually important. We need
to understand why we need feminist jurisprudence.

History of Feminist Jurisprudence

The development of feminist jurisprudence was closely tied to the broader women’s liberation
movement of the 1960s and 1970s, which sought to challenge and transform the entrenched
systems of patriarchy and gender inequality that pervaded society. The women’s movement
sought to bring issues of gender and women’s rights to the forefront of the political and cultural
agenda, and to advocate for legal and social changes that would improve the lives and
opportunities of women. Over the course of the 20th century, feminist jurisprudence has had a
significant impact on the development of law and legal doctrine, particularly in the areas of
gender and women’s rights. It has influenced the adoption of laws and policies that address
gender-based discrimination and violence, the recognition of diverse gender identities and
expressions, and the inclusion of diverse voices and perspectives in legal education and the
legal profession.

Impacts of Feminist Jurisprudence

Basically, the idea of feminism and feminist jurisprudence is spreading in society. That’s why
we can see some positive changes in society. Some of the impacts of this we can see in many
statutes and here are a few of them.

1. Dowry Prohibition Act, 1980 and 2018 India

2. Maternity Benefit Act, 2017
3. Domestic Violence Act 2005
4. Sexual Harassment at Workplace Prevention, Prohibition and Redressal Act, 2013 India

5. The Immoral Traffic (Prevention) Act, 1956,

6. The Indecent Representation of Women (Prohibition) Act, 1986,

7. The Commission of Sati (Prevention) Act,

8. Protection of Women from Domestic Violence Act, 2005,

CRITICAL LEGAL STUDIES

Critical legal studies (CLS) is a movement in legal theory that emerged in the 1970s and 1980s.
It is a perspective that critiques and challenges traditional legal thought and practice,
particularly from the perspective of political and social justice. CLS scholars argue that the law
is not a neutral or objective set of rules, but rather is shaped by power dynamics and the interests
of dominant groups. They also argue that legal doctrine and systems of legal interpretation are
inherently indeterminate and that legal rules are often used to reinforce existing social,
economic, and political inequalities. Proponents of CLS argue that the law should be used as a
tool for social change and that it should be more responsive to the needs and interests of
marginalized and oppressed groups.

One key insight of CLS is that the law is not a neutral or objective set of rules, but rather is
shaped by power dynamics and the interests of dominant groups. This means that the law is not
always a fair or just system, and that it can be used to reinforce existing inequalities and
injustices. For example, CLS scholars have pointed out that the law has often been used to
discriminate against marginalized and oppressed groups, such as people of colour, women, and
LGBTQ individuals.

Another important aspect of CLS is the idea that legal doctrine and systems of legal
interpretation are inherently indeterminate. This means that there is often more than one way
to interpret a legal rule or doctrine, and that different interpretations can lead to very different
outcomes. This can make it difficult to predict how a legal dispute will be resolved, and it can
also mean that the law is not always consistent or coherent.

CLS scholars also argue that the law should be more responsive to the needs and interests of
marginalized and oppressed groups. They argue that the law should be used as a tool for social
change, and that it should be more inclusive and equitable. This means that the law should be
more sensitive to the needs and experiences of marginalized and oppressed groups, and that it
should work to correct historical injustices and promote social and economic equality.
Jurisprudence Module -II

International law

International law is a set of rules, agreements and treaties that are binding countries. Countries
come together to make binding rules that they believe will benefit the citizens. It is an
independent system of law existing outside the legal framework of a particular state.

Aim of International law

The existence of international law is the result of increased interstate engagement. It mainly
aims to maintain international peace and security among different states. It also helps in:

1. promotion of friendly relations among the member states (members of the

international community, for example, United Nations),

2. providing for basic humanitarian rights,

3. to solve international problems through international cooperation,

4. to refrain the state from using threat or force over the territory of any other state to
provide for the right to self-determination to people, and

5. to use peaceful methods to settle international disputes are few of its functions.

Subjects of International Lawv

It is referred to as entities who have a legal personality, with certain rights and duties under the
international legal system.

The state is considered to be the primary and original subject of international law. However, it
also regulates the actions of other entities:

Individuals – Common people of any state are also believed to be the subject of international
law.
International Organizations – It is an association of states, established by a treaty between two
or more states. International Organizations too have a legal personality and are considered to
be the subject of international law. For example, the United Nations.

Multinational Companies – They own and operate their corporate entities in at least one other
country aside from the place where it was incorporated, therefore it is established in more than
one nation.

Is International Law really a law?

It is one of the most controversial questions that has been debated and on which jurist’s
opinions hugely differ. One view considers International law not a true law, rather, a code of
rule of conduct backed by morality. On the other hand, International law is considered to be a
true law and is regarded as a law, similar to that of ordinary laws of a state, binding upon the
citizens.

Austin’s View – International law is not a true law

• According to Austin, law is the command of the sovereign punished by sanctions if the
command is violated by the individual. There must be a legislative authority enacting
the rule of conduct and enforcing physical sanction. So based on what he said, it can be
concluded that any rule which is not enacted by any superior or legislative
authority, cannot be regarded as a law and moreover, if laws are violated, sanctions
must be imposed.
• Based on that, it can be said that rules are only morally and ethically valid if they aren’t
issued by any sovereign authority. If we apply this theory to International law, we can
see there is no legislative power over the society, based on which Austin concluded that
International laws are merely based on ethics and morality and are not true law.

Constitutional Law

The term “constitution” is a French term and refers to the set of fundamental rules and
regulations that govern the functioning of a nation-state or any other organization. A state’s
constitution is the supreme law of the land and thus requires higher standards of legitimacy
 and integrity. It outlines a state’s fundamental principles, administrative structures,
procedures, and fundamental rights of individuals while defining the directions for a state’s
development.

“Constitutional law” is concerned with the interpretation and implementation of the

Constitution and its underlying principles. It forms the basis for individuals’ access to
particular fundamental rights, inter alia the right to life, the right to privacy, the freedom
to move, and the right to vote. It lays down procedural conditions that must be met before
a governmental entity can intervene with an individual’s rights, liberties, or property.
Constitutional law also deals with subjects such as judicial review, fundamental duties, and
the power to make laws, among other things.

Scope of Constitutional Law

The function and authority of the institutions within the state as well as the interactions between
citizens and the state come under the scope of constitutional law. The law of the constitution
must thus be understood within the socio-political atmosphere in which it functions, since a
constitution will symbolize the political and ethical ideals of the individuals it regulates.

Nature of Constitutional Law

Constitutional laws can be both written and unwritten. Written constitutions, such as
the Indian Constitution, act as the supreme law of the land. They are superior to all laws
in force in a country at any point of time, so much so that a law which is in derogation
of the constitution would be repealed. In the case of unwritten and flexible constitutions,
the hierarchy between the constitution and ordinary laws ceases to exist.

Need for the Constitution and Constitutional Law

Constitutions around the world ensure “the fair and impartial exercise of authority,” as
well as “a harmonious and stable society; protection of individual and community
rights; and promotion of appropriate resource management and economic growth.”
Simply put, a constitution empowers lawful authorities to function in the public interest
through the administration of key problems and the prevention of arbitrary power of
leaders who otherwise would abuse their position. This is based on the principle
 of constitutionalism, which governs the legitimacy of government actions and requires
the government to abide by the law of the land.

Territorial nature of law

Law is territorial in the sense that its operation itself is territorial. Generally, the Laws made by
the State are applied to persons, things and events which are within its territorial jurisdiction.
In other words, the enforcement of Law is confined to the territorial boundaries of the State
enforcing it. However, there may be cases where there can be extra-territorial operation of Law.
Extra-territorial operation of Law means that it also operates outside the limits of the territory
of the state which enacted that particular Law-The propositions that a system of law belongs to
a defined territory means that it applies to all persons, acts things and events within that
territory. It does not apply to persons, things acts or events elsewhere.

Question of Law

1. The question of law is related to interpretation and the judiciary does it. For example,
there are many laws in every country. The judiciary decides which law to apply and
which to exclude. This is question of law. When the judiciary wants to interpret a law
then the question of law comes. So, question of law is related to interpretation.

2. It is answered by fixed rules of law.

3. It is answered by judges.

4. It is called the Point of law.

5. It can’t be converted. It is a constant thing.

6. Example: What is murder, dacoity, theft, etc.

Question of Fact

1. For question of law, the court actually finds the answer with help of rules available
under different laws and legislations. When the court fails to do so, it seeks help from
the higher courts. Sometimes, after judgment, the victim goes to higher courts for better
judgment. But not all the problems can have answered in the law itself. In that time, the
court uses facts or evidence as help. It is called the question of facts. One important
 aspect of question of fact is that it is only bothering about the evidence of proof
available. It doesn’t consider on what kinds of opinion is available. There is only
opportunity for the matter of facts.

2. Questions other than particular law is question of fact.

3. It is answered by the parties.

4. It is called Point of fact.

PURPOSE OF LAW:

Through law, the information is passed to the citizens of the country in several ways. It is
reflected also in various branches of law. For instance, contract law quotes that the agreements
are supposed to exchange services, goods, or something which is of value in the eyes of law.
Therefore, it involves everything i.e. from purchasing a ticket to the trading plans in the market.

In furtherance to that, property law explains the rights and duties of each individual towards
the property. This may involve real estate along with their respective possessions. Additionally,
it involves intangible property like stock, shares and bank accounts. Several offences against
state, or any local community appeared as to be a subject matter of criminal law.

Henceforth, it gives the government a significant system in which offenders can be punished.
There are numerous kinds of purposes which are served by law.

1. Maintaining Order:

The law is said to be an offshoot for the establishment of the standards. The resembling nature
is necessary for a civilized kind of society. Thus, a similar thing is reflected upon the law.
Further, the law when being enforced provides a diligent consistency with the guidelines of the
society. In addition to that, wildlife management laws were passed in lieu of the game to be
conserved and so that it gets protected for future generations in the years to come.

2. Establishing Standards:
The law is a manner in which it shows a way to the minimum accepted behaviour in society.
There are few activities which are a crime for the society to determine whether it will tolerate
behaviours that may damage or injure the person or their respective properties. For instance, it
is a crime to injure an individual without the justification factor being met. Therefore,
committing the same can lead to the constitution of the crime i.e. assault.

3. Resolving Disputes:

Disputes are not supposed to be ignored in a society at large that consists of people with several
kinds of wants, needs, values, etc. Additionally, the law gives a formal means to resolve the
disputes which are under the court system.

4. Protecting Liberties and Rights:

The Constitution and the statutes of India give various rights and liberties in their states. In
addition to that, one of the functions of law is to protect numerous rights and liberties from
unreasonable kind of violations or intrusions by organizations, persons or government.
Henceforth, if an individual believes that the freedom of speech has been forbidden by the
government then the respective individual can pursue the remedy through the platform of
bringing the case in the courts.

Functions of law

Law is a wide subject which has great significance and functions. Some of the functions of law
are as follows:

1. It maintains law and order in the society and guarantees that justice is delivered at every
doorstep.
2. Without law, the society would be a mess and chaos.
3. Law helps in the reduction of crimes. Law has categorised various actions into offences
that have some penalties ranging from simple compensations to grave punishments.
This in turn creates fear in the mind of most of the people which eventually leads to the
reduction of crimes.
4. Laws guarantees fundamental rights to the people. If a person ever feels that his
fundamental rights are been threatened or violated, he/she may go to the courts for the
same.
5. Law even frames guidelines for the government. It in turn ensures that the government
does not practice in a biased way.
6. Law ensures absence of arbitrary powers.
7. Law ensures equality among the people of a country and that nobody is subjected to
discrimination on the basis of caste, colour, creed etc.
8. Law ensures the basic needs of the people.
9. Law improves the status quo in the society
10. It protects each and every individual of the society of the country.
Module III- LAW AND JUSTICE

Law is a set of laws, guidelines, principles, & values established

by a nation’s government to control individuals’ lives and acts. Laws

are codified in specific provisions and are regulated by the government

and its authorities, such as the paramilitary forces, police, & judiciary.

Justice, on the other side, is a more abstract term based on the concepts

of equality of rights & justice. The laws contain sanctions recognized

by the state and implemented by state-authorized authorities. They

differ from one country to another. There is also international legal

conventions and treaties that applies solely to governments that have

signed it.

Objective of the Law

Laws are necessary for civilization to progress. It keeps an eye on

all three branches of government. No one is superior to the other. A

society without the law will be chaotic, with conflicts between distinct

communities and groups. It established norms for how society should

act. It adjusts to the changing society. It acts as a catalyst for social

transformation and modernization. it has served as a tool for societal

reform, abolishing numerous age-old traditions like Caste

Discrimination, Sati Pratha, Child Marriage, Casteism, etc.

Justice

Justice comes from the Latin phrase ‘Jungere’, which signifies ‘to

bind together’. Justice is the primary ailment that unites or binds

persons in society together. Justice is a value that has existed since the

beginning of human civilization. Justice must be generally viewed in a

wider context; it is fundamentally similar to the concept of morality.

Definition of justice

Numerous scholars have tried to define the term justice: “Justice

is a reservoir from which the notion of right, responsibility, and equity

develops,” says Blackstone.Plato defined justice as what was fair &

right in both individual as well as state acts in his Republic of Justice.

Aristotle defined justice as what was fair as well as equitable. Justice

is a fundamental value that represents the moral ambition to make

things fair. Our perceptions of justice may differ from those of others

in a given circumstance.
law” and “justice” refer to two related but dissimilar ideas. Though

they frequently go hand in hand, the concepts of justice and law refer

to two distinct concepts. A country’s government creates a system of

laws to control the lives and conduct of its population. Laws include

rules, guidelines, principles, & norms. The government and its

authorities, such as the security forces, officers, judiciary, etc., enforce

laws that are found in written codes. On the other hand, justice is a more

ethereal term built on the notions of fairness and equality of rights.

Theories of law and justice

Utilitarian Theory Of Justice

Jeremy Bentham propounded his famous utilitarian theory where he

claims that a law should be enacted with the prime object of providing

maximum justice to the maximum number of people. Public utility is

thereby determined through the hedonistic calculus.

Rawls theory of justice

John Rawls addressed the concept of justice in his famous book ‘A

Theory of Justice. John Rawls was a firm opposer of utilitarianism,

which held the view that just or fair actions are the ones that bring the
greatest amount of good for the greatest number. He condemned

utilitarianism because he opined that it paves the way for governments

to function in ways that bring happiness to a majority but ignore the

wishes and rights of a minority.

Trying to figure out ways to achieve justice for all, Rawls

proposed a hypothetical scenario where a group of people ignorant

of their or others’ social, economic, physical, or mental factors

come together to make laws for themselves.

The idea behind this hypothecation is that under such a circumstance,

everyone will be virtually equal. Rule-making will not be influenced

by the self-centred desires of particular sections of society. Then, there

will be no hierarchy in the bargaining power within the collective idea

of justice. Under this state, there will also be equal sharing of burdens

and benefits among all.

So, the theory of justice proposed by Rawls advocates for a system of

rule-making that ignores the social, economic, physical, or mental

factors that differentiate the people in society.

Objective of the theory

The very purpose of Rawls introducing the theory of justice was to find

a way to create a well-ordered society. According to him, a well-

ordered society should predominantly have the following two

elements:

• It should be designed to advance the good of its members and

effectively regulated by a public conception of justice;

• It should be a society wherein all people accept and know that

all other people accept the same principles of justice and that

the basic social institutions satisfy those principles.

Veil of ignorance

• To achieve justice for all, it is vital to set aside personal interests

and be rational while making rules or decisions affecting society.

To reach a rational mindset, Rawls argues that one must imagine

himself as if he is behind a “veil of ignorance.” This veil of

ignorance is a theoretical device or hypothetical separation

between the decision-maker and the society he lives in. It prevents

 him from knowing any material facts about himself or the people

for whom he is making the rule.

As per Rawls, to achieve a well-ordered society, the

decision-makers under the original position will make choices

under uncertainty. The uncertainty will lead them to rationally

make rules by selecting the best from a range of options of worst

possibilities. They will strive to make rules that ensure that the

worst-off people in society do as well as possible.

Distributive justice

Distributive justice concerns the socially just allocation of

resources, goods, opportunity in a society. It is concerned with

how to allocate resources fairly among members of a society,

taking into account factors such as wealth, income, and social

status. Often contrasted with just process, which is concerned

with the administration of law, distributive justice concentrates on

outcomes. Distributive justice is concerned with the

measurements that should be used to allocate the resources of the

society. It also decides fair distribution of the burdens and benefits

 of social cooperation among persons with various needs and

claims. According to Aristotle, distributive justice implies

that the state should divide or distribute goods and wealth among

citizens according to merit.

Distributive justice includes issues such as affirmative

actions such as recruitments and promotion in government

actions, admission to public educational institutions, seats in

legislature, welfare, free education and other goods and

opportunities and they are distributed amongst the members of

the society.

Meaning of Corrective Justice

Corrective justice is the idea that liability rectifies the injustice

inflicted by way of one individual on another. As its name indicates,

corrective justice has a rectificatory characteristic. By correcting the

injustice that the defendant has inflicted on the plaintiff, corrective

justice asserts a connection between the treatment and the incorrect.

Issues of corrective justice concern the fairness of the response to a

wrong or injury to a person or group. Common responses

include making a person who has wronged or injured another suffer

some form of punishment, give back something that was stolen, or pay

for damages.

Natural justice

Principle of Natural Justice is derived from the word ‘Jus

Natural’ of the Roman law and it is closely related to Common law and

moral principles but is not codified. It is a law of nature which is not

derived from any statute or constitution. The principles of natural

justice have been adopted and followed by the judiciary to protect

public rights against the arbitrary decision by the administrative

authority.

Rules of Natural Justice

• NEMO JUDEX IN CAUSA SUA (Rule against Bias)

• AUDI ALTERAM PARTEM

• REASONED DECISION (Speaking Order)

Nemo Judex In Causa Sua

“No one should be a judge in his own case” because it leads to rule of

biases. Bias means an act which leads to unfair activity whether in a

conscious or unconscious stage in relation to the party or a particular

case. Therefore, the necessity of this rule is to make the judge impartial

and given judgement on the basis of evidence recorded as per the case.

Type of Bias

1. Personal Bias.

2. Pecuniary Bias.

3. Subject matter Bias.

4. Departmental Bias.

5. Policy notion Bias.

6. Bias on the account of obstinacy.

Audi Alteram Partem

 It simply includes 3 Latin word which basically means that no

person can be condemned or punished by the court without

having a fair opportunity of being heard. In many jurisdictions, a

bulk of cases are left undecided without giving a fair opportunity

of being heard. The literal meaning of this rule is that both parties

should be given a fair chance to present themselves with their

relevant points and a fair trial should be conducted. This is an

important rule of natural justice and its pure form is not to

penalize anyone without any valid and reasonable ground.

Reasoned Decision

A reasoned decision contains reasons of its own in its support. When

the adjudicating body provides the reason behind their decision, the

decision is treated as the reasoned decision. It is also called the

speaking order. The responsibility to record reasons works as

obstacles against arbitrary action by the judicial power vested in

the executive authority.

Civil and criminal justice

The administration of justice is civil as well as criminal. Criminal

justice maintains the social equilibrium in the society (as for instance,

imprisonment and fine), whereas the implementation of civil rights and

liberties is done with the help of civil remedies (as for instance,

damages, specific performance, injunction, restitution of conjugal

rights, divorce, etc.)

There has been considerable difference of opinion amongst jurists

regarding the difference between civil justice and criminal justice.

1. The object of civil proceedings is to enforce rights, while the

object of criminal proceedings is to punish the wrongs.

2. Civil liability is mostly remedial, criminal liability is on the

whole, penal.

The distinction between civil justice and criminal justice cannot always

be maintained because some acts may be considered both as crimes and

also civil wrongs. Thus, defamation is both a tort (civil wrong) as well

as a crime.

The difference between criminal justice and civil justice cannot

be considered in terms of natural acts or the physical

 consequences of the act. The distinction lies in the differences in

the legal consequences.

Civil proceedings, if successful, result in a judgement for

damages, or a judgement for payment of a debt or penalty, or in

an injunction, or a decree for restitution or specific performance,

or in an order for the delivery of possession of land or any other

form of relief known distinctively as civil.

On the other hand, criminal proceedings, if successful,

result in one or a number of punishments, ranging from to

hanging to fine, or any other outcome known to belong

distinctively to criminal law. In other words, civil justice is

administered according to one set of forms, in one set of courts

and criminal justice according to another set of forms, in a

different set of courts.

Merits and defects of administration of justice

Salmond defines the administration of justice as ‘the maintenance

of right within a political community using the physical force of the

state’. It includes all the aspects connected with the administration of

justice, not merely with the filing of cases in a Court but

pronouncement of judgments and their execution.One of the essential

functions of the state is the administration of justice.

Advantages of Administration of Justice -

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 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 they cannot go beyond them.

Disadvantages of Administration 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

Theories of punishment

Punishment is the most prominent feature of criminal law. Every

society has its own way of social control for which it frames certain

laws and also mentions the deterrents attached to them. Punishment is

the consequence of an unpleasant act that the wrongdoer commits.

Simply put, the fundamental aim of punishment is to give relief to the

aggrieved party and to maintain law and order in society.

Objects of punishment

1. To protect society from mischievous elements by deterring

potential offenders.

2. To prevent actual offenders from committing further offences.

3. To eradicate evils and reform criminals and turn them into law-

abiding citizens.

4. To administrate justice partly by inflicting pain to deter

criminals and others from indulging in crime and partly by

reforming criminals.

5. To maintain rules and regulations for a crime-free country.

Theories of punishment generally contain policies regarding the

handling of crimes and criminals. The theory of punishment deals with

the principles on the basis of which punishment is to be given to the

offender, with the object of safeguarding a society deprived of law and

order. There are four types of theories of punishment.

1. Deterrent theory.
 2. Retributive theory.

3. Preventive theory.

4. Reformative theory.

Deterrent theory of punishment

The founder of this theory is Jeremy Benrhem, and this theory

is based on the principle of hedonism which says that a man would

be deterred from committing a crime if the punishment applied was

swift, certain, and severe. This theory focuses on deterring offenders

from criminality or repeating the same crime in the future. This

theory is a lesson to members of society who experience the

consequences of that crime. It creates fear of punishment in like-

minded people.

Criticism of deterrence theory

1. Though this theory intends to deter people from committing

crimes or repeating the same crime, it has failed to serve its

purpose. It has proved ineffective in checking crimes and the

fact that excessive harshness of punishment tends to defeat its

 purpose by arousing the public’s sympathy towards those who

are subjected to such punishment.

2. Punishment loses its essence once the criminal is punished. For

example, in the Delhi gang rape case, familiarly known as

the Nirbhaya case, all 4 accused were hanged for their heinous

crime but the offence of rape continues to happen. Thus the

question as to whether the deterrent theory of punishment

serves its purpose remains arising in people’s minds.

3. It does not give a chance to reform the accused.

Retributive theory of punishment

This theory is based on the famous saying that a ‘Tit for Tat’, ‘

Eye for Eye’ or’ Teeth for Teeth’. The main motive of this theory is to

inflict a similar amount of pain endured by the aggrieved party because

of the offender’s activity. Put simply, it can be said that every

punishment is retributive to a certain extent for the purpose of

punishment itself is to restore peace and harmony in society. This

theory is harsher than other theories.

 Owing to humanitarian grounds, this theory of punishment is not

much on the favourable side for it causes harm to the accused in a

greater way. Therefore, the most important thing to consider while

awarding punishment is the balance between the aggravating and the

mitigating factors involved in the offence committed.

Criticism of the retributive theory

As per the development of society, this type of punishment was banned

due to the following criticism.

1. It is difficult to determine the proportion of pain or revenge in

this type of punishment, meaning to what and to what extent

the pain should be returned.

2. The entire natural justice principle will collapse if everyone

takes revenge on each other according to their hate and the

injury caused.

Preventive theory of punishment

 Unlike other theories, this theory aims to prevent crime rather

than take revenge. This theory is also called the disablement theory.

This theory talks about eliminating the accused from society to prevent

the repetition of his crime again. By preventing those criminals, society

protects itself against anti-social order in general. Prevention of these

criminals can be done by giving them death punishment or life

imprisonment. Separation of these criminals from society prevents

other prospective offenders from committing crimes.

In the case of Sunil Batra v. Delhi Administration (1978), the

court of law observed that if the prisoner is violent or dangerous,

solitary confinement is necessary to prevent and segregate these

offenders from society, thereby abiding by the retributive theory of

punishment.

Criticism surrounding the retributive theory of punishment

While the retributive theory promotes the dissertation of the

offender, the same has severe consequences and difficulties inflicted

upon the accused. It is ideal to note that the concept of morality being

subjective by its very nature makes it difficult to deliver punishments

for crimes committed. Therefore, the immorality of crimes needs to be

comparable.

Reformative theory of punishment

This theory helps to reform criminals, thereby transforming

them into law-abiding citizens. Nobody is indeed a criminal by birth,

crimes sometimes happen accidentally or situationally. In this case, the

offender should get another chance to rectify his mistake. For this, there

is the facility of correctional homes, juvenile homes, training schools,

and reformatories. The main object of this theory is the rehabilitation

of inmates.

It was the case of Dharambir v. State of Uttar Pradesh (1979),

which became the initiation of the concept of open jails in India which

generally helps in reforming young offenders. Further, the Supreme

Court of India, while deciding the case of Musa Khan v. State of

Maharashtra (1976), had observed that the reformative system

prevented juveniles from becoming hardened criminals.

Criticism surrounding the reformative theory of punishment

1. This theory only works for juvenile and first-time offenders

and not for hardened criminals who have committed multiple

crimes.

2. The reformative theory of punishment is sometimes considered

not justifiable for the aggrieved party subjected to prejudice by

the offender.

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MODULE-IV

Sources of law

John Salmond, the legal scholar renowned for his ideologies on law in the field

of jurisprudence, classified the sources of law into mainly two categories,i.e.,

material sources and formal sources.

Material sources

Material sources of law are those sources from which the law gets its content or

matter, but not its validity. There are two types of material sources which are legal

sources and historical sources.

Legal sources

Legal sources are the instruments used by the state which create legal rules. They

are authoritative in nature and followed by courts of law. These are the sources

or instruments that permit newer legal principles to be created. According to

Salmond, legal sources of English law can be further classified into four

categories-

• Legislation,

• Precedent,

• Customary law, and

 • Conventional law.

Historical sources

Historical sources are sources that influence the development of law without

giving effect to its validity or authority. These sources influence legal rules

indirectly. The difference between legal and historical sources is that all laws

have a historical source but they may or may not have a legal source. Decisions

given by foreign courts serve as an example for this kind of source.

Precedent as a source of law

Judicial precedents refer to the decisions given by courts in different cases. A

judicial decision has a legal principle that is binding on the subordinate courts.

Once a court has delivered a judgement on a particular case, the courts

subordinate to it must abide by the precedent while deciding on similar cases with

similar facts.

Types of precedents

Authoritative and Persuasive

Authoritative precedents are those precedents that must be followed by

subordinate courts whether they approve of it or not. They create direct and

definite rules of law. They fall into the category of legal sources of law.
Persuasive precedents on the other hand do not create a binding obligation on the

judges. Persuasive precedents can be applied as per the discretion of the judge.

Authoritative precedents can be classified into the following two types:

Absolute authoritative

An absolutely authoritative precedent is binding on subordinate courts in an

absolute manner and it cannot be disobeyed even if it is wrong.

Conditional authoritative

A conditionally authoritative precedent is binding on other judges but it can be

disregarded in certain special circumstances as long as the judge shows the reason

for doing so.

Original and Declaratory

According to Salmond, a declaratory precedent is a precedent that simply declares

an already existing law in a judgement. It is a mere application of law. An original

precedent creates and applies a new law.

Prospective overruling

The doctrine of prospective overruling finds its roots in American jurisprudence.

But before this doctrine was applied and followed, the American judicial system
followed the Blackstonian theory. According to this theory, Courts did not have

the power to create new laws but could only follow, interpret and expound the

existing laws. But several American jurists were against this theory and this

opposition paved the way for the adoption of the doctrine of prospective

overruling.

American jurist George F. Canfield has stated that it is the duty of a court to

recognise and propound a new rule if the court deems that the old rule has become

unsound or has lost its effectiveness in the modern-day legal regime.

The Supreme Court of the USA in Great Northern Railway vs. Sunburst Oil and

Refinery Co. (1932) adopted the doctrine of prospective overruling for the first

time. The Court observed that while overruling a previous law/decision, the Court

is empowered to give it’s ruling a prospective effect. The reasoning given by the

Court for adopting this doctrine is that no party should suffer because of the

change in law or stance of the Court, i.e., if a ruling is being given retrospective

effect, all the transactions that occurred under the old law would be deemed to be

void. Therefore, to avoid such an effect on the earlier transactions, it is necessary

that the rulings of a court should be given prospective effect.

It was recognised and adopted in India for the first time by the Supreme Court in

the case of I.C Golaknath vs. the State of Punjab (1967).

Both the petitioners and their families were the owners of over 500 acres of land

situated in Jalandhar, Punjab. However, after the enactment of the Punjab

Security of Land Tenures Act 1953, the Government issued a notice to them

stating that they could only keep possession of 30 acres of land each and had to

give up the rest of the land. The land that was to be given up would be deemed as

surplus land. Due to this, the constitutional validity of the enactment was

challenged on the grounds of violations of the following fundamental rights:

1. Right to acquire and hold property: Article 19(1)(f) of the Constitution.

2. Right to equality and equal protection before the law: Article 14 of the

Constitution.

3. Right to practice any profession: Article 19(1)(g) of the Constitution.

Issue

Whether the Parliament has the power to legislate upon and amend the

fundamental rights guaranteed to the citizens of India under the Constitution?

Objections raised against the doctrine of prospective overruling

1. There is no evidence regarding the application of the doctrine of

prospective overruling on decisions regarding amendments of ordinary

laws. Only decisions regarding constitutional law amendments can be

subject to this doctrine.

 2. Indian jurisprudence follows a precedent-based system. It would not be

advisable to shift from this approach and adopt an international doctrine.

3. According to Article 13 of the Constitution, any law that is in violation

of fundamental rights would be deemed to be void to the extent of the

violation. In Deep Chand vs. State of Uttar Pradesh (1959), the

Supreme Court held that any law which violates the fundamental rights

guaranteed by the Constitution is a still-born law. Thus, any law that has

been declared unconstitutional should be deemed void from the moment

of its enactment and therefore the doctrine of prospective overruling

would be against the guideline set under Article 13 of the Constitution.

Observations regarding the application of the doctrine of prospective overruling

1. The Supreme Court initially propounded three essential conditions that

were necessary for invoking the doctrine of prospective overruling. The

conditions have been enumerated below:

• The doctrine of prospective overruling can be invoked only in cases that

arise regarding the interpretation of the Constitution.

• The doctrine of prospective overruling can be applied only by the

Supreme Court.
 • The Court may modify the aspects of prospective application of its

ruling in accordance with the justice of the cause or matter before it.

2. By applying the aforesaid conditions, the Court came to a conclusion

that if it follows the principle of retrospective overruling, it would create

chaos and will affect several transactions that were carried on under the

old regime. Thus, the doctrine of prospective overruling will be

applicable in the present case.

3. The Constitutional amendments already in place would not be affected

by the decision of the Court. Only future amendments would have to

follow the ratio laid down by the Court in this case.

Legislation as a source of law

Legislation refers to the rules or laws enacted by the legislative organ of the

government. It is one of the most important sources of law in jurisprudence. The

word legislation is derived from the words legis and latum, where legis means

law and latum means making.

Types of legislation

According to Salmond, legislation can be classified into two types- Supreme and

Subordinate.

1. Supreme legislation
Legislation is said to be supreme when it is enacted by a supreme or sovereign

law-making body. The body must be powerful to the extent that the rules or laws

enacted by it cannot be annulled or modified by another body.

2. Subordinate legislation

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

legislation. The subordinate body must have derived its law-making authority

from a sovereign law-making body. It is subject to the control of the supreme

legislative body. The following are the different kinds of subordinate legislation:

• Executive legislation: This is a form of subordinate legislation where

the executive is granted or conferred certain rule-making powers in

order to carry out the intentions of the legislature.

• Colonial legislation: Many territories across the globe were colonised

by Britain and such territories were called colonies. The legislation

passed by the legislature of such colonies was subject to the control of

the British Parliament.

• Judicial legislation: Courts also have a role in enacting laws that aid in

regulating the internal affairs and functioning of courts.

• Municipal legislation: Municipal authorities also possess the law-

making power as they enact bye-laws.

 • Autonomous legislation: Another kind of legislation is autonomous

legislation, which is concerned with bodies like universities,

corporations, clubs, etc.

• Delegated legislation: Sometimes legislative powers may be delegated

to certain bodies by the parliament through principal legislation. A

principal act may create subsidiary legislation that can make laws as

provided in the principal legislation

Custom as a source of law

Custom refers to the code of conduct that has the express approval of the

community that observes it. In primitive societies, there were no institutions that

acted as authority over the people. This led to people organising themselves to

form cohesive groups in order to maintain fairness, equality, and liberty. They

started developing rules with coordinated efforts to make decisions. They

eventually started recognising the traditions and rituals practised by the

community routinely and formed a systematised form of social regulation. In

India, laws relating to marriage and divorce are mostly developed from customs

followed by different religious communities. Additionally, several communities

belonging to the Scheduled Tribes category have their own customs related to

marriage. As a result of that Section 2(2) of the Hindu Marriage Act, 1955 has

exempted Scheduled Tribes from the application of this Act.

Requisites of a valid custom

1. Reasonability: The custom must be reasonable or practical and must

conform with the basic morality prevailing in the modern-day society.

2. Antiquity: It must have been practised for time immemorial.

3. Certainty: The custom must be clear and unambiguous on how it

should be practised.

4. Conformity with statutes: No custom must go against the law of the

land.

5. Continuity in practice: Not only the custom must be practised for time

immemorial, but it should also be practised without interruption.

6. Must not be in opposition to public policy: The custom must adhere

to the public policy of the state.

7. Must be general or universal: There must be unanimity in the opinion

of the community or place in which it is practised. Hence, it should be

universal or general in its application.

Sir Henry Maine’s views on customs

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

Themistes or judgments”. Themistes refers to the judicial awards dictated to the

King by the Greek goddess of justice. The following are the different stages of

development of law according to Henry Maine:

1. At the first step, law is made by rulers who are inspired by the divine.

Rulers were believed to be messengers of God.

2. At the second stage, following rules becomes a habit of the people and

it becomes customary law.

3. At the third stage, knowledge of customs lies in the hands of a minority

group of people called the priestly class. They recognise and formalise

customs.

4. The final stage is the codification of customs.

Types of customs

1. Customs without a binding obligation

There are customs that are followed in society that do not have a legal binding

force. Such customs are related to clothing, marriage, etc. Not abiding by such

customs can only result in a social boycott and not legal consequences.

2. Customs with a binding obligation

Customs that are meant to be followed by law are called customs with a binding

obligation. They are not related to social conventions or traditions. There are
mainly two types of customs with binding obligations- Legal customs and

Conventional customs.

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

obligatory in nature and attract legal consequences if not followed. Two

types of legal customs are general customs and local customs. General

customs are enforced throughout the territory of a state. Local customs

on the other hand operate only in particular localities.

2. Conventional customs: Conventional customs are those customs that

are enforceable only on their acceptance through an agreement. Such a

custom is only enforceable on the people who are parties to the

agreement incorporating it. Two types of conventional customs are

general conventional customs and local conventional customs. General

Conventional Customs are practised throughout a territory. Local

Conventional Customs on the other hand is restricted to a particular

place or to a particular trade or transaction.

The doctrine of Stare Decisis

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

The term stare decisis means to not disturb the undisturbed. In other words,

precedents that have been valid for a long time must not be disturbed.
 In India, subordinate courts are bound by the precedents of higher courts,

and higher courts are bound by their own precedents. But when it comes to

High Courts, the decision of one High Court is not binding on the other

High Courts. Their decisions are binding on the subordinate courts. In

cases where there are conflicts between decisions of court with the same

authority, the latest decision is to be followed. As per Article 141 of the

Constitution of India, the Supreme Court’s decisions are binding on all the

courts across the country. However, the Supreme Court’s decisions are not

binding on itself. In subsequent cases where there are sufficient reasons to

deviate from the earlier decision, the Supreme Court can do so.

Doctrine of Res Judicata

The term res judicata means subject matter adjudged. As per this doctrine,

once a lawsuit has been decided upon, the parties are barred from raising

the same issue in courts again, unless new material facts have been

discovered. They can’t raise another issue arising from the same claim

either since they could have raised the same in the previous suit.

Ratio Decidendi

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

principle with an authoritative element called ratio decidendi. Ratio decidendi

means reason for the decision. Whenever a judge gets a case to decide on, he

has to adjudicate it even when there is no statute or precedent concerning it.

 The principle that governs such a decision is the reason for the decision which

is also called ratio decidendi.

Obiter Dicta

The term obiter dictum means mere say by the way. This term is used to

refer to statements of law that are not required for the case at hand. A judge

may in the judgement of a case declare some legal principles to be applied

in a hypothetical situation. It does not have much impact or authority.

However, the subordinate courts are bound to apply the principles.

Definition of Codification of Law

According to the Oxford Dictionary: " Code is a systematic collection of statutes,

body of laws, so arranged as to avoid inconsistency and overlapping." This

definition of codification is not exhaustive because it does not include common

law and case law. In fact, codification is the systematic process and reduction of

the whole body of law into a code in the form of enacted law. Codification implies

collection, compilation, methodical arrangement and reduction to coherent form

the whole body of law on any particular branch of it so as to present it in the form

of a systematic, clear and precise statement of general principles and rules.

Types of Codification
we can divide codification process into following types:

• A creative code is that which makes a law for the first time without any

reference to any other law. It is law-making by legislation. The IPC (Indian

Penal Code) or PPC (Pakistan Penal Code) are belongs to this category.

• A consolidating code is that code which consolidates the whole law -

statutory, customary and precedents on a particular subject and declares it.

This is done for systematizing and simplifying the law. The Code of

Justinian belongs to this category. The same is the case with the Indian

Transfer of Property Act, 1882.

• A code may be both creative and consolidating. It may make new law as

well as consolidate the existing law on a particular subject. The recent

legislation in India on Hindu law and in Pakistan on Shariah court are the

example of this kind.

Merits of Codification of Law

• The one great merit of codification is that law can be known with certainty.

The law of contract in India can be found by a reference to the Contract

Act. Likewise, the rules of evidence in the country can be known by a study

of the Evidence Act. The certainty of law avoids confusion in the public

mind.
 • Another advantage of codification is that the evils of judicial legislation

can be avoided

• Codification is necessary to preserve the customs which are suited to the

people of a country.

• The codification of law is necessary to bring about a sense of unity in the

country.

Demerits of Codification of law

• Codification is not an unmixed blessing. It has its demerits also.

Codification bring rigidity into the legal system. It cramps and impedes the

free and natural growth of law.

• Codification results in the regimentation of the life of the people. A code

gives a uniform law to the whole country. It does not bother about the

differences in the sentiments, convictions, aspirations, customs and

traditions of the people living in different parts of the country. The result

is that liberty and individuality are sacrificed at the alter of uniformity.

• A code is likely to disturb the existing rights and duties of the people

by creating new rights and duties in place of the old ones, It disturbs the

fabric of legal order and create confusion and uncertainty.

• Interpretation of Statutes

• Interpretation of statutes refers to the process of understanding and giving

meaning to the provisions and provisions of a law or statute. When laws

 are enacted by legislatures, they are often written in broad and general

terms, which can lead to different interpretations and understandings. The

role of statutory interpretation is to clarify the meaning and intention

behind the statutory language.

• Rules of interpreting statutes are necessary because laws must be applied

to specific cases and situations. It involves analysing the text of the statute,

considering its purpose, examining the legislative history and applying

established legal principles and rules of interpretation. The goal is to

determine the legislative intent or the purpose the lawmakers sought to

achieve when enacting the law.

Principles of Interpretation of Statutes

The Courts play a vital role in interpreting statutes and assigning meaning

to them in a manner that makes them practical and usable. However, the

courts cannot exercise their interpretative function arbitrarily, as this would

result in numerous interpretations and hinder the administration of equal

justice. To ensure consistency, the Courts have developed certain

principles and rules of interpretation of statutes over time, which have been

applied by the Courts on various occasions.

 The Literal Rule of Interpretation of Statutes

The fundamental principle of interpretation is to assign words their natural

original and precise meaning, provided that the words are clear and take

into account the purpose of the statute. This rule states that the provisions

should be examined in their literal sense and given their natural effect. It is

also referred to as the Plain Reading Rule, which means that the provisions

should be read as they are without any addition or substitution of words

during interpretation.

To understand the literal rule, the following conditions must be considered:

• The statute must have a section for interpreting terms, where special

meanings of the terms are provided (i.e., the definition sections).

• If the statute does not provide specific definitions, technical words should

be given their ordinary technical meanings.

• Words should not be inserted through implications.

• Over time, words may undergo shifts in meaning.

• It should be recognised that words derive significance from their context.

The Mischief Rule of Interpretation of Statutes

The mischief rule focuses on determining the intention of lawmakers during the

interpretation of statutes. It originated in the United Kingdom in the 16th century

and was established in Heydon’s case. It was held that the primary aim of

interpreting a statute should be to identify the “mischief and defect” that the
statute intended to address and provide an effective remedy. This rule seeks to

answer the question of what problem the previous law failed to cover, leading to

the enactment of the statute in question.

Heydon’s Case (1584) 3 CO REP outlined four points to be considered when

interpreting a statute:

• What was the common law before the enactment of the statute?

• What was the “mischief and defect” that the common law did not address?

• What remedy did the parliament intend to provide to rectify the problem?

• What is the true reason behind the remedy?

The use of this rule allows judges more flexibility in determining the lawmakers’

intent, rather than being strictly bound by the literal and golden rules of

interpretation.

However, this rule has been criticised on the grounds that it introduces uncertainty

into the law and grants excessive power to unelected judges, which is seen as

undemocratic. Moreover, it is considered outdated as the common law is no

longer the primary source of law.

The Golden Rule of Interpretation of Statutes

The golden rule, also known as the “British Rule,” provides flexibility in the

interpretation process by allowing deviation from the literal meaning of words to

avoid absurd outcomes. In other words, this rule permits a judge to depart from
the ordinary meaning of a word when interpreting it would lead to an

unreasonable result. The golden rule serves as a compromise between the literal

rule and the mischief rule. It generally gives words their plain and ordinary

meaning but allows for deviations when adhering strictly to the literal meaning

would lead to an irrational outcome contrary to legislative intent.

The golden rule can be applied in both a narrow and wide sense. Narrow use

occurs when the rule is applied to ambiguous words. This is the most common

application of the rule. Wide use occurs when the rule is employed to avoid

outcomes that are contrary to public policy.

Rule of Harmonious Construction

The rule of harmonious construction is applied when there is a conflict between

two or more statutes or different parts of the same statute. This rule states that, in

the case of a conflict, the provisions should be interpreted in a way that

harmonises them, giving effect to all provisions to the greatest extent possible.

The rule is based on the premise that each statute has a purpose and should be

read as a whole, with provisions interpreted consistently. Interpretation should

not render any provision useless or use one provision to defeat others unless there

is a way to reconcile the differences.

In the case of CIT v. Hindustan Bulk Carriers AIR 2002 SC 3941, the Supreme

Court stated:“Courts must avoid direct conflict between seemingly contradictory

provisions and must interpret them in a way that harmonises them.”

Module-V
Rights and Duties

A legal right is an “interest which is protected and recognized by the

rule of law.
Essential conditions of legal right
According to Salmond, there are five essential conditions that need to
be fulfilled:

• The person of inheritance/ Subject of right:

He shall be the person who is the owner of the right. He is the subject
of the legal right. Such a person is called a person of
inheritance. Example:-Y purchase a van for Rs 20,000. Here Y is the
subject of the right.Even in the case when the property is bequest to the
unborn child, the unborn child is the owner of the property even though
he is uncertain.

• The subject of duty/ the person of incidence:

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

• Contents or Subject Matter of legal right:

The subject matter of legal right is an essential element. It deals with
the subject matter of the legal right. It is related to do something or to
refrain from doing certain acts or forbearance. It obligates the person
to forbear or act in favour of the person possessing a legal right.
Example-Y purchase a van for Rs 20,000. Here Y is the subject of the
right. The subject matter ( Y) has a legal right and he can exclude
others.

• The object of the legal right:

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

• Title of the legal right:

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

Theories Related to The Legal Right

Interest Theory--
Developed by: Rudolf Von Jhering

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

Their interest exists in the life of the community itself. They are not
created by any statute.

Classification of Legal Right

Right in rem and Right in Persona

The right in rem is the right available against society at large. For
Example:- a crime committed under I.P.C because it is a crime
committed against the state.

Right in Persona means right that is available against an individual.

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

A positive right is a right when some action needs to be done by the

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

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

Personal and Proprietary Rights

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

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

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

Perfect and Imperfect right

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

Imperfect rights are those rights which are neither recognized nor
protected by law. Example: if the loan becomes time-barred, then he
can claim his money back but it cannot be enforced by law.
Principal and Accessory Rights

The principal right is the most important rights. They are the basic right
that is vested on an individual.

The accessory right is the consequential or incidental right. They are

not important but they are ostensible to basic right.

Right in Re-aliens and Right in Re-propria

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

person. Example- The right of easement. It is the result of jurisprudence
concept of dominant heritage and servient heritage.

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

property. It results in absolute ownership. This is the result of
jurisprudence concept of ownership.

Corporeal and Incorporeal right

Both the rights are protected by law. The corporeal right is the rights
over tangible objects or material objects. Corporeal rights are having
the rights over the objects which can be seen, touch or
perceived. Example: I purchase the watch. The watch has physical
existence so I have a corporeal right over it.

The incorporeal right is the right over the object which cannot be seen
or touched. Example right to reputation.

Legal and Equitable Right

Legal rights are protected by the common law i.e Court of England.
Common law depends upon the usage and custom.
Equitable rights are protected by the equity court or the court of
chancellor. The basic principle is natural justice, equity, justice and
good conscience.

Primary and Sanctioning Rights

The primary right is important and is a very basic right. These rights
are ipso facto. These rights are independent in nature. It has a binding
force. They are right in rem. Example: the right to reputation. If these
rights are infringed in such case a person can approach the Courts of
Law. A legal remedy is available against such right in the form of
compensation or imposing a penalty or imprisonment.

Sanctioning rights are resultant rights. They are supporting rights to

primary rights. They are right in persona, which results from some
wrongdoing. Example: it arises when there is an infringement of
primary rights.

Public and Private Rights

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

Vested and Contingent Rights

A vested right is a right which is vested on the person from the very
beginning. No events are required to take place for conferring the rights
of an individual. It depends on the present situation.

Contingent rights are rights which are conferred on the happening or

non-happening of certain acts. This right depends upon future acts. If
the act which is prescribed take place then only the right will be
conferred on the person.
How Legal Right is Enforced

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

Duties

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

Legal Duties

A duty is an obligatory act. It is an act the opposite of which would be

the wrong behavior. It is something to do or denied doing in favor of
another person. A man has a duty towards any matter for which he has a
legal obligation. Thus, duties and wrongs are generally co-related.

According to KEETON, a duty is an act of forbearance which is enforced

by the state in respect of a right vested in another and breach of which is
a wrong act. Every right implies a co-relative duty and vice-versa. Duties
are of two kinds, namely Legal and Moral.

According to AUSTIN’S view, a state can have no legal rights against

the subjects which are erroneous. All duties are relative just as all rights
are. There can be no absolute duties and AUSTIN’S classification of
duties into absolute and relative duties is unsound.
A perfect right is one which corresponds to a perfect duty. A perfect duty
is one which law not merely recognizes but also enforces. In a fully
developed legal system, there are rights and duties which though
recognized by law but are not perfect in nature. Both are important but
we need not take any action for enforcing them.

Rights and duties have a close relationship and both are inseparable. Both
are existing side by side. One can say that right and duty are the two sides
of the same coin. If a legal system gives the right to life to its citizen, it
also imposes an obligation on him to not to expose his life in trouble, as
well as to respect the life and convenience of others. Thus, a strong legal
system shall consist of Legal Rights and Legal Duties like its two non-
separable parts.

Possession and ownership

Jurists have defined possession based on their personal beliefs. It is the

most fundamental interaction between man and things, according to
Salmond. However, Henry Maine defined it as “interaction with an
object that includes the exclusion of other people from enjoying it.” A
man is considered to own a thing over which he has seeming control or
over which he has apparent authority to exclude others, according to
Federick Pollock.

Elements of possession
Legal possession, according to Holland, comprises two fundamental
elements:

1. Corpus
2. Animus

Corpus Possessionis
Corpus denotes two things:

1. a) the possessor’s physical relationship to the res or object; and

2. b) the possessor’s relationship to the rest of the world.
The first point highlights that a person must have some physical touch
with whatever he owns to have a reasonable expectation that others will
not interfere with it, i.e. that others will not interfere with the
possessor’s right to use or enjoy that object. This guarantee of non-
interference can be obtained in a variety of ways:

The physical power of the possessor

The possessor’s physical power over the object in his possession works
as an assurance that the thing will be used. It’s also a guarantee that
others won’t interfere with his rights. To prevent others from
interfering with his lawful ownership, the person in possession
typically utilizes walls, gates, doors, and locks.

Personal presence of the possessor

In many cases, the possessor’s sheer physical presence is enough to
keep ownership, even if he lacks the physical power to fight
intervention. For example, a penny in a child’s hand suffices to indicate
his ownership of the currency, although that he lacks the physical
capability to do so.

Kinds of possession:-

Mediate Possession:-
Mediate possession is the possession through
another person. It is additionally called indirect possession.
For instance, if I purchase a book through an agent or servant, I have
mediate possession so long as the book remains in the possession of my
agent or servant.
Immediate possession:-
Immediate possession is additionally called
‘direct possession’. In such possession, the relation between the
possessor and the thing possessed is a direct one, and immediate
without intervening agency, it is called immediate possession.
For example, when I purchase a mobile, I have immediate
possession of it without any intervening agency.
Corporeal Possession:-
Corporeal Possession is the possession of
material things like land, house, buildings, and movable like books,
chattels, etc. In this case of corporeal possession, the corpus
possessionisconsists, firstly confirming exclusion of other’s
interference and secondly in the enjoyment of the thing at will without
external interference. Actual use of a thing is, however, not necessary.
Incorporeal Possession:-
Incorporeal Possession means
possession which is related to immaterial or intangible things which we
cannot touch, see or perceive such as copyright, trademark, right of
reputation and goodwill, etc. Actual continuous use and enjoyment are
deemed as an essential condition in incorporeal possession. The reason
being that in this case, the power of exercising the possession at will is
not visible as an objective fact because of its incorporeal nature. In
brief, continuous non-use may give rise to the non-existence of the
possession of such things.
Adverse Possession:-
Adverse possession implies the possession
by a person holding the land on his own behalf of some other person
and setting up his claim as the true owner of the land. If the adverse
possession is continuous, peaceful, undisturbed and open for more than
the years prescribed in different legal systems then, the title of the true
owner is extinguished and the person in possession becomes the actual
owner.
Constructive Possession:-
According to Pollock, constructive
possession is possession in law and not actual possession. It is a right
to recover possession.
For instance, the delivery of keys of a building or a warehouse
may give rise to constructive possession of the contents to the
transferee of the key.
Ownership
Ownership has been defined in a variety of ways by jurists. They all
agree, however, that ownership is the most comprehensive or highest
right that can be exercised over something. According to Hibbert,
ownership encompasses four different types of rights: –

1. The right to utilize something

2. The right to prevent others from utilizing the item
3. The authority to destroy it
Ownership is described as a “set of rights to use and enjoy the property,
including the right to transmit it to others,” according to Black’s Law
Dictionary.

As a result, ownership is the legal acknowledgement of a claim to a

specific piece of property. As a result, Hibbert proposes that no one can
have absolute ownership of land since it cannot be destroyed. It is only
possible to have an estate in it. An estate is a person’s legal interest in
property that is measured in time and entitles the party to utilize the
land indefinitely.

Austin’s definition of ownership

• According to Austin, ownership is a more powerful right than

possession, and it is an absolute right.
• Ownership consists of the following elements:
– If we possess a piece of property, we can certainly make use of it.

– We have complete freedom to dispose of the property.

– That property’s right is for an indefinite period.

– Available in rem against the right.

 • According to Austin, ownership is “a right that exists against
everyone subject to the law granting the ability to put things to
indefinite users.”
• He goes on to argue that ownership is a right that is limitless in
terms of duration, unfettered in terms of use, and unrestricted
in terms of disposal.
• Being the owner also – you cannot dispose of the property in
any way, it should be disposed of properly.

• South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB

44 [GOLD RING CASE]

• Facts
• In this case, the plaintiff company owned a pond upon their land.
The company employed the defendant to clean the pond. During
the cleaning operation, the defendant found gold rings at the
bottom of the pond.

• Held
• The court held that the company had the first possession of the
rings by their being the owner of the pond and hence the
defendant acquired no title.

• Bridges v. Hawkesworth (1851) 21 LJ QB 75 [BANK NOTE

CASE]

• The doctrine of finder and keeper was brought in this case.

• Facts
• A person found a bundle of notes from the stairs of a shop and
gave it to the shopkeeper and says to give it to the person to whom
 it belongs (all administrations were used but couldn’t found the
real owner) and the shopkeeper keeps it and the person who found
it filed a case on the shopkeeper.

• Issue
• To whom the bundle of notes belongs?

• The doctrine of res nullis was applied- The doctrine of finder

keeper the person who first found it will keep it.

The County court applied this doctrine in South Stafford Shiri Water
Case. This case was appealed on the divisional bench and Rod Ressel
reserved the judgment and said if you appoint a carpenter to open the
cupboard or box, the matter in the box will not be of the carpenter and
states that it will be of the plaintiff. Here the doctrine of finder keeper
Kinds of Ownership

Corporeal and Incorporeal Ownership –

Corporeal ownership is the ownership of material object. It is the

ownership of tangible things which can be perceived by the senses. For
example, ownership of house, factory, machines, etc.

Incorporeal ownership is the ownership of a right. It is the ownership

of intangible things which cannot be perceived by the senses. It also
includes intellectual property and encumbrances. For example,
ownership of shares, trademark, copyright, etc.

Trust and Beneficial Ownership –

Both ownerships are found in a trust involving a trust property. In the

trust one is made a trustee and given property to hold and use such
property for the benefits of the beneficiary.

The ownership of the trustee is trust ownership. This is a nominal

ownership and is not real as it is only for the benefit of the beneficiary.
In the eyes of law, the trustee is the representative of the beneficiary
and has no right of enjoyment of the trust property. This ownership is
only a matter of form and not of substance as the property is given
fictitiously by the law and is only deemed to be the owner of the
property due to the fiction of the law.

Legal and Equitable Ownership –

Legal ownership has its origin in the rules of common law. This is a
right in rem as it can be enforced against the whole world.

Equitable ownership has its origin in the laws of equity. This ownership
is a right in personam as it can be enforced against a particular
person. This ownership is recognized even when there is a legal defect.

Vested and Contingent Ownership –

Vested ownership means where the title of the owner is already perfect.
In this the ownership is absolute. For example, in a gift deed a donee
(to whom the gift is gifted) cannot take possession of the gift property
but he has vested interest till the death of the donor and his wife. The
donee can although transfer the said property after the death of the
donor.

Contingent ownership implies that the ownership is not absolute but

conditional. The ownership is imperfect and becomes absolute and
perfect only on fulfillment of some condition. For example, A leaves
his property to B and on B’s death to C. The ownership of C is
contingent ownership as he will get the property only after the death of
B.

Sole Ownership and Co-ownership –

Sole ownership is when only one person has the whole and sole right
in a property and no one else can claim any right whatsoever over the
property in question. o-ownership is when more than one person has a
right that is the undivided and vested in all of them at the same time.
The parties do not separately own a part but co-owners of the same
property.

Absolute and Limited Ownership –

Absolute ownership means that except the owner in whom all the rights
are vested there are no other person who can claim any right over that
property. But there may be legal or contractual restrictions upon the
usage of the said property.

The legal status of a person

• According to Salmond – “A person is any being whom the law
regards as capable of rights and bound by legal duties.” The term
‘person’ is further classified into two terms i.e, natural person and
legal/artificial person.

• Natural person

• According to Austin the term ‘person’ refers to a physical or

natural person including every being who can be deemed as
human. An individual who has his own legal personality is known
as a ‘person’ in jurisprudence. Generally, a living human being is
considered a natural person.

• The legal status of an unborn child

• As already mentioned, an individual is considered a natural
person from the time of his birth till his death. Such a natural
person is capable of bearing rights and duties, thus he has a legal
personality. Generally, a natural person before birth and after
death does not have a legal personality. So, for a natural person
to have rights and duties, he must be alive. However, the law faces
an issue when it comes to the case of an unborn child. The
subjects such as medicine and theology establish that an unborn
child is a living entity.

• As per legal fiction, a child in its mother’s womb is considered as

already born. When he is born alive, he will attain legal status. In
usual terms, the law only gives attention to living natural persons
 but in the case of an infant ventre sa mere (a child in its mother’s
womb), the law makes an exception. A child in its mother’s womb
is capable of acquiring certain rights and inheriting property, but
it all depends on whether the child is born alive or not.

• The legal status of a minor

Minors are legal subjects, and their position in a legal and social society
should be at the heart of the legal system. Their key characteristic is
that they are unable to perform legal connections on their own
thoroughly. This is due to their lack of total capacity as they enter
essential legal relationships through their parents or someone who may
replace their place.
Minors are natural persons with a legal identity. They are, however,
deemed incapable of entering into a contract. In India, minors are
usually under the age of 18 because they cannot comprehend the
essence and implications of their acts.

• Legal status of Dead Person:

Dead person – Someone who is no longer alive is called dead.

Dead persons have no legal personality and hence, cannot sue and be
sued. Dead men are no longer persons in the eye of law. Legal
personality of a person dies with his person. They do not remain the
owners of their property until their successors enter upon their
inheritance. When a person dies leaving Will, his property is distributed
according to the Will. Law recognises and takes account after the death
of the person of his desires and interest when alive. There are three
things in respect of which the anxieties of living men extend even after
their death. Those are his body, his reputation and his property.
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 the case of Animal Welfare Board of India v. Nagaraja, it is stated
that Article 21 of the Constitution of India will safeguard the rights of
all humans and protect their lives. The definition of the word ‘life’ is
expanded and explained that it includes all forms of life including
animal lives and all the animal has honour or dignity. Every species has
an inherent right to live and is required to be protected by the law

• Legal Status of Idol

It has been judicially held that idol is a juristic person and as such it can
hold property. Its position is, however, like that of a minor and the
priest, i.e., Pujari acts as a guardian to look after its interests.
CORPORATE PERSONALITY
Legal personality is an artificial creation of law. Entities under the law
are capable of being parties to a legal relationship. A natural person is
a human being and legal persons are artificial persons, such as a
corporation. Law creates such corporation and gives certain legal rights
and duties of a human being.
A legal personality Is what provides a person or organization rights and
responsibilities by the law. Usually, we automatically assume that
Humans have a legal personality. This is so as such legal systems are
built for the use of human beings. These days, the concept of legal
personality is frequently a part of discussions about the rights or legal
responsibility of the entities such as corporations that cannot be defined
by a single person.
Definition of obligation –
Although It is hard to define term Obligation some eminent Jurists
defined obligation. Definitions of Obligation are as follows –

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

therefore, may be defined as a proprietary right in personam or
a duty which corresponds to such a right.” Obligations are all in
one class of duties, namely those which are co-relatives of rights
in personam.
 • Savigny – According to Savigny an obligation is the control over
another person, yet not over his person in all respects (in which
case his personality would be destroyed), but over single acts of
his which must be conceived of subtracted from his free will and
subjected to our will
• Paton – According to Prof. Paton, an obligation is that part of
law which creates right in personam

Kinds of obligations –

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

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

Sources of Obligations

1. Contractual obligation (obligations ex contractu)

According to Section 2(h) of the Indian Contracts Act, Contracts are

legally binding agreements. These are the obligations that result from
a contract between two people. It establishes in personam rights
between the parties. The rights that are created in this way are usually
proprietary rights. Sometimes, despite being in personam, a contract
creates rights that are not proprietary.

• Delictual obligation (Obligationes ex delicto)

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

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

These are the obligations created by quasi-contracts.

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

• Innominate obligation

“Innominate obligation is a type of residuary obligation” according

to Salmond,
Innominate obligations are not purely Non-contractual, delictual, and
quasi-contractual obligations . This means they haven’t been given a
name or a label.
For example. With regard to the beneficiary, the trustee has a fiduciary
obligation. Infringement of a trustee’s obligation on a beneficiary’s
property is directly responsible to the trustee.

Definition of Civil Liability

A plaintiff imposes civil liability against the defendant. In the case of

civil proceedings, the plaintiff has the right to demand compensation or
damages from the defendant, for the loss suffered by him

In civil liability, the aggrieved party is entitled to seek redressal from

the defendant such as the right to sue for damages for personal injury.
The loss must have to be sustained by the aggrieved party, to get the
reward for damages. The loss can be a personal injury, damage to
property, financial loss etc.

The plaintiff usually seeks financial compensation for the injury or loss
of the non-criminal act performed by the defendant.

Definition of Criminal Liability

A victim imposes criminal liability against the accused. In case of any
criminal proceedings, victims look for punishment which can be in the
form of imprisonment or penalty for the wrongdoer. For
example Murder, theft, sedition, rape, assault, etc.

In criminal cases, generally, the state prosecutes the defendant in the

court of law. Moreover, in such cases, it is assumed that both physical
and mental element is present in any criminal offence.

Principles of Criminal Liability

It is the responsibility of the prosecution to establish two elements to

create a criminal liability:

• Actus Reus (Prohibited Act)

• Mens Rea (Guilty Mind)

Strict Liability
The principle of strict liability evolved in the case of Rylands v Fletcher
(1868) strict liability states that any person who keeps hazardous
substances on his premises will be held responsible if such substances
escape the premises and causes any damage. Going into the facts of the
case, F had a mill on his land, and to power the mill, F built a reservoir
on his land. Due to some accident, the water from the reservoir flooded
the coal mines owned by R. Subsequently, R filed a suit against F. The
Court held that the defendant built the reservoir at his risk, and in course
of it, if any accident happens then the defendant will be liable for the
accident and escape of the material.

Exception to the Rule of Strict Liability

There are certain exceptions to the rule of strict liability, which are-

Plaintiff’s Fault: If the plaintiff is at fault and any damage is caused,

the defendant wouldn’t be held liable, as the plaintiff himself came in
contact with the dangerous thing.
Act of God: The phrase “act of God” can be defined as an event which
is beyond the control of any human agency.
Act of the Third Party: The rule also doesn’t apply when the damage
is caused due to the act of a third party. The third party means that the
person is neither the servant of the defendant, nor the defendant has any
contract with them or control over their work. But where the acts of the
third party can be foreseen, the defendant must take due care.
Otherwise, he will be held responsible.
Consent of the Plaintiff: This exception follows the principle
of violenti non fit injuria.

For instance, if A and B are neighbours, and they share the same water
source which is situated on the land of A, and if the water escapes and
causes damage to B, he can’t claim damages, as A wouldn’t be liable
for the damage.

Absolute Liability
The rule of absolute liability, in simple words, can be defined as the
rule of strict liability minus the exceptions. In India, the rule of absolute
liability evolved in the case of MC Mehta v Union of India.[ A.I.R.
1987] This is one of the most landmark judgment which relates to the
concept of absolute liability.

The facts of the case are that some oleum gas leaked in a particular area
in Delhi from industry. Due to the leakage, many people were affected.
The Apex Court then evolved the rule of absolute liability and stated
that the defendant would be liable for the damage caused without
considering the exceptions to the strict liability rule.

According to the rule of absolute liability, if any person is engaged in

an inherently dangerous or hazardous activity, and if any harm is
caused to any person due to any accident which occurred during
carrying out such inherently dangerous and hazardous activity, then the
person who is carrying out such activity will be held absolutely liable.
The exception to the strict liability rule also wouldn’t be considered.
Title
Title is a link between a person and an object to establish ownership of
property. A title is the de facto antecedent of which the right is the de
jure consequent. Right of possession on ownership comes in term of de
facto first and later de jure.
For example, I have a watch on my hand. How it can be said that it is
my, or I have title over it. I have either purchased it, or someone has
gifted me, or I have inherited it from elsewhere. Title is created even of
stolen objects. It is right of ownership in fact and in law over property
According to Salmond, title is the fifth element of a legal right. He said
Every legal right has a title, that is to say, certain facts or events by
reason of which the right has become vested in its owner.
Holland does not include title as an element of legal right. A tendency
is noticed towards the identification of title with right.
Austin also does not approve of the use of title for right. His contention
is that, title is not the right itself but merely an element of right.

• Legal rights are created by title. A person has right to a thing

because he has a title to that thing.

Title = any fact which creates a right or duty.

Classification of Titles:

According to Salmond, “The title is the de facto antecedent of which

the right is the de jure consequent.”
Title is the root from which rights proceed.

• Vestitive facts are those which have relation to right. They

•
• relate to the creation, extinction and transfer of rights. Investitive
facts create them and divestitive facts destroy them.
The main features of Vestitive facts are that they create either a right or
extinguish it or transfer it from one person to another.
The Vestitive facts are classified into two parts –

1. Investitive facts : Investitive facts create rights. This right is

created first time on the objects, which are ownerless. When I
catch fish it is my original title and if I purchase it from elsewhere
then it is called derivative title. Derivative right is second right,
which is created after gone away of original right.

Titles are also called investitive facts or facts as a result of which a

right comes to be vested on its owner.
Investitive facts or titles are further divided into

• Original title – A right may be created de novo and it may have

no previous existence. Such a right is called an original title.
• Derivative title – If a right is created by the transfer of an existing
right, it is called a derivative title.
• Divestitive facts are divided into:
• Extinctive divestitive facts– The facts of which the legal result
is to destroy rights are called extinctive divestitive facts.
• Alienative derivative facts-The facts of which the legal result is
to transfer right from the owner are called alienative derivative
facts.

It is to be noted that in the case of a transfer of right, the same facts are
derivative investitive facts and alienative divestitive facts.
Property

In the widest possible sense, the property includes all the legal rights of
a person, no matter what his description is. The property of a man is all
that belongs to him following the law. Although it is becoming a
fashion now, such a usage of the term is common in old books.
According to Blackstone: “The inferior hath no kind of property in the
company, care or assistance of the superior, as the superior is held to
have those of the inferior.”

According to Locke: “Every man has a property in his person. Every

individual has the right to preserve his property, that is, his wife, liberty
and estate.”

In a narrower sense, the property includes the proprietary rights of a

person and not his rights. Proprietary rights constitute his estate or
property, whereas, personal rights includes his status or personal
condition

Kinds of Property

Corporeal Property

The other name for the corporeal property is tangible property because
it has a tangible existence. It relates to material things. The right of
ownership of a material thing is the general, permanent and inheritable
right of the user of the property or thing. Further corporeal property can
be divided into two categories-

Movable
Chattels, for example, leases, to cows, to clothes etc are movable
property. It simply includes all corporeal property which is not
immovable.

Immovable
Land, for example, is an immovable property. According to Salmond,
an immovable piece of land has many elements attached to it. It is
inclusive of the ground beneath the surface down to the centre of the
world. Interestingly, it also includes the column of space above the
surface ad infinitum.
Incorporeal Property

Incorporeal property is intangible property. The other terms frequently

used are intellectual or conventional property. It includes all those
valuable interests which are and can be protected by law.

Modes of acquisition of property

Salmond refers to four modes of acquisition of property- possession,
prescription, agreement, and inheritance.

Possession

It is the objective realization of ownership. The possession of a material

object is a title to its ownership. The de-facto relation between person
and thing brings the de-jure relation along with it

Prescription

According to Salmond, “Prescription may be defined as the effect of

lapse of time creating and destroying rights; it is the operation of time
as a versatile effect.”

Agreement

According to Paton, an agreement is an expression by two or more

persons communicated to each other of a common intention to affect
the legal relations between them. It is an outcome of a bilateral act

Inheritance

Another way of acquiring property is by means of inheritance. When a

person dies, certain rights survive him and pass on to his heirs and
successors. The rights which are survived by a person are called
inheritable rights.
Meaning and nature of substantive laws and procedural laws
• Both the substantive laws and the procedural laws are two related
sets of legal systems and are interdependent on each other.

• Substantive laws are the essential laws that govern any particular
field and declare the rules and lay down the principles. The Indian
Penal Code (IPC) which lays down different types of crimes and
defines their respective punishments is one of the examples of
substantive laws in India.

• Procedural laws are the set of procedures to be followed for

making, administering and enforcing substantive laws. For
example, the Code of Criminal Procedure (CrPC) defines the
procedures to be followed in criminal proceedings in India.

• Substantive laws are the statutory laws passed by the

legislature.
• Whereas, procedural laws comprise the rules and processes
which any court follows for hearing and determining the cases.
In absence of substantive laws, procedural laws cannot be framed.
Similarly, without procedural laws, substantive laws cannot be applied
fairly and properly. Both the laws are equally important and one could
not be applied effectively in absence of the other law.