Class –LL.B. (HONS.)III SEM.

Subject–Jurisprudence

SYLLABUS
No Topic
1 Definition of Jurisprudence
2 Definition of Law and Kinds of Law
3 Justice and its kinds
4 Sources of Law

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1 Natural law school
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2 Analytical school, Imperative Theory of law, Pure Theory of law
3 Historical school
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Sociological school
Realistic school
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6 The ancient : The concept of 'DHARMA'
7 Feminist – Schools of Jurisprudence

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1 Legislation
2 Precedents – concept of Stare Decisis
3 Customs

1 Rights: kinds, meanings

2 Duty: meaning and kinds
3 Relation between right and duty
4 Nature of personality
5 Status of the unborn, minor. lunatic, drunken and dead persons
6 Corporate personality : Dimension of the modern legal
personality: Legal personality of non-human beings

1 Ownership and possession

2 Its kinds
3 Title
4 Liability

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

5 Obligations

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

JURISPRUDENCE – THE PHILOSOPHY OF LAW

UNIT I
INTRODUCTION

Understanding Jurisprudence amounts to laying a strong foundation on which a towering building can
stand that have the capability of withstanding the pressures of all forces working in any society. Since
law is a means to do justice, studying jurisprudence contributes to a deeper understanding of law by
providing the tools to engage in rational criticism of the law.
All the stakeholders in the legal arena have to compulsorily understand the jurisprudential nuances of
the basic concepts, which constitute the ‘essence of law’ and continuously engage their attention in the
legal administration endeavoring to bring about just social order.
Having dealt with the various schools and sources of law, this compilation also contains basic

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understanding of Justice, Right, Person, Duty, and Possession etc.
The constituents being delivered are the unprecedented scripts of the intellectuals who have expounded

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these for their understandings and implications. The objective of the course outline is to inform the

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reader with these background materials and to stimulate them to have an independent critical analysis

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of social facts with originality.

DEFINITIONS OF JURISPRUDENCE

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Defining any term is just a way to outline the best possible ways to explore the meaning of term in focus.

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Definitions, even on a singular term, can be given by many scholars in their own varied ways, but their

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ultimate reflection comes to end on a common objective. Out of ocean of definitions available, some of the

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vital definitions to be kept in mind are outsourced as under mentioned:

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Ulpian

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The Roman Jurist, Ulpian, defined Jurisprudence as "The observation of things human and divine, the

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knowledge of just and unjust."

Salmond
Salmond defines Jurisprudence as the "Science of the first principles of civil law".
In Salmond's point of view, Jurisprudence thus deals with civil law or the law of the state. This kind of law
consists of rules applied by courts in the administration of justice.
There are three kinds of laws that govern the conduct of human in a society:
▪ Theologian Laws - Derive their authority from a divine or superhuman source intended to regulate
human conduct as well as beliefs and are enforced by spiritual rewards or penalties in the other world
(ultra-mundane sanctions)
▪ Moralist Laws - Man-made that exist in all societies, both primitive and most civilized. There is no
definite authority to enforce the laws, but the public. Inner belief
▪ Jurist Laws - Regulates external human conduct only and not inner beliefs. They can exist in
politically organized societies, which has a Government. They are enforced by courts or judicial
tribunals of the society which applies a variety of sanctions ranging from fines to capital punishments.
According to Salmond, Jurisprudence is the science of first principles of jurist law or in Salmond's words
civil law.

Austin
Austin defines Jurisprudence as the "Philosophy of Positive Law".
Positive Law means the law laid down by political superior to regulate the conduct of those subject in his
authority. The positive law is identical to civil law. However, the term Philosophy is misleading.
Philosophy is the theory of things, man and divine, while Jurisprudence only deals with man-made law.
Holland

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

Holland defines Jurisprudence as "The Formal Science of Positive Law". He says "Jurisprudence deals
with the human relations which are governed by rules of law rather than with the material rules
themselves."
Formal science differs from material science in the way that formal science deals with fundamental
principles underlying and not concrete details.

Thus, the selective definitions of the term Jurisprudence.

DEFINITIONS OF LAW
Framing a question before focusing on the definitions of law, every scholar must think of this question –
“If law remains the species, what will be the genus of it?” The answer to the above question will develop
the analytical understanding of law, among each and every scholar. The answer to this question comes to

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be as the basic source from which the laws has been originated, vis-a-vis the Customs and Conventions.
That is to say that law has been born out of its parents named as Customs & Conventions.

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Under mentioned are some of the most significant definitions, selected out of various available from

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different sources:

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It is possible to describe law as the body of official rules and regulations, generally found in constitutions,

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legislation, judicial opinions, and the like, that is used to govern a society and to control the behaviour of

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its members, so Law is a formal mechanism of social control. Legal systems are particular ways of

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establishing and maintaining social order.

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"A body of rules fixed and enforced by a sovereign political authority."

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- John Austin (Province of Jurisprudence Determined)

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Hart defined law as a system of rules, a union of primary and secondary rules.
- Hart, H.L.A. (The Concept of Law, 1961)

• “An embodiment of Reason”, whether in the individual or the community’.

- Plato & Aristotle (The Greek Philosophers, supporting Natural Law)

• "Nothing else than an ordinance of reason for the common good, made by him who has care of the
community, and promulgated"
- St. Thomas Aquinas (The Italian Philosopher in Summa Theologica)

• "The sum of the influences that determine decisions in courts of justice."

- Lord Browne – Wilkinson (The Senior Lord born in 1930)

CLASSIFICATION OF LAWS
Laws can be classified in two categories:
1. Functional category
2. Intellectual category

Dealing with the functional category, laws can be divided as under:

Criminal laws: designed to protect society as a whole from wrongful actions (police can take action)

1. Traffic/road laws

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

- drink driving
- speeding
- illegal use of an aeroplane
- driving in an unregistered vehicle
- wilful damage of vehicles
- not wearing a helmet
- stopping for pedestrians
- correct indicating
2. Public order (peaceful and safe community)
- drug use
- public decency (sleeping on the streets)

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- carrying of weapons in public

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- dry areas

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- rioting

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- protest marches (staying non-violent)

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- assault

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- defamation (writing things about people that are not true which harm their character)
3. Property

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- arson
- trespass
- larceny (theft)
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- littering
- vandalism

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- intentional damage

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4. People

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- passive smoking
- rape
- murder
- harassment
- suicide
- sexual abuse

Civil laws: Help to solve problems which occur between individuals or groups (trained legal personnel
and courts help to solve)

1. Contract law (agreements, responsibilities)

- not allowed to break a contract
- marriage
- fishing licenses
- misleading advertisements
2. Employment law
- reason for firing someone
- fair duties as an employer
- equal opportunities
- not to work over 40 hours in any one week (appropriate overtime penalties)
- wrongful dismissal
- age discrimination
3. Family law

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

- abuse of children
- catering for kids until they are 18 years old
- domestic violence
- custody of children
- registration of birth
- maintenance issues
4. Law of Torts
- compensation (dog biting)
- accidents involving other animals
- others injuring themselves on your property

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On the other hand, dealing with the intellectual category, laws can be classified as under:

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Intellectual sense of laws, denotes uniformity and regularity of actions. That is to say the relation derived

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from the nature of the things. Sir John Salmond has given an historical contribution to the classification

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of such laws, which are stated as under1:

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Salmond has classified law in its widest sense in eight different kinds, which are as under:

1. Imperative Law:

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It is a rule, which prescribes a general course of action imposed by some authority which enforces it by
superior power cither by physical force or any other form of compulsion.

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The chief exponent of this kind of law is Austin. According to him positive law is a command, which

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obliges a person or persons to a course of conduct. A sovereign individual or sovereign body of individuals
sets it to a person or persons in a state of subjection to its author. Being a command it must issue from a

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determinate person or group of persons with the threat of displeasure, if the rule were disobeyed.

2. Physical or Scientific Law:

According to Salmond physical laws or the laws of science are expressions of the uniformities of nature
general principles expressing the regularity and harmony observable in the activities and operations of
the universe. It governs the growth of bodies, the law of gravitation, the laws governing the planetary
motion, etc.

3. Natural or Moral Law:

It is that portion of morality, which supplies the more important and universal rules for governance of
outward acts of the mankind. In short, the law of nature is written by the lingers of nature in the hearts
of mankind. It consists of the principles of natural right or wrong or the principles of justice in its widest
sense.
It is also known as ‘Divine Law’ being the command of God imposed upon men, ‘Unwritten Law’ (not
written on brazen tablets or on pillars), ‘Universal or Common Law’ (being of universal validity), Law of
Reason (being established by that Reason which governs the world) and Eternal Law (being uncreated
and immutable).

4. Conventional Law:

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Retrieved on the 19th day of July 2015 at 1645 Hours (exactly) from - http://www.studylecturenotes.com/social-
sciences/law/124-kinds-of-law

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

It consists of rules or regulations of voluntary organizations, e.g., clubs, associations, etc. Such law ac-
quires its force or validity from the agreement between the parties concerned. It may be noted here that
conventional law when enforced by the State assumes the form of positive law.

5. Customary Law:
It comprises the reasonable customs and usages observed as a right from immemorial antiquity by a
particular family or by society as a whole. According to Salmond by customary law here we mean any
rule of action, which is actually observed by men any rule, which is the expression of some actual
uniformity of voluntary action.

6. Practical or Technical Law:

It consists of rules for the attainment of a practical end, e.g., the laws of health, the laws of architecture,
the rules for efficient conduct of any art or business, etc.

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7. International Law:

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It is an aggregate of rules and regulations recognised and accepted by civilised Suites in their relations

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with each other. According to Oppenheim it is the name for the body of customary and conventional rules,

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which are considered legally binding by the civilised states in their intercourse with each other.

8. Civil Law:

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Salmond defines civil law as the “law of the State, the law of the land, the law of the lawyers and law

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courts”. It is the law of the realm and has variously been named as municipal law, positive law or national

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law. It is the law in the strictest sense of the term. It is the main orbit round which Jurisprudence, the
science of law, rotates and forms its subject matter.

JUSTICE & ITS KINDS

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In this chapter we are concerned with issues of justice and its kinds. A striking feature of our society is
its vast disparities in wealth, power and status. Are these disparities just? What moral principles should
we use as the basis for our choice of legal institutions and arrangements to deal with social and economic
inequality? Is it legitimate goal of Government to reduce poverty, using measures like progressive income
and wealth taxes to redistribute resources from wealthier to poorer members of society? Or is it the case
that there is a right to economic freedom which trumps all social goals, including the creation of a more
just society, in which case any interference with economic freedom to reduce poverty would be difficult
to justify or might not even be justifiable at all? There are Jurists like Jermy Bentham, John Rawls, Robert
Nozick who has expounded there contributory theories to explain all these stigmas.

Justice is action in accordance with the requirements of some law. Whether these rules are grounded in
human consensus or societal norms, they are supposed to ensure that all members of society receive fair
treatment. Issues of justice arise in several different spheres and play a significant role in causing,
perpetuating, and addressing conflict. Just institutions tend to instill a sense of stability, well-being, and
satisfaction among society members, while perceived injustices can lead to dissatisfaction, rebellion, or
revolution. Each of the different spheres expresses the principles of justice and fairness in its own way,
resulting in different types and concepts of justice: distributive, procedural, retributive, and restorative.

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

These types of justice have important implications for socio-economic, political, civil, and criminal justice
at both the national and international level2.

Distributive justice3, or economic justice, is concerned with giving all members of society a "fair share"
of the benefits and resources available. However, while everyone might agree that wealth should be
distributed fairly, there is much disagreement about what counts as a "fair share." Some possible criteria
of distribution are equity, equality, and need. (“Equity” means that one's rewards should be equal to one's
contributions to a society, while "equality" means that everyone gets the same amount, regardless of their
input. Distribution on the basis of need means that people who need more will get more, while people
who need less will get less.) Fair allocation of resources, or distributive justice, is crucial to the stability
of a society and the well-being of its members. When issues of distributive justice are inadequately
addressed and the item to be distributed is highly valued, intractable conflicts frequently result. This is

taxes, deficits, "austerity programs," jobs, rights of labor, etc.

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the essence of the conflicts playing out across Europe and in United States politics in 2012-2013--over

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Procedural justice4 is concerned with making and implementing decisions according to fair processes

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that ensure "fair treatment." Rules must be impartially followed and consistently applied in order to

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generate an unbiased decision. Those carrying out the procedures should be neutral, and those directly

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affected by the decisions should have some voice or representation in the decision-making process. If

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people believe procedures to be fair, they will be more likely to accept outcomes, even ones that they do

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not like. Implementing fair procedures is central to many dispute resolution procedures,

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including negotiation, mediation, arbitration, and adjudication.

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Retributive justice5 appeals to the notion of "just desert" -- the idea that people deserve to be treated in

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the same way they treat others. It is a retroactive approach that justifies punishment as a response to

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past injustice or wrongdoing6. The central idea is that the offender has gained unfair advantages through

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his or her behavior, and that punishment will set this imbalance straight. In other words, those who do
not play by the rules should be brought to justice and deserve to suffer penalties for their transgressions.
The notion of deterrence also plays in here: the hope is that the punishment for committing a crime is
large enough that people will not engage in illegal activities because the risk of punishment is too high. In
addition to local, state, and national justice systems, retributive justice also plays a central role in
international legal proceedings, responding to violations of international law, human rights, and war
crimes.

However, because there is a tendency to slip from retributive justice to an emphasis on revenge, some
suggest that restorative justice processes are more effective. While a retributive justice approach

2
More for information on justice, see: Morton Deutsch, "Justice and Conflict," in The Handbook of Conflict Resolution:
Theory and Practice,Morton Deutsch, Peter T. Coleman, Eric C. Marcus, eds. (John Wiley & Sons, 2011).
http://books.google.com/books?id=rw61VDID7U4C

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Retrieved on the 19th day of July 2015 at 1700 Hours (exactly) from - http://www.beyondintractability.org/essay/types-
of-justice
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Supra note 4
5
Ibid
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See the chapter "Retributive Justice and the Limits of Forgiveness in Argentina," in Mark R. Amstutz, The Healing of
Nations: The Promise and Limits of Political Forgiveness, (Rowman & Littlefield, 2005).
http://books.google.com/books?id=gTFnh2GuD8EC

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

conceives of transgressions as crimes against the state or nation, restorative justice focuses on violations
as crimes against individuals. It is concerned with healing victims' wounds, restoring offenders to law-
abiding lives, and repairing harm done to interpersonal relationships and the community. Victims take
an active role in directing the exchange that takes place, as well as defining the responsibilities and
obligations of offenders. Offenders are encouraged to understand the harm they have caused their victims
and take responsibility for it. Restorative justice aims to strengthen the community and prevent similar
harms from happening in the future. At the national level, such processes are often carried out through
victim-offender mediation programs, while at the international level restorative justice is often a matter
of instituting truth and reconciliation commissions7.

Thus, the Justice and its kinds are explained in short length.

ELEMENTARY SOURCES OF LAW8

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. It was at first found in the office of some leader of the bar. Here was the first set to reading such works

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as Montesquieu, Grotius, Puffendorf, Vattel, Hale's History of the Common Law, the Institutes of Justinian,

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and perhaps a few books of the Pandects, and then given Blackstone's Commentaries9. Whatever else

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might be omitted, in any case, Blackstone's Commentaries never were. Soon came the first Law School,

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that at Litchfield-, Connecticut, first opened in 1784, where instruction was given by elaborate lectures

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on the whole field of law, supported by references to leading cases in the reports. Later Law schools

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followed first the same method, and then added to it recitations from standard text-books. The great aim

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was to acquaint the student with the principles of law in such an order of arrangement, and with such

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reference to their historical development, as would best impress them permanently upon his mind. Cases
were used mainly to support or illustrate antecedent propositions. They were regarded less as sources

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of law than as channels of law.

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Bacon revolutionized the processes of philosophy with respect to the study of the physical world. He left

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them where Aristotle left them with respect to the study of reasoning from assumed premises to logical
conclusions by pure laws of thought10. He left them as Aristotle left them, in their application to methods
of legal education, and we have his own word for it. In his de Dignitate et Augmentis Scientiarum, the
father of the inductive philosophy devoted a separate title' to the Sources of Law. Unless, he says, law is
certain, it cannot be just. Hence, that law is best quae minimum relinquit arbitrio judicis.' His ideal to aim
at was the formation of an official code of written law, stated with such clearness that he who runs might
read it11.

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For further clarification of the different forms of justice, including retributive, restorative, and procedural, see Jeffrey
A. Jenkins's discussion on "Types of Justice," in The American Courts: A Procedural Approach, (Jones & Bartlett
Publishers, 2011). http://books.google.com/books?id=yvT5SVwbakUC.

8
Baldwin, Simeon E., "The Study of Elementary Law, the Proper Beginning of a Legal Education" (1903). Faculty
Scholarship Series. Paper 4313. Retrieved on the 19th day of July 2015 at 1820 hours (partially) from
http://digitalcommons.law.yale.edu/fss_papers/4313 additionally from:
http://digitalcommons.law.yale.edu/fss_papers

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Wood's HeinOnline -- 13 Yale L.J. 2 1903-1904 THE STUDY OF ELEMENTARY LAW.
10
Works, VII, 458, Aphorisms LXXXI. Ibid

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Praeparendi sunt juvenes et novitii ad scientiant et ardua juris altius et conmnodius haurienda et imbibenda per
institutiones. Ibid.

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

Meanwhile, for the better understanding of what the written law might leave doleful, the judgments of
the highest courts were to be looked to as the surest guide. They were to be arranged and digested in
order of time, not in that of their subject-matter, since not only the decisions, but the times in which they
were pronounced, were to be considered in estimating their due authority. This work was to be done at
public cost, and not by any of the judges, lest they should stuff the book too full of their own opinions12.
Such works, however, were for the information of the lawyer or the citizen. So far as they set forth the
rules of public law, they were also proper to be put in the hands of the student of law. Not so as to private
law. This must be taught by institutional treatises, set out in clear and plain order, "not omitting some
subjects and dwelling too long on others, but touching upon each briefly, so that to a student afterwards
coming to read the whole body of the law nothing may appear wholly new, but as that of which some
little, notion had been previously imparted (levi aliqua notione praeceptum).
. A great American lawyer and law teacher, speaking in the same vein, has said that cases do not make

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principles: they only illustrate them; and that the well-trained student has a higher learning than they
can furnish. "He does not," to quote his words, "need to wade through hundreds of volumes of books to

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see whether a particular point has been somewhere or other decided. He knows how it was decided, if it

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ever was, and how it ought to be decided if it never was.

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The more details of the sources of law will be detailed in UNIT III.

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R UNIT II

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SCHOOLS OF JURISPRUDENCE

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Focusing on the various philosophies of Jurisprudence, there are six major schools through which we can
study all these philosophies viz:

1. The Historical School of Jurisprudence

2. The Analytical School of Jurisprudence
3. The Philosophical School of Jurisprudence
4. The Comparative School of Jurisprudence
5. The Sociological School of Jurisprudence
6. The Synthetic School of Jurisprudence

Elaboration:

1. The Historical School of Jurisprudence:

Contributors (major): Henery Maine, Montesquieu, Hugo, Savigny etc.

The task of this school is to deal with the general principles governing the origin and development
of law, and with the influences that affect the law. This school points out to the history of first
principles and conceptions of the legal system. From this school of jurisprudence one can know

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See Sir William Hamilton's Lectures on Logic, Lect. XVII. -Lib. VIII. Cap. III. 3Works, 4 Ed. of 1803, VII, 44.
HeinOnline -- 13 Yale L.J. 7 1903-1904 YALE LA;V JOURNAL

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

the origin, sources and development of law, together with the origin and development of various
societies.
According to Sir Henry Maine, Montesquieu may easily be considered as the first jurist of this
school, who in his ‘Espirit Des Lois’ (spirit of the laws) has made a very remarkable contribution
to human knowledge. His only defect was that he paid too much importance to the accidental and
external causes in framing of the laws, and thus failed to see the importance of the qualities of
human nature or race which go to make and develop the law.

Some of the important points to be focused for this school of jurisprudence are:

a) Evolution/ development of law.

b) Darvin theory of living is the base.
c) Changing needs of the society.

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d) Law is the dynamic nature, which change according the needs of the society.

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e) Law has the organic character.

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f) Every thing has a natural selection.

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g) The positive law must conform were not principles of morals but principles of customary

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action. They could be traced not by reasoning but by historical study.

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h) They reject all the creative principle of judge and jurist or law –giver in making of law.

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i) Evolution of law from the primitive legal institutions of the ancient communities.

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The Historical school, thus made history as important as reason in the development of law. Its only defect

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is that it has identified law with custom, which is actually not law, but best ‘quasi law’.

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2. The Analytical School of Jurisprudence:

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Contributors (major): Bentham, Austin, Salmond etc.

The Analytical School is positive in its approach to the legal problems in the society. It is not
concerned with the ideals and takes the law as given by the state, whose authority it does not
question. The legal system is thus made water-tight against all ideological intrusions, and all legal
problems are couched in terms of legal logic. Its purpose is only to analyze the first principles of
law-without reference either to their historical origin or development or to their ethical
significance or validity.

The Analytical School has made several important contributions, which can be summarized as
follows:

1. Positive law and ideal law have been kept strictly distinct. It has thus analyzed the concept of
civil laws and established its relationship with other forms of law.
2. All positive law is deduced from a clearly determinable lawgiver, e.g. sovereign.
3. This school also lays down the essential elements that go to make up the whole fabric of law
e.g. State Sovereignty and the administration of justice.
4. The analytical school investigates about each source from which the law proceeds.
5. It inquires the scientific division of the whole fabric of law.
6. It also analyses the concept of legal rights, together with division of rights.
It also considers such allied problems like property, possession, obligations, contracts, trusts,
incorporation, intention, motive and negligence that directly or indirectly affect the fabric of law.
7. It favors codification of laws.

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

3. Philosophical Jurisprudence:

Contributors (major): Bacon, Grotius, Spinoza and Kant.

Ethical jurisprudence is a branch of legal philosophy, which approaches the law from the
viewpoint of its ethical significance and adequacy. It deals with the law as it ought to be an ideal
state. It investigates the purpose of law and the measure and manner in which that purpose is
fulfilled. It concerns itself chiefly with the relation of law to certain ideas which law is meant to
achieve. This area of study brings together moral and legal philosophy. In German, ethical
jurisprudence is known as Rechtsphilosophie and in French it is known as philosophie du droit.

philosophical/ethical jurisprudence:
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Understated are some of the points, which are to be kept in mind while studying

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Ethical School, Metaphysical School or Law of Nature School: The philosophical school concerns

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itself chiefly with the relation of law to certain ideals which law is meant to achieve. It investigates

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the purpose of law and the measure and manner in which that purpose is fulfilled. The

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philosophical jurist regards law neither as the arbitrary command of a ruler nor as the creation

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of historical necessity. To him law is the product of human reason and its purpose is to elevate

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and ennoble human personality.

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Relation between Ethics and Jurisprudence: The philosophical school regards the perfection of

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human personality as the ultimate objective of law. The science of Ethics, which deals with the
principles and moral considerations affecting man's conduct and constituting his criterion of right

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and wrong, also sets for itself the goal of making man virtuous and so attain perfection. Since the

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ultimate objectives of jurisprudence and ethics are thus co-incident, philosophical jurists seek to

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differentiate between the subject-matter of the two sister sciences.

Ethics does not rely upon Compulsion: The German philosopher Immanuel Kant made a clear
distinction between law and ethics. In "Lectures on Ethics" Kant observes: "Ethics concerns itself
with the laws of free action in so far as we cannot be coerced to it, but the strict law concerns itself
with free action in so far as we can be compelled to it". Ethics is the science of virtue while law
belongs to the science of right. Ethics aims at the elevation of man's inner life while law seeks the
regulation of his external conduct. Organised society should not exercise compulsion to make
man virtuous. Compulsion should be confined to the reguation of man's external conduct. "Woe
to the political legislator", said Kant, "who aims in his Constitution to realise ethical purposes by
force, to produce virtuous intuition by legal compulsion. For in this way he will not only effect the
very opposite result, but will undermine and endanger his political Constitution as well".

The Common Ground of Law and Ethics: Salmond points out that "philosophical jurisprudence is
the common ground of moral and legal philosophy, of ethics and jurisprudence". The justification
for this statement would be found when we examine the concusions of philosophical
jurisprudence.

The philosophical school rivets its attention on the purpose of law and the justification for
coercive regulation of human conduct by means of legal rules. Immanuel Kant has shown that the
chief purpose of the law is the provision of the field of free activity for the individual without
interference by his fellowmen.

12
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

4. The Sociological School of Jurisprudence:

Contributors (major): Roscoe Pound, Paton, Montesquieu etc.
The sociological questions in jurisprudence are concerned with the actual effects of the law upon
the complex of attitudes, behaviour, organization, environment, skills, and powers involved in the
maintenance of a particular society. Conversely, sociological jurisprudence is also concerned with
the effects of social phenomena on both the substantive and procedural aspects of law, as well as
on the legislative, judicial, and other means of forming, operating, changing, and disrupting the
legal order. The fact that people in a given time and place hold particular ideas and values,
including ideals of justice, is itself a fact the relation of which to law must be studied; but the focus
is sharply different from that in the study of theories of justice. Its focus is descriptive,
not normative; it is concerned with what is or with what goes on, not with what ought to be or
ought to go on.

c e
This school is comparatively modern, and it devotes itself to the study of law as a social

n
phenomenon, and tries to examine the consequences of law on homo-sapiens in civilized

a
societies.

s e
It deals with the study of social consequences of law and with the observation of social

is g
phenomenon. It also studies about crime and punishment in its important branch called

a e
Criminology.

l l
The jurist's function is to formulate these jural postulates for the civilization of the time and place

n o
by observation of the phenomena of a given society and objective synthesis of the principles

e
concerning human conduct which such society presupposes. Under the guidance of these jural

R C
postulates, the legislators and judges are to formulate and shape the development of the law.
While Kohler recognizes the weakness of abstract logical propositions, he is never definite as to

w
the nature of the phenomena from which the postulates are to be drawn. It was from James and

a
pragmatism that Pound derived the ethical and philosophical basis for his theory of interests.'

L
Therefore, some consideration should be given to James's ethical ideas13.
Considering the meaning of the terms "good," "ill," and "obligation," James reasons that these
words can have no meaning in a merely material universe, where no sentient life exists." They
take on meaning only in relation to the consciousness of sentient beings. When one sentient being
comes into existence, there is a chance for good and evil to exist. "Moral relations now have their
status in that being's consciousness. So far as he feels anything to be good, he makes it good."
Being good for him, it is "absolutely good," "for he is the sole creator of values in that universe,
and outside of his opinion things have no moral character at all."" If there are two individuals in
this universe, you cannot find any ground for saying the opinion of one is more correct than that
of the other or that either has the "truer moral sense." Such a world is a "moral dualism," and if
there are many such persons, a "pluralism." The philosopher, therefore, to obtain a hierarchical
scheme of values "must trace the ought itself to the de facto constitution of some existing
consciousness, behind which, as one of the data of the universe, he as a purely ethical philosopher
is unable to go." Such consciousness must make right and wrong such by feeling it to be so. If one
thinker were divine, the others (human) would accept him as a model, but even here the question
would remain as to the ground of the obligation.
James concludes that: the moment we take a steady look at the question, we see not only that
without a claim actually made by some concrete person there can be no obligation, but that there
is some obligation wherever there is a claim14.

13
Retrieved on the 20th day of July 2015 from, ‘The Sociological Jurisprudence of Roscoe Pound (Part I)’ by Gardner.
14
Ibid.

13
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

5. The Feminist School of Jurisprudence:

Contributors (major):
A philosophy of law based on the political, economic, and social equality of the sexes.

Overview

Feminist jurisprudence is a burgeoning school of legal thought that encompasses many theories

c e
and approaches to law and legal issues. Each strain of feminist jurisprudence evaluates and
critiques the law by examining the relationship between gender, sexuality, power, individual

n
rights, and the judicial system as a whole. As a field of legal scholarship and theory, feminist

a
Jurisprudence had its beginnings in the 1960s. By the 1990s it had become an important and vital

s e
part of the law, informing many debates on sexual and Domestic Violence, inequality in the

is g
workplace, and gender-based discrimination at all levels of U.S. society.

a e
Feminist jurisprudence intersects with a number of other forms of critical theories, most notably

l l
critical race theory and the study of Gay and Lesbian Rights. Moreover, the form of feminist

n o
thought that focuses on legal theory draws from feminism in other disciplines, including

e
sociology, political science, history, and literature. Leaders in the feminist jurisprudence camps

R C
thus do not focus exclusively upon purely legal aspects of feminism.

w
Scholarship in Feminist Jurisprudence

L a
Feminists also criticize mainstream jurisprudence as patriarchal. They say that male-dominated
legal doctrine defines and protects men, not women. By discounting gender differences, the
prevailing conceptions of law perpetuate patriarchal power. Because men have most of the social,
economic, and political power, they use the system to subordinate women in the public spheres
of politics and economics as well as in the private spheres of family and sex. The language, logic,
and structure of the law are male created, which reinforces male values. Most troubling, these
concepts and values are presented as and are widely perceived to be both neutral and objective.
For example, in determining liability in Negligence actions, the law crafted the "reasonable man"
test. This "man" was a hypothetical creature whose hypothetical action, reaction, or inaction in
any situation was the law's standard of reasonable conduct for real people in similar
circumstances. Person in the name for this test, which might seem to resolve the problem, has
replaced the gender-biased term man. But some feminist legal scholars have argued that a
gender-neutral label merely avoids the fact that the test is based on assumptions of what a male
would do in a situation. They propose that when an action involves a female, a court should apply
a "reasonable woman" test. By doing so, the court would recognize the differences in how males
and females react to situations.

Current Issues in Feminist Jurisprudence

While the different camps of feminists in legal theory have focused upon different agendas,
feminist jurisprudence has changed the way legislators and judges look at issues. By asking the
"woman question," feminists have identified gender components and gender implications of laws
and practices that are claimed to be neutral. Moreover, this school of thought has brought needed

14
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

changes in the law to protect certain rights of women that have not been protected adequately in
the past.
One of the most pressing issues in women's rights is the protection of women from domestic
violence. According to some statistics, as many as four million women per year are the victims of
domestic violence, and three out of four will be the victims of domestic violence in their lifetimes.
Led by women's groups and other supporters outraged by these numbers, Congress enacted
the violence against women act as Title IV of the Violent Crime Control and Law Enforcement Act
of 1994 (Pub. L. No. 103-322, 108 Stat. 1796 [codified as amended in scattered sections of 18 and
42 U.S.C.A.]).

Feminist advocates support a broad interpretation of the types of advances that constitute sexual
harassment. To many feminists, sexual harassment represents the domination men seek to exert

c e
over women and should be strictly prohibited. The issue has caused controversy because in some
cases it is difficult to determine whether sexual advances are welcomed or not. Moreover, some

n
cases have arisen because an employer or supervisor has told a dirty joke or displayed a sexually

a
explicit photograph to a female employee. Women's groups maintain that sexual harassment laws

s e
should be liberally construed, even in these types of cases.

a is e g
Thus, above all schools of jurisprudence plays a vital role in the whole study of law.

n l l
e C o
R
a w
L

15
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

UNIT III
SOURCES OF LAW15

As the inevitability of law in life of state is well-known, the question automatically crops up as to how law
originate? What are its sources?

By sources of law we mean its beginning as law and the point from which it springs or emanates. As
regards law there are six important sources.

(A) Customs
Customs are oldest source of law. It is the outcome of habits. When the people follow a particular habit
for a long time regularly and habitually, the custom comes into being. When written laws were more

c e
conspicuous by their absence in the primitive society, it was customary laws that regulated human
conduct in the primitive society. It is said that kings have no power to create custom and perhaps less to

n
destroy it. Customs largely influence the legal system of a state and the state gets rid of the bad customs

a
like Sati, Polygamy, and Dowry etc. only by means of legal impositions. The United Kingdom provides the

s e
best example of customary laws which are found in the common law of England. In the United Kingdom

is g
the law and custom are so intimately connected with each other that the violation of convention custom

a e
will lead to the violation of law.

n l l
o
(B) Religion

R e
The religion is another important source of law. It played an important role in the primitive period when

C
men were very much religious minded and in the absence of written laws the primitive people obeyed
religion thinking it of divine origin. In the medieval period, most of the customs that were followed were

w
only religious customs. Even today the Hindu Laws are founded on the code of Manu and the

a
Mohammedan Laws are based on the Holy Koran. The religious codes become a part of the law of the land

L
in the state incorporates the religious codes in its legal system.

(C) Judicial Decisions

Since the dawn of the human civilization the dispute between two parties is referred to a third party who
acts as the arbiter. Both the parties generally obey his decision. The arbiter may be a tribal chief or a
priest. But with the passage of time, the judicial organ of the state is given power to decide cases between
the parties. While deciding a case and pronouncing a judgment, the judges generally apply their own
common sense and justice. This is known as Judge-made laws or case laws. Justice Holmes
commented,"Judges do and must make laws". The principle by which a judicial decision becomes a
precedent is known as "Stare Decisis".

(D) Scientific commentaries

Chief Justice Hughes of the U.S.A. opines that "We are living under a constitution and the constitution is
what the judges say it is". The law needs interpretation and the scientific commentaries and
interpretations by eminent jurists have contributed a lot for the evolution of a legal system. The views of
Blackstone in the U.K., Kent in the U.S.A. have made tremendous impact on the legal system of their
respective countries. The opinions of these expert legal luminaries are always kept in high esteem by the
judges and the courts.

(E) Equity

15
Kindly refer ‘Code of Hammurabi’ for details.

16
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

The term 'equity' literally means 'just', 'fairness' and according to 'good conscience'. When the existing
law is inadequate or silent with regard to a particular case, the judges generally apply their common
sense, justice and fairness in dealing with such cases. Thus, without 'equity' the term law will be devoid
of its essential quality.

(F) Legislation
This is the most important and modern source of law. The legislature is that organ of the state whose
primary function is to make laws. To Leacock the legislatures deliberate, discuss and make laws. Thus,
law can be defined as the opinion of the majority legislators. They are recorded in the Statute Book. When
the legislature is not in session, the executive is empowered to issue ordinances, decrees etc., which are
as good as, the laws made by the legislatures.

c e
Besides the above six sources of law we can add two more sources of law in the present days.
The executive in a parliamentary democracy has the support of the majority legislators in the legislature

n
enabling it to make laws according to its choice. The executive in a presidential system can influence

a
legislation in the floor of the legislature through its party men. With the advent of time, the legislature is

s e
required to make laws in a large number of subjects. Due to paucity of time, the legislature makes laws in

is g
the skeleton form and the executive adds the flesh and blood to it. This is termed as 'delegated legislation

a e
which has considerably enhanced the role of the executive in the field of legislation.

n l l
o
Public opinion in this age of democracy plays a vital role in the process of lawmaking. In Switzerland,

R e
with direct democracy, public opinion is reflected through Landsgemeinde, Referendum and Initiative,
which paves the way for making laws for the state.
C
Austin said that the term ‘source of law’ has three different meanings:

a w
1. This term refers to immediate or direct author of the law which means the sovereign in the country.

L
2. This term refers to the historical document from which the body of law can be known.
3. This term refers to the causes that have brought into existence the rules that later on acquire the force
of law. E.g. customs, judicial decision, equity etc.

Historical Jurists like Von Savigny, Henrye Maine, Puchta etc. believed that law is not made but is
formed. According to them, the foundation of law lies in the common consciousness of the people that
manifests itself in the practices, usages and customs followed by the people. Therefore, for them, customs
and usages are the sources of law.

Sociological Jurists, protest against the orthodox conception of law according to which, law emanates
from a single authority in the state. They believe that law is taken from many sources and not just one.

Ehlrich said that at any given point of time, the centre of gravity of legal development lies not in legislation,
not in science nor in judicial decisions but in the society itself.

Duguit believed that law is not derived from any single source as the basis of law is public service. There
need not be any specific authority in a society that has the sole authority to make laws.

Salmond has done his own classification of sources of law, as under:

1. Formal Sources- A Formal Source is as that from which rule of law derives its force and validity.
The formal source of law is the will of the state as manifested in statutes or decisions of the court and
the authority of law proceeds from that.

17
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

2. Material Sources- Material Sources are those from which is derived the matter though not the validity
of law and the matter of law may be drawn from all kind of material sources.

a. Historical Sources- Historical Sources are rules that are subsequently turned into legal principles.
Such source are first found in an Unauthoritative form. Usually, such principles are not allowed by the
courts as a matter of right. They operate indirectly and in a mediatory manner. Some of the historical
sources of law are:

i. Unauthoritative Writings

ii. Legal Sources- Legal Sources are instruments or organs of the state by which legal rules are created
for e.g. legislation and custom. They are authoritative in nature and are followed by the courts. They are

Sources are:
c e
the gates through which new principles find admittance into the realm of law. Some of the Legal

a. Legislations
a n
s e
b. Precedent

is g
c. Customary Law

a e
d. Conventional Law- Treatises etc.

n l l
o
Charles Allen said that Salmond has attached inadequate attention to historical sources. According to

R e
him, historical sources are the most important source of law.

C
Keeton said that state is the organization that enforces the law. Therefore, technically State cannot be

w
considered as a source of law. However, according to Salmond, a statute is a legal source which must be

a
recognized. Writings of scholars such Bentham cannot be considered as a source of law since such

L
writings do not have any legal backing and authority.

Legal sources of English Law- There are two established sources of English Law:

1. Enacted Law having its source in legislation- This consists of statutory law. A Legislation is the act
of making of law by formal and express declaration of new rules by some authority in the body
politic which is recognized as adequate for that purpose.

2. Case Law having source in Judicial Precedence- It consists of common law that we usually read in
judgments and law reporters. Precedent could also be considered as a source of law as a precedent is
made by recognition and application of new rules by the courts whilst administering justice. Thus, Case
Laws are developed by the courts whereas enacted laws come into the court ab extra.

3. Juristic Law- Professional opinion of experts or eminent jurists. These are also sources of law. Though,
they are not much accepted.

Sources of Law: Are they sources of Right too?

A Legal Right means a fact that is legally constitutive of a right. A Right is the de facto antecedent of a legal
right in the same way as a source of law is de facto antecedent of a legal principle.

Legislation- ‘Legis’ means law and ‘latum’ means making. Let us understand how various jurists have
defined legislation.

18
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

1. Salmond- Legislation is that source of law which consists in the declaration of legal rules by a
competent authority.

2. Horace Gray- Legislation means the forma utterance of the legislative organs of the society.

3. John Austin- There can be no law without a legislative act.

Analytical Positivist School of Thought- This school believes that typical law is astatute and legislation
is the normal source of law making. The majority of exponents of this school do not approve that the
courts also can formulate law. They do not admit the claim of customs and traditions as a source of law.
Thus, they regard only legislation as the source of law.

c e
Historical School of Thought- This group of gentlemen believe that Legislation is the least creative of
the sources of law. Legislative purpose of any legislation is to give better form and effectuate the

n
customs and traditions that are spontaneously developed by the people. Thus, they do not regard

a
legislation as source of law.

s e
Types of Legislation

a is e g
n l l
o
1. Supreme Legislation- A Supreme or a Superior Legislation is that which proceeds from the sovereign

R e
power of the state. It cannot be repealed, annulled or controlled by any other legislative authority.

C
2. Subordinate Legislation- It is that which proceeds from any authority other than the sovereign

w
power and is dependant for its continual existence and validity on some superior authority.

L a
Delegated Legislation- This is a type of subordinate legislation. It is well-known that the main function
of the executive is to enforce the law. In case of Delegated Legislation, executive frames the provisions
of law. This is also known as executive legislation. The executive makes laws in the form of orders, by
laws etc.

Sub-Delegation of Power to make laws is also a case in Indian Legal system. In India, the power to make
subordinate legislation is usually derived from existing enabling acts. It is fundamental that the delegate
on whom such power is conferred has to act within the limits of the enabling act.

The main purpose of such a legislation is to supplant and not to supplement the law. Its main justification
is that sometimes legislature does not foresee the difficulties that might come after enacting a law.
Therefore, Delegated Legislation fills in those gaps that are not seen while formulation of the enabling
act. Delegated Legislation gives flexibility to law and there is ample scope for adjustment in the light of
experiences gained during the working of legislation.

Controls over Delegated Legislation:

Direct Forms of Control -

1. Parliamentary Control
2. Parliamentary Supervision

Indirect Forms of Control -

19
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

1. Judicial Control- This is an indirect form of control. Courts cannot annul subordinate enactments but
they can declare them inapplicable in special circumstances. By doing so, the rules framed do not get
repealed or abrogated but they surely become dead letter as they become ultra vires and no responsible
authority attempts to implement it.

2. Trustworthy Body of Persons- Some form of indirect control can be exercised by entrusting power
to a trustworthy body of persons.

3. Public Opinion can also be a good check on arbitrary exercise of Delegated Powers. It can be
complemented by antecedent publicity of the Delegated Laws.

It is advisable that in matters of technical nature, opinion of experts must be taken. It will definitely
minimize the dangers of enacting a vague legislation.

c e
n
Salient Features of Legislation over Court Precedents:

a
1. Abrogation- By exercising the power to repeal any legislation, the legislature can abrogate any

s e
legislative measure or provision that has become meaningless or ineffective in the changed

is g
circumstances. Legislature can repeal a law with ease. However, this is not the situation with courts

a e
because the process of litigation is a necessary as well as a time-consuming process.

n l l
o
2. Division of function- Legislation is advantageous because of division of functions. Legislature can

R e
make a law by gathering all the relevant material and linking it with the legislative measures that are

C
needed. In such a process, legislature takes help of the public and opinion of the experts. Thus, public
opinion also gets represented in the legislature. This cannot be done by the judiciary since Judiciary does

w
not have the resources and the expertise to gather all the relevant material regarding enforcement of

a
particular principles.

L
3. Prospective Nature of Legislation- Legislations are always prospective in nature. This is because
legislations are made applicable to only those that come into existence once the said legislation has been
enacted. Thus, once a legislation gets enacted, the public can shape its conduct accordingly. However,
Judgments are mostly retrospective. The legality of any action can be pronounced by the court only when
that action has taken place. Bentham once said that “Do you know how they make it; just as man makes for
his dog. When your dog does something, you want to break him off, you wait till he does it and beat him and
this is how the judge makes law for men”.

4. Nature of assignment- The nature of job and assignment of a legislator is such that he/she is in
constant interaction with all sections of the society. Thereby, opportunities are available to him correct
the failed necessities of time. Also, the decisions taken by the legislators in the Legislature are collective
in nature. This is not so in the case of Judiciary. Sometimes, judgments are based on bias and prejudices
of the judge who is passing the judgment thereby making it uncertain.

5. Form- Enacted Legislation is an abstract proposition with necessary exceptions and explanations
whereas Judicial Pronouncements are usually circumscribed by the facts of a particular case for which
the judgment has been passed. Critics say that when a Judge gives Judgment, he makes elephantiasis of
law.

Difference between Legislation and Customary Law:

20
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

1. Legislation has its source in theory whereas customary law grows out of practice.

2. The existence of Legislation is essentially de Jure whereas existence of customary law is essentially de
Facto.

3. Legislation is the latest development in the Law-making tendency whereas customary law is the oldest
form of law.

4. Legislation is a mark of an advanced society and a mature legal system whereas absolute reliance on
customary law is a mark of primitive society and under-developed legal system.

5. Legislation expresses relationship between man and state whereas customary law expresses
relationship between man and man.

c e
n
6. Legislation is precise, complete and easily accessible but the same cannot be said about customary law.

a
Legislation is jus scriptum.

s e
is g
7. Legislation is the result of a deliberate positive process. But customary law is the outcome of necessity,

a e
utility and imitation.

n l l
o
Advantage of Court Precedents over Legislation:

R e C
1. Dicey said that “the morality of courts is higher than the morality of the politicians”. A judge is impartial.
Therefore, he performs his work in an unbiased manner.

a w
2. Salmond said that “Case laws enjoys greater flexibility than statutory law. Statutory law suffers from the

L
defect of rigidity. Courts are bound by the letter of law and are not allowed to ignore the law.”

Also, in the case of precedent, analogical extension is allowed. It is true that legislation as an instrument
of reform is necessary but it cannot be denied that precedent has its own importance as a constitutive
element in the making of law although it cannot abrogate the law.

3. Horace Gray said that “Case law is not only superior to statutory law but all law is judge made law. In
truth all the law is judge made law, the shape in which a statute is imposed on the community as a guide for
conduct is the statute as interpreted by the courts. The courts put life into the dead words of the statute”.

4. Sir Edward Coke said that “the function of a court is to interpret the statute that is a document having
a form according to the intent of them that made it”.

5. Salmond said that “the expression will of the legislature represents short hand reference to the meaning
of the words used in the legislature objectively determined with the guidance furnished by the accepted
principles of interpretation”.

Precedent as a Source of Law :

In India, the judgment rendered by Supreme Court is binding on all the subordinate courts, High Courts
and the tribunals within the territory of the country.

In case of a judgment rendered by the High Court, it is binding in nature to the subordinate courts and
the tribunals within its jurisdiction.

21
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

In other territories, a High Court judgment only has a persuasive value. In Indo-Swiss Time Ltd. v. Umroo,
AIR 1981 P&H 213 Full Bench, it was held that “where it is of matching authority, then the weight should
be given on the basis of rational and logical reasoning and we should not bind ourselves to the mere
fortuitous circumstances of time and death”.

Union of India v. K.S. Subramanium- AIR 1976 SC 2435- This case held that when there is an
inconsistency in decision between the benches of the same court, the decision of the larger bench should
be followed.

What is the meaning of Precedent as a source of law?

Till the 19th Century, Reported Court Precedents were probably followed by the courts. However, after

c e
19th century, courts started to believe that precedence not only has great authority but must be followed
in certain circumstances. William Searle Holdsworth supported the pre-19th century meaning of the

n
precedence. However, Goodheart supported the post-19th century meaning.

s a e
Declaratory Theory of Precedence- This theory holds that judges do not create or change the law, but

is g
they ‘declare’ what the law has always been. This theory believes that the Principles of Equity have their

a e
origin in either customs or legislation. However, critics of this theory say that most of the Principles of

l l
Equity have been made by the judges and hence, declaratory theory fails to take this factor into regard.

Types of Precedents
e n o
R C
1. Authoritative Precedent- Judges must follow the precedent whether they approve of it or not. They
are classified as Legal Sources.

a w
2. Persuasive Precedent- Judges are under no obligation to follow but which they will take precedence

L
into consideration and to which they will attach such weight as it seems proper to them. They are
classified as Historical Sources.

Disregarding a Precedent- Overruling is a way by which the courts disregard a precedent. There are
circumstances that destroy the binding force of the precedent:

1. Abrogated Decision- A decision when abrogated by a statutory law.

2. Affirmation or reversal by a different ground- The judgment rendered by a lower court loses its
relevance if such a judgment is passed or reversed by a higher court.

3. Ignorance of Statute- In such cases, the decision loses its binding value.

4. Inconsistency with earlier decisions of High Court.

5. Precedent that is sub-silentio or not fully argued.

6. Decision of equally divided courts- Where there is neither a majority nor a minority judgment.

7. Erroneous Decision

Custom as a Source of Law:

22
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

Salmond said that ‘Custom is the embodiment of those principles which have commended themselves to the
national conscience as the principles of justice and public utility’.

Keeton said that “Customary laws are those rules of human action, established by usage and regarded as
legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as a
source of law because they are generally followed by the political society as a whole or by some part of it”.

However, Austin said that Custom is not a source of law.

Roscoe Pound said that Customary Law comprises of:

1. Law formulated through Custom of popular action.

2. Law formulated through judicial decision.

c e
3. Law formulated by doctrinal writings and scientific discussions of legal principles.

a n
Von Savigny considered that customary law, i.e. law which got its content from habits of popular

s e
action recognized by courts, or from habits of judicial decision, or from traditional modes of

is g
juristic thinking, was merely an expression of the jural ideas of the people, of a people’s conviction of

a e
right – of its ideas of right and of rightful social control.

n l l
o
However, it is the Greek historical School that is considered as the innovator of custom as source of law.

R e C
Otto Van Gierke, a German Jurist and a Legal Historian, said that “every true human association becomes
a real and living entity animated by its own individual soul”.

a w
Henry Maine believed that custom is the only source of law. He said that “Custom is a conception posterior

L
to that of themestes or judgment.”

Some of the ingredients of Custom are as under:

1. Antiquity
2. Continuous in nature.
3. Peaceful Enjoyment
4. Obligatory Force
5. Certainty
6. Consistency
7. Reasonableness

Hence it can be concluded that laws are not self-born, but are the outcome of various sources, which came
into consideration with time and needs of the homo-sapiens and their developments.

23
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

UNIT IV
CONCEPTS OF LEGAL RIGHTS

CHART TO SHOW THE RIGHT DUTY LEGAL RELATION (HOHFELD)16

c e
n
Wesley Hofeld, a Harvard law professor in the early part of the 20th Century, developed an analytical

a
framework for understanding interests in property. Hohfeld’s eight terms are arranged in two tables of

s e
'correlatives' and 'opposites' that structure the internal relationships among the different fundamental

is g
legal rights.

JURAL OPPOSITES
Right Privilege
n a Power
ll e Immunity
No-right Duty
e o
Disability

C
Liability

R
A privilege is the opposite of a duty; a no-right is the opposite of a right. A disability is the opposite of a

w
power; an immunity is the opposite of a liability

a
L
JURAL CORRELATIVES
Right Privilege Power Immunity
Duty No-right Liability Disability

"Correlatives" signifies that these interests exist on opposing sides of a pair of persons involved in a legal
relationship. If someone has a right, it exists with respect to someone else who has a duty. If someone has
a privilege, it exists with respect to someone else who has no-right. If someone has a power, it exists with
respect to someone else who has a liability. If someone has immunity, it exists with respect to someone
else who has a disability.

A right can be enforced by a lawsuit against the person who has the correlative duty. A privilege negates
that right and duty, and typically would be asserted as an affirmative defense in the lawsuit.

A power is the capacity to create or change a legal relationship. For example, when someone make an
offer of a contract, that gives the offerree the power to create a contract by accepting the offer (or not). If
the power to create the contract is exercised, then both parties have rights and duties with respect to
each other. Courts have power, only if plaintiffs or prosecutors exercise their power to commence a
lawsuit. Sovereign states are immune because courts lack power over them, in which case courts are said
to have a disability with respect to sovereigns.

16
Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,
1982 Wis.L.Rev. pp. 975, 986-87.

24
 Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

If I "own" property, it means that I have various rights with respect to the thing constituting my property-
-the "bundle" of sticks or rights. I probably have the right to exclude and everyone else in the world has
a correlative duty not to use my property. Some people may have a privilege, however, as to fly over it. I
also have power with respect to my property because I can create rights in others, as by transferring
some or all of the property to them, as by creating an easement, which gives the grantee certain rights
vis-a-vis others and certain rights and privileges vis-a-vis me.

When people come into contact as a member of society, they have certain legal right and duties towards
one another. These right and duties regulated by the prevailing law in the society. It is the establish fact
the main purpose of law is the protection of the society. To establish this fact it is essential that Sovereign
or Sate use its physical force for the enforcement of legal right and duties and punish those who violate
these rights.

c e
n
Law consist those rule, which regulate the human society, and it is the state, which enforce these right

a
and duties created by the state.

s e
Duties- It is an obligatory act, or it is an act opposite of it means would be wrong. It is an act, which one

is g
ought to do, an act the opposite of which would be a wrong.

Kind of Duties-

n a l l e
1. Moral duties
e C o
R
2. Legal duties.
I. Positive and Negative Duties- When a law obliges a person to do and act it is called the positive

w
duty. And when law obliges him/her to refrain from doing an act it is called the negative duty.

a
II. Primary and Secondary Duties- A primary duty which is exists per se and is independent of any

L
duty, which the duty which has no independent existence, but exist only for the enforcement of
other duties.
III. Absolute and Relative Duties- Absolute duties owns only by the state, which generally called the
crime and remedy of it is punishment. Relative duties are owns by any person other than the one
who is imposing them, the breach of it called the civil injuries. Which is repressible by
compensation -(Hibbert).
Austin says- Relative duties which have corresponding rights.
Austin defined 4 kind of duties-
1. Self duty- e.g. not commit suicide.
2. Public duty- not to commit nuisance.
3. Duty towards who are not human being duties towards God or animal.
4. Sovereign- Duty towards sovereign.
Salmond-Reject the concept of Absolute duty he said there can be no duty without the right.

RIGHTS-
According to Salmond- Right is a interest recognized and protected by a rule of justice.
According to Holems – Right is the power of enforcing legal limitation on conduct.
According to Gray - Right is that power which a man has to make a person or persons to do or refrain
from doing an act or certain acts

25
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

Honorable Supreme Court has defined the Legal Right17-

In strict sense, legal rights are correlative of legal duties and are defines as interest, which the law
protected by imposing duties on others. But in generic sense the word right is used to mean
immunity from the legal power of other.

Theories of Legal Rights-

There are two theories on legal rights-
1. Will theory.
2. Interest theory.

Will theory-

c e
Hume, Hegel and kent - A right is an inherent attribute of the human will. The subject matter of right

n
is deriving from human will and through a right a man expresses his will over an object.

Puchta- says – legal right is a power over an object.

s a e
a is e g
Vinogradoff- in a social order establish by law no man is absolutely free to act as he likes, but his

l l
freedom of action is restricted due to rights of other.

e n o
Austin- A right of a person means that other are obligates to do or forbear from doing something in

R C
relation to him.

w
Holland- legal right is nothing but a permission to exercise certain natural powers to obtain

a
protection under certain conditions.

L
Interest Theory- This theory mainly propounded by Ihring.

According to Ihring- A legal right is a legally protected interest. He does not emphasis on the element
of will. He said the basic function of law is to protect the human interest and to avoid a conflict between
their individual interests.

But Salmond criticize his theory and said- it is incomplete because it is completely overlook the element
of State recognition. A legal right should not only be protected by the sate but also be legally recognized.

Gray was greatly impress by Salmond‘s view and held that interest theory was partly true, he emphasized
that a legal right is not an interest in itself but it only a mean to extend protection to interest. he said
a legal right as the power by which a man makes other person do or refrain from doing a certain act by
imposing a legal duty upon them through which the agency of law(State).

Allen- chooses the mid-way he said both the element of Will and Interest are essential for legal right.

Essential element of legal Rights

17
In the case of State of Rajasthan etc. Versus Union of India, 1977 AIR 1361.

26
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

There are five elements of legal rights-

1. The person of Inherence- This is also called the Subject, the legal right always vested in a
person, without a person of inherence there cannot be a legal right.
2. The person of Incidence- The right avail against a person, he is a person bound by the duty and
so may be describe the Subject of duty.
3. Content of the Right- Act or omission which is obligatory on the person bound in the favor of
the person entitle.
4. Subject matter of right- it is something which act or omission is relate, it may be the object.
5. Tile of Right- every legal right has a title that is certain fact over event.

Illustration-
A testator leaves a gold ring to a legatee. In this case the legatee is the inherence or the subject owner
of the right;
The gold ring is the object/ subject matter of the right;
c e
a
And the delivery of the ring is the content of the right;
n
s e
is g
The executer is the person of incidence;

a
The bequeathing the ring is the title of the right.

n l l e
Enforcement of legal rights-
e C o
R
Through the agency of court of law established by State it can be enforced. The usual method of legal right

w
is –

Award of damages in civil cases.

L a
Grant of an injunction- where by a party is restrained from doing an act which is likely to affect the
plaintiff adversely in enjoyment of his legal right.

Right in a wider sense-

Salmond suggested-
Right Other persons ought to do in my behalf.
Liberty- I may do without the interference of law.
Power- I can do effectively against other.
Immunity- Other cannot do effectively against me.

Classification of Legal Rights:

1. Perfect and Imperfect Rights. A/c Salmond – Perfect right is one which correspondent to legal duty,
and not only recognized by law but also enforce by law.
Whereas imperfect right though recognized by law but not enforceable by law, a time barred dept is the
example of it.

2. Positive and Negative Rights. The nature of co relative duty defines the positive or negative rights,
if a person is bound to do something then it is a positive right, if a person is refraining to do an act it
is a negative right.

27
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

3. Proprietary and Personal Rights. Proprietary rights related to economic or monetary rights or right
of wealth. For e.g.: money in some one pocket or in bank, right to debt, land etc. Personal rights
related to ones well-being for example- right of reputation, freedom, liberty etc.

4. Right in re propria and rights in re aliena.

.re propria- Right over one’s property.
.re aliena- Right over the property of someone else.

5. Principle and Accessory Right- Principle rights are independent rights, but accessory rights are
ancillary rights of principle rights. For example – A piece of land has a right is the principle right but
the right of way is the accessory right of adjoining land.

private rights concerned only with the private individuals.

c e
6. Public and Private rights- When the right is vested in the State is called the public right whereas the

a n
7. Jus ad rem- a right which is originated from another right is called jus ad rem. A person of inherence

s e
has a right to have some other right transferred to him.

PERSONALITY

a is e g
l l
The legal use of the word ‘person' has attracted an assortment of theories which is probably second to

n o
none in volume. ‘Person' in law, is both the recognition of an entity as well as the acknowledgement of

e
such an entity's rights and interests. Granting of ‘personhood' states then enables an entity to undertake

R C
acts and relations that are recognized in the law. In the realm of law, the term ‘person' is nothing more
than an abstraction - a representation through the form of an entity either real or artificial, of certain

w
attributes. These attributes come to form what is known as ‘personality' in the law.

L a
Persons in law are seen to be of only two kinds: real/natural and artificial. Human beings are considered
‘real' or ‘natural' persons because they are ipso facto persons. The other kind of person is the artificial
person, which is a fiction of law invested with limited legal capacity. At this juncture, it is necessary to
clarify the meaning of the term ‘capacity' in law. Capacity is the primary attribute of personality and
denotes the ability to commit acts and undertake relations that are recognized in the law. Capacity is what
enables a person to have a ‘standing' in law, be it in the person's ability to claim-possess-exercise rights,
property, enter into contracts, sue and be sued, commit legal injury or be the victim thereof. In other
words, capacity in law is the medium through which personality expresses itself.

CORPORATE PERSONALITY
As mentioned earlier, the law in recognizing artificial persons infuses such entities with limited legal
capacity. The limitation exists in the sense that artificial persons do not possess personalities in the fullest
sense of the term. Their ability to commit legally recognizable acts is limited to the extent that law allows
for, nothing more. To provide an example, a body corporate such as a joint stock company is undoubtedly
a ‘person' but cannot be likened to a human person any more than an apple can be compared to an orange.
While human beings as natural persons are capable of every act and relation possible in fact, an artificial
person is only capable of those acts and relations allowed in law; the doctrine of ultra vires with respect
to joint stock companies prevents such artificial persons from committing acts/undertaking relations
that are outside their scope of activities as specified in the Memorandum and Articles of Association.
The familiar theoretical classification of artificial persons follows likewise -
1. Corporation Sole.
2. Corporation Aggregate.
Both of the above are however narrow in the sense that they contemplate only one segment of artificial
personality i.e. the body corporate. It may be pertinent to note that the law also recognizes other forms

28
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

of artificial personality such as the idol. Indeed Salmond in his work on jurisprudence has chanced to
observe on this aspect, “Legal persons, being the arbitrary creations of the law, may be of as many kinds
as the law pleases.” However, for our present purposes, a discussion on the concept of a ‘body corporate'
will suffice in helping understanding the nature of artificial personality.
The corporation sole is nothing more than a tool meant to ensure continuity of an office. Any office that
is created in law also by implication creates a legal personality to such office which occupies it in
perpetuity till the law itself extinguishes it. This legal personality is the Corporation Sole. Examples of it
are predominantly found in Offices of the State discharging sovereign functions, which are always
creations of the law. The proverbial example of the Corporation Sole is the English Crown. However, the
Corporation Sole is also manifest in various other instances such as the Offices of the President, Prime
Minister, Chief Justice of India, Attorney-General of India all of which are creations of the Indian
Constitution. Likewise, even localized examples where there is a need for permanent Office implies the

which are statutorily created Offices.

c e
existence of a Corporation Sole: e.g. the Vice-Chancellor of a University, the Postmaster General, both of

n
Here it is to be pointed out in the preceding paragraphs that human beings, ipso facto are persons

a
enjoying all the attributes of legal personality. Each human being then is vested with an independent

s e
personality in the law. However, if the same notion were to be applied as a general rule, concerted and

is g
unified human action can have no place in law for the simple reason that such action can only be

a e
recognized as several acts of several persons as opposed to a single act of a group of several persons. The

l l
former perception would lead to many difficulties including unlimited liability of such several persons

n o
towards third parties. It is for this reason that a partnership, though an association of persons acting in

e
concert, renders each of those persons jointly and severally liable for acts of any partner. This approach

R C
also has the effect of apportioning liability disproportionately in the sense a partner who is insolvent
cannot be proceeded against while a solvent partner is satisfy the entire liability or debt that subsists

w
between the partnership and the third party. It is to obviate this difficulty, the law recognises certain

a
groups of several persons as a ‘body corporate' and thus holds the several acts of such several persons in

L
fact, attributable to a single person in law. In doing so what the law also does is create a veil of
incorporation as between the constituting members and the legal personality of the constituted body: the
corporation. The veil of incorporation implies the existence of a personality in the corporation as distinct
from its members. In the joint stock company, the veil of incorporation is what separates the acts of the
company from those of its shareholders and the individual acts of its shareholders from that of the
company. The result of adopting this approach is also that there is limited liability of the shareholders
(members of the group) which renders them liable only to the extent of their holding in the group or
company.

Going by the above description of corporations aggregate, it would logically follow that every form of
concerted activity of willing individuals aimed at a particular end, would lead to their acts coming to
known through the glass of incorporation which realises their combined operations as one single act,
performed by a single personality. However, it is in this regard that the real limits of artificial personality
are discernible. The law deems only certain forms of concerted action as eligible for recognition through
incorporation; thus while joint stock companies are recognised as incorporated bodies, associations such
as partnerships, trade unions and other organizations are not recognised as incorporated bodies for
various reasons. These groups have come to assume the term ‘unincorporated associations'. However the
effect of such thinking has been somewhat mitigated by statutory devices and judicial interpretation
which in certain respects have enabled such associations to assume characteristics of a single legal
person. Thus it may be said that even unincorporated associations in certain contexts, assume the
character of a legal person.
There are five principal theories, which are used to explain corporate personality, namely,
• the fiction theory,
• realist theory,

29
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

• the purpose theory,

• the bracket theory and
• the concession theory.

The fiction theory of corporation is said to be promulgated by Pope Innocent IV (1243-1254). This
theory is supported by many famous jurists, particularly, Von Savigny, Coke, Blackstone and Salmond.
According to this theory, the legal personality of entities other than human beings is the result of a fiction.
The famous case of Salomon v A Salomon Co Ltd is a proof of the English court adoption of the fiction
theory. In this case, Lord Halsbury stated that the important question to decide was whether in truth an
artificial creation of the legislature had been validly constituted. It was held that as the company had
fulfilled requirements of the Companies Act, the company becomes a person at law, independent and

e
distinct from its members.

n c
Under the concession theory, the state is considered to be in the same level as the human being and as
such, it can bestow on or withdraw legal personality from other groups and associations within its

a
jurisdictions as an attribute of its sovereignty. Hence, a juristic person is merely a concession or

s e
creation of the state. Concession theory is often regarded as the offspring of the fiction theory as it has

is g
similar assertion that the corporations within the state have no legal personality except as it is conceded

a e
by the state. Exponents of the fiction theory, for example, Savigny, Dicey and Salmond are found to

n l l
support this theory. Nonetheless, it is obvious that while the fiction theory is ultimately a philosophical

e o
theory that a corporation is merely a name and a thing of the intellect, the concession theory is indifferent
as regards to the question of the reality of a corporation in that it focus on the sources of which the legal
power is derived.
R C
w
Next, is the purpose theory (also known as the theory of Zweckvermogen) . The advocates who are

a
associated with this theory are E.I Bekker, Aloys Brinz and Demilius. Similar to the fiction and concession

L
theories, it declares that only human beings can be a person and have rights. Under this theory, juristic
person is no person at all but merely as a “subjectless” property destined for a particular purpose and
that there is ownership but no owner. The juristic person is not constructed round a group of person but
based on the object and purpose. The property of the juristic person does not belong to anybody but it
may be dedicated and legally bound by certain objects.

The Symbolist theory is also known as the “bracket” theory. It was set up by Ihering and later developed
particularly by Marquis de Vareilles-Sommiéres. Basically, this theory is similar to the fiction theory in
that it recognizes that only human beings have interests and rights of a legal person.38 According to
Ihering, the conception of corporate personality is indispensable and merely an economic device by
which simplify the task of coordinating legal relations. Hence, when it is necessary, it is emphasized that
the law should look behind the entity to discover the real state of affairs. This is clearly in line with the
principle of lifting of the corporate veil.

The realist theory, founded by German jurist, Johannes Althusius has been most prominently advocated
by Otto von Gierke. According to this theory, a legal person is a real personality in an extra juridical and
pre-juridical sense of the word. It also assumes that the subjects of rights need not belong merely to
human beings but to every being which possesses a will and life of its own. As such, being a juristic person
and as ‘alive' as the human being, a corporation is also subjected to rights. Under the realist theory, a
corporation exists as an objectively real entity and the law merely recognizes and gives effect to its
existence. The realist jurist also contended that the law has no power to create an entity but merely
having the right to recognize or not to recognize an entity. A corporation from the realist perspective is a
social organism while a human is regarded as a physical organism. A corporation from the realist
perspective is a social organism while a human is regarded as a physical organism.

30
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

From the discussion on jurisprudence theories of corporate personality, it is observed that main
arguments lie between the fiction and realist theories. The fiction theory claimed that the entity of
corporation as a legal person is merely fictitious and only exist with the intendment of the law. On the
other hand, from the realist point of view, the entity of the corporation as a legal person is not artificial
or fictitious but real and natural.
Being merely a metaphor or an analogy, corporate personality is not entirely arbitrary and therefore must
respond to the organizational realities of the corporation as well as conform to the treatment of
organization as legal actors. As such, conception of a corporation should be analytical and ideological,
descriptive and prescriptive. The metaphor of personality is indeed useful in describing many of the
corporation's traditional and modern corporate attributes, namely, perpetual succession, ability to own
property, rights to take its own legal proceedings, ability to create floating charge, limited liability and
compliance with the formalities of the Companies Act. Placing these attributes under the head of separate

person.
c e
legal entity has resulted to selection of these few salient feature existence of the concept of a fictitious

n
Nevertheless, the use of the metaphor is mainly to describe and not to dictate the reality of corporation.

a
As Bryant Smith pointed out:

s e
“It is not the part of legal personality to dictate conclusions. To insists that because it has been decided

is g
that a corporation is a legal person for some purposes it must therefore be a legal person for all

a e
purposes… is to make of…corporate personality…a master rather than a servant, and to decide legal

l l
questions on irrelevant considerations without inquiring into their merits. Issues do not properly turn
on a name.

e n o
R C
a w
L

31
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

UNIT V
OWNERSHIP & POSSESSION

The essence of corporeal possession is essentially to be found in the physical power of exclusion.

There is 9 point out of 10 for possession, which are commented as under:

Earlier legal system did not recognize the distinction between the possession and ownership. In Roman
Law ownership and possession are relative terms-dominium, and possession, which denote absolute
right to a thing, while possession implied only physical control over it.
Roman attached greater importance ownership rather than possession because in their view having
absolute right over a thing was much more important than merely having physical control over it.

c e
Ownership- The term ownership was used in English law for the first time in 1583, and when it was

n
distinguished form possession.

a
Ownership is a supreme right that can be exercised on anytime.

s e
Hibbert, define ownership which includes within its four kinds of right-

is g
1. Right to use a thing.

a e
2. Right to exclude others from using the thing.

l l
3. Disposing of thing.
4. Rights to destroy.

e n o
Hibbert suggested that no one can have an absolute ownership in land as land not capable of being

R C
destroyed. One can merely have an estate in it.

w
Austin- right indefinite in point of user unrestricted in point of disposition and unlimited in point of

a
duration.

L
It is a right in rem which is available to the owner against the world at large.

Element of ownership according to Austin-

1. Indefinite user -
2. Unrestricted Disposition-
3. Unlimited duration.

Criticism against Austin Definition-

• It is being criticize that – it is fallacious to think that ownership is a single right, in fact it is a bundle
of rights including right of user and enjoyment.
• Second that the owner has an unrestricted right of disposition is not correct. The right of ownership
can be curtail by the state subject to injurious to public health/ or for public use as per Constitution
of India Art 31(2), any property can be taken by the state for public use.

Salmond- relation between a person and right that is vested in him. In simple sense ownership signifies
the relation between the person of inherence and the object of ownership.
Salmond try to comprehend ownership in a wider sense to include both corporal and incorporeal rights.
Thus a man can own a copyright or a right of way.

Duguit - criticized Salmon- a person really owns is a thing and not a right.

Paton- Defines ownership in respect of four things-

1. Right of use.

32
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

2. Possession which also includes elimination of other.

3. Right of alienation.
4. Disposition

Characteristics of Ownership
1. It may be absolute or restricted.
2. Subject to public safety.
3. Law does not confer ownership on an unborn child or an insane person because both of them are
incapable of conceiving the nature and consequences of their acts.

According to Salmond there are two ways of acquiring the ownership-

1. By operation of law. Such as the law of intestacy (Dying without a legal will) or bankruptcy.

e
2. By reason of some event or act. Such as taking or making a thing for the first time.

c
a n
There are three generally known mode of acquisition of ownership-

s e
1. Absolute- when there was no previous owner of that thing. i.e. res nullius (ownerless thing).

is g
2. Extinctive- when ownership of a previous owner has been terminated by reason of adverse

a e
possession by the acquirer.

l l
3. Accessory- Acquired as a result of accession. E.g. owner of an animal has right to its off springs

n o
or the owner of a tree has the right of the fruits of the tree.

e
R C
Salmond think that the concept of ownership is changing with social changes pointed out that in ancient
times the right of ownership regarded as absolute, but in modern time it is subject to reasonable

w
restriction.

Kind of Ownership-

1. Corporeal and Incorporeal- L a

• Material/ tangible object= corporeal i.e. pen, table, vehicle etc. it is chose in possession
• Immaterial/ intangible = incorporeal- i.e. copy right etc. it is chosen in action.
2. Sole and Co- ownership-
• Sole=single person ownership.
• Co-ownership= when it vested in two person.
I. Common= Right of the deceased passes on to his successor like other inheritable right. For
example. When a property belongs to A, and B in equal shares and if A dies the right of half of the
thing will pass on to the legal heirs of the property. And the other half will remain with B. Hindu
law recognized the right of common ownership.
II. Joint= if one of the two joint owners dies, his right of ownership also dies with him and the
survivor becomes the sole owner by virtue of his right. It is also called the right of survival ship.

3. Trust and Beneficial- The property is own by two owner, in which one is under an obligation to use
his ownership for the benefit of other. The former is called the trustee and the later is called the
beneficiary. The ownership is nominal for trustee rather than real because he is deprived of any right
to the beneficial enjoyment of the trust property.

4. Vested and Contingent-

Vested= perfect ownership
Contingent= fulfillment of some future condition.

33
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

Possession-
It is de facto= exercise of a claim
Possession is in fact while ownership is in the form of the right. Possession is the prima facie example of
ownership.

Henry Maine- possession means that contact with an object which provides the rights of exclusion of
other form the enjoyment of it.

Pollock- having physical control over a thing is possession.

Salmond- the possession of a material object is the continuing exercise of a claim to the exclusive use of
it.

c e
n
Savigny- physical power of exclusion.

s a e
Nature of Possession - possession is the most basic relation between man and things. Possession of

is g
material thing is essential to life because the existence of human life and human society. It is also one of

a e
the modes of transferring ownership. Possession is said to be nine out of ten points of law meaning

l l
thereby that it is an evidence of ownership. For example a thief who steals my watch has a possession

n o
which the law protects against everyone except myself or some person thing on my behalf.

e
R C
Possession under Roman Law - under Roman Law it has been defined in two categories-
1. Corpus possessionis- Simply a physical control over a thing.

w
2. Civilis possessionis- legal possession. The property disputes mostly decided on the basis of this

a
possession.

L
Animus- A person was deemed to be in legal possession of a thing when not only thing was in his physical
control or he had custody over it. But he also had the power to exclude other from interference in his
possession. This is the mental element.

Holems- to gain a possession a man must stand in certain physical relation to the object and to the rest
of the world, and must have certain intent.

The Roman law distinguished detention from the custody. In detention a person was to have real
possession and control over a thing though he may not have ownership of it. The custody on the other hand
involved possession and control without ownership.

Element of Possession
Holland- possession has two essential elements-
• Corpus- Physical control over a thing.
• Animus- Power of exclusion other of it use.
Salmond- It is not necessary that animus should always be present in legal possession.

Ihring- takes a sociological view of the concept of possession, he does not give much stress animus, he
says it is quit immaterial as to how a person intended to possess a thing but what is important is how he
got it.

In the case of N. Majumdar versus State- the question of animus came up for determination before the
High court of Calcutta.

34
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

Brief Fact- Police made a search of the accused house in the hope that the pistol would be recovered from
there but no such recovery could be made. In the meantime, the accused had a quick word with his wife
who went out and retuned within three or four minutes with a pistol and some cartridges. The police
took the plea that as per S.27of the Evidence Act, it should be presumed that the pistol was recovered
from the possession of the accuses. The court however, rejected the contention of the prosecution and
held that the Arms Act being a special enactment, the fact of corpus must be specifically proved and
mere existence of corpus without animus is ineffective to constitute possession.

Savig ny-
1. Corpus- physical control of the thing, that is, immediate physical power to exclude any foreign
agency’s interference by the possessor.
2. Animus- mental element or conscious intention to hold the object as owner against all other.

c e
Criticism- he assumed that without the combination of these two element possession is not possible, and

n
possession will lost when either of these element are lost and in some instance without the element of

a
both of this.

s e
Second Law does not protect a possession, which is acquired unlawfully, although both the element is

is g
present.

a l l e
Ihering- consider animus only as a supplemental element for possession.

n o
Criticism Ihering purely analyzed the concept of possession in the background of Roman Law refused

Kind of Possession-
R e
possessory rights to persons who were in effective physical control of the thing possessed.

C
w
1. Corporeal and Incorporeal- Possession for material thing. Incorporeal- Possession for

a
inventible thing

L
2. Mediate and Immediate Possession- Mediate means possession through third person- for
example I purchase a book through any agent or servant. I have mediate possession so long as the
book remains in my agent’s possession.
Immediate- Direct possession.

3. Adverse Possession- it implies a possession by a person initially holding the land on behalf of
some other person and subsequently setting up his own claim as a true owner of that land. If
adverse possession continues peacefully undisturbed for a prescribed period (12 years in India)
the title of the true owner is extinguished and the person in possession becomes the true owner
of that land.

Mode of Acquisition of Possession-

1. By taking- Without Consent of owner.
2. By delivery- with consent of owner.
3. By operation of Law.

Relationship between possession and ownership-

Possession has been treated as an external evidence of ownership. A person possession of a thing, be
presumed to be the owner of it. The person in possession may not need to prove the ownership.

DIFFERENCE BETWEEN POSSESSION & OWNERSHIP

POSSESSION OWNERSHIP

35
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

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

is in fact.
Possession does not give title in the property de While in ownership it gives title in the property
facto exercise of a claims de jure recognisation.

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

Possession tends to become ownership. Ownership tends to realize itself in to possession.
Possession dominion corpus and animus are Ownership they are not necessary because law
necessary. gives full rights.

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

e
process i.e. conveyance deed etc.

Possession is nine points of law.

n c
Ownership always tries to realize itself in
possession i.e. complete thing.

s a e
is g
LIABILITY

a e
A comprehensive legal term that describes the condition of being actually or potentially subject to a legal

n l l
obligation. Joint liability is an obligation for which more than one person is responsible. Joint and several

e o
liabilities refers to the status of those who are responsible together as one unit as well as individually for

C
their conduct. The person who has been harmed can institute a lawsuit and recover from any or all of the

R
wrongdoers—but cannot receive double compensation, for instance, the full amount of recovery from

w
each of two wrongdoers.

L a
Primary liability is an obligation for which a person is directly responsible; it is distinguished
from secondary liability, which is the responsibility of another if the party directly responsible fails or
refuses to satisfy his or her obligation.

Responsibility; the state of one who is bound in law and justice to do something, which may be enforced
by action. This liability may arise from contracts either express or implied, or in consequence of torts
committed.

The liabilities of one man are not in general transferred to his representative's further than to reach the
estate in his hands. For example, an executor is not responsible for the liabilities of his testator further
than the estate of the testator, which has come to his hands.
.
The husband is liable for his wife's contracts made dum sola, and for those made during covertures for
necessaries, and for torts committed either while she was sole or since her marriage with him; but this
liability continues only during the covertures; as to her torts, or even her contracts made before marriage;
for the latter, however, she may be sued as her executor or administrator, when she assumes that
character.

A master is liable for the acts of his servant while in his employ, performed in the usual course of his
business, upon the presumption that they have been authorized by him; but he is responsible only in a
civil point of view and not criminally, unless the acts have been actually authorized by him18.

18
See Bouv. Inst. Index, h.t.; Driver; Quasi Offence; Servant. (at any accessible source/s)

36
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

STRICT LIABILITY
Strict liability applies when a defendant places another person in danger, even in the absence of
negligence, simply because he is possession of a dangerous product, animal or weapon. The plaintiff need
not prove negligence.

Types of Strict Liability Torts

There are instances when a person becomes responsible for things that may go wrong even if the person
did not intend for the wrong to occur. In other words, some actions hold a person strictly liable regardless
of the circumstances. Say you owned an exotic Python. If the snake creeps out of the house and bites your
neighbour, you will be held responsible even though you did not let the snake out. Ownership is enough
to hold you responsible.

c e
In other words, strict liability tort means a defendant is held fully liable for any injury sustained by
another party regardless of whether the injury was intended. Dangerous animals are just one of three

n
major strict liability categories. Strict liability categories include:

a
• Animals, owned or possessed

s e
• Abnormally dangerous acts

is g
• Product liability

Animals, Owned or Possessed

n a l l e
o
The owner or person in possession of certain types of animals is liable for injuries if the animal causes

R e
injury to another person or animal. This may include livestock, like cows, horses, bulls or

C
goats. Abnormally dangerous animals also fall under this category and may include snakes, tigers,
monkeys or bears. You may think wild animals are not included because, well, they live in the wild. But

w
that is not true. If a person is in possession of a wild animal or has wild animals on their land, like animals

a
that are housed at a zoo, and the animal causes injury, liability is assumed.

L
Livestock and domestic animal ownership is fairly easy to prove. Livestock is generally branded, and
domestic animals require registration in their place of residence. Wild animals, on the other hand, are
more difficult to track. In an interesting case that remains in litigation as of late summer of 2013, the
question of possession and ownership of suspect wild animal remains unanswered.
Arizona-Sonora Desert Museum is located in a remote area of Tucson, Pima County. It is a place where
tourists can experience Arizona's indigenous landscape. Back in 2009, a Dutch tourist and plaintiff,
Zegerius, was brutally attacked by a wild javelina while touring the grounds. The victim sustained
extensive damage, including torn muscles and severed veins and arteries to his calf and hand. So much
damage was done that he was hospitalized for over a week.

The museum operators claim that this particular javelina was not one of the commonly seen animals on
their property. They performed blood tests on the javelina in their possession, and it turned out that no
match could be determined. In fact, the javelina that attacked Zegerius was never found. But the looming
question of strict liability was still left unanswered. At last report, the plaintiff's attorneys filed further
action claiming that, regardless of the ownership, possession is all the law requires.
Javelinas are wild animals. No provisions were made to corral the owned javelinas; therefore, other
javelinas can come and go freely across the boundaries. While, as of late summer of 2013, no verdict had
been rendered yet, this case proves that strict liability may be applied to cases where ownership does not
have to be established.

Abnormally Dangerous Acts

Another form of strict liability comes with engaging in abnormally dangerous acts. An abnormally
dangerous act can be defined as an act that carries a substantial risk to oneself and others' personal

37
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

property and physical being. That's plenty of legal mumbo jumbo, think pyrotechnics, nuclear power
plants and blasting rock with dynamite.
In Miller v. Civil Constructors, Inc., a bullet fired from a nearby quarry struck a person. The quarry, owned
by Civil Constructors, was used for police target practice. The case seems rather cut and dry. Remember,
in strict liability cases, negligence does not have to be proven. What does have to pan out is whether using
a quarry to discharge a firearm is considered abnormally dangerous. Here is what the court will consider:
• The activity is highly risky and could cause harm to a person, chattel or property.
• It is highly likely that harm will result from the activity.
• The risk could not be mitigated easily even if reasonable care is taken.
• The act is not one that is commonly recognized.
• It is inappropriate to be carried out in the location.

VICARIOUS LIABILITY19

c e
Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate

n
or associate (such as an employee) based on the relationship between the two parties.

a
Under common law, a member of a conspiracy can be held vicariously liable for the crimes of his co-

s e
conspirators if the crimes committed by the co-conspirators were foreseeable and if they were committed

is g
with the intent of furthering the objective of the conspiracy.

a e
Vicarious liability derives from the reasoning that-

l l
(1) the employee is acting on the employer’s behalf,

n o
(2) the employer is usually exercising control and supervision over the employee’s conduct,

e
(3) the employer is in the better position to accept financial responsibility or to insure against it, and (4)

R C
the employer receives the benefit of the employee’s work and should therefore also bear the burden of
the employee’s negligent conduct.

w
Thus, some courts have characterized it as respondent superior, or “let the master answer.” As a result,

a
the primary limit on vicarious liability is drawn by the distinction between employees and independent

L
contractors. If the person employed is considered to be an independent contractor, the employer usually
is not liable for the tort committed. Typically, a contractor is not supervised and operates relatively
independently; hence, the rationale for holding the employer liable breaks down. This distinction is a
question of fact that is often disputed. The labels chosen by the parties involved to describe themselves,
such as staff consultants or contractors or the like, are not determinative. What is crucial is their actual
working relationship and the nature of the supervision and control actually or potentially exercised by
the employer. Once that supervision or control exists and regardless of whether it is properly exercised
the employer becomes potentially liable for the torts of the employee.

The common examples of such a liability are:

(1)Liability of the principal for the tort of his agent;
(2)Liability of partners of each other’s tort;
(3)Liability of the master for the tort of his servant.
So Vicarious Liability deals with cases where one person is liable for the acts of others. In the field of Torts
it is considered to be an exception to the general rule that a person is liable for his own acts only. It is
based on the principle of qui facit per se per alium facit per se, which means, “He who does an act through
another is deemed in law to do it himself”. So in a case of vicarious liability both the person at whose
behest the act is done as well as the person who does the act are liable. Thus, Employers are vicariously
liable for the torts of their employees that are committed during the course of employment.

19
Kindly refer: Legal Services and Oxford Library Articles.

38
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

Reasons for vicarious liability:

(1) The master has the ‘deepest pockets’. The wealth of a defendant, or the fact that he has access to
resources via insurance, has in some cases had an unconscious influence on the development of legal
principles.
(2) Vicarious liability encourages accident prevention by giving an employer a financial interestin
encouraging his employees to take care for the safety of others.
(3) As the employer makes a profit from the activities of his employees, he should also bear any losses
that those activities cause.
In the words of Lord Chelmsford: “It has long been established by law that a master is liable to third
persons for any injury or damage done through the negligence or unskillfulness of a servant acting in his
master’s employ. The reason of this is, that every act which is done by servant in the course of his duty is

Constituents of Vicarious Liability:

c e
regarded as done by his master’s order, and, consequently it is the same as if it were master’s own act”.

n
(1) There must be a relationship of a certain kind.

a
(2) The wrongful act must be related to the relationship in a certain way.

s e
(3) The wrong has been done within the course of employment.

Servant and Independent Contractor:

a is e g
l l
A servant and independent contractor are both employed to do some work of the employer but there is

n o
a difference in the legal relationship which the employer has with them. A servant is engaged under a

e
contract of services whereas an independent contractor is engaged under a contract for services. The

R C
liability of the employer for the wrongs committed by his servant is more onerous than his liability in
respect of wrongs committed by an independent contractor. If a servant does a wrongful act in the course

w
of his employment, the master is liable for it. The servant, of course, is also liable. The wrongful act of the

a
servant is deemed to be the act of the master as well. “The doctrine of liability of the master for act of his

L
servant is based on the maxim respondent superior, which means ‘let the principal be liable’ and it puts
the master in the same position as he if had done the act himself. It also derives validity from the maxim
qui facit per alium facit per se, which means ‘he who does an act through another is deemed in law to do
it himself’.” Since for the wrong done by the servant, the master can also be made liable vicariously, the
plaintiff has a choice to bring an action against either or both of them. Their liability is joint and several
as they are considered to be joint tort-feasors. The reason for the maxim respondent superior seems to
be the better position of the master to meet the claim because of his larger pocket and also ability to pass
on the burden of liability through insurance. The liability arises even though the servant acted against
the express instruction, and for no benefit of his master.

For the liability of the master to arise, the following two essentials are to be present:
(1) The tort was committed by the servant.
(2) The servant committed the tort in the course of his employment.
A servant is a person employed by another to do work under the direction and control of his master. As
a general rule, master is liable for the tort of his servant but he is not liable for the tort of an independent
contractor. It, therefore, becomes essential to distinguish between the two.

A servant is an agent who is subject to the control and supervision of his employer regarding the manner
in which the work is to be done. An independent contractor is not subject to any such control. He
undertakes to do certain work and regarding the manner in which the work is to be done. He is his own
master and exercises his own discretion. And independent contractor is one “who undertakes to produce
a given result, but so that in the actual exclusion of the work, he is not under the order or control of the
person for whom he does it, and may use his own discretion in things not specified beforehand.”

39
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

Example:
My car driver is my servant. If he negligently knocks down X, I will be liable for that. But if he hire a taxi
for going to railway station and a taxi driver negligently hits X, I will not be liable towards X because the
driver is not my servant but only an independent contractor.The taxi driver alone will be liable for that.

The main exceptions to the principle fall into the following categories:
(1) Cases where the employer is under some statutory duty which he cannot delegate.

(2) Cases involving the withdrawal of support from neighboring land.

(3) Cases involving the escape of fire.

c e
(4) Cases involving the escape of substances, such as explosives, which have been brought on the land
and which are likely to do damage if they escape; liability will attach under the rule in Rylands v

n
Fletcher, (1868) UKHL 1.

s a e
(5) Cases involving operations on the highways which may cause danger to persons using the highway.

a is e g
(6) Cases involving non-delegable duties of an employer for safety of his employees.

n l l
o
(7) Cases involving extra-hazardous acts.

R e C
Performing Right Society Ltd. v Mitchell, etc. Ltd., (1924) 1 K.B. 762.
The defendants engaged a band called ‘The Original Lyrical five’ to play at their dance hall, and the band

w
played two songs without the permission of the claimants, the owners of the copyright. It was held that

a
the members of the band were employees of the defendants who were liable for the breach of copyright.

L
MCCARDIE J.: The nature of the task undertaken, the freedom of action given, the magnitude of the
contract amount, the manner in which it is to be paid, the powers of dismissal and the circumstances
under which payment of the reward may be withheld, all these bear on the solution of the question … it
seems, however, reasonably clear that the final test, if there be a final test, and certainly the test to be
generally applied, lies in the nature and degree of the detailed control over the person alleged to be
servant. This circumstances, of course, one only of several to be considered, but it is usually of vital
importance. The point is put well in Pollock on Torts, 12th ed., pp. 79, 80.

“The relation of master and servant exists only between persons of whom the one has the order and
control of the work done by the other. A master is one who not only prescribes to the workman the end
of his work, but directs or at any moment may direct the means also, or, as it has been put, ‘retains the
power of controlling the work’. A servant is a person subject to the command of his master as to the
manner in which he shall do his work, and the master is liable for his acts, neglects and defaults, to the
extent to be specified. An independent contractor is one who undertakes to produce a given result, but
so that in the actual execution of the work he is not under the order or control of the person for whom he
does it, and may use his own discretion in things not specified beforehand.”

Finally, it can be concluded that,

Vicarious Liability deals with cases where one person is liable for the acts of others. In the field of Torts
it is considered to be an exception to the general rule that a person is liable for his own acts only. It is
based on the principle of qui facit per se per alium facit per se, which means, “He who does an act through
another is deemed in law to do it himself”. So in a case of vicarious liability both the person at whose
behest the act is done as well as the person who does the act are liable. Thus, Employers are vicariously

40
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

liable for the torts of their employees that are committed during the course of employment. In order that
the liability of A for the act done by B can arise, it is necessary that there should be certain kind of
relationship between A and B, and the wrongful act should be, in certain way, connected with that
relationship. So a master is liable for the acts of his servant if the act is done in the course of employment.
But where someone employs an independent contractor to do work on his behalf he is not in the ordinary
way responsible for any tort committed by the contractor in the course of the execution of the work
except in certain exceptional cases as dealt above.

So the servant and independent contractor are under contract of service and contract for service
respectively. The traditional view to distinguish between the two was the control test exclusively. But in
modern scenario this is not sufficient test as there is no single test. The significant outcome can be
achieved only by balancing different factors with the help of different tests like: The nature of the

test/ multiple test along with the control test.

c e
employment test, the ‘integral part of the business’ test, Allocation of financial risk/ the economic reality

OBLIGATIONS
a n
s e
In his book The Concept of Law, Hart has analyzed the relation between law, coercion, and morality, and

is g
has also attempted to clarify the question of whether all laws may be properly conceptualized as coercive

a e
orders or as moral commands. Hart says that there is no rationally necessary correlation between law

l l
and coercion or between law and morality. According to him, classifying all laws as coercive orders or as

n o
moral commands is oversimplifying the relation between law, coercion, and morality. He also explicates

e
that to conceptualize all laws as coercive orders or as moral commands is to impose a deceptive

R C
appearance of uniformity on different kinds of laws and on different kinds of social functions which laws
may perform. Hence, it will be mischaracterization of the purpose, function, content, mode of origin, and

w
range of application of some laws.

a
Indeed, there are laws, which forbid individuals to perform various kinds of actions and impose an

L
assortment of obligations on individuals. Sometimes, some laws impose punishment or penalties for
injuring other individuals or for not complying with various kinds of duties or obligations.

Hart disapproves of the concept of law, which was formulated by John Austin in The Province of
Jurisprudence Determined (1832). Hart commences explaining his concept of law by
First taking Austin’s command theory to task. According to Austin, all laws are commands of a legally
unlimited sovereign, and he asserts that, all laws are coercive orders that impose duties or obligations on
individuals. Hart, on the other hand, says that laws may be at variance from the commands of a sovereign
in as much as they may apply to those individuals who enact them and not merely to other individuals.
Secondly, laws may also be different from coercive orders in as much as they may not necessarily impose
duties or obligations but may instead confer powers or privileges without imposing duties or obligations
on individuals.
Thirdly, the continuance of pre-existing laws cannot be explained on the basis of command; as pointed
out, he was able to demolish completely the ‘tacit command’ myth20.
Fourthly, Austin’s ‘habit of obedience’ fails to elucidate succession to sovereignty because it fails to take
account of improvement difference between ‘habit’ and ‘rule’. Habits only require common behaviour,
which is not sufficient for a rule. A rule has an ‘internal aspect’, i.e. people use it as a standard by which
to judge and condemn deviations; habits do not function in this manner. Succession to sovereignty occurs
by virtue of the acceptance of a rule entitling the successor to succeed, not on account of a habit of
obedience.

20
Dias, RWM (1994) Jurisprudence New Delhi: Aditya Books Private Ltd, p352.

41
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

Fifthly, Hart also uses ‘rule’ to differentiate between ‘being obliged’ and ‘having an obligation’. Austin’s
command-duty-sanction thesis fails to explain why, if a gunman threatens X with ‘Your money or your
life’, X may be obliged to hand over his purse, but has no obligation to do so21. The reason is that people
have an obligation only by virtue of a rule.

Rules of obligation are distinguishable from other rules in that they are supported by great social
pressure because they are felt to be necessary to maintain society22. For Hart, ‘law’ is equivalent to ‘legal
system’. According to him, legal system (law) is a system of rules comprising ‘primary rules’ and
‘secondary rules’.
These rules are ‘social’ in two senses:
firstly, in as much as they regulate the conduct of the members of the society, i.e. they are guides to human
conduct and standards of criticism of social conduct;

c e
secondly, in as much as they derive from human social practices. Apart from these rules, there are other
social rules also, for example, rules of morality. The union of these two rules is the essence of his concept

n
of law.

a
Hart describes ‘primary rules of obligation’ as rules that impose duties or obligations on individuals, such

s e
as the rules of the criminal law or the law of tort. They are binding because of practices of acceptance

is g
which people are required to do or to abstain from certain actions. On the other hand, secondary rules

a e
are those which confer power, public or private, such as the law that facilitate the making of contracts,

l l
wills, trusts, marriages, etc or which lay down rules governing the composition of powers of courts,

n o
legislatures and other officials bodies. Primary rules are concerned with actions (that individuals must

e
do or must not do) involving physical movement or change whereas the secondary rules provide for

R C
operations, which lead not merely to physical movement or change, but to the creation or variation of
duties or obligations. Thus, the secondary rules are ancillary to and are concerned with the primary rules

w
themselves. That is to say, the secondary rules specify the way in which the primary rules may be

a
conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively

L
determined. Secondary rules are chiefly procedural and remedial, and embrace not only the rules
governing sanctions but also go far beyond them. Furthermore, these rules also extend to the rules of
judicial procedure, evidence and the rules governing the procedure for new legislation.
According to Hart, the primary rules must be combined with secondary rules so as to advance from the
pre-legal to the legal stage of determination. Hart says that the foundations of a legal system do not
consist, as Austin claims, of habits of obedience to a legally unlimited sovereign, but, instead, consist of
adherence to, or acceptance of, an ultimate rule of recognition by which the validity of any primary or
secondary rule may be assessed. If a primary or secondary rule satisfies the criteria, which are provided
by the ultimate rule of recognition, then that rule is legally valid.
There are two fundamental essentials which must be satisfied in order for a legal system to exist:
(i) private citizens must generally obey the primary rules of obligation, i.e. those rules of behavior
are valid according to the system’s ultimate criteria of validity must be generally obeyed and
(ii) (ii) public officials must accept the secondary rules of recognition, change, and adjudication as
standards of official conduct. If both of these essentials are not satisfied, then primary rules may
only be adequate to establish a pre-legal form of government.

BEING OBLIGED & HAVING AN OBLIGATION

"There is a difference, yet to be explained, between the assertion that someone was obliged to do
something and the assertion that he had an obligation to do it23".

21
Ibid.
22
Hart, HLA (1961) Concept of Law Oxford: Clarendon Press, p84.
23
Hart’s Concept of Law, Lecture 5, (2001)

42
Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

(1) Being obliged:- involves motives and beliefs, in terms of harm or unpleasant consequences; plus (i)
serious not trivial harm; (ii) reasonable grounds to believe that the threat will be carried out. So
"being obliged" is a psychological phenomenon.
(2) Having an obligation:- is "very different" [p.81]. (i) Facts are not sufficient to warrant the statement
that X had an obligation; a fortiori, facts about X's psyche are not sufficient; (ii) facts are
not necessary; a fortiori, X may have an obligation irrespective of his mental state. The following
passage develops the point and incidentally throws further doubt on the "freshness" of Hart's
approach: 100. "The difference between being constrained to do something because of my needs or
wishes and being constrained to do it irrespective of them is perhaps most easily discerned in the
parallel between being 'obliged' and being 'obligated' to do it. To be, or to feel, obliged to do something
is quite different from being, or believing myself to be, obligated to do it. For instance, I am obliged to

c e
put my name in my books, since I do not want them to be borrowed and not returned; but I desire to
keep them as my own. It makes perfectly good sense to say: 'I had an obligation to tell the truth, but

n
to get out of that scrape I was obliged to lie'. To be obliged to do something means that, to accomplish

a
a given purpose, I have to do something I don't particularly want to do, or dislike doing. To be

s e
obligated to do something means to be under necessity of choosing to do something without

is g
consulting my desires". (L.W. Beck, Commentary on Kant's Second Critique, p.113). Further, Hart

a e
suggests, ever the linguistic philosopher, that "was obliged to" implies "he did" whereas "had an

l l
obligation" does not.

CONCLUSION (As a whole):

e n o
R C
The word jurisprudence derives from the Latin term juris prudentia, which means "the study,
knowledge, or science of law." In the United States jurisprudence commonly means the philosophy of law.

w
Legal philosophy has many aspects, but four of them are the most common. The first and the most

a
prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law. Law

L
school textbooks and legal encyclopedias represent this type of scholarship. The second type of
jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics,
religion, and the social sciences. The third type of jurisprudence seeks to reveal the historical, moral, and
cultural basis of a particular legal concept. The fourth body of jurisprudence focuses on finding the
answer to such abstract questions as-What is law? How do judges (properly) decide cases?

Apart from different types of jurisprudence, different schools of jurisprudence exist. Formalism, or
conceptualism, treats law like math or science. Formalists believe that a judge identifies the relevant legal
principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of
the dispute. In contrast, proponents of legal realism believe that most cases before courts present hard
questions that judges must resolve by balancing the interests of the parties and ultimately drawing an
arbitrary line on one side of the dispute. This line, realists maintain, is drawn according to the political,
economic, and psychological inclinations of the judge. Some legal realists even believe that a judge is able
to shape the outcome of the case based on personal biases.

Apart from the realist-formalist dichotomy, there is the classic debate over the appropriate sources of
law between positivist and natural law schools of thought. Positivists argue that there is no connection
between law and morality and the only sources of law are rules that have been expressly enacted by a
governmental entity or court of law. Naturalists, or proponents of natural law, insist that the rules
enacted by government are not the only sources of law. They argue that moral philosophy, religion,
human reason and individual conscience are also integrate parts of the law.
There are no bright lines between different schools of jurisprudence. The legal philosophy of a particular
legal scholar may consist of a combination of strains from many schools of legal thought. Some scholars
think that it is more appropriate to think about jurisprudence as a continuum.

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Class –LL.B. (HONS.)III SEM. Subject–Jurisprudence

REFERENCES
• A.K.MAJUMDAR ET AL ., COMPANY LAW AND PRACTICE , 14TH ED., TAXMANN PUBLICATIONS PVT. LTD.,
2009, NEW DELHI
• ALLEN BUCHANAN, “WHAT IS SO SPECIAL ABOUT RIGHTS”, PP. 61-75, (1984)
• AMRUTYA SEN, CULTURE AND HUMAN RIGHTS, PP. 227 – 48, (2000)
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