1.

Sir John Salmond defines Jurisprudence as science of LAW?

Where there is a systemize branch of knowledge its science comes into existence, since law is
a systemized branch of knowledge, it is a science. The name of the science is Jurisprudence.
This word has its routs in the Latin word "Jurisprudentia". Juris means law and prudentia
meaning knowledge. Thus jurisprudence is knowledge of law or skill in law. It is the `science
of legal principles and philosophy of law which includes the entire, system of legal doctrine.

Definition of Jurisprudence

In the words of Austin Jurisprudence is concerned with positive law i.e. "positivism" which
means that laws are commands. The second- meaning is that the, law as "it is" actually laid
down has to be kept separate from the law that "ought to be".
He divided it into two branches:

General and

Particular Jurisprudence

General jurisprudence relates with the subjects of law as are common to all systems of law.
This field of law is a wider one. Particular jurisprudence is confined only to study of any
actual system of law, it talks about it special or particular system of law. In both essence is the
same but they differ from each other in their scope.

Salmond Definition

Salmond define Jurisprudence as "the science of law", here law stands for law of land. In this
sense it has three kinds i.e.

Systematic jurisprudence. Existing actual legal system in past or in present.

Legal History. Process of, historical development.

Legislation. To set forth law, as it ought to be.

Jurisprudence is the science of legal principles and philosophy of law, which indicates the
entire system of legal doctrine. In short it is the study of the structure of legal system. While
jurist means a legal scholar, one who is versed in law.

Legislation

In modern times, legislation is considered as the most important source of law.

The term 'legislation' is derived from the Latin word legis which means 'law' and
latum which means "to make" or "set". Therefore, the word 'legislation' means
the 'making of law'.
The importance of legislation as a source of law can be measured from the fact
that it is backed by the authority of the sovereign, and it is directly enacted and
recognised by the State. The expression 'legislation' has been used in various
senses. It includes every method of law-making. In the strict sense it means laws
enacted by the sovereign or any other person or institution authorised by him.

Kinds of Legislation

The kinds of legislation can be explained as follows:

Supreme Legislation:

When the laws are directly enacted by the sovereign, it is considered as supreme
legislation. One of the features of Supreme legislation is that, no other authority
except the sovereign itself can control or check it. The laws enacted by the
British Parliament fall in this category, as the British Parliament is considered as
sovereign.

Subordinate Legislation:

Subordinate legislation is a legislation which is made by any authority which is

subordinate to the supreme or sovereign authority. It is enacted under the
delegated authority of the sovereign. The origin, validity, existence and
continuance of such legislation totally depends on the will of the sovereign
authority. Subordinate legislation further can be classified into the following
types

Autonomous Law:
When a group of individuals recognized or incorporated under the law as an
autonomous body, is conferred with the power to make rules and regulation, the
laws made by such body fall under autonomous law. For instance, laws made by
the bodies like Universities, incorporated companies etc. fall in this category of
legislation.

Judicial Rules:
In some countries, judiciary is conferred with the power to make rules for their
administrative procedures. The Supreme Court and High Courts have been
conferred with such kinds of power to regulate procedure and administration.

Local laws:
In some countries, local bodies are recognized and conferred with the law-
making powers. They are entitled to make bye-laws in their respective
jurisdictions. The rules and bye-laws enacted by them are examples of local laws.

Colonial Law:
Laws made by colonial countries for their colonies or the countries controlled by
them are known as colonial laws. For a long time, However, as most countries of
the world have gained independence from the colonial powers, this legislation is
losing its importance and may not be recognized as a kind of legislation.

Laws made by the Executive:

Laws are supposed to be enacted by the sovereign and the sovereignty may be
vested in one authority or it may be distributed among the various organs of the
State. In most of the modern States, sovereignty is generally divided among the
three organs of the State. The three organs of the State namely legislature,
executive and judiciary are vested with three different functions. The prime
responsibility of law-making vests with the legislature, while the executive is
vested with the responsibility to implement the laws enacted by the legislature.
However, the legislature delegates some of its law-making powers to executive
organs which are also termed delegated legislation. Delegated legislation is also
a class of subordinate legislation. In welfare and modern states, the amount of
legislation has increased manifold and it is not possible for legislative bodies to
go through all the details of law. Therefore, it deals with only a fundamental part
of the legislation and wide discretion has been given to the executive to fill the
gaps. This increasing tendency of delegated legislation has been criticized.
However, delegated legislation is resorted to, on account of reasons like paucity
of time, technicalities of law and emergency. Therefore, delegated legislation is
sometimes considered as a necessary evil.

Possession in jurisprudence
Possession is very difficult to define in English Jurisprudence. But it very
important topic. Human life and society would become impossible without
retention and consumption of material and non-material things. Food, clothes,
tools, etc. are essential items to use. We get hold over the first to claim
possession. It is not just acquisition of things but it is continuing claim for use of
them. It may be legal or illegal.
How the possession is acquired:
Following are some points which can be referred to acquire or loss the ownership:

Possession itself is evidence being owner. Pen in my hand is evidence

being owner, regardless legally or illegally.

The person in possession is presumed to be the owner. A house in my

possession is presumed my ownership along-with all the things lying in it.

Anything can be held wrongfully or by fraud.

Long possession of twelve years confers the title in property, which may
belong to others. When a title is conferred to another even without
ownership is acquisition of possession.

Possession is defined as it is continuing exercise of a claim to the exclusive use

of it. It does not cover incorporeal possession. Possession is different from
ownership but normally possession and ownership lie together.
How the possession is acquired: Lease, renting out, pledge, mortgage, theft,
fraud, and bailment etc. is the general mode of acquisition of possession.
Possession is of two kinds, i.e., possession in fact or de facto and possession in
law or de jure. Some discordance in law and fact occurs. Law something
presumes which may not actually exist. Normally possession in law and
possession in fact exist in a person but it may vary.

Possession in fact or de facto:

It means the possession, which physically exists in term of control over it.
It can be seen landlord and tenant where tenant holds possession of house
physically or de facto, but it is not possession in law or de jure.

Possession in law or de jure:

It is the possession which, in the eyes of law, exists. It may exclude
physical control over it. It is also called constructive possession. A servant
may possess car, but in the eyes of law, it is possession of master.
Possession of bailor through bailee is de jure possession on the part of
bailor.

Corporeal and incorporeal possession:

Corporeal possession is the possession of a material or tangible objects, thus it is

continuing exercise of a claim on the use of material or tangible object.
Incorporeal possession is the possession of a non-material or intangible object.
Thus it is continuing exercise of a claim on the use of non-material or intangible
object.
There are two essential elements of possession, i.e., animus and corpus.

Animus is the intent or mental condition or activity or claim of exclusive

use of the thing possessed. Cloth at tailors shop is in possession of tailor
but he may not intend to exclude the owner or subject of the owner.
Animus may be legal or illegal. The only test is whether the man in
possession intends to exclude others or not. General intent is enough to
constitute possession. All books in library, all fishes in net, all sheep in
flock, are subject of intent whether in knowledge or not, thus possessio
completes.

Corpus is second element, which is essential and completes possession. It

is objective part of possession. Both animus and corpus are necessary for
possession.
The intent to exclude to others from interfering with the object possessed
must be evidenced by physical facts. If there is no action then no intention
is expressed. Pen in my pocket, ring on my finger, or goods in my home,
are corpus of my possession of each of these.

Completion of possession:

Power of possession: It shows possession. Books or watch in my hand

excludes others thus possession is complete. Things under lock and key
are also possession.
 Presence of possession: A person may be feeble and unable to exclude
other but his presence may command respect. Cash in the hand of child is
possession.

Secrecy: Mere knowledge that I have cash in bank, which is exclusive

knowledge, is possession.

Continuing use: I use pen continuously, read book continuously, use of

transport continuously, is possession.

Customs: In some localities people are not allowed to interfere to other

things even presence is not there, like in Saudi Arabia where people leave
their shops remain open and go to offer prayer and no interference is
allowed. It is possession even in absence.

Respect of rightful claim: In law-abiding societies people do not

interfere in the right of other and rightful claim generally obtain security
from general acquisition.

Res nullius

Res nullius means ownerless things or objects. Terra nullius means no man land.
A person, who finds lost goods, while passing on road, e.g., a wallet, being first
finder, he has good title against the whole world except the true owner, even if it
is found on another person property without committing trespass. This is the
rule. Any other person who looks at finder of lost goods cannot demand his share
from lost goods.If a customer finds a lost wallet while shopping in a store which is
not identifiable, can retain till reasonable time to wait its true owner. He is
obliged to bring this matter into the knowledge of shopkeeper and give him his
own address. If true owner did not come till reasonable time, he will hold title.
There are many other things which have no owner, i.e., gems stone, metal, gold,
silver, natural resources, bird, animal, provided these things are found in way,
without committing trespass. Precious stone cannot be held from the area
specified by government. Bird or fish cannot be hunt from the area of property
holder. Things cannot be hold from others house. Bird cannot be hunt, which is
prohibited.
There are three exceptions in this rule:

Owner of the property on which the thing is found is in possession of the

thing itself as well as property, or

If the finder is servant or agent then master or principal has title, or

Wrongful act does not constitute possession. Trespass is not allowed.

Natural resources in economic zone like water, sea, land etc. belong to
government. If treasure comes out from others property will also belong to
government.
Kinds of corporeal possession:

Immediate possession means direct or proximate possession without agency and

mediates possession means in between or remote possession. It is acquired with
agency.

A being a servant holds something for his master B. A has immediate

possession while possession of B is mediate.

Where both claim possession, e.g., tenant and landlord.

In case of bailment, pledge or mortgage, both have claim.

A has exclusive right of possession on his land while right of way over his land is
concurrent.

Acquisition of possession:

Possession is acquired when both the animus and corpus are acquired:

By taking: When someone takes anything, he has possession. It may either

be rightful or wrongful possession.

By delivery: The thing is acquired by delivery with consents of previous

possessor.

Actual deliveryActual delivery is a kind in which goods are delivered while

constructive delivery is the rental or sold goods.

Persons in Jurisprudence Notes

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In an ordinary meaning any living human being either male or female is person.
In old Roman law slaves were not supposed to be person because they were not
possessed rights.
In legal term a being who is capable to possess rights and obligation and
liabilities is person. All human being are person. Any being whom law regards as
capable of rights and duties.

Kinds of persons
There are two kinds of person in law

Natural persons

Legal person
Natural persons
All the human beings are natural persons. The entire male and female are
persons. All the living beings which are recognized as person by state, they are
persons in law and persons in fact.
Legal persons
Legal persons are created artificially and law regards them as legal person. They
are persons only in the eyes of law. They are also created by legal fiction so
called as fictitious also. They are also called juridical, conventional, imaginary,
and they have rights and obligations as natural person. They can sue and be
sued.
Animals
They are no persons because they do not possess rights and obligations. Some
people say that they are persons because law prohibits cruelty to them. They
should be treated sympathetically and kindly. But this is our cultural heritage and
the duty of society and not the duty of animals. Rights always correlate with
duties. Since they do not have any duty so no rights and are not persons
although in ancient Roman law a rooster was prosecuted and punished but in
modern law master of animals can be sued and punished and not the animals
itself.
Dead human beings
They cease their rights and obligation at the moment they go away from this
world and their connection is cut down. They are immune from duties and not
subject of rights. Law recognize the compliance of will, burial ceremony, no
defamation, no desecration of graves, but despite of this fact they are not
persons and these duties lie to their legal heirs or living society members.
Statues of unborn babies
In civil law they can sue after they are born through their next friends or at
attaining the age of majority. A child in womb has certain rights and inherits
property. These all things are subject to his living birth.
Following are important points

He can claim damages after birth, for the injuries he received before birth.

He can claim compensation for the death of his father or mother in fatal
accidents.

He inherits even his father is died before his birth. He is natural person
even his birth is only for a moment.

A woman cannot be punished after conviction if she is pregnant, till birth

of baby.

Kinds of legal persons They are three kinds of Legal Person are as follows

Institutions are not personified or group of persons but institutions itself

are legal persons, such as, mosque, library, hospital etc.

CorporationsCorporations are a group or series of persons and natural

persons are its members.
 Funds or estatesFunds or estates are used for specific purpose. Property
or fund of deceased person for trust or charity is kind of legal person.

Kinds of Corporation

Corporation aggregate
Corporation aggregate is a group or collection of persons who become
joint to accomplish a task. Even all members of this corporation die, it will
remain live and continue until death by law. Common example of this
corporation is Municipal Corporation or registered company.

Corporation sole
Corporation sole is series of successive persons or individuals. It consists
of only one person at a time like king, postmaster general, Assistant
Commissioner, or Prime Minister. When a person dies, second one comes,
fills in vacancy and performs functions. After death of office holder, for the
time being, office becomes dormant or inactive or goes in sleeping
position and as well as other person fills in the position, it become active.

Legal Rights jurisprudence notes

LLB Part-I Jurisprudence

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There can be on duty without a right and According to Hibbert a right is one
person capacity of obliging others to do or forbear by means not of his own
strength but by the strength of a third party. If such third parts is God, the right is
Divine. If such third parts is the public generally acting though opinion, the right
is moral. If such third parts is the stale acting directly or indirectly, the right is
legal.

Definition Of Legal Right

The term legal right has been used in two senses:

Restricted Or Popular Sense:
According to Gray: A legal is that powers which a man has to take a person or
person do or refrain form doing a certain act or certain acts, so far as the power
arises form society imposing a legal duty upon a person or persons.
Wider Sense:
In a wide sense, legal right include any legally recognized interest whether it
corresponds to a legal duty or not. It is an addition or benefit conferred upon a
person by a rule of law.

Kinds Of Legal Rights:

Following are the kinds of legal rights:

Perfect right
 Imperfect right

Real And Personal Rights

Rights In Rem And Rights In Personam

Proprietary And Personal Rights

Inheritable And Uninheritable Rights

Rights In Repropria And Rights In Re Aliena

Principal And Accessory Rights

Legal And Equitable Rights

Primary And Secondary Rights

Public And Private Rights

Vested And Contingent Rights

Servient And Dominant Rights

Municipal And International Rights

Rights At Rest And Rights In Motion

Ordinary And Fundamental Rights

Jus Ad Rem

Perfect right:

According to salmond, a perfect right is one which corresponds to a perfect duty I

.e., which is enforced by law.
Example:
A contract specically enforceable through the Court of law is an example of
perfect right.

Imperfect right:

An imperfect right is that which is recognized by law but cannot be enforced by

law due to some impediment. These may be turn into perfect rights.

Positive right:
A positive right corresponds positive duty and the person subject to the
duty is bound to do something.
 Negative right:
Negative right corresponds to negative duties. The enjoyment of negative
rights is complete unless such interference takes place.

Real And Personal Rights:

Real right:
According to salomond, a real right corresponds to a duty imposed upon
persons in general. It available against whole word. Real rights are
generally a negative rights as the duties which can be expected form the
whole world are of a negative character.
Example:
I have a right to be deprived of my life is a real right as it is available
against the whole world.

Personal right:
A personal right corresponds to a duty imposed upon determinate
individuals. It against a particular person. Personal rights are generally
positive right as it imposes a duty on a particular person to do something.
Example:
I have a personal right to receive compensation form any individual who is
any harms me.

Rights In Rem And Rights In Personam:

Rights in Rem:
It is derived form the Roman term action in Rem . It is available the whole
world Examples are rights of ownership and possession. My right of
possession and ownership is protected by law against all those who those
may interfere with the same.

Rights in Personam:
It is derived form the Roman term action in personam, Right in
personam corresponds to duty imposed upon determinate persons.
Example:
Rights under a contract are right in Personam as the parties to the
contract alone are bound by it.

Proprietary And Personal Rights:

Proprietary Right:
The proprietary rights of a person include his estate, his assets and his
property in many forms. They have some economic or monetary value.
They possess both judicial and economic importance.
Example:
The right to debt, the right to goodwill etc.

'
 Personal right:
Personal right pertain to man, s status or standing in the law. They
promote the man, s well being. Personal rights possess merely judicial
importance.
Example:
Right to life, reputation etc are personal rights.

Inheritable And Uninheritable Rights:

Inheritable Rights:
Inheritable rights are those which survives its owners.
Example:
A dies leaves his property him B his legal heir becomes owner of such
property. This is an inheritable right.

Uninheritable right:
A right is uninheritable if it dies with its owners e. g. personal rights die
with its owner and cannot be inherit.

Rights In Repropria And Rights In Re Aliena:

Rights in Re Propria:
Rights in Re propria are rights in one, s own property. These are complete
rights to which other right can be attached.
Example:
The owner of a chattel has a right in re propria over it.

Right in Re aliena:
Rights is Re aliena are rights over the property of another person. These
rights derogate form the rights of another person and add to the rights of
their holder.
Example:
My right of way across the land another person is a right re aliena.

Principal And Accessory Rights:

Principal rights
Principal rights exist independently of other rights. Accessory rights are
appurtenant to other rights and they have a beneficial on the principal
rights.
Example:
X owes money to Y and he executes a mortgage deed in favour of Y.
the debt is the principal right and the security in the form of mortgage is
the accessory right.

Legal And Equitable Rights:

 Legal Rights:
Legal rights are those which were recognized by common Law Court e. g.,
right to vote etc.

Equitable Rights:
Equitable rights are those which were recognized by the Court of chancery.
Example:
The right of the mortgagor to redeem the property is regarded as a
creation of the Courts of equity and is an equitable right knows as the
equity of redemption.

Primary And Secondary Rights:

Primary Rights:
Primary rights are also called antecedent, sanctioned or enjoyment rights.
These are those rights which are independent of a wrong having been
committed. They exist for own sake. They are antecedent to be wrongful
act or omission.
Example:
Right of reputation, Right to life etc.

Secondary Rights:
Secondary rights are also called sanctioning, restitutory or remedial rights.
Secondary rights are a part of the machinery provided by the state of the
redress of injury done to the primary rights. Their necessity arises on
account of the fact that primary rights are very often violated by the
persons.
Example:
Rights to obtain compensation for defamation to person.

Public And Private Rights: Public rights:

Public rights:
A public right is possessed by every member of the public. It is between a
state and the private individual e. g. , right to vote etc.

Private right:
A private right is concerned only with the individuals. Both the parties
connected with the right are private persons e.g., contract entered into by
two individuals.

Vested And Contingent Rights:

Vested right:
A vested is a right in right in respect of which all events necessary to vest
it completely in the owner have happened. No other conditions remains to
be satisfied.
Example:
 If a valid deed of transfer is executed by ;A; in favour of B, B acquires a
vested right.

Contingent right:
According to paton when part of the in vestitive acts have occurred, the
right is contingent until the appening of all the facts on which the title
depends.
Example:
A executes a deed in favour of B according to which he entitles to the
possession of certain property when attains the age of 21, the right is
contingent right and it will be vested only when he attains the age of 21.s

Servient And Dominant Rights:

A servient right is one which is subject to an encumbrance. The encumbrance

which derogates form it may be contrasted as dominant.
Example:
X as the owner of certain house a right of way over the land of Y , his
neighbor. The house of X is the dominant heritage and X is the dominant
owner. The house of Y is the servient heritage and Y is the servient owner.

Municipal And International Rights:

Municipal rights:
Municipal right are conferred by the law of a country, it is enjoyed by the
individuals living in a country.

International rights:
International rights are conferred by international law. The subject of the
International rights are the persons recognized as such by International
law.

Rights At Rest And Rights In Motion:

According to Holland, when a right is stated with reference to its orbit and its
infringement, it is a right at rest. Orbit means the extent of advantages
conferred by such right and infringement means an act which interference with
the enjoyment of those advantages. Causes by which rights are either connected
or disconnected with persons are discussed under rights in motion.

Ordinary And Fundamental Rights:

Some rights are ordinary and some are fundamental rights. The distinction
between the two lies that fundamental rights are often guaranteed by the
onstitution i. e., right to life, liberty etc.

Jus Ad Rem:
A jus ad rem is a right to right. It is always a right in personam.
Example:
If A sell his house to B. B acquires a right against A to have the house
transferred to himself.

Conclusion:

To conclude, I can say, that legal rights are those which are conferred by the
state on certain individuals and imposes corresponding duties on others. It is
enforced by the physical force of the state. It is been classified into different
kinds according to their scope by various authors.

Kinds of jurisprudence
LLB Part-I Jurisprudence

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Following are three main kinds of jurisprudence according to salmond

Historical Jurisprudence

Historical Jurisprudence gives the answers of the questions, origin of law, the
development of law, evolution of law and philosophy of law. It constitutes the
general portion of legal history. It deals with the general principles governing the
origin and development of law as also the origin development of legal
conceptions and principles found in the philosophy of law.

MAIN FUNCTION OF HISTORICAL JURISPRUDENCE

Catalogue the development of law,

Allotting to each phase its true position in the completed narrative.

It indicates the processes of change, and is therefore descriptive.

It is the function of historical jurisprudence to interpret these changes and

to expose the forces which have brought them about.

Analytical jurisprudence:

The branch of jurisprudence gives analysis to basic principles of civil and their
interpretation. The purpose of this branch of study is to analyse and dissect the
law of the land as it exists today. This analysis as the principles of the law is done
without reference to their historical origin or their ethical significance. Analytical
jurisprudence it examines the relations of civil law with other forms of law,
analysis the various constituent ideas of which the complex idea of the law is
made up.
For example
 The state, sovereignty and administration of justice.

Investigates the theory of legislation. Judicial precedents and customary

law.

Inquires into the scientific arrangement of the law

Deals with the conception of legal rights and legal liability,

Examines such legal conceptions as property, possession, obligations

contracts, trusts, personality, intention, motive, negligence, etc, which by
the reason of their theorectical interest deserve special attention.

Ethical jurisprudence:

The branch of jurisprudence deals with basic principles of ethics and moral
values.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. This area of study brings together moral
and legal philosophy. It is connected with the purpose of which the law exists and
the manner in which such purpose is fulfilled. Salmond observes that ethical
jurisprudence is the meeting point and common ground of moral and legal
philosophy of ethics in jurisprudence. Ethical jurisprudence has for as its object
the conception of justice, the relation between law and justice

OTHER KINDS OF JURISPRUDENCE

Following are the other kinds of jurisprudence

Philosophical jurisprudence

It deals with philosophy of law. sciences and of philosophy it digs into the
historical past and attempts to create the symmetry of a garden out of the
luxuriant chaos on conflicting legal systems.

Sociological jurisprudence :

Sociology is the study of men in society. A sociologist considers law as a social

phenomenon. The object of sociological jurisprudence is to work upon
jurisprudence with reference to the adjustment of relations of ordering of
conduct which is involved in group life. A theme of this branch is to study living
law in the same manner as a psychologist studies living issue.
The most important branch of legal sociology is penology, which studies the
causes of crimes, behavior of criminal and effect of different theories of
punishment. The only principle in penology is to find out why a man does wrong
to make it not worth his while.

7
The Administration of Justices
LLB Part-I Jurisprudence

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War and administration of justice are two most essential functions of a state. If
the state is not incapable of performing these two functions. It cannot be called a
state. Administration of justice implies the maintenance of peace and order
within a political community by means of physical force of the state.

MEANING OF JUSTICE
Justice means the proper administration of law.

DEFINITIONS OF ADMINISTRATION OF JUSTICE

Administration of justice is the protection of individual form the unjust unlawful
deeds of other

ACCORDING TO SALMOND
Maintenance of right within the political community by means of physical force of
state

ACCORDING TO LOARD BRYCE

There is no better test of excellence of a Government than the Efficiency of its
judicial system

ORIGIN AND GROWTH OF ADMINISTRATION OF JUSTICE.

The origin and growth of administration of justice may be divided in to three

stages.
FIRST STAGE
First of all the concept of private system of punishment and violent self-help.
SECOND STAGE
When the rise of political states, the private system started to be regulated by
the state. The state provided rules like an eye for eye and a tooth for tooth.
Thus the system of self-help was very much prevalent.
THIRD STAGE
At that stage, the state enacted its own rules and laws and has sub situated the
concept of private punishment by the administration of civil and criminal justice.

NECESSITY OF ADMINISTRATION OF JUSTICE

Administration of justice is important for the following reasons.

Necessary for uniformity.

Necessary for protection of rights.

Necessary for peace and stability.

 Necessary for integration of society.

Necessary to check injustice.

Necessary to educate people.

To promote welfare.

To promote equity.

KINDS OF JUSTICE

Justice is divided into following kinds

PUBLIC JUSTICE
Public Justice is that which is administrated by the state using its own tribunals
and courts. It is the relation between court and an individual. When a person
turns to courts for restitution, he said to demand public justice. It is granted
when a right of an individual, which he has as a member of society, is infringed.
PRIVATE JUSTICE
Private Justice is Justice between individuals. It is the end for which the courts
exist and public justice is the means through which this end is fulfilled.
CIVIL JUSTICE
Civil justice results from the infringement of a private right. If a right of a person
is violated and it only concerns or directly affects him, it will be death with civil
justice.
CRIMINAL JUSTICE
Criminal Justice results from the infringement of a public right. Even if the
offence is committed against one person but the nature of the offence is such
that the state steps in and considers it to be an infringement of a public right.

ADVANTAGES OF ADMINISTRATION OF JUSTICE

Cohesive factor of society.

Provides stability.

Provides certainty.

Provides uniformity.

Impartiality.

Represent collective wisdom.

Security.

Provides justice.
DISADVANTAGES OF ADMINISTRATION OF JUSTICE

Rigidity.

Complexity.

Formalities.

Justice according to law.

Ownership in jurisprudence
LLB Part-I Jurisprudence

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Jurists have defined ownership in different ways. All of them accept the right of
ownership as the complete or supreme right that can be exercised over anything.
Thus, according to Hibbert ownership includes four kinds of rights within itself.

Right to use a thing

Right to exclude others from using the thing

Disposing of the thing

Right to destroy it.

Austins definition
Austin while defining ownership has focused on the three main attributes of
ownership, namely, indefinite user, unrestricted disposition and unlimited
duration.

Indefinite User

Unrestricted Disposition

Unlimited Duration

The abolition of Zamindari system India , the abolition of privy purses,

nationalization of Bank etc. are some example of the fact that the ownership can
be cut short by the state for public purpose and its duration is not unlimited.
Austins definition has been followed by Holland. He defines ownership as
plenary control over an object. According to him an owner has three rights on the
subject owned

Possession

Enjoyment
 Disposition

Planetary control over an object implies complete control unrestricted by any law
or fact. Thus, the criticism levelled against Austins definition would apply to that
given by Holland in so far as the implication of the term plenary control goes.
Salmonds Definition:
According to the Salmond ownership vests in the complex of rights which he
exercises to the exclusive of all others. For Salmond what constitute ownership is
a bundle of rights which in here resides in an individual. Salmonds definition
thus point out two attributes of ownership:

Ownership is a relation between a person and right that is vested in him

Ownership is incorporeal body or form

MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring ownership which
may be broadly classed under two heads,viz,.
Original mode
Derivative mode
The original mode is the result of some independence personal act of the acquire
himself. The mode of acquisition may be three kinds

Absolute when a ownership is acquired by over previously ownerless

object

Extinctive, which is where there is extinctive of previous ownership by an

independence adverse act on the part of the acquiring. This is how a right
of easement is acquiring after passage of time prescribed by law.

Accessory that is when requisition of ownership is the result of accession.

For example, if three fruits, the produce belongs to the owner unless he
has parted with to the same. When ownership is derived from the previous
version of law then it is called derivate acquisition. That is derived mode
takes place from the title of s prior owner. It is derived either by purchase,
exchange, will, gift etc.Indian Transferee Acts of property rules for the
transfer of immovable property, Sale of goods Acts for the transfer of
property of the firm and the companies Act for the transfer of company
property.

SUBJECT MATTER OF OWNERSHIP

Normally ownership implies the following:

The right to manage

The right to posses

 The right to manage

The right to capital

The right to the income

CHARACTERISTICS OF OWNERSHIP

An analysis of the concept of ownership, it would show that it has the following
characteristics: Ownership ma either be absolute or restricted, that is, it may be
exclusive or limited. Ownership can be limited by agreements or by operation of
law.The right of ownership can be restricted in time of emergency. An owner is
not allowed to use his land or property in a manner that it is injurious to others.
His right of ownership is not unrestricted.The owner has a right to posses the
thing that he owns. It is immaterial whether he has actual possession of it or not.
The most common example of this is that an owner leasing his house to a tenant.
Law does not confer ownership on an unborn child or an insane person because
they are incapable of conceiving the nature and consequences of their acts.
Ownership is residuary in character. The right to ownership does not end with the
death of the owner; instead it is transferred to his heirs. Restrictions may also be
imposed by law on the owners right of disposal of the thing owned. Any
alienation of property made with the intent to defeat or delay the claims of
creditors can be set aside.

KINDS OF OWNERSHIP

There are many kinds of ownership and some of them are corporeal and
incorporeal ownership, sole ownership and co-ownership, legal and equitable
ownership, vested and contingent ownership, trust and beneficial ownership, co-
ownership and joint ownership and absolute and limited ownership.

Corporeal and Incorporeal Ownership

Corporeal ownership is the ownership of a material object and incorporeal

ownership is the ownership of a right. Ownership of a house, a table or a
machine is corporeal ownership. Ownership of a copyright, a patent or a
trademark is incorporeal ownership. The distinction between corporeal and
incorporeal ownership is connected with the distinction between corporeal and
incorporeal things. Incorporeal ownership is described as ownership over tangible
things. Corporeal things are those which can be perceived and felt by the senses
and which are intangible. Incorporeal ownership includes ownership over
intellectual objects and encumbrances.

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that

which is owned by two persons at the same time. The relation between the two
owners is such that one of them is under an obligation to use his ownership for
the benefit of the other. The ownership is called beneficial ownership. The
ownership of a trustee is nominal and not real, but in the eye of law the trustee
represents his beneficiary. In a trust, the relationship between the two owners is
such that one of them is under an obligation to use his ownership for the benefit
of the other. The former is called the trustee and his ownership is trust
ownership. The latter is called the beneficiary and his ownership is called
beneficial ownership.

Legal and Equitable Ownership

Legal ownership is that which has its origin in the rules of common law and
equitable ownership is that which proceeds from the rules of equity. In many
cases, equity recognizes ownership where law does not recognize ownership
owing to some legal defect. Legal rights may be enforced in rem but equitable
rights are enforced in personam as equity acts in personam. One person may be
the legal owner and another person the equitable owner of the same thing or
right at the same time.

The equitable ownership of a legal right is different from the ownership of an

equitable right. The ownership of an equitable mortgage is different from the
equitable ownership of a legal mortgage.

There is no distinction between legal and equitable estates in India. Under the
Indian Trusts Act, a trustee is the legal owner of the trust property and the
beneficiary has no direct interest in the trust property itself. However, he has a
right against the trustees to compel them to carry out the provisions of the trust.

Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested ownership when the title of

the owner is already perfect. It is contingent ownership when the title of the
owner is yet imperfect but is capable of becoming perfect on the fulfillment of
some condition. In the case of vested ownership, ownership is absolute. In the
case of contingent ownership it is conditional. For instance, a testator may leave
property to his wife for her life and on her death to A, if he is then alive, but if A
is dead to B. Here A and B are both owners of the property in question, but their
ownership is merely contingent. It must, however, be stated that contingent
ownership of a thing is something more than a simple chance or possibility of
becoming an owner. It is more than a mere spes acquisitionis. A contingent
ownership is based upon the mere possibility of future acquisition, but it is based
upon the present existence of an inchoate or incomplete title.

Sole Ownership and Co-ownership

Ordinarily, a right is owned by one person only at a time. However, duplicate

ownership is as much possible as sole ownership. When the ownership is vested
in a single person, it is called sole ownership; when it is vested in two or more
persons at the same time, it is called co-ownership, of which co-ownership is a
species. For example, the members of a partnership firm are co-owners of the
partnership property. Under the Indian law, a co-owner is entitled to three
essential rights, namely

Right to possession

Right to enjoy the property

Right to dispose

Co-ownership and Joint Ownership

According to Salmond, co-ownership may assume different forms. Its two chief
kinds in English law are distinguished as ownership in common and joint
ownership. The most important difference between these relates to the effect of
death of one of the co-owners. If the ownership is common, the right of a dead
man descends to his successors like other inheritable rights, but on the death of
one of two joint owners, his ownership dies with him and the survivor becomes
the sole owner by virtue of this right of survivorship.

Absolute and Limited Ownership

An absolute owner is the one in whom are vested all the rights over a thing to
the exclusion of all. When all the rights of ownership, i.e. possession, enjoyment
and disposal are vested in a person without any restriction, the ownership is
absolute. But when there are restrictions as to user, duration or disposal, the
ownership will be called a limited ownership. For example, prior to the enactment
of the Hindu Succession Act, 1956, a woman had only a limited ownership over
the estate because she held the property only for her life and after her death;
the property passed on to the last heir or last holder of the property. Another
example of limited ownership in English law is life

Relation of Jurisprudence with other social sciences

LLB Part-I Jurisprudence

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Jurisprudence is studying law, law is regulating the conduct of individuals and

individuals are living and forming societies. Therefore, law is an important social
phenomenon which is making jurisprudence as a Social Science.
However, there are several other Social Science, like Ethics, Political Science,
Sociology, Psychology etc. Now, it is logical that these social science should be
interlinked with each other at some point.
Moreover, these social sciences could not studied in isolation. In other words,
none of these sciences can be understand with having a fair knowledge of
others. Jurisprudence, being a social science is, in fact, related with other social
sciences.
Jurisprudence and Sociology

Jurisprudence is the study of law and sociology is the study of society and it is
also discusses law but from a different stand-point. Therefore there is a link
between jurisprudence and sociology.
Jurisprudence is concerned with legal rules that actually exists, however,
sociology is studying the effectiveness of those legal rules and their impacts on
society.

Jurisprudence and Politics

Politics studies the principles responsible for the governmental organization.

Whereas, jurisprudence is analyzing those principles.
Moreover, in a political society there exist rules for the regulation of human being
conduct which are the subject-matter of jurisprudence. Hence, there is a close
connection between the two.

Jurisprudence and Ethics

Ethics is the science of human conduct. It projects an ideal human behavior, in

the light of which it suggests a course of conduct for individuals living in
societies. Whereas, jurisprudence is discussing the imperative rules, actually
existing in the societies. However, those rules are also connected with the
behavior of human beings in societies.
Therefore, both of the science are interrelated.
Due to the close relationship and interdependency of these sciences, there
emerged a branch of jurisprudence known as Ethical Jurisprudence, discussing
the ideal human behavior or which is the study of law as it ought to be.

Jurisprudence and Psychology

Psychology is the science of mind and behavior, whereas, jurisprudence is

discussing law.
Law is aimed to be followed by individuals, and individuals can only follow law if
they intend to follow.
Therefore, intention is the very basic element behind every law, and particularly
in criminal law the concept of mens rea is having immense importance.
Therefore, jurisprudence and psychology both are closely inter-related human
sciences.

Jurisprudence and Economics

Economics is the science of wealth and jurisprudence is the science of law.

Economics studies the production and distribution of wealth and law is
responsible for establishing a fair distribution of wealth through rules.
Moreover, studies show that economic factors are responsible for the increasing
rate of criminal activities, which again brings the two in close relation with each
other.
Furthermore, economics aims at improvement of the standards of human lives
whereas, this could not possible if a peaceful environment is not available which
is possible through the application of laws.
Therefore, there is a close relationship between the two.

Jurisprudence and History

History is the scientific narration of the past events, whereas, jurisprudence is

the science of law.
Law has not come into existence overnight, as a matter of fact, it has developed
through ages.
History helps jurisprudence in digging out the origin and evolution of different
legal rules.
Owing to its importance, there developed a separate branch of jurisprudence,
known as Historical Jurisprudence.
Therefore, it may concluded that there is a close relation between jurisprudence
and history.

10

Precedent in Jurisprudence
LLB Part-I Jurisprudence

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JUDICIAL PRECEDENT AS A SOURCE OF LAW

In simple words, judicial precedent refers to previously decided judgments of the

superior courts, such as the High Courts and the Supreme Court, which judges
are bound to follow. This binding character of the previously decided cases is
important, considering the hierarchy of the courts established by the legal
systems of a particular country. Judicial precedent is an important source of law,
but it is neither as modern as legislation nor is it as old as custom. It is an
important feature of the English legal system as well as of other common law
countries which follow the English legal system. In most of the developed legal
systems, judiciary is considered to be an important organ of the State. In modern
societies, rights are generally conferred on the citizens by legislation and the
main function of the judiciary is to adjudicate upon these rights. The judges
decide those matters on the basis of the legislations and prevailing custom but
while doing so, they also play a creative role by interpreting the law. By this
exercise, they lay down new principles and rules which are generally binding on
lower courts within a legal system. It is important to understand the extent to
which the courts are guided by precedents. It is equally important to understand
what really constitutes the judicial decision in a case and which part of the
decision is actually binding on the lower courts.

Judicial decisions can be divided into following two parts:

Ratio decidendi (Reason of Decision):

Ratio decidendi' refers to the binding part of a judgment. 'Ratio decidendi'
literally means reasons for the decision. It is considered as the general principle
which is deduced by the courts from the facts of a particular case. It becomes
generally binding on the lower courts in future cases involving similar questions
of law.
Obiter dicta (Said by the way):
An 'obiter dictum' refers to parts of judicial decisions which are general
observations of the judge and do not have any binding authority. However, obiter
of a higher judiciary is given due consideration by lower courts and has
persuasive value.

11

Title in Jurisprudence Notes

Title is a link between a person and an object to establish ownership of property.
A title is the de facto antecedent of which the right is the de jure consequent.
Right of possession on ownership comes in term of de facto first and later de
jure. For example, I have a watch on my hand. How it can be said that it is my, or
I have title over it. I have either purchased it, or someone has gifted me, or I
have inherited it from elsewhere. Title is created even of stolen objects. It is right
of ownership in fact and in law over property.

Kinds of Title

There are two kinds of title are as follow

Investitive factsInvestitive facts create rights. This right is created first

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

Divestitive factsDivestitive facts are those, which loss or keep away of

right is termed as divestitive facts.

Alienative rightAlienative right is right which is separated or

transferable.

Extinctive rightExtinctive right is right which is kept away or destroyed.

12

Custom in jurisprudence
LLB Part-I Jurisprudence

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Custom can simply be explained as those long established practices or unwritten

rules which have acquired binding or obligatory character. In ancient societies,
custom was considered as one of the most important sources of law; In fact it
was considered as the real source of law. With the passage of time and the
advent of modern civilization, the importance of custom as a source of law
diminished and other sources such as judicial precedents and legislation gained
importance.

There is no doubt about the fact that custom is an important source of law.
Broadly, there are two views which prevail in this regard on whether custom is
law. Jurists such as Austin opposed custom as law because it did not originate
from the will of the sovereign. Jurists like Savigny consider custom as the main
source of law. According to him the real source of law is the will of the people and
not the will of the sovereign. The will of the people has always been reflected in
the custom and traditions of the society. Custom is hence a main source of law.

Kinds of Customs

Customs can be broadly divided into two classes:

Customs without sanction:
These kinds of customs are non-obligatory in nature and are followed because of
public opinion.
Customs with sanction:
These customs are binding in nature and are enforced by the State. These
customs may further be divided into the following categories:

Legal Custom:
Legal custom is a custom whose authority is absolute; it possesses the
force of law. It is recognized and enforced by the courts. Legal custom may
be further classified into the following two types:

o General Customs:
These types of customs prevail throughout the territory of the State.

o Local Customs:
Local customs are applicable to a part of the State, or a particular
region of the country.

Conventional Customs:
Conventional customs are binding on the parties to an agreement. When
two or more persons enter into an agreement related to a trade, it is
presumed in law that they make the contract in accordance with
established convention or usage of that trade. For instance an agreement
between landlord and tenant regarding the payment of the rent will be
governed by convention prevailing in this regard.

Essentials of a valid custom

All customs cannot be accepted as sources of law, nor can all customs be
recognized and enforced by the courts. The jurists and courts have laid down
some essential tests for customs to be recognized as valid sources of law. These
tests are summarized as follows:
Antiquity:
In order to be legally valid customs should have been in existence for a long
time, even beyond human memory. In England, the year 1189 i.e. the reign of
Richard I King of England has been fixed for the determination of validity of
customs.
Continuous:
A custom to be valid should have been in continuous practice. It must have been
enjoyed without any kind of interruption. Long intervals and disrupted practice of
a custom raise doubts about the validity of the same.
Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the community. It
should not have been practised secretly. Acustom must be proved to be a matter
of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid
custom.
Reasonableness:
A custom must conform to the norms of justice and public utility. A custom, to be
valid, should be based on rationality and reason. If a custom is likely to cause
more inconvenience and mischief than convenience, such a custom will not be
valid.
Morality:
A custom which is immoral or opposed to public policy cannot be a valid custom.
Courts have declared many customs as invalid as they were practised for
immoral purpose or were opposed to public policy.
Status with regard to:
In any modern State, when a new legislation is enacted, it is generally preferred
to the custom. Therefore, it is imperative that a custom must not be opposed or
contrary to legislation. Many customs have been abrogated by laws enacted by
the legislative bodies. For instance, the customary practice of child marriage has
been declared as an offence.

13

The Nature of Law jurisprudence notes

LLB Part-I Jurisprudence

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According to Blackstone Law in its most general and comprehensive sense

signifies a rule of action and is applied uudiscriminately to all kinds of actions
whether animate, rational or irrational. Thus we say the Laws of Motion, of
Gravitation, of optic or mechanics, as well as the Laws of Nature and of Nation."
The term 'law' in this sense is applied to observe uniformities of action.

There is great diversity in the use of the term 'law'. The same name is employed
to denote altogether different things, e.g., Laws of Nature, Laws of God, Laws of
Honour, and Laws of Morality, positive Law. A line was accordingly drawn
between laws relating to external nature and those dealing with the actions of
men.

Professor Holland Professor Holland observes that a law in the proper sense
of the term is a general rule of action, talkig cognizance only of external acts,
enforced by a determinate authority, which authority is human, and among
human authorities, is that which is paramount in a political society.

Hobbes defined laws "as the commands of him or them that have coercive
power. Austin followed him a law is a rule of conduct imposed and enforced by
the sovereign." Salmond substituted the definition by observing that "Law is the
body of principle recognised and applied by the State in the administration of
Justice." lt consists of the rules recognised and acted on by Courts of Justice.

According to Salmond, all law, however made, is Recognised and administered

by the Courts and no rules are recognised and administered by the Courts which
are not rules of law. lt is, therefore, to the Courts and not to the legislature that
we must go in order to ascertain the true nature of the law. on the other hand,
Blackstone maintained that a rule of law made on a pre-existing custom exists as
positive law apart from the legislature or Judge and Maine pointed out that there
is law in primitive societies.

Savigny recorded law as itself subject to evclution and as no arbitrary

expression of will of the law-giver.
The above is not the definition of 'a law' but of the law. In fact the term 'law' is'
used in two senses, whicn May be characterised as the concrete and the
abstract. In the concrete sense we speak of "a law" or "laws". "A law" means a
statute, ordinance, decree or an Act cf a Parliament. In this sense we say that
Parliamenthas enacted or repealed a law. It is a source of law in the abstract
sense. In the abstract sense we speak of "law" or "the law", e.g., the law of
England, the law of libel, criminal law, etc. Law here denotes the entire body of
legal principles prevailing in a particular system.

This ambiguity is a peculiar feature of English speech. In Continental languages

there are distinct words for the two meanings found in the Eng1ish term 'law'.
Law in the concrete is lex loci, and law in the abstract jus, droit; recht. Lex
meaning a statute is a source of jus.

The following are a few other concepts of law as given by enunent writers, which
will enable us to Have a clear perspective of the different hotions of law.

Every law is a gift of God and decision of sages Demostheries.

Law is not right alone or might alone, but a perfect combination between
the two."salmond".

A law is a command which obliges a person or persons to a course of

conduct."Austin".

14
The Source of Law in jurisprudence
LLB Part-I Jurisprudence

2 comments

Sources of law mean the sources from where law or the binding rules of human
conduct originate. In other words, law is derived from sources. Jurists have
different views on the origin and sources of law, as they have regarding the
definition of law. As the term 'law'has several meanings, legal experts approach
the sources of law from various angles.For instance, Austin considers sovereign
as the source of law while Savigny and Henry Maine consider custom as the most
important source of law. Natural law school considers nature and human reason
as the source of law, while theologians consider the religious scripts as sources
of law. Although there are various claims and counter claims regarding the
sources of law, it is true that in almost all societies, law has been derived from
similar sources.

CLASSIFICATION OF SOURCESOF LAW

Salmond, an English Jurist, has classified sources of law into the following
categories:
Formal Sources of Law:
These are the sources from which law derives its force and validity. Alaw enacted
by the State or Sovereign falls into this category.
Material Sources of Law:
It refers to the material of law. In simple words, it is all about the matter from
where the laws are derived. Customs fall in this category of law.
However, if we look around and examine the contemporary legal systems, it may
be seen that most legal systems are based on legislations. At the same time, it is
equally true that sometimes customs play a significant role in the legal system of
a country. In some of the legal systems, court decisions are binding as law.
There are three major sources of law can be identified in any modern society are
as follows:

Custom

Judicial precedent

Legislation

CUSTOM AS ASOURCE OF LAW

Custom can simply be explained as those long established practices or unwritten

rules which have acquired binding or obligatory character. In ancient societies,
custom was considered as one of the most important sources of law; In fact it
was considered as the real source of law. With the passage of time and the
advent of modern civilization, the importance of custom as a source of law
diminished and other sources such as judicial precedents and legislation gained
importance.

There is no doubt about the fact that custom is an important source of law.
Broadly, there are two views which prevail in this regard on whether custom is
law. Jurists such as Austin opposed custom as law because it did not originate
from the will of the sovereign. Jurists like Savigny consider custom as the main
source of law. According to him the real source of law is the will of the people and
not the will of the sovereign. The will of the people has always been reflected in
the custom and traditions of the society. Custom is hence a main source of law.

Kinds of Customs

Customs can be broadly divided into two classes:

Customs without sanction:
These kinds of customs are non-obligatory in nature and are followed because of
public opinion.
Customs with sanction:
These customs are binding in nature and are enforced by the State. These
customs may further be divided into the following categories:

Legal Custom:
Legal custom is a custom whose authority is absolute; it possesses the
force of law. It is recognized and enforced by the courts. Legal custom may
be further classified into the following two types:

o General Customs:
These types of customs prevail throughout the territory of the State.

o Local Customs:
Local customs are applicable to a part of the State, or a particular
region of the country.

Conventional Customs:
Conventional customs are binding on the parties to an agreement. When
two or more persons enter into an agreement related to a trade, it is
presumed in law that they make the contract in accordance with
established convention or usage of that trade. For instance an agreement
between landlord and tenant regarding the payment of the rent will be
governed by convention prevailing in this regard.

Essentials of a valid custom

All customs cannot be accepted as sources of law, nor can all customs be
recognized and enforced by the courts. The jurists and courts have laid down
some essential tests for customs to be recognized as valid sources of law. These
tests are summarized as follows:
Antiquity:
In order to be legally valid customs should have been in existence for a long
time, even beyond human memory. In England, the year 1189 i.e. the reign of
Richard I King of England has been fixed for the determination of validity of
customs.
Continuous:
A custom to be valid should have been in continuous practice. It must have been
enjoyed without any kind of interruption. Long intervals and disrupted practice of
a custom raise doubts about the validity of the same.
Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the community. It
should not have been practised secretly. Acustom must be proved to be a matter
of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid
custom.
Reasonableness:
A custom must conform to the norms of justice and public utility. A custom, to be
valid, should be based on rationality and reason. If a custom is likely to cause
more inconvenience and mischief than convenience, such a custom will not be
valid.
Morality:
A custom which is immoral or opposed to public policy cannot be a valid custom.
Courts have declared many customs as invalid as they were practised for
immoral purpose or were opposed to public policy.
Status with regard to:
In any modern State, when a new legislation is enacted, it is generally preferred
to the custom. Therefore, it is imperative that a custom must not be opposed or
contrary to legislation. Many customs have been abrogated by laws enacted by
the legislative bodies. For instance, the customary practice of child marriage has
been declared as an offence.

JUDICIAL PRECEDENT AS A SOURCE OF LAW

In simple words, judicial precedent refers to previously decided judgments of the

superior courts, such as the High Courts and the Supreme Court, which judges
are bound to follow. This binding character of the previously decided cases is
important, considering the hierarchy of the courts established by the legal
systems of a particular country. Judicial precedent is an important source of law,
but it is neither as modern as legislation nor is it as old as custom. It is an
important feature of the English legal system as well as of other common law
countries which follow the English legal system. In most of the developed legal
systems, judiciary is considered to be an important organ of the State. In modern
societies, rights are generally conferred on the citizens by legislation and the
main function of the judiciary is to adjudicate upon these rights. The judges
decide those matters on the basis of the legislations and prevailing custom but
while doing so, they also play a creative role by interpreting the law. By this
exercise, they lay down new principles and rules which are generally binding on
lower courts within a legal system. It is important to understand the extent to
which the courts are guided by precedents. It is equally important to understand
what really constitutes the judicial decision in a case and which part of the
decision is actually binding on the lower courts.
Judicial decisions can be divided into following two parts:

Ratio decidendi (Reason of Decision):

Ratio decidendi' refers to the binding part of a judgment. 'Ratio decidendi'
literally means reasons for the decision. It is considered as the general principle
which is deduced by the courts from the facts of a particular case. It becomes
generally binding on the lower courts in future cases involving similar questions
of law.
Obiter dicta (Said by the way):
An 'obiter dictum' refers to parts of judicial decisions which are general
observations of the judge and do not have any binding authority. However, obiter
of a higher judiciary is given due consideration by lower courts and has
persuasive value.

LEGISLATION AS ASOURCE OF LAW

In modern times, legislation is considered as the most important source of law.

The term 'legislation' is derived from the Latin word legis which means 'law' and
latum which means "to make" or "set". Therefore, the word 'legislation' means
the 'making of law'.
The importance of legislation as a source of law can be measured from the fact
that it is backed by the authority of the sovereign, and it is directly enacted and
recognised by the State. The expression 'legislation' has been used in various
senses. It includes every method of law-making. In the strict sense it means laws
enacted by the sovereign or any other person or institution authorised by him.

Kinds of Legislation

The kinds of legislation can be explained as follows:

Supreme Legislation:

When the laws are directly enacted by the sovereign, it is considered as supreme
legislation. One of the features of Supreme legislation is that, no other authority
except the sovereign itself can control or check it. The laws enacted by the
British Parliament fall in this category, as the British Parliament is considered as
sovereign.

Subordinate Legislation:

Subordinate legislation is a legislation which is made by any authority which is

subordinate to the supreme or sovereign authority. It is enacted under the
delegated authority of the sovereign. The origin, validity, existence and
continuance of such legislation totally depends on the will of the sovereign
authority. Subordinate legislation further can be classified into the following
types
Autonomous Law:
When a group of individuals recognized or incorporated under the law as an
autonomous body, is conferred with the power to make rules and regulation, the
laws made by such body fall under autonomous law. For instance, laws made by
the bodies like Universities, incorporated companies etc. fall in this category of
legislation.

Judicial Rules:
In some countries, judiciary is conferred with the power to make rules for their
administrative procedures. The Supreme Court and High Courts have been
conferred with such kinds of power to regulate procedure and administration.

Local laws:
In some countries, local bodies are recognized and conferred with the law-
making powers. They are entitled to make bye-laws in their respective
jurisdictions. The rules and bye-laws enacted by them are examples of local laws.

Colonial Law:
Laws made by colonial countries for their colonies or the countries controlled by
them are known as colonial laws. For a long time, However, as most countries of
the world have gained independence from the colonial powers, this legislation is
losing its importance and may not be recognized as a kind of legislation.

Laws made by the Executive:

Laws are supposed to be enacted by the sovereign and the sovereignty may be
vested in one authority or it may be distributed among the various organs of the
State. In most of the modern States, sovereignty is generally divided among the
three organs of the State. The three organs of the State namely legislature,
executive and judiciary are vested with three different functions. The prime
responsibility of law-making vests with the legislature, while the executive is
vested with the responsibility to implement the laws enacted by the legislature.
However, the legislature delegates some of its law-making powers to executive
organs which are also termed delegated legislation. Delegated legislation is also
a class of subordinate legislation. In welfare and modern states, the amount of
legislation has increased manifold and it is not possible for legislative bodies to
go through all the details of law. Therefore, it deals with only a fundamental part
of the legislation and wide discretion has been given to the executive to fill the
gaps. This increasing tendency of delegated legislation has been criticized.
However, delegated legislation is resorted to, on account of reasons like paucity
of time, technicalities of law and emergency. Therefore, delegated legislation is
sometimes considered as a necessary evil.

15

Contracts Nature and Terminology.

Contracts Law Notes, Contracts Nature and Terminology, Law Notes

No comments
Promise is a declaration that something will or will not happen in the future.
What is a Contract Contract is an agreement (based on a promise) that can be
enforced in court.
What law governs

Service contracts - common law of contracts.

Sale and lease contracts - Uniform Commercial Code (UCC).

Function of Contract Law

Designed to provide stability and predictability, as well as certainty, for both,
buyers and sellers in the marketplace.
Necessary to ensure compliance with a promise or to entitle the innocent party
to some form of relief.

Definition of a Contract
A contract is a:

Promise or set of promises,

For which breach of which,

The law provides a remedy, or

The performance of which the law in some way recognizes as a duty.

Objective Theory of Contacts. Circumstances to determine intent of parties.

Elements of a Contract
The Following are the element of contract

Agreement (Offer and Acceptance).

Consideration.

Contractual Capacity.

Types of Contracts
Types of Contracts Bilateral vs Unilateral

Bilateral Offeree must only promise to perform (promise for a promise).

 Unilateral Offeree can accept the offer only by completing the contract
performance (promise for an act).

Irrevocable Offer cannot be revoked once performance has begun.

Types of Contracts Express v. Implied In Fact.

Express Words (oral or written).

Implied In Fact Conduct creates and defines the terms of the contract.

Quasi Contracts - Implied in law.

Fictional contracts created by courts.

Imposed on parties for the interest of fairness and justice.

Equitable remedies.

Quantum Meruit.

Executed : A contract that has been fully performed on both sides.

Executory : A contract that has not been fully performed on either side.
Valid. :Elements: Agreement, consideration, contractual capacity, and
legality. .
Void. :No contract. .
Voidable (unenforceable). :Valid contract can be avoided or rescinded. .

Interpretation of Contracts
Plain Meaning Rule: Courts give terms their obvious meaning. .
Ambiguous Terms: If terms are ambiguous, court will attempt to
interpret ambiguous contract terms in a reasonable, lawful, effective
manner.

Contracts are interpreted as a whole.

 Terms negotiated separately given greater weight.

Ordinary, common meaning given.

Specific wording given greater weight than general language.

Written or typewritten given greater weight than preprinted.

Ambiguous terms interpreted against the drafter.

Trade usage, prior dealing, course of performance to allowed to

clarify.

Case: Dispatch Automation v. Richards (2002).

16

alid, Void, Voidable and Unenforceable Contracts

Valid Contracts- if a contract has all of the required elements, it is valid and enforceable in a
court of law.

Example

A homeowner (who is over the age of 18 and of sound mind) signed a contract with the
appliance store to buy a refrigerator. The homeowner pays for the refrigerator and the
appliance store presents the refrigerator for the home owner to take home.

Void Contracts - a void contract is not a contract and has no effect in a court of law and
cannot be enforced in a court of law. Most commonly, a void contract will be missing one or
all of the essential elements needed for a valid contract. Neither party needs to take action to
terminate it, since it was never a contract to begin with.

Example

A contract that was between an illegal drug dealer and an illegal drug supplier to purchase a
specified amount of drugs for a specified amount. Either one of the parties could void the
contract since there is no lawful objective and hence missing one of the elements of a valid
contract.

Voidable Contracts - a voidable contract is a contract which may appear to be valid and has
all of the necessary elements to be enforceable, but has some type of flaw which could cause
one or both of the parties to void the contract. The contract is legally binding, but could
become void. If there is an injured party involved, the injured party or the defrauded must
take action, otherwise the contract is considered valid.

Example
A contract entered into with a minor could be voidable.

Unenforceable Contracts - an unenforceable contract is a contract which cannot be enforced

in a court of law. This could happen because the terms of the contract are ambiguous, if one
party has a voidable contract or if the Statute of Limitations has expired. The statute of
limitations requires that lawsuits be filed within a certain period of time following a breach.
Another reason a contract might be unenforceable could be because of the Doctrine of
Laches. This principal states that a court has determined a contract is unenforceable due to
needless delay or neglect in filing a claim even though the statute of limitations may not have
expired.

Example #1

Bill bought a property from Harry through a written contract for sale. Seven years after the
purchase Harry wanted to claim that the contract was unenforceable. The statute of
limitations for written contracts in Oregon is six years and Harry would not be able to
challenge the contract.

Example #2

Mary bought a house from Pete using a written purchase and sale agreement. After taking
possession, Mary discovers a small leak in a pipe in the crawl space of the house, but does
not take any action against Pete for four years. The court decided that the contract was
unenforceable because of Marys delay, even though the Statute of Limitations had not
expired. The court ruling was based on the Doctrine of Laches.

17

Question before a court of law

Question which arises for determination before a court of law are either
questions of fact or questions of law or an admixture of both, known as mixed
question of law and fact.

1. Questions of law
A question of law is understood in three senses;

a. First sense

A question of law is one where answer is already prescribed by some rule of law.
Thus the question as to what is the reasonable and proper punishment for
murder is a question of law. In such cases the judicial opinion is excluded and
discretion of the Judge ruled out.
b. Second Sense

The question as to what law on particular point is such question arises where
notwithstanding the existence of law on the point, it is dubbed with uncertainty.
Such a state of affairs is a matter of common occurrence because the language
of the statute is always capable of various interpretations and it is in this sphere
that the lawyers play the most important role. So, interpretation of a particular
provision of law is a question of law in this second sense but once it has been
interpreted either way a superior court it becomes a question of law in the first
sense.

c. Third Sense

In jury, trails, such questions as are to be answered by the judge are named
questions of law as distinguished from those which are to be answered by the
jury and which are called questions of fact. This classification of the definition of
question of law is however incorrect because the judge may often determine
questions of fact also but for that mere reason such questions would not turn out
to be questions of law.

2. Questions of fact
a. Broad sense

In its broad sense question of fact means a question other than a question of law.
Thus,

i. Any question not answered by any fixed rule of law;

ii. Any question other than what the law on particular point is;

iii. Any question which is to be decided by the jury and not by the judge, are
question of fact.

b. Restricted sense

In its restricted sense the terms mean a question of fact a opposed to a question
of judicial discretion. Thus, whether in a case of breach of contract the plaintiff
should be allowed specific performance or merely left out with compensation is a
question of discretion. Or where matters of opinion arise before the court, the
court has discretion to adopt whichever view it deems best suited the
circumstances of the case. In such cases, however, no rule of law is applicable
and it would, therefore, be appropriate to call them; questions of discretion;.
Mixed Question of Law and Fact Law and Legal
Definition
Mixed question of law and fact refers to a question which depends on both law and fact for its
solution. In resolving a mixed question of law and fact, a reviewing court must adjudicate the
facts of the case and decide relevant legal issues at the same time.

Mixed questions of law and fact are defined as questions in which the historical facts are
admitted or established, the rule of law is resolved and the issue is whether the facts satisfy
the statutory standard, or to put it another way, whether the rule of law as applied to the
established facts is or is not violated. [Bausch & Lomb v. United States, 21 C.I.T. 166, 169
(Ct. Int'l Trade 1997)].