208 Legal Methods & Legal Theories

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CORE COURSE
208 LEGAL METHODS & LEGAL THEORIES (Jurisprudence)
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Source : Public domain print/ internet contents. URLs of some such resources are listed
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02-Apr-2017. Exam centric version-1.3 compiled by ketan.bhatt@iitbombay.org in
academic pursuit. Follow URLs for details. Dedicated to students of the subject. No
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Refer (not in any particular order) :
Bare acts are a good source, in any subject of law.
Wikipedia is one of the best source in this subject.
http://kuklawnotes.blogspot.in/p/jurisprudence-1-what-is-administration.html
http://www.desikanoon.co.in/p/study-notes.html
https://www.academia.edu/24393038/Jurisprudence_Notes_LLB_pdf

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CONTENTS
208 Legal Methods & Legal Theories (Jurisprudence)
Module-1) Introduction and sources of Law.
Module-2) Schools of Jurisprudence.
Module-3) Legal Rights, duties, persons, Titles, liabilities etc.
Module-4) Ownership, Possession and Property.
---> Note : To get a better over view of evolution of jurisprudence, fresh students may
find it better to begin with reading first question of Module-1 followed by first question of
Module-2.
OBJECTIVE OF THE COURSE :

At the heart of the legal enterprise is the concept of law. Without a deep understanding
of this concept neither legal education nor legal practice can be a purposive activity
oriented towards attainment of justice in Society. Moreover, without a comprehension of
the cognitive (mental action or process of acquiring knowledge and understanding
through thought, experience, and the senses) and teleological (end or purpose)
foundations of the discipline, pedagogy (method and practice of teaching) becomes a
mere teaching of the rules. It is unable to present various statutes, cases procedure,
practices and customs as a systematic body of knowledge, nor is it able to show the
inter-connection between these various branches of law, procedures and principles. The
fact that the basic nature and purpose of law should be clear to every student and that
it should be the very foundation of law teaching needs little argument. A course in
jurisprudence should, primarily, induct the student into a realm of questions concerning
law so that he is able to live with their perplexity or complexity and is driven to seek out
answers for himself.
It may not be possible that a one year jurisprudence course can impart knowledge of
doctrines about law and justice, developed over the years, in various nations and
historical situations. At best an undergraduate course should impart the analytical skill
and equip the student with the basic problems concerning law and the types of
Solutions sought. Thus the student not only will be able to use this skill in practice but
also is motivated to take up detailed historical studies on his own after the course.
Since a basic idea in the designation of this course is to bring jurisprudence closer to
our reality, in the selection of cases and reading materials the teachers should try to
make use of the Indian materials as far as possible.
Module-1) Introduction and sources of Law :
1.1) Meaning of the term jurisprudence, Importance

1.2) Nature and definition of law, Relation between: Law and Morality, Law
and Justice
1.3) Sources of law: Legislation, custom, Precedents: concept of stare
decisis, Juristic writings
GO TO CONTENTS.
MODULE-1 QUESTIONS :
Explain in detail the concept of "Jurisprudence" and its importance. (Apr-2012,
Mar-2014, Mar2015).
State the meaning, nature as well as values of jurisprudence in detail. (Oct-
2012, Apr-2013).
What is Jurisprudence? Discuss in detail the nature, value and importance
Jurisprudence. (Apr-2016).
Explain in detail the meaning of Law and its various kind. (Apr-2012, Mar-2014,
Mar2015).
It is towards court and not to the legislation, that we must look in order to asertain
the true nature of law". Explain this statement. (Apr-2016). (Isnt this Salmonds
theory of law?
Explain in detail : Questions of fact and law. (Apr-2012).
Explain in detail : Territorial nature of law and questions of law. (Oct-2012, Apr-
2016).
Explain the relation between Law and Morality.
Explain the relationship between law and justice. (Mar-2014).
Discuss : The function and purpose of law is to provide justice. (Apr-2016).
Discuss in detail : Sources of law: Legislation, custom, Precedents: concept of stare
decisis, Juristic writings.
Explain in detail the meaning of legislation and state the different kinds of
subordinate legislation. (Oct-2012).
Explain in detail the meaning of legislation and its kinds. (Apr-2013).
Explain in detail the meaning and concept of Precedent and Legislation. (Apr-
2012, Mar2015).
Explain the meaning of precedent and its kind in detail. (Oct-2012, Apr-2013, Apr-
2016).
Explain : Question of Judicial discretion. (Apr-2016).
Explain in detail : Ratio Decidendi. (Apr-2012, Mar-2014, Mar2015, Apr-2016).
GO TO CONTENTS.
MODULE-1 ANSWERS :
Explain in detail the concept of "Jurisprudence" and its importance. (Apr-2012,

Mar-2014, Mar2015).
State the meaning, nature as well as values of jurisprudence in detail. (Oct-
2012, Apr-2013).
What is Jurisprudence? Discuss in detail the nature, value and importance
Jurisprudence. (Apr-2016).
Answer :
Refer :
https://en.wikipedia.org/wiki/Jurisprudence -- good
http://www.desikanoon.co.in/2012/08/jurisprudence-notes-nature-and-scope-
of.html
https://www.academia.edu/24393038/Jurisprudence_Notes_LLB_pdf
What is Law ?
The word, Law derived from the Latin word Lex which means The body of
Rules.
Law is concerned what is perceived to be right or wrong, fair or unfair. In different
language/ cultures, it is known by different names, viz
Latin Lex
Hindu Dharma
France Droit
Roman Jur
Islam Hukma
All these above words conveys different meaning.
We can say that a definition which contain all the above meaning and all
elements would be a good definition of law. And, a definition which doesnt cover
all these elements would be an in-perfect definition.
Requirements For Law : The followings are some requirements for the
definitions of law :-
Before the law there is a State.
Before the State there must be a society.
State & society develop a legal order to be followed.
And finally law always has a purpose.
What is Jurisprudence ?
Jurisprudence- Latin word Jurisprudentia- Knowledge of Law or Skill in Law.
"juris" is the genitive form of jus meaning "law", and prudentia means
"prudence" (also: discretion, foresight, forethought, circumspection; refers to
the exercise of good judgment, common sense, and even caution, especially in
the conduct of practical matters).
There is no universal or uniform definition of Jurisprudence. It is a very vast
subject. It is believed that Romans were the first who started to study what is law.
In simple language, "Jurisprudence" is the science, study, and theory of law.
It includes principles behind law that make the law.
Scholars of jurisprudence, also known as jurists or legal theorists (including legal
philosophers and social theorists of law), hope to obtain a deeper understanding of
the nature of law, of legal reasoning, legal systems, and of legal institutions.
Jurisprudence as defined by past scholars :
<include here definitions by all major scholar>
Thomas Holland (born 17-Jul-1835), a British jurist, said Jurisprudence means
the formal science of positive laws. It is an analytical science rather than a
material science.
Holland defined the term positive law. He said that Positive Law means the
general rule of external human action enforced by a sovereign political
authority.
Hollands definition has been criticized on the ground that this definition is
concerned only with the form and not the intricacies.
We can see that, he simply added the word formal in Austins definition.
Formal here means that we study only the form and not the essence. We
study only the external features and do not go into the intricacies of the
subject.
According to him, how positive law is applied and how it is particular is not the
concern of Jurisprudence.
The reason for using the word Formal Science is that it describes only the
form or the external sight of the subject and not its internal contents.
According to Holland, Jurisprudence is not concerned with the actual material
contents of law but only with its fundamental conceptions. Therefore,
Jurisprudence is a Formal Science.
This definition has been criticized by Gray and Dr. Jenks. According to them,
Jurisprudence is a formal science because it is concerned with the form,
conditions, social life, human relations that have grown up in the society and
to which society attaches legal significance.
Holland said that Jurisprudence is a science because it is a systematized and
properly co-ordinated knowledge of the subject of intellectual enquiry. The
term positive law confines the enquiry to these social relations which are
regulated by the rules imposed by the States and enforced by the Courts of
law. Therefore, it is a formal science of positive law.
Formal as a prefix indicates that the science deals only with the purposes,
methods and ideas on the basis of the legal system as distinct from material
science which deals only with the concrete details of law.
Jos Dias Ferreira (born 30-Nov-1837) and Charles Evans Hughes (born 11-
Apr-1862) believed Jurisprudence as any thought or writing about law rather
than a technical exposition of a branch of law itself.
John Salmond (born 03-Dec-1862) said that Jurisprudence is Science of Law.
By law he meant law of the land or civil law. He divided Jurisprudence into two
parts :
1. Generic- This includes the entire body of legal doctrines.
2. Specific- This deals with the particular department or any portion of the
doctrines. Specific is further divided into three parts :
Analytical, Expository or Systematic- It deals with the contents of an actual
legal system existing at any time, past or the present.
Historical- It is concerned with the legal history and its development
Ethical- According to him, the purpose of any legislation is to set forth laws
as it ought to be. It deals with the ideal of the legal system and the
purpose for which it exists.
Roscoe Pound (born 27-Oct-1870) described Jurisprudence as the science of
law using the term law in juridical sense as denoting the body of principles
recognized or enforced by public and regular tribunals in the Administration of
Justice.
Julius Stone (born 07-Jul-1907) also tried to define Jurisprudence. He said that
it is a lawyers examination of the percept, ideas and techniques of law in the
light derived from present knowledge in disciplines other than the law.
Robert Keeton (born 16-Dec-1919) considered Jurisprudence as the study and

systematic arrangement of the general principles of law. According to him,
Jurisprudence deals with the distinction between Public and Private Laws and
considers the contents of principle departments of law.

History of jurisprudence :
Ancient Indian jurisprudence is available in various Dharmastra texts starting
from the Dharmasutra of Bhodhayana.
In Ancient Rome, the discipline of Jurisprudence was rooted in jus of mos maiorum
(traditional law), a body of oral laws and customs which were verbally transmitted
"by father to son".
Modern jurisprudence began in the 18 th century and is focused on (i) principles of
the natural law, (ii) civil law, and (iii) laws of nations. Jeremy Bentham is
considered to be the father of modern jurisprudence.
Nature & scope of jurisprudence :
The main function of jurisprudence is to study the origin of law, its development
and its contribution towards society.
How and when the law developed.
What is its object.
Whether the law was made by people or it was due to the inspiration of some
Divine force.
Whether the law is a command of a sovereign or it is a result of gradual
development of civilization in society.
According to justice P.B.Mukherjee : Jurisprudence is both an intellectual and
idealistic abstraction as well as behavioral study of man in society. It includes
political, social, economic and cultural ideas. It covers that study of man in relation
to state and society.
Jurisprudence involves certain types of investigations into law which seeks to lay
the bare essential principles of law and legal systems.
Salmond observed : In jurisprudence we are not concerned to derive rules from
authority and apply them to problem, we are concerned rather to reflect on the
nature of legal rules, on the underlying meaning of legal concepts and on the
essential features of legal system.
It therefore follows that jurisprudence comprises philosophy of law and its object
is not to discover new rules but to reflect on the rules already known.
Jurisprudence is a study of,
i) Sources of laws : It is true that the basic features of a legal system are mainly
to be found in its authoritative sources and the nature and working of the legal
authority behind these sources.
Under this head matters such as custom, legislation, precedent as a sources
of law, pros and cons of codification of laws, methods of judicial interpretation
and reasoning, an inquiry into the administration of justice etc., are included
for study.
ii) Legal Concepts :- Jurisprudence includes the analysis of legal concepts such
as rights, title, property, ownership, possession, obligations, acts, negligence,
legal personality and related issues.
Although all these concepts are also studied in the ordinary branches of law,
but since each of them functions in several different branches of law,
jurisprudence tries to build a more comprehensive picture of each concept as
a whole.
iii)Legal Theory :- Legal theory is concerned with law as it exists and functions
in the society and the manner in which law is created and enforced as also the
influence of social opinion and law on each other. It is therefore necessary that
while analyzing legal concepts, and effort should be made to present them in the
background of social developments and changing economic and political
attitudes.
Importance of jurisprudence :
1. Jurisprudence as a subject has its own intrinsic interest and value because this is
a subject of serious scholarship and research. Research in Jurisprudence contribute
to the development of society by having repercussions in the whole legal, political
and social school of thoughts. One of the tasks of this subject is to construct and
elucidate concepts serving to render the complexities of law more manageable and
more rational. Needless to emphasis that development in theory helps improve
legal practice.
2. Jurisprudence also has an educational value. It helps in the logical analysis of
the legal concepts and it sharpens the logical techniques of the lawyer. The study of
jurisprudence helps to combat the lawyers occupational view of formalism which
leads to excessive concentration on legal rules for their own sake and disregard of
the social function of the law.
For instance, a proper understanding of law of contract may perhaps require
some knowledge of economic and economic theory or a proper grasp of criminal
law may need some knowledge of criminology and psychiatry and perhaps also
of sociology.
3. The study of jurisprudence helps to put law in its proper context by considering
the needs of the society and by taking note of the advances in related and relevant
disciplines.
4. Jurisprudence can teach the people to look sideways and realize that answers to
a new legal problem must be found by a consideration of present social needs and
not in the wisdom of the past.
5. Jurisprudence is the eye of law and the grammar of law because it throws light
on basic ideas and fundamental principles of law. Therefore, by understanding the
nature of law, its concepts and distinctions, a lawyer can find out the actual rule of
law. It also helps in knowing the language, grammar, the basis of treatment and
assumptions upon which the subject rests. Therefore, some logical training is
necessary for a lawyer which he can find from the study of Jurisprudence.
6. Jurisprudence trains the critical faculties of the mind of the students so that they
can identify fallacies and use accurate legal terminology and expression.
7. It helps a lawyer in his practical work. A lawyer always has to tackle new
problems every day. This he can handle through his knowledge of Jurisprudence
which trains his mind to find alternative legal channels of thought.
8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of
the laws passed by the legislators by providing the rules of interpretation.
Therefore, the study of jurisprudence should not be confined to the study of
positive laws but also must include normative (evaluative) study i.e. that study
should deal with the improvement of law in the context of prevailing socio-
economic and political philosophies of time, place and circumstances.
9. Professor Dias said that the study of jurisprudence is an opportunity for the
lawyer to bring theory and life into focus, for it concerns human thought in relation
to social existence.
10. It is the well known saying that, ignorance of law is no excuse, hence it is
essential to know the correct basic principles of law which are contained only in the
jurisprudence. Law is also connected with civil life.
A person who obeys laws is known as a civilized citizen. A person who does not
obey law is punished.
It is therefore necessary that all the people should have the sound knowledge of
law which is possible only with the help of jurisprudence.
CONCLUSION :- In end we can say that law is the important and necessary part of
the state and developing the human beings. Law gives rights and duties to human
beings. And law is the essential part of a State. Law is an instrument of social control
as well as social change. And jurisprudence is an instrument tool to sharpen/ nurture
law.
GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.
Explain in detail the meaning of Law and its various kind. (Apr-2012, Mar-2014,
Mar2015).
It is towards court and not to the legislation, that we must look in order to asertain
the true nature of law". Explain this statement. (Apr-2016). (Isnt this Salmonds
theory of law?
Answer :
Refer :
https://en.wikipedia.org/wiki/Law
http://www.differencebetween.info/difference-between-law-and-justice
http://www.desikanoon.co.in/2012/08/the-nature-of-law.html
https://en.wikipedia.org/wiki/Primary_and_secondary_legislation
http://www.publishyourarticles.net/knowledge-hub/law/difference-between-
supreme-legislation-and-subordinate-legislation/3968/
What is meant by law ?
<Whole of module 2 is on various theories/ schools of law.>
<Following is a brief discussion on law.>
Dictionary.com defines law as :
The principles and regulations established in a community by some authority and
applicable to its people, whether in the form of legislation or of custom and
policies recognized and enforced by judicial decision.
Any written or positive rule or collection of rules prescribed under the authority
of the state or nation, as by the people in its constitution.
The controlling influence of such rules; the condition of society brought about by
their observance.
A system or collection of such rules.
Wikipedia :
Law is a system of rules that are created and enforced through social or
governmental institutions to regulate behavior.
Law as a system helps regulate and ensure that a community show respect, and
equality amongst themselves.
State-enforced laws can be made by a collective legislature or by a single
legislator, resulting in statutes, by the executive through decrees and
regulations, or established by judges through precedent, normally in common
law jurisdictions.
Laws are actually rules and guidelines that are set up by the social institutions to
govern behavior.
These laws are made by government officials that in some countries are elected by
the public to represent their views.
In simple terms, laws are basically things that a person can and cannot do. It is
enforced by government officials such as police officers, agents and judges.
Laws are ideas that must go through the process of checks, balances and votes in
order for them to become a law. However, the enactment of a law varies based on
the government.
In an autocracy, the leader has the power to pass any law he wishes.
In a democracy, the bill to enact a law must be voted on by the different parts of
the government.
Laws set out standards, procedures and principles that must be followed.
There are various types of laws framed like criminal laws, civil laws, and
international laws.
Laws must be obeyed by all, including private citizens, groups and companies as
well as public figures, organizations and institutions.
Dynamic nature of law :
Law cannot be static. In order to remain relevant, Law has to grow with the
development of the society.
In the same manner, the scope of law also cannot be kept static.
The result is that the definition of law is ever changing with the change in society.
The definition of law considered satisfactory today might be considered a narrow
definition tomorrow. This view has been put forward by Professor Keeton. He said
that
an attempt to establish a satisfactory definition of law is to seek, to confine
jurisprudence within a Straight Jacket from which it is continually trying to
escape.
Austins Theory of Law or Imperative Theory of Law :
Austin said that
law is the aggregate of the rules set by men as political superior or sovereign to
men as politically subject. In short, Law is the command of sovereign. It imposes
a duty and duty is backed by a sanction.
According to Austin, there are three elements in law :
a. It is a type of command
b. It is laid down by a political superior
c. It is enforced by a sanction
Requests, wishes etc are expressions of desire. Likewise, command is also an
expression of desire, BUT it is given by a political superior to a political inferior. The
relationship of superior and inferior consists in the power which the superior enjoys
over the inferior because the superior has ability to punish the inferior for its
disobedience.
Austin further said that there are certain commands that are laws and there are
certain commands that are not laws.
Commands that are laws are general in nature. Therefore, laws are general
commands. Laws are like standing order in a military station which is to be
obeyed by everybody.
Sovereign is a person or a body or persons whom a bulk of politically organized
society habitually obeys and who does not himself habitually obey some other
person or persons. Perfect obedience is not a requirement.
Austins classification of law :
1. Divine Law- Given by god to men
2. Human Law- Given by men to men
a. Positive Laws- Statutory Laws
b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.
Merit in Austins Definition :
Not everything is faulty about Austins theory of law. He gave a clear and simple
definition of law because he has excluded ethics and religion from the ambit law.
Thus, he gave a paramount truth that law is created and enforced by the state.
Criticism of Austins Theory of Law :
1. Laws existed even before births of states - The belief that sovereign is a
requirement for law has received criticism by the Historical and Sociological School
of Thought. There were societies prior to existence of sovereign and there were
rules that were in prevalence. At that point of time, there was no political superior.
Law had its origin in custom, religion and public opinion. All these so called laws
were later enforced by the political superior.
However, the above mentioned criticism is not supported by Salmond. Salmond
said that the laws which were in existence prior to the existence of state were
something like primitive substitutes of law and not law. They only resembled
law.
2. Generality of Law- The laws are also particular in nature. Sometimes, a Law is
applicable only to a particular domain. There are laws which are not universally
applicable. Thus, laws are not always general in nature.
3. Promulgation- It is not necessary for the existence of the law that the subjects
need to be communicated.
4. Law as Command- According to Austin, law is the command of the sovereign.
But, all laws cannot be expressed as commands. Greater part of law in the system
is not in the nature of command. There are customs, traditions, and unspoken
practices etc. that are equally effective.
5. Sanction- The phrase sanction might be correct for a Monarchical state. But for
a Democratic state, laws exist not because of the force of the state but due to
willing of the people. Hence, the phrase sanction is not appropriate in such
situations. Also, there exists no sanction in Civil Laws unlike Criminal Laws.
6. Not applicable to International Law- Austins definition is not applicable to
International Law. International Law represents law between sovereigns.
7. Not applicable to Constitutional Law- Constitutional Law defines powers of the
various organs of the state. It comprises of various doctrines such as separation of
power, division of power etc. Thus, no individual body of a state can act as
sovereign or command itself. Therefore, it is not applicable to constitutional law.
8. Not applicable to Hindu Law or Mohameddan Law or Cannon Law - Personal Laws
have their origin in religion, customs and traditions. Austins definition strictly
excludes religion. Therefore, it is not applicable to personal laws.
9. Disregard of Ethical elements- The moment law is devoid of ethics, the law loses
it colour and essence. Justice is considered an end of law or law is considered a
means to achieve Justice. However, Austins theory is silent about this special
relationship of Justice and Law.
Salmond said that any definition of law which is without reference to justice is
imperfect in nature. He further said Law is not right alone, it is not might alone,
it a perfect union of the two and Law is justice speaking to men by the voice of
the State.
According to Salmond, whatever Austin spoke about is a law and not the law.
By calling the law we are referring to justice, social welfare and law in the
abstract sense. Austins definition lacked this abstract sense.
A perfect definition should include both a law and the law.
10. Purpose of law ignored - One of basic purposes of Law is to promote Social
Welfare. If we devoid law of ethics, the social welfare part is lost. Again, this part
has been ignored by Austin.
Salmonds Definition of Law : It is towards court and not to the legislation, that we
must look in order to asertain the true nature of law" :
According to Salmond Law may be defined as the body of principles recognized
and applied by the state in the administration of justice.
In other words, law consists of rules recognized and acted upon by the Courts of
Justice.
Salmond believed that law may arise out of popular practices and its legal
character becomes patent when it is recognized and applied by a Court in the
Administration of Justice.
Courts may misconstrue a statute or reject a custom; it is only the Ruling of the
Court that has the Binding Force of Law.
He further said that laws are laws because courts enforce them. He drew a lot of
emphasis on Administration of Justice by the Courts. He was of firm belief that the
true test of law is enforceability in the courts of law.
Thus, we see that Salmond has defined law in the abstract sense. His definition
brings out the ethical purpose of law. In his definition, law is merely an instrument
of Justice.
Criticism of Salmonds definition by Vinogradoff :
Vinogradoff heavily criticized Salmonds definition. He said that the definition of law
with reference to Administration of Justice inverts the logical order of ideas. The
formulation of law is necessary precedent to the administration of justice. Law has
to be formulated before it can be applied by a court of justice.
Advantages of law :
a. Fixed principles of law
i. Laws provide uniformity and certainty of administration of justice.
ii. Law is no respecter of personality and it has certain amount of certainty
attached to it.
iii. Law avoids the dangers of arbitrary, biased and dishonest decisions because
law is certain and it is known. It is not enough that justice should be done but it
is also important that it is seen to be done.
iv. Law protects the Administration of Justice from the errors of individual
judgments. Individual whims and fancies are not reflected in the judgment of the
court that follow the Rule of Law.
b. Legislature represents the wisdom of the people and therefore a law made by
the legislature is much safer because collective decision making is better and more
reliable than individual decision making.
Disadvantages of law :
a. Rigidity of Law- An ideal legal system keeps on changing according to the
changing needs of the people. Therefore, law must adjust to the needs of the
people and it cannot isolate itself from them. However, in practice, law is not
usually changed to adjust itself to the needs of the people. Therefore, the lack of
flexibility results into hardship in several cases.

b. Conservative nature of law- Both lawyers and judges favour in continuation of
the existing laws. This creates a situation where very often laws become static and
they do not respond to the progressive society because of the conservative nature
of law.
c. Formalism of law- Most of the times, people are concerned with the technical
operation of law and not the merits of every individual case. It creates delay in the
Justice Delivery system. It also leads to injustice in certain cases.
d. Complexity of law- Sometimes, the laws are immensely intricate and complex.
This causes difficulty in Interpretation of Statutes.
Kinds of Legislation : There are two kinds of the legislation :-
1. Primary Legislation :- Primary (sometimes also called Supreme) Legislation
are created by the state which has the powers of making law and is known as
supreme legislation in each country. This power is vested in sovereign body in India
i.e. Parliament at the centre and legislation in the State.
Primary legislation generally consists of statutes, also known as "acts", that set
out broad outlines and principles
SALMOND defines : supreme legislation proceeds from the supreme or
sovereign power in the state, and which is therefore incapable of being repealed,
annulled or controlled by any other legislative authority.
It cannot be repealed, annulled or controlled by any other legislative authority,
except parliament/ sovereign.
Examples : Advocates Act 1961, Income Tax Act 1961, RTI Act 2005, etc
2. Secondary Legislation :- Secondary legislation (also known as delegated
legislation or subordinate legislation) is inferior to supreme legislation and is
indirect legislation. It is ofter made by an executive branches of the state.
Executive receives power to make secondary law from Parliament/ legislatures,
which delegates this power to make law.
<For detailed notes on secondary / delegated legislation refer to Sem-3 204
Administrative Law>
Ofter, the primary law itself delegate specific authority to an executive branch to
make more specific laws under the aegis of the principal act. The executive
branch can then issues secondary legislation thereby creating legally-enforceable
regulations and the procedures for implementing the primary laws.
SALMOND defines : subordinate legislation is that which proceeds from any
authority other than the sovereign power, and is therefore dependent for its
continued existence and validity on some superior or supreme authority.
It can be repealed, annulled or controlled by parliament/ sovereign.
Examples : Bar Council Of India Rules 1961, Income Tax Rules 1962, RTI Rules
2012, etc
Subordinate laws can be further divided into the following :-
i) Autonomous Laws : A group of persons making subordinate law is known as
autonomous law, example : University or Boards.
ii) Judicial Rule :- Rules made by judicial body under power delegated by higher
authority like High courts or supreme court etc.
iii) Local Law: means law made by local bodies under the control of state eg Zila
Parishad, Municipal Corporation.
iv) Executive Law:- The law and the rule can be made by the executive body in
the State under the power conferred by the Sovereign/ Parliament which is also
known as delegated legislation.
CRITICISM:- Many writers have criticized delegated legislation because it gives
much power to the executive body and administration body.
REASONS FOR DELEGATED LEGISLATION :
i) Lack of Time : The parliament has the shortage of time because of a Public
welfare state. It has to pay much time towards national problems.
ii) Technicality of Matters :- With the progress of society the things have become
more complicated and technical. Therefore the policy is made by the Parliament
and the imposing matter is left on the masters of it.
iii) Flexibility : Law should be flexible and according to the need & conditions of
the Public along-with the local matters which are different from area to area, So
keeping in view of this reason the power is handed over to the executive.
There are some dangers in delegations of legislative power :-
i) The executive body may uses the more powers than the powers delegated by
the Parliament.
ii) The Parliament has no time to examine the rules passed by the executive
under delegated legislation.
In India, there is a Parliament and state legislatures for primary legislation.
However, even these institutions cannot create primary laws in an arbitrary fashion.
Any legislation going against the constitutional provision may be declared void by
judiciary.
GO TO CONTENTS.
Explain in detail : Questions of fact and law. (Apr-2012).
Answer :
Refer :
https://en.wikipedia.org/wiki/Question_of_law
https://en.wikipedia.org/wiki/Trier_of_fact
Intro :
What is law ?
The word, Law derived from the Latin word Lex which means The body of
Rules.
Law is what is perceived to be right or wrong, fair or unfair.
What is fact ?
A fact is something that has occurred or is correct.
The usual test for a statement of fact is verifiabilitythat is, whether it can be
demonstrated to correspond to experience.
Question of law :
In law, a question of law, also known as a point of law, is a question that must be
answered by applying relevant legal principles to interpretation of the law.
Such a question is distinct from a question of fact, which must be answered by
reference to facts and evidence as well inferences arising from those facts.
Answers to questions of law are generally expressed in terms of broad legal
principles and can be applied to many situations rather than be dependent on
particular circumstances or factual situations.
An answer to a question of law as applied to the particular facts of a case is often
referred to as a "conclusion of law."
In several civil law jurisdictions the highest court do consider the issue questions of
law settled by the lower court and will only consider questions of law. They may
refer a case back to a lower court to re-apply newly settled question of law and
answer any fact-based evaluations based on their answer on the application of the
law.
Question of fact :
In non-legal world, standard reference works are often used to check facts.
Scientific facts are verified by repeatable careful observation or measurement (by
experiments or other means).
In leagal parlance, a trier of fact (jury or judge or finder of fact), is a person, or
group of persons, who determines facts in a legal proceeding. However, various
aspects of a case that are not in controversy may be the "facts of the case" and are
determined by the agreement of the separate parties; the trier of fact need not
decide such issues.

In law, a question of fact, also known as a point of fact, is a question that must be
answered by reference to facts and evidence as well as inferences arising from
those facts.
The answer to a question of fact (a "finding of fact") usually depends on particular
circumstances or factual situations.
All questions of fact are capable of proof or disproof by reference to a certain
standard of proof.
In many jurisdictions, such as the United Kingdom, appellate courts generally do
not consider appeals based on errors of fact (errors in answering a question of
fact). Rather, the findings of fact of the first venue are usually given great
deference by appellate courts.
Difference between question of law and question of fact : The distinction between
"law" and "fact" has proved obscure wherever it is employed.
While questions of fact are resolved by a trier of fact, which in the common law
system is often a jury, questions of law are always resolved by a judge or
equivalent. Whereas findings of fact in a common law legal system are rarely
overturned by an appellate court, conclusions of law are more readily reconsidered.
The common law used to require that a plaintiff's complaint in a civil action only
state the "facts" of his case, not any "legal conclusions."
No one has ever been able to resolve the paradox.
Eg in the statement "on November 9, the defendant negligently ran over the
plaintiff with his car at the intersection of State Street and Chestnut Street"
IS IT a statement of fact or a legal conclusion ?
The distinction between law and fact is just the legal version of the philosophical
distinction between "empirical" and "analytical" statements, a distinction on whose
existence philosophers have been unable to agree to this day.
GO TO CONTENTS.
Explain in detail : Territorial nature of law and questions of law. (Oct-2012, Apr-
2016).
Answer :
Refer :

GO TO CONTENTS.
Explain the relation between Law and Morality.

Answer :
Refer :
http://www.legalservicesindia.com/article/article/theory-of-relationship-between-
law-and-morality-1931-1.html
<take intro/definition of law from elsewhere in this doc>
What is moral/ morality ?
https://en.oxforddictionaries.com defines moral as :
Concerned with the principles of right and wrong behaviour
Concerned with or derived from the code of behaviour that is considered right or
acceptable in a particular society
(attributive) Examining the nature of ethics and the foundations of good and bad
character and conduct
Holding or manifesting high principles for proper conduct
Word moral is derived from Latin word moralis.
Morals play an important role in the development of law. Infact, in ancient times
there was no difference between law and morals.
In India, ancient texts of morals, like Vedas, Upanishads, epics, etc, are an
important sources in development of entire legal system.
Likewise, in the western society also the position is the same.
The legal system of ancient Greek was also based upon the doctrine of natural
rights, which was in fact founded upon morals.
Roman law also recognised the doctrine of natural law, which was founded upon
morals.
In the middle period also morals were the basis of law.
In the 17th and 18th centuries natural law theories become very popular which
were also based upon morals.
During 18th and 19th centuries, jurists like Austin segregated morals from law in a
simplistic statement that law is a command of sovereign backed up by credible
threats of punishment in case of non-compliance.
However, since then there came the Historical School that once again recognised
that morals do play an important part in development of law.
Difference Between Law And Morals :

When the Austin did not give any place to morals in law then there came a question
of the difference between law and morals. Later on the courts tried to make
difference between law and morals. In the modern times there is clear difference
between law and morals. In every developed and civilized society the following are
the differences between morals and laws:-
Morals Laws
1 The morals are concerned with The laws are mainly concerned with
individual and are the laid down the society as a whole and lay down
rules for the molding of his the rules for relationship of individuals
character. with each other and with the state.
2 Morals are mainly concerned Law is concerned with the external

with the internal conduct of the conduct of the individuals.
nature of a person.
3 The morals are an end in Laws are not an end in itself. They are
themselves. means to achieve justice.
4 The observance of morals is a The observance of law is individuals

matter of individuals conscience. duty towards the state.
5 Morals are considered to be Law is concerned only with a particular

universal in nature and value. state and society. Laws differ from
place to place & from time to time.
Relationship Between Law & Morals : In the ancient society there was no difference
between laws and morals, but in modern times various theories of law separate
morals from laws so many differences as pointed out above came into picture.
However, inspite of these differences there is a clear relationship between law and
morals :-
1. Morals as the basis of law :- In the ancient society morals were the basis of all
laws. All the rules originated from morals. The reason behind them was in the form
of supernatural fear. The state picked up those rules which were necessary for the
society of the state.
The state put its own sanctions behind their rules and enforced them and these
rules were called laws. The rules for which the state could not ensure their
observance were known as morals.
Thus laws and morals have common origin. We cannot totally separate law from
morals.
Queen v/s Dudley : It was held that moral are the basis of law on the ground of
morality, it was not necessary to kill the boy for saving their lives. One cannot
take the law into ones own hands. The rule is that none has the power/right to
take anothers life to save his own.
2. Morals as the list of law:- It has been argued that the law must conform to
morals. It means the law must be based upon morals and it should not be against
morals.
The ancient Roman law was based upon natural law and Christian morals/
principles and that any law that was against morals was invalid. The natural law
theories were enforcing which were also according to morals.
In the modern times the laws which are not in conformity with morals are not
good laws. However in practice to a great extent laws conform to morals. Laws
do not depart from morals due to many reasons. The conformity of law with
morals is a very important factor even in the modern times.
3. Morals as the end of Law : Sometimes morals are considered as the end of law.
Justice in its popular sense is based upon morals. The word used for law conveys
an idea of justice and morals in the same area of law.
Sociological school says that law always has a purpose. Law is a means to get
the end (justice). This aim of law is to secure social test of law. This can be done
properly in the contest of socially recognize values which are closely related to
morals.
Thus ultimately morals become the end of law. In India the legal system is
engaged from the personal laws and local customs. In addition to this there are
certain other factors like public opinion, political, ethical, social and economical
ideas which directly or indirectly influence development of law.
CONCUSION :
Morals also have influence to a great extent in the development of law. Morals also
check the arbitrary powers of the legislature. All human conduct and social
relations cannot be regulated and governed only by law. A considerable number of
them are regulated by morals. Thus we can say that the morals are the very
important factor in the development of law. Morals are basis of law.
GO TO CONTENTS.
Explain the relationship between law and justice. (Mar-2014).

Discuss : The function and purpose of law is to provide justice. (Apr-2016).
Answer :
Refer :
https://en.wikipedia.org/wiki/Justice
http://www.desikanoon.co.in/2012/08/jurisprudence-notes-administration-of.html
http://www.differencebetween.info/difference-between-law-and-justice
<take intro/definition of law from elsewhere in this doc>
Detailed discussion on what is justice :
Merriam Webster defines justice as :
The maintenance or administration of what is just especially by the impartial
adjustment of conflicting claims or the assignment of merited rewards or
punishments.
Judge
The administration of law; especially: the establishment or determination of
rights according to the rules of law or equity.
The quality of being just, impartial, or fair.
The principle or ideal of just dealing or right action: conformity to this principle
or ideal.
The quality of conforming to law.
Wikipedia :
Justice is the legal or philosophical theory by which fairness is administered.
The concept of justice differs in every culture.
An early theory of justice was set out by the Ancient Greek philosopher Plato in
his work The Republic.
Thinkers in the social contract tradition argued that justice is derived from the
mutual agreement of everyone concerned
Justice is a concept that is based on equality, righteousness, ethics, morality, etc.
This concept states that all individuals must be treated equal and the same.
The term justice is a huge part of law and almost all aspects of law are based on
this concept. The term as a part of law suggests that law must be right and equal
for everyone; irrespective of caste, religion, ethnicity, creed, etc. Everyone must
have the same rights as another.
In many countries, justice if often represented using a blindfolded lady with (i) a
set of scales in one hand, and (ii) sward in another hand.
The blindfold is used to depict the irrelevance of the religion, caste, gender, etc,,
while the scales is used to represent the equality in weighing competing claims
in each hand. The sword is used to symbolize the court's coercive power.
Law and court are used to implement justice by providing punishment for law
breakers.
Views of Theorists on the Importance of Justice-

a. Salmond- Salmond said that the Definition of law itself reflects that
Administration of Justice has to be done by the state on the basis of rules and
principles recognized.
b. Roscoe Pound- He believed that it is the court who has to administer justice in
a state. Both, Roscoe Pound and Salmond emphasized upon the Courts in
propounding law. However, Roscoe Pound stressed more on the role of courts
whereas Salmond stressed more on the role of the State.
Salmond said that the Administration of Justice implies maintenance of rights
within a political community by means of the physical force of the state. However
orderly society may be, the element of force is always present and operative. It
becomes latent but it still exists.
Also, in a society, social sanction is an effective instrument only if it is associated
with and supplemented by concentrated and irresistible force of the community.
Social Sanction cannot be a substitute for the physical force of the state.
Origin and Growth of the concept of Administration of Justice
It is the social nature of men that inspires him to live in a community. However,
living in a society leads to conflict of interests and gives rise to the need for
Administration of Justice. This is considered to be the historical basis for the
growth of administration of justice.
Once the need for Administration of Justice was recognized, the State came into
being. Initially, the so called State was not strong enough to regulate crime and
impart punishment to the criminals. During that point of time, the law was one
of Private Vengeance and Self-Help.
In the next phase of the development of Administration of Justice, the State
came into full-fledged existence. With the growth in the power of the state, the
state began to act like a judge to assess liability and impose penalty on the
individuals. The concept of Public Enquiry and Punishment became a reality.
Thus, the modern Administration of Justice is a natural corollary to the growth in
the power of the political state.
Advantages of Legal Justice :
i. Uniformity and Certainty- Legal Justice made sure that there is no scope of
arbitrary action and even the judges had to decide according to the declared law
of the State. As law is certain, people could shape their conduct accordingly.
ii. Legal Justice also made sure that the law is not for the convenience of a
particular special class. Judges must act according to the law. It is through this
that impartiality has been secured in the Administration of Justice. Sir Edward
Coke said that the wisdom of law is wiser than any mans wisdom and Justice
represents wisdom of the community.

Disadvantages of Legal Justice :
i. It is rigid. The rate of change in the society is always more rapid than the rate
of change in the Legal Justice.
ii. Legal Justice is full of technicalities and formalities.
iii. Legal Justice is complex. Our society is complex too. Thus, to meet the needs
of the society, we need complex laws.
iv. Salmond said that law is without doubt a remedy for greater evils yet it
brings with it evils of its own.
Classification of Justice- It can be divided into two parts
a. Private Justice- This is considered to be the justice between individuals.
Private Justice is a relationship between individuals. It is an end for which the
court exists. Private persons are not allowed to take the law in their own hands.
It reflects the ethical justice that ought to exist between the individuals.
b. Public Justice- Public Justice administered by the state through its own
tribunals and courts. It regulates the relationship between the courts and
individuals. Public Justice is the means by which courts fulfill that ends of Private
Justice.
Civil and Criminal Justice :
Civil Justice and Criminal follow from Public Justice and Private Justice. Looking
from a practical standpoint, important distinctions lie in the legal consequences
of the two. Civil Justice and Criminal Justice are administered by a different set
of courts.
A Civil Proceeding usually results in a judgment for damages or injunction or
restitution or specific decree or other such civil reliefs.
However, a Criminal Proceeding usually results in punishment. There are
myriad number of punishments ranging from hanging to fine to probation.
Salmond said that the basic objective of a criminal proceeding is punishment
and the usual goal of a civil proceeding is not punitive.
Relationship between Law and Justice :
Laws are actually rules and guidelines that are set up by the social institutions to
govern behavior. These laws are made by government officials. Laws must be
obeyed by all. Laws set out standards, procedures and principles that must be
followed.
Justice is a concept that is based on equality, righteousness, ethics, morality,
etc. This concept states that all individuals must be treated equal and the same.
The term justice is a huge part of law and almost all aspects of law are based on
this concept.
Law and justice are two words that often go hand-in-hand. These words are often
confusing for many people who believe that these words are the same or refer to
the same thing. However, this is not true.
Law is basically a set of rules that define what is right and what is wrong,
while justice also takes into consideration the circumstances that surround the
right of wrong at that time.
While law is a system, justice is a concept that is the basis of this particular
system.
Concept of Justice According to Law :
Justice is rendered to the people by the courts.
Justice rendered must always be in accordance with the law.
However, it is not always justice that is rendered by the courts. This is because
the judges are not legislators, they are merely the interpreters of law. It is not
the duty of the court to correct the defects in law. The only function of the
judges is to administer the law as made by the legislature.
Hence, in the modern state, the administration of justice according to law is
commonly considered as implying recognition of fixed rules.
GO TO CONTENTS.
Discuss in detail : Sources of law: Legislation, custom, Precedents: concept of stare

decisis, Juristic writings.
Explain in detail the meaning of legislation and state the different kinds of
subordinate legislation. (Oct-2012).
Explain in detail the meaning of legislation and its kinds. (Apr-2013).
Explain in detail the meaning and concept of Precedent and Legislation. (Apr-
2012, Mar2015).
Explain the meaning of precedent and its kind in detail. (Oct-2012, Apr-2013, Apr-
2016).
Answer :
Refer :

Sources of law : Following are the sources of law :
1. Legislation,
2. Custom,
3. Precedents / case laws.
1. Legislation as a source of law :
INTRODUCTION :-
Legislation means the process of law making.
This law making power is vested in the legislation body which is sovereign body.
It is called Parliament at the centre level and legislative assembly at the state
level.
Legislation is the most important and modern source of Law. This source has
played an important role in the development of modern law.
LEGISLATION AS A SOURCE OF LAW :-
Analytical School : The importance of legislation starts from the beginning of
analytical school. This school ignored the importance of custom and gave the
stress on command of sovereign which can make law only through legislation.
This school also ignored the judge made law. About custom they say that the
custom are not law but they are the source of law.
Historical School :- It gives no importance to the legislation rather gives more
importance to custom.
According to them the function of law is only to specify and to correct the
custom into law whereas in the modern times the importance of legislation
has considerably been increased.
With the coming of existence of the State the legislation has also been come
into existence and become most important source of law. The scope of
legislation has become very wide in the modern times.
KINDS OF LEGISLATION :-
<search KINDS OF LEGISLATION elsewhere in this doc>
2. Custom as a source of law :
INTRODUCTION :
Custom is a conduct followed by persons in the society. Custom is considered as
the most ancient and most important source of law. Source means origin of a
thing. It is also considered that law basically comes out from customs. In the
past customs were prevailing for the control over the society.
Austin was the first person who discarded the value of the custom. But the
historical school again gave the importance to custom. The sociological school
also gives importance to law with relation to society.

In the modern times the precedents i.e. Judge made law and legislation have
become over powered to that of customs.
In a case of Maduri v/s Motu Ram Linga, it was held that even custom power
over the state.
Recognition of custom as a source of law : the followings are the systems which
recognized custom as a source of law :
Romal Law :- Roman Law is known to be the oldest one in the world. This law is
mainly based upon customs of the society. Those customs which were
reasonable continued them as law by the Roman jurists.
Hindu Law :- Hindu law is also to be considered as the most ancient law. Its
sources are Vedas, Sutras and Smiriies and these were mainly based on
customs. All personal laws of Hindu are based upon custom that is why Lord
Warren Hastings and Lord Cornwallis did not attack on customs of Indians.
Manu said One should follow the given path of their ancestors. This was
nothing but the reorganization of customs.
Mohammedan :- Particularly ignored customs for the purpose of law. During th
Muslim rule in India their customs were protected by State. The British rulers in
India also protected customs and personal laws which were based upon customs.
The traditions which were not opposed by the prophet Mohammedan were
recognized as law. In this way we can say that customs in Mohammedan law
also played an important role.
English Law :- Which is known as common law and in the shape of un-written
and based upon customs and conventions. Customs which were reasonable and
not against the public policies were recognized as law under English Law.
According to Pollock, The common Law is customary law. Black stol common
includes written law and un-written law. The un-written law is based upon the
general customs. In this way English law also gave importance to the
customs as a source of law.
Classfication of customs : Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to the nation and are
applicable on the countrys people.
2. Local Customs :- Those customs which are related with a particular locality.
3. Family Customs :- Those customs which are related with a family and have
application on a particular family.
4. Conventional Customs :- These customs based upon conventions e.g. a bigger
part of English Law based on customs and conventions.
Essentials of customs :
1. Antiquity :- It means oldness of the customs. The customs must be ancient.

There is no limit of time for the antiquity of custom. In India there is no fixation
of such time limit.
2. Reasonable :- The customs must be reasonable. It should not be un-
reasonable and against the public feelings.
3. Followed :- Customs must be followed by the society. There should be no
contradiction in observing customs.
4. Continuity :- Customs must be continuing from the time it was recognized as
law. There should not be any break or interruption. If there is break for
sometimes it does not mean that the right thing has been lost.
5. Certainty :- Customs must be certain in its nature.
6. Consistency :- There should not any confliction for its reorganization as a law.
7. Peaceful enjoyment :- Custom must be enjoyed peacefully for a long time
without an disturbances.
8. Immorality:- Customs should not be against the morality.
9. Public Policy:- It must not be against the public policies or against the will of
people.
10. Not against the State of Law:- Customs should not over-ride the legislation .
It should not be against the law of the land.
When does a custom become law :
Analytical view :-
Austin and Gray are the supporters of analytical school. They say that a
custom becomes law only when it is recognized by the sovereign in the sense
of positive law.
It means that if a custom has been accepted or adopted or recognized by the
sovereign then it will become a law otherwise there will be no value of the
custom in judicial system of the society.
Historical school :-
Supporters of historical school says that consciousness of the volkgiest
(spirit of the people) is the main source of law.
Custom is superior to Judge made law or legislation. The legislation while
making a law recognizes the customs of the society. The courts also while
giving the decisions recognized the customs prevailing in the society.
CONCLUSION :
Custom occupies an important place as a source of law even in moddern because
most of the material contents of developed system of law have been drawn from
ancient customs.
Custom is one of most fruitful sources of law. According to Analytical school a
custom when recognized by State or sovereign becomes law.
According to Historical school when state or courts make law they give
importance to the customs. So both of the view are complimenting to each other
to prove customs to be a major source of law.
3. Precedent/ case laws as a source of law :
INTRODUCTION :-
Precedents literally means previous judicial decision. The decisions of the higher
courts are binding on the lower courts.
The binding force of decision is called precedent.
Art-141 of Indian Constitution says that the decision of the higher courts shall be
binding upon the lower courts.
The precedents play an important role in the development of law. It is the an
important source of law.
Sometimes act may be insufficient for the case or there may be an vacuum or
any thing missing in the act. Under these circumstances the court can apply
their own mind. These independent decisions becomes precedents which are
followed later on by the same & Lower courts. This method of decision is also
called as Judge made law.
Status in other countries : deductive and inductive method :
England, America and China also follow the previous decisions as the source of
law but the continent countries like Germany, Japan does not accept the
previous decisions as the source of law.
The method of taking precedents as source of law is called inductive method,
while the method of continental countries not following previous decisions of
the court is called deductive method
MERITS OF PRECEDENTS :- Precedents are a very important source of Law. They
play an important role in the development of law. Precedents has certain
advantages as follows :
1. Precedents show true respect to the ancestors means by adopting the
previous decision of the higher court to decide the present case, it is a kind of
respect to elders.
2. Precedents are suitable to the present situation means after some times the
circumstances of the society can change with the change of time so the
precedents they are more suitable and fit for the present time and
circumstances.
3. Precedents are based on customs means the law in the form of act which
based upon customs. Court interprets the customs while interpreting any act.
4. Precedents are convenient and easy to follow because they are available in
the form of written reports.
5. Precedents bring certainty in law, once decision is given in a case there would
be no need to repeat all precedents in any other case if it resembles to the
former case.
6. Precedents are the best guide for the Judges: They play an important role in
the judiciary because the precedents are the guide lines for the courts.
DEMERITS OF THE PROCEDENTS :- Although the demerits are very few but these
are as under :-
i) The decisions are given by the human beings while performing the duties as
judge, his decision may not be suitable to all persons who have different mind
and thinking. This will be a bad effect on Judiciary.
ii) Sometimes the decisions of the higher courts contradictory to each other. It
becomes harder to another judge to apply the same verdicts as a precedents of
higher court
iii)Sometimes the higher courts give a wrong decision and miss some important
factors of the case due to one reason or the others.
Ratio-decidendi and Obiter dictum :
It is not necessary that in the case which is to be decided the circumstances and
the facts must be the same as in resembling case.
If the facts and the circumstances of the cases are materially similar then the
precedents or previous judicial decision is applied in the later cases and are
applied only in the form of ratio decidendi of previous cases.
There are two parts of it :-
i) Ratio-decidendi :- means reasons which leads the court to reach the
decision. It is the main part of the case in judgement and the ratio decidendi
of the decision is binding in the form of precedent.
ii) Obiter dictum :- It is also a part of the decision which is irrelevant to the
facts and circumstances of the case. The judge takes into consideration the
social conditions, morality, principal of natural justice that is why the Judges
play an important role in the development of legal system.
DIFFERENCE BETWEEN CUSTOM & PRECEDENTS
Custom is primary source of law.
Precedents are the secondary source of law.
Custom is given by people in general.

Precedents are given by courts.
Custom is conduct adopted by people of society.
Precedents is itself complete certain, reasonable given by a competent court
of the country.
Custom is based upon the reasoning of common people of the society.
Precedents are based upon the reasoning of a individual Judge or very few
judges.
Customs have more value then precedents and cannot be ignored.
Precedents can be ignored if it does un-justice.
DO JUDGES MAKE THE LAW ?
There are two contrary theories regarding the question as to whether Judges
declare the existing law or make the law.
A. Declaratory Theory. Courts declaring/ interpreting the law, and
B. Legislative theory. Law making theory. Theory that judges make the law.
A. DECLARATORY THEORY :- The first theory is the declaratory theory as
described by Hall and Blackstone and they supported by Dr. carten also.
According to the declaratory theory no new law is created by the Judge,
Courts of Justice do not make law, their province is to ascertain and declare
what the law is. ie Judges only discover the existing laws.
Hale enunciates declaratory theory of precedents and contends that whilst
Parliament alone legislates in the strict sense, the Judges only expound the
law and their decisions are the best evidence of what the law is.
The result of his theory is that the effect of the decision is retrospective for
it does not only declare what law is but what it always has been.
Nevertheless as Maine has pointed out once the Judgement has been declared
and reported we start with a new train of thought and frequently admit that
the law has been modified.
According to Lord Esher, There is in fact no such thing as Judge-made law, for
judges do not make the law, though they frequently have to apply the existing
law to the circumstances as to which it has not previously been authoritatively
laid down that such law is applicable.
Declaratory theory is based on the fiction that the English law is an existing
something which is only declared by the Judges.
This theory is known as the theory of judicial precedent.
B. LAW MAKING THEORY :
The second theory is that the Judges do not declare law but make the law in
the sense of manufacturing of creating entirely new law.
Bentham and Austin, have opposed the traditional view as a childish fiction
and have declared that Judges are in fact the makers of laws and fulfill a
function very similar to that of the legislature.
Lord Becon : The new point decided by the Judges is a direct contribution
towards law-making.
Professor Dicey supported this view and gives example of English common law
which had been made by the judges through their judicial pronouncements.
Prof Gray : supports this law making theory and says that judges alone are
the makers of law. He discredits the declaratory theory.
In above senses, Judges are law-makers but their power of law making is not
un-restricted.
It is strictly limited : For instance they cannot over rule a statute where the
statute clearly lays down the law.
Law making power of courts are restricted to the facts of case before them.
In such cases which are not covered by existing laws, the judicial decisions
created new notions and formulae, new principles which were never
contemplated earlier.
Eg Supreme court over-ruled the Golak Nath decision in Keshwanand
Bharis case and laid down a new basic structure theory and in Golak nath
case the new principle of prospective over-ruling was evolved by Judges.
RECONCILIATION OF ABOVE TWO THEORIES :
The above two views about making of law by judges are not exclusive of each
other but they are rather complementary.
It will be seen that neither the purely declaratory theory nor the purely
legislative theory represents the whole truth.
Judges develop the law but cannot be said to legislate.
The common law is not made but has grown and the more it changes the
more it remains the same thing.
The answer to the question whether the Judges make or discover law much
depends upon the nature of the particular legal system.
In common law system it may be stated that the Judges make law while in
civil law systems the judges only supplement the law.
Precedents are an important source of law and bind the lower courts to follow the
same.
Stare Decisis (legal principle of determining points in litigation according to
precedent) :

Juristic Writings :

GO TO CONTENTS.
Explain : Question of Judicial discretion. (Apr-2016).

Answer :
Refer :
V Good - Judicial Discretion: Ten Guidelines for Its Use :
http://mja.gov.in/Site/Upload/GR/Judicial%20Discretion%20-%20Judge
%20Thomas%20A.%20Zonay-Supreme%20Court%20Rutland%20VT.pdf
https://www.lawteacher.net/free-law-essays/constitutional-law/judicial-control-
and-exercise-of-discretion-constitutional-law-essay.php
Intro :
For centuries courts and commentators alike have wrestled with the concept of
judicial discretion.
Its judicious use increases fairness and can help to promote an equitable legal
process by allowing the judge to consider individual circumstances in instances
when the law is insufficient or silent.
Conversely, because discretion involves situational considerations, its misuse can
adversely impact the courts authority and good reputation, create a feeling
of result oriented decision making and, when abused, lead to gross injustice.
Purpose :
Judicial discretion is necessary to the proper discharge of our Constitutional
obligations as a separate and independent branch of government.
Legislatures simply cannot write laws to address all situations which find their way
into court or that develop as a case makes its way through the legal system.
Judges are present during proceedings and hear the evidence firsthand. From this
vantage point a judge must have some discretion to apply the law to the facts and
procedure of the pending dispute.
Evolution :
In 1680, Lord Camden said :
the discretion of a judge is said to be the law of tyrants; it is always unknown; it
is different in different men; it is casual and depends upon constitution, temper,

and passion. In the best, it is oftentimes caprice; in the worst, it is every vice,
folly, and passion, to which human nature is liable.
By the 1800s, when American jurisprudence was being established, Chief Justice
John Marshall viewed things differently :
Courts are the mere instruments of the law, and can will nothing. When they are
said to exercise a discretion, it is a mere legal discretion, a discretion to be
exercised in discerning the course prescribed by law; and, when that is
discerned, it is the duty of the court to follow it. Judicial power is never exercised
for the purpose of giving effect to the will of the judge, always for the purpose of
giving effect to the will of the legislature; or, in other words, to the will of the
law.
Defined :
Currently, a common definition of judicial discretion is, the act of making a choice
in the absence of a fixed rule, i.e. statute, case, regulation, for decision making;
the choice between two or more legally valid solutions; a choice not made
arbitrarily or capriciously; and, a choice made with regard to what is fair and
equitable under the circumstances and the law.
Consistent with Justice Marshalls observations, judicial discretion does
not provide license for a judge to merely act as he or she chooses.
Individuality :
Having a choice means a judges exercise of discretion is individual. No two judges
will think alike and reasonable minds can differ. Discretion is not exercised in a
vacuum and a judges choice may well be impacted by any number
of factors including life experience and personal views on legal, social, and moral
issues.
Though the exercise of discretion involves choosing from among a number of
potential correct alternatives, that does not mean that a judges discretionary
ruling may not be found to be in error.
Appellate Review :
The standard for overturning a discretionary ruling is the most deferential standard
of review on appeal. The appellate court will review
whether the trial judge misunderstood or misapplied the law;
whether the decision is clearly unreasonable, arbitrary, irrational or fanciful;
whether the decision is based upon an erroneous conclusion of law or clearly
erroneous findings;
whether the decision is clearly untenable and unfairly deprived a
litigant of a substantial right and just result; and,
whether the reviewing court has a firm and definite conviction from the whole
record that the trial court erred in its ruling.
Guidelines : (As given by Hon Judge Thomas A Zonay)
When does a judge know if a discretionary decision is reasonable and likely to
withstand appellate scrutiny?
Here follows the ten guidelines to aid making judicial discretionary decisions :
1. Establish the record : Strive to ensure that the relevant and necessary facts
are on the record. Make sure your findings are only on the evidence presented.
Address matters of credibility and demeanor which will lend support
to your conclusion. Clearly show your reasoning and the logic in your decision.
2. Apply the correct law : While this may seem obvious, there are times that
the law may be unclear or unsettled. When that occurs, consider
making alternative rulings to support your decision regardless of which of the
alterative views of the law was employed. Also, keep in mind that the best way
to be sure that you are applying the correct law is to know the law. On this
point, take the time to research and prepare on the law before you write a
decision. Please dont assume counsels briefs sufficiently /address or cite the
applicable law.
3. Consider different ways to exercise your discretion : You can choose to
act quickly and decisively, or you can act slowly and monitor the situation. Every
case is different and a one size fits all model for how to respond simply does not
work.
4. Consider doing nothing : As Dr. Harvey Cox said, Not to decide is to
decide. This does not mean avoiding or failing to attend to a matter which
needs a determination. Rather, it means that there are times that careful
consideration of the issues leads one to conclude that the best course of action is
no action.
5. Consider the equities of the situation : It was Mark Twain
who said, Always do right. You will confuse some people and astonish the
rest. His view is no less true for judges.
When making a decision consider the equities and ask yourself is it
fair? Is it the right thing to do? Let your fairness show through on the record
and give each side an adequate opportunity to present their position to the
court.
6. Consider the results of your decision : This includes both the legal and
practical consequences. Remember Newtons Third Law of Motion: For
every action there is an equal and opposite reaction. Ask yourself, is the
reaction of what will flow from your decision one which will foster justice being
done in the case, or could it lead to irreparable harm which could
have been avoided by choosing another course or action.

7. Take time to think over any decision : You are the judge and the case
cannot proceed without you. Do not allow yourself to be unnecessarily rushed.
There is nothing wrong with taking the time to step off the bench to ponder a
decision or to discuss it with a law clerk or colleague. You can also sleep on
many decisions and address them the following day. Be wary of
the discretionary decisions that you are asked to make late in the day on short
notice. There are not many items which cannot wait until the next day when you
have had a chance to fully consider the matter.
8. Clearly and logically explain your decision : This applies whether it will
be in written or oral form. It is important that those who hear
the decision, especially those who will be guided by it, are able to understand
both its rationale and its terms. This maximizes the potential that it
will be followed and, if necessary, also makes enforcement more effective.
9. Do not unnecessarily look back : Judges make numerous decisions on a
daily basis many of which are in matters of extreme importance to the law,
the public interest, and, of course, the parties. Given the important decisions
which are being made it is natural to agonize over a decision while considering it.
Reflecting on past decisions, and even changing ones later thought to be
incorrect, are both appropriate and necessary in the discharge of
your judicial role and in your professional development. That being
said, it is important to be able to move on after rendering a decision so that
you can then begin to focus on the next decision you will need to make.
10. Do not make a decision just because you can : Though basic, this tip is
perhaps the most important of all. The good news is that if you follow the other
nine tips then you wont have to worry about not following this one.
GO TO CONTENTS.
Explain in detail : Ratio Decidendi. (Apr-2012, Mar-2014, Mar2015, Apr-2016).

Answer :
Refer :
http://www.desikanoon.co.in/2014/05/jurisprudence-notes-ratio-decidendi.html
Intro :
The literal meaning of ratio decidendi is the reason for deciding.
Blacks Law Dictionary has provided many definitions of this term. Let us discuss
some of them.
1. The principle or rule of law on which a courts decision is founded.

2. The rule of law on which a later court thinks that a previous court founded its
decision.
3. It is a general rule without which a case must have been decided otherwise.
4. The phrase the ratio decidendi of a case is slightly ambiguous. It may mean
either,
the rule that the judge who decided the case intended to lay down and apply
to the facts, or
the rule that a later concedes him to have had the power to lay down
5. There are two steps involved in the ascertainment of ratio decidendi.
First, it is necessary to determine the facts of the case as seen by the judge;
secondly, it is necessary to discover which of those facts were treated as
material by the judge
Goodharts View on ratio decidendi :
Goodhart did not accept the classical definitions mentioned above. His criticisms
were :
a. That every case must contain an ascertainable principle of law, even though
there may be no opinion delivered by the judge.
b. That the statement of law may be too wide or too narrow.
While defending his definition, he said that the whole point of my article was
based on the proposition that every case must contain a binding principle, but that
this binding principle is not necessarily to be found in the statement of the law
made by the judge.
He also said that the judges must interpret statutes, but it would be misleading to
say that they are therefore constructing them.
He even said, to the extent that the phrase ratio decidendi is misleading because
the reason which the judge gives for his decision is not binding and may not
correctly represent the principle.
He suggested that the principle of the case could be found by determining
(a) The facts treated by the judge as material, and
(b) His decision as based on them.
The judge, therefore, reaches a conclusion upon the facts as he sees them. It is on
these facts that he bases his judgment, and not on any others. It follows that our
task in analysing a case is not to state the facts and the conclusion, but to state
the material facts as seen by the judge and his conclusion based on them. It is by
his choice of the material facts that the judge creates law.
Thus, Goodhart placed all the emphasis on the material facts as seen by the
judge, and not on the material facts as seen by anyone else.
Current Trends in the English Legal System :
Most of contemporary English authors are of the view that it is not the decision that
binds (or is overruled); it is the rule of law contained within the decision which
binds (or is overrules).
This element of the decision is termed as the ratio decidendi, and not every
statement of law made by a judge in the case forms part of this ratio.
Every decision contains the following basic ingredients :
1. Findings or material facts, both direct and inferential;
Please note that an inferential finding of fact is the inference that the judge
draws from the direct or perceptible facts. Eg, negligence may be inferred
from the direct facts of the speed of a vehicle, the length of skid marks, and
the state of the road. Negligence is thus as inferential finding of fact.
2. Statements of the Principles of law applicable to the legal problems disclosed
by the facts; and
3. A judgment (or judgments) based on the combined effect of 1 and 2.
For the purposes of the parties, point number 3 is the material element in the
decision, for it is what ultimately determines their rights and liabilities in relation to
the subject matter of the case.
However, for the purpose of the doctrine of precedent, point number 2 is the
vital element in the decision, and it is this that is termed the ratio decidendi.
Thus the ratio decidendi may be defined as the statement of law applied to the
legal problems raised by the facts, upon which the decision is based.
Not every statement of law in a judgment is binding; only those statement that
based upon the facts and upon which the decision is based are binding. Any other
statement of law is superfluous and is described as obiter dictum (it means by
the way). It should not, however be concluded from this that obiter dicta are of
little or no weight or importance.
Obiter Dicta : There are two types of obiter dicta.
1. A statement of law is regarded as obiter if it is based upon facts that either
were not found to be material or were not found to exist at all.
2. Even where a statement of law is based on the facts as found, it will be
regarded as obiter if it does not form the basis of the decision. A statement of
law made in support of a dissenting judgment is an obvious example.
Although obiter dicta lack binding authority, they may nevertheless have a strong
persuasive influence
Three famous tests used by the courts to ascertain ratio decidendi --->
http://www.desikanoon.co.in/2014/05/jurisprudence-notes-three-tests-to.html
1. Wambaugh Test
2. Halsburys Test
3. Goodharts Test
SC on ratio decidendi ---> http://www.desikanoon.co.in/2014/05/jurisprudence-
notes-supreme-court-of.html
GO TO CONTENTS.
Module-2) Schools of Jurisprudence :

2.1) Analytical positivism: Bentham and Austin's view, Criticism of Austins
theory of positivism
2.2) Natural law School, Historical school, Sociological School
2.3) Kelson's Pure Theory of Law, H.L.A. Hart's Theory
GO TO CONTENTS.
Explain in detail the different schools of jurisprudence. (Apr-2012, Oct-2012).
Explain in detail the various schools of the Jurisprudence. (Mar2015).
Discuss in detail : Analytical positivism : Bentham and Austin's view.
Explain in detail the theory of Law given by Austin. (Apr-2012, Mar-2014).
Critically discuss the theory of law given by Austin. (Mar2015).
"Law is the command of the sovereign. Discuss this statement in detail. (Oct-2012,
Apr-2013, Apr-2016).
Discuss : International law is not a law. (Apr-2016). (Ketan - Is this Q on Austins
theory ?)
Explain in detail the theory of Law given by Salmond. (Apr-2012, Apr-2013).
Critically discuss the theory of law given by Salmond. (Mar2015).
Discuss in detail : Natural law School.
Discuss : An unjust law, is not a law. (Apr-2016).
Explain in detail the theory of law as dictate of reason. (Oct-2012).
Discuss in detail : Historical law school.
Discuss in detail : Legal realism and Sociological law School.
Discuss : "Law is Science of social engineering Rosco Pound. (Apr-2016).
Discuss : Legal realism ---> Oliver Wendell Holmes Jr, Roscoe Pound, Karl Llewellyn,
Benjamin Cardozo
Explain in detail the theory of law given by Kelson. (Mar-2014).
Explain in detail the concept of law as expounded by Professor H.L.A. Hart. (Apr-
2016).
GO TO CONTENTS.
MODULE-2 ANSWERS :
Explain in detail the different schools of jurisprudence. (Apr-2012, Oct-2012).

Explain in detail the various schools of the Jurisprudence. (Mar2015).
Answer :
Refer :
https://en.wikipedia.org/wiki/Jurisprudence
Theories/ Schools Of Jurisprudence And Law : Jurisprudence has been, and may
always remain, an evolving subject. Various legal scholars has written definition and
nature of terms jurisprudence and law. Any discussion on Jurisprudence includes, (i)
type of question scholars seek to answer, and (ii) theories/ schools of jurisprudence
regarding how those questions are best answered.
Natural law (middle ages and earlier) ---> Aristotle and Saint Thomas Aquinas
Analytic jurisprudence (18th and 19th century),
Legal positivism ---> Jeremy Bentham, John Austin, Hans Kelsen, H. L. A.
Hart, Joseph Raz
Legal formalism (mechanical jurisprudence)
Legal realism ---> Oliver Wendell Holmes Jr, Roscoe Pound, Karl Llewellyn,
Benjamin Cardozo
Historical School
Normative or Evaluative jurisprudence (20th and 21st century)
Virtue jurisprudence
Deontology
Utilitarianism
Theory of Justice ---> John Rawls
Constructivist theory ---> Ronald Dworkin
Critical legal studies
Libertarian theories of law.
Therapeutic jurisprudence
Detailed Discussion On theories/ schools of Jurisprudence And Law : Following is
the detailed discussion on theories/ schools of jurisprudence,
Natural law (middle ages and earlier) : Natural law is the idea that there are
rational objective limits to the power of legislative rulers. The foundations of law
are accessible through reason and it is from these laws of nature that human-
created laws derive the force they have. There are two readings of the natural law
jurisprudential stance.
The Strong Natural Law Thesis holds that if a human law fails to be backed-up
by decisive reasons, then it is not properly called a "law" at all. This is
captured, imperfectly, in the famous maxim: lex iniusta non est lex' (an unjust
law is no law at all).
The Weak Natural Law Thesis holds that If a human law fails to be backed-up
by decisive reasons, then it can still be called a "law", but it must be
recognised as a defective law.
Aristotle (born 384 BC) is often said to be the father of natural law. His
treatment of what he calls "political justice" derives from his discussion of "the
just" as a moral virtue derived as the mean between opposing vices. He argues
that the term "justice" actually refers to two different but related ideas : general
justice and particular justice.
When a person's actions are completely virtuous in all matters in relation to
others, Aristotle calls them "just" in the sense of "general justice;" as such
this idea of justice is more or less coextensive with virtue.
"Particular" or "partial justice", by contrast, is the part of "general justice"
or the individual virtue that is concerned with treating others equitably.
It must also be remembered that Aristotle is describing a view of morality, not
a system of law, and therefore his remarks as to nature are about the
grounding of the morality enacted as law, not the laws themselves.
Saint Thomas Aquinas (born 1225 AD), was an Italian philosopher and
theologian in the scholastic tradition. He is the foremost classical proponent of
natural theology. According to him, natural law is the "participation" in the
eternal law by rational human creatures, and is discovered by reason that good
is to be done and promoted, and evil is to be avoided.
Analytic jurisprudence : For many centuries, natural law theories prevailed before
analytic jurisprudence came in to being. Analytic jurisprudence means the use of a
neutral point of view and descriptive language when referring to the aspects of
legal systems.
Analytic jurisprudence was a philosophical development that rejected natural
law's moralistic fusing of what law is and what it ought to be.
People invariably slip between describing that the world is a certain way to
saying therefore we ought to conclude on a particular course of action. But as a
matter of pure logic, one cannot conclude that we ought to do something merely
because something is the case.
So analysing and clarifying the way the world is must be treated as a strictly
separate question to normative and evaluative ought questions.
The most important questions of analytic jurisprudence are : "What are laws?";
"What is the law?"; "What is the relationship between law and
power/sociology?"; and "What is the relationship between law and morality?"
Legal positivism (late 18th century) :
Intro : Legal positivism is the dominant theory, although there are a growing
number of critics who offer their own interpretations.
Legal positivism (by contrast to natural law) holds that there is no necessary
connection between law and morality and that the force of law comes from
some basic social facts.
The positivist view on law can be seen to cover two broad principles :
Firstly, that laws may seek to enforce justice, morality, or any other
normative end. However, their success or failure in doing so does not
determine their validity. ie IF a law is properly formed, in accordance with
the rules recognized in the society concerned, it is a valid law, regardless of
whether it is just by some other standard.
Secondly, that law is nothing more than a set of rules to provide order and
governance of society.
What the law is (lex lata) - is determined by historical social practice
(resulting in rules)
What the law ought to be (lex ferenda) - is determined by moral
considerations.
Bentham and Austin :
One of the earliest legal positivists was Jeremy Bentham (born 15-Feb-
1748). Bentham was an early and staunch supporter of the utilitarian concept
(along with Hume), an avid prison reformer, advocate for democracy, and
strongly atheist. Bentham's views about law and jurisprudence were
popularized by his student, John Austin.
Austin's (born 03-Mar-1790) utilitarian answer to "what is law?" was that
law is "commands, backed by threat of sanctions, from a sovereign, to whom
people have a habit of obedience".
According to Austin Science of Jurisprudence is concerned with Positive
Laws that is laws strictly so called. It has nothing to do with the goodness
or badness of law.
Hans Kelsen :
Hans Kelsen (born 11-Oct-1881) is considered one of the prominent jurists
of the 20th century and has been highly influential in Europe and Latin
America, although less so in common-law countries.
His Pure Theory of Law aims to describe law as binding norms while at the
same time refusing, itself, to evaluate those norms.
That is, 'legal science' is to be separated from 'legal politics'.
Central to the Pure Theory of Law is the notion of a 'basic norm' from which in
a hierarchy all 'lower' norms in a legal system are understood to derive their
authority or 'bindingness'.
In this way, Kelsen contends, the bindingness of legal norms can be
understood without tracing it ultimately to some suprahuman source such as
God, personified Nature or a personified State or Nation.
H. L. A. Hart :
Contemporary legal positivists, H. L. A. Hart (born 17-Jul-1907) particularly,
have long abandoned Austins view, and have criticised its oversimplification.
H. L. A. Hart argued that the law should be understood as a system of social
rules.
Hart rejected Kelsen's views that sanctions were essential to law and that a
normative social phenomenon, like law, can not be grounded in non-normative
social facts.
Hart revived analytical jurisprudence as an important theoretical debate in the
twentieth century through his book The Concept of Law. As the professor of
jurisprudence at Oxford University, Hart argued that law is a 'system of rules'.
According to Hart, Rules are divided into primary rules (rules of conduct) and
secondary rules (rules addressed to officials to administer primary rules).
Secondary rules are further divided into (i) rules of adjudication (to resolve
legal disputes), (ii) rules of change (allowing laws to be varied) and (iii) rule
of recognition (allowing laws to be identified as valid).
Joseph Raz (born 21-Mar-1939) and Ronald Dworkin (born 11-Dec-1931) :
Some philosophers used to contend that positivism was the theory that there
is "no necessary connection" between law and morality; but influential
contemporary positivists, including Joseph Raz & Ronald Dworkin reject such
view. As it is a necessary truth that there are vices that a legal system cannot
possibly have (for example, it cannot commit rape or murder).
Joseph Raz defends the positivist outlook, but criticised Hart's "soft social
thesis" approach in The Authority of Law.
Raz argues that law is authority, identifiable purely through social sources,
without reference to moral reasoning. And any categorisation of rules beyond
their role as authority is better left to sociology than to jurisprudence.
Legal formalism (mechanical jurisprudence) :
Legal formalism is both a positive or descriptive theory of adjudication and a

normative theory of how judges ought to decide cases.
As a normative theory, formalism is the view that judges should decide cases by
the application of uncontroversial principles to the facts.
Although the large number of decided cases implies a large number of principles,
formalists believe that there is an underlying logic to these principles that is
straightforward and which legal experts can readily discover.
The ultimate goal of formalism would be to formalise the underlying principles in
a single, determinate, system that could be applied mechanically (hence the
label 'mechanical jurisprudence').
Formalism has been called 'the official theory of judging'. It is the thesis to which
legal realism is the antithesis.
Legal realism (late 19th century) :
Legal realism, is a theory of jurisprudence which argues that the real world
practice of law is what determines what law is. Accordingly, the law is little more
than putty in the hands of a judge who is able to shape the outcome of a case
based on personal biases.
Legal realism is a theory of law and legal reasoning that arose in the early
decades of the twentieth century broadly characterized by the claim that law can
be best understood by focusing on what judges actually do in deciding cases,
rather than on what they say they are doing.
Legal realism was primarily a reaction to the legal formalism of the late 19 th
century and early 20th century, and was the dominant approach for much of the
early 20th century. It succeeded in its negative aspiration of casting doubt upon
formalist assumptions that judges always did what they said. However, realism
failed in its positive aspiration of discovering a better way of predicting how
judges would behave than relying on the reasons given by judges.
According to this theory,
the law has the force that it does because of what legislators, lawyers and
judges do with it.
the law should be understood and determined by the actual practices of
courts, law offices, and police stations, rather than as the rules and doctrines
set forth in statutes or learned treatises.
The essential tenet of legal realism is that all law is made by human beings and,
thus, is subject to human foibles, frailties and imperfections.
People who mainly contributed to Legal Realism are Justice Oliver Wendell
Holmes, Jr, Roscoe Pound, Karl Llewellyn and Justice Benjamin Cardozo.
Despite its decline in popularity, realism continues to influence a wide spectrum
of jurisprudential schools today, including critical legal studies, feminist legal

theory, critical race theory, sociology of law and law and economics.
Historical School :
Historical jurisprudence came to prominence during the German debate over the
proposed codification of German law. In his book On the Vocation of Our Age for
Legislation and Jurisprudence, Friedrich Carl von Savigny argued that Germany
did not have a legal language that would support codification because the
traditions, customs and beliefs of the German people did not include a belief in a
code.
The Historicists believe that the law originates with society.
Contemporary Normative (or evaluative) jurisprudence :
What is Contemporary Normative (or evaluative) jurisprudence ?
In addition to the question, "What is law?", a wide section of legal philosophy
is also concerned with normative, or "evaluative" theories of law. This
category of jurisprudence theories move away from positivism's separation of
law and morality. ie they tend to tightly embrace morality.
These questions include, What is the goal or purpose of law? What moral or
political theories provide a foundation for the law? What is the proper function
of law? What sorts of acts should be subject to punishment, and what sorts of
punishment should be permitted? What is justice? What rights do we have? Is
there a duty to obey the law? What value has the rule of law?
Virtue jurisprudence : Virtue jurisprudence is the view that the laws should
promote the development of virtuous characters by citizens. Historically, this
approach is associated mainly with Aristotle or Thomas Aquinas later.
Contemporary virtue jurisprudence is inspired by philosophical work on virtue
ethics
Deontology : Deontology is "the theory of duty or moral obligation." The
philosopher Immanuel Kant formulated one influential deontological theory of
law. He argued that any rule we follow must be able to be universally applied,
i.e. we must be willing for everyone to follow that rule.
Utilitarianism : Utilitarianism is the view that the laws should be crafted so as to
produce the best consequences for the greatest number of people possible.
Historically, utilitarian thinking about law is associated with the philosopher
Jeremy Bentham. In contemporary legal theory, the utilitarian approach is
frequently championed by scholars who work in the law and economics tradition
Theory of Justice : John Rawls was an American philosopher, a professor of
political philosophy at Harvard University and author of A Theory of Justice
(1971).
His theory of justice uses a device called the original position to ask us which
principles of justice we would choose to regulate the basic institutions of our
society if we were behind a 'veil of ignorance.'
Imagine we do not know who we are - our race, sex, wealth status, class, or
any distinguishing feature - so that we would not be biased in our own favour.
Rawls argues from this 'original position' that we would choose exactly the
same political liberties for everyone, like freedom of speech, the right to vote
and so on. Also, we would choose a system where there is only equality
because that produces incentives enough for the economic well-being of all
society, especially the poorest. This is Rawls's famous 'difference principle'.
Justice is fairness, in the sense that the fairness of the original position of
choice guarantees the fairness of the principles chosen in that position.
Constructivist theory : Contemporary philosopher of law Ronald Dworkin who
has advocated a constructivist theory of jurisprudence that can be characterized
as a middle path between natural law theories and positivist theories of general
jurisprudence.
Critical legal studies (1970-1980) : Critical legal studies are a younger theory of
jurisprudence that has developed since the 1970s in the United States. It holds
that the law is largely contradictory, and can be best analyzed as an expression
of the policy goals of a dominant social group. Critical legal studies aim to shape
society based on a vision of human personality devoid of the hidden interests
and class domination. According to Roberto Unger (a prominent participants in
the CLS movement), the movement "continued as an organizing force only until
the late 1980s. Its life as a movement lasted for barely more than a decade.
Libertarian theories of law : Libertarian theories of law build upon classical liberal
and individualist doctrines.
The defining characteristics of libertarian legal theory are its insistence that
the amount of government intervention should be kept to a minimum and the
primary functions of law should be enforcement of contracts and social order,
though "social order" is often seen as a desirable side effect of a free market
rather than a philosophical necessity.
Historically, the Austrian economist Friedrich Hayek is the most important
libertarian legal theorist. Another important predecessor was Lysander
Spooner, a 19th-century American individualist anarchist and lawyer. John
Locke was also an influence on libertarian law theory (see Two Treatises of
Government).
Ideas range from anarcho-capitalism to a minimal state providing physical
protection and enforcement of contracts.
Therapeutic jurisprudence : It is concerned with the impact of legal processes on
wellbeing and mental health.

Therapeutic jurisprudence is the study of how legal systems affect the
emotions, behaviors and mental health of people. It is a relatively new
multidisciplinary field taking its name from jurisprudence, the study of the
law, and therapeutic, the power to cure or heal.
It examines how the law and those who enact it may be helpful or harmful to
people's wellbeing and mental health, and what alternatives there might be,
including in specialist courts for particular problems.
GO TO CONTENTS.
Discuss in detail : Analytical positivism : Bentham and Austin's view.

Explain in detail the theory of Law given by Austin. (Apr-2012, Mar-2014).
Critically discuss the theory of law given by Austin. (Mar2015).
"Law is the command of the sovereign. Discuss this statement in detail. (Oct-
2012, Apr-2013, Apr-2016).
Discuss : International law is not a law. (Apr-2016). (Ketan - Is this Q on Austins
theory ?)
Answer :
Refer :
https://en.wikipedia.org/wiki/Legal_positivism
https://en.wikipedia.org/wiki/Jeremy_Bentham
https://en.wikipedia.org/wiki/John_Austin_(legal_philosopher)
Analytical positivism :
Analytical positivism is a school of thought of jurisprudence, largely developed by
eighteenth- and nineteenth-century legal thinkers such as Jeremy Bentham and
John Austin.
While Bentham and Austin developed Analytical positivist theory, empiricism and
logical positivism set the theoretical foundations for such developments to occur.
The most prominent Analytical positivist writing in English has been H. L. A. Hart,
who in 1958 found common usages of "positivism" as applied to law to include the
contentions that:
laws are commands of human beings

there is no necessary connection between law and moralsthat is, between law
as it is and as it ought to be
analysis (or study of the meaning) of legal concepts is worthwhile and is to be
distinguished from history or sociology of law, as well as from criticism or
appraisal of law, for example with regard to its moral value or to its social aims
or functions
a legal system is a closed, logical system in which correct decisions can be
deduced from predetermined legal rules without reference to social
considerations
moral judgments, unlike statements of fact, cannot be established or defended
by rational argument, evidence, or proof ("noncognitivism" in ethics)
Analytical school of jurisprudence deals with the following matter :-
(I) An Analysis of the conception of civil law.
(II) The study of various relations between civil law and other forms of law.
(III) An inquiry into the scientific arrangement of law.
(IV) An account of legal sources from which the law proceeds.
(V) The study of the theory of liability.
(VI) The study of the conception of legal rights and duties.
(VII) To investigate such legal concepts as property, contracts, persons, acts
and intention etc.
Historically, Analytical positivism sits in opposition to natural law theories of
jurisprudence, with particular disagreement surrounding the natural lawyer's claim
that there is a necessary connection between law and morality.
Legal validity and the sources of law :
In the positivist view, the "source" of a law is the establishment of that law by
some socially recognized legal authority. The "merits" of a law are a separate
issue : it may be a "bad law" by some standard, but if it was added to the
system by a legitimate authority, it is still a law.
The Stanford Encyclopedia of Philosophy summarises the distinction between
merit and source as follows :
"The fact that a policy would be just, wise, efficient, or prudent is never
sufficient reason for thinking that it is actually the law, and
The fact that it is unjust, unwise, inefficient or imprudent is never sufficient
reason for doubting it.
According to positivism, law is a matter of what has been posited (ordered,
decided, practiced, tolerated, etc.)

The laws of a legal system may be quite unjust, and the state may be quite
illegitimate. As a result, there may be no obligation to obey them.
Moreover, the fact that a law has been identified by a court as valid provides no
guidance as to whether the court should apply it in a particular case.
As John Gardner has said, legal positivism is a theory of law, not a theory of
legal practice, adjudication, or political obligation. Legal positivists believe that
intellectual clarity is best achieved by leaving these questions to a separate
investigation
Analytical positivism and Analytical realism :
Legal positivism should be distinguished from legal realism and such legal
realists.
The differences are both analytically and normatively important. Both systems
consider that law is a human construct.
Unlike legal realists, positivists believe that in many instances, the law provides
reasonably determinate guidance to its subjects and to judges, at least in trial
courts.
However, no positivist has ever asserted that law is made valid by anyone's
decision. In Hart's opinion, the validity of law is a matter of the customary and
collective practices of the courts.
As for the moral validity of law, both positivists and realists maintain that this is
a matter of moral principles. 'The power of decision' has no essential role in
either, since individual decision rarely suffices to create a social practice of
recognition, and it would be implausible to suppose that moral principles are
made so by anyone's decision.
Methodology :
Analytical positivism utilises, in its investigations the inductive method (ie,
proceeding from observation of particular facts to generalisations concerning all
such facts).
During these investigations, matters of ethics, social policies and morality are
avoided; as Julius Stone wrote, it is concerned primarily with 'an analysis of legal
terms, and an enquiry into the logical interrelations of legal propositions'.
Further, law and its authority is seen as source-based; i.e., the validity of a legal
norm depends not on the moral value attached thereto, but from the sources
determined by a social community's rules and conventions.
Theory of Law given by Bentham :
Intro :
Jeremy Bentham (1747-1832) was an English philosopher, jurist, and social

reformer.
Jeremy Bentham, is arguably the greatest historical figure in the British
Analytical positivist movement and also regarded as the founder of utilitarianism.
Though Bentham was strongly in favour of the extension of individual legal
rights, he opposed the idea of natural law and natural rights, calling them
"nonsense upon stilts".
Bentham and Analytical positivism :
In An Introduction to the Principles of Morals and Legislation, Bentham laid the
groundwork in for a theory of law that as the expressed will of a sovereign.
Bentham made a sharp distinction between people he called :
Expositors those who explained what the law in practice was; and
Censors those who criticised the law in practice and compared it to their
notions of what it ought to be.
According to Bentham, the philosophy of law was to explain the real laws of the
expositors, rather than the criticisms of the censors.
Bentham was also noted for calling natural law "nonsense upon stilts."
Bentham on utilitarianism and welfarism :
Bentham's ambition in life was to create a "Pannomion", a complete utilitarian
code of law.
He not only proposed many legal and social reforms, but also expounded an
underlying moral principle on which they should be based. This philosophy of
utilitarianism took for its "fundamental axiom", it is the greatest happiness of the
greatest number that is the measure of right and wrong".
He became a leading theorist in Anglo-American philosophy of law, and a
political radical whose ideas influenced the development of welfarism.
He advocated individual and economic freedom, the separation of church and
state, freedom of expression, equal rights for women, the right to divorce, and
the decriminalising of homosexual acts.
He called for the abolition of slavery, the abolition of the death penalty, and the
abolition of physical punishment, including that of children.
Bentham's students included the legal philosopher John Austin, as well as Robert
Owen, one of the founders of utopian socialism.
On his death in 1832, Bentham left instructions for his body to be first dissected,
and then to be permanently preserved as an "auto-icon" (or self-image), which
would be his memorial. This was done, and the auto-icon is now on public
display at University College London (UCL).
Theory of Law given by Austin :

Intro :
John Austin (1790-1859) was a noted English legal theorist who strongly
influenced British and American law with his analytical approach to jurisprudence
and his theory of legal positivism.
He studied the Roman Law in Germany. There he noticed that Roman Law is
very systematic and scientific whereas English Law is not systematic and
scientific. So he tried to make English law in well manner.
In opposing traditional "natural-law" approaches, Austin argued against any
necessary connections between law and morality. Human legal systems, he
claimed, can and should be studied in an empirical, value-free way.
Austin was neighbours and close friends with Jeremy Bentham and John Stuart
Mill. Largely through Bentham's influence, Austin was appointed professor of
jurisprudence at the newly founded University of London in 1826.
Austin lived largely on his wife's earnings as a writer and translator. Plagued by
ill health, depression and self-doubt, Austin wrote little after the publication of
his major work, The Province of Jurisprudence Determined (1832). In this book
he tried to define English law in a systematic way and scientific way. However,
this work of Austin was largely ignored during Austin's lifetime. It became
influential only after his death when his wife, Sarah Austin, published a second
edition in 1861.

Analytical positivism :
Austins goal was to transform law into a true science. To do this, he believed it
was necessary to purge human law of all moralistic notions and to define key
legal concepts in strictly empirical terms.
Law, according to Austin, is a social fact and reflects relations of power and
obedience.
This twofold view, that (i) law and morality are separate and (ii) that all human-
made ("positive") laws can be traced back to human lawmakers, is known as
legal positivism.
Drawing heavily on the thought of Jeremy Bentham, Austin was the first legal
thinker to work out a full-blown positivistic theory of law.
Law is the command of the sovereign :
Austin argues that laws are rules, which he defines as a type of command.
More precisely, laws are general commands issued by a sovereign to members of
an independent political society, and backed up by credible threats of
punishment or other adverse consequences ("sanctions") in the event of non-

compliance.
Essential ingredients of command theory are, (i) Sovereign, (ii) Command, (iii)
Duty to obey, (iv) Sanction Power.
Who is sovereign ? The sovereign in any legal system is that person, or group of
persons, habitually obeyed by the bulk of the population, which does not
habitually obey anyone else.
What is a command ? A command is a declared wish that something should be
done, issued by a superior, and accompanied by threats in the event of non-
compliance. Such commands give rise to legal duties to obey.
Note that all the key concepts in this account (law, sovereign, command,
sanction, duty) are defined in terms of empirically verifiable social facts. No
moral judgment, according to Austin, is ever necessary to determine what the
law is though of course morality must be consulted in determining what the
law should be.
As a utilitarian, Austin believed that laws should promote the greatest happiness
of society.
Criticism :
Though Austin's brand of legal positivism was greatly influential in the late 19 th
and early 20th centuries, it was widely seen as overly simplistic.
Critics such as H. L. A. Hart have charged that Austin's account fails to recognize
that :
(1) Most legal systems include rules that do not impose sanctions, but rather
empower officials or citizens to do certain things (e.g., to make wills), or
specify ways that legal rules may be identified or changed.
(2) In many modern legal systems, such as that of the United States,
lawmaking power is dispersed and it is very difficult to identify a "sovereign"
in Austins sense.
(3) Defining legal duties in terms of "habits of obedience" to a determinate
sovereign makes it hard to explain why laws remain in force when one
government replaces another.
(4) Mere threats do not give rise to obligations. If they did, there would be no
essential difference between a gunman's threat ("Your money or your life")
and an ordinary piece of legislation.
(5) Customs ignored : According to Austin the law does not include customs
but we see that customs are a very important part of the society. There were
customs by which the society and later on state came into existence.
Customs play an important role in the administration of justice. Even in the
modern times the customs play an important role in the formation of positive
law. So we cannot ignore customs from law.
(6) Precedents ignored : Precedent means the decisions of the court, which
are also called as judge made laws. Judge made laws are not the command of
the Sovereign. But they are enforceable. Austin excluded these laws from his
concept of the law.
(7) Conventions Ignored : There are certain conventions or methods, which
are observed or followed by the coming generation. These conventions or
methods later on take the form of law. The base of English Law is
conventions. But Austin did not include conventions in his concept of law.
(8) International Law Ignored : Austin did not include international law in his
law. According to his law there is no Sovereign for enforcing the international
law. But in modern days we cannot exclude international law from the field of
law because it plays an important role in maintaining peace and society at
international level.
(9) Command Theory is not suitable in modern times. It is also an artificial
theory having no sense in the modern world.
(10) Only Power Is Not Necessary:- According to the Command Theory, law
can be imposed only with the help of power, But we have the result of the
tyrants or forced rules which were rejected by the people. eg French
Revolution, of Panamaeto.
(11) Law can be enforced even without power, it they are suitable to the
society.
(12) Moral Ignored:- The Command Theory has also excluded morals from
the field of law. But we have observed that morals have also an important role
in the formation of law. We cannot ignore morals from law because laws are
meant for the society and such laws must be according to the feelings of
society. The feelings of society are based upon morals. So we cant ignore
morals from the field of law.
CONCLUSION :-
In this way the Austins theory of command has been criticized and which is
not considered as suitable in the modern time. But we also cant ignore the
contribution of Austin for giving he meaning of law in a systematic way.
He give the concept of law in scientific manner. Austins views became the
base for the coming writers, jurists and philosophers. So we can say that
Austin contributed a lot in the field of jurisprudence.
GO TO CONTENTS.
Explain in detail the theory of Law given by Salmond. (Apr-2012, Apr-2013).

Critically discuss the theory of law given by Salmond. (Mar2015).
Answer :
Refer :
https://en.wikipedia.org/wiki/John_Salmond_(judge).
http://www.desikanoon.co.in/2012/08/the-nature-of-law.html
Intro :
Sir John William Salmond KC (3 December 1862 19 September 1924) was a legal
scholar, public servant and judge in New Zealand.
We know that Law cannot be static. In order to remain relevant, Law has to grow
with the development of the society. In the same manner, the scope of law also
cannot be kept static.
The result is that the definition of law is ever changing with the change in society.
The definition of law considered satisfactory today might be considered a narrow
definition tomorrow.
Salmonds definition of Law :
According to Salmond, law is the body of principles recognized or applied by the
State in the administration of justice.
Criticism of Austins theory of law by Salmond :
Salmond criticised Austin's view that laws existed even before births of states.
Salmond said that the laws which were in existence prior to the existence of
state were something like primitive substitutes of law and not law. They only
resembled law. Salmond gave an example. He said that apes resemble human
beings but it is not necessary to include apes if we define human beings.
Salmond's theory of law had strong ethical dimension. Salmond was critical of
Austin's theory of law because it ignored ethical dimension. According to Salmond,
the moment law is devoid of ethics, the law loses it colour and essence.
Justice is considered an end of law or law is considered a means to achieve
Justice.
However, Austins theory is silent about this special relationship of Justice and
Law.
Any definition of law which is without reference to justice is imperfect in nature.
Law is not right alone, it is not might alone, it a perfect union of the two and
Law is justice speaking to men by the voice of the State.
Salmond said,
whatever Austin spoke about is a law and not the law.
By calling the law we are referring to justice, social welfare and law in the
abstract sense.
Austins definition lacked this abstract sense. A perfect definition should include
both a law and the law.
Salmonds theory of law :
As said above, According to Salmond Law may be defined as the body of principles
recognized and applied by the state in the administration of justice.
In other words, law consists of rules recognized and acted upon by the Courts of
Justice.
It is the application by the State of the sanction of force to the rule of right.
Salmond believed that law may arise out of popular practices and its legal
character becomes patent when it is recognized and applied by a Court in the
Administration of Justice. Courts may misconstrue a statute or reject a custom; it is
only the Ruling of the Court that has the Binding Force of Law.
He further said that laws are laws because courts enforce them. He drew a lot of
emphasis on Administration of Justice by the Courts. He was of firm belief that the
true test of law is enforceability in the courts of law.
Thus, we see that,
Salmond has defined law in the abstract sense.
His definition brings out the ethical purpose of law.
In his definition, law is merely an instrument of Justice.
He drew a lot of emphasis on Administration of Justice by the Courts.
He was of firm belief that the true test of law is enforceability in the courts of
law.According to Salmond, the Administration of justice is the maintenance of
right within a political community by means of the physical force of the state.
Criticism of Salmond's theory by Vinogradoff :
Vinogradoff heavily criticized Salmonds definition.
He said that the definition of law with reference to Administration of Justice inverts
the logical order of ideas.
The formulation of law is necessary precedent to the administration of justice.
Law has to be formulated before it can be applied by a court of justice.
He further said that the definition given by Salmond is defective because he thinks
law is logically subsequent to administration of justice.
Existence of a Rule of Law because Courts of Justice could apply it and enforce it
while deciding cases, vitiates the definition of law.
Conclusion :
Thus, we see that Salmond has defined law in the abstract sense. His definition
brings out the ethical purpose of law. In his definition, law is merely an instrument
of Justice.
GO TO CONTENTS.
Discuss in detail : Natural Law School.

Discuss : An unjust law, is not a law. (Apr-2016).
Explain in detail the theory of law as dictate of reason. (Oct-2012).
Answer :
Refer :
https://en.wikipedia.org/wiki/Natural_law
https://en.wikipedia.org/wiki/Thomas_Aquinas
https://en.wikipedia.org/wiki/Lex_iniusta_non_est_lex
Natural Law School (middle ages and earlier) :
Intro :
Natural law is a philosophy that certain rights are inherent by virtue of human
nature and can be understood universally through human reason. Historically,
natural law refers to the use of reason to analyze human nature to deduce
binding rules of moral behavior. The law of nature, as determined by nature, is
universal.
Natural law first appeared in ancient Greek philosophy, considered alluded in the
Bible, and subsequently revived and developed in the Middle Ages by Catholic
philosophers such as Albert the Great and Thomas Aquinas.
Natural laws and positive laws :
Natural law is often contrasted with the human-made laws (positive law) of a
given state, political entity or society. In legal theory, the interpretation of a
human-made law requires some reference to natural law.
Natural law is the idea that there are rational objective limits to the power of
legislative rulers. The foundations of law are accessible through reason and it is
from these laws of nature that human-created laws (positive laws) derive the
force they have.

Another approach to natural law jurisprudence generally asserts that human law
may be supported by decisive reasons for action. In other words, there must be
a compelling rationale behind following human law. There are two readings of
the natural law jurisprudential stance.
The Strong Natural Law Thesis holds that if a human law fails to be backed-up
by decisive reasons, then it is not properly called a "law" at all. This is
captured, imperfectly, in the famous maxim: lex iniusta non est lex' (an
unjust law is no law at all).
The Weak Natural Law Thesis holds that If a human law fails to be backed-up
by decisive reasons, then it can still be called a "law", but it must be
recognised as a defective law.
Notions of an objective moral order, external to human legal systems, underlie
natural law. What is right or wrong can vary according to the interests one is
focused upon. Natural law is sometimes identified with the maxim that "an
unjust law is no law at all". Strongly related to theories of natural law are
classical theories of justice, beginning in the West with Plato's Republic.
Natural laws and (i) common laws, (ii) US Constitution :
Although natural law is often confused with common law, the two are distinct.
Even though natural law theories have exercised a profound influence on the
development of English common law, the latter is not based on inherent rights,
but is the legal tradition whereby certain rights or values are legally recognized
by virtue of already having judicial recognition or articulation.
Declarationism1, a legal philosophy, argues that the founding of the United
States is based on natural law (See "Laws of Nature" First Paragraph Declaration
of Independence).
Natural Law School In contemporary jurisprudence :
In jurisprudence, natural law can refer to the several doctrines:
That just laws are immanent in nature; that is, they can be "discovered" or
"found" but not "created" by such things as a bill of rights;
That they can emerge by the natural process of resolving conflicts, as
embodied by the evolutionary process of the common law; or
1 Declarationism, a legal and moral philosophy in the United States of America which proclaims
that the first law enacted by the American Congress is the Declaration of Independence and that
the principles set forth within this document are legally the defining factor for all aspects of
American government. Declarationism holds the perception that all people are entitled to dignity
through Natural-Divine Law, which guarantees the rights to Equality, Life, Liberty, the Pursuit of
Happiness and Government by Consent (or just consent). Declarationism also recognizes that
these rights belong to all people, not just U.S. Citizens
That the meaning of law is such that its content cannot be determined except
by reference to moral principles. These meanings can either oppose or
complement each other, although they share the common trait that they rely
on inherence as opposed to design in finding just laws.
Whereas legal positivism would say that a law can be unjust without it being any
less a law, a natural law jurisprudence would say that there is something legally
deficient about an unjust law.
The concept of natural law was very important in the development of the English
common law. In the struggles between Parliament and the monarch, Parliament
often made reference to the Fundamental Laws of England, which were at times
said to embody natural law principles since time immemorial and set limits on
the power of the monarchy.
According to William Blackstone, however, natural law might be useful in
determining the content of the common law and in deciding cases of equity, but
was not itself identical with the laws of England. Nonetheless, the implication of
natural law in the common law tradition has meant that the great opponents of
natural law and advocates of legal positivism, like Jeremy Bentham, have also
been staunch critics of the common law.
Natural law jurisprudence is currently undergoing a period of reformulation (as is
legal positivism). The most prominent contemporary natural law jurist,
Australian John Finnis, is based in Oxford, but there are also Americans Germain
Grisez, Robert P. George, and Canadian Joseph Boyle and Brazil Emdio
Brasileiro. All have tried to construct a new version of natural law. The 19th-
century anarchist and legal theorist, Lysander Spooner, was also a figure in the
expression of modern natural law.
"New Natural Law" as it is sometimes called, originated with Grisez. It focuses on
"basic human goods," such as human life, knowledge, and aesthetic experience,
which are self-evidently and intrinsically worthwhile, and states that these goods
reveal themselves as being incommensurable with one another.
The tensions between the natural law and the positive law have played, and
continue to play a key role in the development of international law.
Aristotal :
Aristotle (born 384 BC) wore many-many hats ! He was an ancient Greek
philosopher and scientist. His writings cover many subjects including physics,
biology, zoology, metaphysics, logic, ethics, aesthetics, poetry, theater, music,
rhetoric, linguistics, politics and government and constitute the first
comprehensive system of Western philosophy.
Greek philosophy emphasized the distinction between "nature" on the one hand
and "law", "custom", or "convention" on the other. ie
What the law/ custom commanded would be expected to vary from place to
place,
but what was "by nature" should be the same everywhere.
Aristotle is often said to be the father of natural law. His treatment of what he calls
"political justice" derives from his discussion of "the just" as a moral virtue derived
as the mean between opposing vices. He argues that the term "justice" actually
refers to two different but related ideas : general justice and particular justice.
General justice : When a person's actions are completely virtuous in all
matters in relation to others, Aristotle calls them "just" in the sense of
"general justice;" as such this idea of justice is more or less coextensive
with virtue.
Particular justice : "Particular" or "partial justice", by contrast, is the part of
"general justice" or the individual virtue that is concerned with treating
others equitably.
It must also be remembered that Aristotle is describing a view of morality, not
a system of law, and therefore his remarks as to nature are about the
grounding of the morality enacted as law, not the laws themselves.
Did Aristotle write about natural laws or natural rights ?
Aristotle's association with natural law may be due to the interpretation given to
his works by Thomas Aquinas. But whether Aquinas correctly read Aristotle is in
dispute.
According to some, Aquinas mixed-up natural law and natural right, the latter of
which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the
Eudemian Ethics). According to this interpretation, Aquinas's influence was such
as to affect a number of early translations of these passages in an unfortunate
manner, though more recent translations render those more literally.
Aristotle notes that natural justice is a species of political justice, viz. the
scheme of distributive and corrective justice that would be established under
the best political community; were this to take the form of law, this could be
called a natural law, though Aristotle does not discuss this and suggests in the
Politics that the best regime may not rule by law at all.
The best evidence of Aristotle's having thought there was a natural law comes
from the Rhetoric, where Aristotle notes that, aside from the "particular" laws
that each people has set up for itself, there is a "common" law that is according
to nature.
However, controversy persists.
Saint Thomas Aquinas :
Saint Thomas Aquinas (born 1225 AD), was an Italian philosopher and theologian
in the scholastic tradition. Thomas Aquinas embraced several ideas put forward by
Aristotlewhom he called "the Philosopher"and attempted to synthesize
Aristotelian philosophy with the principles of Christianity.
He is the foremost classical proponent of natural theology. According to him,
natural law is the "participation" in the eternal law by rational human creatures,
and is discovered by reason that good is to be done and promoted, and evil is to be
avoided.
According to Aquinas "all acts of virtue are prescribed by the natural law. He
defined the four cardinal virtues as prudence, temperance, justice, and fortitude.
The cardinal virtues are natural and revealed in nature, and they are binding on
everyone.
Thomas Aquinas distinguished four kinds of law : eternal, natural, human, and
divine.
Eternal law is the decree of God that governs all creation. It is, "That Law which
is the Supreme Reason cannot be understood to be otherwise than unchangeable
and eternal."
Natural law is the human "participation" in the eternal law and is discovered by
reason. Natural law is based on "first principles" :
. . . this is the first precept of the law, that good is to be done and promoted,
and evil is to be avoided. All other precepts of the natural law are based on
this . . .
Human Law, Aquinas concludes, "...that just as, in the speculative reason, from
naturally known indemonstrable principles, we draw the conclusions of the
various sciences, the knowledge of which is not imparted to us by nature, but
acquired by the efforts of reason. These particular rules, devised by human
reason, are called human laws, provided the other essential conditions of law be
observed". Human law is positive law.
Natural and human law is not adequate alone. The need for human behavior to
be directed made it necessary to have Divine law. Divine law is the specially
revealed law in the scriptures.
<work on this> Lex iniusta lex non est (Latin: An unjust law is no law at all), is a
standard legal maxim.
Originating with St. Augustine, the motto was used by St. Thomas Aquinas and
quoted by Martin Luther King Jr. during the Civil Rights Movement to describe
racial segregation and discrimination against Black people.
This view is strongly associated with natural law theorists, including John Finnis
and Lon Fuller.
GO TO CONTENTS.
Discuss in detail : Historical law school

Answer :
Refer :
http://www.encyclopedia.com/humanities/encyclopedias-almanacs-transcripts-and-
maps/historical-school-jurisprudence
https://en.wikipedia.org/wiki/German_Historical_School
INTRODUCTION :-
Jurisprudence is a subject in which the definition nature and the sources of law are
studied various writers under various schools have defined law.
Austin under Analytical school says that law is the command of sovereign. He
added only the law in the study of jurisprudence.
But under historical school Savigny says that law is the general consciousness of
the people.
It means what the common people think or behave is the base of law. Law only
shows the general nature of the common people.
Savigny is the father of it. According to Savigny, Law is the General
consciousness of he people.
The historical school of jurists was founded by Friedrich Karl von Savigny (1779
1861). Its central idea was that a nation's customary law is its truly living law and
that the task of jurisprudence is to uncover this law and describe in historical
studies its social provenience. As in other schools of thought, acceptance of this
approach did not necessarily mean agreement on its theoretical or practical
consequences.
HISTORICAL SCHOOL :
Historical School is a branch of Law, which studies law from the past history. It says
that law is based on the General Consciousness of people.
The consciousness started from the very beginning of the society. There was no
person like sovereign for the creation of law.
The law in the ancient times was based mainly upon simple rules, regulation,
custom, usages conventions etc. These things were later on developed by the
jurists and lawyers. These things were later on converted into set form of law.
The Historical school is just opposite to the Analytical school in 18 th and 19th
century, the concept of individualism came into existence. Due to this concept the
revolutions came like French revolution, Russian revolution etc.
Law is the general will of the people or law is based upon common people and the
feelings of the common people.
According to the historical school, law develops like the language and manners of
the society. So law has a natural character. Law has no universal application. It
differs from society to society and state to state. In the same way the languages
differ from society to society and locality to locality.
Montesquieu said, Law is the creation of climate, local situations and accidents.
According to Hugo hag, Law develops like language and the manners of the
society and it develops according to suitable circumstances of the Society. The
necessary thing is the acceptance and observance by society.
According to Burke, Law is the product of the General process. In this sense it is
dynamic organ which changes and develops according to the suitable
circumstances of society.
Savigny :-
Savigny is considered as the main expounder or supporter of the historical
school. He has given the Volkgeist theory ("spirit of the people").
According to this theory, law is based upon the general will or free will of
common people.
Law grows with the growth of nations increases with it and dies with the
dissolution of the nations. In this way law is national character. Consciousness of
people.
A law which is suitable to one society may not be suitable to other society. In
this way law has no universal application because it based upon the local
conditions local situations, local circumstances, local customs, elements etc. All
these things effect law and make it suitable to the society.
Main features of the Savigny theory is :-
1. Law has a national character.
2. Law is based upon the national conditions, situations, circumstances,
custom etc.
3. Law is pre historic: means law is found and is not made, the jurists and the
lawyers make it into set form.
4. Law develops like language and manner of the society. In ancient society
law was not in a natural stage or no in a set form. Later on with the
development of the society the requirements and the necessities of the
society increased. Due to this it was necessary to mould law in a set form.
According to Savigny customs are more important than legislation because

customs come before legislation. In other words the customs are the base of
legislation.
Criticism of Savignys Theory : Savignys theory has been criticised on the following
grounds :-
1. Inconsistency in the Theory :- Savigny asserted that the origin of law is in the
popular consciousness, and on the other hand, argued that some of the principles
of Roman law were of universal application. Thus, it is a clear cut inconsistency in
his ideas.
2. Volksgeist ("spirit of the people") not the Exclusive Sources of law :- There are
many technical rules which never existed in nor has any connection with popular
consciousness.
3. Customs not Always Based on Popular Consciousness:- Many customs are
adopted due to imitation and not on the ground of their righteousness. Sometimes
customs completely opposed to each other exist in different parts of the same
country which cannot be said to be reflecting the spirit of the whole community.
4. Savigny Ignored Other Factors That Influence Law:- The law relating to trade
unions is an outcome of a long and violent struggle between conflicting interests
within a society.
5. Many Things Unexplained :- Legal developments in various countries show some
uniformity to which he paid no heed. Eg What is national and what is universal.
6. Juristic Pessimism:- Savigny encouraged juristic pessimism. Legislation must
accord with popular consciousness. Such a view will not find favour in modern
times. No legal system would like to make compromise with abuses. People are
accustomed to it.
CONCLUSION :
From the facts mentioned above we have gone behind to see the history of the
society to check that what was the position of law in the ancient time. How and in
what form law was prevailing in the society? To find the solution of the questions
the supporter of Historical school found that law is the general consciousness of the
common people or it is the free will of common people on which law developed and
converted into a set of form of law.
GO TO CONTENTS.
Discuss in detail : Legal realism and Sociological law School.

Discuss : "Law is Science of social engineering Rosco Pound. (Apr-2016).
Discuss : Legal realism ---> Oliver Wendell Holmes Jr, Roscoe Pound, Karl Llewellyn,
Benjamin Cardozo
Answer :
Refer :
https://en.wikipedia.org/wiki/Sociology_of_law
https://en.wikipedia.org/wiki/Legal_realism
https://en.wikipedia.org/wiki/Moral_realism
https://en.wikipedia.org/wiki/Roscoe_Pound
https://www.scribd.com/doc/132404517/Law-as-a-Means-of-Social-Engineering-
Roscoe-Pound#
Intro :
Man is a social animal and needs a society for his leaving, working and enjoying
life. A group of individual forms a society. Society has become an essential
condition for human life to develop his or her personality. Therefore society and
human life always go together.
Every human being is born with some desires and expectations which are inherent
in nature. From childhood to till old age, every human being expects that his or her
desire is to be fulfilled for which their arise conflict of desires or claims which
comes under the term interest.
It is impossible to fulfil all the desires of a human being. So to fulfil the desires of
maximum number of human being for the welfare of society the concept of Social
Engineering was emerged and which was coined by Roscoe Pound.
Interests more particularly the conflicting interest are the subject of Social
Engineering. Social engineering is based on the notion that Laws are used as a
means to shape society and regulate peoples behaviour. It is an attempt to control
the human conduct through the help of Law.
According to Pound, Law is social engineering which means a balance between the
competing interests in society, in which applied science are used for resolving
individual and social problems.
Social Engineering : The Concept :
Roscoe Pound was one of the greatest leaders of sociological school of
jurisprudence. He introduced the Doctrine of Social Engineering which aims at
building and efficient structure of society which would result in the satisfaction of
maximum of wants with the minimum of friction and waste.
It involved the rebalancing of competing interests.
Roscoe Pound defined the legal order by reference to the end of law :
The legal order may well be though of as a task or as a great series of tasks of
social engineering; as an elimination of friction and precluding of waste, so far as

possible, in the satisfaction of infinite human desires out of a relatively finite
store of the material goods of existence.
Interests, desires, claim, wants - for the most parts of words are used
interchangeably in Pounds writings, although interests sometimes serves as the
inclusive term.
Friction and waste, represented by a sacrifice of interests which might be secured,
must be overcome.
The engineering analogy stands out as graphic and timely.
He propounds that task of jurists is to find out those factors which would help in
the development of culture conducive to the maximization of satisfaction of wants.
These factors are principles as Jural Postulates
Theory of Social Engineering :
Roscoe Pound conceived law as a social engineering, its main task being to
accelerate the process of social ordering by making all possible efforts to avoid
conflicts of interest of individuals in the society.
Thus, Courts, Legislators, Administrators, and Jurists must work with a plan and
make an effort to maintain a balance between the competing interests in society.
He enumerated the various interests which the law should seek to protect and
classified them into three broad categories namely :-
1. Private Interests
2. Public Interests
3. Social Interests
1. Private Interests :
a) Individuals interests of personality, namely interests of physical integrity,
reputation, freedom of volition and freedom of conscience. They are safeguarded
by laws of crimes, torts, contracts, constitutional law etc.
b) The interests of domestic relations of persons such as husband and wife,
parent and children, marital life as also the individuals private interests.
c) The interests of property, succession, testamentary disposition, freedom of
contractual relations, association etc. are also included in the category of private
interests.
2. Public Interests : The main public interests according to Pound are
a) Interests in the preservation of the State as such.
b) State as a guardian of social interests such as administration of trusts,
charitable endowments, protection of natural environment, territorial waters, sea
shores, regulation of public employment and so on.
3. Social Interests : The social interests which need legal protection are
a) Interests in the preservation of peace, general health, security of transactions
etc.
b) Preserving social institutions such as religion, political and economic
institutions etc.
c) Interests preserving general morals by prohibiting transactions which are
against morality such as prostitution, drunkenness, gambling etc.
d) Interests in conservation of social resources eg. Natural resources,
reformation of delinquents, protection of economically weaker section of the
society.
e) Social interests in general progress including economic, political and cultural
progress. For example, freedom of trade and commerce, freedom of speech and
expression, encouragement to arts and promotion of higher education etc.
f) Interests which promote human personality by enabling a person to live
political, physical, cultural, social and economic life to suit his taste and improve
his personality.
Characteristics of Pounds theory : :
When Pound conceives law as a social engineering, he is reading law and its
administration as a part of much wider process of social ordering, functioning
through courts and administrative agencies with the aid of legal precepts serving as
partial guides.
The task of social ordering presupposes a sincere effort to avoid or atleast
ameliorate, collisions resulting from conflict of interests.
All the varied activities of legal order or the efforts of the courts, administrators,
legislatures, jurists are to be directed toward the adjustment of relations the
compromise of conflicting claims, the securing of interest by determining of
boundaries wherein each maybe asserted with a minimum of friction and the
finding of means whereby greater number of claims may be satisfied with a
sacrifice of fewer.
If law is viewed as social engineering, its end is conceived to be satisfaction of all
demands and securing of all interests with a minimum of conflict so that the means
of satisfaction have the widest possible distribution.
It may be noted that Pounds techniques of Social Engineering are
a) Study of actual social effects of legal institutions and legal doctrines
b) Study of the means of making the legal rules effective
c) Sociological study for law making
d) Study of judicial method
e) A sociological history
f) The importance of reasonable and just solutions of individual cases
g) Of a ministry of justice to make efforts more effective toward the purpose of
legal order.
The above facts and considerations should be taken into account by the jurists of
sociological jurisprudence to make law purposive, need based and goal oriented.
In essence the sociological jurists look at law functionally. They ask,
how the methods of Jurisprudence work.
What consequences have flowed from these methods in action?
How far they have enabled the law to achieve its end or on the other hand
interfered with its achieving them?
Pound is pragmatic, functional and experimental advocating social ordering and
control through law, to promote and maintain ideal relations among mankind.
Just as engineers minimize friction and waste when dealing with
machines, similarly jurists ought to enable to resolve conflicts in society in
the interests of harmony, reform and progress.
This methodology is described by Pound as Social Engineering.
Criticism of Pounds theory :
Despite Pounds great contribution to sociological jurisprudence and his emphasis
on studying the actual working of law in society, his theory suffers from certain
drawbacks.
Pounds theory of social engineering has been criticized for the use of the term
engineering which equates society to a factory like mechanism. Law is a social
process rather than the result of an applied engineering equating society with a
factory is not correct because the former is changing and dynamic in nature
whereas the latter is more or less static.
Conclusion :
There is no doubt that through his legal theory Pound has attempted to bring law
into closer relation with other social sciences and tried to strike a balance between
freedom of individual and social control through the instrumentality of law. His
greatest contribution to jurisprudence is that he is practical in approach and
concentrate of law in society.
In Pounds theory, law as a tool to bring equilibrium using for social engineering
comes into play when there is unequal distribution of wealth in society or when
social justice is denied to large sections of the society people. In his theory law
attempts to remove inequalities for the benefit of whole community rather than
only few individuals.
GO TO CONTENTS.
Explain in detail the theory of law given by Kelson. (Mar-2014).

Answer :
Refer :
https://en.wikipedia.org/wiki/Hans_Kelsen
Introduction :-
Hans Kelsen 18811973) was an Austrian jurist, legal philosopher and political
philosopher. Due to the rise of Nazism in Germany and Austria, Kelsen left his
university post because of his Jewish ancestry, and departed to Geneva in 1933,
and then to the United States in 1940. In 1934, Roscoe Pound lauded Kelsen as
undoubtedly the leading jurist of the time.
The Pure Theory of Law is given by Kelson. This theory is also known as Vienna
School because Kelson is the product of Vienna University.
Kelsens theory resembles with Austins command theory because in Kelsons
theory there must be sanction behind law. Austin gave it the name of command
theory and Kelson gave it the name of grundnorm theory. Kelson is affected by
local conditions, natural condition and international condition. After studying all
these conditions he gave this theory of Law, which is known as pure theory of law
and grundnorm theory .
Concept of pure theory of Law:- At the time of Kelson there was Ist world war
which destroed the property of human beings at international level. So he gave
power to the international law and avoiding the destructions of the world. Secondly
during that time many countries adopted written constitution. So Kelson also get
influenced from these written constitutions and gave his own theory which is based
on grundnorms.
Grundnorm :
Grund means great and norm means Law. So Grundnorm means a great law.
Kelsen compared the grundnorm with written constitution. According to him written
constitution is the highest authority in the country which is known as grundnorms.
In England the Parliament is a grundnorm, in USA written constitution is
grundnorms and in India too written Constitution is grundnorm.
Imp ---> State is not above the grundnorm.
According to Kelson law is a motive nor science, it means science of norms.
In laws, only those rules are taken which are related with legal aspects. Any others
like moral rules, religious rules, ethical rules do not come under the concepts of
grundnorm. Like Austin, Kelson also excludes morals relation or ethics from the
field of law.
System of Normative Rules :-
System of normative rules was Hierarchy. In hierarchy system there is one
highest authority (written constitution) and all other are lower authorities. The
source of power in a state for all bodies is written constitution.
Nature of grundnorm :-
According to Kelson each country has the formation of grundnorm according to
local conditions. The duty of jurists is to interpret the grundnorm in their own
language.
They are not concerned with the goodness or badness of the grundnorm. They
are not concerned with the origin of the grundnorm.
Feature of Kelsons theory :-
1. grundnorm as a source of law :- grundnorm is the source of all laws. grundnorm
is in the form of written constitution.
2. No difference between law and state :- Kelson says that there is no difference
between law and State because they get power from the same grundnorm. Law
comes from the grundnorm and the state also comes from the grundnorm.
3. Sovereign is not a separate body :- Austin says sovereign is a politically superior
person which keeps controls over the politically inferior persons. But Kelson says
that the power of sovereign lies in the people. So the Sovereign is not separate and
superior from the people of the country.
4. No difference between public law and private law :- The public law is related with
the state and the private law is related with the individuals as Kelson says that
there is no difference between public law and private law. The law which creates a
contract between individuals is called private law.
5. Supremacy of international laws :- The main purpose of Kelson was to decrease
the tension at world level because there was Ist world war which destroyed millions
of persons and property. He also said that the international law is in primitive stage
or immature stage. It means it is in developing stage. One day will come when
international law will get equal to that of municipal law and become enforceable.
Criticism of Kelsons theory :- In-spit of having good concept of pure theory given by
Kelson some of the criticism faced by him, which are as under :
grundnorm is a vague concept :- The concept of grundnorm is not clear. It cannot
be applied where there is no written constitution.
in grundnorm is not linked with morals ethics. Customs and religion are also not
the norms. But we can not ignore the role of these in the development of law.
International Law is a weak law :- Kelson advocated the supremacy of international
law. But even upto now we see that is no force behind international law.
Difference between public law and private law :- Kelson says that there is no
different between public law and private law. Which is also not right in the modern
days.
Conclusion :-
Although Kelsen has been criticised from various angles yet he had contributed a
lot in the development of the society.
The concept of grundnorm gave power to the public at large as well as at national
level.
GO TO CONTENTS.
Explain in detail the concept of law as expounded by Professor H.L.A. Hart. (Apr-
2016).
Discuss in detail : Law is a system of rules, a union of primary and secondary rules.
Answer :
Refer :
https://en.wikipedia.org/wiki/H._L._A._Hart
https://en.wikipedia.org/wiki/The_Concept_of_Law
Intro :
H. L. A. Hart, was a British legal philosopher, and a major figure in political and
legal philosophy. He is famous for definition of las as Law is a system of rules, a
union of primary and secondary rules as espoused in this famous book The
Concept of Law.
He was Professor of Jurisprudence at Oxford University and the Principal of
Brasenose College, Oxford. His most famous work is The Concept of Law, which
has been hailed as "the most important work of legal philosophy written in the
twentieth century".
He is considered one of the world's foremost legal philosophers in the twentieth
century, alongside Hans Kelsen.
The Concept of Law is the most famous work of H. L. A. Hart. It was first published
in 1961 and develops Hart's theory of legal positivism (the view that laws are rules
made by human beings and that there is no inherent or necessary connection

between law and morality) within the framework of analytic philosophy.
Harts theory is mainly based on,
primary and secondary rules, and
relationship between law and society.
The Concept of Law provides an explanation to a number of traditional jurisprudential
questions such as,
"what is law?",
"must laws be rules?", and
"what is the relation between law and morality?".
Hart answers these by placing law into a social context while at the same time
leaving the capability for rigorous analysis of legal terms. The book in effect
"awakened English jurisprudence and the book has remained "one of the most
influential text of analytical legal philosophy", as well as "the most successful work
of analytical jurisprudence ever to appear in the common law world.
Background :
The Concept of Law emerged from a set of lectures Hart delivered in 1952 and
developed a sophisticated view of legal positivism.
Among the ideas developed in the book are :
A critique of John Austin's theory that law is the command of the sovereign
backed by sanction.
A distinction between primary and secondary legal rules, where a primary rule
governs conduct and a secondary rule allows the creation, alteration, or
extinction of primary rules.
A distinction between the internal and external points of view of law and rules,
The idea of the rule of recognition, a social rule that differentiated between those
norms that have the authority of law and those that do not.
A reply to Ronald Dworkin, who criticized legal positivism in general and
especially Hart's account of law.
Harts criticism of Austin's "Command theory" :
The starting point for the discussion is Hart's dissatisfaction with John Austin's
"Command Theory": a jurisprudential concept that holds that law is command
backed by threat and is meant to be omnipresent in its application.
Hart likens Austin's theory to the role of a gunman in a bank and tries to establish
the differences between the gunman's orders and those made by law. For instance,
the gunman forces us to obey but we may not feel inclined to obey him because
presumably, obedience to the law comes with a different feeling.

Hart identifies three such important differences : content, origin, and range. In
terms of content, not all laws are imperative or coercive. Some are facilitative,
allowing us to create contracts and other legal relations.
Austin believed that every legal system had to have a sovereign who creates the
law (origin) while remaining unaffected by it (scope), such as the bank scene's
gunman, who is the only source of commands and who is not subject to other's
commands. Hart argues that this is an inaccurate description of law, noting that
laws may have several sources and legislators are very often subject to the laws
they create.
Note : Above list of criticism are from wikipedia. Following is the FULL list of
criticisms (including those by others) :
(1) Most legal systems include rules that do not impose sanctions, but rather
empower officials or citizens to do certain things (e.g., to make wills), or specify
ways that legal rules may be identified or changed.
(2) In many modern legal systems, such as that of the United States, lawmaking
power is dispersed and it is very difficult to identify a "sovereign" in Austins
sense.
(3) Defining legal duties in terms of "habits of obedience" to a determinate
sovereign makes it hard to explain why laws remain in force when one
government replaces another.
(4) Mere threats do not give rise to obligations. If they did, there would be no
essential difference between a gunman's threat ("Your money or your life") and
an ordinary piece of legislation.
(5) Customs ignored : According to Austin the law does not include customs but
we see that customs are a very important part of the society. There were
customs by which the society and later on state came into existence. Customs
play an important role in the administration of justice. Even in the modern times
the customs play an important role in the formation of positive law. So we
cannot ignore customs from law.
(6) Precedents ignored : Precedent means the decisions of the court, which are
also called as judge made laws. Judge made laws are not the command of the
Sovereign. But they are enforceable. Austin excluded these laws from his
concept of the law.
(7) Conventions Ignored : There are certain conventions or methods, which are
observed or followed by the coming generation. These conventions or methods
later on take the form of law. The base of English Law is conventions. But Austin
did not include conventions in his concept of law.
(8) International Law Ignored : Austin did not include international law in his
law. According to his law there is no Sovereign for enforcing the international
law. But in modern days we cannot exclude international law from the field of
law because it plays an important role in maintaining peace and society at
international level.
(9) Command Theory is not suitable in modern times. It is also an artificial
theory having no sense in the modern world.
(10) Only Power Is Not Necessary:- According to the Command Theory, law can
be imposed only with the help of power, But we have the result of the tyrants or
forced rules which were rejected by the people. eg French Revolution, of
Panamaeto.
(11) Law can be enforced even without power, it they are suitable to the society.
(12) Moral Ignored:- The Command Theory has also excluded morals from the
field of law. But we have observed that morals have also an important role in the
formation of law. We cannot ignore morals from law because laws are meant for
the society and such laws must be according to the feelings of society. The
feelings of society are based upon morals. So we cant ignore morals from the
field of law.
HLA Hart on Social habits, rules, and laws :
Hart draws a distinction between,
a social habit (which people follow habitually but where breaking the habit
does not bring about opprobrium eg going to the cinema on Thursday), and
a social rule (where breaking the rule is seen as wrong eg neglecting to take
off one's hat upon entering a church).
We feel in some sense bound by social rules. And laws frequently appear to be
types of social rule.
There are two perspectives to this :
the external aspect, which is the independently observable fact that people do
tend to obey the rule with regularity, and
the internal aspect which is the feeling by an individual of being in some sense
obligated to follow the rule, otherwise known as the critical reflective attitude. It
is from this internal sense that the law acquires its normative quality.
The obedience by the populace of a rule is called efficacy. No law can be said to be
efficacious unless followed by the majority of the populace. Though an average
citizen in a modern state with a developed legal system may feel the internal
aspect and be compelled to follow the laws, it is more important for the officials of
the society/ peoples to also have the internal aspect since it is up to them to follow
the constitutional provisions which, if they wish, could ignore without
accountability. Yet, the officials must use the internal aspect and accept the
standards as guiding their behaviour in addition to also guiding the behaviour of

other officials.
Lastly, Hart lets us know that laws are much broader in scope than coercive orders,
contrary to the "command theory" of Austin. Frequently laws are enabling and so
allow citizens to carry out authoritative acts such as the making of wills or
contracts which have legal effect.
Law is a system of rules, a union of primary and secondary rules :
According to HLA Hart, laws are more than rules of conduct. The main base of
Harts theory is relationship between Law and Society. Here in the definition, Hart
means to say that law is the system of rules which are,
primary rules (rules of conduct) and
secondary rules (rules addressed to officials and which set out to affect the
operation of primary rules). Secondary rules deal with three problems :
first the problem of uncertainty about what the law is (the secondary rule for
this dilemma is called the rule of recognition and states the criteria of
validity of a law),
second the problem of rigidity of rules (which requires rules of change
allowing laws to be varied), and
third the problem of how to resolve legal disputes (from which rules of
adjudication arise).
Ancient age legal systems had only the primary rules, while modern age legal
systems have primary as well as secondary rules.
Distinction between ancient age legal systems and modern age legal systems (in
terms of secondary rules) :
Secondary modern age legal

Ancient age legal systems
Rule systems
1 Rule of Uncertainty : No legislature : there is a Parliament/

recognition Primitive society. And in this legislature. Certainty of
society there was no legislature rules.
which made rules. No certainty
on rules.
2 Rule of Static character : No executive There is an Executive to

Change : There was no executive also change or to amend the
which can change the rules rules.
3 Rule of Inefficiency : No court : there There are courts which

adjudication was no court also to decide the decides the disputes.
disputes Judges apply earlier laws
Secondary modern age legal

Ancient age legal systems
Rule systems
in deciding the disputes.
Thus, HLA Hart came to define law as Law is a system of rules, a union of primary
and secondary rules. In other words it can be said that the Law is the journey of
rules.
Conclusion :
Book The concept of law is a definitive text on modern legal system where (i)
there is a legislature which makes the rules, (ii) these rules are changed or
amended by the executive when it necessary, (iii) there are courts which apply the
rules for dispute resolution.
Moreover, Sir HLA Hart also gave due place of Morality in his theory because morals
have an important role in every legal world and these morals are not decided by
acts of legislatures.
We can say that Sir HLA Hart theory, The Concept of Law and his definition
injected a fresh blood in to otherwise static field of jurisprudence.
GO TO CONTENTS.
Module-3) Legal Rights, duties, persons, Titles, liabilities etc. :
3.1) Rights, Duties and Wrongs : Definitions and relationship, Rights : kinds,
Legal Rights as defined by Hohfeld, Right-Duty Correlations
3.2) Nature of personality, types of persons: Natural and artificial persons
3.3) Corporate personality: Corporation sole and aggregate, Rights &
liabilities
3.4) Status of the unborn, minor, lunatic, drunken and dead persons
3.5) Titles : kinds
3.6) Liabilities : conditions for imposing liabilities, Mens rea, Intention,
negligence, Vicarious liability, Strict Liability,
3.7) Theories of punishment
GO TO CONTENTS.
Explain in detail the meaning and concept of Legal Right. (Apr-2012, Apr-2013,
Mar2015).
Discuss in detail Legal Wrong.
Explain in detail : Concept of legal right and its kinds. (Oct-2012).
Explain giving illustrations, the concept of legal right in its wider sense. (Mar-2014).
Explain in detail the meaning, characteristic and different kinds of legal rights. (Apr-
2016).
Discuss : Legal Rights as defined by Hohfeld.
Discuss : Right-Duty Correlations.
Explain in detail the concept of personality and types of person with giving
illustrations. (Mar-2014).
Discuss : Only living human beings are natural persons. (Apr-2016).
Discuss in detail : Status of the unborn, minor, lunatic, drunken and dead persons.
Explain in detail : Meaning and kind of legal person. (Oct-2012).
Discuss in detail : Corporate personality : Corporation sole and aggregate, Rights &
liabilities.
Explain in detail : Concept of the Legal Person. (Apr-2012, Mar2015).
Explain in detail the concept of legal person with decided cases. (Apr-2013).
Explain in detail the concept of titles. (Mar-2014).
Discuss : Liabilities : conditions for imposing liabilities, Mens rea, Intention,

Vicarious liability.
Explain in detail giving illustration, the doctrine of strict liability. (Apr-2013, Mar-
2014).
Explain in detail the theories of negligence with decided cases. (Oct-2012).
Explain in detail : Principle of negligence. (Apr-2012, Mar-2014, Mar2015, Apr-
2016).
Explain in detail : Various theories of punishment. (Oct-2012, Apr-2013).
Discuss : Hate the sins, not the sinners. (Apr-2016).
Explain : Secondary function of court. (Apr-2016).
GO TO CONTENTS.
MODULE-3 ANSWERS :
Explain in detail the meaning and concept of Legal Right. (Apr-2012, Apr-2013, Mar
2015).
Discuss in detail Legal Wrong.
Explain in detail : Concept of legal right and its kinds. (Oct-2012).
Explain giving illustrations, the concept of legal right in its wider sense. (Mar-2014).
Explain in detail the meaning, characteristic and different kinds of legal rights. (Apr-
2016).
Answer :
Refer :
https://en.wikipedia.org/wiki/Natural_and_legal_rights
http://www.desikanoon.co.in/2012/08/jurisprudence-notes-legal-concepts.html
http://www.alameenlaw.in/modelpapers-dec2016.html
Discuss in detail Legal Wrong :
Read from page-47 - CONCEPT OF LIABILITY -
http://shodhganga.inflibnet.ac.in/bitstream/10603/71969/7/07_chapter%205.pdf
Legal Right :
Intro :
Right generally means an interest or facility or a privilege or immunity or a
freedom.
Legal rights are those bestowed onto a person by a given legal system (i.e., rights
that can be modified, repealed, and restrained by human laws).
Natural rights are those that are not dependent on the laws or customs of any
particular culture or government, and therefore universal and inalienable (i.e.,
rights that cannot be repealed or restrained by human laws).
Legal right -vs- moral right :
Legal right is recognised by law. It is different from moral right.
Moral right if violated is called moral wrong. The violatin of natural right is called
natural wrong. But these wrongs are not remedial under law
while if a legal right is violated then it will be legal wrong which is remedial
under law.
What is legal right ? The different jurists have defined legal right in different ways :-
According to Austin : Right is a faculty which resides in a determinate party or
parties by virtue of a given law and which avails against a party or parties other
than the party or parties in whom it resides.
According to Salmond :- Right is an interest recognised and protected by the rule
of right. Here rule of right means rule of law or law of country. When an interest of
a person is protected by the rule of law then it is called right.
Salmond definition involves two points, firstly that right is an interest and
secondly it is protected by rule of right. It means that it relates to his (person)
interest i.e., life liberty, heath and reputation etc.
Grey has criticised the interest theory propounded by Salmond, Ihering and Heck
and he has supported the view that right is not an interest but that means by
which the interest is secured.
According to Holland, right is as a capacity residing in one man of controlling, with
the assent and assistance of the state the action of others.
According to Paton : That legal right is that it should be enforceable by the legal
process of the state. He however says that there are three exceptions to this
rule :-
It is not necessary that the state should always necessarily enforce all the legal
rights.
There are certain rights which recognised by law but not enforced by it for
example : In a time barred debt, the right of the creditor to recover the debt is
an imperfect right
There are certain laws which do not confer right of enforcement to the courts,
for example : International Court of Justice has no power to compel enforcement
of its decrees under International Law.

THEORIS OF RIGHT :- There are two theories of right :
WILL THEORY : This theory is based upon the will of human beings. It says that a
right reflects the inner will of a human being. Austin, Holland, Halmes and Dov
recognized this theory of right. According to them a person wants to remain in the
world freely and according to his own choice because a man is born free.
Interest Theory:- This theory says that interest is the base of the right. It is only
interest which is recognised by law. This theory reflects the external nature of the
human beings. Supporter (eg Salmond) of this theory say that there are many
interests in the world. These interest which are protected and recognized by law
are called right.
ELEMENTS OF LEGAL RIGHT :- Following are the elements of Rights :-
1. Subject : here means a person who has right. So there must be a person for
rights
2. Act of Forbearance : Right means some standard of action permitted by law. In
a right either an act is done or an act is forbidden. This is also called as content of
right.
3. Object : There must be a object upon which the right is exercised. Mainly there
are three essential elements of right.
Illustration : A lives in a house. Here : (i) A has the right to live in the house.
(ii) A is subject, house is object and (iii) His living in the house is act content.
4. Correlative duty : For right there must be a correlative duty. In the above
example A has the right to live in the house but other persons have correlative
duty not to disturb him. Almost all jurists agree on the point because one cannot
exists without the other.
5. Title : Salmond gives one more element of rights in the form of title. He says
that a right has got also a title. Title may be in the form of the owner or co-owner
or mortgager or leaser or buyer etc.
ILLUSTRATION : If, A buys a piece of land from B. A is the subject or owner of the
right so required. The person bound by the co-relative duty is persons in general
because a right of this kind avails against the world at large. The right consists in
non-interference with the purchasers exclusive use of the land.
KINDS OF RIGHTS :- The following are the kinds of rights :-
1. Primary right and secondary right : Primary right is an independent right while
secondary right means dependent right. They are also called as principal right and
helping right or remedial right.
Illustration:- A has right of reputation which is his primary and independent
right. If any person defames A then A has the right of damages against the
defamer. This right of damages is called secondary right or remedial right.

2. Positive and Negative Right:- Positive right permits to do an act while negative
right prohibit doing an act.
Illustration:- A has the right of reputation. This is his positive right and any
person should not defame him. The defaming his reputation called negative
right.
3. Right Rem and Personam:- Right in Rem means right against the whole world
while right in persosnam means right against a definite person.
Illustration: A should not be harmed by any person. This is right in rem. On the
other hand, A has entered into a contract with B and B has broken +ve
contract. A can enforce this right against B. This is known as right in
personam.
4. Legal And Equitable Right (Natural Justice) : The division of right has its origin in
England. Legal riight is recognized by Law. While equitable right has been
recognized by natural justice.
In England there were two types of courts, (i) Legal courts, (ii) Chancery courts.
Chancery Courts recognized the conquerable rights on the basis of justice, equity
and good conscience.
5. Vested & Contingents Right : These rights is of permanent nature that depends
upon the happening of an uncertain event. Thus contingents right becomes full
right only when such uncertain events happen according to the condition.
6. Proprietary and Personal Right:- Proprietary rights which are concerned with
property. A person possessing any property has the proprietary right over it.
Personal right means the right related with a person or a body. Every person has
a status. He should not be injured or defamed. If any person injures or defames
another person then the wrong doer infringes the personal right of a person.
7. Perfect or Imperfect Right : Rights which are enforceable by law are perfect and
which are not enforceable by law are imperfect rights.
8. Right of Re-propia and Right in re-alena : Right in re-propia means the right in
ones own thing whereas right in re-aliena means the right in the things of others.
GO TO CONTENTS.
Discuss : Legal Rights as defined by Hohfeld.

Answer :
Refer :
https://en.wikipedia.org/wiki/Wesley_Newcomb_Hohfeld
Intro :
Wesley Newcomb Hohfeld (1879-1918) was an American jurist who during his life
he published only a handful of law journal articles.
After his death the material forming the basis of Fundamental Legal Conceptions
was derived from his two articles in the Yale Law Journal.
The work remains a powerful contribution to modern understanding of the nature
of rights and the implications of liberty. To reflect Hohfeld's continuing importance,
a chair at Yale University is named after him.
Importance of Hohfelds contribution :
Hohfeld made major contribution by simplifying legal concepts of right no-right
----- privilege duty ----- power disability ----- immunity liability.
He created a very precise analysis which distinguished between fundamental legal
concepts and then identified the framework of relationships between them.
His work offers a sophisticated method for deconstructing broad legal principles
into their component elements.
By showing how legal relationships are connected to each other, the resulting
analysis illuminates policy implications and identifies the issues which arise in
practical decision making
Hohfelds theory of legal rights :
Hohfeld noticed that even respected jurists conflate various meanings of the term
right, sometimes switching senses of the word several times in a single sentence.
He wrote that such imprecision of language indicated a concomitant imprecision of
thought, and thus also of the resulting legal conclusions.
In order to both facilitate reasoning and clarify rulings, he attempted to
disambiguate the term rights by breaking it into eight distinct concepts.
To eliminate ambiguity, he defined these terms relative to one another, grouping
them into,
four pairs of Jural Opposites and
four pairs of Jural Correlatives.
This use of the words right and privilege correspond respectively to the concepts of
claim rights and liberty rights.
Hohfeld argued that right and duty are correlative concepts, i.e. the one must
always be matched by the other.
If A has a right against B, this is equivalent to B having a duty to honor A's right.
If B has no duty, that means that B has a privilege, i.e. B can do whatever he or
she pleases because B has no duty to refrain from doing it, and accordingly A
has no right to prohibit B from doing so.
Each individual is located within a matrix of relationships with other individuals. By
summing the rights held and duties owed across all these relationships, the
analyst can identify both the degree of liberty an individual would be considered
to have perfect liberty if it is shown that no one has a right to prevent the given act
and whether the concept of liberty is comprised by commonly followed practices,
thereby establishing general moral principles and civil rights.
Discussion :
Hohfeld defines the correlatives in terms of the relationships between two
individuals.
In the theory of "in rem rights", there is a direct relationship between a person and
a thing. Real rights are in this respect unlike claim rights or "rights in personam",
which by nature must be exercised against a person, the best example being when
someone is owed money by another.
Hohfeld demonstrates that this way of understanding rights in general is wrong. In
particular, Hohfeld demonstrates that there is no such thing as a legal relation
between a person and a thing, since a legal relation always operates between two
people.
As the legal relations between any two people are complex, it is helpful to break
them down into their simplest forms. Legal rights do not correspond to single
Hohfeldian relations, but are compounds of them.
Thus, a right can be defined as an aggregate of the Hohfeldian relations
with other people.
Hohfeld replaces the concept of
right in personam by paucital right and
"right in rem" by a compound or aggregate of "multital rights".
Rights held by a person against one or a few definite persons are paucital (or in
personam), and
rights held by a person against a large indefinite class of people are multital (or
in rem).
A contract right is paucital (or "in personam") because it can be enforced only
against the specific parties to the contract.
A property right is multital (or "in rem") because a landowner has the right to
exclude not only specific people from his land but the "whole world".
What is "multital rights ?
The landowner has many rights, privileges, powers, and immunities; his multital
rights are composed of many paucital rights.
For example, the owner has a right that others do not step on his land but
there is not just one such right against a mass of persons (the community),
but many separate although usually identical paucital rights with this content
(as many instances as there are people in the community). This is what
Hohfeld calls "multital rights.
Hohfelds definition of liberty :
In Hohfeldian analysis, liberty is defined by an absence both of a duty and of a
right.
B is free because he has no obligation to recognize any of A's rights. That does
not deny that B might decide to do what A wants because that is the essence of
liberty.
Nor does it deny the possibility that B might accept a duty to A to give a benefit
to C. In that situation, C would have no right and would have to rely on A to
enforce the duty.
The truth is that liberty is significant from both a legal and a moral point of view
because only liberty ensures that an individual has control over his or her
choices on whether and how to act. If something interferes with this choice, the
natural reaction is to resent it and to seek a remedy.
The corelative between right and duty inevitably describes the way in which two
people are limited in their choices to act, and the outside observer cannot
capture the legal and moral implications without examining the nature of the
right held by A.
Hence, this relationship is qualitatively different. An interference with liberty
would be considered wrongful without having to ask for detailed evidence.
Yet whether A's relationship with B is morally suspect could only be determined
by evaluating evidence on precisely what B's duty requires B to do or not to do.
GO TO CONTENTS.
Discuss : Right-Duty Correlations.

Answer :
Refer :
Introduction :-
Right and duties are the very important element of law.
The term Right has various meanings such as correct, opposite of left, opposite of
wrong, fair, just and such like other expression etc.
But in legal sense a right is a legally permissible and protected action and interest
of a man group or state.
Right : Definition :
According to Austin :-
Right is a standard of permitted action within a certain sphere. He further define
right as a party has a right when others are bound to (obliged by law to) do or
not to do any act.
According to Salmond :
It is an interest recognized and protected by the rule of justice / law.
According to Gray :-
Right is not an interest itself but it is the means by which the enjoyment of an
interest in secure.
According to Prof. Allen :-
The essence of right is not a legal guarantee in itself but a legally guaranteed
power to realized an interest.
Elements of rights :
1. Subject :- The subject of a right is concerned with the person (legal or artificial)
or a group who legally is entitled to seek the privilege and benefit against other.
In other words the subject is that person in whom the right vest.
2. Content :- This is the subject matter of the right along-with the nature and limits
of that right.
3. The person of Incidence :- It means that the person upon whom falls the
corrective duty.
4. OBJECT :- The object of the right may be material or immaterial, determinate or
indeterminate.
Characterstics of rights :
1. RIGHT is a general o specific type of claim, interest or such like expression of
the people in a State.

2. The right is duly recognized and approved by the State through its agencies.
3. A legal right is has a deep correlation with a corresponding duty, liability or
disability on the part of those against whom such right is conferred.
4. A right may have its independent existence and type of assemblies with other
rights.
5. Basic philosophy or the fundamental concept of right remains permanent but
with the time it is subject to incorporate changes in it.
6. The realization and scope of a legal right depends upon the type of society and
the nature of interest.
Theories of rights :- there are two main theories of legal right :-
1. Will theory :-
The will theory says that the purpose of law is to grant the individual i.e. self
expression or positive declaration. Therefore right emerges from the human will.
The definition of right given by Austin and Holland, that the will is the main
elements of a right.
2. The Interest Theory :-
Interest is the basis of right. A great German jurists defines the legal right as, A
legally protected Interest. According to him the basis of right is Interest and
not will.
The definition of law is in terms of purpose that the law always has a purpose.
In case of right the purpose of law is to protect certain interest and not the wills
or the assertions of individuals. These interests are not created by the State but
they exist in the life of the community itself.
Types of rights :
1. Primary and secondary Right : They are known by Antecedent and remedial
rights names also.
2. Perfect and imperfect Right : Means which has a correlative positive duty.
3. Negative and Positive Right : Positive means related to duty whereas negative
means not related to duty.
4. Right in Rem & Right in Personam :
5. Right in repropria (right to be excercised in any legal mannet), and
Right in Re-aliena (right in one's own property).
6. Vested and contingent right.
7. Propriatory and personal Right.
8. Equitable and legal right.

Duty : Definition :
The term duty may be used in various form as an obligation, as responsibility and
accountability. Many scholers have defined the term Duty.
According to Gray,
Duty is the act of or forbearance which an organized society used to impose on
people through state in order to protect the legal right of other.
According to Rose,
Duty is the Predicament of person whose act are liable to be controled with the
assistance of the State.
As per Hoffield,
The duty is the correlative of Right.
Classification of Duties :- Duty classified into two categories. There are as follows:-
1. Positive And Negative Duties
2. Primary and Secondary Duties
1. Positive and Negative Duty:- A positive duty implies some act on the part of
person on whom it is imposed. Negative duty implies some forbearance on the part
of the person on whom it is imposed.
2. Primary and Secondary duty:- A primary duty is that which exists perse and
independent of other duty. A secondary duty is that duty whose purpose to enforce
some other duty.
Essentials of duty :- There are following essential of duty :-
a. It may be dependent and independent.
b. It consists an obligation on the part of someone and confirm a privilege upon
other.
c. The concept of duty is affirmed and protected by the law of the land where it
exist.
d. The concept of duties is a changing process which arises from time to time,
place to place and circumstances to circumstances.
e. Duty in most of the cases creates an absence of right against some person.
f. Duty may be fundamental, legal or moral in character.
Relation between Right and Duties :- The following objects describes the
correlation between right and duties:-
i. A right is indispensible without any duty.
ii. A duty and right has separate and independent existence.
iii. A right procreates duty and vice-versa.

Even though right and duties are opposite points but there is a great relation
between two relations. The right and duties has a relation of Father and Child,
Husband and Wife because there is no father without child and no wife without
husband. So right and duties cannot be separated form each other.
Right/Claim : Liberty or privilege : Power : Immunity
Duty : No claim : Liability : Disliability
(Jural opposites) (Jural correlative)
Conclusion :-
Right and duties are correlative of elements of each other.
There is no right without duty and there is no duty without right.
These are recognized by law for maintaining the society very well.
GO TO CONTENTS.
Explain in detail the concept of personality and types of person with giving
illustrations. (Mar-2014).
Discuss : Only living human beings are natural persons. (Apr-2016).
Answer :
Refer :
https://en.wikipedia.org/wiki/Legal_personality
http://ba-llb-handout-notes.blogspot.in/2015/11/persons-in-jurisprudence-
notes.html
https://en.wikipedia.org/wiki/Natural_person
http://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1117&context=jlia
Intro :
In an ordinary meaning any living human being either male or female is person.
However, juridically, a person is classified in two groups, (i) natural persons, and
(ii) juridical persons.
The first group refers to a human being, who is an individual being capable of
assuming obligations and capable of holding rights.
The second group refers to those entities endowed with juridical personality.
What is legal personality ?
To have legal personality means to be capable of holding legal rights and

obligations within a certain legal system, eg entering into contracts, suing, and
being sued.
Legal personality is a prerequisite to legal capacity to amend (enter into, transfer,
etc.) rights and obligations.
A holder of legal personality is called as a person. In legal terms a being who
is capable to possess rights and obligation and liabilities is person.
ie Any being whom law regards as capable of rights and duties is a person in
legal sense, this also includes human beings.
Kinds of persons (or legal personality) : There are two kinds of person (or legal
personality) in law,
natural persons (also called physical persons), and
All the human beings (male and female) are natural persons. All the living beings
which are recognized as person by state, they are persons in law as well as
persons in fact.
juridical persons (also called juristic, artificial, legal, or fictitious persons).
eg corporations, which are treated in law as if they are 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. They
are also called juridical, conventional, imaginary. Legal persons have rights and
obligations as natural person. They can also sue and be sued.
While human beings acquire legal personhood when they are born, juridical persons
do so when they are incorporated in accordance with law.
Natural persons :
Historically, a human being was not necessarily a natural person in some
jurisdictions where a slave was a thing (subject of a property right) rather than a
person. eg In old Roman law slaves were not supposed to be person because they
were not possessed rights.
In many cases, fundamental human rights are implicitly granted only to natural
persons.
One significant similarity between natural and legal persons is that, just like a
natural person, a corporation or non-governmental organization can also file a
lawsuit or own property.
Difference between a natural person and a legal person :

A natural person can hold public office, but a corporation cannot.
Usually only a natural person perpetrates a crime, but legal persons may also
commit crimes. However, in case of a legal person committing a crime,

punishments like imprisonment, etc can be imposed only on the responsible office
holder (natural person) of the legal person (corporation)
Animals that are not persons under and they cannot commit crimes, because there
is no mens-rea.
GO TO CONTENTS.
Discuss in detail : Status of the unborn, minor, lunatic, drunken and dead persons.
Answer :
Refer :
notes.html#
<first include here brief discussion on natural person>
Animals :
They are not 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 perception of moral right/ wrong is our cultural heritage. 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 (a male domestic fowl; a cock)
was prosecuted and punished but in modern law, only the master of animals can be
sued and punished and not the animals itself.
According to Salmond, beasts are not persons, either natural or legal. A persons
duties towards animals are in fact duties towards the society itself. The society
does have an interest in the protection and well-being of animals.
Animals are merely things often the objects of legal rights and duties - but never
the subject of them.
Although the beasts are in capable of legal rights and duties and their interests are
not recognized by law but the legal history reveals that archaic codes contained
provisions regarding punishment to animals if they were found guilty of homicide.
In the ancient Hindu jurisprudence, killing of harmless animals like swans,
squirrels, cows , bulls, etc. was made punishable with fine.
Dead human beings :
According to Salmond,
Dead man are no longer persons in the eye of the law. They lay down their legal
personality along with their lives, thereafter are as destitute of rights as of
liabilities.
They have no rights because they have no interests.
They do not even remain the owner of their property until their successors enter
upon their inheritance.
n law dead men are things and not persons.
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.
They have no rights and no interests.
However, the criminal law provides that any imputation against a deceased
person, if it harms the reputation of that person, if living, and is intended to hurt
the feelings of his family or other near relatives, shall be an offence of defamation
under section 499 of the indian penal code.
Moreover, the law also recognize the compliance of will, burial ceremony, no
defamation, no desecration of graves, but despite of this fact is that they are not
living persons and these duties lie to their legal heirs or living society members.
Salmond says that there are three things, more especially, in respect of which the
anxieties of living men extend beyond the period of their death in such sort that
the law will take notice of them.
These are a mans body, his reputation and his estate.
Dead persons are not recognized as legal persons but the testamentary dispositions
of the dead are carried out by law.
Statues of unborn babies :
In most of the jurisdictions, unborn persons have been given the legal status by
law.
There is very little acceptance of view of Paton who observed that, the child in
womb is not a legal personality and can have no rights.
His view is based upon the fact that the child should be born alive and should be
completely extruded from the mothers body before it can have any benefits
under the law.
However, this view is not tenable in most of the states.
In civil law they can sue after they are born. This can be done through their next
friends or at attaining the age of majority.
There is nothing in law to prevent a man from owning property before he is born.
His ownership is real and present ownership but it is contingent because he may
never be born at all.

A child in womb has certain rights and inherits property. However, these rights are
subject to its live birth.
Following are important points :
Unborn babies can claim damages after birth, for the injuries received before
birth.
Unborn babies can claim compensation for the death of its father or mother in
fatal accidents.
Unborn babies inherits even if its father died before its birth. Unborn babies is a
natural person.
A woman cannot be punished after conviction if she is pregnant, till birth of
baby.
Not only children in uterus, but even unborn children in the sense of children not
yet conceived have legal personality.
Thus, in the law of property, there is a fiction that a "child en ventresa mere" is a
person in being for the purpose of-
(i) The acquisition of property by the child itself, or
(ii) being a life chosen to form part of the period in the rule against perpetuities.
Position in Hindu Law :
The Hindu law of partition requires a share to be allotted to a child in mothers
womb along with the other living heirs.
But if the child is not born alive, his share will be equally partitioned between the
surviving heirs.
Thus, proprietary rights of children in uterus are fully recognized by the law.
Injury to the child in womb has been made a punishable offence by the criminal
law.
Causing death of a child in womb has been made a punishable offence by the
Indian penal code.
Thus, children in the womb have rights protected by law and have legal personality.
Criminal law also protects the unborn child.
Of course, the personality of an unborn person is contingent to his birth because if
he dies in the womb or is still- born, no right will be deemed to have been vested in
such a child.
Status of minor, lunatic, drunken :

GO TO CONTENTS.
Explain in detail : Meaning and kind of legal person. (Oct-2012).

Discuss in detail : Corporate personality: Corporation sole and aggregate, Rights &
liabilities.
Explain in detail : Concept of the Legal Person. (Apr-2012, Mar2015).
Explain in detail the concept of legal person with decided cases. (Apr-2013).
Answer :
Refer :
https://en.wikipedia.org/wiki/Legal_personality
notes.html#
https://en.wikipedia.org/wiki/Natural_person
<First insert brief intro to person (legal personality)>
Outline of kinds of legal (juridical) persons : There are three kinds of Legal Person :
1. Institutions
2. Corporations
Corporation aggregate
Corporation sole
3. Funds or estates
Detailed discussion on kinds of legal (juridical) persons :
1. Institutions : Institutions are not personified or group of persons but institutions
itself are legal persons, eg mosque, library, hospital etc.
2. Corporations : Corporations are a group or series of persons and natural persons
are its members. There are 2 types of corporations :
Corporation aggregate :
A corporation aggregate is a corporation constituted by more than one
member.
Corporation aggregate is a group or collection of persons who join to
accomplish a task. Even if all members of this corporation die, corporation will
remain live and continue until death by law.
Municipal corporations (municipalities) are "creatures of statute."
Unincorporated associations, that is aggregates of two or more persons, are
treated as juridical persons in some jurisdictions but not others.

Partnerships, an aggregate of two or more persons to carry on a business in
common for profit and created by agreement. Note that, traditionally,
partnerships did not have continuing legal personality, but many jurisdictions
now treat them as having an independent legal personality.
Companies, a form of business association that carries on an industrial
enterprise, are often corporations, although companies may take other forms,
such as trade unions, unlimited companies, trusts, and funds.
Limited liability companiesbe they a private company limited by guarantee,
private company limited by shares, or public limited companyare entities
having certain characteristics of both a corporation and a partnership.
Sovereign states are legal persons.
In the international legal system, various organizations possess legal
personality. eg United Nations, Council of Europe, etc
Corporation sole :
A corporation sole is a corporation constituted by a single member, in a
particular capacity, and that person's successors in the same capacity, in order
to give them some legal benefit or advantage, particularly that of perpetuity,
which a natural person could not have had. Examples are a King, Prime
Minister, Income Tax Commissioner.
Corporation sole is series of successive persons or individuals. It consists of
only one person at a time
When a particular incumbent person (Corporation sole) dies, second one
comes to fills in the vacancy and performs functions of corporation sole. Note
that, after death of a office holder, for some time, office of corporation sole
becomes dormant or inactive or goes in sleeping position. As and when
another person fills in the position, corporation sole become active again.
3. Funds or estates : Funds or estates are used for specific purpose. Property or
fund of deceased person for trust or charity is kind of legal person.
One significant distinction between natural and legal persons is that a natural person
can hold public office, but a corporation cannot.
One significant similarity between natural and legal persons is that, just like a natural
person, a corporation or non-governmental organization can also file a lawsuit or own
property.
Nature of juridical personality :
Artificial personality, juridical personality, or juristic personality is the characteristic
of a non-living entity regarded by law to have the status of personhood.
A juridical or artificial person has a legal name and has certain rights, protections,
privileges, responsibilities, and liabilities in law, similar to those of a natural person.

The concept of a juridical person is a fundamental legal fiction. It is pertinent to the
philosophy of law, as it is essential to laws affecting a corporation (corporations
law).
Juridical personality allows one or more natural persons to act as a single entity
(body corporate) for legal purposes.
In many jurisdictions, artificial personality is considered separately from its
individual members (for example in a company limited by shares, its shareholders).
They may sue and be sued, enter contracts, incur debt, and own property.
They may also be subjected to certain legal obligations, such as the payment of
taxes.
An entity with legal personality may shield its members from personal liability.
Corporate veil :
The concept of juridical personality is not absolute. "Piercing the corporate veil"
refers to looking at the individual natural persons acting as agents involved in a
company action or decision;
"Piercing the corporate veil" has big role to play in criminal jurisprudence and may
result in a legal decision in which the rights or duties of a corporation or public
limited company are treated as the rights or liabilities of that corporation's
members or directors.
GO TO CONTENTS.
Explain in detail the concept of titles. (Mar-2014).

Answer :
Refer :
http://legal-dictionary.thefreedictionary.com/title
http://info.courthousedirect.com/blog/bid/336876/What-s-the-Difference-Between-
Legal-Title-and-Equitable-Title
GO TO CONTENTS.
Discuss : Liabilities : conditions for imposing liabilities, Mens rea, Intention,

Vicarious liability.
Explain in detail giving illustration, the doctrine of strict liability. (Apr-2013, Mar-
2014).
Answer :
Refer :
V Good - CONCEPT OF LIABILITY -
https://en.wikipedia.org/wiki/Strict_liability
https://en.wikipedia.org/wiki/Strict_liability_(criminal)
https://en.wikipedia.org/wiki/Vicarious_liability

What is meant by Liability ?
In civilized societies most of the relation between the individual and the state are
governed by rules made or recognized by the state; that is, law. Law lays down the
rights and duties of the individuals.
In other words, it prescribes what one is to do and what one is not to do and what
one is entitled to get "it done.
A branch of these rules is called wrong. When a person has committed a wrong, he
is said to be liable.
Thus, liability is the condition of the person who has committed a wrong.
Liability or responsibility results from a wrong of breach of duty. It is something
which a person must do or suffer on account of his failure to do what he ought to
have done "duty.
A person has a choice in fulfilling his duty, but liability arises independently of ones
choice.
Liability is the "vinculum juris, i.e. the bond of legal necessity that exists between
the wrongdoer and the remedy of the wrong.
Liability differs from obligation in as much as the latter refers to what a person
ought to do on account of some duty cast upon him but the former refers to
something which the person must do or suffer because he has already failed to do.
Term 'liability' is used to express three things,
1) It has been used to express the position of person who has undertaken to do
or to abstain from doing something by contract with another person.
2) The term has been used to express the condition of person who has failed in
the performance of source duty, and who is consequently, called upon to make
compensation to some person who has suffered damage thereby.
3) The term liability has been used to express the condition of a person who
has not failed in the performance of any duty, but who has done an act which
has caused damage to another for which he is required to make compensation.
Definition :
liability or responsibility is the bond of necessity that exists between the
wrongdoer and the remedy of the wronged.
According to Austin,
liability consists in those which a wrongdoer must do or suffer. It is the
ultimatum of law and has its source in the supreme will of the state.
Liability arises from a breach of duty which may be in the form of an act or
omission. Austin prefereds to call liability as imputability.
Classification of liability : Liability can be classified in to,
1. Civil and criminal.
2. Remedial and penal.
3. Strict or Absolute and vicarious.
1. Civil and Criminal Liability :
Civil liability consisits in enforcement of the right of the plaintiff against the
defendant in civil proceedings,
Criminal liability the purpose of the law is to punish the wrongdoer.
Difference b/w civil and criminal liability :
1.Crime is a wrong against the society but a civil wrong is a wrong against a
private individual.
2. The remedy for a crime is punishment but the remedy for civil wrongs is
damages.
3. The proceedings in case of crime are criminal proceedings but in case of a
civil wrong they are civil proceedings.
4. In a civil wrong, the liability is measured by the wrongful act and the
liability depends upon the act and not on the intention. On the other hand
liability in a crime is measured by the intention of the wrongdoer.
5. AUSTIN says : "an offence which is pursued at the discretion of injured
party or his representatives, is a civil injury. An offence which is pursued by
the sovereign or by the subordinates of the sovereign is a crime...All absolute
obligations are enforced criminally".
2. Remedial and penal liability :
Remedial liability :
If the defendant is asked to pay damages or to pay a debt, or to make a

specific performance,etc the liability is called Remedial liability.
it is founded on the well-known maxim ubi jus ubi remedium which means,
where there is right, there is remedy.
Penal liability :
When after a successful proceeding the wrongdoer is awarded punishment,
fine, imprisonment, etc., the liability is called penal liability.
The basic principle underlying penal liability is that, "an act alone does not
amount to crime, unless it is accompanied by guilty mind".
Therefore, two elements i.e. i) act; and ii) guilty mind which are essential to
constitute a crime.
Important Note :
Civil and criminal liability cannot be treated as identical with that between
remedial and penal liability.
The distinction has been made on the notion of the legal consequences of the
action against the wrong.
Where after a successful proceeding the defendant is ordered to pay
compensation for damages, or to pay a debt or to make a specific
performance of a contract, the liability "may be known a remedial,
but where it after a successful proceeding the wrongdoer is awarded
punishment, which may be the fine, imprisonment etc. it may be called
penal liability.
Often civil liability may generally be remedial and ----- the criminal may
generaly be penal. However, this is not always true.
In exceptional cases civil liability may be both remedial and penal.
Similarly in exceptional cases criminal liability may be both remedial and
penal.
3. Strict or absolute and Vicarious liability :
STRICT OR ABSOLUTE LIABILIY :
Generally a man is held liable for his wrongful acts but there is an exception
to this general rule which is known as wrongs of strict liability. These are
the acts for which a man is responsible irrespective of the existence of either
wrongful intent or negligence. They are exceptions to the general requirement
of fault.
What is Absolute Liability :
Absolute liability is a stricter form of strict liability. It refers to the no fault
theory liability in which the wrongdoer is held absolutely liable for the act of
omission or commission without any defenses/ exceptions which are

available to the rule of strict liability.
It is applicable only to those people who are involved in hazardous or
inherently dangerous activity whereby they become absolutely liable to full
compensation for the harm caused to anyone resulting from the operation
of such hazardous activity.
The rule of absolute liability was first laid down in M C Mehta v. Union of
India (Oleum gas case)
It is absolute liability in the sense that it is not necessary for the injured
party to prove any intention or negligence on the part of the injuring party.
Wrongs of absolute liability can be classified into 4 kinds :
i) Cases relating to escape of dangerous things;
ii) Cases relating to escape of animals.
iii) Cases relating to the use of things which in their nature are specially
dangerous such as fire, fire-arms, explosives, poisonous drugs etc.
According to salmond, strict liability can be put into 3 groups -
1) Mistake of law
2) Mistake of fact
3) Inevitable accident
1) Mistake of law-
it is expected in legal presumption that everyone knows the law. If a person
has committed a wrong under mistake of law, the law will not hear him say
that he had no guilty mind and that but for his ignorance of law, he would
not have done it. This presumption is irrefutable.
2) Mistake of fact- ignorance of the fact
It means that a person is not liable for a wrongful act if he has done it
under a mistake of fact.
Mistake of fact is a valid defense against wrongful acts.
In R. v Prince a person who abducted a girl under the legal age of
consent was held criminally liable, although he honestly believed her to be
of the age of consent, because the act of taking away the girl itself is a
wrongful act.
3) Inevitable accident -
it is commonly recognized as a ground of exemption from liability.
According to Salmond, every act which is not done intentionally is either
done accidentally or by mistake. If it is done accidentally then the
consequences are unintended and if it is done by mistake then the

consequences are intended but the actor is ignorant of some material
circumstances.
In Ryan v Youngs the sudden death of the driver of a motor vehicle due to
heart- failure as a result of which the accident was caused, was held to be a
mere inevitable accident and the defendants were held not liable.
VICARIOUS LIABILITY (Civil Law) :
Normally, the person who does the wrong is liable for that wrongful act but
there are certain circumstances when the liability of the wrongdoer is imposed
on some other person than the wrongdoer himself.
Therefore, in vicarious liability one man is made answerable for the acts of
another.
Modern civil law recognized vicarious liability in 2 chief classes :
i) Masters are responsible for the acts of their servants done in the
course of their employment,
ii) Representatives of dead men are liable for the acts of the deceased
whom they represent.
1) Masters liability for the acts of his servants :
Vicarious liability means liability which is incurred for, or instead of, another.
Normally, every person is responsible for his own acts, but in certain
circumstances liability attaches to him the wrongs committed by others.
Liability of the master for the acts of his servant is both joint as well as
several.
A servant is that person who voluntarily agrees, whether for wages or not,
to subject himself at all times during the period of service to the lawful
orders and directions of another in respect of certain work to be done.
A master is that person who is legally entitled to give such orders and to
have them obeyed by others.
Reasons for holding a master liable for the wrongs of his servant :
i) Qui facit per alium facit per se
ii) Respondeat superior
iii) Financial considerations
iv)
2) Living representatives for the acts of the dead :
A man cannot be punished in his grave and, therefore, it was held that all
actions for penal redress must be brought against the living offender and
must die with him.

This old rule has been abrogated by law to a great extent. A personal action
does not survive on the death, either of the person who sustained or the
person who committed, the wrong.
At common law, in the case of the death of the person wronged, his
executors or administrators could not maintain an action for-
a) Personal wrongs committed during his lifetime, such as assault, libel,
false imprisonment, negligence not causing death, reduction; or
b) Trespass to his goods and chattels; or
c) Damages for his death.
VICARIOUS LIABILITY (Criminal law) :
The general principle is that a person is not responsible for the act of another.
A master is not criminally liable for the unauthorized acts of his servant.
However, there are certain exceptions of this rule. The legislature may prohibit
an act or enforce a duty to make them absolute. In such a case the principle
will be liable for the act of his servant as if he did that act himself.
If a principle neglects the performance of an act which is likely to cause
dangers to others and entrusts it to unskilled hands, he will be made
criminally liable in certain cases.
Mens Rea :
It is universaly accepted principle that, in both civil (private) as well as criminal
(public) liabilities, no person can be punished (note difference from compensation/
damages) merely because his act resulted into some legal wrong (civil/ criminal),
unless it was accompanied by Mens Rea or guilty mind.
Conversely, mere presence of mens rea" shall not constitute a crime unless it is
accompanied by some act.
Thus "act is he physical element of the crime and mens rea is the mental
element.
Salmond says that penal liability may require,
the wrongful act to be done intentionally or
with some further wrongful purpose in mind, or
it may suffice that it was done recklessly;
and in each case the mental attitude of the doer is such as to make punishment
effective.
If a person does a wrongful act
intentionally OR
committed the forbidden act without wrongful intent but knowing the harmful
consequence of the act,
he will be punished.
Mensrea must extend to all three parts of the act ;
(i) the physical doing or not doing;
(ii) the circumstances;
(iii) the consequences
Legal wrongs may be divided into three types;
(a) intentional or Reckless wrongsin which mensrea is intention, purpose, or
design.
(b) Wrongs of Negligencein which the mensrea is mere carelessness, as
opposed to wrongful intent or foresight.
(c) Wrongs of Strict liability in which mensrea is not required. These wrongful
acts by themselves are wrongs and punishable.
Exceptions to mensrea : Generally penal liabilities arise only for those wrongful acts
which are done either willfully or negligently. There are, however, some exceptional
cases when law imposes strict liability as in case of offences under the lincensing
acts or offences against public health. In such cases, the act itself becomes
punishable even without the presence of guilty mind or negligence.
The criminal law exempts certain categories of cases from penal liability. These
are commonly known as defences or general exceptions and include mistake of
act, accidents, infancy, minority, necessity, self-defence, voluntary intoxication,
etc. ----- If the offender succeeds in establishing any of these defences, he is not
punished though his offence may satisfy the two conditions of actus and
mens rea".
When the law imposes strict liability, the requirement of guilty mind or mensrea
is dispensed with. In the interest of public safety, health, and social welfare,
many measures imposing strict liability have been legislated. In matters
concerning public health, food, drugs etc.,such strict liability is imposed.
Where mensrea is difficult to be proved, a guilty mind need not be proved in
such cases; provided that the penalties are petty fines.
In the interest of public safety, in deciding cases relating to public nuisance, it is
not necessary to take mensrea into consideration.
In those cases which are criminal in form but in fact they are only summary
mode of enforcing a civil rights, mensrea is not necessary.
Ignorance of law is no excuse is the maxim of another exception.
Interesting OFF topic page-62 of the reference URL : THE MEASURE OF CRIMINAL
LIABILTY : DEPENDS UPON THE THEORY OF PUNISHMENT, ON THE CONCEPT OF THE

STATE.
GO TO CONTENTS.
Explain in detail the theories of negligence with decided cases. (Oct-2012).

Explain in detail : Principle of negligence. (Apr-2012, Mar-2014, Mar2015, Apr-
2016).
Answer :
Refer :
page-41 - CONCEPT OF LIABILITY -
Intro :
There are two theories of negligence.
1. Subjective theory of negligence
This theory was propounded by SALMOND.
According to this theory, negligence is a state of mind - mental attitude. This
theory is called the subjective theory of negligence.
2. Objective theory of negligence
This theory has been given by Sir FREDERICK POLLOCK.
According to him negligence is a type of conduct. This is called the objective
theory of negligence.
1. Subjective Theory of negligence :
The exponents of the subjective theory maintain that negligence is a state of mind.
According to them, negligence consists in the mental attitude of undue indifference
with respect to ones conduct and its consequence.
The subjective theory is given by SALMOND.
Salmonds view is that negligence is culpable carelessness. Although negligence is
not the same as thoughtlessness or inadvertence, it is nevertheless essentially an
attitude of indifference.
Therefore, according to this view, negligence essentially consists in the mental
attitude of undue indifference with respect to ones conduct and its
consequences.
A person is made liable on the ground of negligence because he does not
sufficiently desire to avoid a particular consequence- a harm. He is careless
about the consequence and does the act notwithstanding the risk that may
ensure.
WINFIELD is also the supporter of this theory.
He says that as a mental element is tortuous liability, negligence usually
signifies total or partial inadvertence of the defendant to his conduct and for its
consequence
According to AUSTIN, want of advertence which ones duty would naturally
suggest, is the fundamental idea in the conception of negligence
In his opinion, a negligent wrongdoer is one who does not know that his act is
wrongful but would have known it had it not been because of his indolence and
inadvertence.
Thoughtless is thus the essence of negligence for AUSTIN.
AUSTIN goes a step further elaborating his subjective theory and distinguishes
negligence from heedlessness, rashness and recklessness. For him, negligence is
the state of mind of the person who inadvertently omits an act and breaks a
positive duty.
In heedlessness he does not think of probable mischief and does not bother
to avert the possible consequences.
In rashness, he does foresee the consequences but foolishly thinks that they
would not follow as a result of his act.
Recklessness, on the other hand is a condition of mind where the doer
foresees the consequences but does not care whether they result from his act
or not.
Thus, the line of distinction between rashness and recklessness is very thin.
In the former, there is erroneous thinking that consequences would not follow
while
in the latter the person does not bother about the consequences at all.
Sir JOHN SALMOND objects to the above sub-classification of negligence made by
AUSTIN and treats all these categories under the common law, namely,
negligence
The reason being that in all of them there is failure of exhibit the standard of
care required of a reasonable man.
In his opinion, AUSTINS view is fallacious because negligence may also be
deliberate or willful. He, therefore, concludes that the essence of negligence is
not inadvertence but carelessness which may or may not result in inaverfence ".
2. Objective Theory of Negligence :
According to this theory negligence is not a condition of mind but a particular kind
of conduct which is to be judged objectively.

This theory is supported by FREDREIC POLLOCK. It is the breach of duty to take
care which a reasonable person under those circumstances would take.
The tort of negligence is based on objective approach to the conduct and its
consequences.
According to Sir FREDERICK POLLOCK,
negligence is the contrary of diligence and no one describes it as the state of
mind.
This theory postulates that negligence is an objective fact. It is not an attitude of
mind or a form of mens rea" at all, but to particular standard of conduct.
It is a breach of duty of not taking care and to take care means to take precautions
against the harmful results of ones action and refrain from unreasonably
dangerous kinds of act.
For example to drive at night without lights is negligence because having lights is
the conduct of precaution adopted by all prudent men.
He who drives without lights in the night has failed in that conduct. So to
determine whether a man is negligent or not, one need not to go into the state
of mind but to the standard of his conduct.
Negligence thus is a type of conduct and not a state of mind.
The view appears to be correct chiefly in the law of tort where negligence is
nothing more than a failure to achieve the objective standard of a prudent man,
and where a person has failed to achieve that standard of a prudent man, any
defence on the ground of mental state that he took the utmost care shall be of no
use at all to him.
Similar is the position in criminal law as well.
Dr. WINFIELD defined negligence as a tort is "the breach of a legal duty to take
care which results in damage, undesired by the defendant to the plaintiff. Thus,
the three essential ingredients of negligence as a tort are,
i) Existence of a legal duty
ii) Breach of it and
iii) Consequential damages
All these are to be judged objectively on the basis as to how a reasonable man
would have acted in those circumstances.
Criticism of both theories :
SALMOND criticizes objective theory of negligence on the ground that it loses sight
of the essential distinction between intention and negligence.
For him, negligence is purely mental and nothing more than carelessness.
Professor GLANVILLE WILLIAM, the editor of SALMONDs jurisprudence has tried to
reconcile the above two conflicting theories of negligence stating that they are two
aspects of the same problem.
In his view, negligence is subjective when a particular consequence is to be
distinguished from the intended consequence.
In this sense, the pertinent question is whether the wrongdoer intended the
consequences or he was just indifferent to them.
On the other hand, when it is to be ascertained whether the consequence is
accidental or negligent, the objective theory would be appropriately applicable.
In this sense, the irrelevant question would be whether the defendant exhibited
the standard of care expected of a reasonable man under those circumstances.
The approach of Dr.GLANVILLE WILLIAM appears to be correct and more
practicable.
It is for this reason that negligence has been used in two senses in law of torts.
It is used in the sense of "state of mind as one of the general principles of
determining tortuous liability
while negligence as a tort is based on the objective theory.
Dr. M.J. SETHNA who attempted to developed a mind-behaviour theory has also
stated that negligence is a faulty behaviour arising out of faulty thinking.
It is both subjective and objective.
It is objective because it is something in the nature of external behaviour and
It is subjective because it arises from mental lethargy.
He is not in favour of maintaining compartmentalist theories of negligence that
is, subjective and objective, etc.
The theory which Dr.SETHNA develops is the mind-behaviour theory of
negligence - the theory of subjective-objective synthesis.
Conclusion :
The foregoing survey would, however, reveal that the traditional division of liability
into (i) civil and criminal, and (ii) remedial and penal, and to state that all criminal
liability is only remedial is not accurate in the present circumstance because such
liabilities are more often penal and more often remedial and such a division has
grown more complex in the modem day jurisprudence.
GO TO CONTENTS.
Explain in detail : Various theories of punishment. (Oct-2012, Apr-2013).

Discuss : Hate the sins, not the sinners. (Apr-2016).
Answer :
Refer :
http://www.alameenlaw.in/modelpapers-dec2016.html
http://www.lawnotes.in/Theories_of_Punishments
http://www.lawnn.com/theories-punishment-kinds-punishment-criminal-law/
http://www.civilserviceindia.com/subject/Law/notes/administration-of-justice.html
http://www.desikanoon.co.in/2012/08/jurisprudence-notes-administration-of.html
Outline of theories of punishments : There are Five theories of punishments. The
Indian Penal Code is a combination or compromise between the underlying principles
of all these theories.
1. Deterrent Theory --- The main objective of this theory is to deter crimes. It
serves a warning to the offender not to repeat the crime in the future and also to
other evil-minded persons in the society
2. Retributive Theory --- The objective of the theory is to make the offender realise
the suffering or the pain. In the Mohammedan Criminal Law, this type of
punishment is called 'QISAS' or 'KISA'.
3. Preventive Theory --- The idea behind this theory is to keep the offender away
from the society. The offenders are punished with death, imprisonment of life,
transportation of life etc.
4. Expiatory Theory --- this theory believes that if the offender expiates or repents,
he must be forgiven
5. Reformative Theory --- It is believed that if the criminals are educated and
trained, they can be made competant to behave well in the society
Meaning :-
According to the dictionary, Punishment involves the infliction of Pain or forfeiture ;
Punishment is infliction of a Penalty.
Punishment is chastisement or castigation by the judicial arm of the State.
However, if the sole purpose behind punishment is to cause physical pain to the
wrong-doer it serves little purpose.
Introduction :-
Punishment involves physical suffering to the convicted offender. They are the ends
of criminal Justice.
Jurists have evolved several theories for giving a convincing answer. These theories
may be divided broadly into three classes.
1. One class of the theories is those that hold the primary function of the
criminal law is to preserve and increase the welfare of the state.
2. Another class of theories says that the chief aim of the criminal justice must
be infliction of punishment as retribution to the offender for the harm done and,
3. Thirdly, those that hold that punishment to the offender should be inflicted in
a way so as to reform him.
According to Salmond, the ends of criminal justice, are fivefold. They are,
1. Deterrant.
2. Retributive.
3. Preventive.
4. Expiatory.
5. Reformative.
1. Deterrent theory of punishment :-
Deter-> discourage, hinder.
Detterent ->serving to deter.
It is said to be deterrent when it is inflicted, with the object of showing,
The futility(worthlessness) of crime, and for not to repeat in the future.
Setting a lesson unto others.
The chief end of law of crime is to punish the evil doers.
The supporters of this theory are Bentham, Plato, Locke, Sophits etc.,
According to them inflicting of severe or drastic punishment so that terror
spreads into the hearts of people who may be criminally disposed with the
view to prevent the offender from committing the similar crime.
Execution of offenders should be openly done in the public, so that.
It will create the fear in the people, so that they will never risk to commit
the similar offence/ crime. But the entire history of penal law shows that
severity of punishment do not curtail the number of crimes.
And hence the theory of Deterrent has been subjected to critisicism, on the
ground that,
It would not prevent,
Nor create any fear in the minds of the habitual offenders.
2. Retributive theory of punishment :-
Literally, retributive means (punitive or to pay back or to make a return to).

According to this theory, it is right and proper that evil should be returned for
evil.
Retribution, in this sense, is based on the saying, an eye for an eye, a tooth for
tooth, a limb for a limb and a life for a life.
Thus this theory considers punishment as an end in itself. the fullfillement of
the moral justice, the punishment is based under this theory.
According to this theory perpetrator of a bad act shall meet with suffering.
The supports of this theory are both ancient a modern philosophers like Plato
and Kant.
It is based on the idea of taking revenge against the wrong doers.
This type of punishment was called QISAS or KISA in ancient Mohammedan
Criminal Law.
Hegal opposed this theory as it is observed that it is the manifestation of
revenge for an injury, or in the sense of vengeance, in the sense of punishment.
3. Preventive theory of punishment :-
This is also called as theory of disabusment.
This theory is based on not to avenge crime but to prevent it.
The aim of this theory is to disable the criminal, which prevent repetition of crimes.
Salmond and Holmes are the main supporters of this theory. Bentham supported
this theory, because of its humanizing influence on criminal law.
The preventive theory says the punishment is for the purpose of disabling or
preventing the offender from committing the offence again.
In order to prevent repetition of crimes, the offenders are punished with death,
imprisonment of life transportation(deport or exhail).
This theory is criticized on the ground that prevention of crime may be done by
reforming the behavior of criminals.
Kant, the main critic of the theory, says that this theory treats a man as a thing,
not as a person, as a means not as an end in itself.
The idea of prevention of crime is simply not possible detaining a criminal for a
long time in jail as the wrong doer in prison learn many bad things from other
criminals.
4. Expiatory theory of punishment :-
This theory is linked with the retributive theory and sometimes considered to be a
part of it.
Hegel and Kohler are the main supporters of this theory.
It is based on morals.
According to this theory, expiation or repentance (feel regret about something) by
offender itself is a punishment..
If the offender expiates or repents, he must be forgiven.
It was in existence or prevalent in ancient Indian criminal law.
Expiations were performed by way of penance, uttering mantras, fasting, self
immolations were performed by way of uttering mantras, fasting, self-immolation
(sacrifice) of even burning oneself to death.
This theory is now obsolete (disused/discarded) as at present the organization of
state, its functions, human habits, attitudes have all developed to a great extent.
According to Paton this theory is based on moral doctrines and therefore, it is
beyond the limits of modern law and jurisprudence.
5. Reformative theory of punishment :-
This theory is of recent origin. It owes its origin to the Italian school. This theory
points out that a crime is a disease, so proper care should be taken of those who
have committed a crime instead of awarding a severe punishment.
So, according to this theory the punishment should be curative, medicinal, clinical
and educative rather than inflicting of physical injury or pain upon the wrong doer.
This theory concentrates not on crime, but on the criminal, his personality and all
other related factors which led him to do wrong.
It is a general truth that nobody wants to be a criminal. This theory the subject of
punishment is to find out the cause, the reason which compelled an individual to
commit a crime and then try to eradicate the criminals tendency by providing
education to him.
This theory makes a study of the psychology of the criminal and take punishments
as a means to a social end.
Reason for the commission of crime are :-
1. Offences are committed under the influence motive upon the character.
2. The defective mental condition of the criminal is also a reason for the
commission of crime.
In other words, crime is the result of a disease and the personality of the
offender and considers him to be a patient who should be given a proper
treatment.
According to this theory, punishment is not an end in itself but as a means to an
end.
The purpose of the theory, the punishment should be to reform the criminal and to
make him a good citizen.
GO TO CONTENTS.
Explain : Secondary function of court. (Apr-2016).

Answer :
Refer :
http://www.shareyouressays.com/114761/difference-between-primary-and-
secondary-functions-of-courts-of-law-explained

GO TO CONTENTS.
Module-4) Ownership, Possession and Property :
4.1) Possession : Definition, concept and importance

4.2) Kinds of possession, Essentials of possession : Corpus Possessiones and
Animus Possidendi
4.3) Ownership : Definition, concept, kinds of ownership
4.4) Distinction between ownership and possession, Kinds of property
GO TO CONTENTS.
Explain in detail the juristic concept of possession with decided cases and its
essential elements. (Oct-2012, Apr-2013).
Explain in detail the meaning and concept of Possession. (Apr-2012, Mar2015).
Explain in detail the concept of possession and its essential elements with decided
case laws. (Mar-2014).
Discuss : Corpus Possessiones and Animus Possidendi.
Explain in detail the concept of ownership and state its kinds with decided case
laws. (Mar-2014, Apr-2016).
Explain in detail : Concept of ownership. (Apr-2012, Mar2015).
Discuss in detail : Distinction between ownership and possession.
Discuss in detail : Kinds of property.
GO TO CONTENTS.
MODULE-4 ANSWERS :
Explain in detail the juristic concept of possession with decided cases and its
essential elements. (Oct-2012, Apr-2013).
Explain in detail the meaning and concept of Possession. (Apr-2012, Mar2015).
Explain in detail the concept of possession and its essential elements with decided
case laws. (Mar-2014).
Discuss : Corpus Possessiones and Animus Possidendi.
Answer :
Refer :
http://www.srdlawnotes.com/2017/02/possession.html
http://kulprasadpandey.com.np/ownership-and-possession/
Intro :
Meaning:
"Possession" literary means physical control over a thing or an object. It
expresses the closest relation of fact that can exist between a thing and the
person, who possess it.
In law, possession means it includes not only physical control over a thing but
also an intention to exercise that physical control.
Example: A has an article in his hand. In other words, he is in possession of that
article. The person who is in possession is called a 'Possessor'.
In human life, consumption of material things is very essential and it would be
Impossible without the position of the material things. Therefore the concept of
possession is of utmost practical importance in human life.
Definition :
The concept of possession is though basic and essential in human life, it is a
difficult to define. There is no fixed or precise definition of possession because it is
legal as well as factual concept.
Supreme Court in Superintendent Remembrancer Legal Affairs vs Anil Kumar, AIR
1980 SC 52, held that
it is impossible to work out a completely logical and precise definition of
Possession uniformly applicable to all situation in the context of all the statutes.
Salmond said that in the whole of legal theory there is no conception more difficult
than that of possession. It is very difficult to define the term Possession. Some
Jurists have given different definitions.
John Salmond :
Salmond defines Possession as, "possession is the continuing exercise of a claim
to the Exclusive use of an object."
Savigny :
Savigny defines Possession as, "intention coupled with physical power to exclude
others from the use of material object.
Salmond criticized Savingy's definition and ground that Savingy committed an error
by including the element of physical power in his definition.
O.W. Holmes :
Holmes defines Possession as, "To gain Possession a man must stand in a certain
physical relation to the object and to the rest of the world, and must have
certain intent."
Maine:
Maine defines the possession as, "physical detention coupled with the intention
to hold the things detained as one's own.
Sir Frederick Pollock:
Sir Frederick Pollock defines Possession as, "In common speech a man is said to
possess to be in possession of anything of which he has the apparent control
from the use of which he has apparent power for excluding others."
Ihering:
The best among them is the definition given by Ihiring. According to him,
"whenever a person looked like an owner in relation to a thing, he had
possession of it unless Possession was denied to him by rules of law based on
practical convenience."
Importance of possession :
Possession is very important and the transfer of possession is one of the chief
methods of transferring ownership.
Salmond said that possession is of such efficacy that a possessor may in many
cases confer a good title on another, even though he has none himself.
Elements of Possession : corpus possessionis & animus possidendi :
From the above definitions we could see in that possession has two essentials -
1) Actual power over the object possessed. i.e. corpus possessionis and
2) Intention of the possessor to exclude any interference from others. i.e.
animus possidendi.
According to John Salmond, both corpus and animus must be present to constitute
Possession.
Ownership is a legal concept whereas Possession is factual as well as legal concept.
The term CORPUS and the term ANIMUS, both the terms borrowed from the Roman
Law.
Categories of Possession : Possession is divided into two categories.
a) Possession in fact and
b) Possession in law.
Possession in fact is actual or physical possession. It is physical relation to a thing.
Possession in law means possession in the eye of law. It means a possession
which is recognized and protected by law.
There is sometimes a discrepancy between possession in fact and position in law,

although usually possession exists both in fact and in law in the same person.
A person who is in de facto possession of a thing also comes to have de jure
possession.
Modes of acquiring possession : There are two modes of acquiring possession
i) Delivery and ii) Possession.
i) Delivery :
Delivery completes voluntary act from one person to another. The transferor
gives actual possession to the transferee.
It is usually a lawful mode of possession.
Delivery may be actual of constructive. In actual delivery the thing is physically
delivered.
ii) Taking :
Taking implies an Act exclusively on the part of the person who physically takes
the Possession.
It is acquisition of the Possession without the consent of previous Possessor.
Sometimes it is said to be unilateral act. Transferee acquires the possession
without the knowledge or consent of the former Possessor of the thing.
It is usually possessio-civilis. It may or may not be lawful. If it is lawful then it is
legal possession. i.e. possessio-juri.
Kinds of Possession :
The institution of property has indispensable relationship with the mankind. There
are two important rights related to property namely
i) ownership and ii) possession.
Possession is an evidence of ownership. It is very difficult conception of utmost
practical importance in legal theory.
Following are the important kinds of possession.
1) Corporeal Possession :
Those things, which are having physical or material existence, wherein direct
relationship with the thing, are possible.
for example, House has physical existence which can be perceived by our
senses. The possession in the house therefore is Corporeal Possession.
Therefore corporeal possession is the possession of material things, movable
as well as immovable such as the Car , book , pen, wristwatch, etc.
2) Incorporeal Possession :
It means Possession of immaterial or intangible things. These are the things,

which do not have physical existence and therefore cannot be perceived by our
senses. Therefore possession in respect of this thing is known as incorporeal
possession.
for example - Copyright, Trademark, Patent, Goodwill etc.
According to Salmond, corporeal possession is Possession of an object
whereas incorporeal possession is the possession of a right.
3) Mediate Possession :
It is the Possession of a thing through another, either through his friend, servant
for agent. As the thing remains, in possession with another, the possessor has
lesser degree of physical control over such thing.
Illustration :
a) 'X' has a car, which he leaves with his driver. The possession of the driver
will be immediate whereas the Possession of 'X' will be mediate.
b) 'A' purchased a house through his agent and the agent got the possession.
A's possession is said to be the mediate possession.
4) Immediate Possession :
It is also called as Direct Possession. Direct or primary possession by a person
over a particular object, which acquires or gets directly or personally. In
immediate possession, as the thing is in possession of the possessor directly, he
has higher degree of control over such thing. It means that there is no other
person holding the thing.
Illustration :
a) 'X' has a car and he keeps it in his garage, this constitutes immediate
possession.
b) 'A' purchased a house and takes Possession of the property it is called
direct or immediate Possession.
5) Constructive Possession :
Constructive possession is not actual possession it is a possession in law and
not possession in fact. According to Pollock and Wright, it is a possession which
arises only by the construction of law.
Example : The delivery of the keys of a building.
6) Adverse Possession :
It means holding the land on his own behalf of some other person. if adverse
possession continues peaceful and undisturbed for that number of years, he can
claim ownership and the true owner's right (ownership) gets extinguished.
7) De facto Possession :
De facto Possession exists where the thing is in the immediate occupancy of a

party. The person in de facto possession has the physical control of the thing to
the exclusion of others and has Animus and Corpus over the material object. De
facto possession may be described as actual Possession.
8) De jure Possession :
De jure possession can be described as posssession in law. De jure possession
exists when person claims a thing as his own in natural normal legal manner by
occupying a thing without any dispute as to his legal right to possess and enjoy
the thing.
Legal possession may exist with or without property in possession. In case of De
jure possession it is just possible that a man I have ceased to live in a house but
without intending and to abandon it for good as the owner of the house.
Why Law protects Possession ?
The possessor has better title against the whole world, except true owner. Even if
the possession is wrongful, the possessor if deprived of wrongfully, he is protected
by law providing for possessory remedy.
There are many reasons for the protection of possession
1) According to the philosophical School of jurists, possession is protected because
a man by taking possession of an object has brought it within the sphere of his will.
The freedom of the will is the essence of personality and has to be protected so
long as it does not conflict with the universal will which is the State.
As possession involves an extension of personality over the object, it is protected
by law. As the reputation of a person he is protected against defamatory attack,
his possession is protected as he has projected his Personality over the object
possession.
2) Possession is an Evidence of ownership,
Section 110 of Indian Evidence Act 1872- Provides ' when any question is
whether any person is owner of anything of which he is shown to be in
possession, the burden of proving that he is not owner is on the person who
affirm that he is not the owner.
3) The possession even if it is wrongful is a good title against the whole
world except the true owner.
4) Possession is protected for the preservation of peace :
It is the natural human Instinct that he does not easily part of with what he
possesses. The interference with the possession leads to violence. Thus the
protection is given to the Possession to aid criminal law and it prevents a breach
of peace.
5) Possession is protected as a part of law of tort. Law protects possession not only
from disturbance by force but from disturbance by fraud. The protection thus
afforded as a part of the law of tort.
Legal provisions :
6) Section 145 of CrPC deals with the dispute of immovable property to provide
speedy remedy for the prevention of breaches of peace out of such dispute.
The object of this section is to enable an executive Magistrate to intervene and
pass a temporary order in regard to the possession of the property in dispute, till
the competent civil court determines the right of the parties.
The executive Magistrate shall determine the possession of immovable property
on a particular date and issue an order declaring such party to be entitled to
Possession, thus restore to Possession to the party who was forcibly and
wrongfully dispossessed of.
7) Section 53a Transfer of Property :
Doctrine of part performance which provides, there is a contract of sale in
respect of immovable property where in transferor by writing, signed by him
agrees to transfer such immovable property and the transferee has taken the
Possession of the immovable property and continuous to be in possession of
immovable property and the transferee has done something in furtherance of
such transfer and ready and willing to perform transfers have done something
his part under the contract of transfer, then even though such contract is
required to be registered by any law and not registered in fact then also the
transferor id debarred from claiming any right against such transferee.
8) Section 47 sale of Goods Act:
right of the seller to lien. The seller if unpaid seller is and if the Possession is still
with the seller he can retain the goods.
9) Right of Bailee in contract of bailment:
Indian Contract Act 1872, Section. 170, 171. The Bailee too has a right to lien
the goods bailed to unless he is paid remuneration by Bailor till then he is
entitled to keep the position of the goods.
10) In offence of theft in IPC Section 378:
Possession is essential element. Even though the possession was wrongful and
the Possession of such thing is taken without the consent of the possessor with
dishonest intention
Case laws :
a) Elves v. Brigg Gas Co. 1886 Chancery Division.
Fact :
In this case the plaintiff was the owner of the land. He gave his land to
defendant Company on lease for the purpose of excavation and erection of
gas works thereon. During the course of excavation one of the man of the
defendants Company found a pre-historic boat buried 6 feet below the
surface.
Issue:
Issue before the Court was whether the boat belonged to the landlord or
lessee.
Held:
J. Chitty observed that the landlord was entitled to the boat against the
Company though it was discovered by the Company. It was observed that it
was immaterial that the landlord was not aware of the existence of the boat.
He was in possession of the ground not merely of the surface. Hence
everything that lay beneath the surface down to the center of the earth
consequently in possession of the boat. It did not matter that the plaintiff was
not aware of the existence of the boat.
b) South Staffordshire Waterworks Co. V. Sharman, 1896.
Fact:
In the instant case Plaintiff Company appointed defendant servant to clean out
a pond upon their land and in doing so he found certain gold ring at the
bottom of it. Dispute arose between plaintiff Company and the defendant
servant as to the possession of the gold ring.
Issue:
To whom the Gold ring belong?
Held:
The plaintiff Company was in first possession of the gold ring and is not the
defendant, who acquired no title to them. It was observed that the possession
of land carries with it in general possession of everything which is attached to
or under the land.
Conclusion:
Possession is the most basic relation between man and a thing.
Possession is prima facie a proof or an evidence of ownership.
There is no fixed or precise definition of possession because it is legal as well
factual concept.
The four essentials of possession are,
subject matter of possession,
physical control,
intention and
knowledge.
GO TO CONTENTS.
Explain in detail the concept of ownership and state its kinds with decided case
laws. (Mar-2014, Apr-2016).
Explain in detail : Concept of ownership. (Apr-2012, Mar2015).
Answer :
Refer :
Introduction :
The idea and concept of ownership developed slowly with the growth of civilization.
In primitive societies the only concept known to human mind was that of
possession. It was much later that the concept of ownership adopted.
So long as the people were wandering from place to place and had no settled place
of residence, they had no sense of ownership. The idea began to grow when they
started planting trees, cultivating lands and building their homes.
The transition from a pastoral to an agricultural economy helped the development
of the idea and concept of the ownership.
The normal case of ownership can be expected to exhibit the incidents as follows :
First, the owner will have a right to possess the thing which s/he owns.
Secondly, the owner normally has the right to use and enjoy the thing owned.
Thirdly, the owner has the right to consume, destroy or alienate the thing.
Fourthly, ownership has the characteristics of being indeterminate in duration.
Fifthly, ownership has a residuary character.
Meaning and definition of ownership :
The literal meaning of the term own is to have or hold a thing. The one who holds
a thing as his own is said to be the owner and has right of ownership ever it.
Thus in the non-legal sense ownership may be defined as the right of exclusive
control over and disposal of a thing at will.

In the legal sense the term ownership carries the meaning of right over a thing to
the exclusion of all other persons. This implies non-interference by others in the
exercise of this right and must be distinguished from mere holding of a thing in
ones possession.
Normally ownership implies,
a) the right to possess,
b) the right to use,
c) the right to manage,
d) the right to capital and
e) the right to income.
Definition of ownership : The concept of the ownership is one of the fundamental
juristic concept common to all system of law. Different writers have defined
ownership in different ways.
Austin defined ownership as
a right indefinite in point of user, unrestricted in point of disposition and
unlimited in point of duration.
Austins definition thus implies thee attributes viz.,
a) indefinite user,
b) unrestricted disposition and
c) unlimited duration.
Hollands definition : Austins definition of ownership has been followed by
Holland. He defines ownership as
plenary control over an object. According to him an owner has thee rights on
the subject owned :-
a) Possession
b) Enjoyment
c) Disposition
ownership vests in the owner a complex of rights which s/he exercises to the
exclusion of all others
Ownership in most comprehensive significance denotes the relation between
a person and any right that is vested in him.
Ownership in this wider sense extends to all classes of rights, whether
proprietary or personal, in rem or in personam, in re-propria or in re-aliena.
He adds that it applies not only to rights in the strict sense but also to
liberties, powers and immunities.
Salmonds definition thus points out two attributes of ownership :-
a) Ownership is a relation between a person and rights that is vested in
him;
b) Ownership is incorporeal (immaterial, having no material body or form).
For Salmon a man may own a copyright or a right of way in the same way as
s/he owns a piece of land because in all the cases s/he owns only a right and
not a thing.
Hohfield expresses a similar view (like that of Salmond) when he says
ownership is not a right but a bundle of rights, privileges, powers etc.
Duguit has defined,
Ownership is a relation between a person and a thing. On account of this
relation the person has the power of disposal, use and enjoyment of the thing.
Essentials of ownership :
i. ownership is indefinite in point of user. It is impossible to define or sum up
exhaustively the wide variety of ways in which the thing owned may be used by the
person entitled to its ownership.
ii. ownership is unrestricted in point of disposition. An owner can effectively dispose
of his property by a conveyance during his lifetime or by will after his death.
iii. The owner has a right to possess the thing which s/he owns.
iv. The owner has the right to exhaust the thing while using it, if the nature of the
thing owned is such.
v. Another essential of ownership is that it has a residuary character. An owner may
part with several rights in respect of the thing owned by him/her.
vi. Generally, the owner has the right to destroy or alienate the thing s/he owns.
Characteristics of ownership :
i. Ownership is absolute or restricted. It may be limited to a lesser or greater
extent, either voluntarily or under compulsion of law.
ii. Right of ownership may also be restricted national emergency.
iii. An owner has to pay taxes to the state and exercise of his right of ownership.
iv. An owner must not exercise his right of ownership in such a way as to infringe
the right of other owners.
v. An owner has not the freedom to dispose of his property in any way he likes.
S/he can not transfer the property to defraud his creditor.
vi. Infants and lunatics are under a disability in the eye of law because they can
neither understand the true nature of their acts nor the consequences.
vii. Ownership does not generally terminate with the death of the owner. It passes
to legal heirs in case of intestacy.
Nature of ownership :
a) Ownership is a right which comprises of powers, claims, privileges, etc.
b) Ownership is in respect of a thing which may be corporeal or incorporeal.
c) The rights relating to or in connection with ownership are subject to state
regulation i.e., can be limited or restricted by law.
d) Owner is he who is entitled to the residue of rights with respect to an object left
AFTER the limitation resulting from the voluntary acts of the owner (mortgage,
lease or hire) or those imposed by law are exhausted,
e) Ownership does not imply or indicate absolute or unlimited rights either
regarding use, disposal or duration.
The subject matter of ownership :
The prime subject matter of ownership consists of material objects such as land
and chattels.
But ownership is by no means limited to things of this category. A human beings
wealth may consist of such things as
interests in the land of others, debts due to him, shares in companies, patents,
designs, trademarks, copyrights and so on.
Classification of ownership : Kinds of ownership : Ownership may be of various
kinds. Broadly, it may be classified under the following heads :
I. Vested and Contingent ownership
II. Sole and Co-ownership
III. Corporeal and Incorporeal ownership
IV. Legal and Equitable ownership
V. Trust and Beneficial ownership
VI. Absolute and Limited ownership
I. Vested and Contingent ownership :
Ownership is either vested or contingent.
It is vested when the owners title already perfect,
it is contingent when his title is as yet imperfect, but is capable of becoming
perfect on the fulfillment of some condition.
In the former case the ownership is absolute; in the latter it is merely
conditional. Once it is matured it automatically converts into vested type of

ownership.
II. Sole and Co-ownership :
Sole ownership indicates the singular control over the property. In this concept
an individual only entertains all sorts of rights of ownership over his owned
property.
Co-ownership is a concept of plural or multiple owners holding right over the
particular property. A single person cannot entertain the rights of ownership in
group.
III. Corporeal and Incorporeal ownership :
Ownership over any material object which can be movable or immovable but
tangible objects is called corporeal ownership.
Incorporeal Ownership means ownership over the intangible things such as right
over patent, design, trademark, copyright etc.
IV. Legal and Equitable ownership :
The distinct between legal and equitable ownership is limited in English common
law only.
Legal ownership is a legally defined and protected property. Generally, ownership
is understood as a legal ownership. In other words, legal ownership is that which
has its origin in the rules of the common law.
Equity law granted rights were the concept of equitable ownership. Equity law is
a concept of natural law philosophy. It does have no practicability to rest of the
world.
V. Trust and Beneficial ownership :
In trust ownership one should use the right to favor other. This kind of
ownerships looks like ceremonial having no powers.
Beneficial ownership is relating to rights over the trust to use the authority in
favor of the trust itself. This type of ownership is taken as a real ownership
because it is powerful.
VI.Absolute and Limited ownership :
Absolute ownership is a concept of right having no any conditions. Particular
property is totally under the control of owner.
Limited ownership is a conditional approach of the rights over the property. It is
basically based on contract law or dependency and various defined limitations
towards the entertainment of right relating to ownership.
GO TO CONTENTS.
Discuss in detail : Distinction between ownership and possession.

Answer :
Refer :
According to Ihering,
Possession is the objective realization of ownership.
Possession is the external realization of ownership. It is a valuable piece of
evidence to show the existence of ownership.
Possession is in fact what ownership is in right.
Possession is the de facto exercise of a claim while ownership is the de jure
recognition of that claim.
Possession is the de facto counterpart of ownership. It is the external form in which
rightful claims normally manifest themselves.
For example, a rented house is actually in possession of the tenant but the
ownership of it is vested in the landlord.
ownership in its widest sense implies the relation between a person and any right
that is vested in him. Possession is in fact what ownership is in right.
Bringing out distinction between possession and ownership Salmond pointed out
that
a person is said to be the owner of a thing when his claim receives the
recognition and protection from the law of the state,
but possession may be exercised and realized even without such recognition or
protection from the law.
Thus ownership has the guarantee of law but possession has some measure of
security and value from the facts, without any possibility of support from law.
According to Austin,
ownership in its wider sense is a right indefinite in point of user, unrestricted in
point of disposition and unlimited in point of duration.
The right of alienation of property is a necessary incident to the right of ownership,
According to Pollock,
Ownership may be described as the entirety of the powers of use and disposal
allowed by law. The owner of a thing is not necessarily the person who at a given
time has the whole power of use and disposal; very often, there is no such person.
We must look for the person having the residue of all such power when we have
accounted for every detached and limited portion of it, and s/he will be the owner
even if the immediate power or control and user are elsewhere.
Possession and ownership differ in their mode of acquisition.
The transfer of possession is comparatively easier and less technical but the
transfer of ownership in most cases involves a technical process of convincing.
Ownership Possession
1 Ownership is an absolute authority Possession is relative authority

over the property. holding physical control over the
property.
2 Ownership is perfectly legal right. Possession is possessory right only.

It shows legal situation. It shows real situation.
3 Ownership is a de jure concept. Possession is a de facto concept.
4 Ownership right is wider concept. Possession is a right of consumption

only.
5 Ownership holds unlimited and Possession right is limited concept of

uncontrolled rights. right.
6 Transfer of ownership is not easy Possession is comparatively easy and

and it needs to legal or formal practically no need to register
procedures, prerequisites of and such formalities.
registration.
7 Ownership has no technical Possession faces the technical

obstructions to transfer. obstacles for transfer.
8 Ownership is a union of ownership Possession is a single concept giving

and possession. no right of ownership.
9 Ownership only does not carry Possession may create ground for the
practical use in the absence of ownership as well.
possession.
10 Ownership does not get priority if Possession is the real and basis of
there is an equal right over the priority for the situation of equal
same property. rights.
Relation between Possession and Ownership :

Speaking generally, ownership and possession have the same subject matter.
Possession is an external evidence of ownership.
A person in possession of a thing may be presumed to be the owner of it.
The person in possession need not prove his ownership; instead, the burden of
disproving ownership of the possessor is on the person who disputes his ownership.
A long continuous and uninterrupted possession is an effective method of
realization of ownership.
According to Salmond, the subject matter of possession and ownership is more or
less the same,
a thing which may be owned, may also be possessed.
Likewise, a thing which may be taken into possession may also be owned.
Salmond further pointed out that the law of prescription determines the process
by which through the influence of time,
possession without title ripens into ownership and
ownership without possession withers away and dies.
Sir Henry Maine suggested that
historically, the concept of possession is prior to that of ownership. In fact, right
of possession has evolved out the right of ownership.
Possession is the de facto exercise of a claim while
ownership is the de jure recognition of it.
Possession is the guarantee of fact whereas ownership is the guarantee of law.
A claim to possession is maintained by ones own self asserting will
but a claim to ownership is legally protected by the will of the State.
Ihring observed that
possession is the objective realization of ownership.
Possession in fact, is what ownership is in right.
The distinction between possession and ownership on the basis of fact and right
is not tenable. Fact and right are not quite separate and independent ideas. One
cannot exist without the other.
Conclusion :
We can say that ownership is strictly a legal concept and possession is non-legal
and pre-legal concept.
Ownership and possession are different basically. At the same time they are closely
co-related with each other.
GO TO CONTENTS.
Discuss in detail : Kinds of property.

Answer :
Refer :

GO TO CONTENTS.
*** End-of-Compilation ***

Source : Public domain print/ internet contents.
URLs of some such resources are listed herein above.
Credits/ copyrights duly acknowledged.
Suggested Reading :
Bodenheimer Jurisprudence - The Philosophy and Method of Law (1996), Universal.
Delhi.
Fitrgerald, (ed) Salmond on Jurisprudence, Tripathi, Bombay.
W. Friedrnann, Legal Theory, Universal, Delhi,
V. D. Mahajan, Jurisprudence and Legal Theory, Eastern, Lucknow M.D.A. Freeman (ed),
Lloyd's Introduction to Jurisprudence, Sweet & Maxwell Paton G. W., Jurisprudence
Oxford, ELBS
H.L.A. Hart the concept of law, Oxford, ELBS
Roscoe pond introduction to the philosophy of Law, Universal Delhi
Dias, Jurisprudence, Adithya Books New Delhi.
Dhyani S.N. Jurisprudence A Study of Indian Legal Theory, Metropolitan, New Delhi.

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Module-1) Introduction and sources of Law.

Module-2) Schools of Jurisprudence.

Module-3) Legal Rights, duties, persons, Titles, liabilities etc.

Module-4) Ownership, Possession and Property.

OBJECTIVE OF THE COURSE :

Module-1) Introduction and sources of Law :

1.1) Meaning of the term jurisprudence, Importance

Explain in detail the concept of "Jurisprudence" and its importance. (Apr-2012,

Robert Keeton (born 16-Dec-1919) considered Jurisprudence as the study and

flexibility results into hardship in several cases.

Explain in detail : Questions of fact and law. (Apr-2012).

decide such issues.

Explain the relation between Law and Morality.

Difference Between Law And Morals :

2 Morals are mainly concerned Law is concerned with the external

4 The observance of morals is a The observance of law is individuals

5 Morals are considered to be Law is concerned only with a particular

Explain the relationship between law and justice. (Mar-2014).

Views of Theorists on the Importance of Justice-

represents wisdom of the community.

Discuss in detail : Sources of law: Legislation, custom, Precedents: concept of stare

also gives importance to law with relation to society.

1. Antiquity :- It means oldness of the customs. The customs must be ancient.

Custom is given by people in general.

Explain : Question of Judicial discretion. (Apr-2016).

is different in different men; it is casual and depends upon constitution, temper,

have been avoided by choosing another course or action.

Explain in detail : Ratio Decidendi. (Apr-2012, Mar-2014, Mar2015, Apr-2016).

1. The principle or rule of law on which a courts decision is founded.

Module-2) Schools of Jurisprudence :

Explain in detail the different schools of jurisprudence. (Apr-2012, Oct-2012).

Legal formalism is both a positive or descriptive theory of adjudication and a

of jurisprudential schools today, including critical legal studies, feminist legal

wellbeing and mental health.

Discuss in detail : Analytical positivism : Bentham and Austin's view.

laws are commands of human beings

decided, practiced, tolerated, etc.)

Jeremy Bentham (1747-1832) was an English philosopher, jurist, and social

Theory of Law given by Austin :

punishment or other adverse consequences ("sanctions") in the event of non-

Explain in detail the theory of Law given by Salmond. (Apr-2012, Apr-2013).

Discuss in detail : Natural Law School.

force they have.

Discuss in detail : Historical law school

According to Savigny customs are more important than legislation because

Discuss in detail : Legal realism and Sociological law School.

social engineering; as an elimination of friction and precluding of waste, so far as

Explain in detail the theory of law given by Kelson. (Mar-2014).

made by human beings and that there is no inherent or necessary connection

presumably, obedience to the law comes with a different feeling.

standards as guiding their behaviour in addition to also guiding the behaviour of

Secondary modern age legal

1 Rule of Uncertainty : No legislature : there is a Parliament/

2 Rule of Static character : No executive There is an Executive to

3 Rule of Inefficiency : No court : there There are courts which

Secondary modern age legal

in deciding the disputes.

Module-3) Legal Rights, duties, persons, Titles, liabilities etc. :

Discuss : Liabilities : conditions for imposing liabilities, Mens rea, Intention,

of its decrees under International Law.

defamer. This right of damages is called secondary right or remedial right.

208 Legal Methods & Legal Theories

208 Legal Methods & Legal Theories

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