SUBJECT : JURISPRUDENCE

SUBJECT CODE : TA1B

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 SYLLABUS
TA1B - JURISPRUDENCE
Unit - I

Nature and definition of Jurisprudence.

Unit - II

The various schools of jurisprudence and their methodology.

Unit - III

Nature and definitions of law - Different kinds, and classification, Imperative theory of
law - Constitutional law and International law - their nature.

Unit - IV

The concept of State and Sovereignty - a general outline.

Unit - V

Sources of law - Legislation, Precedent and Custom.

Unit - VI

Administration of Justice.

Unit - VII

Juristic Concepts of Rights and Duties, Title, Persons, Liability, Ownership, Possession,
Property and Obligation.

Books for Reference:

1. Salmond : Jurisprudence
2. Paton : Jurisprudence.
3. Monica David : Jurisprudence.
4. G.C.V. Subba Rao : Jurisprudence.
5. Avatar Singh : Jurisprudence
6. Mahajan : Jurisprudence
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 JURISPRUDENCE

GENERAL

DEFINITION OF JURISPRUDENCE

The English word "Jurisprudence" has been taken from a Latin word "Jurisprudentia", which
consists of two words, 'Juris' and 'prudentia'. 'Juris' means law and 'Prudentia' means
knowledge. Jurisprudence, therefore, literally means knowledge of law and its application. It is
difficult to give a singular definition of the term. Since the growth and development of law in
different countries has been under different social and political conditions, the different jurists
have given different definitions according to their own notion of the subject-matter and so it is not
possible to give a universal and uniform definition of Jurisprudence. So the different jurists have
defined this term in different ways-

Ulpian: According to Ulpian "Jurisprudence is the knowledge of things human and divine, the
science of the just and unjust". The definition given by Ulpian is wide and broad enough
because it includes the term 'Dharma' under Hindu Jurisprudence. It also covers the province of
religion, ethics and philosophy.

Criticism: The above definition is wide and broad enough because it includes the term
'Dharma' under Hindu Jurisprudence. It also covers the province of religion, ethics and
philosophy. The modern jurisprudence does not study the spiritual salvation. It is now-a-days
confined only to what Hindu jurists described as 'Vyavahara' which means those rules that
determines the judicial proceedings or controversies.

Prof. Gray: According to Prof. Gray "Jurisprudence is the science of law, the statement and
systematic arrangement of the rules followed by the courts and the principles involved in those
rules." Prof. Gray is of the opinion that jurisprudence deals with that kind of law which consists
of rules enforced by courts while administering justice. In other words, the laws of the jurists
deal with man and seek to regulate external human conduct in the society. It does not concern
itself with the inner beliefs of man imposed in religious laws, which derive their authority from
superhuman source which we call 'God'. The sanction for their enforcement is spiritual reward
or curse according to man's deeds.

Holland: According to Holland "Jurisprudence is the formal science of positive law." It is

wrongly applied to actual systems of law, or to current views of laws, or to suggestions for its
amendment, but is the name of a science. The science is a formal, or analytical, rather than a
material one. It is the science of actual or positive law. The essential ingredients of his definition
of jurisprudence are as under-

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 1. Formal
2. Science
3. Positive Law.

Holland's definition of jurisprudence has been criticized by various jurists like Gray Dr. Jenks
and Prof. Platt.According to Gray "Jurisprudence is, in truth, no more a formal science than
physiology, so the acts and forbearances of men and the events which happen to them are the
subject-matter of jurisprudence and physiology could as well dispense with the former as
jurisprudence with the latter."

Salmond: Salmond has defined jurisprudence in two different senses-

1. In Wider (Generic) Sense: According to Salmond, "Jurisprudence in wider sense

means the science of civil law." Salmond says that in a generic and primary sense
jurisprudence includes the entire body of legal doctrine. Since jurisprudence is the knowledge
of law, from this point of view it includes the entire book of laws.
2. Narrow (Specific) Sense: Salmond distinguishes jurisprudence in its generic sense, as
including the entire body of legal doctrine, from jurisprudence in a more specific sense, in
which it means a particular department of such doctrine exclusively. He says that in its
limited significance it may be called theoretical or general jurisprudence to distinguish it
from the more practical and special departments of legal study. In this sense "Jurisprudence
is the science of the first principles of civil law."

The words which are used by Salmond in his definitions may be explained as under-
1. Law: According to Salmond, "Law is the body of principles recognized and applied by
the state in the administration of justice."
2. Civil Law: The term 'civil law' is derived from the Latin word "Civitas" which means
State. Thus, civil law means law made by state. It means the law of the land as opposed to
other bodies of rules to which the name of law has been extended by analogy.
3. Science: According to Salmond, if we use the term science in its widest permissible
sense, as including the systematized knowledge of any subject of intellectual inquiry,
jurisprudence may be defined as the science of civil law. It is a science as distinguished
from arts and indicates in its widest sense all those subjects which directly or indirectly treat
of the science of law. Salmond says that as the 'science of law' there may be three kinds of
jurisprudence-
a. Expository or systematic jurisprudence, which deals with the contents of an actual legal
system, as existing at any time whether past or present.
b. Legal history, which is concerned with the legal system in its process of historical
development.

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 c. The science of legislation, the purpose of which is to set forth law as it ought to be. It
deals with the ideal future of the legal system and the purpose which it may serve.

Austin: According to Austin "Jurisprudence is the Philosophy of Positive Law." He was the
first jurist to make jurisprudence as a science. By the term "Positive Law" he means 'jus
positivum', that is law laid down by a political superior for commanding obedience from his
subjects.
Austin divides jurisprudence into two parts, namely-
(i) General jurisprudence; and
(ii) Particular jurisprdence.
By "General jurisprudence", he meant 'the science concerned with exposition of the principles of
nations and distinctions which are common to all the systems of law' whereas Particular
Jurisprudence consisted of the science of any such system of positive law as now obtains or once
actually obtained in specifically determined nation.

Allen: According to Dr. Allen "Jurisprudence is the scientific synthesis of the essential
principles of law".

Paton: According to Paton "Jurisprudence is a particular method of the study not of the law of one
particular country but of the general notions of law itself." Paton is of the opinion that
jurisprudence studies the basic or fundamental principles or general notions of law itself.

Conclusion: On the basis of the above description we can say that Salmond's statement that
'jurisprudence is the science of the first principles, of civil law', appears to be more sound than
any other definitions because in fact we study the basic principles of law in jurisprudence and
not the law of any particular country.

NATURE AND SCOPE OF JURISPRUDENCE

Nature: Jurisprudence in its nature is entirely a different subject from other social sciences. The
reason for this is that it is not codified but a growing and dynamic subject having no limitation of
itself. Every jurist does not base his study on the rules made but tries to understand their utility
after due deliberation. So it can be said that Jurisprudence has no limited scope being a growing
subject. There is a difference of opinion about the nature of jurisprudence. It is called both Art and
Science. But to call it science would be more proper and useful. The reason for this is that just as
in science we draw conclusions after making a systematic study by inventing new methods,
Jurisprudence is concerned with the fundamental principles of law and systematic and scientific
study of their methods.

Scope: Jurisprudence includes all concepts of human order and conduct in State and Society.

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 According to Justice P.B. Mukherjee, "Jurisprudence is both an intellectual and idealistic
abstraction as well as behavioural study of man in society. It includes political, social,
economic and cultural ideas. It covers the study of man in relation to State and Society."
Salmond has also opined that "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."
This makes the distinction between law and Jurisprudence amply clear. Thus, whereas in law we
look for the rules relevant to the given situation, in jurisprudence we ask what is for a rule to be a
legal rule, and what distinguishes law from morality, etiquette and other related phenomenon.
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.

Contents of Jurisprudence: The contents of jurisprudence are-

1. Sources: 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.
Therefore, it obviously forms the contents of jurisprudence. Subject such as custom,
legislation, precedent as a source 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.

2. Legal Concepts: Jurisprudence includes the analysis of legal concepts such as rights,
titles,property, ownership, possession, obligations, acts, negligence, legal personality and
the related issues. The study of these abstract legal concepts furnishes a background for
better understanding of (aw in its various forms.
3. 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.

Utility I Importance of Jurisprudence: Salmond opines that jurisprudence has its own
intrinsic interest like any other subject of serious scholarship. Just as a mathematician
investigates the number theory not with the aim of seeing his findings put to practical use but by
reason of the fascination which it holds for him, likewise the writer on jurisprudence may be
impelled to his subject by its intrinsic interest. The legal researches on jurisprudence may well
have their effect on contemporary socio-political thought and at the same time may themselves
be influenced by these ideologies.

Practical Applicability: Jurisprudence also has its practical applicability. It seeks to

rationalize the concepts of law which enables us to solve the different problems involving

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 intricateness of law. In other words, it serves to render the complexities of law more manageable
and rational and in this way theory can help to improve practice in the seats of law.

Educational Value: Jurisprudence has great educational value. The logical analysis of legal
concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in
shading aside their rigidity and formalism and trains them to concentrate or social realities and the
functional aspects of law. It is not the form of law but the social function of law which has
relevance in modern jurisprudence. Law has to take the needs of society and also of the
advances in related and relevant disciplines such as sociology, economics, philosophy etc. The
proper understanding of law of contract may perhaps require some knowledge of economics
and economic theory or a proper grasp of criminal law may need some knowledge of criminology
and perhaps also of sociology.

Holland: Commenting on the significance and utility of jurisprudence, Holland observed,

"The ever renewed complexity of human relations calls for an increasing complexity of legal
details, till a merely empirical knowledge of law becomes impossible." Thus, jurisprudence
throws light on the basic ideas and the fundamental principles of law in a given society. This is
why it has been characterized as "the eye of law" by some jurists. Jurisprudence helps the judges
and the lawyers in ascertaining the true meaning of the laws passed by the legislatures by
4
providing the rules of interpretation. It also furnishes them an opportunity to pinpoint the
lacunae, short-comings and defects in the laws framed by the legislature and remedy them
through their judicial interpretation. The study of jurisprudence helps in rationalizing the
thinking of the students and prepares them for an upright civil life. The knowledge of law and
legal precepts also helps them to face every exigency of human affairs boldly and courageously.
Jurisprudence may also be helpful to legislators who playa crucial role in the process of law-
making. The study of jurisprudence may familiarize them with technicalities of law and legal
precepts thus making their job fairly easy as also interesting. The utility of jurisprudence
should be tested in the light of its functional role and in the context of the prevailing socio-
economic and political philosophies of the time, place and circumstances. The law should
serve the purpose of 'social engineering' by preserving societal values and eliminating
conflicting interests of individuals in the society.

Jurisprudence is the Eye of Law: On account of the importance of jurisprudence in the field
of law is called "the eye of law". The eyes are one of the most important parts of human body.
Almonds all human activities and the movements of body are possible only through them.
Unless man can see things properly, he cannot do any work. The reason of calling jurisprudence
the 'eye of law' is that jurisprudence functions for law in the same manner as the eyes do in human
body.

The main function of jurisprudence is to study the origin of law, its development and its

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 contribution towards society. Law is the only nearest and important aspect in the absence of
which the existence of a peaceful and organised society cannot be imagined. Laws are the basis
of all nation-activities. The proper existence of State is in obedience of personal rights and
liabilities of people and the conduct of national activities depends on the existence of solid and
perfect law. The matters relating to birth, marriages, death, succession etc., are equally controlled
through laws. Hence it is essential to know the correct basic principles of law which are
contained only in the jurisprudence. It is necessary that the people should have a sound
knowledge of law which is possible only with the help of jurisprudence. Therefore,
jurisprudence, having so much importance for the society, has rightly been called the eye of law.

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 UNIT- 1

Jurisprudence in its nature is entirely a difference subject from other social science. The
reason for this is that it is not codified but a growing and dynamic subject having no limitation
on itself. Its inquiry system is of different status from other subjects. Every jurist does not base
his study on the rules made but tries to understand their utility after due deliberation Thus the
jurisprudence has no limited scope being a growing subject. There is difference of opinion about
the nature of jurisprudence. It is called both art and science. But to call it science would be
more proper and useful. The reasons for this is that just as in science we draw conclusions after
Making a systematic study by investing new methods. In the same way jurisprudence is
concerned with the fundamental principles of law systematic and scientific study their methods.
Scope of Jurisprudence:- According to justice P.B.Mukherjee: ,” Jurisprudence is both an
intellectual and idealistic abstraction as well as behavioural 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, and investigation an
abstract, general and theoretical nature 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.

CONTENTS OF JURISPRUDENCE:-
The following are the contents of jurisprudence:-

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i) Sources 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 equally 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 analysing legal concepts and
effort should be made to present them in the background of social developments and changing
economic and political attitudes.

SIGNIFICANCE AND UTILITY OF JURISPRUDENCE

It is often said that jurisprudence being an abstract and theoretical subject, is not of any practical
use. But it is not correct to say so. Its utility is as under:-
1. Salmond pointed out that jurisprudence has its own intrinsic interest like and other
subject of serious scholarship, likewise the writer on jurisprudence may be impelled to his
subject by its intrinsic interest. The legal researches on jurisprudence may well have their effect
on contemporary socio-political thought and at the same time may themselves be influenced by
these ideologies.
2. Jurisprudence also has its practical applicability. In other words it serves to render the
complexities of law more manageable and rational and in this way theory can help to improve
practice in the seats of law.
3. Jurisprudence has great educational value. The logical analysis of legal concepts widens
the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their

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rigidity and formalism and trains them to concentrate or social realities and the functional aspects
of law. It is not the form of law but the social function of law which has relevance in modern
jurisprudence. 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.
4. Commenting on the significance and utility of jurisprudence: Holland observed, “ the
ever renewed complexity of human relations call for an increasing complexity of legal details,
till a merely empirical knowledge of law becomes impossible.” Thus jurisprudence throws light
on the basic ideas and the fundamental principles of law in a given society. It is the why it has
been characterized as “The eye of law.”
5. Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the
laws passed by the legislature by providing that the interpretation of statues.
6. The study of jurisprudence helps in rationalizing the thinking the students and prepares
them for an upright civil life. The knowledge of law and legal precepts also helps them to face
every exigency of human affairs boldly and courageously.
7. Jurisprudence may also be helpful of legislators who play a crucial role in the process of
law-making. The study of jurisprudence may familiarize them with technicalities of law and
legal precepts thus making their job fairly easy as also interesting.
According to Dias the study of jurisprudence provides an opportunity for the lawyer to bring
theory and life into focus for it concerns human thought in relation to social existence. The law
should serve the purpose of social-engineering by preserving societal values and eliminating
conflicting interests of individuals in the society.

JURISPRUDENCE IS THE EYE OF LAW: - On account of importance of jurisprudence in

the field of law it is called, “The eye of Law”. The eyes are one of the most important parts of
human body. Almost all human activities and the movements of body are possible only through
them. Unless man can see anything properly, he cannot do any work. The reason of calling
jurisprudence the ‘the eye of law’ is that jurisprudence functions for law in the same manner as
the eyes do in human body. For example- the interpretation of law is a very difficult task; It

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cannot be done without the help of jurisprudence. ‘PATON’ in this connection says that,”
Jurisprudence is a particular method of study, not the law of one particular county but of the
general notions of law itself.’ Whenever any complicated problem regarding law like:-
1 How and when the law developed. 2 What is its object? 3 Whether the law was made by people
or it was due to the inspiration of some Divine force. 4 Whether the law is a command of a
sovereign or it is a result of gradual development of civilization in society. The main function of
jurisprudence is to study the origin of law, its development and its contribution towards society.
The matters to birth, marriages, death, succession etc., are equally controlled through laws. 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. Therefore,
jurisprudence, having so much importance for the society, has rightly been called the eye of law
Nature and Scope of Jurisprudence
What is Jurisprudence?
There is no universal or uniform definition of Jurisprudence since people have different
ideologies and notions throughout the world. It is a very vast subject. When an author talks about
political conditions of his society, it reflects that condition of law prevailing at that time in that
particular society. It is believed that Romans were the first who started to study what is law.
Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.
-Most of our law has been taken from Common Law System.
-Bentham is known as Father of Jurisprudence. Austin took his work further.
Bentham was the first one to analyze what is law. He divided his study into two parts:
1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.
2. Examination of Law as it ought to be- Censorial Approach- Morality of Law.
However, Austin stuck to the idea that law is command of sovereign. The structure of English
Legal System remained with the formal analysis of law (Expositorial) and never became what it
ought to be (Censorial). J. Stone also tried to define Jurisprudence. He said that it is a lawyer’s

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extraversion. He further said that it is a lawyer’s examination of the percept, ideas and
techniques of law in the light derived from present knowledge in disciplines other than the law.
Thus, we see that there can be no goodness or badness in law. Law is made by the State so there
could be nothing good or bad about it. Jurisprudence is nothing but the science of law.
Definitions by:
1. Austin
2. Holland
3. Salmond
4. Keeton
5. Pound
6. Dias and Hughes
Austin- He said that “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.
This has two aspects attached to it:
1. General Jurisprudence- It includes such subjects or ends of law as are common to all system.
2. Particular Jurisprudence- It is the science of any actual system of law or any portion of it.
Basically, in essence they are same but in scope they are different.
Salmond’s Criticism of Austin
He said that for a concept to fall within the category of ‘General Jurisprudence’, it should be
common in various systems of law. This is not always true as there could be concepts that fall in
neither of the two categories.
Holland’s Criticism of Austin
He said that it is only the material which is particular and not the science itself.
Holland’s Definition- Jurisprudence means the formal science of positive laws. It is an
analytical science rather than a material science.
1. He defined the term positive law. He said that Positive Law means the general rule of external
human action enforced by a sovereign political authority.
2. We can see that, he simply added the word ‘formal’ in Austin’s definition. Formal here means
that we study only the form and not the essence. We study only the external features and do not

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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.
3. 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.
4. 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.
5. 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.
6. 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.
7. This definition has been criticized on the ground that this definition is concerned only with the
form and not the intricacies.
Salmond- He 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:
1. Analytical, Expository or Systematic- It deals with the contents of an actual legal system
existing at any time, past or the present.
2. Historical- It is concerned with the legal history and its development
3. 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.

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Criticism of Salmond- Critics says that it is not an accurate definition. Salmond only gave the
structure and failed to provide any clarity of thought.
Keeton- He 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.
Roscoe Pound- He 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.
Dias and Hughes- They believed Jurisprudence as any thought or writing about law rather than
a technical exposition of a branch of law itself. Thus, we can safely say that Jurisprudence is the
study of fundamental legal principles
Scope of Jurisprudence-
After reading all the above mentioned definitions, we would find that Austin was the only
one who tried to limit the scope of jurisprudence. He tried to segregate morals and theology from
the study of jurisprudence However, the study of jurisprudence cannot be circumscribed because
it includes all human conduct in the State and the Society.
Approaches to the study of Jurisprudence- There are two ways
1. Empirical-Facts to Generalization.
2. A Priori- Start with Generalization in light of which the facts are examined.
Significance and Utility of the Study of Jurisprudence
1. This subject has its own intrinsic interest and value because this is a subject of serious
scholarship and research; researchers 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. It is the belief of this subject that the theory can help to
improve 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 lawyer’s occupational view of formalism which leads to excessive concentration on

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legal rules for their own sake and disregard of the social function of the law.
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 if not forward, at least sideways and around them
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. It trains the critical faculties of the mind of the students so that they can dictate 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 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’.
Relationship of Jurisprudence with other Social Sciences
1. Sociology and Jurisprudence- There is a branch called as Sociological Jurisprudence. This
branch is based on social theories. It is essentially concerned with the influence of law on the
society at large particularly when we talk about social welfare. The approach from sociological
perspective towards law is different from a lawyer’s perspective. The study of sociology has

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helped Jurisprudence in its approach. Behind all legal aspects, there is always something social.
However, Sociology of Law is different from Sociological Jurisprudence.
2. Jurisprudence and Psychology- No human science can be described properly without a
thorough knowledge of Human Mind. Hence, Psychology has a close connection with
Jurisprudence. Relationship of Psychology and Law is established in the branch of
Criminological Jurisprudence. Both psychology and jurisprudence are interested in solving
questions such as motive behind a crime, criminal personality, reasons for crime etc.
3. Jurisprudence and Ethics- Ethics has been defined as the science of Human Conduct. It
strives for ideal Human Behaviour. This is how Ethics and Jurisprudence are interconnected:
a. Ideal Moral Code- This could be found in relation to Natural Law.
b. Positive Moral Code- This could be found in relation to Law as the Command of the
Sovereign.
c. Ethics is concerned with good human conduct in the light of public opinion.
d. Jurisprudence is related with Positive Morality in so far as law is the instrument to assert
positive ethics.
e. Jurisprudence believes that Legislations must be based on ethical principles. It is not to be
divorced from Human principles.
f. Ethics believes that No law is good unless it is based on sound principles of human value.
g. A Jurist should be adept in this science because unless he studies ethics, he won’t be able to
criticize the law.
h. However, Austin disagreed with this relationship.
4. Jurisprudence and Economics- Economics studies man’s efforts in satisfying his wants and
producing and distributing wealth. Both Jurisprudence and Economics are sciences and both aim
to regulate lives of the people. Both of them try to develop the society and improve life of an
individual. Karl Marx was a pioneer in this regard.
5. Jurisprudence and History- History studies past events. Development of Law for
administration of justice becomes sound if we know the history and background of legislations
and the way law has evolved. The branch is known as Historical Jurisprudence.
6. Jurisprudence and Politics- In a politically organized society, there are regulations and laws

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which lay down authoritatively what a man may and may not do. Thus, there is a deep connected
between politics and Jurisprudence.
Synthetic Jurisprudence
The necessity for synthetic jurispurdence arises from the fact that it is necessary to
determine the truth from all aspects and from diffferent angles. Analytical jurisprudence, studied
separately, does not give anuthiong more than an understaning of the leaal concepts as they
prevail in varuous legal systems. This in itself is useful but we cannot stop after merely analysing
the problem. We will in a better position if we discuss the historical aspets of the legl ideas,
problems or principles and go furhter in the light of philosophical norms and sociological
requirments, the historicl jurist lay empasis on historical jurisprudence and reuse to recognise the
other branches of jurisprudecne. Knowledge is a syntheitc whole and cannot be divided into
watertight compartments. It is our duty to amalgamate half-truths in order to from the whole
truth. Synthesis enables us to reconcile the conflicting theories. In synthetic jurisprudence, we
study the various topics and theories from the point of view of synthesis. We analyse, we
retrospect, we compare, we philosophise, we socialise and we synthesise. The fruits of synthesis
are well-balanced and well-disgested truths. The advocates of synthetic jurisprudence consider
jurisprudence as a study of fundamental leagl principles, including their historical, philosophical,
scientfic and sociological basis and including an analusis of legal concepts. Theu pont out that
jurisprudence is history it is philosophy it is a science and it is concerned with altruistic
utilitarianism.

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 UNIT- 2

SCHOOLS OF JURISPRUDENCE

Bentham: Austin is considered to be the father of analytical or positivist thought. However,

Jeremy Bentham whose many works have lately come to light appears to be the founder of this
approach. Austin owes much to Bentham and on many points his propositions are not more
than a 'paraphrasing of Bentham's theory. Jeremy Bentham (1748-1832) heralded a new era in
the history of legal thought. He laid the foundation of positivism in the modern sense of the term.
Bentham's Definition of Law: He defined law as follows – "A law may be defined as an
assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state
concerning the conduct to be observed in a certain case by a certain person or class of persons,
who in the case in question are or are supposed to be subject to his power: such volition trusting
for its accomplishment to the expectation of certain events which it is intended such
declaration should upon occasion be a means of bringing to pass, and the prospect of which it
is intended should act as a motive upon those whose conduct is in question." He ana lysed rights
and duties which were adopted and improved upon by late jurists like Austin and by many,
even in the 20th century. The purpose of law is to bring pleasure and avoid pain. Pleasure and
pain are the ultimate standards on which a law should be judged. All considerations of justice

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 and morality disappear from this approach. For Bentham the right relationship between
positive law and morality or moral criticism was expressed in the maxim" 'Obey punctually
censure freely.'

Bentham's Contribution: Bentham's contribution to legal theory is the epoch making

transition from the peculiar brand of natural law doctrine in the work of Blackstone to a rigorous
positivism. If represents one of the major developments in the history of modern legal theory.
He gave new directions for law making and legal research. "With Bentham came the advent of
legal positivism and with it the establishment of legal theory as a science of investigation as
distinct from the art of rational conjecture. Bentham laid the foundations of this new
approach, but, far from containing the solution to problems involving the nature of positive law,
his work was only the beginning of a very long and varied series of debates, which are still going
on today.

Criticism Against Bentham: Bentham's theory has its weaknesses. "The main weakness of
Bentham's work" says Friedman, "derives from two shortcomings". One is Bentham's abstract
and doctrinaire rationalism which prevents him from seeing man in all his complexity, in his
blend of materialism and idealism, of nobility and baseness, of egoism and altruism. This leads
Bentham to an overestimate of the power of the legislator and an underestimate of the need
for individual discretion and feasibility in the application of law. The second fundamental
weakness stems from Bentham's failure to develop clearly his own conception of the balance
between individual and community interests." Many of his propositions are neither convincing
nor prove true in practical application.

John Austin: (1790-1859) he is the father of English Jurisprudence and the founder of the
Analytical School of Jurisprudence. He was elected to the Chair of Jurisprudence in the
University of London in 1826. Then he proceeded to Germany and devoted some time to the
study of Roman Law as it was taken in Germany. The scientific treatment of Roman Law there
made him aware of the chaotic legal exposition of law in his own country. He took inspiration
from it and proceeded to make a scientific arrangement of English Law. The method which he
applied was essentially of English origin. He avoided metaphysical method which is a German
characteristic.

John Austin as a Positivist: sought to show what law really is as opposed to Natural Law notions
of what it ought to be. According to Austin, positive law consists of commands, set as rules of
conduct, by a Sovereign member(s) of the independent political society wherein the author of
the law is supreme and opposed to model and natural law. Every law properly so called, must
have three elements of Command, Sanction and Sovereign. It emanates from Sovereign and has
binding force and is authoritative. The law is command of Sovereign Commands employees'

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 duty and sanction. Command and duty are correlative terms Sanction an enforcement of
obedience.

Further it shall be convenient to discuss Austin's theory under two main heads-
1) Austin's conception of law.
2) His method.

1. Austin's Conception Law: Law in the common use means and includes things which
cannot be properly called 'law'. Austin defined. law as 'a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him.'

Law of two kinds-

i) Law of God, and
ii) Human Laws
This may be divided into two parts-
i) Law of God-Laws set by God for men.
ii) Human Laws-laws set by men for men.

Two Kinds of Human Laws: Human Laws may be divided into two classes-

Positive Law: These are the laws set by political superiors as such, or by men not acting as
political superiors but acting in pursuance of legal rights conferred by political superiors. Only
these laws are the proper subject-matter of jurisprudence. leads Bentham to an overestimate of
the power of the legislator and an underestimate of the need for individual discretion and
feasibility in the application of law. The second fundamental weakness stems from Bentham's
failure to develop clearly his own conception of the balance between individual and community
interests." Many of his propositions are neither convincing nor prove true in practical
application.

John Austin: (1790-1859) he is the father of English Jurisprudence and the founder of the
Analytical School of Jurisprudence. He was elected to the Chair of Jurisprudence in the
University of London in 1826. Then he proceeded to Germany and devoted some time to the
study of Roman Law as it was taken in Germany. The scientific treatment of Roman Law there
made him aware of the chaotic legal exposition of law in his own country. He took inspiration
from it and proceeded to make a scientific arrangement of English Law. The method which he
applied was essentially of English origin. He avoided metaphysical method which is a German
characteristic.

John Austin as a Positivist: sought to show what law really is as opposed to Natural Law notions
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 of what it ought to be. According to Austin, positive law consists of commands, set as rules of
conduct, by a Sovereign member(s) of the independent political society wherein the author of
the law is supreme and opposed to model and natural law. Every law properly so called must
have three elements of Command, Sanction and Sovereign. It emanates from Sovereign and has
binding force and is authoritative. The law is command of Sovereign Commands employees'
duty and sanction. Command and duty are correlative terms Sanction an enforcement of
obedience.

Further it shall be convenient to discuss Austin's theory under two main heads-
3) Austin's conception of law.
4) His method.

2. Austin's Conception Law: Law in the common use means and includes things which
cannot be properly called 'law'. Austin defined. Law as 'a rule laid down for the guidance of an
intelligent being by an intelligent is being having power over him.'

Law of two kinds-

i) Law of God, and
ii) Human Laws
This may be divided into two parts-
i) Law of God-Laws set by God for men.
ii) Human Laws-laws set by men for men.

Two Kinds of Human Laws: Human Laws may be divided into two classes-

Positive Law: These are the laws set by political superiors as such, or by men not acting as
political superiors but acting in pursuance of legal rights conferred by political superiors. Only
these laws are the proper subject-matter of jurisprudence.
a) Other Laws: Those laws which are not set by political superiors (set by persons who are
not acting in the capacity or character of political superiors or by men in pursuance of
legal rights)

Analogous to the laws of the latter class are a number of rules to which the name of law is
improperly given. They are opinions or sentiments of an under-terminate body of men, as laws
of fashion or honour. Austin places International Law under this class. In the same way there are
certain other rules which are called law metaphorically. They too are laws improperly so called.
A chart presenting this division clearly is given below.

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 The following chart clearly says that how the law evolved in the world and especially in India.
The schools of jurisprudence are a fundamental and the basic for the development of law and
the rules of conduct to the ruler and to the people.

LAW

Law properly so called Law improperly so called

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 Law of God Laws by analog As Law by metaphor,
Huma laws of fashion
n Laws i.e., laws of
gravity

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Page 26 of 145
 Positive laws (or Laws not set by
laws Strictly so men, as political
called) Set by superior, or in
political Superior pursuance of a
to political legal right
inferior or by
private Persons
inpursuance of a Positive morality
legal right

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"Laws proper, or property so called, are commands; laws which are not commands, are laws
improper or improperly so called. Laws properly so called, with laws improperly so called, may
be aptly divided into the following four kinds:

1) The divine laws, or the laws of God; that is to say, the laws which are set by God to his
human creatures.

2) Positives laws; that is to say, laws which are simply and strictly so called, and which
form the appropriate matter of general and particular jurisprudence.

3) Positive morality, rules of positive morality or positive moral rules.

4) Laws metaphorical or figurative, or merely metaphorical or figurative.

Criticism against Austin's Theory: Austin's theory has been criticized by a number of jurists
and by some of them very bitterly, Bryce went to the extent of saying that 'his contributions to
juristic science are so scanty and so much entangled in error that his book ought no longer to find
a place among those prescribed for students. However, this is an extreme view. The main points of
criticism against Austin's are as follows-

a) Customs Ignored: 'Law is the command of sovereign', as Austin says, is not

warranted by torical facts. In the early times, not the command of any superior, but
customs regulated the conduct of the people. Even after coming of state into existence
customs continued to regulate the conduct. Therefore, customs should also be included in
the study of jurisprudence, but Austin ignored them.

b) Law Conferring Privileges : The law which is purely of a permissive character and
confers only privileges, as the Wills Act, which lays down the method of drawing a
testamentary document so that it may have legal effect, is not covered by Austin's definition
of law.

c) Judge-made Law: In Austin's theory there is no place for judge-made law. In the
course of their duty judges (in applying precedents and in interpreting the law) make law.
Though an Austinian would say that judges act under the powers delegated to them by the
sovereign, therefore, their acts are the commands of the sovereign. Nobody, in modern
times, will deny that judges perform a creative function and Austin's definition of law does
not include it.

d) Conventions: Conventions of the constitution, which operate imperatively, though not

enforceable by court, shall not be called law, according to Austin's definition, although they
are law and are a subject- matter of a study in jurisprudence.

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 e) Rules Set by Private Persons: Austin's view that 'positive law' includes within itself set
by private persons in pursuance of legal rights is an undue extension because their nature
is very vague and indefinite.

f) International Law: Austin put International Law under positive morality along with
the law of honour and the law of fashion. "The so called law of nations consists of opinions
or sentiments current among nations generally. It, therefore, -is not law properly so called."
The main ingredient of law lacking in International law is sanction but this alone will not
deprive it from being called law. Now nobody will accept that International law is not law.
Therefore, according to Austin's definitiol1, a very important branch of law shall be
excluded from the study.

g) Command Theory Untenable: A modern theorist, Prof. Olivecrona from Sweden has
denied the applicability of the idea of command to law. He says that a command and not
identical with a declaration of will. There is a difference between a command had the
statement or declaration of a will. A command is always an act through which one person
seeks to influence the will of another. Command presupposes some determinate person
who commands and another to whom the command is addressed. In modern times, the
machinery of state remains always changing and it is run by a multitude of persons.
Therefore, the idea of command does not apply in such systems.

h) It is Artificial: The view that law is 'command of the sovereign' suggests as if the
sovereign is standing just above and not as part of the community giving his arbitrary
commands. This view treats law as artificial and ignores its character of spontaneous
growth. The sovereign is an integral part of the community or state and his commands are
the commands of the organized community. Most of the theories regarding state, in
modern times, say that the sovereignty does not remain in the shape in which it was
conceived by the writers of past ages. They say that state itself is sovereign and law is
nothing but the general will of the people. Therefore, the law cannot be said to be a command.

i) Sanction is not the Only Means to Induce Obedience: According to Austin's view, it
is the sanction alone which induces man to obey law. It is submitted that it is not a correct
view. Lord Bryce has summed up the motives as indolence, deference, sympathy, fear, and
reason that induce a man to obey law. The power of the state is ratio ultima- the force which
is the last resort to secure obedience.

j) Relation of Law and Morals Overlooked: According to Austin, the science of

jurisprudence is concerned with positive law, or with laws strictly so called, as considered
without regard to their goodness or badness. In other words, Law is not concerned with

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 morals. But this is not a correct proposition. The origin of the words 'right' 'wrong' and
'duty' etc. owe their origin to certain ethical notions. Austin overlooked this aspect of the
law.

Different approaches to the treatment of jurisprudence are represented by its various

schools of thoughts. Salmond preferred three schools
1. Analytical (dogmatic)
2. Sociological school
3. Historical school
4. The philosophical school
5. Comparative school

Analytical School
The analytical school is ‘positive’ in its approach to the legal problems in the society. It
concentrates on things as they are, not as they ought to be. The main concern of the positivists is
‘ law the is actually found’ positum, and not the ideal law. The most important legal sources are
legislation, judicial precedents and customary law. This school, domiant in England, lays down
the essential elements that go to make up the whole fabric of law e.g., state sovereignty and the
administration of justice. The motto of analytical school is Ubi civitas ibi lex i.e., where there is
state, there will not be anarchy. State is necessary wvil. The main propnents of this school are,
Bentham, Holland, Austin, Salmond, etc.

Bentham’s concept of law

Bentham is considered the founder of modern utilitarianism. Also, he was a champion of
codified law. Bentham’s work was intended to provide the indispensable introduction of a civil
code. Bentham distinguished Expositorial jurisprudence from censorial jurisprudence. His
concept of law is imperative one i.e., “law is assemblage of signs, declaration of volition
conceived or adopted by sovereign in a state”. While supporting the economic principle of
Laissez faire, he propounded the principle of utilitarianism: ‘the proper end of every law is the

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promotion of the greatest happiness of the greatest number’’. He defined utility as the property or
tendency of a thing to prevent some evil or procure some good.
Austinian concept of Law
Hohn Austin (1790-1859) was a lecturer in London University. He applied analytical
method- ‘law should be carefully studied and analyzed and the principle underlying therein
should be found out’ and confined his field of study only to the positive law- jus positivism.
Therefore, the school founded by him is called by various names- analytical, positivism,
analytical positivism. Austin is considered as the “Father of English Jurisprudence”. his lectures
were published under their title ‘the Province of Jurisprudence Determined’. Austin defined law
as a rule laid down for the guidance of an intelligent being by and intelligent being having power
over him. According to him, so-called ‘proper law’ includes: law of God, humans laws and
positive law. The law improperly metaphor. According to him, positive, “positive morality”
consists of –law not set by men or in pursuance of a legal right, and law by analogy as law of
fashion. The improper laws lacked sanction of the state. Every law, properly, so called must have
three elements- command, sanction and sovereign. According to him, “Law is the command of a
sovereign”, requiring his subjects to do or forbear from doing certain acts. There is an implied
threat of a sanction if the command is not obeyed.
Kelsen’s Concept of Law
Hans Kelsen 91881-1973), belonging to ‘Vienna school’ of legal thought, proposed a
“pure theory of law” i.e., a theory which is free from special, historical, political, psychological,
etc., influences and is logically self-supporting. The law is a normative and not a natural science,
there are sanctions attached to the laws it. The test of sanctions attached to the law itself. The test
of lawness is to be found within the system of legal norms itself. He defined law as ‘an order of
human behavior’. According to Kelsen, laws are ought propositions i.e., norm, if x happens, then
y ought ot happen. Thus, if a person commits theft, he ought to be punished. Law does not
attempt to describe what actually occurs but only prescribe certain rules. Norm is a legal
meaning attached to an act of will. It is the meaning of an act by which certain behavior is
commanded, permitted or authorized.

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Natural Law Theory
Natural law is also known as Moral law/Divine law/ Law of God, and Law of reason. The
natural philosophy found an expression in the Roman legal system through division of roman is
into their distinct division- jus civile, jus gentium and jus naturale. Natural law is basically a
priori method, natural law appeals to the reason of man and there is no element of compulsion in
it. It embodies the principles of morality and natural justice and as such it differs from positive
law and legal justice. It is law in an ideal state and it differs from man-made law. Its principles
are common to all state and thus, it differs from jus civil, the civil law or the law of the land.

ARISTOTLE: According to Aristotle, law is either universal or special and perfect law is
inherent in the nature of man and is immutable, universal and capable of growth. He defined
natural law as reason unaffected by desires. It wa Aristotle, and not Plato, who founded natural
law on reason.

STOCIS’S: identified natural law with reason wich governs the entire universe and man being a
part of universe, is also governed by reason.

CICERO: said ‘true law is right reason in agreement with nature”.

ST. THOMAS ACQUIANS: defined law as “an ordinance of reason for the common good
made by him who has the care of the community and promulgated through reason”

GROTIUS: Hugo grotius held on reason, but on right reason i.e., ‘self –supporting reason’ of
man. He treated ‘natural law’ as immutable which cannot be changed by God himself. He said
that natural law is based on the nature of man and his urge to live in peaceful society. He
considered divine law as the grandmother, natural law the parent and positive law as the child.

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HOBBES: Hobbes’s theory of natural law was based on the natural right of self-preservation of
person and property. In order to secure self-protection in as stage of nature, men voluntarily
entered into a ‘social contract’ and surrendered their freedom to the ruler.

LOKE: According to John Locke, man entered into a social contract by which he yielded to the
sovereign not all his rights but not only the power to preserve order and enforce the law of
nature. The individual retained his inalienable right to life, liberty and estate. The moment
sovereign encroached upon the natural rights, laws lose their validity and the government may be
overthrown.

ROUSSEAU: Rousseau pointed out that social contract, is not historical fact as contemplated
by Hobbes and Locke, but is merely a hypothetical conception. According to him, people united
to preserve their rights of freedom and equality, and for that they surrendered their rights to the
community as a whole- general will. This, while the individual parts with his natural rights, he
gets in return civil liberties. Therefore, he favored people’s sovereignty. His theory is considered
to be the forerunner of the modern jurisprudential; thought and legal theory.

KANT: Kant propounded his famous theory of categorical imperative in his classic work-
critique of pure reason. His theory of General Will, and embodies two principles: (i) a man is
expected to act in such a way that he is guided by dictates of his own conscience, (ii) autonomy
of will implying an action emanating form reason. In essence, an action is right only if it co-exist
with each and every man’s free will according to the universal la. This he called as the principle
of innate right.

Sociological school
Sociological jurisprudence arose as a reaction to positivism. According to it, law is not an
isolated phenomenon but is part of the social reality; this school has emerged as a result of
synthesis of various juristic thought. The supporters of this school linked law with other social
science disciplines and trusted it as synthesis of psychology, philosophy, economics, political

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science, sociology, etc. R. Pound rightly pointed out; the sociological jurists look more for the
working of law than for its abstract content. Roscoe Pound can be said to be the father of
sociological jurisprudence in America. Montesquieu is the forerunner of the sociological method
in jurisprudence. other noted jurists of this school includes: Auguste Comppte, Herbert Spencer,
Rudolph Von Ihering, Ehrlich, Duguit, Francois Geny.

AUGUSTE COMTE: He is regarded as the founding father of the science of sociology. He

applied scientific methods to the study of socialism which has been termed as scientific
positivism. According to him, societies, like any other organism, can progress when ii is guided
by scientific principles. Further, it is the society and not the individual which should be the focal
point of law. The only right which man can possess is the right always to do his duty.

HERBERT SPENCER: He gave a scientific exposition to the organic theory of society. He

deduced for sources of law, namely, (i) Divine laws having quasi-religious sanctions, (ii)
Induction of the past leaders, (iii) Will of the ruler, and, (iv) collective opinion of the society. He
considered law as nothing more than a hardened custom. The purpose of law is to resolve the
conflicting interests of the individuals in the society.

EHRLICH: His theories of living law is that law need not be necessarily created by the state or
applied by the courts or have a coercive legal compulsion behind it, but it is created by life of
groups living within the society. In other words law arises in society in the form of spontaneous
ordering of social relations of marriage, family associations, possessions, contracts, etc. His
theory of living law came as a vigorous reaction against the analytical positivism and state-made
laws.

DUGUIT: His theory of social solidarity was based on the fact that independence of man is the
essence of society. He developed the concept of syndicalism. He established a standard social
solidarity to which all positive law must conform. It is nothing but natural law in different form.
Therefore, it has been rightly observed that Duguit pushed natural law out through the door and

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let it come by windows. He denounced the omnipotence of the state and acknowledged the
superior role of judiciary. He also rejected the notion of natural rights of men which made
individual hostile to larger of the society.

FRANCOIS GENY: His sociological approach emphasized free scientific research as a solution
to social problems, which is based on (i) Autonomy of will, (ii) Maintenance of public order and
interest, and, (iii) proper balancing of conflicting private interests of individuals. He gave
primacy to courts; a judge should try to find out the solution freely and scientifically.

Historical school
The eighteenth century saw the birth of the historical school of jurists in Germany,
headed by Savigny (1779-1861). Writers like Voltaire and Rousseau began to emphasize the
spirit of the people, in opposition to the individual and this gave rise to the surge of nationalism
which finally led to the French Revolution. Their French Revolution heralded a reforming and
codifying spirit throughout the European continent. Savigny and his school concentrated more on
legal history rather than historical jurisprudence. law to him is a spontaneous emanation from the
life and spirit of a people. The source of law is not the command of the sovereign, not even the
habit of a community, but the instinctive sense of right possessed by every race. So the typical
law which is a customary rule is based on the peoples conviction of what is right, and so it could
be harmed by legislation. So every conscious effort as a factor in legal evolution was excluded,
this stultified rather than encouraged the development of the legal order.
Differences between the analytical and the historical schools may be exhibited as follows:
Analytical school Historical school
1. Law is product of the state. Law is found and not made. Law is self-
existent.
2. If there is no sovereign, there can be no Law is antecedent to the state and exists even
law. before a state organization comes into being.
3. The hall-mark of law is enforcement by Law is independent of political authority and
the sovereign. enforcement.
4. The typical law is statute. The typical law is custom.

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5. Custom is not law until its validity has
Custom is the formal source of law. It is
been established by a judicial decision or by an
transcendent law and other methods of legal
act of the legislature. It’s only a persuasive.
evolution, e.g., precedent and legislation
6. Law rests upon their force of politically
Law rests on the social pressure behind the
organized society. rules of conduct which it enjoins.
7. Law is the command of rh sovereign , Law is the rule whereby the invisible border
line is fixed within which the being and
activity of each individual obtains a secure and
full space.
8. In interpreting a statue judges should In construing a statue judges should consider
confine themselves to a purely syllogistic the history of the legislation in question.
method

The Philosophical school or Ethical

Modern jurists call this the theological school. To Bentham who is closely associated
with this school the end of law is to promote the greatest happiness of the greatest number. To
Kant, those legal restrictions can be justified only in so far as they promote the freedom of
individual in society. To others belonging to this school, the law is to maintain justice in society.
So this school, firstly, seeks a proper answer to the problem of the validity of law. Secondly, it
stresses that law is intimately related to justice. According to Salmond; ‘’ Philosophical
jurisprudence is the common ground of moral and legal philosophy, of ethics and jurisprudence.
“The philosophical school reverts its attention on the purpose of law and the justification for
coercive regulation of human conduct by means of legal rules. Kant has shown that the chief
purpose of law is the provision of a field of fre activity for the individuals without interference
by his fellow men. Law is thge means by which individual will is harmonized with the general
will of the community. The philosophical school is interested primarily in the “development of
the idea of justice as an ethical and moral phenomenon and its manifestation in the principles
applied by the courts’.
GROTIUS: Hugo Grotius, celebrated founder of international law, is also regarded as the father
of philosophical jurisprudence. He defined “the dictate of right reason which points out that an

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act, according as it is or is not in conformity with rational nature, has in it a quality of moral
baseness or moral necessity”.
IMMANUEL KANT (1724-1804): Kant gave modern thinking a new basis which no subsequent
philosophy could ignore. The “Copernican turn” which he gave to philosophy was to replace the
psychological and empirical method by the critical method, by an attempt to base the rational
character of life and world on the observation of facts and matter but on human consciousness
itself. That was done by Kant by a systematic inquiry into the function of human reason.
HEGEL: Hegel was the most influential thinker of the philosophical school. His system is a
monistic one. The idea unfolds from the simple to the complex by means of the dialectical
process. There can be no dualism of any kind as any phase of reality is based on reason. To quote
Hegel: “what is reasonable is real and what is real is reasonable”.
HOHLER: (1849-1919): Kohler was under the influence of the Hegelians. He defined law as
“the standard of conduct which in consequence of the inner impulse that urges man towards a
reasonable form of life, emanates from the whole, and is forced upon the individual”.
STAMMLER (1856-1938): Stammler is a neo-Kantian and his philosophical position is summed
up in the theory of justice. According to him: “There is not a single rule of law the positive
content of which can be fixed a priori”. However, he emphasizes the need for the development of
a theory of just law in addition to the investigation of positive law. The content of a given law
can be tested with reference to the theory of just law.
DEL VECCHIO: Del Vecchio developed, independently of stammler, a thory of law on
essentially similar foundations. He was a jurist of much greater elegance and universality than
stammler. His writings display a profusion of philosophical, historical and juristic learning.
Comparative school
This method of studying law and legal institutions received recognition as a science only
recently. It got its impetus during the first world war of (1914-1918). The intensified
international contacts necessitated the study of the legal systems of one another. The comparative
method considers the development of two or more systems of law. By comparing the notions,
and ideas prevailing in any one system, with those in another, it discovers those rules which are
common to the legal systems studied.

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American realism
The realist movement is a part of the sociological approach and it is sometimes called the
“left wing of the functional school”. It differs from the sociological school as it is little
concerned with the ends of law. It concentrates on a scientific observation of law in its making
and working. The movement is caled realist as it studies law in its actual working and rejects the
traditional definition of law that it is a body of rules and principles which are enforced by the
courts. The advocates of the realist movement concentrate on the decisions given by the law
courts. They not only study the judgments given by the judges but also the human factor in the
judges and lawyers. They study the forces which influence judges in reaching their decisions.
GRAY (1839-1935): Dr. Friedmann considers John Chipman Gray (1839-1915) and Oliver
Wendell Holmes (1841-1935) as the mental fathers of the realist movement. Gray, although a
distinguished exponent of the analytical tendency in jurisprudence, relegated statutory legislation
from the centre of the law to one of several sources and placed the judge in the centre instead.
JUSTICE HOLMES (1841-1935) : That tendency was made articulate by justice holmes who, in
an essay published in 1897, gave an entirely empirical and skeptical definition of law in these
word: “take the fundamental question, what constitutes the law...you will find some text writers
telling you that it is something different from what is decided by the courts of Massachusetts or
England, that it is a system of reason, that it is a deduction from principles of ethics or admitted
actions, or what not, which may or may not coincide with the decision.
Principal Features of Realist Approach. Llewellyn outlines the principal features of the realist
approach as follows:
(i) There has to be a conception of law in flux asnd of the judicial creation of law.
(ii) Law is a means to social ends an every part of it has constantly to be examined for its
purpose and efforts and judged in the light of both and their relation to each other.
(iii) Society changes faster than law and so there is a constant need to examine how law meets
contemporary social problems.

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(iv) There has to a temporary divorce of is and ought for purposes of study. This does not
mean that the ideas of justice and teleology are to be expelled altogether, but they are to be put
on one side while investigating what the law is and how it works.
(v) The realists distrust the sufficiency of legal rules and concepts as descriptive of what
courts do.
(vi) The realists do not have trust in the traditional theory that the rules of law are the
principal factors in deciding cases. They have drawn attention to many other influences which
play a decisive role. It is absurd to define law solely in terms of legal rules.
(vii) The realists believe in studying the law in narrower categories than has been the practice
in the past. They feel that part of the distortion produced by viewing the law in terms of legal
rules is that rules cover hosts of dissimilar situations where in practice utterly different
considerations apply.
(viii) The realists insist on the evaluation of any part of the law in terms of its effects and on
the worth wholeness’ of trying to find these effects.
(ix) There must be a sustained and programmatic attack on the problems of the law along the
lines indicated above.
ASSESSMENT OF THE REALIST MOVEMENT IN 1961
In 1961, Prof. Yntema, himself a leading realist, attempted to assess the present and
future of the realist movement. After stressing both the importance and influence of legal realism
upon American law, lawyers and law schools, he conceded that a major defect of the realist
movement had been the neglect of the more humanistic side of law, particularly revealed both in
its neglect of the comparative and historical aspects of law and the tendency to place
overemphasis upon current leagl practice. The result was a certain loss of perspective and in
particular a failure to distinguish between what is trivial or ephemeral on the one hand and what
is of wider on the other.
ESTIMATE:
Lord Lloyd writes that the realists have done good work in emphasizing both the
essentially flexible attitude of the judiciary towards developing precedent, even within the four
corners of a rigid doctrine of precedent and the operation of concealed factors in judicial law-

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making. The realists have played their part in bringing about a changed outlook and attitude
towards the legal system and the function of the law and the legal profession in society which
has made itself felt in all but the most traditionalists of the law schools of the common law
world.

THE SCANDINAVIAN REALISTS

The view of Prof. Dias is that there is hardly a school of scandinavian realism. The
individuals who are thought to belong to this group, show important differences among
themselves. However, they agree in the main in denying the possibility of a science of justice or
values. To them, these are purely subjective reactions, or else reflective of class or political
ideology. It is not possible to construct a science on such a basis. While the American realists
were practicing lawyers or law teachers who sought to approximate legal theroy to legal practice,
the Scandinavian jurists approached their tasks on a more abstract plane and with the training of
philosophers. The Scandinavian realism has been described as “metaphysics-skeptical”. It is
essentially a philosophical critique of the metaphysical foundation of law.
HAGERSTROM: (1868-1939)
Axel Hagerstrom was not a lawyer but a philosopher whose attention was directed to law and
ethics as particularly fertile sources of metaphysics. His aim was to destroy transcendental
metaphysics and he started with law. He declared: all metaphysical concepts. They are mere
word-play. Legal philosophy for hagerstrom is sociology of law without empirical investigation
but built upon conceptual. Historical and psychological analysis. Much ho his writing is a
critique of the errors of juristic thought.
Emperical basis of rights: As regard the method Hagerstrom, he first reviews the attempts that
have been made to discover the empirical basis of a right and dismisses each one of them.
According to him: the facual basis which we are seeking cannot to be found either in protection
guaranteed or commands issued by an external authority.

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Historical basis of rights: Hagerstrom also investigated the historical basis of the idea of a right.
For that purpose, he made extensive study of Greek and Roman law and history. His studies were
conceived to demonstrate that the framework of the jus civile was a system of rule for the
acquisition and exercise of supernatural powers. He believed that modern law is also a ritualistic
exercise.
Objective values: Hagerstrom denied the existence of objective values. It appeared to him that
there were no such things as goodness and badness in the world. The words represent emotional
attitudes of approval and disapproval towards certain facts and situations. The word duty express
an idea, the association of a feeling of compulsion with regard to a desired course of conduct.
There is no possibility of any science of the ought. All questions of justice, aims, purposes of law
are matters of personal evaluation. They are not susceptible to any scientific process of
examination.
Law: Prof. Olivercrona did not define law. To quote him: “I do not regard it as necessary to
formulate a definition of law”. Again, “a description and an analysis of the facts is all that will be
attempted”. If one seeks to investigate the nature of law, it begs the question to begin by
assuming what it is. He insists that facts must be examined first. The method of identifying these
will be simply to take up such facts as are covered by the expression rules of law.
Binding force of law: There is a lot of concern about the validity of law. Olivecrona approaches
it form the angle of abidingness. Law has binding force in so far as it is valid. An invalid law is
not binding. There are no such things as the binding force behind law.
Rights: Olivecrona does not dismiss the idea Of rights altogether. However, he calls it a hollow
word. A court should pronounce on a factual situation without calling right in aid. The proof of a
right is accomplished by proving certain facts or events. Those facts are called title
Valid law: Ross does not seek to reduce all law to sociological phenomena. His conclusion is hat
valid law means the abstract set of normative ideas which serve as a scheme of interpretation for
the phenomena of law in action.
Norm: According to Ross: “ A norm is a directive which stands in a relation of correspondence
to social facts”. To say that a norm exists means that a certain social fact exists. This in turn
means that the directive is followed in the majority of cases by people who feel bound to do so.

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The principle feature of legal norms is that they are directives addressed to courts. A norm may
derive from a part decision, but all norms including those of legislation, should be viewed as
directives to courts.

Contribution of the Realists

The realist movement has made a valuable contribution to jurisprudence. Its approach to
law is in a positive spirit. It is not concerned with any theory of justice or natural law. It demands
a comprehensive approach and examination of allthe factors which lead to decisions. The realists
have goaded on the lawyers and judges to relaise the importance of their work and not to do
theior work blindly.
METHODOLOGY
The following are the legal methodology
- Applied methodology
- Fundamental methodology
- Doctrinal and non-doctrinal methodology
- Empirical methodology
- Quantitive methodology
- Qualtive methodology
- Ethical methodology
- Historical methodology
-

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 UNIT- 3

DEFINITION AND KINDS OF LAW

Definition of Law: In one sense the law is a large body of rules and regulations based mainly
on general principles of justice, fair play and convenience, which have been worked out and
promulgated by governmental bodies to regulate human activities and define what is and what is
not permissible conduct in various situations. The term law, however, is also used in a much
broader sense. To denote the whole process by which the organized society, through
governmental bodies and personnel (Legislatures, Courts, Administrative tribunals, Law
enforcement agencies and officials, Penal and Corrective institutions etc.) attempt to apply
these rules and regulations and thereby establish and maintain peaceful and orderly relations
between the people in that society. Thus the study of law is necessarily not only a study of legal
rules but also a study of the whole legal system through which society attempts to maintain law
and order. Article 13(3)(a) of the constitution. The term law includes any ordinance, order, by-
law, rule, regulation, notification, custom and usage having, in the territory of India, the force
of law.

The Kinds I Classification of Law: The use of the term law is made in various senses. It denotes
different kinds of rules and principles. Now we are discussing various meanings given to law
which shall be discussed and the meaning in which it is taken in jurisprudence shall be discussed.
Thus according to Blackstone, "Law in its most general and comprehensive sense signifies a rule
of action and is applied indiscriminately to all kinds of action whether animate rational
irrational." Thus, we say the laws of motion of gravitation of optics or mechanics as well as laws
of nature and of nations.

Classification of Law: For a proper and Logical understanding of Law, its classification
becomes necessary. It helps in grasping the principles and the logical structure of the legal order.
It makes clear the inter-relation of rules and their effect on each other. It helps in arranging the
rules in a concise and systematic way. It presents an analysis for the architect of Law which
greatly helps in codification. It is of great use for a lawyer. It helps him in understanding the law.
Classification of law is generally on the following pattern -
1. Substantive Law and Procedural Law or Formal Law.
2. Civil Law and Criminal Law
3. International Law and Municipal Law.
4. Codified and Uncodified Law.

1. Substantive Law and Procedural Law or Formal Law: Substantive law is the law
dealing with the topic with which it has been connected. e.g., Contract Act, Hindu Law,

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 I.P.C. Procedural or formal law deals with evidence and procedure in court of law-
C.P.C. for civil cases and Cr. P.C. for criminal cases. We have on the whole the same law of
evidence in Civil cases. Some laws are predominantly substantive and some mainly
formal or procedural. But a substantive law also may have the formal in it., e.g., Company
Law, Insolvency Law etc.
Where the rule of formal law differs from a rule of substantive law, the substantive law
prevails over the formal law, because all the formal laws deal with the form not with the
spirit-

a) Substantive law is that which defines the right while procedural law determines the
remedies.
b) Substantive law is concerned with the ends which the Administration of Justice seeks,
procedural law deals with the means and instruments, by which these ends are to be
attained.
c) Procedure Law regulates the conducts and the relations of courts and litigants in
respect of the litigation itself. Substantive Law determines their conducts and relation
in respect of the matter litigated.

2. Civil Law and Criminal Law: Civil Law which is the part of the imperative law, is the law
of land and is forced by its courts -"Civil Law is all that body of principles, decisions
and enactments made, passed, recognised or approved by the legally constituted
authorities or agencies in a state, for regulating rights, duties and liabilities (between the
state and the citizens, as also the citizens inter-se, and the citizens of the state in relation to
members of foreign state), and enforced through the machinery of the judicial process
for obedience to the sovereign authorities6in a state." Sometimes the expression Civil Law
is used to convey the idea that the civil law is different from the criminal law or the law of
military. Civil Law has what are known as sanctions behind it. A sanction means a
coercive factor for the enforcement of law.
These sanctions are of three kinds namely-
1. Inner or moral, Le. the force of one's soul.
2. Social Le. those arising out of public resentment and public opinion, and
3. Legal.Civil Law includes Constitutional Law, Administrative Law and Public Law,
Constitutional Law is the Law that provides for the working of the Constitution of a country.
That says how the Executive, the Legislative and the Judiciary are to function. That
determines the structure of e state, the allocation of powers, the rights and liberties of the
subject as also the obligation of t e citizen in consonance with the maintenance of the
solidarity of the State.

Administrative or Executive Law: Administrative or executive law is the law

(including the rules) concerning the Administration of the executive department of the

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 State.

Characteristics of Civil Law:

a) Uniformity,
b) Territoriality of application.
c) Generality of application, except in the case of a special law.
d) Attempted conformity with the principles of justice
e) The Creation of Legal rights.
f) The recognition by the State or its agency.

Criminal Law: Criminal law defines crimes/offences, and prescribes punishment for them. Its
aim is the prevention of and punishment for offences.

Criminal law is necessary for maintaining order and peace within the State.

In civilized societies crime is considered to be a wrong against the society. Therefore, the state
initiates the proceedings against the offender, and thus it is always a party in criminal cases. This
is why the criminal law is considered as a branch of pubic law.
3. Municipal Law and International Law:

1) Municipal law, State Law or national law is the law of a state or a country and in that
respect is opposed to International Law.

2) Municipal Law is the law of the Sovereign over the individual subject to the Sovereign
rules.

3) It is the rule or law by which particular nation is governed.

4) It is the rule or law by which particular nation is governed.

5) It is operated within the territory of the country.

International Law: International law, also called the Law of Nations, is the body of rules which
regulates mainly the mutual relations of States.

It is made up party of –
a) Customs between the nations,
b) Conventions as the result of International Conference and otherwise.
c) International reciprocity.
Some earlier jurists like Austin and his supporters were of the view that international law is not

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law as it lacked many of the elements which a law should have. But on the other hand Kelson, and
his supporters were of the view that international law is a law and is superior to the municipal law.
This controversy is no more and it has been recognised on almost all heads that international law is
law and is a very important branch of law.

According to some jurists, it may be divided into two classes-

Public International Law: Public International law is the body of rules which governs the
conduct and relations of states with each other. Really speaking, the term "International
Law" is used for this class of Law.

Private International Law: Private International Law means those rules and principles
according to which the cases having foreign elements are decided e.g. a contract between
India and Pak to be performed in Cyclone. The rules and principles on which the rights and
duties of person would be determined would be called private international law or conflicts
of laws.

4. Codified and Uncodified Law

According to Oxford Dictionary 'Code' means a systematic collection of statutes, body

of laws, so arranged as to avoid inconsistency and overlapping.Codification means
promulgation, compilation, collection and systematization of the body of law in a
8
coherent form by an authority in a State competent to do so. The codified law is certain,
simple and rigid whereas the uncodified law is flexible as a judge is bound by the
precedent of higher courts. The codified law can be laid down beforehand whereas the
emergence of uncodified law depends on litigation. Codified law is coherent whereas
the uncodified law differs from case to case. Uncodified law is the principle and enacted
law is merely accessory. The activity of the legislative is called for only on special
occasions to do that which lies beyond the constructive or remedial efficacy of the
common law or uncodified law. Codification means, not the total disappearance of case
law or uncodified law, but merely the reversal of this relation between it and statute
law. Case law or uncodified law continue to grow, even when codes are complete. It
means that the substance and body of law shall be enacted law, and that in that case law
shall be incidental and supplementary only. But no legislative skill can effectually
anticipate the complexity and variety of facts. The function of precedent (uncodified
law, case law) will be to supplement, to interpret, to reconcile and to develop the
principles which the Code contains, Out of Code itself, therefore, a body of case law will
grow, as judicial commentary and supplement them. This supplementary and explainary
case law is codified and incorporated into successive additions of the Code then the
process of interpretation will begin again with the like results.

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Before the codification, the customs and personal laws governed the individuals in

India. This classification can also be shown with the help of following diagram -

Law: Meaning, Features, Sources and Types of Law!

State is sovereign. Sovereignty is its exclusive and most important element. It is the
supreme power of the state over all its people and territories. The State exercises its sovereign
power through its laws. The Government of the State is basically machinery for making and
enforcing laws. Each law is a formulated will of the state. It is backed by the sovereign power of
the State. It is a command of the State (so
(sovereign)
vereign) backed by its coercive power. Every violation
of law is punished by the State. It is through its laws that he State carries out its all functions.

I. Law: Meaning and Definition:

The word ‘Law’ has been derived from the Teutonic word ‘Lag, which means ‘definite’.
On this basis Law can be defined as a definite rule of conduct and human relations. It also means
a uniform rule of conduct which is applicable equally to all the people of the State. Law
prescribes and regulates general conditions of hum
human activity in the state.

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1. “Law is the command of the sovereign.” “It is the command of the superior to an inferior and
force is the sanction behind Law.” —Austin

2. “A Law is a general rule of external behaviour enforced by a sovereign political authority.” -

Holland

In simple words, Law is a definite rule of behaviour which is backed by the sovereign power of
the State. It is a general rule of human conduct in society which is made and enforced by the
government’ Each Law is a binding and authoritative rule or value or decision. Its every
violation is punished by the state.

II. Nature/Features of Law:

1. Law is a general rule of human behaviour in the state. It applies to all people of the state. All
are equally subject to the laws of their State. Aliens living in the territory of the State are also
bound by the laws of the state.

2. Law is definite and it is the formulated will of the State. It is a rule made and implemented by
the state.

3. State always acts through Law. Laws are made and enforced by the government of the State.

4. Law creates binding and authoritative values or decisions or rules for all the people of state.

5. Sovereignty of State is the basis of law and its binding character.

6. Law is backed by the coercive power of the State. Violations of laws are always punished.

7. Punishments are also prescribed by Law.

8. The courts settle all disputes among the people on the basis of law.

9. In each State, there is only one body of Law.

10. Legally, Law is a command of the sovereign. In contemporary times laws are made by the
representatives of the people who constitute the legislature of the State. Laws are backed by on
public opinion and public needs.

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11. The purpose of Law is to provide peace, protection, and security to the people and to ensure
conditions for their all round development. Law also provides protection to the rights and
freedoms of the people.

12. All disputes among the people are settled by the courts on the basis of an interpretation and
application of the laws of the State.

13. Rule of law, equality before law and equal protection of law for all without any
discrimination, are recognised as the salient features of a modern legal system and liberal
democratic state.

Sir John Salmond refers to eight kinds of law viz.,

Imperative law

Physical or scientific law,

Natural law or moral law,

Conventional law,

Customary law

Practical or technical law

International law and civil law

Imperative Law:- According to Salmond: “ imperative law means a rule which prescribes a
general course of action imposed by some authority which enforces it by superior power either
by physical force any other form of compulsion.” The chief advocate of imperative law is Austin
who defines law as a command which obliges a person or persons to a course of conduct.

Physical or Scientific Laws:- According to slmond: “physical laws or the laws of science are
expression of the uniformities of nature-general principles expressing the regularity and harmony
observable in the activates and operations of the universe”. An example of physical laws is the
law of tides. Physical laws are also called natural laws or laws of nature. There is uniformity and
regularity in those laws. They are not the creation of men and cannot be changed by them.
Human laws change from time to time and country to country but physical laws are invariable
and immutable forever.

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Natural Law or Moral Law:- According to Salmond: “by natural law or moral law is meant the
principles of natural right and wrong –the principles of natural justice if we use the term justice
in its widest sense to include all forms of rightful action”. Natural law has been called divine
law, the law opf reaosn, the universal or common law and eternal law. It is called the command
of god imposed upon men.

Conventional Law:- According to salmond, conventional law mens “any rule or system of rules
agreed upon by persons for the regulation of their conduct towards each other”. It is form of
special law. It is law for the parties who subscribe to it. Examples of conventional law are the
laws of cricket or any other game, ruels and regualtions of a club or any other voluntary society.
Conventional law in some cases is enfoced by the state. When it is enforced by the state, it
becomes a part of the civil law. The view of some writers is that international law or the law of
nations is alos a kind of conventional law on the ground that its principles are expressly or
impliedly agreed upon by the states concerned.

Customary Law:- According to salmond, customasry law means “any rule of action which is
actually observed by men-any rule which is the expression of some asctual uniformity of some
voluntary actition.” A custom may be voluntary and still it is law. When a custom is firmly
established, it is enforced by the authority of the state. Customary law is an important source of
law. This is particularly so among the conservative people who want to keep as much of the past
as possible e.g. Hindu Marriage Act in 1955

Practical or Technical Law: - Practical or technical law consists of rules for the attainment of
certain ends e.g., the laws of health, the laws of architecture etc. These rules guide us as to what
we ought to do in order to attain a certain end. Within this category come the laws of music, laws
of architecture, laws of style, etc.

Constitutional Law:

Constitutional Law is the supreme law of the country. It stands written in the Constitution
of the State. The Constitutional Law lays down the organization, powers, functions and inter-
relationship of the three organs of government. It also lays down the relationship between the
people and the government as well as the rights, freedoms (fundamental rights) and duties of the
citizens. It can be called the Law of the laws in the sense all law-making in the State is done on
the basis of powers granted by the Constitutional Law i.e. the Constitution.

According to dicey: “Constitutional law includes all rules is which directly or indirectly
affect the distribution of power or exercise of the sovereign power of the state. Hence it includes

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(among other things) all rules which define the members of the sovereign power, all rules which
regulate the relation of such members to each other or which determine the mode in which the
sovereign power or the members thereof exercise their authority.”

AMENDMENT

Every written constitution has a provision for its amendment. The method of a
amendment of the American constitution is highly rigid and complicated. The Constitution can
be amended by three-fourths of the legislatures of the states in the United States. The English
Constitution is unwritten and flexible. The method of its amendment is the same as that of
passing an ordinary law. In India, article 368 of the Indian Constitution deals with the
amendment of the Indian Constitution.

Sources of English Constitutional Law

According to lord Bryce, English constitutional law is to be found in “the mass of

precedents carries in men’s memories or recorded in writing, of dicta of lawyers or statesmen, of
customs, usages, understandings and belief’s bearing upon methods of government, together with
a certain number of statutes, some of them containing matters of pretty detail, others related to
private just as much as to public law, nearly all of them presupposing and mixing up with
precedent and customs and all of them covered with a parasitic growth of legal decisions and
political habits, apart from which the statutes would be almost unworkable, or at any rate, quite
different from their working from what they really are. The English Constitution is to be found in
the great constitutional landmarks, statutes, judicial decision, common law and conventions.

Statute Law or Ordinary Law:

It is also called the national law or the municipal law. It is made by the government
(legislature) and it determines and regulates the conduct and behavior of the people. It lays down
the relations among the people and their associations, organizations, groups and institutions. The
legislature makes laws, the executive implements these and judiciary interprets and applies these
to specific cases.

Ordinary Law is classified into two parts:

Private Law and Public Law.

Private Law:

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 Private Law regulates the relations among individuals. It lays down rules regarding the
conduct of the individual in society and his relations with other persons. It guarantees the
enjoyment of his rights. It is through this law that the State acts as the arbiter of disputes between
any two individuals or their groups.

Public Law:

The law which regulates the relations between the individual and the State is Public Law.
It is made and enforced by the State on behalf of the community.

General Law:

It lays down the relations between the private citizens (Non-officials or who are not
members of the civil service) and the State. General Public Law applies to all the citizens in their
relations with the State.

Administrative Law:

It lays down the rules governing the exercise of the constitutional authority which stands
delegated by the Constitution of the State to all the organs of government. It also governs the
relations between the civil servants and the public and lays down the relations between the civil
servants and the State. In some States like France, Administrative Law is administered by
Administrative Courts and General Law is administered by ordinary courts. However in
countries like India, Britain and the USA the same courts administer both the General Law and
Administrative Law.

Clarifying the distinction between Public law and Private law, Holland writes: “In Private Law
the parties concerned are private individuals alone and between whom stands the State as an
impartial arbiter. In Public Law also the State is present as an arbiter although it is at the same
time one of the parties interested.”

INTERNATIONAL LAW

According to Lord Birkendhand, international law consists of rules acknowledged by the

general body of civilized independent states to be binding upon them in their mutual relations. It
consists of those rules which govern sovereign states in their relations and conduct towards each
other.

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 According to Starke, international law may be defined, for its great part, of the principles and
rules of conduct which states feel themselves bound to observe in their relations with each other
and which includes also (a) the rules of law relating to functioning of international institutions
and organizations, their relations with each other and their relations with states and individuals
and (b) certain rules of law relating to individuals so far as the rights and duties of such
individuals are the concern of the international community.

According to salmond, international law is essentially a species of conventional law and has its
source in international agreement. It consists of those rules which the sovereign states have
agreed to observe in their dealings with one another.

International agreements are of two kinds: They are either express or implied. Express
agreements are contained in treaties abed conventions. Implied agreements are to be found in the
custom or practice of the states. In a wide sense, the whole of international law is conventional.
In a narrow sense, international law derived from express agreement is called the conventional
law of nations.

Nature of International Law

There is a considerable divergence of opinion regarding the true nature of international

law. John Austin, Willoughby and Holland regard and do not concede that is law properly so
called. According to Austin: “the law obtaining between nations is not a positive law for every
positive law is set by a given sovereign to a person of persons in a state of subjection to its
author.” Austin defines positive law as body of rules for human conduct set and enforced by a
sovereign political authority. However, international law is not set or enforced by a political
authority which is sovereign over other states for the regulation of whose relations that law is
intended. According to Oppenheim, international law is law in the true sense of the term. For
hundreds of years, more and more rules have grown up for the conduct of the states with one
another. These rules are to great extent customary rules but along with them are daily created
more and more written rules by international agreements. Oppenheim admits that there is at
present no Central Government above the governments of several states which could in every-
case severe the enforcement of the rules of international law. International law is regarded as a
part of American law an dis-ascertained and administered by the courts of justice of appropriate
jurisdiction. Likewise, the law the prize courts administer in England is not municipal law but
international law.

Civil Law

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 According to salmond, civil law is “the law of the state or of the land, the law of lawyers
and the courts”. Civil law is the positive law of the land or the law as it exists. Like any other
law, it is uniform and that uniformity is established by judicial precedents. It is noted for its
constancy because without that, it would be nothing but the law of the jungle. It is enjoyed by the
people who inhabit a particular state which commands obedience through the judicial processes.
It is backed by the force and might of the state for purposes of enforcement. Civil law has an
imperative character and has legal sanction behind it. It is essentially of territorial nature. It
applies within the territory of state concerned. It is not universal but general. It creates legal
rights, whether fundamental or primary. The term civil law is derived from jus civile or civil law
of the Romans. It is not so popular today as it used to be. The term positive law has become more
popular than civil law. Sometimes, the term municipal law is uded in place of civill law.

Common Law

The general law of England can be divided into three parts viz., statue law, equity and
common law. Statute law is made by the legislature and equity was developed by the court of the
chancery. According to salmond: “the common law is he entire body of English law, the total
corpus juris angliae with three exceptions, namely (1) statute law, (2) equity and (3) special law
in its various forms.” The expression common law was adopted by English lawyers from the
canonists who used it to denote the general law of the church as opposed to those divergent
usages which prevailed in different local jurisdictions and superseded or modified within their
territorial limits the common law of Christendom.

Equity

It was found during the 13th century in England that common law had become very rigid
and that rigidity should be lessened by supplementing it by rules governed by the conscience of
the judge. There were certain rules of natural justice prevalent at that time and those were used to
supplement the principles of common law. The result was that a party who could not get any
relief in the ordinary course, applied to the King who was the fountain of justice. The king
referred those petitions to the Lord Chancellor who was “their keeper of the Kings’ conscience.”
The Lord Chancellor considered those applications and gave relief in fit cases, particularly in
those of frauds, errors and unjust judgments.

Kinds of special law

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 Salmond refers to six kinds of special laws and those are Local Law, Foreign Law,
Conventional Law, Autonomic Law, Martial Law and International Law as administered in Prize
Courts.

(a) Local Law: Local Law id the law of a particular locality and not the general law of the
whole country. There may be customs which have obtained the force of law in certain
localities and within those localities, that customary law superseded the general law.
(b) Foreign Law: It is essential in many cases to take account of system of foreign law and
to determine the rights and liabilities of the parties on that basis. Ignorance of law is no
excuse and everyone is supposed to know the law of the land. However, ignorance of
foreign law is like the ignorance of fact and can be excused.
(c) Conventional Law: Conventional law has its source on the agreement of those who are
subject to it. Agreement is law for those who make it. Examples of conventional law are
the rules of a club or a cooperative society. Some other examples of conventional law are
the articles of association of a company, articles of partnership etc.
(d) Autonomic Law : By autonomic law is meant that species of law which has its sources in
various forms of subordiante legislative authhority possessed by private persons and
bodies of persons. A railway company may make bye-laws for regulating its trafiic.
Likewise, a university may make statutes for the government of its members. An
incorporated company can alter its articles and impose new rules and regulations upon
the shareholders. Although autonomic law is not incorporated into the general law of the
community, these rules are constituted by the exerice of autonomic powers of private
legislation. Autonomic laws are made by antonomous bodies for the government of their
memebrs.
(e) Martial Law : Martial law is the law administered in the courts maintained by military
authorities. Martial law is of three kinds :

(i) It is the law for the discipline and control of the army itself and is
commonly known as the military law. It affects the army alone and never
the civil population.
(ii) The second kind of martial law is that by which in times of war, the army
governs any foreign land in its military occupation. The country is
governed by the military commander through the prerogative of the
socereign. The law in this case depends upon the pleasure of the mil;itary
commanders.
(iii) The third kind of martial law is the by which in times of war, the army
governs the realm itself in derogation of the civil law so far as the same is
required for public safety or military necessity. The temporary
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 establishment and military justice isd known as the proclamation of
martial law. Courts cannot question the validity of the actions of a military
commander if he had cted honestly.

(f) International law as administered in prize courts (Prize Law): Interantional law is
kind of conversation law is a kind of conventional law. As a special law, it refers to that
portion of the state in times of war. Prize law is that part of law which regulates the
practice of the capture of ships and cargoes at sea in times of war. International law
requires that all states desiring to exercise the right of capture must establish and maintain
within their territories what are known as prize courts. It is the duty of those courts to
investigate the legality of all the captures of ships and cargoes. If the seizure is lawful, the
property is adjudges as a lawful prize of war. Prize courts were set up to decide the fate
of the ships and cargoes captured during the war between India and Pakistan in 1971.
(g) Mercantile customs: Another kind of special law consists of the body of mercantile
usage known as the Law Merchant. The whole of the Indian Law relating to hundis
derives its origin from mercantile customs.

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 UNIT- 4

The origin of State has been a favourite subject of speculation. The Greeks organised city-
states which according to them had a divine origin. And sovereignty is one of the chief attributes
of statehood. This term was for the first time introduced by the French political thinker Jean
Bodin…
STATE
Salmond defines State as “an association of human beings established for the attainment of
certain ends by certain means”. A state is the most important of all associations and is
distinguished from all of them by its functions. The chief ends for which human beings associate
state are :
(i) to prevent war
(ii) for the administration of justice
The means employed to attain these ends is the physical force of the State.
According to Holland, “A State is a political society. He further writes society means a natural
unit of a large number of human beings united together by a common language and by a
common language and by similar customs and opinions resulting from common ancestry,
religion and historical circumstances.”
Grotius defines States as “the complete union of freemen who join themselves together for the
purpose of enjoying law and for the sake of public welfare.”
ORIGIN AND EVOLUTION OF THE STATE
The origin of State has been a favourite subject of speculation. The Greeks organised city-
states which according to them had a divine origin. Later speculators were not convinced with
the divine origin of States, explain the rise of political society by the hypothesis of an “original
contract” theory of which Hugo Grotius was the main supporter. However, this theory was later
proved as superfluous and untenable by subsequent thinkers.
ESSENTIAL ELEMENTS OF STATE
It may be reiterated that a State is nothing but an independent political society which is made for
the maintenance of peace and administration of justice amongst its population. A state has the
following elements :
1. Population: It implies a considerable group of human beings living together in a community since
the State comes into existence for the people, the population is one of the essential elements of
the State. There is no fixed number of persons to constitute a State, but it must be a considerable
number.
2. Territory: No people can constitute a State if they are not permanently settled on a fixed territory.
The territory of a State includes land, water and airspace. More than one state cannot be located
on the same territory. The size of the State is not materialistic.
3. Government: It is the important machinery or agency by means of which the State maintains its
existence, carries on its functions and formulates, expresses and realizes its policies and objectives.
It is regarded as indispensable because without it the state cannot exist.
4. Sovereignty: Sovereignty of a State implies that it is free from any kind of external control and
commands habitual obedience from the people within its territory. It confers upon the state two

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 things namely internal supremacy and external independence. It can also be defined as supreme
and unfettered authority within a state.
FUNCTIONS
It has been generally accepted that for an administration of justice, are the two main functions of
the State. The functions of the State are divided into two categories which are Primary and
Secondary.
Primary Functions
The primary functions of a State are war and administration of justice. The fundamental purpose
and end of political society is a defence against external enemy and maintenance of law and
order within the country. These are also called the constituent functions as they are necessary for
the very existence of the State. Herbert Spencer also supported the view that the primary
functions of the State include defending the country against external aggression and to maintain
internal law and order.
Secondary Functions
A State may exist without discharging these functions as they are not essential. These functions
are mostly related to welfare activities of the State. The main secondary functions of the State are
legislation and taxation. There are also two theories of the State – socialism and individualism.
Under the former theory, the state assumes itself an unlimited variety of functions and the in the
latter theory, the state leaves the individuals free.
THEORIES OF THE STATE
THE DIVINE THEORY
This is the oldest theory of the origin of the State. The Jews believed that God appointed the
king, deposed him and even killed bad rulers. The king of the Jews was therefore looked upon as
the agent of God and was regarded as responsible to him. The theory of divine creation leads to
the theory of divine right of Kings. Not only is the state a divine institution, it is also ruled by the king
who acts as the agent and representatives of God. This aspect of the theory was fully developed during the
16th and 17th centuries. The leaders of the reformation movement used this theory to support and justify
the Institution of absolute monarchy. King is like a father compared with his children or like the head as
compared with the body, without him, there can be no Civil Society. Today no one believes in this theory
because it is based on faith and not reason.
THE SOCIAL CONTRACT THEORY
The most famous exponents of the social contract theory are Hobbes, Locke and Rousseau. The
substance of the social contract theory is that the state was created by men, by means of a
contract. In the earlier times, there was no state and no man-made laws as men regulated their
conduct on the basis of the laws prescribed by nature but there was no human agency to
formulate and enforce the laws of nature. Men entered into an agreement and created the state.
According to Hobbes, man is selfish By Nature. According to Locke, man is social by nature and
according to Rousseau, human nature is made up of 2 elements: self-preservation and sympathy
for others. The theory plays an important role in the people struggle against absolute monarchy.
PATRIARCHAL THEORY
According to this theory, the state is the natural extension of the family. The early family was
patriarchal. Descent in the family was traced through males and the eldest male parent exercised
Supreme authority over all members of the family.

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MATRIARCHAL THEORY
According to this theory, the early society was matriarchal. The Institution of the family did not
exist. People lived in groups. The descent was traced through the mother. The matriarchal
society evolved into a patriarchal society which ultimately led to the emergence of the state.
EVOLUTIONARY THEORY
The state is not an invention; it is a growth and evolution the result of the gradual process
running throughout the known history of man. It is now commonly agreed that four factors
particularly influence the process of evolution of the state.
KINSHIP
Whether the primitive form of society was patriarchal or matriarchal, is a subject of controversy
but there is no doubt that kinship of blood relationship was the first and the strongest bond of
social organization. It was blood relationship that was the fundamental bond of union
everywhere in primitive societies.
RELIGION
Religion was another element that welded together families and tribes. Religion was linked with
kinship. All the members of the family or group worshipped together their ancestors. It may be
said that religion plays an important role in primitive Social Organisation.
CLASS STRUGGLE AND WAR
Class struggle and war were important factors in the origin and development of the state.
Reorganization of primitive communities was very simple there was no need for organized
forced to maintain unity and discipline.
POLITICAL CONSCIOUSNESS
Political Consciousness was another important factor that contributed to the emergence of
political power. It may be described as the innate feeling among men that they have certain aim
and objects which they cannot achieve without living under an organized authority.
It may be reasonably concluded that the origin of the state cannot be assigned to a particular
point of time or one particular factor it has evolved gradually with certain specified factors
playing an important role in its growth and development these factors are kinship religion war
and political consciousness.

THE DOCTRINE OF SOVEREIGNTY

Meaning of Sovereignty

The word “sovereignty” is derived from the Latin word “superannus” meaning supreme.
It means the supreme power of the state over all individuals and associations within its own
territorial limits. This is internal sovereignty of the state whereby the state is the final authority to
make laws, issue commands and take political decisions which are binding upon all individuals
and associations within its jurisdiction. It has the power to command obedience to its laws and
commands and to punish the offenders who violate the same.

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At the same time, sovereignty also involves the idea of freedom from foreign control, i.e., the
independence of the state from the control or interference of any other state in the conduct of its
international relations. This is what is called external sovereignty whereby a state has the power
to independently determine its own foreign policy and has the right to declare war and make
peace. At the same time, external sovereignty implies that each state, big or small, by virtue of its
sovereign status is equal to every other state. It can command no other state and it cannot itself
be commanded by any other state.

Accordingly, sovereignty of the state has two aspects, namely, internal and external sovereignty.

Sovereignty is an essential element of the state and with every change in the conception of the
state, the concept of sovereignty has also varied from age to age. The Greek philosopher
Aristotle spoke of the “supreme power” of the state. The Roman jurists were also familiar with
the notion. During the Middle Ages, the idea of sovereignty was associated either with the
authority of the king or with the Pope.

Characteristics of Sovereignty

There are many characteristics or attributes of sovereignty. These are discussed below:

 Absoluteness: Sovereignty is regarded as absolute. This means that neither within the
state nor outside it , is there any power which is superior to the sovereign. The will of the
sovereign reigns supreme in the state. His obedience to customs of the state or
international law is based on his own free will.
 Permanence: The sovereignty of a state is permanent. Sovereignty lasts as long as an
independent state lasts. The death of a king or president or the overthrow of the
government does not mean the destruction of sovereignty as the ruler exercises sovereign
power on behalf of the state and therefore, sovereignty lasts as long as the state lasts.
 Universality: Sovereignty is a universal, all-pervasive or all-comprehensive quality in the
sense that it extends to all individuals, groups, areas and things within the state. No
person or body of persons can claim exemption from it as matter of right. The immunity
granted to diplomats from other countries is only a matter of international courtesy and
not of compulsion.
 Inalienability: Sovereignty is inalienable. It means that the state cannot part with its
sovereignty. The state as a sovereign institution ceases to exist, if it transfers its
sovereignty to any other state.
 Indivisibility: As sovereignty is an absolute power, it cannot be divided between different
sets of individuals or groups. In every state, sovereignty must be vested in a single legally

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 competent body, to issue the final commands. Division of sovereignty is bound to give
rise to conflicting and ambiguous commands.
 Imprescriptibility: This implies that sovereignty can neither be destroyed nor lost if it has
not been exercised for a long period. A people may not have exercised sovereignty for
some time due to control by a foreign power. But non-exercise of sovereign power does
not put an end to sovereignty itself. It can only shift to a new bearer.
 Originality: The most important characteristic of sovereignty is its original character.
Sovereignty cannot be manufactured. Dependence on another for supreme power cannot
make a state a sovereign one.

Different kinds of sovereignty exist in the world. These are discussed below:

Titular and Real Sovereignty

A titular sovereign is one who is sovereign only in name and not in reality. Although
outwardly, the power is vested in one person, the real power is enjoyed by another. Such a
situation prevails in parliamentary democracies. The King or Queen in England is the Titular
head and he/she does not enjoy any real power. Actual powers are enjoyed by ‘King/Queen-in-
Parliament’ which constitutes the real sovereign. In case of India, the President of India is the
titular sovereign and the real power lies in the hands of the Council of Ministers headed by the
Prime Minister which constitutes the real sovereign.

De facto and de jure Sovereign

Sometimes, the existing regime in a state is overthrown through unconstitutional means,

as in the case of a military takeover. In such a situation, until the new sovereign is legally
established and recognized, there may exist two sovereigns-one in the legal sense, who has lost
his real powers; the other in the practical sense who has not yet been legally established. The de-
facto sovereign may not have any legal claim to obedience, but he is a practical sovereign whose
authority is based on physical force or moral persuasion and the people are compelled to obey
him. Under such circumstances, the legal or formal sovereign retains de-jure sovereignty while
the actual sovereign is said to be the de-facto sovereign. In the present-day world there have been
several instances where military generals have overthrown constitutionally elected governments,
thereby usurping all powers of the state. Such a takeover makes the military general the de-facto
or actual sovereign possessing real powers, while the dethroned regime, which still is the legal or
formal sovereign, retains de-jure sovereignty. In course of time, the de-facto sovereign, by
securing the consent of the people through elections or otherwise, may become a de-jure
sovereign. The best example of de-facto sovereignty, in modern times, is furnished by the case of

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Spain under General Franco who captured the authority of the State by defeating the Republican
Government of Spain. Though he began to rule by force, gradually he was trying to be a de-jure
sovereign by winning the consent of the people. Historically too, there have been several
examples of the emergence of de facto sovereignty. Some of these are: the authority exercised by
Cromwell in England, by Napoleon in France and the Bolshevist group in Russia after 1917.

Legal and Political Sovereignty

The legal sovereign is the supreme law making body. In every independent state, there
are some laws which must be obeyed by the people and there must be a power to issue and
enforce these laws. The power which has the legal authority to issue and enforce these laws and
final commands is the legal sovereign. It may vest in one person or a body of persons. It alone
declares, in legal terms, the will of the state. Law is a command of the sovereign and he who
violates it is liable to be punished. The King/Queen-in-Parliament is the legal sovereign in the
UK.

Political sovereignty is vested in the electorate, public opinion and all other influences of the
state which mould or shape public opinion. The political sovereign is represented by the
electorate or the body of voters in the state. The electorate, that is, the political sovereign, elects
the legal sovereign in the form of the members of the parliament. Accordingly, the political
sovereign controls the legal sovereign. It lies behind the legal sovereign. According to
A.C.Dicey, “Behind the sovereign whom the lawyer recognizes there is another sovereign to
whom the legal sovereign must bow.”

Popular Sovereignty

The concept of popular sovereignty regards people as the source of all authority in the
state. All organs of the government, whether it is the executive, the legislature or the judiciary,
derive their power and authority from the will of the people taken as a whole. Accordingly, the
idea of popular sovereignty implies that the supreme power in the state rests with the people. The
Preamble to the Constitution of India contains the idea of popular sovereignty. It begins with the
phrase, “WE, THE PEOPLE OF INDIA …” and ends with the phrase, “…HEREBY ADOPT,
ENACT, AND GIVE TO OURSELVES THIS CONSTITUTION.”

In modern times, the development of sovereignty as a theory coincided roughly with the
growth of the state in terms of power, functions and prestige. In the nineteenth century, the
theory of sovereignty as a legal concept (i.e. sovereignty expressed in terms of law) was
perfected by John Austin, an English jurist. He is regarded as the greatest exponent of the

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“Monistic theory of sovereignty.” It is called the Monistic Theory of Sovereignty because it
envisages a single sovereign in the state. The sovereign may be a person or a body of persons.
Furthermore, as sovereignty is considered to be a legal concept, the theory is called the Legal-
Monistic theory of Sovereignty. John Austin, in his famous book, Province of Jurisprudence
Determined (1832), stated his views on sovereignty in the following words: “If a determinate
human superior not in the habit of obedience to a like superior receives habitual obedience from
the bulk of a given society, that determinate superior is sovereign in that society and that society
(including the superior) is a society political and independent.”

On an analysis of the above definition, we could find the following implications:

Firstly, sovereignty must reside in a “determinate person” or in a “determinate body” which acts
as the ultimate source of power in the state.

Secondly, the power of the determinate superior is unlimited and absolute. He can exact
obedience from others but he never renders obedience to any other authority.

Thirdly, the obedience rendered by a people to an authority occasionally will not turn the
authority into sovereign power.

Fourthly, obedience rendered to sovereign authority must be voluntary and as such undisturbed
and uninterrupted. Austin also points out that it is not necessary that all the inhabitants should
render obedience to the superior. It is enough if the “bulk”, i.e., the majority of a society renders
habitual obedience to the determinate superior.

Fifthly, the sovereign is the supreme law maker. Laws are the commands of the sovereign which
are binding upon all within the territorial jurisdiction of the state. Breach or violation of these
commands leads to punishment from the sovereign.

Sixthly, sovereignty is one indivisible whole and as such incapable of division between two or
more parties. There can be only one sovereign authority in a state.

CRITICAL EVALUATION OF AUSTIN’S THEORY

The theory of Austin has been strongly criticized by many writers like Sidgwick, Sir
Henry Maine and others. The main point of criticism against Austin’s theory is that the theory is
inconsistent with the modern idea of popular sovereignty. In his fascination for the legal aspect
of sovereignty, Austin completely loses sight of popular sovereignty according to which the

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ultimate source of all authority is the people. It is also pointed out that sovereignty may not
always be determinate. It is very difficult to locate the sovereign in a federal state. For example,
in the federal state of USA, sovereignty resides neither with the President nor with the
legislature, namely, the Congress. It resides with the people as expressed in the constitution. The
same is the case in India.

Furthermore, Austin has been criticized for defining law as the command of the
sovereign. But in many countries, customary laws are supreme and they are not issued in the
form of commands. But such laws influence the conduct of even despots to a great extent. Sir
Henry Maine cites the example of Ranjit Singh of Punjab who fits the Austinian conception of
human superior. But even a despotic ruler like Ranjit Singh dared not change the customary laws
which regulated the conduct of his people. According to the advocates of the Pluralist theory of
sovereignty, the state is an association like various other associations.

However, in spite of the criticisms levelled against the monistic view of sovereignty as
propounded by John Austin, it must be mentioned that Austin is an exponent of absolute and
unlimited sovereignty purely from the legal or formal point of view. Fundamentally, he does not
prescribe for an irresponsible sovereign, but maintains that the sovereign cannot be formally
made responsible to any authority similar to himself: His authority is legally superior to all
individuals and groups within his jurisdiction. Austin has done a distinct service by clearly
distinguishing the legal from the political sovereign.

Pluralism or the Pluralist theory of sovereignty emerged as a reaction against the

Monistic theory of sovereignty which we have discussed in the previous section. The Pluralist
theory emerged in response to the undue emphasis on the power of the state as advocated by the
monists. Some of the leading exponents of the Pluralist theory include Emile Durkheim, Otto
von Gierke, F.W.Maitland, G.D.H.Cole, Sidney and Beatrice Webb, Miss M.P.Follet and Prof.
Harold Laski. The Pluralist theory of sovereignty rejects the monistic theory of sovereignty and
denies that sovereignty is the absolute and indivisible supreme power of the state.

PRINCIPLES OF PLURALISM

 Pluralistic Nature of Society: The Pluralist theory recognizes the role of several
associations in the society, formed by men in pursuance of their varied interests. Such
associations include the church and other religious organizations, trade unions,
cooperative societies, voluntary associations and the like. At best, the state is but one of
these associations, standing side-by-side with them and not above them. The state is not
distinct from these associations.

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  Role of the State as Coordinator: Just as an association coordinates the activities of its
members, the state also coordinates the activities of the other associations in the society.
The state is a means of resolving the conflicting claims of these associations. It does so
by evolving a common basis of their functioning, not by imposing its own will on them
but by way of harmonizing and coordinating their several interests so as to secure the
“common good” or the interest of the society at large.

The Pluralist theory maintains that the claim of the state to superior authority cannot be taken
for granted. The state enjoys a privileged position in the sense that its jurisdiction is compulsory
over all individuals and associations within its fold. It is equipped with coercive powers so that it
can punish those who defy its commands. But the state must justify the exercise of its special
powers. As an association of associations, the state must fulfil its moral obligation of
harmonizing the interests of all associations operating in the society, without being influenced by
any “vested interests” while exercising its authority.

 Decentralization of Authority: The Pluralists hold that the complexity of the economic
and political relations of the modern world cannot be dealt with by a monolithic view of
the state. Therefore, the management and control of society must be shared by various
associations in proportion to their contribution the social good. Accordingly, the
pluralists stand for the decentralization of authority so that all authority is not
concentrated in the hands of the state.

CRITICAL EVALUATION OF THE PLURALIST THEORY

However, in spite of the criticisms leveled against the Pluralist theory of sovereignty, it
must be mentioned that the pluralist theory was a democratic reaction against state absolutism. It
pointed out the limitations on the authority of the state while acknowledging the role and
importance of various groups and associations in the society.

Lastly, coming to the Marist view on sovereignty, they take a very narrow view of
sovereignty because they believe that it is intended to protect the interests of the dominant class
of society. According to Marxists, the State shall wither away with the development of a
classless society. In their view, sovereignty of the state is limited by International Law which
imposes a check on the absolute power of the State. They consider it as a “great stumbling block
on the oath of international progress.” However, this accusation of a restraint of liberty and a
lack of opportunity was derided by and opposed by John Rawls, who believed that a society in
time develops on a meritocratic model and asserted that the basic purpose of the society which is
to assure its citizens of freedom and opportunity shall be sustained.

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 UNIT-5

SOURCES OF LAW

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

CLASSIFICATION OF SOURCESOF LAW

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

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court decisions are binding as law.
There are three major sources of law can be identified in any modern society are as follows:

Custom

Judicial precedent

Legislation

CUSTOM AS ASOURCE OF LAW

Custom can simply be explained as those long established practices or unwritten rules which
have acquired binding or obligatory character. In ancient societies, custom was considered as one
of the most important sources of law; In fact it was considered as the real source of law. With the
passage of time and the advent of modern civilization, the importance of custom as a source of
law diminished and other sources such as judicial precedents and legislation gained importance.
There is no doubt about the fact that custom is an important source of law. Broadly, there are two
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed
custom as law because it did not originate from the will of the sovereign. Jurists like Savigny
consider custom as the main source of law. According to him the real source of law is the will of
the people and not the will of the sovereign. The will of the people has always been reflected in
the custom and traditions of the society. Custom is hence a main source of law.

Analytical Positivist School of Thought-

Austin said that the term ‘source of law’ has three different meanings:

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

2. This term refers to the historical document from which the body of law can be known.

3. This term refers to the causes that have brought into existence the rules that later on acquire
the force of law. E.g. customs, judicial decision, equity etc.

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

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

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

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

Salmond on Sources of Law-

Salmond has done his own classification of sources of law:

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

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

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

i. Unauthoritative Writings

ii. Legal Sources- Legal Sources are instruments or organs of the state by which legal rules are
created for e.g. legislation and custom. They are authoritative in nature and are followed by the
courts. They are the gates through which new principles find admittance into the realm of law.
Some of the Legal Sources are:

a. Legislations

b. Precedent

c. Customary Law

d. Conventional Law- Treatises etc.

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Charles Allen said that Salmond has attached inadequate attention to historical sources.
According to him, historical sources are the most important source of law.

Keeton said that state is the organization that enforces the law. Therefore, technically State
cannot be considered as a source of law. However, according to Salmond, a statute is a legal
source which must be recognized. Writings of scholars such Bentham cannot be considered as a
source of law since such writings do not have any legal backing and authority.

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

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

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

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

Sources of Law: Are they sources of Right too?

A Legal Right means a fact that is legally constitutive of a right. A Right is the de facto
antecedent of a legal right in the same way as a source of law is de facto antecedent of a legal
principle Legislation- ‘Legis’ means law and ‘latum’ means making. Let us understand how
various jurists have defined legislation.

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

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

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

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

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Historical School of Thought- This group of gentlemen believe that Legislation is the least
creative of the sources of law. Legislative purpose of any legislation is to give better form and
effectuate the customs and traditions that are spontaneously developed by the people. Thus, they
do not regard legislation as source of law.

Types of Legislation

1. Supreme Legislation- A Supreme or a Superior Legislation is that which proceeds from the
sovereign power of the state. It cannot be repealed, annulled or controlled by any other
legislative authority.

2. Subordinate Legislation- It is that which proceeds from any authority other than the sovereign
power and is dependant for its continual existence and validity on some superior authority.

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

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

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

Controls over Delegated Legislation

Direct Forms of Control

1. Parliamentary Control

2. Parliamentary Supervision

Indirect Forms of Control

1. Judicial Control- This is an indirect form of control. Courts cannot annul subordinate
enactments but they can declare them inapplicable in special circumstances. By doing so, the

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rules framed do not get repealed or abrogated but they surely become dead letter as they become
ultra vires and no responsible authority attempts to implement it.

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

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

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

Salient Features of Legislation over Court Precedents

1. Abrogation- By exercising the power to repeal any legislation, the legislature can abrogate any
legislative measure or provision that has become meaningless or ineffective in the changed
circumstances. Legislature can repeal a law with ease. However, this is not the situation with
courts because the process of litigation is a necessary as well as a time-consuming process.

2. Division of function- Legislation is advantageous because of division of functions. Legislature

can make a law by gathering all the relevant material and linking it with the legislative measures
that are needed. In such a process, legislature takes help of the public and opinion of the experts.
Thus, public opinion also gets represented in the legislature. This cannot be done by the judiciary
since Judiciary does not have the resources and the expertise to gather all the relevant material
regarding enforcement of particular principles.

3. Prospective Nature of Legislation- Legislations are always prospective in nature. This is

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

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

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are based on bias and prejudices of the judge who is passing the judgment thereby making it
uncertain.

5. Form- Enacted Legislation is an abstract proposition with necessary exceptions and

explanations whereas Judicial Pronouncements are usually circumscribed by the facts of a
particular case for which the judgment has been passed. Critics say that when a Judge gives
Judgment, he makes elephantiasis of law.

Difference between Legislation and Customary Law

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

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

essentially de Facto.

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

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

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

6. Legislation is precise, complete and easily accessible but the same cannot be said about
customary law. Legislation is jus scriptum.

7. Legislation is the result of a deliberate positive process. But customary law is the outcome of
necessity, utility and imitation.

Advantage of Court Precedents over Legislation

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

2. Salmond said that “Case laws enjoys greater flexibility than statutory law. Statutory law
suffers from the defect of rigidity. Courts are bound by the letter of law and are not allowed to
ignore the law.”

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

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

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

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

Precedent as a Source of Law

The Doctrine of Precedant in India: All ancient texts suggest that "That path is the right one
which has been followed by virtuous men. On the basis of this there was the theory of
precedent in India.

Later on, on 1st October, 1937 a Federal Court was established in India under the provisions of
government of India Act, 1935. The hierarchy of the Courts before independence of India was as
under-
1. Privy Council/Kind-in-council.
2. Federal Court
3. High Courts, and
4. District Courts.

Thus, the decisions of the Federal Court were binding on all the courts below. The decisions
of the Privy council were binding on the Federal Court and the Court below. The Privy Council
was not bound by its n decisions. During British time the Obiter Dicta (things said by the way)
was binding on all the courts British India. After independence the Supreme Court of India was
established as the highest court of India. The Article 141 the Constitution enacts that the
decision of the Supreme Court is binding on all the Indian Courts. The Supreme Court,
sometimes overrules its earlier decisions or in other words, the Supreme Court is not bound by
15
its earlier decision (Art. 143 of the Constitution). The overruling is not a good law but if any thing
is detrimental to the general welfare of the public, the Supreme Court overrules the same as it has
been done by the Supreme Court in Sajjan Singh vs. State of Rajasthan and Shankari Prasad
case. The question before the court was whether the parliament has the power to abridge or to
take away the fundamental rights of the citizens. The Supreme Court held that yes, the
parliament has the power to abridge or to take away the fundamental rights of the citizens. But
in Golak Nath case Supreme Court reversed/ overruled its earlier decision and held that the

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 parliament has no power to take away the fundamental rights of the citizens. The Supreme
Court evolved the Doctrine of prospective overruling and declared that the decision of Golak
Nath case will only be applicable to the future cases. This decision was not given retrospective
operation so that there will be no choas and confusion among the masses and the whole
progress of the country shall be dashed to ground. So the Obiter Dicta declared by the Supreme
Court alongwith the ratio in a particular case is not binding on all the tribunals/subordinate
courts in India as it was being done during British period (that the Obiter Dicta declared by the
Privy Council was binding on all the Courts, subordinate to Privy Council, in India)

Hierarchy of Courts under Indian Constitution

Supreme Court

High Courts (in each of the States)

District and Sessions Judges Courts (in each

of the Districts)

Civil (Civil Judge/Court of Munsif) CJM (Criminal)

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 Small Cause

Courts

Nayaya

Panchayats

Judicial
Magistrate Executive Magistrate

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The Application of the Doctrine: The authority of a decision as a precedent lies in its ratio
decidendi. It is, therefore, necessary to know what this ratio decidendi is and how it is
determined.

Ratio decidendi and obiter dictum. There are cases which involve questions which admit of
being answered on principles. Such principles are deduced by way of abstraction of the
material facts of the case eliminating the immaterial elements. And as the result the principle
that comes out, is not applicable only to that case, but to other cases also which are similar
to the decided case in their essential features. This principle is known as ratio decidendi,
The issues which need determination of no general principles are answered on the basis of
the circumstances of the particular case and lay down no principles of general application.
These are called obiter dictum. It is the ratio decidendi or the general principle, and not the
obiter dictum that
has the binding effect as a precedent. But the determination of ratio decidendi and obiter
dictum is not so easy in practice as it appears to be in theory. Many eminent jurists have laid
down principles and methods to determine the ratio decidendi of a decision. But the task is
full of difficulties. Prof. Goodhart has made an elaborate discussion about the structure of a
case and has suggested methods for the determination of the ratio decidendi, but he too has
failed in laying down infallible test. In cases in which the reasons for the decision are not
given, or where judges have come to the same conclusion, but have given different, and,
sometimes, contrary reasons, or where a reason, is only a hypothesis it is very difficult to
find out the ratio decidendi. But this difficulty serves useful purpose also. It is for the judge
to determine ratio decidendi and to apply it on the case which he is going to decide. This
gives an opportunity to him to mould the law according to the changed conditions by laying
emphasis on one or the other point.

When an appeal is heard by an even number of the judges and they are equally divided, the
practice is that the appeal is deemed to have failed, and it is the resultant negative which is
regarded as the precedent for the future.

Precedents are cited not only in those courts, or tribunals where they have obligatory force,
but also where the precedent cited is in any way relevant in answering the question
involved. And relevant decision of a court is a strong argument and it is given a respectful
consideration. A precedent may be cited from any source which is reliable. Generally, the
reports are used, and some reports are considered more authoritative than the other.

A precedent is not abrogated by lapse of time. With the passing of the time the authority of a
precedent goes on strengthening if the law on that point is not altered by some statute. But
very ancient precedents are, sometimes, inapplicable due to the changed circumstances,
and then the courts resort to 'distinguishing' and get rid of the binding authority of such
precedents. Precedents have been compared with wine, which 'improves with age up to a
certain point and then begins to go off."

Merits and Demerits of the Doctrine: It is clear from the discussion made in the preceding
page that the doctrine has assumed a very important place in modern times. A number of
jurists have expressed their views for and against the doctrine. The supporters of the

76
doctrine put forward the following arguments in support of the doctrine-

Merits:
1) It shows respect for the opinion of one's ancestors. Eminent jurists like Coke and
Blackstone have supported the doctrine on this ground. They say that there are always
some reasons behind these opinions, we mayor may not understand them.

2) Precedents are based on customs, and, therefore, they should be followed. Courts
follow them because "these judicial decisions are the principal and most authoritative
evidence that can be given of the existence of such a custom as shall form a part of the
common law". Therefore, in following precedents we follow customs which in their turn
have been a general practice or conduct of the people for a long time, and not only the
opinion of a judge.

3) As a matter of great convenience it is necessary that a question once decided should be

settled and should not be subject to re-argument in every case in which it arises. It will
save the labour of the judges and the lawyers. If the precedents are not followed, every
case would go from the court of the first instance to the highest tribunal causing a lot of
delay, expense and inconvenience to the public. At the same time, it will cause a great
impediment in the way of the administration of justice.
4) Precedents bring certainty in law. If courts do not follow precedents and the judges
17
start deciding and determining issues every time afresh without having regard to the
previous decisions on the point, the law would become most uncertain. A good law
should always be certain. This certainty can be brought about only by conferring
authority on precedents.

5) Precedents bring flexibility in the law. Judges in giving their decisions are
influenced by social, economic and many other values of their age. They mould and
shape the law according to the changed conditions and thus bring flexibility in the law.

6) Precedents are Judge-made law. Therefore, they are more practical. They are based
on actual cases. It is not like statute law which is based on a priori theories. The law
develops through precedents according to actual needs. This development is based on
experience. Thus, it is better suited to fulfill the ends of law.

7) Precedents bring about a scientific development in law. In a case Baron Parke

observed-"lt appears to me to be of great importance to keep the principle of decision
steadily in view, not merely for the determination of the particular case, but for the
interest of law as a science." In other words, precedents bring logical perfection in law and
put the law in the form of principles.

8) Precedents guide judges and, consequently, they are prevented from committing
errors which they would have committed in the absence of precedents. The law, in
precedents, is laid down after thrashing of the points and argument in great detail.
Therefore, it is of great value to the judges. By following precedents, judges are
prevented from any prejudice and partiality because precedents are binding on them.

77
 By deciding cases on established principles, the confidence of the people in the
judiciary is strengthened.

9) As a matter of policy, decisions, once made on principle should not be departed from
in the ordinary course. When reliance has been placed on a decision and the people
have adjusted their rights and liabilities according to it, they should not be disappointed
by an overruling of such decision. Jessel, M.R., in a case, observed:"Where a series of
decisions of inferior courts have put a construction on an Act of Parliament, and thus,
made a law which men follow in their daily dealings, it has been held, even by the House
of Lords, that it is better to adhere to the course of the decision than to reverse them
because of the mischief which would result from such a proceeding. Of course, that
requires two things, antiquity of decision, and the practice of mankind in conducting their
affairs."

DEMERITS OF THE DOCTRINE:

1) There is always a possibility of overlooking authorities. The vastly increasing
number of the cases has an overwhelming effect on the judge and the lawyer. It is very
difficult to trace out all the relevant authorities on every point. There are instances
where a decision might have been different if some precedent would not have been
overlooked.

2) Sometimes, the conflicting decisions of superior tribunal throw the judge of a

lower court on the horns of a dilemma. The courts are faced with what an English
judge called "complete fog of authorities". Though there are rules for such
contingencies, they are not of much help. The provision is that the lower court should
choose between the two conflicting decisions of a superior court. But this makes law
uncertain, depending on the individual interpretation and discretion.
3) A great demerit of the doctrine of precedent is that the development of law depends on
the incidents of litigation. Sometimes, most important points may remain
unadjudicated because nobody brought action upon them.

4) A very grave demerit, or, rather an anomaly, of the doctrine of precedent is that,
sometimes, an extremely erroneous decision is established as law due to not being
brought before a superior court. This is followed in later cases because courts do not
allow the reopening of a question. Thus, it becomes a settled practice, and if, later on a
point is brought before a superior court in a case, it is obliged to approve it on the
principle "that it is not necessary or advisable to disturb a fixed practice which has
been long observed in regard to the disposition of property, even though it may have
been disapproved at times by individual judges, where no real point of principle has been
related".

In India, the judgment rendered by Supreme Court is binding on all the subordinate courts,
High Courts and the tribunals within the territory of the country. In case of a judgment
rendered by the High Court, it is binding in nature to the subordinate courts and the tribunals
within its jurisdiction. In other territories, a High Court judgment only has a persuasive
value. In Indo-Swiss Time Ltd. v. Umroo, AIR 1981 P&H 213 Full Bench, it was held that
78
“where it is of matching authority, then the weight should be given on the basis of rational
and logical reasoning and we should not bind ourselves to the mere fortuitous circumstances
of time and death”. Union of India v. K.S. Subramanium- AIR 1976 SC 2435- This case held
that when there is an inconsistency in decision between the benches of the same court, the
decision of the larger bench should be followed.

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

Till the 19th Century, Reported Court Precedents were probably followed by the
courts. However, after 19th century, courts started to believe that precedence not only has
great authority but must be followed in certain circumstances. William Searle Holdsworth
supported the pre-19th century meaning of the precedence. However, Goodheart supported the
post-19th century meaning.

Declaratory Theory of Precedence- This theory holds that judges do not create or change the
law, but they ‘declare’ what the law has always been. This theory believes that the Principles
of Equity have their origin in either customs or legislation. However, critics of this theory say
that most of the Principles of Equity have been made by the judges and hence, declaratory
theory fails to take this factor into regard.

Types of Precedents

1. Authoritative Precedent- Judges must follow the precedent whether they approve of it or
not. They are classified as Legal Sources.

2. Persuasive Precedent- Judges are under no obligation to follow but which they will take
precedence into consideration and to which they will attach such weight as it seems proper to
them. They are classified as Historical Sources.

Disregarding a Precedent- Overruling is a way by which the courts disregard a precedent.

There are circumstances that destroy the binding force of the precedent:

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

2. Affirmation or reversal by a different ground- The judgment rendered by a lower court

loses its relevance if such a judgment is passed or reversed by a higher court.

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

4. Inconsistency with earlier decisions of High Court

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

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

7. Erroneous Decision

Custom as a Source of Law

79
What is Custom? Custom may be defined as the uniformity of conduct of
people under like circumstances.

Those patterns of human behaviour which receive universal acceptance and recognition are
called sage and when in the course of time they get established, they are called customs.

In the Tanistry case custom is described as "It is just non-scriptum and made by the people in
respect of the place where the custom obtains. For where the people find any act to be good
and beneficial and apt and agreeable to their nature and disposition, they use and practise it
from time to time, and it is by frequent Iiteration and multiplication of this act that the
custom is made and being used. From time in which custom is made and being used to time in
which memory runneth not to the contrary obtains the force of law.

Herbert Spencer points out "Before any definite agency for social control is developed there
exists a control arising partly from the public opinion of the living, and more largely from
the public opinion of the dead". Thus, it is tradition passing on from one generation to another
that originally governed human conduct. This tradition is custom.

According to Halsbury's Law of England "A custom is a particular rule which has existed
either actually or presumptively from time immemorial, and has obtained the force of law
in a particular locality, although contrary to or not consistent with the general common law of
the realm".

CLASSIFICATION OF CUSTOMS:

Customs

Customs Having Sanction Customs without

Sanction

The customs in the wider sense can be classified as follows-

Customs without Sanction: Customs without sanction are those customs, which are non-
obligatory. They are observed due to the pressure of public opinion.

Customs having Sanction: Customs having sanction are those customs, which are enforced

80
 by the state. These are the customs with which we are concerned. These can be divided into two
parts-

i) Legal Customs.
ii) Conventional Customs.

Legal Customs: Legal Customs operate as a binding rule of law and have been recognized
by the courts and have become a part of the law of land. These customs are enforced by
courts and can further be classified as follows-

a) General Customs: General customs are those customs which prevail throughout
the territory of the state, though the customs which are treated to be part of law of the land
are general legal customs.

b) Local Customs: Local customs are those customs which apply to a defined locality
i.e. to a particular district or town. These can be classified as follows -

Geographical
/ Local.
Personal /
Local
Customs.

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

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

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

Roscoe Pound said that Customary Law comprises of:

1. Law formulated through Custom of popular action.

2. Law formulated through judicial decision.

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

Historical School of Jurisprudence- Von Savigny considered that customary law, i.e. “law
which got its content from habits of popular action recognized by courts, or from habits of
judicial decision, or from traditional modes of juristic thinking”, was merely an expression of
the jural ideas of the people, of a people’s conviction of right – of its ideas of right and of
rightful social control.

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However, it is the Greek historical School that is considered as the innovator of custom as
source of law. Otto Van Gierke, a German Jurist and a Legal Historian, said that “every true
human association becomes a real and living entity animated by its own individual soul”.
Henry Maine believed that custom is the only source of law. He said that “Custom is a
conception posterior to that of themestes or judgment.”

Ingredients of Custom

1. Antiquity

2. Continuous in nature.

3. Peaceful Enjoyment

4. Obligatory Force

5. Certainty

6. Consistency

7. Reasonableness

Antiquity:
In order to be legally valid customs should have been in existence for a long time, even
beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England
has been fixed for the determination of validity of customs.
Continuous:
A custom to be valid should have been in continuous practice. It must have been enjoyed
without any kind of interruption. Long intervals and disrupted practice of a raise doubts about
the validity of the same.
Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the community. It should not
have been practised secretly. Acustom must be proved to be a matter of right. A mere
doubtful exercise of a right is not sufficient to a claim as a valid custom.
Reasonableness:
A custom must conform to the norms of justice and public utility. A custom, to be valid,
should be based on rationality and reason. If a custom is likely to cause more inconvenience
and mischief than convenience, such a custom will not be valid.

Morality:
A custom which is immoral or opposed to public policy cannot be a valid custom. Courts
have declared many customs as invalid as they were practised for immoral purpose or were
opposed to public policy.

Status with regard to:

In any modern State, when a new legislation is enacted, it is generally preferred to the
custom. Therefore, it is imperative that a custom must not be opposed or contrary to

82
legislation. Many customs have been abrogated by laws enacted by the legislative bodies. For
instance, the customary practice of child marriage has been declared as an offence.

When Does A Custom Become Law: To answer this question two views have been given by
the jurists on this point, which are contrary to each other.

The view of Austin and Gray is that a custom becomes law after its recognition by the
Sovereign. Austin says that custom is a source of law; it itself is not law. His definition of
law that it is a command of the Sovereign does not allow the customs to be included in law.
A custom is not a 'positive law' unless it is so declared by the court, or, in other words, it is
not law until it has received judicial recognition or it has been embodied in some statute.

According to Savigny, who is the founder of this school, custom is per se law. A custom
carries its justification on itself. They are based on the opinion of the people and national
character. They embody those principles of justice which society recognises. He says custom
is the badge and not a ground of origin of positive law.
According to historical school, custom is law independent of any declaration or
recognition by the State. The State has no discretion or power over them except to accept
them.

Conclusion: Customs lie in the foundation of all legal systems. They came into existence
with the existence of the society. The customs are the basis of most of the laws, but at the
same times, Judges, Jurists and Legislatures have played a very vital role in moulding them.

Interpretation of statutes

The term has been derived from the Latin term ‘interpretari’, which means to explain,
expound, understand, or to translate. Interpretation is the process of explaining, expounding
and translating any text or anything in written form. This basically involves an act of
discovering the true meaning of the language which has been used in the statute. Various
sources used are only limited to explore the written text and clarify what exactly has been
indicated by the words used in the written text or the statutes. Interpretation of statutes is
the correct understanding of the law. This process is commonly adopted by the courts for
determining the exact intention of the legislature. Because the objective of the court is not
only merely to read the law but is also to apply it in a meaningful manner to suit from case to
case. It is also used for ascertaining the actual connotation of any Act or document with the
actual intention of the legislature. There can be mischief in the statute which is required to be
cured, and this can be done by applying various norms and theories of interpretation which
might go against the literal meaning at times. The purpose behind interpretation is to clarify
the meaning of the words used in the statutes which might not be that clear. According
to Salmond, “Interpretation” is the process by which the court seeks to ascertain the
meaning of the legislature through the medium of authoritative forms in which it is
expressed.

Construction meaning

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 In simple words, construction is the process of drawing conclusions of the subjects
which are beyond the direct expression of the text. The courts draw findings after analysing
the meaning of the words used in the text or the statutes. This process is known as legal
exposition. There are a certain set of facts pending before the court and construction is the
application of the conclusion of these facts. The objective is to assist the judicial body in
determining the real intention of the legislature. Its aim is also to ascertain the legal effect of
the legal text.

Difference between Interpretation and Construction

Interpretation Construction

1. Construction, on the other hand, refers

1. In law, interpretation refers to exposing
to drawing conclusions from the written
the true sense of the provisions of the
texts which are beyond the outright
statutes and to understand the exact
expression of the legal text.
meaning of the words used in any text.
2. The purpose of construction is to
2. Interpretation refers to the linguistic
determine the legal effect of words and
meaning of the legal text.
the written text of the statute.
3. In the case where the simple meaning of
3. In the case where the literal meaning of
the text is to be adopted then the concept
the legal text results in ambiguity then
of interpretation is being referred to.
the concept of construction is adopted.

Classification of Statutes

Codified statutory law can be categorized as follows-

Codifying statutes: - The purpose of this kind of statute is to give an authoritative statement
of the rules of the law on a particular subject, which is customary laws. For example- The
Hindu Marriage Act, 1955 and The Hindu Succession Act, 1956.

Consolidating statutes: - This kind of statute covers and combines all law on a particular
subject at one place which was scattered and lying at different places. Here, the entire law is
constituted in one place. For example- Indian Penal Code or Code of Criminal Procedure.

Declaratory statutes: - This kind of statute does an act of removing doubts, clarifying and
improving the law based on the interpretation given by the court, which might not be suitable
from the point of view of the parliament. For example- the definition of house property has
been amended under the Income Tax (Amendment) Act, 1985 through the judgment of the
supreme court.

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Remedial statutes: - Granting of new remedies for enforcing one’s rights can be done
through the remedial statutes. The purpose of these kinds of statutes is to promote the general
welfare for bringing social reforms through the system. These statutes have liberal
interpretation and thus, are not interpreted through strict means. For example- The Maternity
Benefits Act, 1961, The Workmen’s Compensation Act, 1923 etc.

Enabling statutes: - The purpose of this statute is to enlarge a particular common law. For
example- Land Acquisition Act enables the government to acquire the public property for the
purpose of the public, which is otherwise not permissible.

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Disabling statutes: - It is the opposite of what is provided under the enabling statute. Here
the rights conferred by common law are being cut down and are being restrained.

Penal statutes: - The offences for various types of offences are provided through these
statutes, and these provisions have to be imposed strictly. For example- Indian Penal Code,
1860.

Taxing statutes: - Tax is a form of revenue which is to be paid to the government. It can
either be on income that an individual earns or on any other transaction. A taxing statute thus,
levies taxes on all such transactions. There can be income tax, wealth tax, sales tax, gift tax,
etc. Therefore, a tax can be levied only when it has been specifically expressed and provided
by any statute.

Explanatory statutes: - The term explanatory itself indicates that this type of statute
explains the law and rectifies any omission left earlier in the enactment of the statutes.
Further, ambiguities in the text are also clarified and checked upon the previous statutes.

Amending statutes: - The statutes which operate to make changes in the provisions of the
enactment to change the original law for making an improvement therein and for carrying out
the provisions effectively for which the original law was passed are referred to as amending
statutes. For example- Code of Criminal Procedure 1973 amended the code of 1898.

Repealing statutes: - A repealing statute is one which terminates an earlier statute and may
be done in the express or explicit language of the statute. For example- Competition Act,
2002 repealed the MRTP Act.

Curative or repealing statutes: - Through these statutes, certain acts which would otherwise
be illegal are validated by curing the illegality and enables a particular line of action.

Rules of Interpretation

Literal or Grammatical Rule

It is the first rule of interpretation. According to this rule, the words used in this text are to be
given or interpreted in their natural or ordinary meaning. After the interpretation, if the
meaning is completely clear and unambiguous then the effect shall be given to a provision of
a statute regardless of what may be the consequences. The basic rule is that whatever the
intention legislature had while making any provision it has been expressed through words and
thus, are to be interpreted according to the rules of grammar. It is the safest rule of
interpretation of statutes because the intention of the legislature is deduced from the words

86
and the language used. According to this rule, the only duty of the court is to give effect if the
language of the statute is plain and has no business to look into the consequences which
might arise. The only obligation of the court is to expound the law as it is and if any harsh
consequences arise then the remedy for it shall be sought and looked out by the legislature.

Case Laws

Maqbool Hussain v. State of Bombay, In this case, the appellant, a citizen of India after
arriving at the airport did not declare that he was carrying gold with him. During his search
was carried on, gold was found in his possession as it was against the notification of the
government and was confiscated under section 167(8) of Sea Customs Act.

Later on, he was also charged under section 8 of the Foreign Exchange Regulations Act,
1947. The appellant challenged this trial to be violative under Article 20(2) of the Indian
Constitution. According to this article, no person shall be punished or prosecuted more than
once for the same offence. This is considered as double jeopardy.

It was held by the court that the Seas Act neither a court nor any judicial tribunal. Thus,
accordingly, he was not prosecuted earlier. Hence, his trial was held to be valid.

Manmohan Das versus Bishan Das, AIR 1967 SC 643

The issue in the case was regarding the interpretation of section 3(1)(c) of U.P Control of
Rent and Eviction Act, 1947. In this case, a tenant was liable for evidence if he has made
addition and alternate in the building without proper authority and unauthorized perception as
materially altered the accommodation or is likely to diminish its value. The appellant stated
that only the constitution can be covered, which diminishes the value of the property and the
word ‘or’ should be read as land.

It was held that as per the rule of literal interpretation, the word ‘or’ should be given the
meaning that a prudent man understands the grounds of the event are alternative and not
combined.

State of Kerala v. Mathai Verghese and others, 1987 AIR 33 SCR(1) 317, in this case a
person was caught along with the counterfeit currency “dollars” and he was charged under
section 120B, 498A, 498C and 420 read with section 511 and 34 of Indian Penal Code for
possessing counterfeit currency. The accused contended before the court that a charge under
section 498A and 498B of Indian Penal Code can only be levied in the case of counterfeiting
of Indian currency notes and not in the case of counterfeiting of foreign currency notes. The
court held that the word currency notes or bank note cannot be prefixed. The person was held
liable to be charge-sheeted.

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The Mischief Rule

Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive
construction because the purpose of this statute is most important while applying this rule. It
is known as Heydon’s rule because it was given by Lord Poke in Heydon’s case in 1584. It is
called as mischief rule because the focus is on curing the mischief.

In the Heydon’s case, it was held that there are four things which have to be followed for true
and sure interpretation of all the statutes in general, which are as follows-

1. What was the common law before the making of an act.

2. What was the mischief for which the present statute was enacted.
3. What remedy did the Parliament sought or had resolved and appointed to cure the
disease of the commonwealth.
4. The true reason of the remedy.

The purpose of this rule is to suppress the mischief and advance the remedy.

Case laws

Smith v. Huges, 1960 WLR 830, in this case around the 1960s, the prostitutes were soliciting
in the streets of London and it was creating a huge problem in London. This was causing a
great problem in maintaining law and order. To prevent this problem, Street Offences Act,
1959 was enacted. After the enactment of this act, the prostitutes started soliciting from
windows and balconies. Further, the prostitutes who were carrying on to solicit from the
streets and balconies were charged under section 1(1) of the said Act. But the prostitutes
pleaded that they were not solicited from the streets. The court held that although they were
not soliciting from the streets yet the mischief rule must be applied to prevent the soliciting
by prostitutes and shall look into this issue. Thus, by applying this rule, the court held that the
windows and balconies were taken to be an extension of the word street and charge sheet was
held to be correct.

Pyare Lal v. Ram Chandra, the accused in this case, was prosecuted for selling the sweeten
supari which was sweetened with the help of an artificial sweetener. He was prosecuted under
the Food Adulteration Act. It was contended by Pyare Lal that supari is not a food item. The
court held that the dictionary meaning is not always the correct meaning, thereby, the
mischief rule must be applicable, and the interpretation which advances the remedy shall be
taken into consideration. Therefore, the court held that the word ‘food’ is consumable by
mouth and orally. Thus, his prosecution was held to be valid.

Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.

88
Issues of the case were as follows- section 418 of Delhi Corporation Act, 1902 authorised
the corporation to round up the cattle grazing on the government land. The MCD rounded up
the cattle belonging to Kanwar Singh. The words used in the statute authorised the
corporation to round up the abandoned cattle. It was contended by Kanwar Singh that the
word abandoned means the loss of ownership and those cattle which were round up belonged
to him and hence, was not abandoned. The court held that the mischief rule had to be applied
and the word abandoned must be interpreted to mean let loose or left unattended and even
the temporary loss of ownership would be covered as abandoned.

Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, AIR

1962 SC 1526, Issue, in this Case, was that the respondent concerned was running a factory
where four units were for manufacturing. Out of these four units one was for paddy mill,
other three consisted of flour mill, saw mill and copper sheet units. The number of employees
there were more than 50. The RPFC applied the provisions of Employees Provident Fund
Act, 1952 thereby directing the factory to give the benefits to the employees. The person
concerned segregated the entire factory into four separate units wherein the number of
employees had fallen below 50, and he argued that the provisions were not applicable to him
because the number is more than 50 in each unit. It was held by the court that the mischief
rule has to be applied and all the four units must be taken to be one industry, and therefore,
the applicability of PFA was upheld.

The Golden Rule

It is known as the golden rule because it solves all the problems of interpretation. The
rule says that to start with we shall go by the literal rule, however, if the interpretation given
through the literal rule leads to some or any kind of ambiguity, injustice, inconvenience,
hardship, inequity, then in all such events the literal meaning shall be discarded and
interpretation shall be done in such a manner that the purpose of the legislation is fulfilled.
The literal rule follows the concept of interpreting the natural meaning of the words used in
the statute. But if interpreting natural meaning leads to any sought of repugnance, absurdity
or hardship, then the court must modify the meaning to the extent of injustice or absurdity
caused and no further to prevent the consequence. This rule suggests that the consequences
and effects of interpretation deserve a lot more important because they are the clues of the
true meaning of the words used by the legislature and its intention. At times, while applying
this rule, the interpretation done may entirely be opposite of the literal rule, but it shall be
justified because of the golden rule. The presumption here is that the legislature does not
intend certain objects. Thus, any such interpretation which leads to unintended objects shall
be rejected.

Case laws

Tirath Singh v. Bachittar Singh, AIR 1955 SC 850

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In this case, there was an issue with regard to issuing of the notice under section 99 of
Representation of People’s Act, 1951, with regard to corrupt practices involved in the
election. According to the rule, the notice shall be issued to all those persons who are a party
to the election petition and at the same time to those who are not a party to it. Tirath Singh
contended that no such notice was issued to him under the said provision. The notices were
only issued to those who were non-parties to the election petition. This was challenged to be
invalid on this particular ground. The court held that what is contemplated is giving of the
information and the information even if it is given twice remains the same. The party to the
petition is already having the notice regarding the petition; therefore, section 99 shall be so
interpreted by applying the golden rule that notice is required against non-parties only.

State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967 SC 276, Issues of
the case are as follows. A transporting company was carrying a parcel of apples was
challenged and charge-sheeted. The truck of the transporting company was impounded as the
parcel contained opium along with the apples. At the same time, the invoice shown for the
transport consisted of apples only. Section 11 of the opium act 1878, all the vehicles which
transport the contraband articles shall be impounded and articles shall be confiscated. It was
confiscated by the transport company that they were unaware of the fact that opium was
loaded along with the apples in the truck. The court held that although the words contained
in section 11 of the said act provided that the vehicle shall be confiscated but by applying the
literal rule of interpretation for this provision it is leading to injustice and inequity and
therefore, this interpretation shall be avoided. The words ‘shall be confiscated’ should be
interpreted as ‘may be confiscated’.

State of Punjab v. Quiser Jehan Begum, AIR 1963 SC 1604, a period of limitation was
prescribed for, under section 18 of land acquisition act, 1844, that an appeal shall be filed for
the announcement of the award within 6 months of the announcement of the compensation.
Award was passed in the name of Quiser Jehan. It was intimated to her after the period of six
months about this by her counsel. The appeal was filed beyond the period of six months. The
appeal was rejected by the lower courts. It was held by the court that the period of six months
shall be counted from the time when Quiser Jehan had the knowledge because the
interpretation was leading to absurdity. The court by applying the golden rule allowed the
appeal

Harmonious Construction

According to this rule of interpretation, when two or more provisions of the same statute
are repugnant to each other, then in such a situation the court, if possible, will try to construe
the provisions in such a manner as to give effect to both the provisions by maintaining
harmony between the two. The question that the two provisions of the same statute are
overlapping or mutually exclusive may be difficult to determine. The legislature clarifies its
intention through the words used in the provision of the statute. So, here the basic principle of
harmonious construction is that the legislature could not have tried to contradict itself. In the

90
cases of interpretation of the Constitution, the rule of harmonious construction is applied
many times. It can be assumed that if the legislature has intended to give something by one, it
would not intend to take it away with the other hand as both the provisions have been framed
by the legislature and absorbed the equal force of law. One provision of the same act cannot
make the other provision useless. Thus, in no circumstances, the legislature can be expected
to contradict itself.

Cases –

Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh, in this case, the State Government
proposed to acquire sugar industries under U.P Sugar Undertakings (Acquisition) Act, 1971.
This was challenged on the ground that these sugar industries were declared to be a
controlled one by the union under Industries (Development and Regulation) Act, 1951. And
accordingly, the state did not have the power of acquisition of requisition of property which
was under the control of the union. The Supreme Court held that the power of acquisition was
not occupied by Industries (Development and Regulation) Act, 1951. The state had a
separate power under Entry 42 List III.

M.S.M Sharma v. Krishna Sinha, AIR 1959 SC 395.

Facts of the case are as follows- Article 19(1)(a) of the Constitution provides for freedom of
speech and expression. Article 194(3) provides to the Parliament for punishing for its
contempt and it is known as the Parliamentary Privilege. In this case, an editor of a
newspaper published the word -for- word record of the proceedings of the Parliament
including those portions which were expunged from the record. He was called for the breach
of parliamentary privilege. He contended that he had a fundamental right to speech and
expression. It was held by the court that article 19(1)(a) itself talks about reasonable freedom
and therefore freedom of speech and expression shall pertain only to those portions which
have not been expunged on the record but not beyond that.

Conclusion

Every nation has its own judicial system, the purpose of which to grant justice to all.
The court aims to interpret the law in such a manner that every citizen is ensured justice to
all. To ensure justice to all the concept of canons of interpretation was expounded. These are
the rules which are evolved for determining the real intention of the legislature.

It is not necessary that the words used in a statute are always clear, explicit and unambiguous
and thus, in such cases it is very essential for courts to determine a clear and explicit meaning
of the words or phrases used by the legislature and at the same time remove all the doubts if
any. Hence, all the rules mentioned in the article are important for providing justice.

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 UNIT-6

ADMINISTRATION 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.

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B. Administration of Justice- There are two essential functions of every State:

a. War
b. Administration of Justice

Theorists have said that that if a state is not capable of performing the above mentioned
functions, it is not a 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. This social nature of
men demands that he must reside in a society. 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.

C. Advantages and Disadvantages of Legal Justice

a. 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 man’s wisdom and Justice represents wisdom of the community.

b. Disadvantages of Legal Justice

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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’.

D. 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 fulfil that ends of Private Justice.

E. 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’.

F. 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. Therefore, Salmond said that ‘the basic objective of a criminal proceeding is
punishment and the usual goal of a civil proceeding is not punitive’.

G. Theories of Punishment

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a. Deterrent Theory- Salmond said that the deterrent aspect of punishment is extremely
important. The object of punishment is not only to prevent the wrongdoer from committing
the crime again but also to make him an example in front of the other such persons who have
similar criminal tendencies.

The aim of this theory is not to seek revenge but terrorize people. As per this theory, an
exemplary punishment should be given to the criminal so that others may take a lesson from
his experience.

Even in Manu Smriti, the Deterrent Theory is mentioned. Manu said “Penalty keeps the
people under control, penalty protects them, and penalty remains awake when people are
asleep, so the wise have regarded punishment as the source of righteousness”. However,
critics believe that deterrent effect not always leads to a decrease in crime.

b. Preventive Theory- This theory believes that the object of punishment is to prevent or
disable the wrongdoer from committing the crime again. Deterrent theory aims at giving a
warning to the society at large whereas under Preventive Theory, the main aim is to disable
the wrongdoer from repeating the criminal activity by disabling his physical power to commit
crime.

c. Reformative Theory- This theory believes that Punishment should exist to reform the
criminal. Even if an offender commits a crime, he does not cease to be a human being. He
might have committed the crime under circumstances which might never occur again. Thus,
the main object of Punishment under Reformative theory is to bring about a moral reform in
the offender. Certain guidelines have been prescribed under this theory.

i. While awarding punishment, the judge should study the characteristics and the age of the
offender, his early breeding, the circumstances under which he has committed the offence
and the object with which he has committed the offence.

ii. The object of the above mentioned exercise is to acquaint the judge with the exact nature
of the circumstances so that he may give a punishment which suits those circumstances.

iii. Advocates of this theory say that by sympathetic, tactful and loving treatment of the
offenders, a revolutionary change may be brought about in their character. However, the
Critics say that Reformative Theory alone is not sufficient, there must be a mix of Deterrent
Theory and Reformative Theory in order to be successful. Critics believe that in a situation of
deadlock between the two theories, the Deterrent Theory must prevail.

Distinction between Deterrent Theory and Reformative Theory

1. Reformative Theory stands for the reformation of the convict but the Deterrent Theory
aims at giving exemplary punishment so that the others are deterred from following the same
course of action.

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2. Deterrent Theory does not lead to a reformation of the criminal as it imposes harsh
punishments. Whereas, Reformative Theory believes that if harsh punishment is inflicted on
the criminals, there will be no scope for reform.

3. Deterrent Theory believes that the punishment should be determined by the character of
the crime. Thus, too much emphasis is given on the crime and too little on the criminal.
However, Reformative Theory takes into consideration the circumstances under which an
offence was committed. Reformative Theory further believes that every effort should be
made to give a chance to the criminal to improve his conduct in the future.

d. Retributive Theory- In primitive societies, the punishment was mostly retributive in

nature and the person wronged was allowed to have his revenge against the wrongdoer. The
principle was “an eye for an eye”. This principle was recognized and followed for a long
time. Retributive theory believes that it is an end in itself, apart from a gain to the society and
the victim, the criminal should meet his reward in equivalent suffering.

e. Theory of Compensation- This theory believes that punishment should not only be to
prevent further crime but it should also exist to compensate the victim who has suffered at the
hands of the wrongdoer. However, critics say that this theory is not effective in checking the
rate of crime. This is because the purpose behind committing a crime is always economic in
nature. Asking the wrongdoer to compensate the victim will not always lower the rate of
crime though it might prove beneficial to the victim. Under this theory, the compensation is
also paid to the persons who have suffered from the wrongdoing of the government.

H. Kinds of Punishment

a. Capital Punishment- This is one of the oldest form of punishments. Even our IPC
prescribes this punishment for certain crimes. A lot of countries have either abolished this
punishment or are on their way to abolish it. Indian Judiciary has vacillating and indecisive
stand on this punishment. There have been plethora of cases where heinous and treacherous
crime was committed yet Capital Punishment was not awarded to the criminal.

b. Deportation or Transportation- This is also a very old form of punishment. It was

practised in India during the British Rule. The criminal is put in a secluded place or in a
different society. Critics of this punishment believe that the person will still cause trouble in
the society where he is being deported.

c. Corporal Punishment- Corporal punishment is a form of physical punishment that

involves the deliberate infliction of pain on the wrongdoer. This punishment is abolished in
our country but it exists in some Middle Eastern Countries. Critics say that it is highly
inhuman and ineffective.

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d. Imprisonment- This type of punishment serves the purpose of three theories, Deterrent,
Preventive and Reformative.

i. Under Deterrent Theory, it helps in setting an example.

ii. It disables the offender from moving outside, thus serving the purpose of Preventive
Theory.

iii. If the government wishes to reform the prisoner, it can do so while the person is serving
his imprisonment, thus serving the purpose of Reformative Theory.

e. Solitary Confinement- Solitary confinement is a form of imprisonment in which a

prisoner is isolated from any human contact. It is an aggravated form of punishment. It is said
that it fully exploits and destroys the sociable nature of men. Critics say that it is inhuman
too.

f. Indeterminate Sentence- In such a sentence, the accused is not sentenced for any fixed
period. The period is left indeterminate while awarding and when the accused shows
improvement, the sentence may be terminated. It is also reformative in nature.

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 UNIT-7

JURISTIC CONCEPTS

LEGAL RIGHTS AND DUTIES

Legal rights are, clearly, rights which exist under the rules of legal systems or by
virtue of decisions of suitably authoritative bodies within the. According to positivists, legal
rights are essentially those interests which have been legally recognized and protected. John
Austin made a distinction between legal rights and other types of rights such as Natural rights
or Moral rights. By legal rights, he meant rights which are creatures of law, strictly or simply
so called. He said that other kind of rights are not armed with legal sanction and cannot be
enforced judicially. On the other hand, Salmond said that a legal right is an interest
recognized and protected by rule of law and violation of such an interest would be a legal
wrong. Salmond further said that:

1. A legal duty is an act that obliges to do something and act, the opposite of which would be
a legal wrong.
2. Whenever law ascribes duty to a person, a corresponding right also exists with the person
on whom the duty is imposed.
3. There are two kinds of duties: Moral Duty and Legal Duty.
4. Rights are said to be the benefits secured for persons by rules regulating relationships.

Salmond also believed that no right can exist without a corresponding duty. Every
right or duty involves a bond of legal obligation by which two or more persons are bound
together. Thus, there can be no duty unless there is someone to whom it is due; there can be
no right unless is someone from whom it is claimed; and there can be no wrong unless there
is someone who is wronged, that is to say, someone whose right has been violated. This is

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also called as vinculum juris which means “a bond of the law”. It is a tie that legally binds
one person to another.

On the other hand, Austin said that Duties can be of two types:

a. Relative Duty – There is a corresponding right existing in such duties.

b. Absolute Duty – There is no corresponding right existing.

Austin conceives this distinction to be the essence of a right that it should be vested in
some determinate person and be enforceable by some form of legal process instituted by him.
Austin thus starts from the assumption that a right cannot vest in an indeterminate, or a vague
entity like the society or the people. The second assumption with which Austin starts is that
sovereign creates rights and can impose or change these rights at its will. Consequently, the
sovereign cannot be the holder of such rights.

According to Salmond, there are five important characteristics of a Legal Right.

1. It is vested in a person who may be distinguished as the owner of the right, the subject of
it, the person entitled, or the person of inherence.

2. It avails against a person, upon whom lies the correlative duty. He may be distinguished as
the person bound, or as the subject of duty, or as the person of incidence.

3. It obliges the person bound to an act or omission in favour of the person entitled. This may
be termed the content of the right.

4. The act or omission relates to something (in the widest sense of that word), which may be
termed the object or subject matter of the right.

5. Every legal right has a title, that is to say, certain facts or events by reason of which the
right has become vested in its owner.

Some jurists hold that a right may not necessarily have a correlative duty. They say that legal
rights are legal concepts and these legal concepts have their correlatives which may not
necessarily be a duty. Roscoe Pound also gave an analysis of such legal conceptions. He
believed that legal rights are essentially interests recognized and administered by law and
belong to the ‘science of law’ instead of ‘law’. He proposed that such Rights are conceptions
by which interests are given form in order to secure a legal order.

Hohfeld’s System of Fundamental Legal Concepts or Jural Relations

1 2 3 4

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 Right Privilege Power Immunity

Jural Opposites – – – –

No Right Duty Disability Liability

Jural Correlatives Right Privilege- Power Immunity

– – – –

Duty No Right Liability Disability

Jural Correlatives represent the presence of in another. Thus, right is the presence of duty in
another and liability is the presence of power in another.

Jural Opposites represent the absence of in oneself. Thus, no right is the absence of right in
oneself and disability is the absence of power in oneself.

Conclusion derived from Hohfeld’s System

a. As a person’s right is an expression of a wish that the other person against whom the right
or claim is expressed has a duty to obey his right or claim.

b. A person’s freedom is an expression of a right that he may do something against other

person to change his legal position.
c. A person’s power is an expression of a right that he can alter other person’s legal position.

d. A person’s disability is an expression of a wish that another person must not alter the
person’s legal position.

Salmond on Rights and Duties

Salmond said that a perfect right is one which corresponds to a perfect duty and a
perfect duty is one which is not merely recognized by law but also enforced by law. In a fully
developed legal system, there are rights and duties which though recognized by law are not
perfect in nature. The rights and duties are important but no action is taken for enforcing
these rights and duties. The rights form a good ground for defence but duties do not form a
good ground for action. However, in some cases, an imperfect right is sufficient to enforce
equity.

Salmond gave following classifications of rights.

1. Positive and Negative Rights

2. Real and Personal Rights
3. Right in rem and right in personam

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4. Proprietary and Personal Rights
5. Inheritable and Uninheritable Rights
Salmond’s Classification of Positive and Negative Rights

Positive Rights Negative Rights

1 A positive right corresponds to a Negative rights have negative duties
corresponding duty and entitles its corresponding to them and enjoyment is
owners to have something done for him complete unless interference takes place.
without the performance of which his Therefore, majority of negative rights are
enjoyment of the right is imperfect. against the entire world.
2 In the case of positive rights, the person Whereas, in case of negative rights,
subject to the duty is bound to do others are restrained to do something.
something.
3 The satisfaction of a positive right Whereas in case of a negative right, the
results in the betterment of the position
position of the owner is maintained as it
of the owner. is.
4 In case of positive rights, the relation
Whereas in case of negative rights, the
between subject and object is mediate relation is immediate, there is no
and object is attained with the help of
necessity of outside help. All that is
others. required is that others should refrain
from interfering case of negative rights.
5 In case of positive rights, a duty is In case of negative rights, the duty is
imposed on one or few individuals. imposed on a large number of persons.

Salmond’s Classification of Real and Personal Rights

Real Rights Personal Rights

1 A real right corresponds to a duty A personal right corresponds to a duty
imposed upon persons in general. imposed upon determinate individuals.
2 A real right is available against the A personal right is available only against a
whole world. particular person.
3 All real rights are negative rights. Most personal rights are positive rights
Therefore, a real right is nothing more although in a few exceptional cases they are
than a right to be left alone by others. It negative.
is merely a right to their passive non-
interference.
In real right, the relation is to a thing. In personal right, it is the relation to other
Real rights are derived from some persons who owe the duties which is
special relation to the object. important. Personal rights are derived from
special relation to the individual or
individuals under the duty.
4 Real rights are right in rem. Personal rights are right in personam.

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Salmond’s Classification of Right in rem and Right in personam

Right in rem Right in personam

1 It is derived from the Roman term ‘actio It is derived from the Roman term
in rem’. An action in rem was an action ‘action in personam’. An action in
for the recovery of dominium. personam was one for the enforcement
of obligato i.e. obligation.
2 The right protected by an action in rem A right protected by action in personam
came to be called jus in rem. came to be called as jus in personam.
3 Jus in rem means a right against or in Jus in personam means a right against or
respect of a thing. in respect of a person.
4 A right in rem is available against the A right in personam is available against
whole world. a particular individual only.

Salmond’s Classification of Proprietary and Personal Rights

Proprietary Rights Personal Rights

1 Proprietary rights means a person’s right Personal rights are rights arising out of
in relation to his own property. any contractual obligation or rights that
Proprietary rights have some economic or relate to status.
monetary value.
2 Proprietary rights are valuable. Personal rights are not valuable.
3 Proprietary rights are not residual in Personal rights are the residuary rights
character. which remain after proprietary rights
have been subtracted.
4 Proprietary rights are transferable. Personal rights are not transferable.
5 Proprietary rights are the elements of Personal rights are merely elements of
wealth for man. his well-being.
6 Proprietary rights possess not merely Personal rights possess merely judicial
judicial but also economic importance. importance.

Salmond’s Classification of Inheritable and Uninheritable Rights

Inheritable Rights Uninheritable Rights

A right is inheritable if it survives the A right is uninheritable if it dies with the
owner. owner.

OWNERSHIP

Salmond on Ownership

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 Ownership denotes the relationship between a person and an object forming the
subject-matter of his ownership. It consists in a complex of rights, all of which are rights in
rem, being good against the entire world and not merely against specific persons.

Incidence of Ownership

1. The owner has the right to possess things that he owns.

2. The owner normally has a right to use or enjoy the thing owned, the right to manage it, the
right to decide how it shall be used and the right of income from it. However, Right to
possess is not a right strictu sensu because such rights are in fact liberties as the owner has no
duty towards others and he can use it in any way he likes and nobody can interfere with the
enjoyment of his ownership.

3. The owner has the right to consume, destroy or alienate the things. The right to consume
and destroy are again straight forward liberties. The right to alienate i.e. the right to transfer
the existing rights involves the existence of power.

4. Ownership has the characteristic of being ‘indeterminate in duration’ and Ownership has a
residuary character. Salmond contrasted the rights of the owner with the lesser rights of the
possessor and encumbrancer by stating that “the owner's rights are indeterminate and
residuary in a way in which these other rights are not”.

Austin’s Concept of Ownership

Ownership or Property may be described accurately enough, in the following manner:

‘the right to use or deal with some given subject, in a manner, or to an extent, which, though
is not unlimited, is indefinite’. Now in this description it is necessarily implied, that the law
will protect or relieve the owner against every disturbance of his right on the part of any other
person. Changing the expression, all other persons are bound to forbear from acts which
would prevent or hinder the enjoyment or exercise of the right. Austin further said that
“Ownership or Property, is, therefore, a species of Jus in rem. For ownership is a right
residing in a person, over or to a person or thing, and availing against other persons
universally or generally. It is a right implying and exclusively resting upon obligations which
are at once universal and negative”.

Dias on Ownership

After referring to the views of Salmond and other Jurists, Dias came to the conclusion
that a person is owner of a thing when his interest will outlast the interests of other persons in
the same thing. This is substantially the conclusion reached by many modern writers, who
have variously described ownership as the ‘residuary’, the ‘ultimate’, or ‘the most enduring
interest’. According to Dias, an owner may be divested of his claims, etc., to such an extent
that he may be left with no immediate practical benefit. He remains owner nonetheless. This

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is because his interest in the thing, which is ownership, will outlast that of other persons, or if
he is not presently exercising any of his claims, etc., these will revive as soon as those vested
in other persons have come to an end. In the case of land and chattels, if the owner is not in
possession, ownership amounts to a better right to obtain the possession than that of the
defendant. It is 'better' in that it lasts longer. It is apparent that the above view of Dias
substantially agrees with that of Salmond. According to Dias it is the outlasting interest and
according to Salmond, ownership has the characteristic of being indeterminate in duration
and residuary in nature.

Types of Ownership

Corporeal Ownership Incorporeal Ownership

1. Corporeal Ownership signifies ownership in a 1. Incorporeal Ownership is a right or an interest.
physical object. 2. Incorporeal things cannot be perceived by
2. Corporeal things are things which can be senses and are in tangible.
perceived by senses.
Sole Ownership Co-Ownership
When an individual owns, it is sole ownership When there is more than one person who owns
the property
Trust Ownership Beneficial Ownership
1. There is no co-ownership. 1. There can be co-ownership.
2. The person on whom the responsibility lies for 2. The person for whom the trust is created is
the benefit of the others is called the Trustee. called the Beneficiary.
3. The trustee has no right to the beneficial
enjoyment of the property. 3. The Beneficiary has the full rights to enjoy the
4. Ownership is limited. A trustee is merely an property.
agent upon whom the law has conferred the duty 4. Ownership is complete.
of administration of property.
5. Trusteeship may change hands.
5. Beneficial Owners remain the same.
Legal Ownership Equitable Ownership
Legal ownership is that ownership which has its Equitable ownership comes from equity
basis in common law. divergence of common law. Thus, distinction
between legal and equitable ownership is very
thin.
Vested Ownership Contingent Ownership
1. Ownership is vested when the title is perfect. 1. Ownership is contingent when it is capable of
being perfect after fulfilment of certain
2. Vested ownership is absolute. condition.
2. Contingent ownership becomes vested when
the conditions are fulfilled.
Absolute Ownership Limited Ownership

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Ownership is absolute when possession, Limited Ownership is subjected to the limitations
enjoyment, disposal are complete and vested of use, disposal or duration.
without restrictions save as
restriction imposed by law.

POSSESSION

Salmond on Possession

Salmond said that in the whole of legal theory there is no conception more difficult
than that of possession. The legal consequences which flow from the acquisition and loss of
possession are many and serious. Possession, for example, is evidence of ownership; the
possessor of a thing is presumed to be the owner of it, and may put all other claimants to
proof of their title. The transfer of possession is one of the chief methods of transferring
ownership. Salmond also 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.

He also made a distinction between possession in fact and possession in law.

1. Possession may and usually does exist both in fact and in law. The law recognizes as
possession all that is such in fact, and nothing that is not such in fact, unless there is some
special reason to the contrary.

2. Possession may exist in fact but not in law. Thus the possession by a servant of his
master’s property is for some purposes not recognized as such by the law, and he is then said
to have detention or custody rather than possession.

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3. Possession may exist in law but not in fact; that is to say, for some special reason the law
attributed the advantages and results of possession to someone who as a matter of fact does
not possess. The possession thus fictitiously attributed to him is termed constructive In
Roman law, possession in fact is called possessio naturalis, and possession in law as
possessio civilis.

Corporeal and Incorporeal Possession

Corporeal Possession is the possession of a material object and Incorporeal

Possession is the possession of anything other than a material object. Corporeal possession is
termed in Roman law possessio corporis. Incorporeal possession is distinguished as possessio
juris, the possession of a right, just as incorporeal ownership is the ownership of a right.
Salmond further said that “corporeal possession is clearly some form of continuing relation
between a person and a material object. It is equally clear that it is a relation of fact and not
one of right”. What, then, is the exact nature of that continuing de facto relation between a
person and a thing, which is known as possession? According to Salmond, the possession of a
material object is the continuing exercise of a claim to the exclusive use of it. It involves two
distinct elements, one of which is mental or subjective, the other physical or objective. The
mental element comprises of the intention of the possessor with respect to the thing
possessed, while the physical element comprises of the external facts in which this intention
has realised, embodied, or fulfilled itself. The Romans called the mental element as animus
and the subject element as corpus. The mental or subjective element is also called as animus
possidendi, animus sibi habendi, or animus domini. The Animus Possidendi - The intent
necessary to constitute possession is the intent to appropriate to oneself the exclusive use of
the thing possessed. It is an exclusive claim to a material object. Salmond made following
observations in this regard.

1. It is not necessarily a claim of right.

2. The claim of the possessor must be exclusive.
3. The animus possidendi need not amount to a claim of intent to use the thing as owner.
4. The animus possidendi need not be a claim on one’s own behalf.
5. The animus possidendi need not be specific, but may be merely general. It does not
necessarily involve any continuous or present knowledge of the particular thing possessed or
of the possessor’s relation to it.

The Corpus Possessionis – The claim of the possessor must be effectively realized in the
facts; that is to say, it must be actually and continuously exercised. The corpus possessionis
consists in nothing more than the continuing exclusion of alien interference, coupled with
ability to use the thing oneself at will. Actual use of it is not essential.

Immediate and Mediate Possession

The possession held by one man through another may be termed mediate, while that
which is acquired or retained directly or personally may be distinguished as immediate or
direct.

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There are three kinds of Mediate Possession:

1. Possession that is acquired through an agent or servant who claims no interest of his own.

2. The direct possession is in one who holds both on the actual possessor’s account and on his
own, but who recognizes the actual possessor’s superior right to obtain from him the direct
possession whenever he choose to demand it.

3. The immediate possession is in a person who claims it for himself until some time has
elapsed or some condition has been fulfilled, but who acknowledges the title of another for
whom he holds the thing, and to whom he is prepared to deliver it when his own temporary
claim has come to an end.

Concurrent or Duplicate Possession

1. Mediate and Immediate Possession co-exist in respect of the same thing as already
explained above.
2. Two or more persons may possess the same thing in common, just as they may own it in
common. This also called as compossessio.
3. Corporeal and Incorporeal Possession may co-exist in respect of the same material object,
just as corporeal and incorporeal ownership may.

Incorporeal Possession
In Incorporeal Possession as well, the same two elements required, namely the animus
and the corpus. In the case of incorporeal things, continuing non-use is inconsistent with
possession, though in the case of corporeal things it is consistent with it. Incorporeal
possession is commonly called the possession of a right, and corporeal possession is
distinguished from it as the possession of a thing. The distinction between corporeal and
incorporeal possession is clearly analogous to that between corporeal and incorporeal
ownership. Corporeal possession, like corporeal ownership, is that of a thing; while
incorporeal possession, like incorporeal ownership, is that of a right. In essence, therefore, the
two forms of possession are identical, just as the two forms of ownership are. Hence,
Possession in its full compass and generic application means the continuing exercise of any
claim or right.

Paton on Possession
Paton said that even though Possession is a concept of law still it lacks a uniform
approach by the jurists. Some jurists make a distinction between legal and lawful possession.
Possession of a thief is legal, but not lawful. In some cases, where possession in the popular
sense is meant, it is easy to use some such term as physical control. Possession is also
regarded as prima facie evidence of Ownership. According to Paton, for English law there is
no need to talk of mediate and immediate possession. The Bailee and the tenant clearly have
full possession: Salmond's analysis may he necessary for some other systems of law, but it is
not needed in English law.

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Oliver Wendell Holmes and Von Savigny on Possesion
Savigny with other German thinkers (including Kant and Hegel) argued that
possession, in the eyes of the law, requires that the person claiming possession intend to hold
the property in question as an owner rather than recognize the superior title of another person,
so that in providing possessory remedies to lessees, Bailees, and others who lack such
intentions, modem law sacrifices principle to convenience. To this Holmes responded that he
“cannot see what is left of a principle which avows itself inconsistent with convenience and
the actual course of legislation. The first call of a theory of law is that it should fit the facts. It
must explain the observed course of legislation. And as it is pretty certain that men will make
laws which seem to them convenient without troubling themselves very much what principles
are encountered by their legislation, a principle which defies convenience is likely to wait
some time before it finds itself permanently realized.”

Holmes also criticised Savigny and other German theorists by saying that “they have
known no other system than the Roman”. In his works, Holmes proved that the Anglo-
American Law of Possession derived not from Roman law, but rather from pre-Roman
German law. One of Holmes's criticisms of the German theorists, signally including Savigny,
is that they "have known no other system than the Roman, and he sets out to prove that the
Anglo-VAmerican law of possession derives not from Roman law, but rather from pre-
Roman German law.

PROPERTY

The term property is commonly used to define the objects which are owned. In other words,
property denotes those things in which right of ownership can be expanded. The term
property includes both living and non-living things. Lands, chattels, shares, and debts are
included in the property. In a wider sense, the term includes all those rights which a person
has or can be exercised. For instances, right to life, personal liberty, reputation and all those
rights which he can exercise against others. Hence, in its wider sense, it can be termed as all
those things or material objects without which a person cannot live.

The term property has been described by various jurists as:-

SALMOND says that the law of property is the law of proprietary rights ‘right in rem’, the
law of proprietary rights ‘in personam’ is distinguished from it as the law of obligations.
According to this usage, a freehold or leasehold estate in land, or patent or copyright is
included in property but debt or shares or benefit arising out of a contract is not property.

According to Salmond, property has been termed in a variety of senses:

Legal Rights- It includes all those rights which a person is entitled by a way of law. All those
material objects which a person owns as per the law are his legal rights. These are the rights

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which he can exercise over others. It includes a person’s personal as well as proprietary
rights.

Proprietary Rights- It does not include personal rights, it only include proprietary rights. It
means that land, chattels, shares or debts are his property but his right to life and reputation
are not included in his property.

Corporeal Property- It only includes those property which real or which can be seen i.e.
land, chattels, etc. It does not include shares or debts as property.

HOBBES AND BLACKSTONE are in favour of that property which is entitled by law, i.e.
legal rights.

AUSTIN suggests that property is the greatest enjoyment which a person holds. According to
him, property includes whole of assets whether personal or proprietary.

Kinds of Property

Corporeal

Incorporeal

Corporeal Property

It is also termed as tangible property. It is the right of ownership over material things. It
includes only those things which are real and visible. Person who has the right to use a thing
is called as the owner of the object and the object is called as property. It includes only
material things, i.e. land, house, chattels, money, ornaments etc.

Corporeal Property can be divided into two;

Movable and Immovable Property

Real and Personal property

Movable and Immovable Property

A corporeal property can be movable or immovable.

Immovable property includes land, house, walls etc. It includes that property which cannot be
moved from one place to another. Objects which are physically attached to the earth and
permanently fastened to anything attached to the earth are termed as immovable property.

Whereas Movable property are those properties which can be easily moved from one place to
another by the help of a person. It includes chattels, ornaments, etc.

Real and Personal Property

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There is no such distinction between real and personal property. Real property means all
rights over the land which is recognized by law. Whereas Personal property means all other
proprietary rights whether right in rem or right in personam.

Incorporeal property

Incorporeal property is other proprietary rights which are right in rem and are not tangible
and real.

Incorporeal Property can be divided into two;

Jura in re aliena

Jura in re propria

Jura in re aliena

They are called as encumbrances. It includes property, the ownership of which is in the hand
of one person and it is used by other person.

It is categorized into following:

Lease;

Servitude;

Securities;

Trusts;

Right in re propria

Proprietary rights are of both materials as well as non-material things. Material things are the
physical objects and non-material things are the rights attached to the things. Right in re
propria is mainly over immaterial things. The person having right over the thing which he
attains due to his skill and labour.

It is categorized into following:

Patent

Copyright

Commercial Goodwill

Theories of Law of Property

Various theories have been provided by jurist from time to time to provide better explanation
and recognition to the law of property. Such theories are both in support and against the law
of property.

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Following are the important theories of property.

The Natural Law Theory

The Natural law theory is based on the principle that one who possesses the object is the
owner of the property. It provides that when an ownerless thing is being possessed by
someone then that person become the owner of the property. The reason is that the law
recognized the property through its owner. This theory also gets recognized by law because
the priority of the ownership of property is given to that person who is in the possession of
the property.

This principle is supported by various jurists.

GROTIUS says that all the things were originally without an owner and whoever occupied
them became the owner.

According to BLACKSTONE, the natural law theory provides that one who starts making
use of a thing acquired an interest in that thing even for a short period or last long.

This theory has been criticized by some jurist also; HENRY MAINE says that it is erroneous
to think that possession gives right over the title of the property.

Where BENTHAM says that property is not originated by the occupation of an ownerless
thing, but it is the creation of law. He believes that property exist only when there is an
existence of law.

The Labor Theory

According to this theory, the person who has used his skills and labor to produce an object is
the owner of that object because it is the result of his hard work. Though this theory is not
recognized in modern times because there are many situations where one can acquire
property from others by a way of will or contract. The labor theory is also called as the
positive theory.

SPENCER supported this theory. He holds that property is the result of labor of an individual
and one who has not put any labor to produce the property cannot acquire it.

Metaphysical Theory

This theory was propounded by KANT and HEGEL. Both of them justified the theory but
this theory was not recognized as it is not concerned with reality.

According to KANT, a thing rightfully belongs to someone when he is connected with it in

such manner that when someone else uses it without consent, it causes damage to the owner
also. He provides that as per this theory, there is physical connection between the owner and
the object.

HEGEL holds that property is the objective manifestation of the personality of an individual.
In other words, property is an object in which person has a right to direct his will.

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Historical Theory

This theory talks about private property and its slow and steady growth. This theory is
propounded by BENTHAM and got support from HENRY MAINE. The growth of property
has three distant stages.

First Stage- It provides that a tendency is developed among people to take things in natural
possession and exercise it independently of the law of state.

Second Stage- This provides for juristic possession which means possession in fact and as
well as in law.

Third Stage- This is based on the ownership of the property recognized by law. The law
guarantees the owner of property exclusive right and control over the property.

Psychological Theory

This theory provides that the property came into existence based on the tendency of a human
being. Every one desires to own thing and to exercise control over them. BENTHAM has
supported this theory and hold that property is a conception of mind. It is nothing but an
expectation to own a property and make use of it to the fullest.

DEAN POUND also supported BENTHAM and asserted that the conception of property is
the acquisitive instinct of an individual who desires to have control and possession over the
property.

Modes of Acquisition of Property

There are various modes of acquisition of property. SALMOND has described four modes of
acquisition of property.

Possession

Prescription

Agreement

Inheritance

Possession

Possession means physical control or acquisition of property by a person. Ownership of a

property is based on the possession of the property. Possession is the prima facie evidence of
ownership. For any proprietary matter, law gives first priority to a person who is in
possession of the property.

There are many situations where a person is in the possession of the property but he is not the
real owner of the property. The title of property belongs to someone else. The owner of the
title of the property enjoys absolute right over the property. But the person having possession
of the property does not have an absolute right, he has an only relative title.
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According to SALMOND, a person having possession of a property enjoys a good title
against the third person except for the true owner. The possessor is entitled to possession until
getting evicted by the true owner by force of law. In such case, there are two owners, one
have absolute title over the property while another one will have a relative title.

Armony vs. Delomine [(1722) Istr.504]

If the person is in adverse possession i.e. possessory owner is wrongfully deprived of the
thing by a person other than the true owner, that person cannot take the defence of ‘jus tertii’
that the thing does not belong to the possessory owner either.

Prescription

According to SALMOND, “prescription is the effect of lapse of time in creating and

destroying right.”

It is of two kinds.

Positive or acquisitive prescription

Negative or extinctive prescription

Positive or acquisitive prescription

When the right over property is acquired by lapse of time, it is called positive prescription.
For instance, when a person makes a continuous use of a well located in someone else land,
he automatically acquired a right over the well as prescribed under the Indian Easement Act.

Negative or extinctive prescription

Negative prescription is when a person destroys his right by the effect of lapse of time. It
occurs when the person’s right already exists. For instance, right to sue for the non- payment
of debt is destroyed after a period of time.

Agreement

Property can also be acquired by an agreement enforceable by law. A person having

ownership of a property has a right to transfer the ownership of the property to another person
with or without consideration. According to PATON, agreement is an expression by two or
more persons communicated to each other, of a common intention to affect the legal relation
between them.

PATON follows that an agreement should fulfill four conditions:

There should be two or more parties.

Mutual consent of the parties.

It should be communicated.

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There should be common intention to communicate a legal relationship.

Miller vs. Collins [(1896) I Ch. 573]

Property is to be treated as belonging of any person who is having custody and control of it or
having any proprietary right or interest, not being an equitable interest arising only from an
agreement to transfer or grant an interest or having a charge on it.

Inheritance

Another method of acquisition is inheritance. When a person dies, there are some of his rights
which are transferred to his heirs and successors. Whereas there are some other rights also
which cannot be transferred. The rights which can be transferred are called heritance or
inheritable rights. Proprietary rights are inheritable rights as it can be transferred after the
death of its owner. But personal rights such as the right to life or reputation are not
inheritable. However, there are certain exceptions to it. Some proprietary rights are also not
inheritable. For instance, lease for the life of lessee only or in the case of joint ownership. In
case of succession of proprietary rights, if a person has made a will then succession will take
place according to the will. But if the person dies without making a will then succession will
take place as per the law.

Conclusion

Property is a belonging of a person who acquired it either through his hard work or through
succession or out of an agreement. Property can be treated as proprietary rights as well as
personal rights. Every individual is entitled to personal as well as proprietary rights. The term
property is explained in Jurisprudence by various eminent Jurists. Some jurists have
supported the concept of the property while some are against it. The concept of property has a
special significance in jurisprudence. As jurisprudence also provides a description of other
proprietary rights based on the property.

PERSON

Meaning and Kind of Person

The term ‘person’ is derived from Latin word ‘persona’ which means a mask worn by actors
playing different roles in a drama. In modern days it has been used in a sense of a living
person capable of having rights and duties. Now it has been used in different senses in
different disciplines. In the philosophical and moral sense the term has been used to mean the
rational quality of human being. In law it has a wide meaning. It means not only human
beings but also associations as well. Law personifies some real thing and treats it as a legal
person. This personification both theoretically and practically clarifies thought and
expression. There are human beings who are not persons in legal sense such as outlaws and
slaves (in early times). In the same way there are legal persons who are not human beings
such as corporations, companies, trade unions; institutions like universities, hospitals are
examples of artificial personality recognized by law in the modern age. Hence, the person is

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an important category of concept in legal theory, particularly business and corporate laws
have extensively used the concept of person for protection as well as imposing the liability.

Historical Background of the Concept of ‘Person’

The term ‘person’ and ‘personality’ has a historical evolution. Roman law, Greek law and
Hindu law, has used the concept too. In Roman law, the term had a specialized meaning, and
it was synonymous with ‘caput’ means status. Thus, a slave had an imperfect persona. In later
period it was denoting as a being or an entity capable of sustaining legal rights and duties. In
ancient Roman Society, there was no problem of personality as the ‘family’ was the basic
unit of the society and not the individual. The family consisted of a number of individuals,
but all the powers were concentrated with ‘pater familias’ means the head of the family. If a
head of the family dies, and there is an interval between his death and devolution of property
on the heir who accepted inheritance, the property will vest in a person during the interval.
This was called hereditas jacens which was developed by the Romans. The hereditas jacens is
considered by some scholars as similar to legal personality. Hereditas jacens means the
inheritance during the interval between death of the ancestor and the acceptance of the
inheritance by the heir. Some scholars are not ready to agree with the views that it has some
connection with present doctrine of legal personality, even if it is there, it may be in a very
limited sense. There was a provision in Roman law that other institutions or group who had
certain rights and duties were capable to exercise their legal rights through a representative.
Under Greek law, an animal or trees were tried in court for harm or death done to a human
being. It can be said on the basis of this practice that these objects were subject to duties even
though they may not possesses rights. This is an element of the attribution of personality.

Under early English law, there are some incidences in it had found that an animal or tress or
inanimate objects had been tried in Court under law. The trees and animals were subject to
duty but not rights. After 1846, this system has modified and it was made clear that animals
or tresses are capable of possessing rights and duties; therefore, there is no question of
personality.

Definition of ‘Person’
The term ‘person’ is derived from the Latin term ‘Persona’ which means those who are
recognized by law as being capable of having legal rights and being bound by legal duties. It
means both- a human being, a body of persons or a corporation or other legal entity that is
recognized by law as the subject of rights and duties. Savingy has defined person as the
subject or bearer of right. But Holland has criticized this definition on the ground that persons
are not subject to right alone but also duties. He says: the right not only resides in, but is also
available against persons. There are persons of incidence as well as of inherence. Kelson
rejected the definition of personality as an entity which has rights and duties. He has also
rejected the distinction between human beings as natural persons and juristic persons. He says
the totality of rights and duties is the personality; there is no entity distinct from them.
However, Kelson’s view has been criticised for the reason that in law natural person is
different from legal persons who are also capable of having rights and duties and constitute a

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distinct entity. Salmond’s definition seems to be more correct than the earlier definitions. In
the words of Salmond: “So far as legal theory is concerned, a person is any being whom the
law regards as capable of rights and duties. Any being that is so capable is a person, whether
a human being or not, and no being that is not so capable is a person even though he be a
man.” Salmond further explains that the extension of the conception of personality beyond
the class of human beings is one of the most noteworthy achievements of the legal
imagination.

Persons can be classified into (a) natural person, and (b) legal or artificial or juristic person.
There are some natural persons who do not enjoy the status of legal persons and vice versa.

Law of status

Law of status is the law concerning the natural, the domestic and the extra domestic status of
man in civilized society. The law of extra domestic status is the law that is concerned with
matters and relations apart from those concerning the family. Thus this department of the law
of status deals with the status of persons such as lunatics, aliens, deceased persons, lower
animals etc. These are persons who do not enjoy the status of legal personality but the society
has some duties towards them.

Legal Status of Unborn Person

A child in mother’s womb is by legal fiction regarded as already born. If he is born alive, he
will have a legal status. Though law normally takes cognizance of living human beings yet
the law makes an exception in case of an infant in ventre sa mere. Under English Law, a
child in the womb of the mother is treated as in existence and property can be vested in its
name. Article 906 of the French Civil Code permits the transfer of property in favour of an
unborn person. But, according to Mohammedan Law a gift to a person not in existence is
void. A child in the womb of the mother is considered to be a person both under the law of
crimes and law of torts. Under section 13 of the Transfer of Property Act, property can be
transferred for the benefit of an unborn person by way of trust. Similarly section 114 of the
Indian Succession Act, 1925 provides for the creation of prior interest before the unborn
person may be made the owner of property – corporeal or incorporeal, but no property will be
deemed to be vested in the unborn person unless and until he is born alive. In Hindu Law also
a child in the womb of the mother is deemed to be in existence for certain purposes. Under
Mitakshara law, such a child has interest in coparcenary property.

Under section 315 of the Indian Penal Code, the infliction of pre natal injury on a child,
which is capable of being born alive and which prevents it from being so could amount to an
offence of child destruction. Section 416 of Criminal Procedure Code provides that if a
woman sentenced to death is found to be pregnant, the High Court shall order the execution
of the sentence to be postponed, and may if it thinks fit, commute the sentence to
imprisonment for life. It has been held that in a Canadian case that a child could succeed in
tort after it was born on account of a deformity which was held to have been caused by a
negligent pre natal injury to mother.

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Though there is no Indian case on this point but it is expected that a liberal view would be
taken on this line and a child would be getting the right to sue. In an African case it was held
that a child can succeed in tort after it is born on account of a deformity caused by pre injury
to his mother.

In India as well in England, under the law of tort an infant cannot maintain an action for
injuries sustained while on ventre sa mere. However, in England damages can be recovered
under Fatal Accidents Act, 1846 for the benefit of a posthumous child. In short, it can be
concluded that an unborn person is endowed with legal personality for certain purposes.

Legal Status of Dead Man

Dead man is not a legal person. As soon as a man dies he ceases to have a legal personality.
Dead men do not remain as bearers of rights and duties it is said that they have laid down
their rights and duties with their death. Action personalis moritur cum persona- action dies
with the death of a man. With death personality comes to an end. A dead man ceases to have
any legal right or bound by any legal duty. Yet, law to some extent, recognises and takes
account of the desires or intentions of a deceased person. Law ensures a decent burial, it
respects the wishes of the deceased regarding the disposal of his property, protects his
reputation and in some cases continues pending action instituted by or against a person who
is now deceased.

- As far as a dead man’s body is concerned criminal law secures a decent burial to all dead
men. Section 297 of Indian Penal Code also provides punishment for committing crime
which amounts to indignity to any human corpse. The criminal law provides that any
imputation aganist a deceased person, if it harms the reputation of that person if living and is
intended to hurt the feeling of his family or other near relatives, shall be offence of
defamation under sec 499 of the Indian Penal Code.

The Supreme Court in the case of Ashray Adhikar Abhiyan v Union of India has held that
even a homeless person when found dead on the road, has a right of a decent burial or
cremation as per his religious faith.

In English Law as well as in Muslim Law the violation of a grave is a criminal offence. As
regards reputation of a dead man, it is to some extent protected by criminal law. Under
Roman law any insult to the body of the deceased at the timing of funeral, gave the
deceased’s heir a right to sue for the injury as it is treated as insult to the heir. Under the law
of France the relative of the defamed deceased can successfully sue for damages, if they can
prove that some injury it suited from the defamation. Thus, it is not the rights and the hence
the personality of the deceased that the law recognises and protects but it is the right and
interest of living descendants that it is protected.

So far trust is concerned English Law provides the rule that permanent trust for the

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maintenance of a dead man’s tomb is illegal and void and property cannot be tied up for this
purpose. This rule has been laid down in the leading case of Williams v. Williams where it
was said that a corpse is the property of no one. It cannot be disposed of by will or any other
instrument. It was further held in this case that even temporary trusts are neither valid nor
enforceable. Its fulfillment is lawful and not obligatory. It was held in Mathii Khan v. Veda
Leiwai that worship at the tomb of a person is charitable and religious purposes amongst
Muslims- hence trust is possible. In Saraswati v. Raja Gopal it was held that worship at the
Samadhi of a person, except in a community in which there is a widespread practice of
raising tombs and worshipping there at, is not a religious or charitable purpose according to
Hindu Law and would not constitute a valid trust or endowment.

Regarding the property of the dead man the law carries out the wishes of the deceased
example, a will made by him regarding the disposal of his property. This is done to protect
the interest of those who are living and who would get the benefit under the will. This is
subject to the rule against perpetuity as well as law of testamentary succession. Indian
Transfer of Property Act, section 14 incorporates the rule against perpetuities, which forbids
transfer of property for an indefinite time thereby making it alienable. Section 14 of the TPA
restrains the power of creating future interests by providing in the rule against perpetuities
that such interest must arise within certain limits. The rule of perpetuity looks to the date at
which the contingent interest will vest, if it vests at all, and hold it to be void as “perpetuity if
this date is too remote”.

Similarly, section 1 and 4 of the Indian Succession Act, 1925 forbids the creation of a will
whereby vesting of property is postponed beyond the lifetime of one or more persons and the
minority period of the unborn person.

Legal Status of Lower Animals

Law does not recognise beasts or lower animals as persons because they are merely things
and have no natural or legal rights. Salmond regards them mere objects of legal rights and
duties but never subjects of them. Animals are not capable of having rights and duties and
hence they are not legal persons.

Ancient Law - However, in ancient times animals were regarded as having legal rights and
being bound by legal duties. Under the ancient Jewish Code ‘if an ox gore (wound with a
horn) a man or woman resulting in his or her death, then the ox was to be stoned and its flesh
was not to be eaten. There are many examples in ancient Hebrew Codes where cock, bulls,
dogs and even the trunk of trees which had fallen on human beings and killed him were tried
for homicide.’

There are similar instances in India as well. In number of cases found that, animals were sued
in courts in ancient India. There is popular story about the Mughal Emperor Jehangir in
which the bullock was presented before the Emperor. However these instances are merely of
historical interest and have no relevance in modern law.

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Modern Law - Modern Law does not recognise animals as bearer of rights and duties. Law is
made for human beings and all things including animals are for men. No animal can be the
owner of property from a person to an animal. Animals are merely the object of transfer and
are a kind of property, which are owned and possessed by persons. Of course, for the wrongs
done by animals the master is held liable. This duty or liability of the master arises due to
public policy and public expediency. The liability of the master is strict and not a vicarious
liability. The animal could be said to have a legal personality only if the liability of the master
is considered vicarious.

In certain cases, the law assumes the liability of the master for an animal as direct while in
other cases, liability is not direct. Thus, for keeping animals that are not of dangerous nature
the master is not liable for the damage it may do, unless he knows that it was dangerous. The
knowledge of the defendant must be shown as to their propensity to do the act in question.
However, if the animal is of ferocious nature, the master is responsible for the wrong if he
shows negligence in handling it. The owner of animals of this class is also responsible for
their trespasses and consequent damage. If a man’s cattle, sheep or poultry, stray into his
neighbour’s land or garden, and do such damage as might ordinarily be expected to be done
by things of that sort, the owner is liable to his neighbour for the consequences. A charitable
trust can be created for the maintenance of stray cattle, broken horses and other animals. Such
a trust is created with a view to promote public welfare and advancement of religion.
However, if the charitable trust is created only for the benefit of a single horse or a dog, it
cannot be regarded as public charitable trust for instance in Re Dean Cooper Dean v. Stevens
a test of charged his property with the payment of annual sum of trustees for the maintenance
of his horses and dogs. The court held that it is not valid trust enforceable in any way on
behalf of these animals. It was observed that the trustee could/spend the money if they
pleased in the manner desired by the testator. But if they did not spend the money it would
not be considered a breach of trust and in such a situation the money so spent will be of the
representatives of the testator.

Similarly, a bequest for the maintenance of the testator’s favourite black mare a bequest of an
annual sum for the maintenance of testator’s horses and hounds for a period of 50 years if nay
those animals should so long live a trust for the benefit of a parrot during the life of two
trustees and survivor of them have all been held valid.

Two kinds of persons are recognised by law and those are natural person and legal
persons. Legal persons are also known as artificial, juristic or fictitious persons.
(1) According to Holland, a natural person is “such a human being as is regarded by the law
as capable of rights and duties—in the Language of Roman law, as having a status.”
According to another writer, natural persons are “living human beings recognised as persons
by the state. The first requisite of a normal human being is that he must be recognised as
possessing a sufficient status to enable him to possess rights and duties. A slave in Roman
law did not possess a personality sufficient to sustain legal rights and duties. In spite of that,
he existed in law because he could make contracts which under certain circumstances were

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binding on his master. Certain natural rights possessed by him could have legal consequences
if he was manumitted. Likewise in Roman law, an exile or a captive imprisoned by the enemy
forfeited his rights. However, if he was pardoned or freed, his personality returned to him. In
the case of English Law, if a person became an outlaw, he lost his personality and thereby
became incapable of having rights and duties. The second requisite of a normal human being
is that he must be born alive. Moreover, he must possess essentially human characteristics.

(2) Legal persons are real or imaginary beings to whom personality is attributed by law by
way of fiction where it does not exist in fact. Juristic persons are also defined as those things,
mass of property, group of human beings or an institution upon whom the law has conferred a
legal status and who are in the eye of law capable of having rights and duties as natural
persons.

Law attributes by legal fiction a personality of some real thing. A fictitious thing is that
which does not exist in fact but which is deemed to exist in the eye of law. There are two
essentials of a legal person and those are the corpus and the animus. The corpus in the body
into which the law infuses the animus, will or intention of a fictitious personality. The animus
is the personality or the will of the person. There is a double fiction in a juristic person. By
one fiction, the juristic person is created or made an entity. By the second fiction, it is clothed
with the will of a living being. Juristic persons come into existence when there is in existence
a thing, a mass of property, an institution or a group of persons and the law attributes to them
the character of a person. This may be done as a result of an act of the sovereign or by a
general rule prescribed by the government.

A legal person has a real existence but its personality is fictitious. Personification is essential
for all legal personality but personification does not create personality. Personification is a
mere metaphor. It is used merely because it simplifies thought and expression. A firm, a Jury,
a bench of judges or a public meeting is not recognised as having a legal personality. The
animus is lacking in their case.

Difference between natural person and legal person:

Natural Person
1. A natural person is a human being and is a real and living person.

2. He has characteristics of the power of thought speech and choice.

3. Unborn, dead man and lower animals are not considered as natural persons.

4. The layman does not recognize idiot, company, corporation, idol etc. as persons .

5. He is also a legal person and accordingly performs their functions

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6. Natural person can live for a limited period i.e. he cannot live more than 100 years.

Legal Person
1. Legal person is being, real or imaginary whom the law regards as capable of rights or
duties.

2. Legal persons are also termed “fictitious”, “juristic”, “artificial” or “moral”.

3. In law, idiots, dead men, unborn persons, corporations, companies, idols, etc. are treated as
legal persons.

4. The legal persons perform their functions through natural persons only.

5. There are different varieties of legal persons, viz. Corporations, Companies, Universities,
President, Societies, Municipalities, Gram panchayats, etc.

6. Legal person can live more than 100 years. Example: (a) the post of “American President”
is a corporation, which was created some three hundred years ago, and still it is continuing.
(b) “East India Company” was established in sixteenth century in London, and now still is in
existence.

Legal personality is a fictitious attribution of personality by law, a sort of personification of

law. Legal persons being artificial creations of law can be of as many kinds as the law
devises. Continental jurisprudence recognizes three kinds of legal persons, namely:

i. Groups or series of men, usually called corporations: The first class of legal persons
consists of corporations, namely those which are constitutes by the personification of groups
(e.g., corporation aggregate) or series of individuals (e.g., corporation sole). In State Trading
Corporation of India v. Commercial Tax Officer, the Court observed that corporation are
undoubtedly legal persons but is not a citizen within the meaning of Article 19 of the
Constitution and cannot ask for the enforcement of fundamental rights granted to citizens
under the said article.

ii. Institutions like hospitals, libraries etc.: The second class is that in which corporations or
object selected for personification not a group of series of persons but an institution is. The
law may, if it pleases, regard a church, a hospital or a university or a library as a person. That
is to say it may attribute personality not to any group of persons connected with the
institution, but to the institution itself. In the tradition and practice of English Law, legal
personality is not limited by any logical necessity or indeed by any obvious requirement of
expediency to the incorporated bodies of individual persons. In India, institutions like
university, temple, public authorities, etc. are considered as legal persons. Under Indian law,
trade unions and friendly societies are legal entities. They own properties and suits can be
brought in their names though not regarded as corporations.

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iii. Funds or estates like the estates of deceased persons: The third kind of legal person is that
in which the corpus is some fund or estate devoted to special uses, a charitable fund for
example, or a trust estate, or the property or a dead man or of a bankrupt.

Corporate sole

Corporation sole is a legal entity consisting of a sole incorporated office, occupied by a single
man/women and it has legal continuity.

A corporation sole consists of one person only, and the successors of that person in some
particular station or office. The King of England is a corporation sole; so is a bishop; and in
the Church of England every parson and vicar is, in view of the law, a corporation sole.

To understand the concept of corporation sole one needs to deal with two yet similar
questions: First, it was necessary to discover what application the concept had, which
involved understanding why it had come into being in the first place; but Second, it was
necessary to ask what forms of law the use of this concept had excluded. Law, in ruling some
things in, is always ruling some things out (though it was by implication the English genius to
stretch the terms of this proposition as far as they would go). Even English law could not
conjure up terms of art that were infinitely adaptable. That the corporation sole was a term of
art contrived to meet a particular practical problem rather than deduced from a set of general
juristic precepts, could not be doubted. Nor could it be doubted that the application of this
contrivance was rather limited. But what was surprising was how much, nonetheless, was
ruled in, and how much ruled out.

The origins of the corporation sole Maitland traced to a particular era and a particular
problem. The era was the sixteenth century, and coincides with what Maitland calls ‘a
disintegrating process . . . within the ecclesiastical groups’, when enduring corporate entities
(corporations ‘aggregate’, which were, notwithstanding the misleading terminology, more
than the sum of their parts) were fracturing under political, social and legal pressure.
However, the particular problem was not one of groups but of individuals; or rather, it was a
problem of one individual, the parish parson, and of one thing, the parish church. Was this
thing, a church, plausibly either the subject or the object of property rights? The second
question – of objectivity – was the more pressing one, as it concerned something that was
unavoidable as a cause of legal dispute, namely ‘an exploitable and enjoyable mass of
wealth’.

But it could not be addressed without considering the other question, and the possibility that
the ownership of this wealth does not attach to any named individuals but to the church itself.
The law could probably have coped with this outcome, but the named individuals involved,
including not only the parson but also the patron who nominates him and the bishop who
appoints him, could not. It placed exploitation and enjoyment at too great a remove. Instead,
an idea that had been creeping towards the light during the fifteenth century was finally
pressed into service, and the parson was deemed the owner, not in his own right, but as a kind

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of corporation, called a ‘corporation sole’.

What this meant, in practice, was that the parson could enjoy and exploit what wealth there
was but could not alienate it. But what it meant in theory was that the church belonged to
something that was both more than the parson but somewhat less than a true corporation.
That it was more than the parson was shown by the fact that full ownership, to do with as he
pleased, did not belong to any one parson at any given time; that it was less than a
corporation was shown by the fact that when the parson died, ownership did not reside in
anybody or anything else, but went into abeyance. Essentially, the corporation sole was a
negative idea. It placed ultimate ownership beyond anyone. It was a ‘subject less right, a fee
simple in the clouds’. It was, in short, an absurdity, which served the practical purpose of
many absurdities by standing in for an answer to a question for which no satisfactory answer
was forthcoming.

The idea of the corporation sole gave legal fictions a bad name; the corporation sole was a
frivolous idea, which implied that the personification of things other than natural persons was
somehow a less than serious matter. It was not so much that absurdity bred absurdity, but that
it accustoms us to absurdity, and all that that entails. Finally, however, the idea of the
corporation sole was serious because it encouraged something less than seriousness about
another office than parson. Although the class of corporations sole was slow to spread, it was
found serviceable by lawyers in describing at least one other person, or type of person: the
Crown. To think of the Crown as a corporation sole, whose personality is neither equivalent
to the actual person of the king nor detachable from it, is ‘clumsy’. It is in some ways less
clumsy than the use of the concept in application to a parson. The central difficulty, that of
‘abeyance’ when one holder of the office dies, is unlikely to arise in this case: when a parson
dies there may be some delay before another is appointed, but when a king dies there is
considerable incentive to allow no delay, whatever the legal niceties. Nor is it necessarily
clumsier than other, more famous doctrines: it is no more ridiculous to make two persons of
one body than it is to make two bodies of one person It makes a ‘mess’ of the idea of the civil
service by allowing it to be confused with ‘personal’ service of the king; it cannot cope with
the idea of a national debt ; it even introduces confusion into the postal service (by
encouraging the view that the Postmaster-General is somehow freeholder of countless post
offices). It also gets things out of proportion, for just as it implies that a single man is owner
of what rightly belongs to the state, so it also suggests that affairs of state encompass personal
pastimes.

The problem with absurd legal constructions is not simply that serious concerns may be
trivialised, but also that trivial matters may be taken too seriously, which is just as time-
consuming. ‘So long as the State is not seen to be a person [in its own right], we must either
make an unwarrantably free use of the King’s name, or we must be forever stopping holes
through which a criminal might glide.’

Therefore a corporation sole can be defined as a corporation sole consists of one person and
his or her successors in some particular office or station, who are incorporated by law in

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order to give them certain legal capacities and advantages which they would not have in their
natural person.

The Crown first came to be identified as a corporation sole at a sinister time, during the reign
of Henry VIII. In most important respects, as touching on the fundamental questions of
politics, the British state had long been afforded its own identity as a corporation aggregate,
distinct from the persons of any individuals who might make it up at any given moment. The
British state had a secure national debt, which had been owed for some time by the British
‘Publick’, and the British public had been relatively secure since the end of the seventeenth
century in the rights that it had taken from the Crown. The problems, such as they were, were
problems of convenience and not of freedom. But precisely because the idea of the Crown as
a corporation sole remained tied up in the domain of private law, it illustrated the gap that
existed in England between legal and political conceptions of the state. The fact that the
Crown was still understood as a corporation sole implied that there was some distinction to
be drawn between matters of basic political principle and mere questions of law. This was
unsustainable. It was not simply that it was not clear on what basis this distinction could
conceivably rest – it was impossible, after all, to argue that the corporation sole was useful in
matters of law, since it had shown itself to be so singularly useless. It was also far from clear
where to draw the line Maitland devotes considerable attention to the problems that the
British Crown was experiencing at the turn of the twentieth century in understanding its
relationship with its own colonies. That they were its ‘own’, and had begun their life as
pieces of property, meant that there was a legal argument for seeing them still as the property
of the Crown, which was itself seen still as the corporate personality of Her Majesty the
Queen. This was convoluted, unworkable and anachronistic. It was also ironic. It meant that
in what was obviously a political relationship the supposedly dominant partner was still
conceived as an essentially private entity, and therefore restricted by the conventions of
private law; while the colony itself, which had begun life as a chartered corporation created
by the Crown, was able to use that identity as a corporation aggregate to generate a distinct
identity for itself as “one body corporate and politic in fact and name”.

Corporate aggregate
A corporate aggregate is an incorporated group of co-existing persons. Examples: all private
limited companies, all public limited companies, multi-national corporations, public
undertaking corporations.“Corporate aggregate” is a fictitious body and created by the policy
of men. They may also be called as “body’s Politique”. A corporate aggregate has several
members at a time. These are the private offices. The primary object of corporate aggregate is
to do business. It is lesser permanent than corporate sole. Similarly, corporate aggregate also
shall have its own properties, debts, with which the share holders are not concerned. The
share holders are concerned corporation / company subject to the extent of their share
amount, not exceeding that. They have their own properties. The debts of the company are
not having any connection with their own properties. The debts, profits, losses are related to
the share amount only.

So the perfect definition of corporate aggregate would be -

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Corporation aggregate consist of two or more persons united in a society, which is preserved
by a succession of members, either forever or till the corporation is dissolved by the power
that formed it, by the death of all its members, by surrender of its charter or franchises, or by
forfeiture. Such corporations are the mayor and aldermen of cities, the head and fellows of a
college, the dean and chapter of a cathedral church, the stockholders of a bank or insurance
company, etc.

A corporation aggregate, or body politic, or body incorporate, is a collection of many;

individuals united in one body, under a special denomination, having perpetual succession
under an artificial form, and vested by the policy of the law, with a capacity of acting in
several respects as an individual, particularly of taking and granting property, contracting
obligations, and of suing and being sued; of enjoying privileges and immunities in common,
and of exercising a variety of political rights, more or less extensive, according to the design
of its institution, or the powers conferred upon it, either at the time of its creation, or at any
subsequent period of its existence.

So basically a corporate aggregate consists of several persons, who are’ united in one society,
which is continued by a succession of members. Of this kind are the mayor or commonalty of
a city; the heads and fellows of a college; the members of trading companies, and the like.
Going by the above description of corporations aggregate, it would logically follow that
every form of concerted activity of willing individuals aimed at a particular end, would lead
to their acts coming to known through the glass of incorporation which realises their
combined operations as one single act, performed by a single personality. However, it is in
this regard that the real limits of artificial personality are discernible. The law deems only
certain forms of concerted action as eligible for recognition through incorporation; thus while
joint stock companies are recognised as incorporated bodies, associations such as
partnerships, trade unions and other organizations are not recognised as incorporated bodies
for various reasons. These groups have come to assume the term ‘unincorporated
associations’.

In Saloman v. Saloman and Co., a trader sold a solvent business to a limited company
which consisted of the vendor, his wife and children only. In payment of the purchase money,
the company issued debentures to the vendor. Later on, the company went into liquidation.
The question for decision was whether this debenture holder was entitled to be paid in
preference to the unsecured creditors. The question was answered in the affirmative. It is
clear from this case that a man may become his own preferred creditor by taking debentures
from a company of he holds practically all the shares. This is due to the fact that the company
has a legal personality different from that of the shareholders. This case also shows that one
can seek shelter behind this legal person without one’s real connection with the corporation
being unmasked.

In Daimler Company Ltd. v. Continental Tyre and Rubber Co. Ltd., the respondent
company was incorporated in England for the purpose of selling in England tyres made in
Germany by a German company. Most of the shareholders of that company were Germans.

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After the outbreak of war in 1914 between England and Germany, an action was started in
the name of the respondent company for the recovery of a trade debt. The action was resisted
on the ground that the plaintiff was an “alien enemy” at war with England and hence the suit
was not maintainable. The contention of the plaintiff was that the nationality of the company
was distinct from that of its shareholders and as it was registered in England, the declaration
of war had no effect on it. The decision was given against the company by the House of
Lords. Lord parker observed: “What is involved in the decision of the Court of Appeals is
that for all purposes to which the character and not merely the rights and powers of an
artificial person are material, the responsibilities of natural persons who are its corporators,
are to be ignored. An impassible line is drawn between the one person and the others. When
the law is concerned with the artificial person, it is to know nothing of the natural persons
who constitute and control it.” The House of Lords held that the enemy character of
individual shareholders and their conduct could be material on the question whether the
company’s agents and persons in de facto control of the company were adhering to the
enemy. If the persons in control of the company were resident in an enemy country or were
adhering to the enemy, that company would assume an enemy character. The House of Lords
pierced the veil sought to be drawn over the physiognomy of the company for the purpose of
ascertaining who the corporators behind the company were.

In Wurzel v. Houghton Main Home Delivery Service Ltd. and in Wurzel v. Atkinson, the
difference between an incorporated and an unincorporated association with regard to legal
consequences was brought out. Under the Road and Rail Traffic Act, 1933, the holder of a
private carrier’s licence known as “C” licence, was forbidden from using the vehicle for the
carnage of goods for hire or reward. A group of miners incorporated a company to get cheap
delivery of coal from the colliery. A motor goods vehicle in respect of which the company
held “C” licence was used for making delivery of coal at the houses of its members and
charges for delivery were deducted from the wages of the members. It was held that as the
society was an incorporated one, it was a legal entity distinct from its members and there was
a breach-of condition under which “C” licence was held as the vehicle was used for carriage
of goods for hire or reward. Another group of miners formed an association without
incorporating it. They made use of the vehicle of the association for delivery of coal at the
house of its members. It was held that each member was a part-owner of the vehicle and as
co-owners could not be said to be carrying their own goods for hire or reward by contributing
to the running expenses, there was no breach of the conditions of “C” licence.

The position of the Karta in a Hindu coparcenary is an example of corporate personality. In

coparcenary system although each member of the joint Hindu Family has some rights and
duties and even though it is a single familial unit, a Joint Hindu Family does not have a
separate legal identity and is not a juristic person. It is not capable of holding property and the
law does not attribute any personality to a Joint Hindu Family. The Karta is overall head of
the joint family who manages the entire family property. He has a right to alienate the
property and other members of the family are under his control. He can sue and be sued on
the behalf of the joint family. In juristic terms, he is a corporation sole having a double
capacity, i.e., as a natural person he is the eldest member of the family and as a legal person

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he is in the capacity of the Karta of the Joint Family.

According to the long established theory which was founded upon the religious customs of
the Hindus, a Hindu idol is a ‘juristic entity’ having a ‘juridical status’ and it has the power to
sue and being sued. But juridical person in the idol is not the material image but the image
develops itself into a legal person when it is consecrated by the Pran Pratistha
ceremony.According to Hindu law and various decisions of the courts, the position of idol is
that of a minor and a manager is appointed to act on idol’s behalf. Like a minor, an idol
cannot express itself and like a guardian, manager has some limitations under which he has to
act and perform its duties. According to this rule, Shri Guru Granth Sahib is also a juristic
person. But other religious texts such as Gita, Quran, Bible are not considered to be juristic
persons.

The Union of India and the States have also been recognized as corporate entities under
Article 300 of the Constitution of India. Article 300 relating to Suits and proceedings is
as follows:
(1) The Governor of India may sue or be sued by the name of the Union and the Government
of a State may sue or be sued by the name of the State and may, subject to any provisions
which may be made by Act of Parliament or of the Legislature of such State enacted by virtue
of powers conferred by this Constitution, sue or be sued in relation to their respective affairs
in the like cases as the Dominion of India and the corresponding Provinces or the
corresponding Indian States might have sued or been sued if this Constitution had not been
enacted

(2) If at the commencement of this Constitution

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of
India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) Any legal proceedings are pending to which a Province or an Indian State is a party, the
corresponding State shall be deemed to be substituted for the Province or the Indian State in
those proceedings.

The President of India as also the Governor of the State is a corporation sole like British
Crown. The Ministers of Union or State Government are not legal or constitutional entity and
therefore, they are not corporation sole. The reason being that they are appointed by the
President or the Governors and are ‘officers’ within the meaning of Articles 53 and 154 of the
Constitution. Article 53(1) say that the executive power of the Union shall be vested in the
President and shall be exercised by him either directly or through officers subordinate to him
in accordance with the Constitution. Similarly, Article 154(1) say that the executive power of
the State shall be vested in the Governor and shall be exercised by him either directly or
through officers subordinate to him in accordance with the Constitution.

Thus, they are not personally liable for their acts or omissions nor are they directly liable in a

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Court of law for their official acts. It is the State whether the Centre or the federated unit
which is liable for the tort or the breach of contract committed by a Minister in his official
capacity.

Partnership firm is not a legal person in the eye of law. There is no legal entity, standing over
against the partners. The property and debts of the firm are nothing else than those of the
partners. It can neither sue nor be sued in its own name. The member partners cannot contract
with their partnership firm because a man cannot contract with himself.

Unlike a partnership firm which has no existence apart from its members, incorporated
company has a distinct legal or juristic existence independent of its members. Under the law,
a corporation or a company is a distinct entity (legal persona) existing independent of its
members. An incorporated company exists as a complete being by virtue of its legal
personality and is often described as an artificial person in contrast with a human being who
is a natural person. A company being a legal entity by itself, is separate and distinct from its
promoters, shareholders, directors, officers or employees and as such, it is capable of
enjoying rights and being subjects to duties which are not the same as those enjoyed or borne
by its members. It may sue or be sued in its own name and may enter into contracts with third
parties independently and the members themselves can enter into the contract with the
company.

1) RBI: The Reserve Bank of India has a corporate existence because it is an incorporated
body having an independent existence.
2) UPSC: Union Public Service Commission is not recognized as a legal person as it cannot
hold property in their own names and can neither sue nor be sued in a court of law.
3) A Fund dedicated for a Religious Purpose: it was also of the nature of a legal person. It had
certain rights and received certain protection from law, such as the property dedicated to a
math.
4) Registered Societies: Societies registered under Societies Registration Act, 1860 are also
held to be legal persons.
5) Trade Union: Registered trade unions are considered as juristic persons.
6) Institutions like Church, University, Library etc.: these are considered as juristic persons.

7) Under the Indian law, Corporation Aggregate are all those bodies or associations which are
incorporated under a statute of the Parliament or State Legislature. In this category comes all
trading and non-trading associations which are incorporated under the relevant like the State
Trading Corporation, Municipal Corporation, Roadways Corporation, the Public Companies,
State Bank of India, the Life Insurance Corporation, the universities, Panchayats, Corporative
Societies.

Limitations to Legal Personality

The limitations of a legal corporate personality have been an issue of constant debate. While
the granting of personhood can help make corporations legally responsible for their actions, it
also opens the door to many more intricate questions. For example, if a corporation has a

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personality separate from its shareholders or owners, some argue that it must also have
individual rights, such as the right to vote. If granted the right to vote, however, then
shareholders will in effect have the right to vote twice: once as private individuals, and once
in the personality of the corporation. As this conflict with most voting systems, it remains a
controversial issue throughout legal circles.

There are limitations to the legal recognition of legal persons. Legal entities cannot marry,
they usually cannot vote or hold public office, and in most jurisdictions there are certain
positions which they cannot occupy. The extent to which a legal entity can commit a crime
varies from country to country. Certain countries prohibit a legal entity from holding human
rights; other countries permit artificial persons to enjoy certain protections from the state that
are traditionally described as human rights.

Special rules apply to legal persons in relation to the law of defamation. Defamation is the
area of law in which a person's reputation has been unlawfully damaged. This is considered
an ill in itself in regard to natural person, but a legal person is required to show actual or
likely monetary loss before a suit for defamation will succeed.

In 2010, the United States Supreme Court rendered a decision that many legal scholars
describe as a victory for corporation rights. The decision, Citizens United v. Federal Election
Committee expanded the free speech rights of corporations by holding that it is
unconstitutional to prohibit legal persons from engaging in election expenditures and
electioneering. While critics see this ruling as tantamount to allowing corporate-sponsored
candidates in the future, proponents argue that it is unfair to grant legal personality that grants
equal responsibilities but not equal rights.

Though a company is a legal person, it is not a citizen under the constitutional law of India or
the Citizenship Act, 1955. The reason as to why a company cannot be treated as a citizen is
that citizenship is available to individuals or natural persons only and not to juristic persons.
The question whether a corporation is a citizen was decided by the Supreme Court in State
Trading Corporation of India v. Commercial Tax Officer. Since a company is not treated as a
citizen, it cannot claim protection of such fundamental rights as are expressly guaranteed to
citizens, but it can certainly claim the protection of such fundamental rights as are guaranteed
to all persons whether citizens or not. In Tata Engineering Company v. State of Bihar it was
held that since the legal personality of a company is altogether different from that of its
members and shareholders, it cannot claim protection of fundamental rights although all its
members are Indian citizens. Though a company is not a citizen, it does have a nationality,
domicile and residence. In case of residence of a company, it has been held that for the
purposes of income tax law, a company resides where its real business is carried on and the
real business of a company shall be deemed to be carried on where its Central management
and control is actually located.

Conclusion
The foregoing analysis makes it abundantly clear that incorporation had great importance

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because it attributes legal personality to non living entities such as companies, institutions
etc. which help in determining their rights and duties. Clothed with legal personality, these
non living personalities can own, use and dispose of property in their own names.
Unincorporated institutions are denied this advantage because their existence is not different
from the members.

Ordinarily, only an incorporated body can sue or be sued and an unincorporated body cannot
sue or be sued in its own name. This rule was very useful for trade union organizations which
were usually not incorporated associations. In the case of Taff Vale Railway Co. v.
Amalgamated Society of Railway Servants, the House of Lords decided in 1901 that a trade
union could be sued for damages arising out of the wrongful acts of its officials. The union
concerned had to pay £ 2300 in damages and legal expenses in addition. The trade unions
carried on an agitation against the decision and ultimately the Trade Disputes Act of 1906
gave complete protection against judgments like the Taff Vale Railway Company.

Keelson through his analytical approach to legal personality has concluded that there is no
divergence between natural persons and legal persons for the purposes of law. In law
personality implies conferment of rights and duties. Therefore, for the convenient attribution
of rights and duties, the conception of juristic personality should be used in its procedural
form.

THEORIES OF JURISTIC PERSONALITY

Ethical Natural law philosophers of the 17th and 18th centuries as well as the metaphysical
theorists of 19th century postulated the concept of will as an essential requirement for
exercising legal right. They also believed that personality is the subjective possibility of a
rightful will. Legal personality is an artificial creation of law. Entities recognized by law are
capable of being parties to a legal relationship. A natural person is a human being
whereas legal persons are artificial persons, such as a corporation, created by law and
given certain legal rights and duties of a human being; a being, real or imaginary, who for
the purpose of legal reasoning is treated more or less as a human being. All legal persons
can sue or be sued.
Theories of Juristic Personality
1. Fiction Theory– This theory was put forward by Von Savigny, Salmond, Coke,
Blackstone, and Holland etc. According to this theory, the personality of a corporation
is different from that of its members. Savigny regarded corporation as an exclusive
creation of law having no existence apart from its individual members who form the
corporate group and whose acts are attributed to the corporate entity. As a result of this,
any change in the membership does not affect the existence of the corporation. It is
essential to recognize clearly the element of legal fiction involved in this process. A
company is in law something different from its shareholders or members. The property
of the company is not in law the property of the shareholders. The company may
become insolvent, while its members remain rich. Gray supported this theory by saying
that it is only human beings that are capable of thinking, therefore it is by way of fiction
that we attribute ‘will’ to non-human beings through human beings who are capable of
thinking and assign them legal personality. Wolf said that there are three advantages of

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 this theory. It is analytical, more elastic and it makes easier to disregard juristic
personality where it is desirable.
2. Concession Theory– This theory is concerned with the Sovereignty of a State. It pre-
supposes that corporation as a legal person has great importance because it is recognized
by the State or the law. According to this theory, a juristic person is merely a concession
or creation of the state. Concession Theory is often regarded an offspring of the Fiction
Theory as both the theories assert that the corporation within the state have no legal
personality except as is conceded by the State. Exponents of the fiction theory, for
example, Savigny, Dicey and Salmond are found to support this theory. Nonetheless, it
is obvious that while the fiction theory is ultimately a philosophical theory that a
corporation is merely a name and a thing of the intellect, the concession theory is
indifferent to the question of the reality of a corporation in as much as it focuses only
on the source (State) from which the legal power of the corporation is derived.
3. Group Personality Theory or Realist Sociological Theory– This theory was
propounded by Johannes Althusius and carried forward by Otto Van Gierke. This group
of theorists believed that every collective group has a real mind, a real will and a real
power of action. A corporation therefore, has a real existence, irrespective of the fact
whether it is recognized by the State or not. Gierke believed that the existence of a
corporation is real and not based on any fiction. It is a psychological reality and not a
physical reality. He further said that law has no power to create an entity but merely has
the right to recognize or not to recognize an entity. A corporation from the realist
perspective is a social organism while a human is regarded as a physical organism. This
theory was favoured more by the sociologists rather than by the lawyers. While
discussing the realism of the corporate personality, most of the realist jurists claimed
that the fiction theory failed to identify the relationship of law with the society in
general. The main defect of the fiction theory according to the realist jurists was the
ignorance of sociological facts that evolved around the law making process. Horace
Gray, however, denied the existence of collective will. He called it a figment. He said
that to get rid of the fiction of an attributed by saying that corporation has a real general
will, is to derive out one fiction by another.
4. The Bracket Theory or the Symbolist Theory– This theory was propounded by
Rudolph Ritter von Jhering (also Ihering). According to Ihering, the conception of
corporate personality is essential and is merely an economic device by which we can
simplify the task of coordinating legal relations. Hence, when necessary, it is
emphasized that the law should look behind the entity to discover the real state of
affairs. This is also similar to the concept of lifting of the corporate veil. This group
believed that the juristic personality is only a symbol to facilitate the working of the
corporate bodies. Only the members of the corporation are ‘persons’ in real sense of the
term and a bracket is put around them to indicate that they are to be treated as one single
unit when they form themselves into a corporation.
5. Purpose Theory or the theory of Zweck Vermogen– The advocates of this theory are
Ernst Immanuel Bekker and Alois von Brinz. This theory is also quite similar to the
fiction theory. It declared that only human beings can be a person and have rights. This
theory also said that a juristic person is no person at all but merely
a “subjectless” property destined for a particular purpose. There is ownership but no
owner. Thus a juristic person is not constructed round a group of persons but based on
an object and purpose. The assumption that only living persons can be the subject-matter
of rights and duties would have deprived imposition of rights and duties on corporations
which are non-living entities. It therefore, became necessary to attribute ‘personality’ to
corporations for the purpose of being capable of having rights and duties.

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 6. Hohfeld’s Theory– He said that juristic persons are creations of arbitrary rules of
procedure. According to him, human beings alone are capable of having rights and
duties and any group to which the law ascribes juristic personality is merely a procedure
for working out the legal rights and jural relations and making them as human beings.
7. Kelsen’s Theory of Legal Personality – He said that there is no difference between
legal personality of a company and that of an individual. Personality in the legal sense is
only a technical personification of a complex of norms and assigning complexes of
rights and duties.

TITLES

Title is a link between a person and an object to establish ownership of property. A

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

Kinds of Title

There are two kinds of title are as follow

 Investitive facts Investitive facts create rights. This right is created first time on the
objects, which are ownerless. When I catch fish it is my original title and if I purchase
it from elsewhere then it is called derivative title. Derivative right is second right,
which is created after gone away of original right.
 Divestitive facts Divestitive facts are those, which loss or keep away of right is
termed as divestitive facts.
 Alienative right Alienative right is right which is separated or transferable.
 Extinctive right Extinctive right is right which is kept away or destroyed.

OBLIGATIONS

Every legal system contains obligation-imposing laws, but there is no decisive linguistic
marker determining which these are. The term “obligation” need not be used, nor its near-
synonym, “duty.” One rarely finds the imperative mood. The Canadian Criminal Code
imposes an obligation not to advocate genocide thus: “Everyone who advocates or promotes
genocide is guilty of an indictable offence and liable to imprisonment for a term not
exceeding five years.” The English Sale of Goods Act says that, “Where the seller sells
goods in the course of a business, there is an implied condition that the goods supplied
under the contract are of merchantable quality.” That these laws create obligations follows

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from the way “offence” and “implied condition” function in their respective areas of law, not
from the language in which they are expressed.

On the face of it, some laws have other functions. A requirement that “a will must be signed”
generally imposes no duty—not a duty to make a will, and not even a duty to have it signed if
you do—it sets conditions in the absence of which the document simply does not count as a
valid will. Nonetheless, some philosophers, including Jeremy Bentham and Hans Kelsen,
argue that the content of every legal system can and should be represented solely in terms
of duty-imposing and duty-excepting laws. Bentham asks, “What is it that every article of law
has in common with the rest? It commands and by doing so creates duties or, what is
another word for the same thing, obligations” (Bentham 1970, 294). (For a related
contemporary view, see Harris 1979, 84–106.) They think that analyzing laws this way
reveals what legislators or subjects most need to know: under what conditions the coercive
power of law will ultimately be met. Others argue that even if such a reduction were possible,
it would be unwieldy, uninformative and unmotivated, concealing as it does the different
social functions that laws fulfil (Hart 1994: 26–49) and the different kinds of reasons for
action that they create (Raz 1990). Others still, despairing of any principled way of knowing
what a law is, have abandoned the problem entirely and tried to develop a theory of law that
bypasses it (Honoré 1977; Dworkin 1978: 71–78). At a minimum, it does seem clear that
whether or not all laws impose obligations, they can only be fully understood through their
relations to those that do. Thus, a legal right is an interest that warrants holding others under
an obligation to protect it, a legal power is the ability to create or modify obligations, and so
forth.

What then are legal obligations? They are legal requirements with which law's subjects
are bound to conform. An obligatory act or omission is something the law renders non-
optional. Since people plainly can violate their legal obligations, “non-optional” does not
mean that they are physically compelled to perform, nor even that law leaves them without
any eligible alternative. On the contrary, people often calculate whether or not to perform
their legal duties. Could it be then that obligations are simply weighty reasons to perform,
even if sometimes neglected or outweighed? This cannot be a sufficient condition: high
courts have important reasons not to reverse themselves too frequently, but no legal
obligation to refrain. Nor is it necessary: one has an obligation, but only a trivial reason, not
to tread on someone's lawn without his consent.

If their content does not account for the stringency of obligations, what does? A historically
important, though now largely defunct, theory explained it in terms of penalty. Following
Hobbes and Bentham, the English jurist John Austin says that to have a legal obligation is to
be subject to a sovereign command to do or forbear, where a command requires an
expression of will together with an attached risk, however small, of suffering an evil for non-
compliance. “When I am talking directly of the chance of incurring the evil, or (changing the
expression) of the liability or obnoxiousness to the evil, I employ the term duty, or the
term obligation…” (Austin 1832, 18). Others conceived an indirect connection between duty
and sanction. Hans Kelsen holds that what is normally counted as the content of a legal duty
is in reality only part of a triggering condition for the mandatory norm which commands or
authorizes officials to impose a sanction: “[A] norm: ‘You shall not murder’ is superfluous, if a
norm is valid: ‘He who murders ought to be punished’”(Kelsen 1967, 55). And thus, “Legal
obligation is not, or not immediately, the behavior that ought to be. Only the coercive act,
functioning as a sanction, ought to be” (Kelsen 1967, 119).

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None of these versions of the sanction theory survived H.L.A. Hart's criticisms (Hart 1994,
27–42; cf. Hacker 1973). First, they misleadingly represent a range of disparate legal
consequences—including compensation and even invalidation—as if they all function as
penalties. Second, they render unintelligible many familiar references to duties in the
absence of sanctions, for example, the duty of the highest courts to apply the law. Third,
they offer an inadequate explanation of non-optionality. “You have an obligation not to
murder” cannot merely mean “If you murder you will be punished,” for the law is not
indifferent between people, on the one hand, murdering and being jailed, and on the other
hand not murdering at all. “The right to disobey the law is not obtainable by the payment of a
penalty or a licence fee” (Francome v. Mirror Group Newspapers Ltd. [1984] 2 All ER 408 at
412). Such dicta are commonplace and reflect familiar judicial attitudes. Most important, the
normal function of sanctions in the law is to reinforce duties, not to constitute them. It is true
that one reason people are interested in knowing their legal duties is to avoid sanctions, but
this is not the only reason nor is it, contrary to what Oliver Wendell Holmes supposed, a
theoretically primary one. Subjects also want to be guided by their duties—whether in order
to fulfil them or deliberately to infringe them—and officials invoke them as reasons for, and
not merely consequences of, their decisions.

Sensitivity to such matters led Hart to defend a rule-based theory. He says that while
sanctions might mark circumstances in which people are obliged to conform, they have an
obligation only when subject to a practiced social rule requiring an act or omission. The fact
that subjects use it as a rule marks it as normative. Three further features distinguish
obligation-imposing rules: they must be reinforced by serious or insistent pressure to
conform; they must be believed important to social life or to some valued aspect of it; and
their requirements may conflict with the interests and goals of the subject (Hart 1994, 85–
88). This account of the nature of obligations is not an account of their validity. Hart does not
say that a legal duty is binding whenever there is a willingness to deploy serious pressure in
its support, etc. He holds that a duty is legally valid if it is part of the legal system (i.e., if it is
certified as such by the tests for law in that system), and a legal duty is morally valid only if
there are sound moral reasons to comply with it. But, at least in his early work, he offers the
practice theory as an explanation of duties generally—legal duties are the creatures of legal
rules, moral duties of moral rules and so on. (Hart later modified this view, see 1982, 255–
68; and 1994, 256.)

The constitutive role of social pressure is sometimes considered an Austinian blemish on

Hart's theory, but there are in any case more serious problems with it as a general account
of obligations (Dworkin 1978, 50–54; Raz 1990, 53–8). People readily speak of obligations
when they are well aware that there are no relevant social practices, as might a lone
vegetarian in a meat eating society. And Hart's practice conditions may be satisfied in cases
where there is no obligation but only generally applicable reasons, as when victims are
regularly urged to yield their wallets to a mugger. At best, Hart's theory will apply only to a
special class of obligations in which the existence of a conventional practice is an essential
part of the reasons for conformity, though even here, the theory is open to doubt. (See
Dworkin 1978, 54–58; Green 1988, 88–121)

A third account is reason-based. On this view, what constitutes obligations is neither the
social resources with which they are enforced, nor the practices in which they may be
expressed, but the kind of reasons for action that they offer. Legal obligations are content-
independent reasons that are both categorical and pre-emptive in force. The mark of their

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content-independence is that their force does not depend on the nature or merits of the
action they require: in most cases, law can impose an obligation to do X or to refrain from
doing X (Hart 1958; 1982, 254–55; but cf. Markwick 2000). That they are pre-emptive means
that they require the subject to set aside his own view of the merits and comply nonetheless.
That they are categorical means that they do not condition their claims on the subject's own
goals or interests.

This view is foreshadowed in both Hobbes and Locke, but its most influential contemporary
version is due to Joseph Raz (1977; 1990, 35–84). He argues that obligations are
categorical reasons for action that are also protected by exclusionary reasons not to act on
some of the competing reasons to the contrary. Obligations exclude some contrary
reasons—typically at least reasons of convenience and ordinary preference—but they do not
normally exclude all: an exclusionary reason is not necessarily a conclusive reason. The
stringency of an obligation is thus a consequence not of its weight or practice features, but of
the fact that it supports the required action by special normative means, insulating it from the
general competition of reasons. Or at any rate this is what obligations do when they have the
force the claim, i.e., when they are binding. The theory does not assume that all legal
obligations actually are binding from the moral point of view, but it does suppose that the
legal system puts them forth as if they were—a consequence that some have doubted. (Hart
1982, 263–67; Himma 2001, 284–97) And while this account is invulnerable to the objections
to sanction-based and practice-based theories, it does need to make good the general idea
of an ‘exclusionary reason’, and some philosophers have expressed doubts on that score
also (Perry 1989, Regan 1987): is it ever reasonable to exclude entirely from consideration
an otherwise valid reason? The account has, nonetheless, been adopted by legal
philosophers with otherwise starkly contrasting views of the nature of law. (Compare, e.g.,
Finnis 1979, 231–59 and Marmor 2001).

Authority, Obligation, and Legitimacy

A competitive market is not a legal system, even though people adjust their behaviour in
response to relative prices and the whole constitutes a form of social order. Neither was the
system of mutual nuclear deterrence, though it guided behaviour and generated norms that
regulated the Cold War. Many philosophers and social scientists agree that a social order is
a legal system only if it has effective authority. An effective (or de facto) authority may not be
justified, but it does stand in a special relation to justified (de jure) authority. Justified
authority is what effective authorities claim, or what they are generally recognized to have.

What is legal authority, and how is it related to obligations? It is a kind of practical authority,
i.e. authority over action. On one influential view, “To claim authority is to claim the right to
be obeyed” (Wolff 1970, 5). There are, of course, authorities that make no such claim.
Theoretical authorities, i.e., experts, are not characterized by claims to obedience—they
need not even claim a right to be believed. And there are weaker forms of practical authority.
To give someone authority to use your car is merely to permit him. But political authority, of
which legal authority is one species, is normally seen as a right to rule, with a correlative
duty to obey. On this account law claims the right to obedience wherever it sets out
obligations. And to obey is not merely to comply with the law; it is to be guided by it. Max
Weber says it is “as if the ruled had made the content of the command the maxim of their
conduct for its very own sake” (Weber 1963, 946). Or, as Robert Paul Wolff somewhat more
perspicuously puts it: “Obedience is not a matter of doing what someone tells you to do. It is

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a matter of doing what he tells you to do because he tells you to do it” (Wolff 1970, 9). This is
not to say that one obeys only in treating the authority's say-so as an indefeasible reason for
action; but one must treat as a binding content-independent reason. The question whether
there is an obligation of obedience to law is a matter of whether we should act from the legal
point of view and obey the law as it claims to be obeyed (Raz 1979, 233–49).

It is an interesting feature of this account that it supposes that one can tell what the authority
requires independent of whether the requirement is justified on its merits. Richard Friedman
argues: “[I]f there is no way of telling whether an utterance is authoritative, except by
evaluating its contents to see whether it deserves to be accepted in its own right, then the
distinction between an authoritative utterance and advice or rational persuasion will have
collapsed” (Friedman 1973, 132). An idea of this sort is developed by Raz into one of the
leading arguments for the “sources thesis”, the idea that an adequate test for the existence
and content of law must be based only on social facts, and not on moral arguments. (See
the entry on legal positivism.) Authority's subjects “can benefit by its decisions only if they can
establish their existence and content in ways which do not depend on raising the very same
issues which the authority is there to settle” (Raz 1994, 219). If law aims to settle disputes
about moral issues, then law must be identifiable without resolving these same disputes. The
law is therefore exhausted by its sources (such as legislative enactments, judicial decisions,
and customs, together with local conventions of interpretation). This kind of argument has
been generalized (see Shapiro 1998), but also subjected to criticism. It is uncertain what sort
of constraint is posed by the idea that it should not involve “the very same issues”—perhaps
if morality is a necessary condition only there could be moral tests for authority that leave the
relevant dependent reasons untouched (Coleman 2001, 126–7). And while law does indeed
serve as a scheme for guiding and appraising behaviour, it may also have other functions,
such as educating its subjects about right and wrong, and this may be ill-served the attitude
that the rules are to be obeyed in part because they are the rules (Waluchow 1994).

The obligation-correlative view of authority is not universally accepted. Some argue that
legal authority involves no claim right, but only a set of liberties: to decide certain questions
for a society and to enforce their decisions. (Soper 2002, 85 ff; cf. Ladenson 1980;
Greenawalt 1987; 47–61; and Edmundson 1998, 7–70). The liberty conception must answer
two questions. First, is it not a feature of a right to decide that it requires subjects to refrain
from acting on competing decisions? If the law says that abortion is permissible and the
Church says that it is not, what does the denial of the Church's right to decide amount to if
not that public policy should be structured by the former decision and not the latter, even if
the latter is correct? Second, does the right to enforce include a duty of subjects to pay the
penalty when required? If it does, then this is only a truncated version of the obligation-
correlative theory—one that holds that punitive and remedial obligations, but not primary
obligations, are binding. If not, it is starkly at variance with the actual views of legal officials,
who do not think that subjects are at liberty to evade penalties if they can.

This reaches a methodological issue in the philosophy of law. Some consider that the
character of law's authority is a matter for descriptive analysis fixed by semantic and logical
constraints of official language and traditions of argument. Others maintain that such
analysis is impossible or indeterminate, and that we are therefore driven to normative
arguments about what legal authority should be (see Soper 2002; Finnis 1979, 12–15).
Crudely put, they think that we should understand law to claim only the sort of authority it

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would be justifiable for law to have. Such is the motivation for Friedrich Hayek's suggestion
that ‘The ideal type of law … provides merely additional information to be taken into account
in the decision of the actor’ (Hayek 1960, 150). Hayek favours the free market, and
concludes that the nature of legal authority should be understood analogically. The most
radical position of this sort is Ronald Dworkin's. He prefers what he calls a “more relaxed”
understanding of legal authority (Dworkin 1986: 429). Others have argued that the pre-
emptive notion of authority is unsatisfactory because it is too rigid (e.g., Perry 1989).
Dworkin's objection runs much deeper. His position is not that law communicates only a
weaker form of guidance; it is that law is not to be understood as trying to communicate
anything at all. A subject considering his legal duties is not listening to the law; he is
engaged in “a conversation with oneself,” and is “trying to discover his own intention in
maintaining and participating in that practice” (Dworkin 1986, 58). On this view there is no
fact of the matter about what law claims that is independent of what each does well to regard
it as claiming.

However we resolve the methodological question, there are two parallel normative
questions:

The problem of obligation: What if anything justifies the duty to obey the law, and how far
does that obedience properly extend?

The problem of legitimacy: What if anything justifies the coercive power of law, and how far
may that power properly extend?

What is the relationship between these? Some maintain that obligation comes first:
“[T]hough obligation is not a sufficient condition for coercion, it is close to a necessary one. A
state may have good grounds in some special circumstances for coercing those who have
no duty to obey. But no general policy of upholding the law with steel could be justified if the
law were not, in general, a source of genuine obligations” (Dworkin 1986, 191). The idea is
that merely having justice on one's side is an inadequate ground for coercing others; one
also needs a special title flowing from the moral status of the law. (Contrast, for example,
Locke's view that everyone has an “executive power of the law of nature,” at least outside
political society (§ 13).)

Others contend that this gets the relationship backwards. First, it is doubtful whether one
could have an obligation to obey an illegitimate regime. As Rawls says, “Acquiescence in, or
even consent to, clearly unjust institutions does not give rise to obligations” (Rawls 1971,
343; but cf. Simmons 1979, 78–79). If so, at least some conditions of legitimacy precede an
obligation of obedience. Second, there are substantive reasons for thinking we would not
have obligations to obey if the law were not already justified in upholding its requirements
“with steel.” A legal system that could not justifiably coerce could not assure the law-abiding
that the recalcitrant will not take them for suckers. Without being able to solve this assurance
problem it would be unjust to impose obligations on them, and unjust to demand their
obedience. Underlying this suggestion is that idea that familiar idea that effectiveness is a
necessary—but certainly not sufficient—condition for justified authority. (See Kelsen 1967,
46–50; cf. Finnis 1979, 250)

Obligations to the Law

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It may affirm our confidence in the obligation-correlative view to know that from earliest times
philosophical reflection on political authority has focussed on the obligation to obey. The
passive obligation of obedience is certainly not all we owe the law (Parekh 1993, 243; Green
2003, 543–47) but many have taken it to be law's minimum demand. This gives rise to a
puzzle. As Wolff puts it: “If the individual retains his autonomy by reserving to himself in each
instance the final decision whether to co-operate, he thereby denies the authority of the
state; if, on the other hand, he submits to the state and accepts is claim to authority then …
he loses his autonomy” (Wolff 1970, 9). Wolff resolves the dilemma in favour of autonomy,
and on that basis defends anarchism.

Some of Wolff's worries flow from the “surrender of judgment” itself—how can it ever be
rational to act against reason as one sees it? Others flow from the fact that it is a
surrender to the law. On the first point, it is relevant to notice that promises and contracts
also involve surrender of judgment and a kind of deference to others (see Soper 2002, 103–
39), yet a rational anarchist needs such voluntary commitments to substitute for authoritative
ordering. A principled objection to every surrender of judgment is thus self-defeating.
Moreover, there seem to be cases in which by surrendering judgment on some matters one
can secure more time and resources for reflection and decision on things that are more
important, or with respect to which one has greater capacity for self-direction. A partial
surrender of judgment may therefore enhance the agent's autonomy overall.

This suggests that Wolff's concern is better understood as skepticism about whether it is
justifiable to surrender one's judgment wholesale to the law. Some philosophers have
queried the intelligibility of this doubt; they say that it is of the nature of law that there is an
obligation to obey it, at least in its central case (Fuller 1958, 100; Finnis 1979, 14–15). Some
go so far as to conclude that it is therefore absurd to ask for any ground of the duty to obey
the law: law is that which is to be obeyed (McPherson 1967, 64). We need a way into this
circle, and the best entrance is in specifying the nature of law in a way compatible with
various theories of its nature. Three features are especially important (drawing on Hart 1994,
193–200; Raz 1990, 149–54; and Lyons 1984, 66–68.) First, law is institutionalized: nothing
is law that is not connected with the activities of institutions such as legislatures, courts,
administrators, police, etc. Second, legal systems have a wide scope. Law not limited to the
affairs of small face-to-face groups such as families or clans, nor does it only attend to a
restricted domain of life such as baseball. Law governs open-ended domains of large,
loosely structured groups of strangers and it regulates their most urgent interests: life, liberty,
property, kinship, etc. But although law necessarily deals with moral matters, it does not
necessarily do so well, and this is its third central feature: law is morally fallible. This is
acknowledged by both positivists and natural lawyers, whose slogan “an unjust law is not a
law” was never intended to assert the infallibility of law.

The question of political obligation, then, turns on whether there is are moral reasons to obey
the mandatory requirements of a wide-ranging, morally fallible, institutionalized authority.
This obligation purports to be comprehensive in that it covers all legal obligations and
everyone whose compliance the law requires. It is not assumed to bind come what may,
though it is to be one genuine obligation among others. Some philosophers also consider
that it should bind people particularly to their own states, i.e., the states of which they are
residents or citizens, and that an argument that could not show that one had more stringent
duties to obey one's own country than a similarly just foreign one would be in that measure

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deficient (Simmons 1979, 31–35; Green 1988, 227–28). Finally, it is common ground the
obligation exists only when a threshold condition of justice is met.

Sources of Obligation

Obligations arising out of the will of the parties are called voluntary, and those imposed by
operation of law are called involuntary. Sometimes these are called conventional and
obediential. The events giving rise to obligations may be further distinguished into specified
categories.

Voluntary

1. unilateral promise (pollicitatio) - undertaking by promisor only to perform, not requiring

the agreement of the beneficiary

Contract

A contract can be broadly defined as an agreement that is enforceable at law. Gaius classified
contracts into four categories which are: contracts consensu, verbal contracts, contracts re, and
contracts litteris. But this classification cannot cover all the contracts, such as pacts and
innominate contracts; thus, it is no longer used.

Quasi-contract

i. negotiorum gestio - duty to repay someone (gestor) who has managed the affairs or
property of another who was unable

ii. solutio indebiti - undue payment or delivery of a thing to another, who is then obligated
to return the thing

Quasi-contract is one of the four categories of obligation in Justinian's classification. The

main cases are negotiorum gestio (conducting of another person's affairs without their
authorisation), unjust enrichment, and solutio indebiti.

Quasi-delicts

The designation comprised a group of actions of no obvious similarity, classified by Justinian

as analogous to delictual obligations. It includes res suspensae, things poured or thrown,
shippers/innkeepers/stablekeepers, and erring judges.

Involuntary

1. delicts and quasi-delicts (equivalent to the common-law tort).

2. unjust enrichment (condictio indebiti)

Contracts
A contract can be broadly defined as an agreement that is enforceable at law. Gaius classified
contracts into four categories which are: contracts consensu, verbal contracts, contracts re, and

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contracts litteris. But this classification cannot cover all the contracts, such as pacts and
innominate contracts; thus, it is no longer used.

Quasi-contracts
Quasi-contract is one of the four categories of obligation in Justinian's classification. The
main cases are negotiorum gestio (conducting of another person's affairs without their
authorisation), unjust enrichment, and solutio indebiti.

Quasi-delicts
The designation comprised a group of actions of no obvious similarity, classified by Justinian
as analogous to delictual obligations. It includes res suspensae, things poured or thrown,
shippers/innkeepers/stablekeepers, and erring judges.

Subject matter

Obligations are classified according to the nature of the performance (prestation):

real obligations - undertakings to give or deliver property, possession, or enjoyment [4]

specific real obligation - delivery of a determinate thing when it is particularly designated or

physically separated from all others of the same class

generic real obligation - delivery of a generic thing

personal obligations - undertakings either to do or not do all kinds of work or service

positive personal obligation - performance

negative personal obligation - forbearance

Kinds of Obligation
01. as to Sanction

Civil or perfect obligation. It is an obligation whose sanction is law. Natural Obligation or

naturalis obligatio is one enforceable by law but nevertheless binding on the obligor by
dictate of his conscience and the basic postulates of natural law, justice and equity. Moral
Obligation is a duty imposed by ethical or religious belief.

02. as to Subject Matter

Real Obligation. The obligation to give Personal Obligation . The obligation to do or not to
do.

03. as to Number of Persons

Obliged - Unilateral Obligation. Is one where only one party is bound. Only one party
undertakes a performance. Bilateral Obligation . Is one where both parties are bound, as in
the contract of sale.

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04. As to Mode of Performance

Positive Obligation. Is an obligation to give and to do, the essence is affirmative

action Negative Obligation . Is an obligation not to give or not to do, the essence is inaction
or non-action.

05. As to Sequence of Performance

Primary Obligation. The principal object of the contract. Secondary Obligation . One
which is contracted and is to be performed in case the primary obligation cannot be
performed.

06. As to Object

Principal Obligation. One which arises from the principal object of the engagement of the
contracting parties. Accessory Obligation . One which depends upon or peripheral or
collateral to the principal

Kinds of Obligations Under the Civil Code

Pure and Conditional Obligation.

Obligation with a Period

Alternative Obligation

Joint and Solidary Obligation

Divisible and Indivisible Obligation

Obligation with a Penal Clause

Pure Obligation

Every obligation whose performance does not depend upon a future or uncertain event, or a
past event unknown to the parties, is demandable at once and is called a pure obligation.

Conditional Obligation

Conditional obligation is one the fulfillment of which is dependent upon the happening of an
event.THE CONDITION MAY BE;

1. Suspensive or Condition Precedent – wherein the happening of the condition gives rise
to the obligation. The obligation is not to take effect until the event happens, it is a suspensive
condition Resolutory Condition or Condition Subsequent – wherein the happening of the
condition extinguishes the obligation, obligation with resolutory condition take effect at once,
but terminate upon the happening of the event. Potestative – wherein the condition depends
upon the will of the debtor. (Invalid Condition, Art. 1182) Casual – wherein the condition
depends upon chance, or on the will of the third person Impossible Conditions – those

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contrary to good customs or public policy and those prohibited by law, shall annul the
obligation which depends upon them.

2. Obligations with a Period or Term Obligations for whose fulfillment a day certain has
been fixed is called an obligation with a period or term and is demandable only when that day
comes.In obligation with a period , the general rule is that it is presumed that the period has
been established for the benefit of both creditor and debtor

3. In the following instances, the court may fix the period. If the obligation does not fix a
period but from its nature and circumstances it can be inferred that a period was
intended When it depends on the will of the debtor When the debtor binds himself to pay
when his means will permit him to do so.

4. Alternative Obligation An alternative obligation is one where out of two or more

prestations which may be given or performed, only one is due and the complete performance
of one of them extinguishes the obligation. The Obligee or creditor cannot be compelled to
receive part of one and part of the other undertaking or prestation.

5. As a general rule, the right to choose the alternative belongs to the debtor. However, there
are four limitations to this right of choice of alternative by the debtor. When the right of
choice of the alternative is expressly granted to the creditor by mutual agreement of the
parties. The debtor has no right to choose those prestations which are impossible, unlawful or
which could not have been the object of the obligation. The choice cannot produce any legal
effect until it has been communicated to the other party. The debtor loses the right of choice
among the prestations whereby he is alternatively bound when only one alternative is left that
is practicable of performance

6. Facultative Obligation When only one prestation has been has been agreed upon, but the
obligor may render another in substitution, the obligation is facultative

7. Joint and Solidary Obligation A joint obligation may be defined as an obligation where
there is a concurrence of several creditors or several debtors, by virtue which each of the
creditors has a right to demand, while each of the debtors is bound to render the compliance
with his proportionate part of the prestation which constitute the object of obligation.

8. The Right of the Creditors in Solidary Obligation The right to demand entire payment
of the debt or the entire compliance with the prestation from any one of the debtors. If the
debt has not been fully collected from one debtor, the creditor has the right to demand
payment from the remaining debtors. The right to file an action for compliance with the
obligation against one, some all of the debtors simultaneously. The right to receive payment
or compliance with the entire prestation, from one, some or all of the debtors. The right to do
whatever may be useful to the other creditors. The right to assign his rights with the consent
of the other creditors. The right to make a novation, compensation, confusion or remission of
the debt.

9. Obligations of a Solidary Debtor To pay the entire debt or fulfill the entire prestation
when so demanded by creditors. Payment made by one of the solidary debtors extinguishes
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the obligation. If two or more solidary debtors offer to pay, the creditor may choose which
offer to accept. To pay his corresponding share in the debt in case one of the solidary debtors
made full payment of the obligation, with the interest for the payment already made. If
payment is made before the debt is due, no interest for the intervening period may be
demanded. To pay for the share of the insolvent co-debtor in proportion to the debt of each
when one of the solidary debtors cannot, because of his insolvency, reimburse his share to the
debtor paying the obligation. If the solidary debtor makes payment after the obligation has
prescribed or become illegal, he losses the right to reimbursement from his co debtors.

10. Divisible and Indivisible Obligation An obligation to give definite things and those
which are not susceptible of partial performance is deemed an indivisible obligation. When
the obligation gives rise for its object the execution of certain number of days work, the
accomplishment of work by metrical units, or analogous things which by their nature are
susceptible of partial performance, such obligation is called divisible obligation.

11. Obligation with a Penal Clause An obligation with a penalty is one where if the
obligation is not complied with, the penalty imposed shall substitute for damages and the
payment of interests, unless otherwise stipulated

12. A penalty imposed for the breach of contract shall be enforced if the agreement is
violated, whatever the obligee has suffered from damages or not, inasmuch as one of the
primary purposes in fixing a penalty is to avoid damage. Proof of actual damages suffered by
the creditor is not necessary in order to demand penalty.

13. As a general rule is that the penalty takes place of indemnity for damages and for the
payment of interest, except: when there is express agreement to the effect that damages or
interest may still be recovered, despite the presence of the penalty clause when the debtor
refuses to pay the penalty imposed in the obligation.

LIABILITY

What is Liability -

Liability is the result of a violation of the law. Law lays down is down the right and duties
on the individual. The law awards legal rights to one individual and imposes the duty upon
another person. A person should not infringe is the legal right of others. If anybody violates
the legal right of another, he is said to have committed a wrong. If there is a wrong there is a
liability.

Definition of Liability –

It is difficult to define the term 'liability' Some Eminent Jurists made attempt to define
the term 'liability'.

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Salmond -

According to Sir John Salmond, "liability or responsibility is the bond of necessity that
exists between the wrongdoer and the remedy of the wrong."

Markby -

According to Markby, the word 'liability' is used to describe the condition of a person who
has a duty to perform whether that duty is primary one or secondary or sanctioning one.

Austin -

Austin prefers to use the term 'imputability' to 'liability'. According to him, Those certain
forbearances, Commissions or acts, together with such of their consequences, as it was the
purpose of the duties to avert, are imputable to the persons who have forborne omitted or
acted.

Different Kinds / Types of Liability -

Different Kinds of Liability are as follows -

1) Civil liability -

Civil liability is the enforcement of the right of the plaintiff against the dependent in
civil proceedings. Civil liability gives rise to Civil Procedure whose purpose is to the
enforcement of certain rights claimed by the plaintiff against the defendant. Examples of civil
proceedings are an action for recovery of the Debt, Restoration of property, the specific
performance of a contract, recovery of damages, the issuing of an injunction against the
threatened injury etc.

2) Criminal Liability -

Criminal liability is the liability to be punished in a criminal proceeding. in criminal

liability, punishment is awarded to a wrongdoer. If the person is guilty of committing the
offense with criminal intension then he is liable for punishment. Criminal liability is based on
the Maxim "actus non facit reum nisi mens sit rea" it means the offender is guilty only
when it is done with the guilty mind.

3) Penal liability -

The theory of penal liability is concerned with the punishment of wrong. There
are different kinds of punishment, Deterrent, preventive, retributive, reformative etc. A penal
liability can arise either from a criminal or a civil wrong. There are three aspects of penal
liability those are the conditions, incidence, and measure of a liability. As regards the

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conditions of penal liability, it is expressed in the maxim "actus non facit reum nisi mens sit
rea" This means that the Act does not constitute guilt unless it is done with guilty intention.
Two things are required to be considered in this connection and those are the act and the
mens rea requires the consideration of imitation and negligence. The act is called the
material condition of penal liability and the mens rea is called the formal condition of penal
liability.

4) Remedial Liability -

Remedial liability is based on the Maxim "Ubi jus ibi remedium" it means when there
is right there must be some remedy. The force of law can be used to compel a person to do
what he ought to do under the law of the country. if an injury is caused by the violation of a
right, the same can be remedied by compelling the person bound to comply with it.The first
exception is an imperfect obligation or duty, Second exception unenforceable duties and the
third exception is the impossibility of performance by law.

5) Vicarious liability -

Vicarious liability means a liability which is incurred for or instead of another.

Generally, a person becomes liable for a tort committed by him. But there are certain
circumstances in which one person becomes liable for the tort committed by another. Such
liability is called vicarious liability. There are three exceptions to the general rule that man
must be forced to do by the force of law what he is bound to do by a rule of law.

Example-

Master and servant

Firm and partners

Employer and independent contractor

6) Absolute or strict liability

Both in Civil and criminal law, mens rea or guilty mind is considered necessary to
hold a person responsible/liable. However, there are some exceptions to the general rule. In
those cases, a person is held responsible irrespective of the existence of either wrongful intent
or negligence. Such cases are known as the wrongs of absolute liability/ strict liability.

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