1 Jurisprudence

Subjective Theory
The concept of jurisprudence helps in cultivating one’s own ideas in relation to a particular theory.
Jurisprudence covers the whole body of general legal principles in the world upon which the actual
rules of law are based. Jurisprudence deals with the fundamental principles on which rests the
superstructure of law. Justice PB Mukherjee observed, “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.”
The term ‘jurisprudence’ is derived from the
y Founder of ‘jurisprudence’: Jeremy Bentham. Latin term jurisprudentia. The term juris means
y Julius Stone considers jurisprudence as ‘law’ and the term prudentia means ‘skill or
lawyer’s extraversion. knowledge’. Hence, the term jurisprudentia
means ‘knowledge of law or skill of law’.
y John Austin defines jurisprudence as ‘the philosophy of positive law’, i.e., law as it is. He is also
known as father of English jurisprudence.

Austin’s Classification of Jurisprudence

General Jurisprudence Particular Jurisprudence
It is the philosophy of positive law. It is the science of any such system of positive law that
is actually obtained in a specifically determined nation or
is specifically determined.

y John Salmond defines jurisprudence as the ‘science of law’. By law, he meant law of land or civil law.

Salmond’s Classification of Jurisprudence

General Jurisprudence Specific Jurisprudence
This includes the entire body of legal doctrines. This deals with the particular department
or any portion of the doctrine.
(a) Analytical or systematic jurisprudence: it deals with
the contents of an actual legal system existing at
any time, past, present, or future.
(b) Legal history: it deals with the legal system in its
process of historical development.
(c) Science of legislation: it deals with the ideal future
of the legal system and the purpose which it may
serve.

y Robert Keeton considers jurisprudence as “the study and systematic arrangement of the general
principles of law”.
y Ulpian defines jurisprudence as “the knowledge of things divine and human, the science of just and
unjust”.

Jurisprudence 1
 Scope and Utility of Jurisprudence
y Jurisprudence is considered as the ‘eyes of law’.
y It is the grammar of law.
y A study of jurisprudence helps legislators by providing them precise and unambiguous terminology.
y Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the law, passed by
the legislatures, by providing the rules of interpretation.
y According to Dr MJ Sethna, the value of jurisprudence lies in examining the consequences of law and
its administration on social welfare and suggesting changes for the betterment of the superstructure
of laws.
y The object and purpose of jurisprudence is to study the fundamental legal principles and to know
what law is and how a legal system is functioning in a particular country.

Schools of Jurisprudence
Jurisprudence is the systemised or formulated knowledge of law. According to Salmond, jurisprudence,
in its specific sense, is the theory or philosophy of law divisible into different schools. The study of
jurisprudence has witnessed a variety of dimensions with the study of jurists with different points of
view, which has led to the emergence and evaluation of the different schools of jurisprudence.

Analytical Legal Positivism or Analytical School

The analytical school is called the— positive school because the exponents of this school are concerned
neither with the past nor the future of law but with law as it exists, i.e., with law “as it is and not as
it is ought to be” (postium).
The main task of the analytical school is the
y Father and chief exponent of the analytical
lucid and systematic exposition of legal ideas
school: John Austin.
pertinent to the ampler and mature system of
y Also known as the Austian School/English
law. The purpose of analytical jurisprudence is to
School.
analyse, without referring either to its historical
y The term ‘positivism’ was coined by Auguste
origin or development or its ethical significance
Comte, a French thinker.
or validity—the first principle of law. It places
y The term ‘analytical’ was coined by Sir Henry
emphasis on legislation as a source of law.
Maine.
This theory analyses the principles of law and
y The analytical school takes law as the command
reduces them to the fundamentals.
of sovereign.

Jeremy Bentham (1748–1832)

y Jeremy Bentham was the founder of the analytical school of jurisprudence and is also considered to
be one of its chief exponents.
y According to Bentham, a command is only one of the four aspects which the will of legislator may
bear to the acts which he is legislating.
y Bentham divided jurisprudence into expository and censorial. The former deals with the “law as it is”,
while the latter deals with the “law as it ought to be”. Bentham’s analysis of censorial jurisprudence
is indicative of the fact that the impact of natural law had not completely disappeared; that is why
he talked of utility as the governing rule.
y He believed that the law is the product of the state and sovereign.

2 Jurisprudence
y He supported the codification of laws and rejected natural laws.
y Bentham wrote a book titled The Limits of Jurisprudence Defined.
y He propounded the theory called ‘welfare state’ wherein he was against judges making the law. He
opined that the making of the law should not be in the hands of judges. The law should only be made
by the legislature, and the legislature should possess absolute power of making the law. The law
should be based on the theory of pain and pleasure. When the state makes laws, it must consider
the happiness of its citizens, i.e., the law should provide happiness to the citizens and alleviate
their pain. The goal of the law should be to encompass the four principles of equality, security,
subsistence, and abundance.
y Bentham also stated that individual interest is directly proportionate to societal interest, i.e., when
an individual’s interest is fulfiled, the societal interest is also fulfiled. Bentham’s legal philosophy is
called utilitarian individualism. He was a supporter of the laissez-faire principle. According to him,
the end of legislation is “the greatest happiness of the greatest number”.

James Austin (1790–1859)

y James Austin was the chief exponent of analytical jurisprudence. Austin is known as father of English
jurisprudence. He is known for his theory of sovereignty and legal positivism mentioned in his book
The Province of Jurisprudence Determined.
y According to Austin, “Law is the command of a sovereign backed by a sanction”. In other words,
the source of law is the will of the sovereign, and the sovereign is empowered to punish those who
violate the law.
y Charles Allen, in his book, Law in Making, called Austin an imperative theorist.
y According to Austin, positive law has four elements—command, sanction, duty, and sovereignty.
y Austin divided the law into two parts—positive law and positive morality. He called positive laws as
“laws properly so called”. He called positive morality as “laws improperly so called”.
Human Law

Improper Law (Positive Morality)

}
Proper Law (Properly So Called)
1. Divine law (law of God): law set by 1. Law of fashion
God for human beings. 2. Conduct
2. Human law: law made by humans 3. International law neither created by
for humans. sovereign not backed by sanctions

Human Law
1. Formal laws: command given by
political superiors to political
inferiors (positive law). They are
backed by sanctions.
2. Informal laws: laws set by man
to another, but not by political
superiors.

Jurisprudence 3
 HLA Hart (1907–1992)
y HLA Hart is known for his soft positivism. According to him, “where there is law, there human conduct
is made in some sense non-optional or obligatory”. Thus, the idea of obligation is at the core the rule.
y Hart commences his influential book The Concept of Law by criticising the Austin’s view of law as a
command.
y Hart is also known as a natural analyst.
y Hart basically emphasised that the union of primary and secondary rules results in law.

Legal System
Primary Rules Secondary Rules
Human beings are required to do or abstain from They provide that human beings may by doing or
certain actions whether they wish or not. saying certain things introduce new rules of the
primary types, extinguish or modify old rules,
or in various ways determine their incidence or
control their operations
They impose duties. They confer power- private or public.
Primary rules concern actions involving physical They provide for operations which lead not
movement or changes. merely to physical movement or changes but to
the creation or variation of duties or obligations.
Primary rules lay down standards of behaviour They are ancillary to and concern the primary
rules.

Hans Kelsen (1881–1973)

y Kelsen was the chief exponent of the Vienna school of jurisprudence.
y According to Kelsen, the theory of law should be uniform. It should be applicable to all times and in
all places. According to him, law must be free from ethics, politics, history, sociology, etc.; in other
words, it must be pure.

Salient Features of Kelsen’s Pure Theory of Law

y Reduce chaos and multiplicity to unity: the aim of the pure theory of law is to reduce chaos and
multiplicity to unity.
y Legal theory as a science of what law is, not what ought to be: pure theory of law deals with the
knowledge of what law is, and it is not concerned about what law ought to be.
y Law as normative science: the theory of law is considered a normative science and not a natural
science.
y Effectiveness of not out of scope: legal theory, as a theory of norms, is not concerned with the
effectiveness of legal norms.
y It is formal theory confined to a particular system of positive law as actually in operation.
y The relation of legal theory to a particular system of positive law is that of possible to actual law.
According to Kelsen, every norm takes its validity from its superior norm. Norms are basically a set of
rules that regulate human conduct and human behaviour in society. Grundnorm, as defined by Kelsen,
is used to denote the basic norm, order, or rule, which go on to form the basis for any and every
legal system. This can be regarded as the source of the validity of positive law of that legal system.

4 Jurisprudence
Every norm is a hierarchical system and derives its existence and validity from its superior norm. The
highest norm in the legal system is called basic norm or grundnorm. The basis norm does not derive its
existence or validity from any other source, therefore it is called supreme. It is to be noted that every
norm in this legal system is to be tested for its legality and validity from the basic norm, thus basic
norm could not be tested from any other external source. Hence, it can be concluded that grundnorm
is immune to any kind of scrutiny.

Historical School
y According to this school, “Law is a legacy of the past, a product of each and every individual
community or nation”.
y Historical jurisprudence examines the manner or growth of a legal system, and traces the growth of
law from origin with the view of finding out the origin of our legal concepts and the general course
of their evaluation.
y The historical school deals with the relation of law with the societal institutions in which law exhibits.
It concentrates on the primitive legal institutions of the society.

Main Doctrines of the Historical School

y Law is found. It cannot be made.
y Law like language grows, evolves, and has deep roots in the social, economic, and other such factors.
y It relies primarily on the common consciousness of the people, popularly known as Volksgeist.
y The historical school studies the past rather than the present evolution of law.

Friedrich Karl von Savigny (1779–1861)

y He was the founder of the historical school.
y He said that law develops like a language and has national character.
y He opposed codification and opined that custom is superior to legislation.
y He said that “law grows with the growth and strengthens with the strength of the people, and finally
dies away as the nation loses its nationality”.
y Law is henceforth more artificial and complex, since it has twofold life—as part of the aggregate
existence of the community and as a distinct branch of knowledge in the hands of jurists.
y Savigny rejected natural law. To him, legal system was a part of the culture of a people. Law was
not the result of any arbitrary act of a legislator but something that developed as a response to the
impersonal powers found in the people’s national spirit.
y Savigny opined that custom is the main source of law and it precedes legislation.
y He further stated that law is the product of Volksgeist, the national spirit or the genius of the people.
It is not of universal application as each people develop their own legal habits according to their
environment.

Georg Friedrich Puchta (1798–1856)

y Puchta was not only a disciple of Savigny but also a great jurist of the historical school.
y Puchta made valuable improvements in Savigny’s theory and made them more logical.
y Puchta initiated from the evolution of human beings and traced the development of law since that
period.

Jurisprudence 5
 y The contribution of Puchta lies in the fact that he gave twofold aspects of human will and origin of
state.
y According to him, the idea of law came about due to the conflict of interests between the general
will and the individual will.

Sir Henry Maine (1822–1888)

Sir Henry Maine was the founder of the English historical school of law. Savigny’s view of historical
school was carried forward in England by Sir Henry Maine.

Major Works by Sir Henry Maine

y The first work of Maine Ancient Law was published in 1861.
y He also wrote Village Communities (1871), Early History of Institutions (1875), and Dissertation of Early
Law and Custom (1883).

Static and Progressive Society

Static societies are societies that do not progress and develop their legal structure after the fourth
stage of development of law. Static societies do not progress beyond the era of codes.
Progressive societies are societies that go on progressing after the fourth stage of development of law.
They develop their laws with the help of these instruments:
y Legal fiction: legal fiction changes the law according to the needs of the society without making any
change in the letters of the law. Legal fiction harmonises the legal order but makes the law difficult
to understand.
y Equity: according to Maine, “Equity is a body of rules existing by the side of the original civil law and
founded on distinct principles”. Equity helps to remove rigidity and injustice.
y Legislation: legislation is the most effective and desirable method of legal change. Laws are enacted
and became operative officially.
Maine describes the development of law in four stages.
y First stage: rulers are believed to be acting under divine inspiration, and laws are made on commands
of the rulers. For example, Themistes of ancient Greek. The judgement of the king was considered to
be the judgement of God or some divine body. The king was merely an executor of the judgements
of God, not the lawmaker.
y Second stage: then the commands of the king are converted into customary law. The custom prevails
in the majority class. Customs seem to have succeeded to the right and authorities of the king.
y Third stage: due to the weakening of the lawmaking power of the original lawmakers like priests, the
knowledge and administration of customs goes into the hands of a minority class or ordinary class,
and the ruler is superseded by a minority that obtains control over the law.
y Fourth stage: in the fourth and last stage, the law is codified and promulgated.

Comparison of Historical and Analytical School

Historical School Analytical School
Custom is formal source of law. Custom is not law until its validity is established
by a judicial decision or act of the legislature.
The typical law is a custom. The typical law is a statute.

6 Jurisprudence
 Law is self-existent. Law is the deliberate product of legislation.
Law is antecedent to the state and exists even If there is no sovereign, there can be no law.
before the state comes into existence.
Law is independent of political authority and its The hallmark of law is its enforcement by the
enforcement. Law does not become law merely sovereign.
because of its enforcement by the sovereign.

Sociological School
The sociological school is also known as the functional school because of its functional approach
towards law. According to this school, law is an experimental social science, i.e., purposive and value-
oriented. The school is formulated on the theory that law is the outcome of the will of the society.
Sociology means the study of society of which law is but a part. Sociological jurisprudence depends
on social behaviour that which ‘is’, not which that which ‘ought to be’. The sociological approach to
jurisprudence, which resulted out of the change in the political shift from the doctrine of laissez-faire,
the industrial and technological revolution, and, finally, the historical school bringing into focus the
relationship between the law and the social welfare state of the modern century, have attempted to
study law as seeking social origin of law and legal institutions, testing law as given social phenomenon,
and, lastly, judging law by its social utility. Sociological jurisprudence has pointed law towards social
justice and has assumed that law must seek to attain certain ends.

Montesquieu (1689–1755)
Montesquieu was a French philosopher and he paved the way of the sociological school of jurisprudence.
He was of the view that the legal process is somehow influenced by the social condition of the society.
He also recognised the importance of history as a means for understanding the structure of the society
and explained the importance of studying the history of the society before formulating the law for that
society. In his book The Spirit of Laws, he wrote “law should be determined by the characteristics of a
nation so that they should be in relation to the climate of each country, to the quality of each soul, to
its situation and extent, to the principal occupations of the natives, whether husbandmen, huntsmen
or shepherd, they should have relation to the degree of liberty which the constitution will bear, to the
religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs”.

Eugen Ehrlich (1862–1922)

Ehrlich is considered as the founder of the sociology of law. Sociology of law is the study of law from
the sociological perspective. Ehrlich considered society as the main source of law, and by society, he
means “association of men”. Ehrlich had written that “Centre of gravity of all legal developments is not
in legislation or judicial decisions but in society itself”. He argued that society is the main source of law
and a better source of law than legislation or judicial decision.

Roscoe Pound (1870–1964)

Pound was an American legal scholar. His view is that law should be studied in its actual working and
not as it stands in the book.

Theory of Social Engineering

Roscoe Pound gave the theory of social engineering in which he compared lawyers with engineers.
Engineers are required to use their engineering skills to manufacture new products. Similarly, social

Jurisprudence 7
 engineers are required to build that type of structure in the society which provides maximum happiness
and minimum friction. According to Pound, “Law is social engineering which means a balance between
the competing interests in society”, in which applied science is used for resolving individual and social
problems. Social engineering is the balancing of the conflicting interests of the individual and the
state with the help of the law. Law is a body of knowledge with the help of which a large part of social
engineering is carried on. Law is used to solve the conflicting interest and problems in the society.
Pound mentioned that everybody has their own individual interest and consider it supreme over the
interests of others. The objective of the law is to create a balance between the interests of people.
For example, Article 19 of the Indian Constitution provides ‘Right to speech and expression’ but on the
other side, the State has put some restrictions on this right, and the law comes to play its part when
a conflict arises between an individual’s right and the State’s restrictions. The law solves the conflict
between the two interests.

Interest Theory
Roscoe Pound, in his interest theory, mentioned three kinds of interest. To avoid the overlapping of the
interests, he put boundaries and divided the kinds of interests.
y Individual Interest
These are claims or demands from the standpoint of the individual life. They consist of interest of
personality, interest in domestic relations, and interest of substance.
y Public Interest
These are the claims or desires asserted by the individual from the standpoint of political life, which
means every individual in a society has a responsibility towards each other and to make the use of
things which are open to public use. It is interest in the preservation of the state.
y Social Interest
These are the claims or demands in terms of social life, which means to fulfil the needs of the
society as a whole for its proper functioning and maintenance. It involves interest in the preservation
of general peace, health, security of transactions, and preserving social institutions like religion,
politics, and economic institutions.

Jural Postulates by Roscoe Pound

Roscoe Pound mentioned the five jural postulates and mentioned that the interests mentioned in
these jural postulates should be protected and nourished.
y Criminal: an interest of protection from any intentional aggression. For example, assault, wrongful
restraint, battery, etc.
y Law of patent: an interest of securing his own created property by his own labour and hard work. For
example, agricultural land, any music or artistic things.
y Contract: the interest in making the contract and getting of reasonable remedy or compensation
when an individual’s rights are violated.
y Torts: protection against defamation and unreasonable injury caused by the negligent act of another
person.
y Strict liability: it is the duty of the people to keep their things in their boundary and to look after
them to avoid injury to other people. Ryland versus Fletcher, [(1868) LR 3 HL 330], deals with the
protection of one’s interest if the injury caused by the things of another person.

8 Jurisprudence
Leon Duguit (1859–1928)
Leon Duguit was a French jurist and leading scholar of the Droit Public (Public Law). He was greatly
influenced by Auguste Comte and Emile Durkheim. Duguit gave the theory of social solidarity, which
explains the phenomenon of social cooperation between individuals for their needs and existence.

Social Solidarity
Social solidarity is the feeling of oneness. The term ‘social solidarity’ represents the strength,
cohesiveness, collective consciousness, and viability of the society. Leon Duguit’s social solidarity
explains the interdependence of men. No one can survive without depending on others; hence, social
interdependence and cooperation are very important for human existence. The objective of the law is
to promote social solidarity between individuals, and Leon Duguit considered law as bad law, which
does not promote social solidarity. Further, he also said that every man had the right and duty to
promote social solidarity. For example, in India, the codified laws are followed by everyone; hence, the
codified laws promote social solidarity.

Philosophical School
Natural law is the moral theory of jurisprudence and often states that laws should be on the basis of
ethics and morals. This law also states that law should focus on what is correct. In general, natural law
is a philosophy of law that focuses on the laws of nature.
The philosophical school concerns itself mainly with the connection of law to specific thoughts—what
a law intents to accomplish and to explore the reasons for which a particular law has been established.
The eminent law specialists consider the law as neither a discretionary order of a ruler nor a concern
in the making of a recorded need. To them, the law is the result of human reason and its motivation
is to hoist and praise human identity. The natural law hypothesis, propounded by Grotius, Locke, and
Rousseau, altered the current organisations and held that social contract was the premise of the
general public. Hobbes utilised the natural law hypothesis to propagate reactionary development and
legitimise business as usual for the safeguarding of harmony and insurance of people from never-
ending struggle and disarray. Thus, the views of scholars represent the philosophical thought of the
school itself.
Hugo Grotius (1583–1645), a Dutch national and a republican philosopher, is regarded as the father
of the philosophical school of jurisprudence. In his famous work The Law of War and Peace, Grotius
stated that natural law springs from the social nature of man and the natural law as well as the
positive morality, both are based on the nation of righteousness. Natural justice is justice indeed with
the truth. The rules of human conduct emerge from the right reason and they receive public support
of the coercive force of the state but the census of public disapprobation. Grotius also promoted the
concept of ‘just war’ as a war that was required by natural, national, and divine law under certain
circumstances. He developed a series of rules for the ‘right conduct’ of war, based on the principle
that actions in war should ‘serve the right’. Grotius also wrote De Jure Praedae, one chapter of which,
defending free access to the ocean for all nations, was reprinted and widely circulated under the title
Mare Liberum.
John Locke is among the most influential political philosophers of the modern period. In ‘Two Treatises
of Government’, he argued that people have rights, such as the right to life, liberty, and property that
have a foundation independent of the laws of any particular society. Locke claimed that men are
naturally free and equal as part of the justification for understanding legitimate political government
as the result of a social contract where people in the state of nature conditionally transfer some of

Jurisprudence 9
 their rights to the government in order to better ensure the stable, comfortable enjoyment of their
lives, liberty, and property. Locke also defends the principle of majority rule and the separation of
legislative and executive powers. He additionally protects the guidelines of the dominant party rule and
the division of administrative and official forces.
Rousseau believed that modern man’s enslavement to his own needs was responsible for all sorts of
societal ills, from exploitation and domination of others to poor self-esteem and depression. Rousseau
believed that good government must have the freedom of all its citizens as its most fundamental
objective. The Social Contract, in particular, is Rousseau’s attempt to imagine a form of government
that best affirms the individual freedom of all its citizens, with certain constraints inherent to a
complex, modern, civil society. Rousseau recognised that as long as property and laws exist, individuals
can never be as utterly free in present-day society as they are in the condition of nature, a point
later reverberated by Marx and numerous other communist and rebel social thinkers. Nonetheless,
Rousseau unequivocally had confidence in the presence of specific standards of government that
whenever authorised, can bear the cost of the individuals from society.

Realist School
Judgement of the law is affected by a lot of human emotions. This school is known as the realist
school because the law is considered as a reality while looking at this school. This school focuses on
the judgement of the authority judges and their mindset. This school is based on the perspective of
the lawyers and judges and the implementation of their thought process. This school is an experience
of justice for different humans, and it considers the perspectives of both parties in a case, as to what
is their opinion on justice. The realist school originated in America and Scandinavia in the 1880s. The
next important question was the role of judges in the important judgements and cases. The doctrine of
precedents was introduced in this school, and in this doctrine the judgements shall follow the hierarchy
of the courts. For instance, if the Supreme Court delivers a judgement with its own knowledge and
liberal ideas, the subordinate courts shall follow the judgements.

American Realism
The fathers of American realism are John Gray and Oliver Wendell Holmes. The other jurists of this
school were Jeremy Frank and Karl Llewellyn. Gray and Holmes focused on liberal ideology, and it
can be explained by the example of an Indian judge, Justice DY Chandrachud. Justice Chandrachud
has given landmark judgements on the Right to Privacy, Adultery, Section 377 or the NAAZ Foundation
case. According to jurists, any judgement is influenced by many factors and it is the responsibility of a
prudent and reasonable judgement of a liberal mindset to deliver the judgement in a way to instil the
idea of liberalism in our society and stay unbiased from any sort of communalism or prejudice.
The question put by Holmes was why people understand the law? They understand the law to discern
between right and wrong. He coined the term ‘Bad Men’. The Bad Men, according to him, think about
what the judges feel and what is going to be decided in the courts. The Bad Men do not care about
the other aspects, but about the decision in courts. Law, according to Holmes, is not just logic and
facts, but the experiences gathered to conclude a statement of the problem and deliver a prudent
judgement. It also includes the belief of judges and their mindset applied.
Jeremy Frank: in his book Law and the Modern Mind, Frank states that legal certainty is a myth and
there is no certainty of what would be the outcome of every wrong done, as it contains a lot of
variables and constraints and is left out for different interpretations. He contemplates what judges
and lawyers do and shall do. They apply legal facts and reach the judgement. However, what if the

10 Jurisprudence
facts are wrong and so shall be the judgement. There is absolutely no guarantee that judges would
understand the facts word by word and there will be a flawless judgement every time. It is always the
duty of lawyers and judges to follow the background of the law and the law is a constructive work in
the hands of lawyers and judges and they shall do it independently and without any imposition. During
the 1990s, liberalisation was at its peak and many policies changed and the law was a means for a
social end. Laws can be formulated according to the need of change in the society. They can work
parallel and there should be one common solution. The realist school helps not just in law but also in
understanding ideology and perspectives.

Rights and Duties

Right, in the ordinary sense of the term, means a number of things, but it is generally taken to mean
the standard of permitted action within a certain sphere. As a legal term, it means the standard of
permitted action by law. Such permitted action of a person is known as his legal right. A legal right must
be distinguished from a moral or natural right. A legal right is an interest recognised and protected by
a rule of legal justice, an interest the violation of which would be a legal wrong, done to him whose
interest it is and respect for which is a legal duty. Moral or natural right means an interest recognised
and protected by a rule of natural justice, an interest the violation of which would be a moral wrong
and respect for which is a moral duty.
John Austin: About the definition and analysis of legal rights, there is a great deal of difference of
opinion among jurists. According to Austin, right is a faculty which resides in a determinate party or
parties by virtue of a given law and which avails against a party or parties (or answers to a duty lying
on a party or parties) other than the party or parties in whom it resides. According to him, a person
can be said to have a right only when another or others are bound or obliged by law to do something
or forbear in regard to him. It means that a right has always a corresponding duty. This definition, as it
appears on is very face, is imperfect because in this definition there is no place for imperfect rights.
Thomas Erskine Holland: Holland defines a legal right as the capacity residing in one man of controlling,
with the assent and assistance of the State, the actions of others. It is clear that Holland follows the
work given by Austin.
Salmond: Salmond defines right from a different angle. Salmond defines a right as an “interest and
protected by a rule of right”. lawIt is an interest respect for which is a duty, and disregard of which is
a wrong.
The main elements in this definition are as follows.
y First, a rule of right means a rule of law, or, in other words, that which is judicially enforceable. Thus,
according to Salmond, a right must be judicially enforceable.
y Second, a right is an interest. The element of interest is essential to constitute a right. So far as
Salmond’s first element is concerned, it is a corollary to his definition of law.
The Hon’ble Supreme Court of India also interprets the definition of right in the case of State of
Rajasthan versus Union of India, [AIR 1977 SC 1361] as: In the strict sense, legal rights are correlatives
of legal duties and are defined as interests whom the law protects by imposing corresponding duties
on others. But in a generic sense, the word ‘right’ is used to mean immunity from the legal power
of another. Immunity is an exemption from the power of another in the same way as liberty is an
exemption from the right of another. Immunity, in short, is no subjection.

Jurisprudence 11
 Theories of Rights
y Will Theory
This theory states that the purpose of law is to grant the individual the means of self-expression
or self-assertion. Therefore, right emerges from human will. Holmes, in his definition of right, puts
the same view more clearly. He defines legal right as nothing but a permission to exercise certain
natural powers and, upon certain conditions, to obtain protection, restitution, or compensation by
the aid of public force. Hegel, Kant, Hume, and others say that by right is meant the power of self-
expression or will.
Criticism of the Will Theory: Duguit vehemently opposed the will theory. According to him, the basis
of law is the objective fact of social solidarity and not the subjective will. The idea of will is anti-
social. The will theory has been criticised on other grounds as well. Those who greatly lay emphasis
on the element of will confuse fact with abstract ideas, i.e., they do not make the distinction
between what is and what ought to be.
y Interest Theory
The founder of this theory was Rudolf von Jhering, a German jurist. He defines legal right as a legally
protected interest. According to him, the basis of right is interest and not will. His definition of law
is in terms of purpose. Law always has a purpose. In case of rights, the purpose of law is to protect
certain interests and not the wills or assertions of individuals.

Elements of a Legal Right

y The Person of Inherence
It is also known as the subject of right. A legal right is always vested in a person who may be
distinguished, as the owner of the right, the subject of it, or the person of inherence. Thus, there
cannot be a legal right without a subject or person who owns it. The subject means the person in
whom the right is vested or the holder of the right. There can be no right without a subject. A right
without a subject or person who owns it is inconceivable. The owner of the right, however, need
not be certain or determinate. A right that can be owned by the society, at large, is indeterminate.
y The Person of Incidence
A legal right operates against a person who is under the obligation to obey or respect that right. He
is the person of incidence. He is a person bound by the duty or subject of the duty.
y Contents of the Right
The act or omission is obligatory on the person bound in favour of the person entitled. This is called
the context or substance of right. It obliges a person to act or forbear in favour of the person who
is entitled to the right. It may also be known as the substance of the right.
y Subject Matter of Right
It is something to which the act or omission relates, i.e., the thing over which a right is exercised.
This may be called the object or subject matter of the right.
y Title of the Right
Salmond has given the fifth element as well, i.e., title. He says that “every legal right has a title, i.e.,
to say, certain facts or events by reason of which the right has become vested in its owner”.

12 Jurisprudence
Kinds of Rights

Positive Right Negative Right

It corresponds to positive duty. It corresponds to negative duty.

It involves a positive act. It involves some kind of forbearance or not

doing.

Right In Rem Right In Personam

It is the right available against the whole world. It is the right available against a specific
individual.

For example, trespassing, etc. For example, breach of contract, etc.

Primary Rights Secondary Rights

They are also known as antecedent rights. They are also known as adjective rights.

They are the bundles of those rights which are A violation or breach of the primary rights, on the
the privileges enjoyed by any person. other hand, gives rise to a sanctioning right or
remedial right.

Proprietary Rights Personal Rights

Proprietary rights are transferable and personal A personal right is uninheritable and dies with
rights are not. him.

If the breach of a right can be measured in terms If the breach of a right cannot be measured in
of money or it has money value than it is said terms of money or it has no money value than it
that the person has proprietary right. is said that the person has personal right

Vested Rights Contingent Rights

A vested right is a right in respect of which all A contingent right is one in respect of which only
events essential to vest the right in the owner some of the events necessary to vest the right
have happened. have happened and the vesting can be complete
only on the happening or non-happening of a
specified uncertain event.

A vested right is not dependent upon the A right becomes contingent only on the
fulfilment of any condition. fulfilment of any condition that may either be
subsequent or precedent.

Jurisprudence 13
 Wesley Newcome Hohfeld Analysis of Rights and Duties

Claim/right Jural contradictory Claim/right

Jural co-relates Jural opposites Jural co-relates

Jural contradictory
Duty No claim/no right

Power Jural contradictory Immunity

Jural co-relates Jural opposites Jural co-relates

Liability Jural contradictory Disability

Duty
A duty is an obligatory act. It is something to do or abstain from doing in favour of another person.
A man has a duty towards any matter that he is legally obligated to. The term ‘legal duty’ has been
defined in the following ways.
y Keaton: a duty is an act of forbearance which is enforced by the state in respect of a right vested in
another and breach of which is a wrong.
y Salmond: a duty is roughly speaking an act which one ought to do, an act the opposite of which
would be a wrong.

Classification of Duties

Positive Duty Negative Duty

Positive duty implies some act on the part of the Negative duty implies forbearance on the part of
person on whom it is imposed. the person on whom it is imposed.
For example, if a person owes money to another, For example, if a person owns lands, others are
the former is under a duty to pay the money to under a duty not to make any interference with
the latter. that person’s use of the land.

Primary Duty Secondary Duty

Primary duty is that duty which exists per se and Secondary duty is that duty whose purpose is
independent of any other duty. only to enforce some other duty.
The duty not to cause injury is the primary duty. When a breach of this duty has been committed,
the secondary duty to pay damages arises.

Personality
The main purpose of the law is to govern the relationship between individuals in the society. The law is
concerned with regulating human conduct; the concept of legal personality constitutes an important
subject matter of jurisprudence for there cannot be rights and duties without a person.
The personality of a human being means the possession of certain features particularly belonging to
mankind, e.g., power of thought, power of speech, etc. Hence, there are certain attributes which make

14 Jurisprudence
a human being a person having a personality recognised by law. If any human being has no attributes
provided by the law than he is not a person at all, e.g., slaves had no right, they were like chattel
(things), and therefore they were not considered as persons. But, in law, there are persons, like a
corporation, company, university, etc., who are not human beings.
Origin of the concept of legal personality (person): the word ‘person’ is derived from the Latin word
persona, which means a mask worn by actors while playing different roles in a drama. Until the sixth
century, the word ‘person’ was used to show the part played by a man in life. After this, it started to
be used in the sense of a living being capable of having rights and duties. Now it is used in different
senses in different disciplines. In modern times, the word has been used in the wider sense; it includes
not only human beings but also associations, gods, idols, corporations, etc. But there may be living
persons, who are not treated as persons in law because they are not capable of having rights and
duties such as slaves and in Hindu law, an ascetic, sanyasi, who has renounced the world.
Definition of ‘person’: there are many definitions of ‘person’, which have been given in different ways
by the various jurists. They are as follows.
According to Salmond, “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”.
Savigny defines ‘person’ as the subject or bearer of right.

Person

Natural person Legal/juristic person

Natural Person
A natural person is a person (in legal meaning one has its own legal personality) that is an individual
living human being. A natural person is a being to whom the law attributes personality in accordance
with reality and truth, and also who is regarded by law as having rights and duties. In order to be a
natural person in law, a human being must satisfy the two following conditions.
y He must be a living human being.
y He must be recognised by the state as a person and he must not be a slave in the absolute control
of his boss or master or otherwise civilly dead as a monk who has renounced the world.

Legal Person
Person denotes not only human being but anybody or anything which permitted to assert legal claims
or subjected to legal duties. From the legal aspect, the mask of personality does not necessarily have
to be worn by human beings. Legal persons are created artificially and law recognises them as a legal
person. They are persons only in the eye of the law, not in general. They are also created by legal fiction
and therefore are called fictitious as well. They are called by various names like fictitious, juristic,
artificial, moral, etc. For example, in law, idiots, dead men, corporations, companies, idols, etc., are
treated as legal persons.
y Personality Starts with Birth
When a child is born alive, he is considered to be a person in the eye of law. In Hindu law, a child in
womb is considered in existence and he inherits the property if he is born alive. If a partition takes
place among the co-parceners, a share is to be reserved for him. If the share is not reserved then

Jurisprudence 15
 the partition would reopen and the new born would take the same share which he would have taken
if he was born before the partition. If a pregnant woman is awarded death sentence, the execution
of the sentence shall be postponed till she has delivered the child. The killing of a child amounts
to murder only when the child is completely born alive. In England, it was held that a posthumous
child is entitled to compensation under Lord Campbell’s Act for the death of his father.
y Personality Ends with Death
Certain rights are protected after death. Rights are generally created at birth and they extinguish
at death. But the law, in certain matters, recognises and protects the desires and interests of the
deceased. There are three rights in this respect, i.e., about the deceased’s body, his reputation,
and his estate. The libel to the dead is not an offence in the eye of law, but if the publication of a
defamatory matter about the deceased brings scandal on his family and provokes them to commit
breach of peace, it is a misdemeanor in English law. It may amount to defamation to impute
anything to a deceased person, if the imputation would harm the reputation of that person if living
and is intended to be hurtful to the feelings of the family. The law respects the desires of the dead
person regarding his estate and his estate devolves according to his will if he has left any.

Animals
Animals are not persons in the eye of law and therefore, they are not subjects of legal rights and duties.

Status
Personality should be distinguished from status and capacity. ‘Status’ is a word which is given various
meanings. Salmond says that generally there are four meanings of the word.
y Legal condition of any kind, whether personal or proprietary
y Personal legal conditions, excluding proprietary relations
y Personal capacities and incapacities as opposed to other elements of personal status
y Compulsory as opposed to conventional legal position

Corporation
Corporate personality is a fiction of law. It is an artificial personality given to corporations whereby
certain rights and duties are attributed to them. The doctrine of corporate personality was approved
for the first time in a leading case, Soloman versus Soloman & Co. Ltd, [(1897) AC 22 (1895-99) All ER
33 (HL)]. A corporation has a personality of its own which is different from the personalities of the
individuals. A corporation can sue and be sued. A corporation can enter into contracts. A corporation
can have property and rights and duties. Unlike a natural person, a corporation can act only through
its agents. It does not die in the way natural persons. Law provides special procedure for the winding
down of a corporation.
A corporation or company is an artificial or fictitious person created by the personification of a group
or a series of individuals. The individuals forming the corpus of the corporation are called its members.
In simple words, it is an organised body of coexisting or successive persons, which by a legal fiction
is regarded and treated as itself a person. There are two types of corporations, corporation aggregate
and corporation sole. The municipal corporation or company incorporated and registered under the
Companies Act is an example of corporation aggregate, on the other hand, a sovereign is a corporation sole.
Essential conditions for the existence of a corporation are as follows.
y There must be a group or body of human beings associated for certain purposes.

16 Jurisprudence
y There must be organs through which the body or the group acts.
y A will is attributed to corporation by a legal fiction.

Corporation

Corporation aggregate Corporation sole

Corporation Aggregate
Corporation aggregate is an incorporated group or body of coexisting persons united for the purpose
of advancing certain points of interests. The number of corporations aggregate is very large and they
are of various kinds. Their importance is also very great in the field of law. Thus, we have a very large
number of limited companies having millions of shareholders spread in different parts of the world.
It is to be observed that a limited company is something different from its shareholders. It has a
personality of its own which is different from its shareholders. The property of the company is not
the property of the shareholders. The assets and liabilities of the company are different from those
of its members. A company can have contract with its shareholders. It is liable for tort. Even if the
number of shareholders is reduced to one, the shareholder and the company are two distinct persons.
Corporation aggregate maybe a trading corporation or a non-trading corporation.

Corporation Sole
Corporation sole is an incorporated series of successive persons. It is a corporation that has one
member at a time. It is a body of politic having a perpetual succession. It is constituted in a single
person who, in right of some office or function, has the capacity to take, purchase, hold, and demise
land and hereditaments. A corporation sole is perpetual but there may be and mostly are periods in
the duration of corporation sole, occurring irregularly, in which there is vacancy or no one in existence
in whom the corporation resides and is visibly represented.

Theories of Corporation
y Fiction Theory
Fiction theory was propounded by Savigny. According to Savigny “a personality is attached to
corporations, institutions and funds by a pure legal fiction”. The personality of a corporation is
different from the personality of its members; it means that there is a double fiction in the case
of corporation. Salmond and Holland are the supporters of this theory. According to Salmond,
corporation is nothing more than the outcome of metaphor and fiction. The main defect of this
theory is that it only exists in the eyes of law.
y Realist Theory
Realist Theory was propounded by the great German jurist Otto von Gierke. It was followed by Sir
Frederick Pollock, Geldart, Maitland, etc. According to Gierke, a corporation is a real but mysterious
entity, every group has a real mind, will, and power of action. According to this theory, every group
comes to have personality of its own whether that group is social or political one.
y Concession Theory
Salmond, Savigny, and Dicey were the main supporters of this theory. According to this theory, the
only realities are sovereign and individual. The other groups cannot claim recognition as persons.
They are treated as persons merely by a concession and the part of the sovereign. Legal personality
is conferred only by law. Corporate personality is nothing but a concession given to a group or body
of individuals by the law to act as one body.

Jurisprudence 17
 y Purpose Theory
According to this theory, personality is only enjoyed by human beings. German jurists Alois von Brinz
and Ernst Immanuel Bekker were the main supporters of this theory. Salmond criticised this theory;
according to him, it is not applicable to a corporation sole.
y Bracket Theory
Jhering is the chief exponent of the bracket theory. The bracket theory is also known as the symbolise
theory. According to this theory, the members of a corporation are the bearers of the rights and
duties that are given to the corporation for the sake of convenience. It is not always practicable or
convenient to refer to all the innumerable members of a corporation. A bracket is placed around
them to which a name is given; that bracket is the corporation. The weakness of this theory lies in
the fact that it is not able to indicate when the bracket may be removed and the mask lifted for the
purpose of taking note of the members constituting the corporation.

Ownership
Ownership refers to the relation that a person has with an object that he owns. It is an aggregate of all
the rights that he has with regards to the said object. These rights are in rem, i.e., they can be enforced
against the whole world and not just any specific person.
According to Austin, ownership refers to “a right indefinite in point of user, unrestricted in point of
disposition and unlimited in point of duration”. Concurring with Austin’s view, Holland defines ownership
as the right of absolute control over an object. According to him, “ownership is an aggregate of all rights
pertaining to the possession, enjoyment and disposition of an object”.

Characteristics of Ownership
y Right to possess: possession means physical control over a thing or an object. To constitute ownership,
the owner must be entitled to the possession of the property.
y Right to possess the thing, which he owns: this right is in a strict sense. He may not necessarily
have the possession for he may have been wrongfully deprived of it or may have voluntarily divested
himself of it.
y Right to use and enjoy: the owner of the property has a right to use and enjoy the property he owns
subject to certain restrictions or regulations by law or state. These are liberties. The right to manage
it for example, the right to decide how it shall be used, and the right to income from it. The owner
has liberties to use the thing, i.e., he is under no duty not to use it in contract with other who is
under duty not to use it or interfere with it.
y Right to consume, destroy (liberties), or alienate: it means right to dispose-off, gift, mortgage, lease,
etc. The right of owner over property is absolute, which includes the right of alienation. The rights to
consume and to destroy are straightforward liberties.
y Perpetual right or indeterminate duration: the owner of the property has the perpetual right or the
right for unlimited period over the property. Those who are not owners may be entitled to possess
or use the thing but the period for which they are so entitled is a limited duration. But in the case of
ownership, it is of an indeterminate duration. Thus, the interest of the bailee or lessee comes to an
end when the period of bailment or lease is over. But the owner’s interest is perpetual and does not
terminate even in owner’s death, because in that case the property will go to his legal heirs.
y Actual right: the right of owner over the property is heritable. It passes to the legal hairs after his
death.

18 Jurisprudence
Kinds of Ownership
y Corporeal and Incorporeal Ownership
Corporeal ownership is the ownership of a material object, and incorporeal ownership is the
ownership of a right. Corporeal ownership is described as ownership over tangible things. Corporeal
things are those that can be perceived and felt by the senses and which are tangible. Ownership
of a house, table, or machine is corporeal ownership. Incorporeal ownership includes ownership
over intellectual objects and encumbrances. Ownership of a copyright, patent, or trademark is
incorporeal ownership.
y Trust and Beneficial Ownership
Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by two
persons at the same time. The relation between the two owners is such that one of them is under
an obligation to use his ownership for the benefit of the other. The ownership is called beneficial
ownership. The ownership of a trustee is nominal and not real, but in the eye of law, the trustee
represents his beneficiary. In a trust, the relationship between the two owners is such that one of
them is under an obligation to use his ownership for the benefit of the other. The former is called
the trustee, and his ownership is trust ownership. The latter is called the beneficiary, and his
ownership is called beneficial ownership.
y Legal and Equitable Ownership
Legal ownership is that which has its origin in the rules of common law, and equitable ownership
is that which proceeds from the rules of equity. In many cases, equity recognises ownership where
law does not recognise ownership owing to some legal defect. Legal rights may be enforced in rem
but equitable rights are enforced in personam as equity acts in personam. One person may be the
legal owner and another person the equitable owner of the same thing or right at the same time.
The equitable ownership of a legal right is different from the ownership of an equitable right. The
ownership of an equitable mortgage is different from the equitable ownership of a legal mortgage.
There is no distinction between legal and equitable estates in India. Under the Indian Trusts Act,
a trustee is the legal owner of the trust property and the beneficiary has no direct interest in the
trust property itself. However, he has a right against the trustees to compel them to carry out the
provisions of the trust.
y Vested and Contingent Ownership
Ownership is either vested or contingent. It is vested ownership when the title of the owner is
already perfect. It is contingent ownership when the title of the owner is yet imperfect but is
capable of becoming perfect on the fulfilment of some condition. In the case of vested ownership,
ownership is absolute. In the case of contingent ownership, ownership is conditional. For instance, a
testator may leave property to his wife for her life and on her death to A, if he is then alive, but if A is
dead to B. Here, A and B are both owners of the property in question, but their ownership is merely
contingent. It must, however, be stated that contingent ownership of a thing is something more
than a simple chance or possibility of becoming an owner. It is more than a mere spes acquisitionis.
Contingent ownership is not just based on the mere possibility of future acquisition, it is also based
on the present existence of an inchoate or incomplete title.
y Sole Ownership and Co-ownership
Ordinarily, a right is owned by one person only at a time. However, duplicate ownership is as much
possible as sole ownership. When the ownership is vested in a single person, it is called sole

Jurisprudence 19
 ownership; when it is vested in two or more persons at the same time, it is called co-ownership, of
which co-ownership is a species. For example, the members of a partnership firm are co-owners
of the partnership property. Under the Indian law, a co-owner is entitled to three essential rights,
namely, right to possession, right to enjoy the property, and right to dispose.
y Co-ownership and Joint Ownership
According to Salmond, co-ownership may assume different forms. Its two chief kinds in English
law are distinguished as ownership in common and joint ownership. The most important difference
between these relates to the effect of death of one of the co-owners. If the ownership is common,
the right of a dead man descends to his successors like other inheritable rights, but on the death
of one of two joint owners, his ownership dies with him and the survivor becomes the sole owner
by virtue of this right of survivorship.
y Absolute and Limited Ownership
An absolute owner is the one in whom are vested all the rights over a thing to the exclusion of
all. When all the rights of ownership, i.e., possession, enjoyment, and disposal are vested in a
person without any restriction, the ownership is absolute. But when there are restrictions as to
user, duration, or disposal, the ownership will be called a limited ownership. For example, prior to
the enactment of the Hindu Succession Act, 1956, a woman had only a limited ownership over the
estate because she held the property only for her life and after her death; the property passed on
to the last heir or last holder of the property. Another example of limited ownership in English law
is life tenancy when an estate is held only for life.

Possession
Possession literary means physical control over a thing or object. It expresses the closest relation
of fact that can exist between a thing and the person who possess it. In law, possession means it
includes not only physical control over a thing but also an intention to exercise that physical control.
For example, A has an article in his hand. In other words, he is in possession of that article. The person
who is in possession is called a possessor.
Salmond: the possession of a material object is the continuing exercise of a claim to the exclusive use
of it. Thus, possession involves two things—claim of exclusive user and conscious or actual exercise of
this claim, i.e., physical control over it. The former is the mental element called animus possessionis,
and the latter is the physical element called corpus possidendi.

Kinds of Possession
y Corporeal Possession: It means possession of material things, movables as well as immovables. Its
enjoyment is not subject to interference by others.
y Incorporeal Possession: It means the possession of immaterial or intangible things, which cannot be
touched. For example, trademark, copyright, goodwill, etc.
y Mediate Possession: It means possessing a thing through another.
y Immediate Possession: It is also known as direct possession. In immediate possession, possession
takes place without any intervening agency.
y De Facto Possession: It exists where the thing is in the immediate occupancy of a party. The person
in de facto possession has the physical control of the thing to the exclusion of others and has
animus and corpus over the material object.

20 Jurisprudence
y De Jure Possession: De jure possession can be described as possession in law. It exists when a
person claims a thing as its own in a natural normal legal manner by occupying thing without any
dispute as to his legal right to possess and enjoy the thing.

Objective Type Questions

1. The Latin equivalent term of ‘jurisprudence’ 6. The maxim ‘utilitarian individualism’ means:
is: (A) greatest happiness of the greater
(A) jurisprudentia. number.
(B) jurisprudential. (B) greatest sorrow of the sorrow number.
(C) jurisprudentiliasm. (C) pleasure of individual.
(D) juris. (D) law should be judge.
Ans: (A) Ans: (A)
2. Theory of categorical imperative was 7. Who propounded the pure theory of law?
propounded by: (A) Salmond
(A) Stone. (B) Austin
(B) Allen. (C) Holland
(C) Austin. (D) Kelsen
(D) Kant. Ans: (D)
Ans: (D) 8. According to the totalitarian theory, the only
3. The term ultra vires means: real thing is:
(A) beyond the power. (A) sovereign.
(B) under the power. (B) state.
(C) more power. (C) society.
(D) less power. (D) socialism.
Ans: (A) Ans: (B)
4. Legislation is ______ but customary law is 9. ______ is the mere absence of capacity of
______. powers and can be called no power.
(A) scriptum; non scriptum (A) Disability
(B) jus non scriptum; jus scriptum (B) Liability
(C) jus scriptum; jus non scriptum (C) Power
(D) scriptum; less scriptum (D) Duty
Ans: (C) Ans: (A)
5. “The expression of one person or things 10. The ______ has a dominant right in re-
implies the exclusion of other persons aliena and the ______ has servient right in
or things of the same class which are not re-propria.
mentioned.” Its legal maxim has been (A) lessee; lessor
described as: (B) mortgagor; mortgagee
(A) ejusdem generis (C) seller; buyer
(B) contra bonos mores (D) possessor; possess
(C) right in personam Ans: (A)
(D) expression unius exclusion alterius 11. ______ is the prima facie evidence of
Ans: (D) ownership.

Jurisprudence 21
 (A) Lease (C) Animus
(B) Possession (D) De facto
(C) Title Ans: (A)
(D) Mortgage 14. Which rule of tort applies in theory of
Ans: (B) corporate personality?
12. Who was an exponent of natural law with a (A) Vicarious liability
variable content? (B) Nuisance
(A) John Rawls (C) Negligence
(B) Rudolf Stammler (D) False imprisonment
(C) Jerome Hall Ans: (A)
(D) John Finnis 15. The legal maxim actio personalies moritur
Ans: (B) cum persona means:
13. ______ means the first finder of things has (A) action dies with the death of a man.
a good title to that thing against all but the (B) action lives with the death of a man.
true owner. (C) action speaks itself.
(A) Res nullis (D) action lies more than words.
(B) Corpus Ans: (A)

Previous Years’ Questions

16. “Ownership is a plenary control over an (D) None of the above
object.” This definition has been given by: Ans: (B)
[UPJSCJ (Jr Division), 2016] 19. Analytical, historical and ethical jurisprudence
(A) Austin. are three different parts of jurisprudence
(B) Holland. according to:
(C) Pound. [UP PCS (J), 2003]
(D) Kelsen. (A) Salmond.
Ans: (B) (B) Ihering.

17. The book of Theory of Legislation was written (C) Hart.

by: (D) Kant.
[UPJSCJ (Jr Division), 2016] Ans: (A)
(A) HLA Hart. 20. According to Austin, the science of
(B) W Friedmann. jurisprudence is concerned with:
(C) Jeremy Bentham. [UP PCS (J), 2008]
(D) Julius Stone. (A) morality.
Ans: (B) (B) positive law.
(C) divine law.
18. Austin’s book The Province of Jurisprudence
(D) natural law.
Determined is:
Ans: (B)
[UP PCS (J), 2015]
(A) his autobiography. 21. “Legal order is a pyramid of norms” is the
(B) the lectures delivered at London statement of:
University. [UP PCS (J), 2015]
(C) an answer to an essay by Gray on (A) Austin.
parliamentary government. (B) Kelsen.

22 Jurisprudence
 (C) Salmond. Codes
(D) Fuller. A B C D
Ans: (B) (A) I IV II I
22. Hart’s analysis of law distinguishes between: (B) IV III I II
[UP PCS (J), 2001] (C) I II III IV
(A) cause and effect. (D) II I IV III
(B) theory and fact. Ans: (B)
(C) being obliged and having an obligation. 27. Match List I with List II and select the correct
(D) corporeal and incorporeal rights. answer by using the code given below the
Ans: (C) lists.
23. Who among the following is the propounder [UP PCS (J), 2008]
of the theory of Volksgeist? List I List II
[UP PCS (J), 2001] A. Utilitarian individualism I. Duguit
(A) Hegal B. Social engineering II. Ihering
(B) Kant C. Social solidarity III. Bentham
(C) Maine D. Social utilitarian IV. Pound
(D) Savigny Codes
Ans: (D) A B C D
24. Who is called the Darwin of the historical (A) I II III IV
school? (B) II III IV I
[UP PCS (J), 2008] (C) III IV I II
(A) Maine (D) III II IV I
(B) Hugo Ans: (C)
(C) Burke 28. Assertion (A): It is easy to identify sociological
(D) Savigny school with pound.
Ans: (D) Reason (R): Sociological School neither
25. Who made a distinction between the use of begins nor ends with pound.
the term ‘jurisprudence’ in the generic and [UP PCS, 2010]
specific sense? Codes
[UP PCS (J), 2010] (A) Both A and R are true, and R is the
(A) Holland correct explanation of A.
(B) Austin (B) Both A and R are true, and R is not the
(C) Salmond correct explanation of A.
(D) Allen (C) A is true, but R is false.
Ans: (C) (D) A is false, but R is true.
Ans: (B)
26. Match List I with List II and select the correct
answer by using the code given below the 29. “Nature has placed man under the empire of
lists. pleasure and pain.” It has been said by:
[UP PCS (J), 2007] [UP PCS (J), 2006]
(A) Bentham.
List I List II
(B) Austin.
A. Historical school I. Acquinas
(C) Pound.
B. Sociological school II. Bentham
(D) Hobbes.
C. Natural school III. Comte
Ans: (A)
D. Analytical school IV. Puchta

Jurisprudence 23
 30. According to Salmond, legal sources of law: 33. ‘Bracket theory’ is related to which
[UP PCS (J), 2001] concept?
I. are recognised as such by the law itself. [UP PCS, 2010]
II. lack formal recognition by the law. (A) Possession
III. operate mediately. (B) Legal personality
IV. are only gates through which new (C) Ownership
principles can find entrance into law. (D) Liability
Of the above statements: Ans: (B)
(A) I and III are correct. 34. Match List I with List II and select the correct
(B) I and IV are correct. answer by using the code given below the
(C) I, III, and IV are correct. lists.
(D) Only I is correct. [UP PCS (J), 2010]
Ans: (B) List I List II
31. The conclusion reached by the judge on the A. Bracket theory I. Doctrine of precedent
basis of material facts and on the exclusion of B. Will theory II. Possession
the immaterial facts in previous judgements C. Corpus animus III. Legal person
is: D. Obiter dictum IV. Legal right
[UP ADA, 2006] Codes
(A) obiter sicta. A B C D
(B) ratio decidendi. (A) IV II I III
(C) erroneous decision. (B) II I III IV
(D) precedent sub-silento. (C) I II III IV
Ans: (B) (D) III IV II I
32. Point out the correct answer. Ans: (D)
Essential element of ‘possession’ is: 35. The theory of lifting the veil of corporate
[UP PCS, 2000] personality was evolved in:
(A) corpus possessionis only. [UP PCS (J), 2015]
(B) animus domini only. (A) Merry versus Green.
(C) corpus possessionis and animus domini (B) Solomon versus Solomon.
both. (C) In re-cohen.
(D) neither corpus possessionis nor animus (D) Ancona versus Rosers.
domini. Ans: (B)
Ans: (C)

Practice Questions
1. Explain the concepts of ‘general 3. Stating the importance of ‘custom as a source
jurisprudence’ and ‘particular jurisprudence’. of law’, point out the essential ingredients of
[Jharkhand Judicial Services Examination, a valid custom. [Jharkhand Judicial Services
2014] Examination, 2014]
2. ‘A’s’ gold ring is dropped in a canal. ‘B’ 4. Explain the concepts of ‘possession’ and
finds the ring. ‘A’ claims the ring. Decide. ‘ownership’. Distinguish between them.
[Jharkhand Judicial Services Examination, [Jharkhand Judicial Services Examination,
2014] 2014]

24 Jurisprudence
 Solved Question
Q. Explain the concepts of ‘possession’ and ‘ownership’. Distinguish between them.
Ans. Ownership: Legal and Equitable Ownership
Ownership denotes the relation between a person and an object forming the subject matter of his
ownership. “It consists of a complex of rights, all of which are rights in rem, being good against the
world and not merely against specific persons”, said Salmond.
According to Salmond,
y firstly, the owner will have a right to possess the thing which he owns. He may not necessarily have
possession.
y Secondly, the owner normally has the right to use and enjoy the thing owned, the right to manage it,
i.e., the right to decide how it shall be used, and the right to the income from it.
y Thirdly, the owner has the right to consume, destroy, or alienate the thing.
y Fourthly, ownership has the characteristic of being indeterminate in duration. The position of an
owner differs from that of a non-owner in possession in that the latter’s interest is subject to be
determined at some future time.
y Fifthly, ownership has a residuary character.
Salmond noted the distinction between legal and equitable ownership. Legal ownership is that which
has its origin in the rules of the common law, while equitable ownership is that which proceeds from
rules of equity different from the common law. The courts of common law in England refused to
recognise equitable ownership and denied the equitable owner as an owner at all.
Ownership was defined as collection of rights to use and enjoy property, including right to transmit
it to others. Therefore, ownership is de jure, i.e., state of affairs that is in accordance with the law,
recognition of a claim to certain property.

Possession
y Possession of a right is the de facto relation of continuing exercise and enjoyment as opposed to the
de jure relation of ownership.
y Possession is the de facto exercise of a claim to certain property. It is the external form in which
claims normally manifest themselves.
y Possession is, in fact, what ownership is, in right enforceable at law to or over the thing. A man’s
property is that which is his own to do what he likes with it. Those things are a man’s property which
is the object of ownership on his part.
y Ownership chiefly imports the right of exclusive possession and enjoyment of the thing owned.
The owner in possession of the thing has the right to exclude all others from the possession and
enjoyment of it. If he is wrongfully deprived of what he owns, the owner has a right to recover
possession of it from the person who wrongfully gets into possession of it. The right to maintain or
recover possession of a thing as against all others is an essential part of ownership.
y Ownership implies not so much the physical relation between the person and the thing as the
relation between the person owning and the thing owned. Ownership is pre-eminently a right. The
right to ownership of a property carries with it the right to its enjoyment, the right to its access, and
of other beneficial enjoyment incidental thereto.

Jurisprudence 25