Ownership is a legal concept whereas

Physical relation of control Possession, is factual as well as legal concept.

exercised by a person over a thing. Possession can be in Fact (possession naturalis)
or in Law (possession civilis)

All the legal rights of a person of

Add details
whatever description.
Salmond "the continuing exercise of a claim, to
Savigny defines Possession as, "intention
the exclusive use of a thing constitutes the Bentham "defining possession in law is like
'Possession is nine-tenths of the law' possession of it" -most basic relation between a defining roundness in geometry,
coupled with physical power to exclude others
from the use of material object."
man and a thing.

Corporeal Property and Incorporeal Property,

Movable and Immovable Property, Property can be widely divided into
Real and Personal Property

two types of rights Right to possess (jus possidendi) Right to continue to possess (jus possessionis)

Section 22 of INDIAN PENAL

Section 2(6) of INDIAN REGISTRATION ACT -
Immovable property includes land, building, CODE- Movable Property -
Property
INDIAN TRANSFER OF PROPERTY ACT also hereditary allowance, rights of way, lights, Corporeal property of every P"session
excludes standing timber, growing crops and ferries, fisheries or any other benefit to arise
grass from the definition of immovable out of land and things attached to the earth or description, except land and things Ownership Hannah v. Peel (1945)
Legal Consequences of Possession
property. permanently fastened to anything attached to attached to the earth or The First rule of law is "If a person finds an
Possession is the prima facie evidence of title of
the earth but not standing timber, growing permanently fastened to anything object while employed by the property owner
Corpus possessionis - (Physical Element) Ownership. - Section 110 of Indian Evidence
crops or grass" he finds the object for the property owner and
which is attached to the earth. Elements required for Corpus possessionis:
not for himself, so long as the property owner
Kinds of Possession Act.
1. Actual Presence; Corporeal And Incorporeal Possession Modes of acquiring possession Adverse Possession
exercises control over the property" this was
Elements of Possession Animus possidendi - (Mental / Subjective) Il. Exclusion of all Alien interferences with
formed in the in the case of South Sta"ordshire
Mediate and Immediate Possession: Taking -(Res Nullus) Possession is chief mode of transferring
things possessed Possession in fact or de facto and Possession in Delivery Ownership.
Water Co. v. Sharman.
IlI. Reasonable and su!cient security of the law or de jure First possession of thing which as yet belongs
The Second rule of law "The finder of an object
exclusive use of it in the future. to no one is a good title of right (Res Nullus)
holds title to the object subject to no claims
Finder of lost chattel obtains possession of the
except that of the rightful owner" is found in
chattel.
Encumbrances Bridges v. Hawkesworth
Possession
Lease
Prescription
• Security
Agreement Modes of Acquisition of Property
• Trust
Inheritance
Servitude Kinds of ownership
Modes of acquisition of the ownership
Characteristics of Ownership • Corporeal /Incorporeal
Original Acquisition
Holland ownership is a plenary)control over an • It is indefinite in point of user, • Legal /Equitable
Austin Ownership is defined as 'a right 1. Absolute Acquisition -
object' and • It is unrestricted in point of disposition. • Absolute/ Limited
Ownership indefinite in point of user, unrestricted in point
An owner has three rights on the object owned. • It comes with the right to possess
2. Extinctive Acquisition of ownership - Art 65
• Vested/ Contingent
of disposition and unlimited in point of duration' 3. Accessory Acquisition - Accessio
i) Possession (ii) Enjoyment (iii)Disposition. • It can be exhausted, destroyed, alienated • Trust and Beneficial
Derivative Acquisition - inheritance or gift or
• It is residuary in character. • Sole / Co- ownership
purchase, etc.
• Joint ownership / ownership in common
 Law related to society

• A step away from a priori approach. Salmond said "Just like Analytical
• Didn't believe in the concept of Jurisprudence bears to the systematic
Divine Law. exposition of the legal system..
• Didn't believe that law is a universal Historical Jurisprudence deals with
Concept. the general principles governing the
• Didn't believe that law and morality
Historical school of origin and development of law, and
should be connected. jurisprudence with the influence that affect the law.

Montesquieu
Law is just like a language Savigny Georg Friedrich Sir Henry Maine
Puchta

First Jurist Spirit of Laws -work FOUNDER OF HISTORICAL SCHOOL Divided development of law into four stages
Law is result of conflict between General and
Individual Will

"Laws are the creation of climate, local situations, Law is the product of the general consciousness of Stage 1 -command of the ruler
accident or imposture" the people and a manifestation of the spirit.

STAGE 2. Command Crystallizes into customary law

country's national characteristics. VOLKGEIST THEORY (General Will of People)

STAGE 3. Knowledge and Administration of custom

Law grows with the growth of people, strengthens goes into hands of minority usually of religious
with the strength of people and dies away as the nature.
nation loses its nationality.

STAGE 4. Fourth stage is the stage of Codes.

uniform German code

Static societies
Criticism

Progressive societies
Was pessimistic about reforms.
Did not stick to his own principles
Did not acknowledge exceptions to his theory.

"The movement of progressive societies has hitherto

been a movement from status to contract"
 Rules of Interpretation of
Statutes or Canons of
Construction

Canons of Construction'. Literal Rule of Golden Rule of Mischief Rule of

Interpretation, or Interpretation Interpretation
Grammatical
Lord Wensleydale in 'Grey v. Pearson 'Rule in Hydon's case'.
(1857)':
Short v. Mc Carthy (1820) 3 B & Ald.626
Lord Coke in 1584
Lee v. Knapp (1967)
Dadi Jagannadham v. Jammulu Ramulu
(2001) 7 SCC 71 suppress the mischief and advance the,
Day v. Simpson remedy.

Dental Council of India v. Hari Prakash

(2001) 8 SCC 61
Smith v. Hughes (1960)
 Philosophical School

Law - based on Reason Immanuel kant Fichte Hegel Hugo grotius John Rawls

Some sort of higher principles J/F/N Law (instrument IW-GW Freedom is a mutual term Most prominent thinker Father-PS &INtLaw Veil of ignorance

Manner Moral actin should be based on obligation Act in such a way that maxim of your action could Individual-state mutual relations-3 principles Evolutionary dynamic process
made maxim of genereal Action

Justice Categorical imperative Dialectical method /process

An unconditional moral obligation which is binding

in all circumstances and it is not dependent on a
person’s inclination or purpose.

Deontological Ethics

Study of nature of duty and obligation

 Sources

Legislation as a source
of Law

Legislation Legislative Power of the kimds of legislation

Parliament and State
Legislatures
legis means Law latum means to Supreme Legislation Subordinate
make. Legislation
Doctrine of pith and substance

Two senses.
Autonomous Legislation Colonial Law Executive legislation Judicial legislation Municipal legislation
(Delegated Legislation)
Doctrine of Colourable Legislation

Salmond -legislation is Doctrine of

Repugnancy or
the declaration of legal Doctrine of Occupied or
rules by a competent Covered Field or
Doctrine of Severability.
authority. topic

Gray -legislation is the The laws enacted by

formal utterance of the the legislature of the
legislative organs of the state is known as
society. 'Enacted Law', "Statute"
'Act', 'Code', or 'written
law'.
 Custom as a source of Law

AUSTIN- Term sources of law is used in 3 1 SALMOND divided soures into KETONE -classified sources as FULLER- Oldest source
senses Binding - legislation, Precedents, custom materials from which judges obtain rules → Historical school advocated.
Persuasive - equity, juristic writings for deciding cases → SALMOND-"Custom is to society what law
is to State".
Material sources Formal
Authority from Historical Causes which gives rules of society forces of Law
which law emanates material from which the
Existence of Law is known
ESSENTIALS OF VALD CUSTOM. CUSTOM:Continuina course of conduct -by express approval of According to Salmond: According to Allen:Custom as the uniformity of habits or According to Austin:
Legal Historical
- Reasonable members of community -fixes the norm of conduct of Custom as those principles that are acknowledged and conduct of the people under like circumstances Custom is a rule of conduct which the governed observe
- Consistency members of society approved not by the power of the state, but by public opinion spontaneously and not in a pursuance of law set by a political
of the society at large. superior
- continuity.
- compulsory Observance.
- Certainty.
- Morality
- Public policy Importance of Custom
Binding force The Collector Of Madhur VS.Mottoo
Ramalinga Sathupathy. According to Holland:
"Court held that clear proof of usage will A generally observed course of conduct.
outweigh the written text of law."

Custom will be invalid if it's repugnant to

CONTINUITY reason and is likely to do more mischief
• In England the necessary limit to the legal than good if it's enforced.
memory is 1189 AD or before the year of • Allen - Custom will be admitted unless it's
assassination of king Richard I. (Simpson v. unreasonable.
Wells 1872) • Sir Edward Coke - A custom is said to be
• In India this rule doesn't apply. There is contrary to reason if it's opposed to
no definite year laid down, moreover it principles of justice equity and good KINDS OF CUSTOM
need not be beyond the human memory. conscience.

CERTAINITY
CONSISTENCY Non Obligatory. Obligatory
Guru Swamy Raja V. Perumal
• Custom to be valid must be in conformity - Court doesn't reignize them. - Binding + enforceable by court of law.
• The plaintiff claimed the customary right
with statutory law. - If not followed - court won't interfere eg- - Backed by sanction of
of easement for the shadow falling from the
• The custom cannot be in conflict with the Shaving of head State
branches of the tree hanging from the
statute or judicial decision. If there is a - Adoption → _Eg S7- Saptapadi
neighbours feild
conflict, then the statute will prevail and Datta
• It was held that there cannot be a custom
not the custom.
relating to shadows of tree because it is so
uncertain, ambiguous and transitory that it
cannot give rise to any customary right.
Legal. Conventional

Local General
 School of
jurisprudence
Natural School

Laws are immutable and eternal Development

Constant body of perm ant truths . Ancient period Medieval period Renaissance period Modern period

MORAL LAW ,LAW OF REASON,LAW OF GOD Socrates Plato Aristotle Zeno Cicero 10th-12th century Modern classical era 19th 20th century 20 Th Revival of Natural Law Not accept a priori approach

Based on A PRIORI PROPOSITION A POSTERIORI KNOWLEDGE Virtue Doctrines of forms Rejected theory of forms Stoicism Law-Highest reason, implanted in nature Theologians Social contract theory David Hume Bentham Austin Stammler John Rawls Jerome Hall

Knowledge that is acquired independently of any Empirical knowledge derived from experience Concept of good Transcended archetypes that exist independently Do not exist independently Stoa poikile St.Thomas aquinas No right and no duties on any one NL with a variable contentb Hbrid theory A theory of justice Integrative jurisprudence
particular experience of physical world

Socratic method-scientific method Every form is the form of something Stoics Law into for stages 3 main philosophers Theoretical legal science Technical leal science Hypothetical concept
Subtopic Idealism

Roman Empire- soticism Law of god Natural law Divine law Human laws Thomas Hobbes John locke Jean Jacque’s Roussau Principles of law Content of law Original position & veil of ignorance
Goodness virtue, honesty - eternal &immutable

Tribute to natural Law Revealed through reasons Law of scriptures Positive law Leviathan Individualism Preserves the rights of equality & freedom A priori knowledge A posterior knowledge Structure of society
Given to all men in equal measure

Three divisions of Law Law must conform to natural law Absolute authority of sovereign Right to property , liberty Community as a whole
Sense of justice

Jus civile Jus Naturalis Jus gentium Super stable & secure government Sovereign power should not be unlimited Theory of general will

Civil laws or citizens Principles of Natural law Rules applied to foreigners - magistrates -on the Not define general will
basis of NL
 Definition of jurisprudence

John Austin Thomas Erskine Holland John William Salmond Julius Stone Dias and Hughes Prof. John Chipman Gray:

English legal theorist. British jurist. He was a lawyer, Professor of law at the University South Jurisprudence is the lawyer's extraversion. Jurisprudence as 'ANY THOUGHT OR WRITING ABOUT LAW Jurisprudence is the science of law, the statement and
• Father of English Jurisprudence. Professor of International Law Australia, Judge of Supreme Court of New Zealand. other than a technical exposition of a branch of law itself. systematic arrangement of the rules followed by the courts
• The Province of Jurisprudence Determined- 1832. Elements of Jurisprudence Jurisprudence or The Theory of Law 1902 - work and the principles involved in these rules.

Allen: Jurisprudence is the scientific

Jurisprudence as science of law which deals with analysis of Formal science of positive law. Jurisprudence is the science of law.
synthesis of the essential principle of law.
the concepts or its underlying principles. - a formal science rather than a material science because it is Law- Civil Law- otherwise known as law of the state or land. It
not concerned with the actual material contents of Law but consists of rules applied by courts in the administration of
with its fundamental conceptions. justice. Paton: Jurisprudence is a particular method
of study, not of law of one country, but of
Jurisprudence as the philosophy of positive law. the general notion of law itself.
Roscoe Pound: Jurisprudence as the science
Criticism He uses the term jurisprudence in two sense - Generic and of law, using the term law in the juridical
Gray: Jurisprudence is no more a formal science than Specific sense, as denoting the body of principles
Jurisprudence is not a moral philosophy but it is a systematic physiology. recognised or enforced by public and
study of actual law as distinguished from moral or natural • Dr. Jenks: Jurisprudence cannot be said to be a pure formal regular tribunals in the administration of
science.
justice.
Criticism
He had failed to give an accurate definition.
divided the subject into two: General and Particular • Holland: Divisions are not right as Science should be treated
Jurisprudence as incapable of being divided into two branches.
• The study of Jurisprudence is not confined to the study of
law as administered by courts, it also takes note of the facts of
Keeton: Jurisprudence as the study and
social life of societies. systematic arrangement of the general
principles of law.
LAWS STRICTLY SO-CALLED, LAW AS IT IS
SYSTEMATIC STUDY OF ACTUAL LAW
NOT CONCERNED WITH GOODNESS/BADNESS OF LAW

Nature of jurisprudence
Salmond criticised- division

Holland criticised- particular jurisprudence Examine factual matrix of society

study of Inter-relationship b/w Law and

society.
sub -stratun of the superstructure provides
solutions toMulti-dimenimal Problem
 Analytical School of jurisprudence

What is law Bentham Austin H L A HART HANS KELSON

Subtopic Relation of Law with state Law originates from the state Limits of jurisprudence defined Father of analytical School Morality had an influence on Law Pure theory of Law

A step away from a priori approach State duty - maximum happiness and maximum liberty to Province of jurisprudence defined - work The minimum content of Natural Law Essence of law
provide

Law needs to be objective Law - rules What is wrong& what is good Man to men Law is an obligation Directions to the officials
Test every Law - see greatest happiness of the greatest
number of people

Positive school- positivism - positum - as it is Law is a rule laid down for the guidance of an intelligent being Disagree with Austin Legal norm - another norms
by an
Principle of utility Expository & censorial Authoritative & unauthoritative

Imperative school- law are command- type of urgent All are not orders Continuity of obedience is deficient Sovereignty is deficient Grundnorm - fundamental norm
commands Command theory
Recognises the role of pleasure &pain in human life On the basis of pleasure &pain -action approves or dis -
approves
Powers Nullity
Bentham ,HLA Hart,kelson,Austin All laws are command of the sovereign back up by sanctions
Pleasure- good Evil -pain
P&p quantification
Custom Laws are laws-Legal Rules 2 types
Custom is not law
Human ///// freedom
Utilitarian calculus -7 factor

Not consider what ought to be

Secondary Rules Primary Rules

Intensity Duration Certainty

Jurisprudence into 2 -particular and general

Nearness Fecundity Purity Rule of recognition Lays down duties

Positive law and positive morality

Extent Rule ofchange

Law strictly so called Law not so strictly so called

Rule of adjudication
Laissez faire - Let the men free

Sanction imposing rules

The ultimate purpose of Law is to bring

pleasure &avoid pain

The end of law is greatest happiness of greatest number

 Austin says that "A party has a right when another
or others are bound or obliged by the law to do or
forbear towards or in respect of him"
Perfect/Imperfect
• Holland defines right as "A Capacity residing in a
person to control the action of others" Positive/Negative

• Pollock defines right as "Freedom allowed and in remin personam

power conferred by law" Will Theory (Austin, Holland, Pollock)
re propria/re aliena
Buckland define right as "an interest or
expectation guaranteed by law" Principle/accessory

• Allen defines right as "a legally guaranteed power Proprietary/Personal

to realise an interest" Theories of Legal Rights Legal/Equitable
• Ihering says "Right is a legally protected Interest"
Vested/Contingent
• Salmond as "an interest recognised and protected Natural Rights, Moral Rights
by law"- human's interest or societies interest. Interest Theory (Buckland, Allen, Ihering, Salmond) Public/Private Legal Right (Statutory Right)
Constitutional, Fundamental, Human Rights
Primary/Secondary Civil, Economic and Political Right
Kant define right as "Authority to Types of Rights
compel"
Subtopic
• Laski, "Rights are those conditions of
social life without which no man can Salmond duty as "An obligatory act, that is to say,
seek in general, to be himself at his it is an act opposite of which would be a wrong.
The commission of a wrong is the breach of duty
best."
and the performance of duty is avoidance of
wrong".
• T. H. Green "Rights are powers Detinition of Duty
necessary for the fulfilment of man's • Austin disagrees with this notion; he divides

vocation as a moral being." Legal Rights (Claims duties into relative duties and absolute duties.
• Relative duties have a corresponding right

• Holmes right as "a permission to Duty • Absolute duties don't have a corresponding right
to it.
exercise certain natural power and
upon certain conditions to obtain
protection, restitution or compensation
Elements of Rights
with the aid of public force.
There are 5 elements in a legal right.
They are:
• Duguit rejects the idea of right he says
1. Person of Inherence
that man is a social animal and has
many social relationships, these
2. Person of Incidence
relationships are always duties and
never rights and that is why law
3. Content of the Right
contains only duties without any
corresponding rights and "the only right
4. Object of Right
a person has is to always do his duty"

5. Title of the Right

Main Topic
Right(Claim), Liberty
(Privilege), Power and
Immunity

Hohfeld's Diagram

Vertical arrows signify and

connect Jural Correlatives

Diagonal arrows signify and

connect legal contradictories

> Horizontal arrows signify

and connect the
contradictories
 Title

Precedent as a source Decisions Not Binding

on Subordinate Courts

A Precedent is a previous Doctrine of 'Stare Decisis' Deision has turo parts Classification of Precedents
decision of a superior court,
Decision per Decision sub
which contains a 'legal
incuriam silentio
principle'.
Latin term Ratio Obiter Authoritative precedent Persuasive Original Precedent Declarative
Decidendi Dictim Precedent Precedent

According to Jenk's Dictionary-

In Reg v. Button (1966 AC 591) Absolutely Authoritative Precedent Conditionally
"A judicial precedent is a decision by a
Reasons for deision $ general Statements or opinions Authoritative Precedent
competent court of justice upon a
Principle evolved in a case given by judges and
disputed point of law, becomes not
Binding e!ect doesn’t form part of the
merely a guide but an authority to be
Purpose- consistency, judgement
followed by all courts of inferior
uniformity,expedience
jurisdiction, administering the same
system, until it has been overruled by
superior Court of justice or by statute."
Swaraj sing lambs vs
UIO 1995

Position in England & in

Andia

Boys vs Chaplin

Pre constitutional 1950

1813- Mr. Dorin Post constitutional

1985 -Govt of India Act-sec 212 In Bengal Immunity Company V. State

of Bihar (AIR 1955 SC 661) the Supreme
Court held that the Supreme Court is
not bound by its earlier decisions and in
proper cases may overrule them. If the
Supreme Court is convinced of its error
and its beneficial e!ect, it may depart
from its earlier decision.
 Sociological school of
Analytical School jurisprudence
Law is
Command/Obligation shift from 'laissez-faire
Natural School law as a social state' to 'Welfare state'
Law is Morality phenomenon and
examines law in
relation to society.

Auguste Comte Léon Duguit Rudolph hering Eugen Ehrlich Roscoe Pound

Founder of Sociology Durkheim defined solidarity: Divided 'interest': Individual Law is derived from social facts divided interests
• Mechanical Solidarity (Solidarity by • Social• State into private, public
similitude) and social interests.
• Organic Solidarity (Solidarity by
'Sociology' was coined by a 'Emmanuel- division of labour) Society is made by 'Men in Association'
Jospeh Sieyes',
These interests are balanced with Social Engineering
'reward' and 'coercion',
Duguit -Social Solidarity. Formal law' and
Defined 'society' as an organism- can Living law'
progress -guided by scientific principles Inspired by Kohler.
- formulated by observation and
experience of facts-excluding all Right to always do his
metaphysical and similar duty'
considerations. Jural postulate
 Corporation aggregate
A distinct legal personality is
given to a group or collection of
persons who become united to
accomplish a task/purpose.

artificial or fictious person made

up of group or series of persons
Animal and natural persons as its
Do they Corporatio members.
Dead Man Kinds of Corporation
have legal ns
can own property and has rights
Personality corpus Corporation and duties.
Unborn Person
?
does not die
An Idol
Corporation sole distinct personality from its
Corporation sole(single) has a members.
Natural Persons single office occupied by a single
A human being: natural person. ex. Prime Fiction Theory
All the living beings which are Minister, Governor, CAG, Post (Savigny, Salmond, Coke,
recognised as person by state master basically holders of any Blackstone and Dicey)
public office. Concession Theory
Legal Persons
Legal persons are beings who are
Legal Personality Purpose theory
Kinds of (E.l Bekker, Aloys Brinz and
treated for purposes of law as Institutions, Funds/Estate, Theories of corporate personality
Persons Legal Demilius)
human beings Corporations
persons: Bracket Theory or Symbolist
• Do they have rights and duties? Theory (Ihering)
• Can they withhold Property? Realist Theory or Organic Theory
• Can it sue or be sued? Do they have legal Personality ? (Gierke, Maitland)
• Can Enter Contracts?

Salmond - "A person is any being

whom the law regards as capable
of rights and duties"
Person Personality
Indian Penal Code - Sec. 11 - The definition Latin term:
word person includes any Persona
company or association, or body
of persons, whether incorporated
or

Person
Anything
which is
permitted
by Law
 Law is not the body of rules, but it is what AMERICAN REALISTS
the judge decides John Chipman Gray (1839-1915)
• What the judge decides depends upon Oliver Wendell Holmes (1841-1935)
human factor in the judges and lawyers, the Jerome Frank (1889-1957)
forces which influence the judge in reaching Karl Llewellyn (1893-1962)
their decisions.
• Mix of Analytical positivist approach and SCANDINAVIAN REALISTS
sociological approach. Axel Hagelstorm (1868-1939)
Karl Olivercrona (1897-1980)
Alf Ross (1899-1979)
Relating to the world as it actually
operates.

'American Realists' and 'Scandinavian

Realists'

Realist school

John Chipman Gray Oliver Wendell Holmes Jerome Frank Karl Llewellyn Axel Hagelstorm Karl Olivercrona Alf Ross

All law is Judge made law. Prediction theory of law 'constructive legal sceptic'. Defined law as an institution, a very complex institution Father of Scandinavian Realism. Content of a rule of law is 'an idea of an imaginary action by a norm is a directive which stands in correspondence to social
judge in an imaginary situation' facts.

Centrality of the role of Judges Law is not defined until the judge decides the case Rule sceptics and Fact Sceptics. Law is little more than putty in the hands of a judge who is 'all Metaphysical concepts are sham concepts' they are
able to shape the outcome of a case based on personal biases 'mere word play' To give law a binding force there is a psychological pressure There are two sets of norms in society, one demanding citizens
to behave in a certain way and one prescribing the legal
machinery under what conditions coercive sanctions shall be
Subtopic The lawyer, The client, The defendant all are termed as a 'Bad the decision as based upon R x F (rules into facts) imposed.
Man' Rules are divided into:
Primary: Which prescribe conduct.
Secondary: Consequences of disobedience.
In his book 'Law and the Modern mind' he said:
"Certainty of law is a legal myth".
 Analytical School of jurisprudence

What is law Bentham Austin H L A HART HANS KELSON

Subtopic Relation of Law with state Law originates from the state Limits of jurisprudence defined Father of analytical School Morality had an influence on Law Pure theory of Law

A step away from a priori approach State duty - maximum happiness and maximum liberty to Province of jurisprudence defined - work The minimum content of Natural Law Essence of law
provide

Law needs to be objective Law - rules What is wrong& what is good Man to men Law is an obligation Directions to the officials
Test every Law - see greatest happiness of the greatest
number of people

Positive school- positivism - positum - as it is Law is a rule laid down for the guidance of an intelligent being Disagree with Austin Legal norm - another norms
by an
Principle of utility Expository & censorial Authoritative & unauthoritative

Imperative school- law are command- type of urgent All are not orders Continuity of obedience is deficient Sovereignty is deficient Grundnorm - fundamental norm
commands Command theory
Recognises the role of pleasure &pain in human life On the basis of pleasure &pain -action approves or dis -
approves
Powers Nullity
Bentham ,HLA Hart,kelson,Austin All laws are command of the sovereign back up by sanctions
Pleasure- good Evil -pain
P&p quantification
Custom Laws are laws-Legal Rules 2 types
Custom is not law
Human ///// freedom
Utilitarian calculus -7 factor

Not consider what ought to be

Secondary Rules Primary Rules

Intensity Duration Certainty

Jurisprudence into 2 -particular and general

Nearness Fecundity Purity Rule of recognition Lays down duties

Positive law and positive morality

Extent Rule ofchange

Law strictly so called Law not so strictly so called

Rule of adjudication
Laissez faire - Let the men free

Sanction imposing rules

The ultimate purpose of Law is to bring

pleasure &avoid pain

The end of law is greatest happiness of greatest number

 Definition of jurisprudence

John Austin Thomas Erskine Holland John William Salmond Julius Stone Dias and Hughes Prof. John Chipman Gray:

English legal theorist. British jurist. He was a lawyer, Professor of law at the University South Jurisprudence is the lawyer's extraversion. Jurisprudence as 'ANY THOUGHT OR WRITING ABOUT LAW Jurisprudence is the science of law, the statement and
• Father of English Jurisprudence. Professor of International Law Australia, Judge of Supreme Court of New Zealand. other than a technical exposition of a branch of law itself. systematic arrangement of the rules followed by the courts
• The Province of Jurisprudence Determined- 1832. Elements of Jurisprudence Jurisprudence or The Theory of Law 1902 - work and the principles involved in these rules.

Allen: Jurisprudence is the scientific

Jurisprudence as science of law which deals with analysis of Formal science of positive law. Jurisprudence is the science of law.
synthesis of the essential principle of law.
the concepts or its underlying principles. - a formal science rather than a material science because it is Law- Civil Law- otherwise known as law of the state or land. It
not concerned with the actual material contents of Law but consists of rules applied by courts in the administration of
with its fundamental conceptions. justice. Paton: Jurisprudence is a particular method
of study, not of law of one country, but of
Jurisprudence as the philosophy of positive law. the general notion of law itself.
Roscoe Pound: Jurisprudence as the science
Criticism He uses the term jurisprudence in two sense - Generic and of law, using the term law in the juridical
Gray: Jurisprudence is no more a formal science than Specific sense, as denoting the body of principles
Jurisprudence is not a moral philosophy but it is a systematic physiology. recognised or enforced by public and
study of actual law as distinguished from moral or natural • Dr. Jenks: Jurisprudence cannot be said to be a pure formal regular tribunals in the administration of
science.
justice.
Criticism
He had failed to give an accurate definition.
divided the subject into two: General and Particular • Holland: Divisions are not right as Science should be treated
Jurisprudence as incapable of being divided into two branches.
• The study of Jurisprudence is not confined to the study of
law as administered by courts, it also takes note of the facts of
Keeton: Jurisprudence as the study and
social life of societies. systematic arrangement of the general
principles of law.
LAWS STRICTLY SO-CALLED, LAW AS IT IS
SYSTEMATIC STUDY OF ACTUAL LAW
NOT CONCERNED WITH GOODNESS/BADNESS OF LAW

Nature of jurisprudence
Salmond criticised- division

Holland criticised- particular jurisprudence Examine factual matrix of society

study of Inter-relationship b/w Law and

society.
sub -stratun of the superstructure provides
solutions toMulti-dimenimal Problem
 Law is not the body of rules, but it is what AMERICAN REALISTS
the judge decides John Chipman Gray (1839-1915)
• What the judge decides depends upon Oliver Wendell Holmes (1841-1935)
human factor in the judges and lawyers, the Jerome Frank (1889-1957)
forces which influence the judge in reaching Karl Llewellyn (1893-1962)
their decisions.
• Mix of Analytical positivist approach and SCANDINAVIAN REALISTS
sociological approach. Axel Hagelstorm (1868-1939)
Karl Olivercrona (1897-1980)
Alf Ross (1899-1979)
Relating to the world as it actually
operates.

'American Realists' and 'Scandinavian

Realists'

Realist school

John Chipman Gray Oliver Wendell Holmes Jerome Frank Karl Llewellyn Axel Hagelstorm Karl Olivercrona Alf Ross

All law is Judge made law. Prediction theory of law 'constructive legal sceptic'. Defined law as an institution, a very complex institution Father of Scandinavian Realism. Content of a rule of law is 'an idea of an imaginary action by a norm is a directive which stands in correspondence to social
judge in an imaginary situation' facts.

Centrality of the role of Judges Law is not defined until the judge decides the case Rule sceptics and Fact Sceptics. Law is little more than putty in the hands of a judge who is 'all Metaphysical concepts are sham concepts' they are
able to shape the outcome of a case based on personal biases 'mere word play' To give law a binding force there is a psychological pressure There are two sets of norms in society, one demanding citizens
to behave in a certain way and one prescribing the legal
machinery under what conditions coercive sanctions shall be
Subtopic The lawyer, The client, The defendant all are termed as a 'Bad the decision as based upon R x F (rules into facts) imposed.
Man' Rules are divided into:
Primary: Which prescribe conduct.
Secondary: Consequences of disobedience.
In his book 'Law and the Modern mind' he said:
"Certainty of law is a legal myth".