Jurisprudence

Jurisprudence is derived from the Latin terms ‘Juris’ meaning legal and prudentia meaning
"knowledge". It is that science which deals with the "Knowledge of law".

It is defined as a study of the fundamental legal principles including their philosophical, historical
and sociological bases, and, an analysis of legal concepts.

Value of Jurisprudence:
Jurisprudence does not contain a sets of rules as in contracts or torts and also has no practical
application. However, it has its own values, unique and distinctive.

i) The subject has its own intrinsic interest.

ii) Its researches have influenced other subjects in the field of political, medical, and social
thinking.
iii) It is educative, as it sharpens the lawyers own techniques.
iv) Its method and explanations help resolve the complexities of law. Thus, theory helps law to
solve problems and,
v) Professional lawyers may get a glean into the sociology of law i.e., the realities of time, and,
make them look-forward with a orientation.

There are three main schools of jurisprudence:

Analytical
Historical
Ethical Schools
Analytical School
Also called English School. It aims at a systematic legal exposition of the various principles.
The approach, is dogmatic. The founder of this school is Austin. The school aims at analyzing
the contents of the various legal notions past or present.

Analytical school analysis

i) the concept of civil law.

ii) the relationship between systems of law
iii sovereignty, administration of justice, theory of legislation, precedents, customs
iv)concepts -of property, possession, ownership, contracts, trusts, obligations, etc.

Historical School
The founder of this school is Savigny. It is also called continental school. It aims at examining the
general or philosophical part of the legal theory. The approach is historical.

The purpose is to examine the historical evolution or the processes which ultimately lead to legal
system. It examines 'what it is, from what is was'. It deals with the origin and development of
those fundamental principles and conceptions so essential in the philosophy of law.
The influence of social conditions on legal conceptions is emphsised.

Ethical School
It emphasis the ethical or moral significance of various topics is its main concern.
Grotius is called the father of this school. Kant and Hegel followed him, and developed the ethical
concepts.

It deals with the general or philosophical part of the science of legislation. The purpose is to set
forth the law, not as it is or has been, but as it ought to be. It does not deal with the present but
deals with the ideals for the future.
 SOURCES OF LAW
The major sources of law are
Legislation,
Precedents
Custom.

Legislation: as a superior source

Salmond opines that 'Case law is gold in the mine, a few grains of the precious metal to the ton of
useless matter.

Importance
Efficiency:
The duty of the judiciary is to interpret the law and apply it

Prospective Operation
Statute declares the law before the commission of any act to which
it applies, thus it fulfills the principles of Natural Justice

Law of future
Legislation can make Acts to meet circumstances not yet arisen.
Precedent requires definite circumstances before the court.

Superiority in form
The legislature produces the law in the Statute form i.e. as Acts which are of standard form. Statute
law is*brief, clear and easily know-able and accessible.
 Precedents
For the purpose of jurisprudence the sources may be divided into 'legal and historical source's. The
legal sources are authoritative, have a right in the courts and have helped the course of legal
developments. E.g. The statutes, precedents writings of eminent jurists like Bentham, Austin
etc. The historical sources are not authoritative, cannot have claim as a right in the courts

A judicial precedent speaks in England with authority. It is not merely evidence of the law but a
source of it, and the courts are bound to follow the law that is so established.
Precedent means 'anything said or done furnishing a rule for subsequent conduct'. Judicial decisions
speak of truth and hence are followed in later cases

Precedents may be divided into two categories:

1. Authoritative and 2. Persuasive.

1. Authoritative precedent:
The decisions given by the superior courts are the authoritative precedents which must be followed.
Hence the decisions of the House of Lords are authoritative in England. Decisions of the Supreme
Court of India are binding on all the courts of India . Decision of High Court is binding on the lower
courts under its jurisdiction.

2. Persuasive precedent:
eg. foreign decisions (out of country) It may be accepted or may be refuse to follow it.

It may be rejected on the following grounds

1. Abrogation/Over-ruling of decisions.
2. Reversal of a precedent on a different ground.
3. A precedent given in ignorance of the relevant statue.
4. A precedent inconsistent with a decision of a High Court or Supreme Court.
5. Precedent sub silentia (not fully argued)
6. Erroneous decisions
 Custom

Custom embodies them, as acknowledged and approved not by the power of the state but by the
public opinion of the society at large'.

A custom may be legal or conventional. Legal Custom has the force of the law is conventional in
usage.

Requirements of valid custom

Immemorial Antiquit
Continuity
Enjoyment as of right
Certainty
Reasonability
Conformity with the general law/Statue law
Compatibility with other customs
 LEGAL RIGHTS

Legal Rights and Duties :

Rights are concerned with 'interests'. Rights are defined as interests protected by moral or legal
rules. But yet rights are different from interests. Interests are things which are to a man's advantage.
Eg. He has interest in his freedom or his reputation. If we say that a person has an interest in his
reputation, what we mean is, that he stands to advantage of good name in the society, But, if we say
that the person has a right to his reputation what we mean is, that others should not take this from
him.

Duties
A duty is an act which one ought to do. Not doing of, amounts to a 'wrong'. A duty may be moral or
legal.

Legal Rights : Characteristics

According to Salmond every legal right has the following basic characteristics:
1. It is vested in a person, that person may be called the owner of it, or the subject of it. i.e, the
person entitled. E.g. A buys a house from B. A is the owner of the house acquired.
2. It avails against a person. It is on that other person that a corresponding duty is imposed. That
person may be called the person bound, or as the person of incidence. E.g. A is the owner of the
house. All others are bound by duty not to interfere etc.

3. Right obliges the person bound, to an act or omission in favour of the person entitled. This is the
content of the right E.g. others not to interfere with the enjoyment of the house property,by A.
4. The act or omission relates to a thing. It is called as the object or subject matter of the right. E.g.
land, house, goods etc.
5. Every legal right has a title. This means certain facts or events by reason of which the right has
become vested in the owner E.g. The sale deed executed by vendor B, in favour of A (the vendee).
Title vests in A.
A buys goods from B. A becomes the subject or the owner of the goods so acquired. The person,
bound by the duty are the persons in general (against the world i.e., right in Rem).
Legal rights in a wider sense
In a wider sense the legal rights do not necessarily correspond with duties. Here a rule of law
confers a benefit or advantage over a person. There are four classes of rights.

1. Rights in a strict sense.

2. Liberties.
3. Powers.
4. Immunities.

Each of the above has corresponding :

1. Duties.
I2. No rights.

3. abilities.
4. Disabilities.

1. Rights and duties

Legal right in the 'strict sense' has all the 5 characteristics, and bears a corresponding legal duty.
Right to reputation, right to landed property, right to service under a contract etc. These form the
bulk of the rights in the legal world, there are corresponding duties on others.
2. Liberties and no rights
Legal liberty is a benefit which a person derives without legal duty on others. A is at liberty to
express his opinions on public affairs. But A has 'no liberty' to publish a defamatory matter. A may
defend himself against violence but he has 'no right' to take revenge upon B who has injured him.
3. Powers and liabilities:
The power to make a 'Will, or the power of appointment of an executor. The powers vested in the
judges to discharge their functions. These powers have no corresponding duties on others.
But, it may be noted that liability may be correlative of power. e.g.
i) An unfaithful spouse may be divorced, ii) Right or power to marry.
iii) Tenant under liability, as tenancy may be terminated by reentry of owner.
4. Immunities and disabilities
It is an exemption, i.e., non-subjection e.g. immunity from ordinary criminal courts given to
ambassadors. Therefore an immunity creates no disabilities. Disability is the absence of power. He
who has no title cannot pass a title. This is a disability of the transferor. A Minor is under a legal
disability to be a party to a contract.
Kinds of Legal Rights:
Perfect and Imperfect rights:
A perfect right is one which corresponds to a perfect duty (The duty is recoginsed by law and is
enforceable) Eg. Breach of contract. The right is protected and can be enforced by suing for
compensation or for specific performance.
Imperfect right is one which is recoginsed by law but is not enforceable. E.g. Time barred debts.
Such a right to recover exists but not through the courts.
It may be noted that an imperfect right is a good defense: e.g. When time barred debt is paid by
debtor, the creditor may defend his position.

Positive and Negative rights

A positive right corresponds to the positive duty under which the person should do some positive
act. A has a right not to be pushed into water, if pushed into water there is a negative duty on others
to pull A out of water.

Rights in Rem and right in personam

Right in rem is a real right available against the world at large. A has a right in rem to the peaceful
enjoyment of his property i.e., no-body should interfere.

Right in personam is a personal right available against a particular person or persons. If A leases out
his house his right to receive the rent, is the right against the tenant only. The right of C, a creditor
to receive the loan amount from the debtor B, is a right in personam.
Rights in Re-propria and rights in Re-aliena
Right in re-propria means right over one's own property; title, ownership etc. Right in re-aliena
means right of a person over the property of another. Eg. tenants rights encumbrance right etc.
A right in re-aliena is an encumbrance on the property imposing restrictions on the owner. Eg.
Mortgage or charlge. In respect of a right in re-aliena, there is an encumbrance, but the ownership
and other rights are vested in the owner. The right of a tenant or a mortgagee in possession of the
property etc. are rights in-aliena. However, the ownership remains with the owner who has the
rights in re-propria. Hence, all encumbrances, are rights in re-aliena: Leases, servitudes, securities
and trusts. In respect of bailor and bailee, the right of the bailee is right in re-aliena but the bailor
has rights in re-propria.
 LEGAL PERSONALITY
Personality
The personality of a human being means the possession of certain characteristics particularly
belonging to mankind. E.g.; Power of thought, of speech etc. Hence, there are certain attributes
which make a human being a person having the personality recgnised by law. If these attributes are
absent then that human being is not a person at all. E.g. Slaves are like chattels (things) and
therefore not persons at all.
Conversely, in law there are persons who are not men; e.g., a municipal corporation, A joint stock
company etc. are 'persons' though they are not human beings. Similarly an idol is a person.

Persons are of two kinds

1. Natural persons.
2. Legal persons.

A human being is a natural person. Legal persons are beings who are treated for purposes of law as
human beings. In olden days animals were also being treated as natural persons.

Dead Man
In so far as dead human beings are concerned, the principle is that personality commences on birth
and ceases to exist at death. Therefore dead men are not persons in the eye of law. but this does not
mean that law will ignore the desires and interest of the dead man. There are three spheres where a
man has anxieties after his death. These are the dead man's body, his reputation and his estate.
Hence law wants to protect such interests. In respect of the dead body the corpse is the property of
nobody. It cannot be disposed of by will; and, wrongful dealing with it will not amount to theft or
hurt. But criminal law, secures a dead man, a decent burial and the violation of the dead body or the
grave amounts to a criminal offence.

En vetre as mere
In respect of unborn persons law does not prevent a man from owning property before he is born.
Of course his ownership is contingent because he may not be born at all! Hence, a man may settle
property on his wife and unborn persons. Of course, restrictions have been imposed on such powers
so as not to arrest property for generations ( Transfer of Property Act , Refer Unborn person,
perpetuities etc). A child in the mother's womb is already born for purposes of law.
 THEORIES OF PUNISHMENT

There are many theories concerning the justification of the punishment.

As Salmond observes the ends of criminal justice are four in number:-

Deterrent,
Preventive,
Reformative and
Retribution.

Deterrent theory
The chief end of the law of crime is to make the evil-doer an example & a warning to all persons
who are like minded with him.According to this theory offences are the result of conflicts of
interests,between that of the wrong-doer and the society. Punishment makes the commission of an
offence .an ill bargain for the offender, and debars the potential offender from the commission of
crimes. Creation of "fear" in the mind of persons is the essence of this theory.

Preventive theory
The object of punishment is to prevent repetition of the crime by rendering the offender incapable
of again committing the offence. Preventive theory of punishment aims at physical restraint. Prison
became an institution because of this theory. In modern times, the disability aspect has been
emphasised by statutes conferring power to sentence habitual offenders to preventive terms of
imprisonment, penalties, forfeiture or suspension of driving license etc.

Retributive theory
This theory is based on "evil for evil". An offence creates an imbalance in the society, and
punishment or suffering is the medium through which the balance is restored. It is the theory of
private vengeance. Revenge is the right of the injured person it means that a man should be so dealt
with as he has done with (Salmond)

The basis of this theory is, that evil should be returned for evil. To suffer punishment is to pay a
debt due to the law that had been violated. The rule is "A head for a head, a tooth for a tooth and
a nail for a nail".

Reformative theory
The object of this theory is to reclaim the offender, to make him a useful member of the society by
bringing about a change in his character and to give a chance to him to lead a free life in Society.
According to this theory criminals are generally abnormal persons and the interest of the society is
subserved by leaving these persons to the normal law abiding individuals. The stress, here is shifted
from crime to the criminal. We must cure our criminals and not kill them. E.g. Educational
discipline of the criminal.
 PENAL LIABILITY
Liability
Liability or responsibility that comes into existence as a result of the wrongful act of an
individual. This is called Vinculum juris by which a man who is under it, must do certain things. A
man's liability consists in these things which he must suffer. It has its sources in the Supreme will
of the State.

According to Salmond, liability or responsibility is the bond of necessity that exists between the
wrong doer, and the remedy. "He who commits a wrong is said to be liable or responsible for it".
Liability may be divided either as civil or criminal or as remedial or penal. In the case of civil or
remedial liability, the object of the law is the enforcement of right, whereas in case of criminal or
penal liability the purpose is the punishment of the wrong-doer. All criminal liability is penal.
Civil liability on the other hand may be either penal or remedial.

Measure of Penal liability : Mens rea:

The basic principle of a liability is embodied in the legal maxim "Actus non facit reum nisi mens
sit rea". (The act alone does not amount to guilt, it must be accompanied by a guilty mind, "mens
rea").

Hence, there are two conditions to be fulfilled before penal liability can be imposed on a person. It
is not enough that a man has done some act. Before the law can justify punishment, an enquiry must
be made into the mental attitude of the doer. It is the combination of physical and mental elements
that constitutes penal liability. It is not enough to convict an accused charged of the offence of
murder to prove that he has killed another. It should further be proved that he did it intentionally,
wilfully and deliberately.
 STANDARD OF CARE
Negligence
Negligence is culpable carelessness. That means the absence of such care as it was the duty of the
defendant to use. It does not necessarily consist in thoughtlessness or inadvertence. A is guilty of
negligence, if he drives furiously into a crowd. A may know that he is exposing others to risk.
Negligence is failure to use sufficient care. . The degree depends on the risk to which others are
exposed. The risk depends on:

1. The magnitude of the threatened evil and

2. The probability of it.

The answer is mat the "Standard of care" of which nature is capable. 'A' is not liable for the harm
ignorantly done by him. This harm he could have avoided with fore-thought. A is liable if he
knowingly fails to take steps to stop the harm.

The facts which help to find out the standard required are:
1. The magnitude of the risk.
2. The dangerous form of the activity.

eg .. by driving the train at 50 miles per hour, a railway company may cause a fatal accident. But, if
the speed is 10 miles per hour perhaps no accident happens. But his saving is done by causing great
inconvenience. Hence, the company is not liable.
 MISCELLANEOUS
Jus Necessitatis
Necessity knows no law. (Necessitatis non habet legem). In the theory of wilful wrong doing,motive
of "necessity" operates as an excuse, in some circumstances and it is called Jus necesitatis.

i)In necessity there are choices and the person selects under compelling reasons, the one for the
other. Hence there is choice of values. In order to save life, one may damage the property of
another: one may pull down a thatchet in order to save the others from the spreading of fire.

ii) Further, necessity creates a motive in him and in fulfilling it, the person will not be afraid of
punishment. Two drowning persons A and B cling to a plank which is not in a position to support
more than one. A may be under a moral duty to sacrifice to save B. But if A pulls away and saves
his own life, he is protected under self preservation.

Similarly two shipwrecked sailors were forced to starve for several days and then to kill a boy and
eat him to save themselves. The act of killing may be murder, but it is done under extreme
necessity. Necessity is a legal defence. The sailors of course are guilty of murder. But, the court
reduced the punishment taking into consideration the circumstances of necessity. (R. Vs. Dudley)

Possessory remedies
Possessions is a good title of right against any one who cannot show a better title. If a wrong doer is
in possession, he is having a good title against all except the real owner. The real owner must
proceed according to law, to recover, the same. The intention of law is that every person in
possession is entitled, until he is deprived of itaccording to the decision of the court. Hence, for the
protection of the possessor, certain remedies are provided which are called 'possessory remedies'.