Model Answer Paper

JURISPRUDENCE
(LEGAL THEORY)

UNIT-I

Q.No.1Explain the nature and scope of Jurisprudence.

Marks:15

The study of Jurisprudence started with Romans. The

Latin equivalent of Jurisprudence is Jurisprudentia
which means either (Knowledge of law or Skill in law).

1. It studies the Meaning of the term rights and various

kinds of rights which are theory possible under a legal
system.

2. It is not generally used in other languages in the English

sense.

3. In French, it refers to something like case law it an

analysis of the formal structure of law and its concepts.
(Examination / studies)
Limits / Boundaries

4. It is confined only to law touching every aspect of law and

study of fundamental legal principles. Juris means law
(legal) and prudentia means skill or knowledge.

5. It includes the philosophical, historical and sociological

basis and an analysis of legal concepts.
6. In France, it is called ____ philosophia du droit, (that is
the philosophy of Rights).

7. In Germany, it is called Rechtsphilosophie (that is the

philosophy of Rights), that is of law in the abstract sense.

8. An India (NidhiShostra) that is knowledge of law.

Definition.

ACC to
ULPIAN : Defines, Jurisprudence is the knowledge of
things divine and human, the science of the just and
unjust.

PAULUS :Defines, It is the law and the law is not to be

deduced from the rule but the rule from the law.

AUSTIN : It is a positive law. Every law is command,

obtains its force from its sovereign. The positive law which
is termed by him as laws strictly so called. It is study
of law as it is and not what it, ought to be.

He says, law is the command of sovereign and not of

divine.

Acc to him, there is no distinction between good law

and bad law. He divided it into 2 kinds
1. General Jurisprudence
2. Particular Jurisprudence.

Branches of Jurisprudence

It can be divided into 3 branches:

 1. Historical Jurisprudence
Deals with general principles governing the origin and
development of law, with influences that affect the law,
with the origin and development of those legal conceptions
and principles which are so essential in their nature as to
deserve a place in the philosophy of law.

2. Analytical Jurisprudence
Analyses the first principles of law as they exist in a legal
system.

3. Ethical or philosophical Jurisprudence.

Deals with the first principles of ethical significance and
adequacy of law.

The nature And Value of Jurisprudence

Irrespective of the serious and severe criticisms on the

utility of the subjects Jurisprudence, it has its own
merits, valuer, benefits in the legal field.

WurzusOpines : Jurisprudence is classed as social

sciences first of kind ever born.

1. Reflection of Rules:-
The Jurisprudence comparises philosophy of law and is a
second order subject which object is not to discover new
rules, but to reflect on the rules already known. It is just
like a philosopher in law. The Philosopher does not
discover any new law. He is concerned with the Scientific
law already discovered.

2. Analysis:- It is analyses of legal concepts several times the

legal rules overlap with another. Eg The legal rules of
 penal code overlap with torts, contract, family laws, civil
etc.,.
Then it analyse them, separate them and show a right path
to the lawyers, jurists, administrators, legislators etc.,.

3. Salmond gives an eg : He writs : Jurisprudence studies

the meaning of the terms for eg Right in the abstract and
seeks to distinguish the various kinds of Rights which are
the theory possible under a legal system.

Similarly it investigates such other legal concepts as act,

intention, Negligence, ownership, possession etc.

All of those are equally rigorously studied in the ordinary

branches of law, but since each of them functions in
several different branches of law, Jurisprudence tries to
build up a general and more comprehensive picture of each
concept as a whole.

4. Clarification : It clarifies the legal position correctly, pin-

point, whenever there arises a situation of confusion,
ambiguous, uncertain in language of the law.

5. Connection with other Disciplines:

Laws treats the legal position only. But Jurisprudence
concerns with all other disciplines such as sociology,
economic, political, philosophy, physiology, psychology,
history etc., it is the only subject Jurisprudence which
can link law with other disciplines and give a wider social
context and aspect.

6. Intrinsic Interests :-It has Intrinsic Interest in its own

subject. The Jurisprudence analyses, investigations,
enquires into the law. It goes to the depth of the society
and law. It reaches the roots of the elements of law. It is
the only person to evolve a new theory of law can approach
for the remedy of evils. Therefore, researches into
 Jurisprudence may well have re-echos on the whole of
legal, political and social thought.

7. Rational :-Sawer in his Law in Society explains the value

of benefit of Jurisprudence.
He says It is to construct and elucidate organizing
concept serving to render the complexities of law more
Manageable and more rational and in this way theory can
help to improve practice.

8. In Practice:- Practically by studying Jurisprudence a

lawyer can develop his professional skills. He can sharpen
his own professional and logical techniques.

9. SalmondVarites :- Jurisprudence can teach lawyer to look,

if not forwards, at least side ways and around him and to
realize that the answers to new legal problems must be
found by consideration of present social needs rather them
in the distilled wisdom of the past.

SCOPE OF JURISPRUDENCE

1. It has widened considerably over the years.

2. It includes all concepts of human order and human
conduct.
3. Anything which concerns order in the state and society will
be within the domain of Jurisprudence.
4. Acc to Redcliffe. It is a part of history, a part of economics
and sociology, a part of ethics and a philosophy of life.
5. Acc to Mukherjee, Jurisprudence is both an intellectual
and idealistic abstraction as well as behaviour study of
man in society.
6. It includes political, economic and cultural ideas. It covers
the study of man in relation to state and society.
7. Karl Llewellyn Observes: Jurisprudence is as big as law
and bigger.
 Utility of Jurisprudence

Jurisprudence is not without practical value. It is the eye

of law and its main uses are follows:-

1. A study of those fundamental principles which are

common to all systems of law is of great advantage in the
study of a particular system of law.

2. The Aim of Jurisprudence is to develop those fundamental

principles, the knowledge of which is essential for the
practical work of the registrar and the advocate and which
are adopted by the Society to adjust the relations between
man and man.

3. A study of Jurisprudence is of immense value to the closely

allied sciences of legislation.

4. Jurisprudence also has great educational value. The

logical analysis of legal concepts widens the (outlook) of
lawyers and sharpens their logical technique.

5. It can also help to improve practice. It is to construct and

elucidate concepts serving to sender the complexities of law
more manageable and more rational.

6. It can teach the people to look, if not forward, at least side

ways and around them and realize that answers to new
legal problems must be found by a consideration of the
present social needs and not in the wisdom of the part.

7. It said to be The eye of law. It is the grammar of law.

8. It can find out the Actual rules of law, by understanding

the Nature of law, its concepts and distinctions.
9. It also helps in knowing the language, grammar, the basis
of treatment and assumptions upon which subjects rests.

10. It can help to tackle new and difficult problems which he

can handle through his knowledge of Jurisprudence which
trains his mind into legal channels of thought in his
practical work.

11. It relieves again and again in each Act certain expressions

such as right, duty, possession, ownership, liability,
negligence etc.,.

12. It enlightens students and helps them in adjusting

themselves in society without causing injuries to the
interests of other citizens.

13. It helps the judges and the lawyers in ascertaining the true
meanings of the laws passed by the legislatures by
providing the rules of interpretation.

14. It exams the consequences of laws its administration on

social welfare and suggesting changes for the betterment of
the superstructure of laws.

15. It confined to the study of positive law and also include

normative study.

16. It is social engineering regarding ___ which improve its

quality at every stage.

17. It came to recognize the social and rational nature of man.

Law was adopted to human nature.
Q.No.2 Historical school of Jurisprudence.
Marks:5

Historical School of Jurisprudence

The Historical School was founded by ran savigny.

This School enquire into the past to discover the
genesis of law and find out the history of its development.

It deals with the general principles governing the origin

and development of law as also the origin and development
of legal conceptions and principles found in the philosophy
of law.

Acc to them law is the produce internal silently

operating force i.e., popular faith, custom and the common
consciousness of the people.

Law grows with the growth and strengthens with the

strength of the people and finally dies away as a nation,
looses its Nationality.

The Historical approach to law arose as a reaction

against natural law theories Historical approach derived its
in inspiration from the study of Roman law in the
condiment.

1. Law is found and not made. It is self existent.

2. Law is antecedent to the state and it exited even before

states came into existence.

3. Law is independent of political authority and enforcement.

4. Law rests on Social pressure.

5. In construing a statute judges should consider the history
of legislation in question.

6. The typical law is custom.

7. Emphasis is on comparative method.

8. Leaders :Savigny and Puchta.

9. Law is the spirit of people (Valksgiest) i.e., custom is the

concept of this school.

10. The Jurisprudents of this school strongly opine that

custom is superior than legislation.

11. The Analysis of the first principle is that law is the result of
historical reasons and circumstances and the spirit of the
people.

12. There is a offshoot of this school, known as

Anthropological Approach.

13. It deals with all branches of law.

14. It enquires into part and finds the elements of legal

liability.

15. Acc to this school law is found. The Jurisprudents give

the preference to Ought fascinating new interpretations.

16. This approach depends upon present and part.

17. Acc to this school, custom is the formal source of law. It is

transcendent law and other methods of legal evolution like
legislation and precedent, derive their authority from
custom.
18. In Historical School, law rests on the social pressure
behind the rules of conduct which it enjoins.

19. Acc to Historical School, in constructing a statute Judges

should consider the history of legislation in question.

20. It proceeds to examine the manner, circumstances and

factors responsible for the growth of law and takes account
of the social forces operating in the process of the evolution
of law.

UNIT-II

Q.No.3What is meant by Administration of Justice?

Whatis its necessity and distinguish civil and
criminal justice.

Marks:15

Justice and its kinds (Civil and Criminal)

Administration of Justice

Theories of punishment and secondary functions of

the Court.

The 2 most essential functions of a state are

1. War
2. Administration of Justice.

It a state is incapable of performing these functions

cannot be rightly called a state.
 It implies the maintenance of peace and order within a
political community by means of physical force of the state.

Administration of justice and command will help

obedience of law. They include social sanction, public
opinion, custom, convenience etc.,

Acc to Salmond, law is the body of principles

recognized or applied by the State in the administration of
justice.

Acc to pound, law is the body of principles recognized

or enforced by public and regular courts in the
administration of justice.

Meaning:-

Salmond the Administration of justice is the maintenance

of right within a political community by means of the
physical force of the state. It is the application by the
State of the sanction of force to the rule of right.

Acc Black Stone :- Justice is a reservoir from where the

concept of right, duty and equity evolves.

Justice is expressed in terms of Justice according to law

Dicey called as Rule of law. No one is above law.

Importance (necessity) of Administration of Justice.

It is true that unlimited and unrestrained liberty leads

to a state of anarchy, therefore some kind of external
 coercive authority is needed to keep man within his limits
and restrain his unfettered liberty.

Herbeart Spencer, every man is true to do what he

desires provided he infringers not with the equal freedom of
any other man.

Hobbes believed that a common power was necessary

to keep people within controle in the community.

Force is necessary to prevent the recalcitrant minority

from gaining unfair advantage over law abiding people in
general. Therefore, state force is inevitable for protection
of rights of individuals in society.

Origin of the Administration of Justice :-

It has evolved 3 stages.

1. When Society was primitive and Private Vengeance and

Self-help were the Only remedies available to the wronged
person against the wrongdoer he could get his wrongs
redressed with the help of his friends and relatives.

2. It rise of political states took place, but they were hardly

powerful to regulate crime and to inflict punishment on the
criminal.

The law of private vengeance and self help continued.

Eg.In the days of the Saxons.
Vegeance was not totally absent but it was merely regulated
and restricted.

3. The state began to act as a Judge to assess liability and to

impose penalty.
There was a transformation from private justice to public
justice through the agency of state with the growth of the
 states power, private vengeance and violent self help were
substituted by the administration of civil and criminal
justice.

Advantages of Administration of Justice.

i) Administration of justice brings uniformity.

ii) As the law is know to the citizens, it enables them to
regulate their conduct in accordance with it.
iii) As the rules are fixed, it helps judges in applying the law
uniformly.
iv) As justice is done according to the principles of law, it
ensures impartiality and equality.
v) The rules of law represents the collective wisdom of the
community, therefore, in following them there are little
chances of going wrong.
vi) The administration of justice brings uniformity and
consistency in the law sit causes a systematic development
of law.

Disadvantages.

i) It makes law rigid. When same rules are applied to all the
cases of similar nature, sometimes it may causes hardship
and injustice.
ii) Law, tends to become conservative because it does not keep
pace with the changed conditions.
iii) Law becomes more formal.
iv) Law becomes very complex.

Kinds of Justice : 2 kinds.

1. Natural Justice (Normal Justice).
2. Legal Justice.

* Moral Justice is implanted in the human mind by the

divine power.
* Legal Justice is the body of the Principles framed and
recognized by the state.

Legal Justice is divided 2 kinds.

1. Civil Justice.
2. Criminal Justice.

* Criminal Wrongs are Public wrongs.

Civil wrongs are Private wrongs.
* The former are an infringement or deprivation of private or
civil rights belonging to individuals considered as
individuals, and
are frequently terms civil injuries ; the latter are a breach
and violation of public rights and duties which affect the
whole community, considered as a community ; and are
distinguished by the harsher appellation.

Distinction Between

Criminal Justice Civil Justice

1. All criminal wrongs are 1. All civil wrongs are
administrated by criminal administrated by civil
justice. justice.
2. Eg. Theft, murder, 2. Eg. Breach of
rape, forgery etc. contract, Irespass to land
etc.,.
3. All crimes are public 3. All civil wrongs are
wrongs. private wrongs.
4. All criminal 4. The aggrieved person
proceedings are instituted institutes the civil
by the state. proceedings.
5. A Crime is treated a 5. Civil wrongs are
harmful Act to the entire deemed only to infringe
Society. the rights of the
Eg. Murder, killing a individual.
person primarily affects
the deceased, but it badly
affects on his family and
also entire society.
6. The object of the 6. The object of the civil
criminal justice is to Justice is to provide
punish the wrongdoer, compensation to the
ranging from death to aggrieved and sufferer by
fine. wrong does.
7. Criminal Justice is 7. Civil justice is
administered according to administered Acc to the
the set of criminal set of Civil Procedures.
procedures.
8. The doctrine of 8. The doctrine of
estoppel does not apply to estoppel applies only
criminal Justice. Civil Justice.
9. It is better that 9. This Principle does
several guilty men should not apply to civil
escape rather than one proceedings.
innocent should
punished.
The guilt must be
proved beyond the doubt.
10. The rules of evidence 10. Te rules of evidence
cannot be relaxed by the may be relaxed by the
consent of the parties. consent of the parties.
11. The cases once 11. The proceedings
instituted cant be may be withdrawn by the
compounded or parties with their own
withdrawn in the criminal consent.
Justice. There are very
few exceptions.
12. The burden of proof 12. The burden of proof
lies on the prosecution. dies on both the
The guilt must be Petitioner and the
 proved beyond the doubt.
13. In the criminal cases,
the obligation lies on the
Court to bring all relevant
evidence on the record so
that justice is done.
Defendant.
13. In the Civil, it is the
duty of the parties to
place their case as they
think best.

14. Benefit of doubt is 14. Benefit of doubt

given to the Accused in principle does not arises
criminal Justice. in civil justice.
15. The criminal justice 15. It deals with the
deals with remedial and distribution of wealth
breaches of duties. It is a and honour. It is
corrective Justice. distributive Justice.
16. Criminal Courts 16. Civil Courts
administer the criminal administer the Civil
justice. Justice.

Purpose of Criminal Justice : Punishments

There are 2 aspects of Punishments.

i) It can be a method of protecting society by reducing the

occurrence of criminal behaviour or it can be an end in
itself.
ii) It can protect society by deterring potential offenders, by
preventing the actual offender from committing further
offences and by turning and reforming him into a law
abiding citizen.

Various theories of punishment have been propounded to

Justify ends of criminal Justice and Punishment.

1. Deterrent.
2. Preventive
3. Reformative
 4. Retributive
5. Compensation.

1. Deterrent Theory:-
The evil doer should be given such a punishment that he
becomes an example and warning to others that might
similarly feel inclined to deviate from the straight path of
duty.
It should serve as a warning to others.
It not only dissuades the offender from repeating the crime
but also deters others from indulging in criminal activities.

Eg. Mutilation, beheading, flogging, branding etc.,

2. Preventive theory:-
It is based on the idea of preventing repetition of crime by
disabling the offender through measures such as
imprisonment, dealth sentences etc.

It is to deprive the offender, either temporarily or

permanently of the power to repeat the offence.

Death Punishment Most effective Mode.

When offence are very grave nature, such as murder or

treason.
In modern times, certain preventive measures have
been adopted in various offences such as, forfeiture,
suspension or cancellation of licence etc.

3. Reformative Theory.
Punishment should serve as a means of social
education. It emphasizes on reformation of criminals
through the methods of individuaisation. It says that
offences are committed under the influence of motive upon
 character. Therefore, they can be checked either by a
change of motive or by change of character.

Acc this, crime is the result of a disease and the

criminal is a patient who should be given proper treatment.

This theory is to reform the character of the wrong

does so that he will desire to do what is right instead of
yearing to do what is wrong.

4. Retributive Theory
It was accorded exclusive recognition in ancient
penology. An eye for an eye and a tooth for a tooth is the
maxim on which primitive society proceeds. This involves 2
conceptions:

i) That punishment is an end it in itself ;

ii) That the primary Justification of punishment is found
in the fact that an offence has been committed and not in
any future advantages to be gained by its infliction,
whether for society or for the offender as an individual.

5. Compensation:-
The object of punishment must not be merely to
prevent further crimes but also to compensate the victim of
the crime.

Q.No.4 Question of Law and question of Act.

Marks: 5
 Questions of Law, Fact and Discretion

The determination of cases by the court involves

enquiry and consideration of various questions that arise
in the suit or trail.

These questions may be of 2 kinds.

i) Question of law,
ii) Question of fact.

In a court of justice 2 kinds of questions arise, both

these terms are ambiguous and possess more than one
meaning.

Question of Law:-

This term has 3 distinct meanings.

1. It means that a question is to be answered in accordance

with the already established rules of law and not in
accordance with the evidence that is laid before the court.

Every question which has not been predetermined and

authoritatively answered by the law is a question of law.

Eg. In a suit for damages,

The question as to whether damages are at all recoverable,
in the circumstances of the case, is a question of law while
the question of quantum of damages would be a question of
fact.

Eg. Whether a contractor has been guilty of unreasonable

delay in building a house is a question of fact but whether
the holder of a bill of exchange has been guilty of
 unreasonable delay in giving notice of dishonour is a
question of law to be determined in accordance with
certain fixed principles laid in the bills of exchange Act.

2. A question of law is a question as to what the law is. In

this sense questions of law arise out of laws uncertainty.
When in a court of justice any question arises as to the
meaning of an ambiguous statutory provision, this
question is a question of law in the second sense and not in
the 1st sense but a question of fact.

3. The general rule is that questions of law in both the senses

are for the Judge but that questions of fact are for the jury.

Questions of fact

Questions of fact in its general sense includes all

questions which are not questions of law. Everything
which is not a matter of law is matter of fact. It has these
meanings.

1. Any question which is not predetermined by a rule of law.

2. Any question except a question as to what the law is ; or
3. Any question that is to be answered by the jury instead of
by the Judge.

Question of Judicial discretion

A question of fact in a narrow and more specific sense

is opposed to a question of judicial discretion.

It pertains to the sphere of right and includes all

questions as to what is right, just, equitable or reasonable.
 In determining the question of fact the court ascertains the
truth of the matter which in determining questions of
judicial discretion it seeks to discover the right or justice of
the matter.

For eg. When an Accused charged with a criminal act, that

question, which considered whether he has committed the
criminal act with which he is charged, is a question of fact
but when proved guilty should he be punished by way of
imprisonment or by way of fine only, is a question of
judicial discretion or of right.

UNIT-III

Q.No.5 Delegated legislation and Sub delegation.

Marks: 5

Delegated legislation.

When law making power is conferred by the legislature

upon some other body and that other body declare laws, it
is known as delegated legislation and the legislative power
is said to be delegated.

The Committee on ministers power said that the term

delegated legislation has 2 meanings.

1. It means the exercise of power that is delegated to the

executive to make rules.
2. It means the output or the rules or regulations etc. made
under the power so given.
 Reasons for delegated legislation.

1. Want of time :- The Parliament is so much occupied with

matters concerning foreign policy and other political issues
that it has no time to enact social legislation in all its
details.

2. Technicality of the matters :- Society things have become

more technical. All the legislators may not know them
fully and hence, they cant make any useful discussion on
it.

3. Emergency :- During the time of emergency quick and

decisive action is very necessary at the same time, it is to
be kept confidential.
Therefore, the executive is delegated the power to make
rules to deal with situations.

4. Flexibility :-Amendming Acts will become necessary Acc to

future contingencies and that would cause wastage of time
and money. Therefore delegation to the departments
becomes necessary.

5. Local matters :- Which concern only a particular locality,

group or profession, needs consultation with the people on
these matters, regarding such legislation the departments
are give power to make changes or rules with interested in
it.

6. Experimentation :- For some Acts needs operation in

different localities on different dates according to their
suitability and as a matter of experiment.

Dangers of delegated Legislation.

1. Legislation may be passed in too skeleton a form and wide
powers of action to make new laws and to impose tax may
be given to executive.
2. Parliament gets inadequate time to scrutinize regulations.
3. Some of the regulations attempt to deprive the subjects of
recourse to the law courts for protection.
4. Illegal actions done under the authority of delegated
legislation.

Control of delegated legislation,

1. Procedural control.
2. Parliamentary control.
3. Judicial control.

1. Procedural control :- Certain safeguards are necessary to

keep vigil over the exercise of power by the executive or
administrative authorities.
Methods:
a) Prior consultation of interest.
b) Prior publicity of proposed rules and regulations.
c) Publication of delegated legislation.

In India, previous publication is necessary under Section

23 of the general clauses Act 1987.

2. Parliamentary Control :-

When a bill that provides for the delegation of power is

before the house, the house may modify, amend or refuse
altogether the powers proposed to be delegated in the bill.

In India, such control is exercised through the committee

on subordinate legislation on both the houses of
parliament.
3. Judicial Control :-
Whenever a law made by the executive is found to be i)
inconsistent with the constitution or ii) ultra vires the
parent Act from which the law making power has been
derived, it is declared null and void by the Court.

Sub Delegation

It is not uncommon for a body or a person to receive

delegated powers indirectly under a statute. The legislation so
produced is in known is sub delegated legislation.

Q.No.6 What is a Precedent? Explain circumstances

which weaken the binding force of a precedent.

Marks:15

Precedent

Judicial precedent is another imp source of law. It

have a binding force on Judicial Tribunals for deciding
similar cases in future.

Acc to Salmond, the doctrine of Precendent has 2

meanings.

1. In a loose sense precedent includes merely reported case

law which may be cited and followed by the Courts.

2. In a strict sense, it means that case law which not only

has a great binding authority but must also be followed.
 *A statement of law made by a Judge in a Case can become
binding on later Judges and other subordinate courts and
in this way may becomes the law for every one to follow.

*Precedent become binding depends on 2 main factors

1) It must have been pronounced by a court which is

sufficiently senior.
2) It is only the retiodecidendi, i.e., reasoning behind the
decision which is binding.

Authority of precedent in India :

* The privy Councils Made Authoritative influence by its

decisions on Indian judicial legal system.

* The principles of equity, justice and good conscience in

India a were the result of privy councils various decisions.
Still its decisions are binding force in all the courts in
India.

* After independence, the supreme court occupied the place

of the privy council.

Acc to Jeremy Bentham, precedent is a Judge Made law.

Austin call it as judiciarys law.

Keeton holds precependents as those judicial

pronouncements of the court which carry with them
certain authority having a binding force.

* A precedent may be defined as a statement of law found in

the decision of a superior court, which has to be followed
by that court and by courts inferior to it.
* Meant to be followed a judicial decision of a High Court or
superior court by the same court as also by subordinate
courts.

* Black stone has pointed out that it is an established rule to

abide by the former precedents where the same points
came again in litigation.

* The process of Judicial decision making may be either

deductive pr inductive.

* Deductive method is associated with codified system of law.

It assumes that the legal rule applicable to any particular
case is fixed and certain and the Judge us required to
apply this rule as justice acc to the law without any
reference to his personal view.

* Inductive Method starts with the same primary object of

finding the general principles applicable to the particular
case, but it does not conceive the rule as being applicable
to the particular case, but it does not conceive the rule as
being applicable directly by simple method of deduction. It
rather moves from particular to general.

Kinds of precedents

1. Declaratory and original precedents

2. Persuasive precedents
3. Absolutely Authoritative precedents,
4. Conditionally Authorities precedents.
Persuasive Precedents may be of various Kinds

1. Foreign Judgments
2. Decision of superior courts to other parts of British empire.
3. Judgments of the privy council when sitting as the final
court of appeal from the colonies.
4. Judicial dicta (obiter dicta)
5. Authoritative text books and commentaries.

Art 141 -> Law declared by Supreme Court to be

binding on all Courts

Supreme Court is not bound by its own decisions. The

expression all Courts used in Art 141 refers only to the
Courts other than the Supreme Court. Therefore, the
Supreme Court is not bound by its own decisions except to
the extent that a smaller bench is bound by the decision of
a larger bench and that of a co-equal bench.

Ratio decidendi:

Precedents carry some legal principles. The legal principle

on which a case is decided is called the ratio decidendi of
that case.
The ratio decidendi means the reasoning factor behind the
decision.
It is that principle of law on which a judicial decision is based. It
is the very heart of a precedent
OBITER DICTA:

Judges often express legal opinion on issues which

they are not asked to decide. These statements of law, in
fact, not necessary for the decision, are termed obiter dicta.

It is what the judge said unwontedly, just by the way.

Goodhart defined obiter dicta as a conclusion based on a
fact the existence of which has not been determined by the
Court
Circumstances which destroy the binding force of
Judicial Precedents:

1) Ignore of statute:
 It is not binding if it be rendered in ignorance of any
statute or any other rule having the force of stature.
2) Inconsistency between earlier decision of higher Court:
It loses its binding force completely, if it is inconsistent with
the decision of a higher Court.
3) Inconsistency between earlier decision of the Court of
the same Rank:
A Court is not bound by its own earlier decisions which are
conflicting with each other.
The conflict may raise due to inadvertence, ignorance in
earlier decisions before the Court.

4) Precedent sub silentio:

A decision is said to be sub silentio when the point of law
involved in it is not fully argued or not perceived by the
Court.

5) Decision of equally divided Court:

There may be cases where the Judges of the Appellate
court are equally divided. In such a case practice is to
dismiss the appeal and hold that the decision appealed
against is correctly decided.

6) Erroneous decisions: The decisions which are founded on

misconceived principles or in conflict with the fundamental
principles of law lose their binding force totally.

7) Abrogated decisions: A decision ceases to be binding if

statute inconsistent with it is subsequently enacted. So
also, it ceases to be binding if it is reserved, overrules or
abrogated.

8) Affirmation or reversal on a different ground:

When a higher Court either affirms or reverses the
judgment of the Lower Court on a ground different from
that on which the judgment rests, the original Judgment is
 not deprived of all the authority, but the subsequent Court
may take a view that a particular point which the higher
Court did not touch, is rightly decided.

Advantages of Precedent:

1) Jurists like Coke & Blackstone have supported the doctrine

of precedents because it shows respect for the opinion of
ones ancestors.

2) It enable the judges to re-shape the law according to the

needs of the time, binding authority of precedents pouts
check on the arbitrary decision of the judges.

3) Precedents provide flexibility to the law to adopt itself to

mew environments.

4) It is based on customs and therefore, they are followed. In

following precedents we follow customs which in their turn
have been a general practice or conduct of the people for a
long time, and not only the opinion of a Judge.

5) Laws contained in the case laws are certain and simple.

They being certainty in law.

6) They provide useful guidelines to the Judges for decisions.

7) Precedents give raise to practical and perfect laws because

they are the result of concrete actually happened problems.

8) It will save the Labour of the Judges and the Lawyers. At

the same time, it will cause a great impediment in the way
of the administration of justice.

Disadvantages of Precedent:
 1) Bentham has not recognized precedent as law because it
lacks binding force of the state.

2) It overlooks the fundamental rule of natural justice that

law must be known before it is actually enforced.

3) Acc to Frederick Pollock, the law based on case Law is

incomplete because the Judges take into consideration only
those facts which are involved in the cases before them.

4) Major setback of precedent is that the development of law

through case-law more or less depends upon chance.

5) Sometimes erroneous decisions of Supreme Court create

practical problems for the sub-ordinate Judges.

6) One practical difficulty which arises in Judicial Precedent

is that what should be the test for determining the validity
of law made by case Law?

UNIT-IV

Q.No.7 Discuss the idea of legal personality and

examine the statusofDead man.

Marks:15
LEGAL PERSONALITY

The main object of law is to regulate the relationship

between individuals in the society. The law imposes certain
duties on individuals for the protection of interests of
mankind. The law being concerned with regulating the
human conduct, the concept of legal personality
constitutes an important subject-matter of jurisprudence
because there cannot be rights and duties without a
person.

Origin of the concept of legal personality

The word person is derived from the Latin word persona

which meant a mask worn by actors playing different roles
in a drama.
Generally, there are 2 types of person which the law
recognizes, namely,
Natural and artificial.
One of the most recognized artificial person is corporation.

Definition of legal person

Salmond defines, any being to whom the law regards as

capable of rights or duties. Any being that is so capable, is
a person whether human being or not and nothing that is
not so capable is a person even though he a man.

Gray , entity to which rights and duties may be

attributed.

Paton, legal personality is a medium through which some

such units are created in whom right scan be vested.

Kinds of Persons

1.Natural Persons- A Natural person is a human being

capable of rights and duties. They are both persons in fact
and in law.
 2.Legal persons- legal persons are being, real or
imaginary, who for the purpose of legal reasoning are
treated in greater or less degree in the same way as human
beings. they are persons in law, but not in fact. Legal
persons are also termed fictitious, juristic, artificial or
moral.

i) Corporation a corporation is a group or series of

persons which, by a legal fiction, is regarded and treated as
a person.

ii) Institution the object selected for personification is not

a group or series of persons, but an institution, for eg., a
church or university.

i) Fund or Estate- the corpus is some fund or estate

devoted to special of uses, for eg., a charitable fund or
a trust estate.

LEGAL STATUS OF LOWER ANIMALS

The only natural persons are human beings. Accsalmond

beasts are not persons, either natural or legal. They are merely
tings often the objects of legal rights
And duties but never the subject of them.
Although the beasts are in cable of legal rights and duties and
their interests are not recognized by law but the legal history
reveals that archaic codes contained provisions regarding
punishment to animals if they were found guilty of homicide.
Sutherland refers to certain instances where bulls were
punished. f an ox gore a man or a woman that they die: then the
ox shall be surely stoned and flesh shall not be eaten.
In the ancient Hindu jurisprudence, killing of harmless animals
like swans, squirrels, cows , bulls, etc. was made punishable with
fine.

Today, an animal cannot be punished but if it is extremely

dangerous then only certain laws allow shooting down. In India,
the cattle trespass act has been passed for animals doing
trespass.

A beast is incapable of legal rights as of legal duties, for its

interests receive no recognition from the law. However, there are
two cases in which beasts may poses legal rights. In the first
place, cruelty to animals is a criminal offence, and the second
place, a trust for the benefit of particular classes of animals, as
opposed to one for individual animals, is valid and enforceable as
a public and charitable trust.
For e.g., a provision can be made for the establishment and
maintenance of a home for stray dogs or broken down horses.

Salmond says that the duties towards animals are in fact duties
towards the society itself. The society does have an interest in the
protection and well-being of animals.

LEGAL STATUS OF UNBORN PERSONS

Unborn persons have given the legal status by law. There is

nothing in law to prevent a man from owning property before he
is born. His ownership is real and present ownership but it is
contingent because he may never be born at all.
Paton has observed that, the child in womb is not a legal
personality and can have no rights. this view is based upon the
fact that the child should be born alive and should be completely
extruded from the mothers body before it can have any benefits
under the law. It is submitted that this view is not tenable. Now
only children in utero, but even unborn children in the sense of
children not yet conceived have legal personality. Thus, in the law
of property, there is a fiction that a child en ventresa mere is a
person in being for the purposes of-

i) The acquisition of property by the child itself, or

ii) being a life chosen to form part of the period in the rule
against perpetuities.

The Hindu law of partition requires a share to be allotted to a

child in mothers womb along with the other living heirs. But if
the child is not born alive, his share will be equally partitioned
between the surviving heirs. Thus, proprietary rights of children
in utero are fully recognized by the law. Injury to the child in
womb has been made a punishable offence by the criminal law.
Causing death of a child in womb has been made a punishable
offence by the Indian penal code a punishable offence. Thus,
children in the womb have rights protected by law and have legal
personality. Criminal law also protects the unborn child.
The personality of an unborn person is contingent to his birth
because if he dies in the womb or is still- born, no right will be
deemed to have been vested in such a child.

LEGAL STATUS OF DEAD MAN

Accsalmond,Dead man are no longer persons in the eye of the

law. They have laid down their legal personality with their lives,
and are now as destitute of rights as of liabilities. They have no
rights because they have no interests. They do not even remain
the owner of their property until their successors enter upon
their inheritance.

n law dead men are things and not persons. They have no
rights and no interests. The criminal law provides that any
imputation against a deceased peson, if it harms the reputation
of that person, if living, and is intended to hurt the feelings of his
family or other near relatives, shall be an offence of defamation
under section 499 of the indian penal code.
Salmond says that there are three things, more especially, in
respect of which the anxieties of living men extend beyond the
period of their death in such sort that the law will take notice of
them. These are a mans body, his reputation and his estate.

Dead persons are not recognized as legal persons but the

testamentary dispositions of the dead are carried out by law. A
person can, by his will, made a valid trust for repairs and
maintenance of the graveyard because it amounts to a charitable
or public trust but he cannot, by a direction in his will, provide
that certain part of his estate shall be permanently used for the
maintenance of his own grave.

Williams v. Williams it was laid down that a person cannot

during his lifetime make a will disposing of his body, for e.g.,
giving his brain to the museum or giving any part of his body to
the medical college. However, now a days one can legally donate
his eyes during his lifetime for another person after his death.

DOUBLE CAPACITY AND DOUBLE PERSONALITY

Law recognizes many different capacities in which a man may

act. A man may have power to act in an official or representative
capacity or he may act in his private capacity or on his own
account.
The fact to be noticed is that if a man has two or more capacities
it does not give him the power to enter into a legal transaction
with himself. Double capacity must not cannot double
personality. Law does not recognize double personality of the
individual. For e.g. At common law, a man could not sue himself
or contract with himself or convey property to himself even if he
was acting on each side in a different capacity.
Q.No.8 sole corporation

Marks :5

Corporations

A corporation is an artificial person. It is a group or series of

persons, which by legal fiction are treated as a person and it has
capacity to have rights and duties and holding property.
Corporation are of 2 kinds

Kinds of corporation
i) corporation aggregate
a corporation aggregate is an incorporated group
of co-existing persons. Corporations aggregate
have several members at a time.
E.g., a registered company, consisting of all the
shareholders and a municipal corporation
consisting of all the inhabitants of the borough,
limited companies are the best example of a
corporation aggregate.
The partnership firm is not a person because it is a person
because it is only an aggregate of individuals but is not
incorporated. The existing partners own the property and
the debts.

ii) Corporation -sole

A corporation sole is an incorporated series of
successive persons. Corporation sole has only
one member at a time. According to salmond,
corporation sole is found only when the
successive holders of some public office are
incorporated so as to constitute a single,
permanent and legal person.
 E.g., the secretary of state for war, the
postmaster- general, the solicitor to the treasury,
attorney- general of India.

Advantages of incorporation

1.Corporate personality- a partnership firm, which has no

existence apart form its members a company is a distinct
legal or juristic person independent of its members.under
the law, an incorporated company is a distinct entity, even
the one man company. Eg.,salomon v Solomon and co. it
was held that the company has its existence separate and
distinct from its members.

2.Limited liability- in the case of limited companies, no

member is bound to contribute anything more than the
nominal value of the shares held by him

3.Perpetual succession- an incorporated company has

perpetual succession which means that members may
come and members may go but the company can go on
forever

4.Transferable shares- shares of the companies are movable

property, transferable in the manner provided by the articles
of the company.

5.Restriction on purchase by a company of its own shares-

the companies have been prohibited, with some exceptions,
the purchase of their own shares, especially by companies
with liabilities limited by shares or guarantee.

6.Separate property- a company as a legal entity is capable

of owning its funds and others assets. The property of the
company is not the property of the shareholders.
7.Capacity to sue- as a juristic legal person, a company can
sue in its name and be sued by others.

8. Flexibility and autonomy- the company has an autonomy

and independence to form its own policies and implement
them, subject to the general principles of law, equity and
good conscience and in accordance with the provisions
contained in the companies act, memorandum and articles
of association.

Disadvantages of incorporation

1.Formalities and expenses- incorporation of a company is

coupled with complex, cumbersome and detailed legal
formalities and expenses, involving considerable time and
money.

2.Corporate disclosures- notwithstanding the elaborate legal

framework designed to ensure maximum disclosure of
corporate information, the members of a company are
having comparatively restricted accessibility to its internal
management and day-to- day administration of corporate
working.

3. Divorce of control from ownership- members of a

company are no having as effective and intimate control over
its working as one can have in other forms of business
organization.

4.Greater social responsibility- having regard to the

enormous powers wielded by the companies and the impact
they have on society, the companies are called upon to show
greater social responsibility in their working and for that
purpose, are subject to greater control and regulation than
that by which other forms of business organization are
governed and regulated.
 5. Greater tax burden in certain cases- in certain
circumstances, the tax burden on a company is more than
that on others forms of business organization.

6. Detailed winding up procedurethe companies act

provides elaborate and detailed procedure for winding up of
companies which is more expensive and time consuming
than that which is applicable to other forms of business
organization.

UNIT-V

Q.No.9 Explain the theory of strict liability and

vicarious liability.

Marks:15
LIABILITY

Liability is responsibility for an act or omission. Whoever

commits a wrong is said to be liable for it.

Acc salmond, liability or responsibility is the bond of

necessity that exists between the wrongdoer and the
remedy of the wronged.

Acc to Austin,liability consists in those which a wrongdoer

must do or suffer. It is the ultimatum of law and has its
source in the supreme will of the state.

Liability arises from a breach of duty which may be in the

form of an act or omission.he prefers to call liability as
imputability.
 Liability can be classified in to
1.it can be civil or criminal.
2.it can be remedial or penal.
3.it can be absolute or vicarious.

Civil liability consisits in enforcement of the right of the

plaintiff against the defendant in civil proceedings,
Criminal liability the purpose of the law is to punish the
wrongdoer.

Difference b/w civil and criminal liability:

1.Crime is a wrong against the society but a civil wrong is a

wrong against a private individual.
2. The remedy for a crime is punishment but the remedy
for civil wrongs is damages.
3. The proceedings in case of crime are criminal proceedings
but in case of a civil wrong they are civil proceedings.
4. In a civil wrong, the liability is measured by the wrongful
act and the liability depends upon the act and not on the
intention while liability in a crime is measured by the intention of
the wrongdoer .

The defendant is asked to pay damages or to pay a debt, or

to make a specific performance,etc the liability is called Remedial
liability.
When after a successful proceeding the wrongdoer is
awarded punishment, fine, imprisonment, etc., the liability is
called penal liability.

STRICT LIABILIY
Generally a man is held liable for his wrongful acts but
there is an exception to this general rule which is known as
wrongs of strict liability. These are the acts for which a man is
responsible irrespective of the existence of either wrongful intent
or negligence. They are exceptions to the general requirement of
fault.
Wrong of strict liability are also known as wrong of absolute
liability. The wrong arises from the breach of an absolute duty.
An absolute duty may be defined as a duty which renders a
man liable without any fault of his and irrespective of any
consideration of intention or negligence on his part.
It is absolute liability in the sense that it is not necessary for the
injured party to prove any intention or negligence on the part of
the injuring party. Wrongs of absolute liability can be classified
into 4 kinds:
i) Cases relating to escape of dangerous things;
ii) Cases relating to escape of animals.
iii) Cases relating to the use of things which in their nature
are specially dangerous such as fire, fire-arms,
explosives, poisonous drugs etc.

Acc to salmond, it can be put into 3 groups-

1) Mistake of law
2) Mistake of fact
3) Inevitable accident

1) Mistake of law- it is expressed in legal presumption that

everyone knows the law. If a person has committed a wrong
under mistake of law, the law will not hear him say that he
had no guilty mind and that but for his ignorance of law, he
would not have done it. This presumption is irrefutable.
2) Mistake of fact- which means that ignorance of the fact is
excuse. It means that a person is not liable for a wrongful
act if he has done it under a mistake of fact. Mistake of fact
is a valid defense against wrongful acts.
In R. v Prince a person who abducted a girl under the legal
age of consent was held criminally liable, although he
honestly believed her to be of that age because the act of
taking away the girl itself is a wrongful act.
 3) Inevitable accident- it is commonly recognized as a ground
of exemption from liability. Accsalmond, every act which is
not done intentionally is either done accidentally or by
mistake. It is done accidentally when the consequences are
unintended and it is done by mistake when the
consequences are intended but the actor is ignorant of some
material circumstances.
In Ryan v Youngs the sudden death of the driver of a motor
vehicle due to heart- failure as a result of which the
accident was caused, was held to be a mere inevitable
accident and the defendants were held not liable.

VICARIOUS LIABILITY

Normally, the person who does the wrong is liable for that
wrongful act but there are certain circumstances when the
liability of the wrongdoer is imposed on some other person than
the wrongdoer himself. Therefore, in vicarious liability one man is
made answerable for the acts of another. Modern civil law
recognized vicarious liability in 2 chief classes:
i) Masters are responsible for the acts of their servants
done in the course of their employment,
ii) Representatives of dead men are liable for the acts of
the deceased whom they represent.
1) Masters liability for the acts of his servants
Vicarious liability means liability which is incurred for,
or instead of, another. Every person is responsible for
his own acts, but in certain circumstances liability
attaches to him the wrongs committed by others.
Liability of the master for the acts of his servant is
both joint as well as several.
A servant is that person who voluntarily agrees,
whether for wages or not, to subject himself at all
times during the period of service to the lawful orders
and directions of another in respect of certain work to
be done. While the master is that person who is legally
 entitled to give such orders and to have them obeyed
by others.

3 reasons for holding a master liable for the wrongs of his

servant:
i) Qui facit per aliumfacit per se
ii) Respondeat superior
iii) Financial considerations
iv)
2) Living representatives for the acts of the dead
A man cannot be punished in his grave and, therefore, it
was held that all actions for penal redress must be
brought against the living offender and must die with
him. This old rule has been abrogated by law to a great
extent. A personal action does not survive on the death,
either of the person who sustained or the person who
committed, the wrong.
At common law, in the case of the death of the person
wronged, his executors or administrators could not maintain an
action for-

a) Personal wrongs committed during his life- time, such as

assault, libel, false imprisonment, negligence not causing
death, reduction; or
b) Trespass to his goods and chattels; or
c) Damages for his death.

Vicarious liability in criminal law

The general principle is that a person is not responsible for
the act of another. A master is not criminally liable for the
unauthorized acts of his servant. However, there are certain
exceptions of this rule. The legislature may prohibit an act
or enforce a duty to make them absolute. In such a case the
principle will be liable for the act of his servant as if he did
that act himself. If a principle neglects the performance of
an act which is likely to cause dangers to others and
 entrusts it to unskilled hands, he will be made criminally
liable in certain cases.

Q.No.10 Mens Rea

Marks:5

Mens Rea
Meaning of mensrea is guilty mind. Any act alone does not
constitute a crime. It requires a guilty mind behind it. Mensrea is
defined as the mental element necessary to constitute criminal
liability. Slamond says that criminal liability may require the
wrongful act to be done intentionally or with some further
wrongful purpose in mind, or it may suffice that it was done
recklessly; and in each cae the mental attitude of the doer is
such as to make punishment effective. If a person does a
wrongful act intentionally or even if committed the forbidden act
without wrongful intent but knowing the harmful consequence of
the act, he will be punished.
Mensrea must extend to all three parts of the act;
i) the physical doing or not doing;
ii) the circumstances
iii) the consequences
wrongs may be divided into three types;
i) intentional or Reckless wrongsin which mensrea is
intention, purpose, or design.
ii) Wrongs of Negligencein which the mensrea is mere
carelessness, as opposed to wrongful intent or foresight.
iii) Wrongs of Strict liability in which mensrea is not
required. These wrongful acts by themselves are wrongs
and punishable.
Exceptions to mensrea
i) When the law imposes strict liability, the requirement of
guilty mind or mensrea is dispensed with. In the interest
of public safety, health, and social welfare, many
measures imposing strict liability have been legislated. In
matters concerning public health, food, drugs etc.,such
strict liability is imposed.
ii) Where mensrea is difficult to be proved, a guilty mind
need not be proved in such cases; provided that the
penalties are petty fines.
iii) In the interest of public safety, in deciding cases relating
to public nuisance, it is not necessary to take mensrea
into consideration.
iv) In those cases which are criminal in form but in fact they
are only summary mode of enforcing a civil rights,
mensrea is not necessary.
v) Ignorance of law is no excuse is the maxim of another
exception.