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DISTINGUISH BETWEEN
CIVIL AND CRIMINAL JUSTICE.
INTRODUCTION:-Administration of Justice:- According to Salmond : -”The administration of
justice implies the maintenance of right within a political community by civilized substitute for the
primitive practice of private vengeance and violent self-help.” This has been criticized on the
ground that it is not the force of the state alone that secures the obedience of law. There are a
number of other factors such as the social sanctions, habit and convenience which help in the
obedience of law. In civilized societies, obedience to law becomes a matter of habit and in very
rare cases the force of the state is used to secure it
According to Austin: ‘Law is the aggregate of rule set by men as politically superior, or
sovereign, to men as politically subject.” It means law is command of sovereign. In his definition
Command, duty and sanction are the three elements of law.
The fundamental difference between the definitions of the two jurists is that whereas in the
definition of Austin, the central point of law is sovereign, in the definition of Salmond, the central
point is Court. In fact, both the definitions are not perfect and present two aspects of law.
Salmond : Points out that men do-not have one reason in them and each is moved by his own
interest and passions. The only alternative is one power over men. Men is by nature a fighting
animal and force is the ultima ratio of all mankind. As Hobbes puts it “ without a common power
to keep them all in awe, it is not possible for individuals o live in society. Without it injustice is
unchecked and triumphant and the life of the people is solitary, poor, nasty, brutish and short.”
Salmond says however orderly a society may be, the element of force is always present and
operative. It may become latent but still exists.
KINDS OF ADMINISTRATION OF JUSTICE
The administrative of justice may be divided into two parts:-
1) Civil.
2) Criminal.
1. Administration of Civil Justice: The wrongs which are the subject-matter of civil proceedings
are called civil wrongs. The rights enforced by civil proceedings are of two kinds (1) Primary
and (2) Sanctioning or remedial rights. Primary right are those rights which exists as such and
do not have their source in some wrong. Sanctioning or remedial rights are those which come
in to existence after the violation of the primary rights. The object of the civil administration of
justice is to ascertain the rights of the parties and the party who suffers from the breach of such
rights is to be helped by way of paying damages or getting injunction, restitution and specific
performance of contract etc.
2. Administration of Criminal Justice:- The object of the criminal justice is to determine the
crime of a person who is charged with the doing of an offence. The criminal court after proving
that the offender is guilty of the offence charged awards him the punishment of fine,
imprisonment as prescribed by criminal law. A convicted person is awarded physical pain. Thus
the main purpose of the criminal justice is to punish the wrongdoer.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL ADMINISTRATION OF JUSTICE
Civil Administration of Justice
In the civil case the suit is Filed in the civil court. Criminal Administration of Justice
In the criminal cases the proceedings Is filed in the criminal court.
The main remedy in civil Cases is damages. The main remedy in criminal cases is to Punish the
offender.
In the civil cases, the court Follows the procedure Prescribed in Civil Procedure Code. In the
criminal cases, the court follows the procedure laid down in criminal Procedure Code.
In civil cases the action is taken By the injured party and the Suit is established by himself By
giving evidence. In criminal cases the proceeding is taken by the state and the injured
party is called out as a witness by the state.
2 What is Law? Discuss. Definition given by various jurists?
INTRODUCTION: It is easier to explain than to define it. It means that things are easy to
explain than to define it. Definition is very necessary for the study of the subject, because the
beginning and in one sense it ends is also its definition. To give a definition of Law is
comparatively a hard task due to many reasons :
1. In Hindu :- Dharma
2. In France :- Droit
3. In Rome :- Jur.
4. In Muslim :- Hukma
All these above words conveys different meaning. And we can say that a definition which
contain all the above meaning and all elements would be a good definition of law. Endlly
definition given by every person is always different. Because definition given by a lawyer a
philosopher, a student or a lecturer is always different. A definition which doesn’t cover all these
elements would be an in-perfect definition.
DEFINITION OF LAW:- The word, “Law” has been taken from the ‘latin word’ which means
“The body of Rules” various scholars has attempted to define this term according to their own
prospective. Some of them are as under:-
According to Roman Scholars:- The law is concerned with the parameters which is right or
wrong, fair and unfair.
ULPIAN:- The famous Roman scholars and a Juries, he defined the term ,” Law as standard of
what is just and unjust.”
According to Salmond:- The law is the body of principals recognised and applied by the state in
the administration of justice.
According to Positivist Definition :- They are known as a modern thinkers and they propounded
a new school in the Law namely, “ Analytical School.” This school is also known as a scientific
school. Benthem, Austin and Kelson define the term of Law in the following manners:-
1. AUSTIN:- Austin is the father of English Jurisprudence and according to him, “Law is
the command of sovereign” There are three elements of law according to Austin :
a) Command )
b) Duty ) = LAW
c) Sanction )
According to him every law have a command and due to this command we have the duty
to obey this command and if we don’t obey this duty then there is a sanction.
2. As per Benthem:- The law is the violaion of some declarations by the political head with
utiity ensuring maximum happiness of he maximum people in the society. Benthm concept of
law revolves around individual utilitarianism and its concern with the theory of pain and
pleasure, which means that the purpose of Law to reduce the pain and harms and pleasure in
the society.
3. According to Kelson:- The law is depsycholigically command. He is concern with those
commands which purely rest upon the formal expression of law.
3. Sociological Definition: The sociological approach is not a single approach but it includes a
number of thoughts, but all these thought related to society, that is why heading is given them to
sociological. And we shall discuss some of true definitions :-
DUGUID :- According to him the law is a set of sosme formal norms aiming an creation of
soliditary in society.
IHERING :- According to Ihering the Law is a form of guarantees of the conditions of life in
society which are assured by the states power of constraint.
EHRLICH :- Ehrlich lays down, “that the law consists of norms coverings social life. But only the
living Law is the actual law.”
ROSCUEPOUND :- According to him Law is an instrument for balancing, conflict or completing
interest of people in the society.
REQUIREMENTS FOR LAW
The followings are some requirements for the definitions of law :-
i) Before the law there is a State.
ii) Before the State there must be a society.
iii) State & society develop a legal order to be followed.
iv) And finally law always has a purpose.
CONCLUSION:-
In end we can say that law is the important and necessary part of the state and developing
the human beings. Law gives rights and duties to human beings. And law is the essential part of
a State. Law is an instrument of social control as well as social change.
LAW
5 Define and distinguish law and morals. Up to what extent morals help in the development of
law.
Introduction:- Play an important role in the development of law. In the ancient society there was
no difference between law and morals. The Vedas and suteras which are the main ancient
sources of law are based upon morals. In the western society also the position was the same.
The legal system of Greek was also based upon the doctrine of natural rights, which was in fact
founded upon morals. So the Roman law also recognised the doctrine of natural law, which was
founded upon morals. In the middle period also morals were the basis of law. In the 17th and
18th centuries natural law theories become very popular which were also based upon
morals. However in modern times it was only Austin who discarded morals from law. He said
that law is a command of sovereign. But after him there came the Historical School that
recognised morals as the part of law.
DIFFERENCE BETWEEN LAW AND MORALS
When the Austin did not give any place to morals in law then there came a question of the
difference between law and morals. Later on the courts tried to make difference between law
and morals. In the modern times there is clear difference between law and morals. In every
developed and civilized society the following are the differences between morals and laws:-
MORALS LAWS
1.The morals are concerned with individual and are the laid down rules for the moulding of his
character.
2.Morals are mainly concerned with the internal conduct of the nature of a person.
3.The morals are an end in themselves.
4. The observance of morals is a matter of individuals conscience.
5. Morals are considered to be universal in nature and value. 1. The laws are mainly
concerned with the society as a whole and lay down the rules for relationship of individual with
each other and with the state.
2. Law is concerned with the external conduct of the individuals.
3. Laws are meant by which the evils ends. The justice is achieved.
1. Pre-Legal World :- This pre legal world belongs to old age. According to Sir, HLA Hart
pre legal world there was primitive society. And in this society there was no legislature which
can make the rules. There was no executive also which can change the rules besides this there
was no court also to decide the disputes. In the primitive society there were three defects which
are as under :-
2 Un-certainty :- Since there was no Parliament in the primitive society which causes the
un-certainty in the law.
3 Static character:- In the primitive society there were customs and these customs were
not changed. It means there have static character.
4 Inefficiency :- In the primitive society there were no power of Jurisdiction. It means that
there were no courts followed by the people.
2. Legal World :- This legal world belongs to modern age. According to Sir HLA Hart in the
legal world there are modern society. Because of modern society there are rules of recognition
which means that there is a Parliament/State Executive. The function of the Executive to
change or to amend the rules. In modern age there are courts which decides the disputes.
Judges applies the earlier laws in deciding the disputes. These rules/laws are the secondary
rules. Thus we can say that Law is the union of Primary and Secondary rules. In other words it
can be said that the Law is the journey of rules.
RELEVANCY OF HLA HART’S THEORY
Sir HLA Hart’s theory “ concept of Law “ is the most important theory of analytical school.
Because this theory tells us about the old age and for the modern age. In the old age there were
primitive society which did not have any legislature, executive and court. Therefore only
custom and usages which were not allowed to change them by any person.
The theory of ‘concept of law’ tells us about the legal world. In the legal world there is a
legislature which makes the rules and these rules are changed or amended by the executive
when it necessary. There are courts which apply the rules on party. So we can say that in
modern age the law is certain not static in character. Sir HLA Hart also gives the place of
Morality in his theory because the moral have an important role in every legal world and these
morals are not changed by passing any Act. We can say that Sir HLA Hart theory, “ Concept of
Law” has the most important place in the theory of Analytical School.
CONCLUSIION:- Sir, HLA Hart theory Concept of Law have no conclusion because this theory
talks about both the pre-legal world and the legal world which updates and tells us that how the
law comes. So we can opined that such best and usable theory needs no conclusion as it has
its self conclusion.
7 Define Natural Law theory. Also explain its relevancies in the Modern times.
INTRODUCTION: The Natural Law school is not independent school. It has deep concern with
historical, analytical school. The main contents of this theory is that it has been interpreted
differently at the different times depending on the needs of the developing legal thought but the
greatest attribute of the Natural la w theory is its adaptability to meet new challenges of the
transient society.
According to the pro pounder of this theory says that, Law is a product of the straight thinking of
human mind. According to Socrates, he duely assert it that the positivist authority should be
obeyed but not blindly and it ought to be subject to criticism if deserve so. Plato: He was in the
view that each individual be given best suitable role by reason of his capacity and abilities.
Thomas Acquinas (Roman Thinker):- He means that Natural Law is a part of Divine Law. This
part is applied by human beings to govern their affairs and relations. Thomas Hobbes (Roman
Thinker) :- According to him that there should be an absolute authority which should govern and
control the affairs of human beings in the reciprocal transmission of concerned with every span
of life. Rousseau (Roman Thiner) : He held that there two types of will:1. The will of individual
and 2. General will. The authority through his rule must respect the both and in the
administration of rule making process. These will should be reflected.
Definition:- From the jurisprudence point of view Natural law is not a body of actual enacted or
interpreted law enforced by courts. It is in fact a way of looking at things and a humanistic
approach of Judges and Jurists. It embodies within it a host of ideals such as morality, justice,
reason, good conduct, freedom, equality, liberty, ethics and so on. The phrase Natural Law has
a flexible meaning. The chief characteristic feature of natural law may be briefly stated as
follows :-
i) It is basically a priori method which is different from empirical method. It used to stress
upon a cause and effect relationship between the facts on the verge of logic.
ii) It symbolizes physical law of nature based on moral ideals which has universal
applicability at all places and times.
iii) It has often been used either to defend a change or to maintain status quo according to
needs of the time.
iv) The concept of Rule of law in England and India and due process in USA are essentially
based on Natural Law philosophy.
MODEN NATURAL LAW THEORIS:- The following are the three main thinker who contribute to
the Modern Natural Law theories:-
1. Stammler:- He was much more influence by Positive Law. He says that” all positive law
is an attempt at just law” with regard to will and purpose of the law maker should have the
proper understanding and knowledge of actual social world or social reality. Various a time in
his concept he inter changeable used the word will with the purpose and he conclude that it is
the will of the people which enable them to secure their purpose under social reorganisation.
2. KOHLER:- His thoughts were influenced by Hegal. According to him Law is standard of
conduct which is consequence of in the impulse of human being that urges him towards a
reasonable form of life. It also derives its validity from the moral and ethical standard in society.
So that he laid down stress upon moral and cultural development of society.
3. Finnis: Finnis also is a very famous jurists of the present century. He has given the
definition and place to natural law. According to finnis Natural Law is the set of principles of
practical reasonableness in ordinary human life and human community. He sets up the
proposition that there are certain basic goods for human being. Fennis lists them as under :-
i) Life:- The term life signifies every aspect of vitality in good shape for self determination.
ii) Knowledge: Knowledge is a process of knowing of unknown with the help of sense.
iii) Sociability of Friendship:- Doing something best for the sake of one’s friend’s purposes,
one’s well being.
iv) Role:- It is the expression of a status of human being in practical form such role is
protected and recognised by law.
v) Religion:- Question of the origins of cosmic order and of human freedom and reason
expressed thus this view is a good that even an ethicist can value.
vi) Practical reasonableness :- This is the logic expression of the ideas and decision in
practical circumstances. This the measurement of just or unjust in a real situation.
Despite the merits of Natural Law philosophy it has been criticized for its weakness on the
following grounds. In other words the demerits of the Natural Law may be read as follows :-
i) Moral proposition i.e. ought to be may not always necessarily conform to the needs of
the society.
ii) The concept of morality is a varying content changing from place to place, therefore it
would be futile to think of universal applicability of law.
iii) The rules of morality embodied in natural law are not amendable to changes but legal
rules do need a change with changing of the society.
iv) Legal disputes may be settled by law courts but disputes relating to moral and law of
nature cannot be subjected to judicial scrutiny.
CONCLUSION:-The brief survey of the theories of Natural law reveals that its concept has been
changing from time to time.
9 Discuss the nature and scope of Jurisprudence. What is the importance of this subject in the
study of law? OR “Jurisprudence is the eye of law”.
INTRODUCTION :- Jurisprudence in its nature is entirely a difference subject from other social
science. The reason for this is that it is not codified but a growing and dynamic subject having
no limitation on itself. Its inquiry system is of different status from other subjects. Every jurist
does not base his study on the rules made but tries to understand their utility after due
deliberation Thus the jurisprudence has no limited scope being a growing subject. There is
difference of opinion about the nature of jurisprudence. It is called both art and science. But to
call it science would be more proper and useful. The reasons for this is that just as in science
we draw conclusions after Making a systematic study by investing new methods. In the same
way jurisprudence is concerned with the fundamental principles of law systematic and scientific
study their methods.
Scope of Jurisprudence:- According to justice P.B.Mukherjee: ,” Jurisprudence is both an
intellectual and idealistic abstraction as well as behavioural study of man in society. It includes
political, social, economic and cultural ideas. It covers that study of man in relation to state and
society.”
Jurisprudence involves certain types of investigations into law, and investigation an abstract,
general and theoretical nature which seeks to lay the bare essential principles of law and legal
systems.
Salmond observed: “In jurisprudence we are not concerned to derive rules from authority and
apply them to problem, we are concerned rather to reflect on the nature of legal rules, on the
underlying meaning of legal concepts and on the essential features of legal system.” It
therefore follows that jurisprudence comprises philosophy of law and its object is not to discover
new rules but to reflect on the rules already known.
CONTENTS OF JURISPRUDENCE:- The following are the contents of jurisprudence:-
i) Sources It is true that the basic features of a legal system are mainly to be found in its
authoritative sources and the nature and working of the legal authority behind these sources.
Under this head matters such as custom, legislation, precedent as a sources of law, pros and
cons of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the
administration of justice etc., are included for study.
ii) Legal Concepts :- Jurisprudence includes the analysis of legal concepts such as rights,
title, property, ownership, possession, obligations, acts, negligence, legal personality and
related issues. Although all these concepts are equally studied in the ordinary branches of law,
but since each of them functions in several different branches of law, jurisprudence tries to build
a more comprehensive picture of each concept as a whole.
iii) LEGAL THEORY :- Legal theory is concerned with law as it exists and functions in the
society and the manner in which law is created and enforced as also the influence of social
opinion and law on each other. It is therefore necessary that while analysing legal concepts, and
effort should be made to present them in the background of social developments and changing
economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE
It is often said that jurisprudence being an abstract and theoretical subject, is not of any
practical use. But it is not correct to say so. Its utility is as under :-
1. Salmond pointed out that jurisprudence has its own intrinsic interest like and other
subject of serious scholarship, likewise the writer on jurisprudence may be impelled to his
subject by its intrinsic interest. The legal researches on jurisprudence may well have their effect
on contemporary socio-political thought and at the same time may themselves be influenced by
these ideologies.
2. Jurisprudence also has its practical applicability. In other words it serves to render the
complexities of law more manageable and rational and in this way theory can help to improve
practice in the seats of law.
3. Jurisprudence has great educational value. The logical analysis of legal concepts widens
the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their
rigidity and formalism and trains them to concentrate or social realities and the functional
aspects of law. It is not the form of law but the social function of law which has relevance in
modern jurisprudence. For instance, a proper understanding of law of contract may perhaps
require some knowledge of economic and economic theory or a proper grasp of criminal law
may need some knowledge of criminology and psychiatry and perhaps also of sociology.
4. Commenting on the significance and utility of jurisprudence : Holland observed, “ the
ever renewed complexity of human relations call for an increasing complexity of legal details, till
a merely empirical knowledge of law becomes impossible.” Thus jurisprudence throws light on
the basic ideas and the fundamental principles of law in a given society. This why it has been
characterised as “The eye of law.”
5. Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the
laws passed by he legislature by providing the of interpretation.
6. The study of jurisprudence helps in rationalising the thinking the students and prepares
them for an upright civil life. The knowledge of law and legal precepts also helps them to face
every exigency of human affairs boldly and courageously.
7. Jurisprudence may also be helpful o legislators who play a crucial role in the process of
law-making. The study of jurisprudence may familiarise them with technicalities of law and legal
precepts thus making their job fairly easy as also interesting.
According to Dias the study of jurisprudence provides an opportunity for the lawyer to bring
theory and life into focus for it concerns human thought in relation to social existence. The law
should serve the purpose of social-engineering by preserving societal values and eliminating
conflicting interests of individuals in the society.
JURISPRUDENCE IS THE EYE OF LAW:- On account of importance of jurisprudence in the
field of law it is called, “The eye of Law”. The eyes are one of the most important parts of
human body. Almost all human activities and the movements of body are possible only through
them. Unless man can see anything properly, he cannot do any work. The reason of calling
jurisprudence the ‘ the eye of law’ is that jurisprudence functions for law in the same manner as
the eyes do in human body. For example- the interpretation of law is a very difficult task, It
cannot be done without the help of jurisprudence. ‘PATON’ in this connection says that,”
Jurisprudence is a particular method of study, not the law of one particular county but of the
general notions of law itself.’ Whenever any complicated problem regarding law like:-
1 How and when the law developed. 2 What is its object. 3 Whether the law was made by
people or it was due to the inspiration of some Divine force. 4 Whether the law is a command of
a sovereign or it is a result of gradual development of civilization in society. The main function of
jurisprudence is to study the origin of law, its development and its contribution towards society.
The matters to birth, marriages, death, succession etc., are equally controlled through laws. It is
the well known saying that, “ignorance of law is no excuse,” hence it is essential to know the
correct basic principles of law which are contained only in the jurisprudence. Law is also
connected with civil life. A person who obeys laws is known as a civilized citizen. A person who
does not obey law is punished. It is therefore necessary that all the people should have the
sound knowledge of law which is possible only with the help of jurisprudence. Therefore,
jurisprudence, having so much importance for the society, has rightly been called the eye of
law.
10 Judges are the makers of law not discovers of law. Do you agree with this view?
INTRODUTION:- There are two contrary theories regarding the question as to whether Judges
declare the existing law or make the law. There are two which are as under :-
1. Theory that judges declare the law or Declaratory Theory.
2. Theory that judges make the law or legislative theory. (Law making theory)
1. DECLARATORY THEORY :- The first theory is the declaratory theory as described by Hall
and Blackstone and they supported by Dr. carten also.
According to the declaratory theory no new law is created by the Judge, Courts of Justice do
not make law, their province is to ascertain and declare what the law is. Judges only discover
the existing laws.
Hale enunciates declaratory theory of precedents and contends that whilst Parliament alone
legislates in the strict sense the Judges only expound the law and their decisions are the best
evidence of what law is. The result of his theory is that the effect of the decision is retrospective
for it does not only declare what law is but what it always has been. Nevertheless as Maine has
pointed out once the Judgement has been declared and reported we start with a new train of
thought and frequently admit that the law has been modified.
According to Lord Esher, There is in fact no such hing as Judge-made law, for h judge do
not make the law, though they frequently have to apply the existing law to the circumstances as
to which it has not previously been authoritatively laid down that such law is applicable.”
Declaratory theory is based on the fiction that the English law is an existing something
which is only declared by the Judges. This theory is known as the theory of judicial precedent.
LAW MAKING THEORY
The second theory is that the Judges do not declare law but make the law in the sense of
manufacturing of creating entirely new law. Bentham and Austin, have opposed the traditional
view as a childish fiction and have declared that Judges are in fact the makers and fulfill a
function very similar to that of the legislature.
Lord Becon: The new point decided by the Judges is a direct contribution towards law-
making. Professor Dicey supported this view and gives example of English common law which
has been made by the judges which has been made by the judges through their judicial
pronouncements.
Prof. Gray : supports this law making theory and says that judges alone are the makers of
law. He discredits the declaratory theory.
Judges are without any query law-makers but their power of law making is not un-restricted. It
is strictly limited for instance they cannot over rule a statute where the statute clearly lays down
the law. The legislative powers are restricted to the facts of case before them.
According to Salmond : Who is strong support of this view says that he is evidently troubled in
mind as to the true position of precedent. He further says that both in law and in equity
declaratory theory altogether totally rejected.
Such cases which are not covered by existing laws the judicial decisions created new
notions and formulae new principles which were never contemplated earlier. Supreme court
over-ruled the Golak Nath decision in Keshwanand Bhari’s case and laid down a new basic
structure theory and in Golak nath case the new principle of prospective over-ruling was evolved
by Judges.
RECONCILAION OF THE TWO THEORIES
The above two views about making of law by judges are not exclusive of each other but they are
rather complementary. It will be seen that neither the purely declaratory theory nor the purely
legislative theory represents the whole truth. Judges develop the law but cannot be said to
legislate. The common law is not made but has grown and the more it changes the more it
remains the same thing.
The answer to the question whether the Judges make or discover law much
depends upon the nature of the particular legal system. In common law system it may be stated
that the Judges make law while in other countries where is law is codified the judges only
supplement the law. It is true that custom and statutes do not render the judges some super
fulvous knowledge.
11 Explain the phrase, “Law is social Engineering” as propounded by Roscoe Pound.
INTRODUCTION:- Roscoe Pound is considered to be the,” American Leader” in the field of
Sociological jurisprudence. He comes from Harvard Law School and had a great academic
favour. According to him,” the end of law should be to satisfy a maximum of wants with
minimum of friction.” He defined law as containing the rules, principles, conceptions and
standards of conduct and decision as also the precepts and doctrines of professional rules of
art. He considers law as a means of a developed technique and treats jurisprudence as ‘social
engineering’.
The main propositions of Roscoe Pound theory of Social Engineering are as under:-
i) POUND CONCENTRATES ON THE FUNCTIONAL ASPECT OF LAW:- Pound
concentrates more on the functional aspect of law, that is why some writers name has approach
as “ functional school” the law is an ordering of conduct so as to make the goods of existence
and the means of satisfying claims go round as far as possible with the least friction and waste.
ii) THE TASK OF LAW IS “SOCIAL ENGINEERING”:- He says, “for the purpose of
understanding of law of today. I am content with a picture of satisfying as much of the whole
body of human wants as we may with the least sacrifice. I am content to think of law as a social
institution to satisfy, social wants, the claims and demands involved in the existence of civilized
society.
iii) SOCIAL ENGNEERING MEANS A BALANCE BETWEEN HE COMPETING INTEREST
IN SOCIETY :- He lays down a method which a jurist should follow for ‘social engineering’. He
should study the actual social effects of legal institution and legal doctrines, study the means of
making legal rules effective sociological study in preparation of law-making, study of judicial
method, a sociological legal history and the importance of reasonable and just solutions of
individual cases.” He himself enumerates the various interests which are to be protected by the
law. He classifies them under three heads:
i. Private Interests (ii) Public Interests (iii) Social Interests.
PRIVATE INERESTS:- Such as interest of physical integrity, reputation, Freedom of volition and
freedom of conscience. They Are safe-guarded by law of crimes,
contracts.
PUBLIC INTERESTS:- Main public interests are preservation of the State, State as a guardian
of social interests such as Administ-Ration of trusts, charitable endowments, protection
of Natural environment, territorial waters, sea-shores, Regulation of
public employment and so on.
SOCIAL INTERESTS:- Preservation of peace, general health, preserving of Social institutions
such as religion, political and Economic institutions, general morals, promotes Human
personality, cultural and economic life.
Pound tackled he problem of interests in term as of balancing of individual and social interests.
It is through the instrumentality of law that these interest are sought to be balanced. Justice
Cardozo remarked that,” Pound attempted to emphasize the need for judicial awareness of the
social values and interests.” Roscoe Pound regarded law as a basic tool of social engineering.
How in India the society and law are acting and reacting upon each other can be adjudged from
the following enactments passed after India became Independent:-
a. The special Marriage Act 1954 2. The Hindu Marriage Act 1955 3. The Hindu succession
Act 1956 4. The Hindu Minority and guardianship Act 1956 5. The Hindu Adoptions and
Maintenance Act 1956 6. The Dowry Prohibition Act 1961 7. Child Marriage Restraint
(Amendment Act) 1978 8. The Consumer Protection Act 1986 9. The S.C & S.T.(Prevention of
Atrocities) Act 1989 10. Commission of Sati (Prevention) Act 1987 11. Bonded labour(Abolition)
Act- 1976
INTERESTS AS THE MAIN SUBJECT-MATTER OF LAW:- Pounds theory is that interests are
the main subject matter of law and the task of law is the satisfaction of human wants and
desires. It is the duty of law to make a valuation interests in other words to make a selection of
socially most valuable objectives and to secure them.
To concluding the theory, Pound says that the aim of ‘Social Engineering’ is to build
an efficient structure of the society as far as possible which involves he balancing of competing
interests.
CRITICISM AGAINST POUND’S THEORY :-
i. Engineering not a happy word : It suggests a mechanical application of the principles to
social needs but really the word engineering is used by Pound metaphorically to indicate the
problems which the law has to face.
ii. Classification of interests not useful: Freidmann doubts the value of classification of
interests and the value of such classification.
iii. Ihering & Bentham concludes the theory of Pound’s that, “such classifications greatly
helps to make legislature as well as the teacher and practitioner of law conscious of the
principles and values involved in any particular issue. It is an important aid in the linking of
principle and practice.”
POUND’S CONTRIBUTION
Social Engineering stands on a practical and firm ground. He points out the responsibility of the
lawyer, the judge and the jurists and gives a comprehensive picture of the scope and field of the
subject.
12 What do you mean legal personality and its different theories? Whether the following are
legal person :-
1. President of India 2. Council of Ministers 3. Company 4 Un-born child. 5. Animals.
INTRODUCTION:- Natural Persons are all human beings who are capable of rights and duties
in law, i.e. who have a status. Legal persons are those to whom law is recognised as a person.
It is either a thing or a mass of property or group of human beings to which law attributes
personality the law confers a legal status and who thus in the eye of law possess rights and
duties as a natural person. Person is of two types :- 1. Natural Person II. Legal Person
According to Gray, “A person is an entity to which rights and duties may attributed.”
According to Salmond, “ person is, any being to whom law regards a capable of rights and
duties.”
According to Paton, “Legal personality is a medium through which some such units are created
in whom rights can be vested.”
In the development of society, law developed and with the development of law the concept
of legal personality come into existence. In the ancient times there was no concept of legal
personality but as the society developed the person was recognised as the representative of the
State and a separate personality was given to him. In the due course of time corporation and
companies came into existence such companies and corporate were given the separate
personality so in this way these bodies are now called as legal persons.
There are the following two types of persons :-
i) NATURAL PERSONS ( HUMAN PERSONS):- All human beings are natural persons but
in ancient society the slaves were not recognised as natural persons. Similarly outlaid persons,
unsound persons were not natural persons. In Hindu Law, Manu has mentioned some persons
who were not recognised as natural persons i.e. Born child, deaf persons, sanyasi and those
who are living dead.
1. Unborn person: Unborn person is not a natural person because he is not in existence,
but a child in the womb is natural person because he bears the rights and duties under law.
Person in the womb can represent the position after birth. In IPC the child in the womb is
considered as a natural person as soon as any of his organ will come out from the womb.
2. If the pregnant lady gets the punishment of death sentence. She will be hanged only
after delivery.
3. ANIMALS:- In ancient time the animals were legal persons but in modern time animals
are not the legal persons but in law we find come cases in which some animals have some
rights and duties. Today also the protection of animals some laws have been made which give
rights to the animals. These laws prohibit people to kill them. In this theory the personality has
also been confirmed.
4. Dead Person:- In law dead person has no existence as the dead person has no
personality. But in certain cases they are considered as person in law. First if any person
defames the dead person and such defamation lowers the reputation of the family members of
the dead person, then a legal action be taken against the wrongdoer who defamed the dead
person. Secondly if any person defames the dead body of deceased person then such person
is liable for damages under law.
ii) LEGAL PERSONS:- Legal person are artificial or imaginary beings to whom law
attributes personality by way of fiction, i.e. law gives them rights and duties like of natural
persons, e.g. King of England has two personalities- first a human being second as head of
state, being head of state he is known as a legal person. Similarly he President of India and the
Governors of the states are legal persons.
CORPORATE PERSONALITY:- Main form of legal personality is the corporate personality. It is
of two kinds :-
1. Corporate sole: means a single body representing any state or any other object. It is
called series of the successive persons. The King of England or the President of India is the
corporate sole. They represent only one man in successive period. The post of corporate sole
remains always alive while the human beings who sit on the post may die.
2. Corporate Aggregate :- When law confers single personality to a group of person then it
is called corporate aggregate e.g. companies are registered according to law of societies or
according to law of land. These companies or corporations etc., are legal persons.
3. In the ancient time the Karta represented the whole Hindu family who was considered as
legal person. It is same as in Roman Society. It is adopted in the shape of Indian companies Act
1956. The advantages of the corporate personality because they represent an association of
persons as a single person which is helpful in business.
13 Lay down the essential features of the Historical school. Discuss the views of Society in this
regard. OR Discuss the philosophy of law as given by Sovging under Historical
School? OR Write critically note on the following Soveging (Volkgeist Theory).
INTRODUCTION:- Jurisprudence is a subject in which the definition nature and the sources of
law are studied various writers under various schools have defined law. Austin under Analytical
school says that law is the command of sovereign. He added only the law in the study of
jurisprudence. But under historical school Soviging says that law is the general consciousness
(Volkgeist) of the people. It means what the common people think or behave is the base of
law. Law shows the general nature of the common people. This theory of Volkgeist is bassed
on the historical method. Soveging is the father of it. According to Soveging, “ Law is the
General consciousness of he people.”
HISTORICAL SCHOOL
Historical School is a branch of Law, which studies law from the past history. It says that law is
based on the General Consciousness of people. The consciousness started from the very
beginning of the society. There was no person like sovereign for the creation of law.
The law in the ancient times was based mainly upon simple rules, regulation,
custom, usages conventions etc. These things were later on developed by the jurists and
lawyers. These things were later on converted into set form of law.
CAUSES OF COMMING OF THE HISTORICAL SCHOOL
The Historical school is just opposite to the Analytical school in 18th and 19th century,
the concept of individualism came into existence. Due to this concept the revolutions came like
French revolution, Russian revolution etc. At that time Soveging montasque, Barke, Hngo were
the writers who said that law is the general will of the people or law is based upon common
people and the feelings of the common people.
Law develops like the language and manners of the society. So law has a natural
character. Law has no universal application. It differs from society to society and state to
state. In the same way the languages differ from society to society and locality to locality.
Montasoque has said, “Law is the creation of climate, local situations and accidents.” According
to Hugo hag, “ Law develops like language and the manners of the society and it develops
according to suitable circumstances of the Society. The necessary thing is the acceptance and
observance by society.
According to Burke, “ Law is the product of the General process. In this sense it is dynamic
organ which changes and develops according to the suitable circumstances of society.
SOVEGING :- Soveging is considered as the main expounder or supporter of the
historical school. He has given the Volkgeist theory. According to this theory, law is based upon
the general will or free will of common people. He says that law grows with the growth of nations
increases with it and dies with the dissolution of the nations. In this way law is national
character. Consciousness of people. In other words, according to this theory law is based will or
free will of common people. He says that law grows with the growth of nation. A law which is
suitable to one society may not be suitable to other society. In this way law has no universal
application because it based upon the local conditions local situations, local circumstances,
local customs, elements etc. Al these things effect law and make it suitable to the society.
The main features of the Soveging theory is :-
1. Law has a national character.
2. Law is based upon the national conditions, situations, circumstances, custom etc.
3. Law is pre historic: means law is found and is not made, the jurists and the lawyers
make it into set form.
4. Law develops like language and manner of the society. In ancient society law was not in
a natural stage or no in a set form. Later on with the development of the society the
requirements and the necessities of the society increased. Due to this it was necessary to
mould law in a set form.
IMPORTANCE OF CUSTOMS
According to Soveging customs are more important than legislation because customs come
before legislation. In other words the customs are the base of legislation.
CRITICISM OF SOVEGING’s THEORY
Savigny’s theory has been criticised on the following grounds:-
1. Inconsistency in the Theory :- Saveging asserted that the origin of law is in the popular
consciousness, and on the other hand, argued that some of the principles of Roman law were of
universal application. Thus, it is a clear cut inconsistency in his ideas.
2. ‘Volksgeist’ not the Exclusive Sources of law :- There are many technical rules which
never existed in nor has any connection with popular consciousness.
3. Customs not Always Based on Popular Consciousness:- Many customs are adopted due
to imitation and not on the ground of their righteousness. Sometimes customs completely
opposed to each other exist in different parts of the same country which cannot be said to be
reflecting the spirit of the whole community.
4. Savigny Ignored Other Factors That Influence Law:- The law relating to trade unions is
an outcome of a long and violent struggle between conflicting interests within a society.
5. Many Things Unexplained :- Legal developments in various countries show some
uniformity to which he paid no heed. i.e.
6. What is national and what is universal.
7. Juristic Pessimism:- Soveging encouraged juristic pessimism. Legislation must accord
with popular consciousness. Such a view will not find favour in modern times. No legal system
would like to make compromise with abuses. People are accustomed to it.
CONCLUSION
From the facts mentioned above we have gone behind to see the history of the society to check
that what was the position of law in the ancient time. How and in what form law was prevailing
in the society? To find the solution of the questions the supporter of Historical school found that
law is the general consciousness of the common people or it is the free will of common people
on which law developed and converted into a set of form of law.
14 Define Precedents? Lay down the importance of the precedents as the source of law. In
what sense they are binding? Do the judges make law?
INRODUCTION:- Precedents literally means previous judicial decision. The decisions of the
higher courts are binding on the lower courts. The binding force of decision is called precedent.
The precedents play an important role in the development of law. It is the second important
source of law. First source is customs and the third source is legislation. Sometimes act may be
insufficient for the case or there may be an vacuum or any thing missing in the act. Under these
circumstances the court can apply their own mind. These independent decisions becomes
precedents which are followed later on by the same & Lower courts. This method of decision is
also called as Judge made law. The English and American law is mostly based upon the
precedents. In India Art.141 of Indian Constitution says that the decision of the higher courts
shall be binding upon the lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a decision of a court which is also called
judicial decision. According to the Oxford University, “Precedents means the previous decision
case given by a court according to rules.” Various writers have given the definition of precedents
is conduct of court adopted by the lower court in similar facts and in similar circumstances in a
case. Particularly the precedents means the Judge made law. When the court gives its own
ideas for creating new rules. England, America and China also follow the previous decisions as
the source of law but the continent countries like Germany, Japan does not accept the previous
decisions as the source of law. The method of taking precedents as source of law is called
inductive method, while the method of continental countries not following previous decisions of
the court is called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very important source of Law. They play an
important role in the development of law, so they have certain advantages as:
1. Precedents show true respect to the ancestors means by adopting the previous decision
of the higher court to decide the present case, it is a kind of respect to elders.
2. Precedents are suitable to the present situation means after some times the
circumstances of the society can change with the change of time so the precedents they are
more suitable and fit for the present time and circumstances.
3. Precedents are based on customs means the law in the form of act which based upon
customs. Court interprets the customs while interpreting any act.
4. Precedents are convenient and easy to follow because they are available in the form of
written reports.
5. Precedents bring certainty in law, once decision is given in a case there would be no
need to repeat all precedents in any other case if it resembles to the former case.
6. Precedents are the best guide for the Judges: They play an important role in the
judiciary because the precedents are the guide lines for the courts.
DEMERITS OF THE PROCEDENTS:- lthough the demerits are very few but these are as
under :-
i) The decisions are given by the human beings while performing the duties as judge, his
decision may not be suitable to all persons who have different mind and thinking. This will be a
bad effect on Judiciary.
ii) Sometimes the decisions of the higher courts contradictory to each other. It becomes
harder to another judge to apply the same verdicts as a precedents of higher court
iii) Sometimes the higher courts give a wrong decision and over pass the important factors
of the case due to one reason or the others.
PRECEDENTS ARE BINDING:- The precedents is an important source of law. It is available in
the form of judicial decisions. Now the question arises that in what sense and when the
precedents are binding o follow. For the answer of this query different views have been given by
the various writers and jurists. No doubts the precedents is not binding like warrant issued by a
court of law. It means precedent can be over ruled if they are not right or appropriable to the
case to be decided but warrant has to be followed by all to whom it is applicable.
It is not necessary that in the case which is to be decided the circumstances and the facts must
be the same as in resembling case. If the facts and the circumstances of the cases are
materially similar then the precedents or previous judicial decision is applied in the later cases
and are applied only in the form of ‘ratio decidendi’ of previous cases. There are two parts of it :-
i) Ratio-decidendi:- means reasons which leads the court to reach the decision. It is the
main part of the case in judgement and the ratio decidendi of the decision is binding in the form
of precedent.
ii) Obits decidendi:-It is also a part of the decision which is irrelevant to the facts and
circumstances of the case. The judge takes into consideration the social conditions, morality,
principal of natural justice that is why the Judges play an important role in the development of
legal system.
DIFFERENCE BETWEEN CUSTOM & PRECEDENTS
CUSTOMS PRECEDENTS
Custom is primary source of law.
Precedents are the secondary source of law.
Custom is given by people in general. Precedents are given by courts.
Custom is conduct adopted by people of society. Precedents is itself complete certain,
reasonable given by a competent court of the country.
Custom is based upon the reasoning of common people of the society.
Precedents are based upon the reasoning of a individual Judge or very few judges.
Customs have more value then precedents and cannot be ignored. It can be ignored if it
gives un-justice.
CONCLUSION
No doubt Duguit was a sociologist because he gave a lot of development to society. The social
solidarity itself contains the welfare of the people. Duguit said that law should be according to
the social solidarity. Here he discards natural principal but the theory of the social solidarity itself
is based upon natural law, which demands that the people should served properly according to
their needs. In this way Duguit put out the natural law principal from the door and accepted
through the window.
However the contribution of Duguit is accepted by many writers and some of them also
adopted this theory.
17 Define Ownership. Discuss the various kinds of ownership. Distinguish between possession
and ownership.
INTRODUCTION: Ownership is linked with possession. Possession is the first stage of
ownership. It means for ownership possession is necessary. Possession and ownership both
are two sides of the same coin and one cannot exist without the other.
Ownership gives the full right over the thing. Ownership is ultimate and final right for disposing
the property. It means to transfer that property in any way. Ownership is a relation ship
between the person and the thing. For ownership there must be a thing and the owner of
thing. The concept of ownership was absent in the ancient society. There was also no concept
of possession too. Slowly and slowly as the society developed the concept of possession also
developed. The idea of ownership came into existence. So this way after the progress of the
concept of ownership the person became the full owner of his property.
DEFIN ITION :- Before to define the ownership we have to discuss the various kinds of law :-
Roman Law :- As evident from history that the Roman Law was the first law in the world. It is
considered the ancient law. All concepts of law begin from the period of Roman society. Under
the Roman Law the concept of ownership is defined in the form of dominion that means to have
the right control of a thing. The concept of ownership developed in the form of a right over the
thing. Dominion is distinguished from possession. Possession means to have possession over
a thing but dominos means to have a right over the thing.
HINDU LAW :- Hindu Law is also considered as the most ancient law in the world. In Hindu
law the concept of ownership also has been discussed. In Hindu Law ownership is said a ,
“According to Hindu Law ownership means a relationship between person and a thing. Person
is called owner and a thing is called property. Means a property which is in the control of a
person is his property.
VIEWS OF MODERN & WESTERN JURISTS
The western jurists like Austin, Holland and Salmond defined the concept of ownership.
Austin :- According to him ownership is the relationship which exists in between the person and
the thing.” This definition resembles with the definition under Hindu Law. Austin says that in
ownership a person has the following relations with the thing.
1.Indefinite Use :- It means to use that thing in any way whether to use it for agriculture or for
industry, residence but there is a restriction that one cannot use one’s property in such a way
which destructive in the living of others.
2.Un-restricted power of dispose:- Means to transfer that thing or property according to his
choice. He can sale or to mortgage even to give on lease or gift to anybody. But under art.19(2)
of the Constitution reasonable restrictions can be imposed by the Govt., in the interest of public
policies.
3.Un-limited duration of time :- means the right of transfer of his property will remain always in
the name of owner. After his death it will go to his heirs so there is no time limits.
4.Domination :- It means to have control over the thing. For this purpose both elements of
possession corpus and animus should be there. If the conditions are there between person and
the thing and then the person is owner of that thing.
According to Holland: He defined the ownership as a plenary control of a person over a thing.
The definition also contains the following conditions :-
1.Possession 2. Enjoyment 3. Disposal.
According to Salmond :- Salmond defines ownership as a relationship between person and the
right. Right means to have a thing under possession. Thing always represents physical objects.
But right always represents a thing which is not in physical existence like copy right and
allowances are always thing which are called property. And which are not in physical existence.
Salmond has included all those right which are property in the concept of ownership. In view of
the above it is learnt that Austin and Holland definitions are not complete. But salmond is
completely perfect in his definition.
KINDS OF OWNERSHIP
There are various kinds of ownership which are as under :-
1. Corporal and Incorporeal ownership: Corporeal and incorporeal ownership also called
material and immaterial ownership. Corporeal ownership is the ownership of a material object
and incorporeal ownership is the ownership of a right. Ownership of a house, a table or a
machine is corporeal ownership. Ownership of copyright a patent or a trade mark is incorporeal
ownership.
2. Sole and co-ownership:- The general principal of ownership is that vested in one person
only. But some times it vested in many persons in other words two or more person have the
right of ownership. If only one person have right of ownership that known as sole ownership and
where two or more persons have the right of ownership then know as co-ownership.
3. Vested and contingent ownership:- Ownership is either vested or contingent it is vested
ownership when the title of the owner is already perfect. It is contingent ownership when the title
of the ownership is yet imperfect.
4. Absolute and Limited ownership:- means owner is one in whom are vested all the rights over
a thing to the exclusion of all or when a person has an absolute right over his property known as
absolute ownership.
When there are limitations on the user duration or disposal of rights of ownership the ownership
is limited ownership.
5. Legal and Equitable ownership:- Legal ownership is that which has its origin in the rules of
common law. Equitable ownership is that which proceeds from the rules of equity. Legal right
may be enforced in rem but equitable rights are enforced in personam.
CONCLUSION
The ownership is a relationship between person and the right. These rights include the right of
possession enjoyment and disposal of the property. If all conditions are there then it is called
Ownership.
5.Possession dominion corpus and animus are necessary. 5.Ownership they are not necessary
because law gives full rights.
6.Transfer of possession is comparatively easier.
7. Possession is nine points of law. 6.Ownership most of the cases involves a technical
process i.e. conveyance deed etc.
7.Ownership always tries to realize itself in possession i.e. complete thing.
18 Define Custom and essentials of a valid custom. Discuss its importance as a source of law
and also compare with precedents.
INTRODUCTION: Custom is a conduct followed by persons in the society. Custom is
considered as the most ancient and most important source of law. Source means origin of a
thing. It is also considered that law basically comes out from customs. In the past customs were
prevailing for the control over the society.
Austin was the first person who discarded the value of the custom. But the historical
school again gave the importance to custom. The sociological school also gives importance to
law with relation to society.
In the modern times the precedents i.e. Judge made law and legislation have become
over powered to that of customs. As in a case of Maduri v/s Motu Ram Linga. It was held that
even custom power over the state.
VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE OF LAW.
The followings are the systems which recognized custom as a source of law :
1.Romal Law :- Roman Law is known to be the oldest one in the world. This law is mainly
based upon customs of the society. Those customs which were reasonable continued them as
law by the Roman jurists.
2.Hindu Law :- Hindu law is also to be considered as the most ancient law. His sources are
Vedas, Sutras and Smiriies and these were mainly based on customs. All personal laws of
Hindu are based upon custom that is why Lord Warren Hastings and Lord Cornwallis did not
attack on customs of Indians.
Manu said One should follow the given path of their ancestors. This was nothing but the
reorganization of customs.
3.Mohammedan:- Particularly ignored customs for the purpose of law. During th Muslim period
in India their customs were protected by State. The British rulers in India also protected
customs and personal laws which were based upon customs. The traditions which were not
opposed by the prophet Mohammedan were recognized as law. In this way we can say that
customs in Mohammedan law also played an important role.
4. English Law :- Which is known as common law and in the shape of un-written and based
upon customs and conventions. Customs which were reasonable and not against the public
policies were recognized as law under English Law.
According to Pollock, The common Law is customary law. Black stol common includes
written law and un-written law.” The written law is based upon the general customs. In this way
English law also gave importance to the customs as a source of law.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to the nation and are applicable on the
country’s people.
2. Local Customs :- Those customs which are related with a particular locality.
3. Family Customs :- Those customs which are related with a family and have application on a
particular family.
4. Conventional Customs :- These customs based upon conventions e.g. a bigger part of
English Law based on customs and conventions.
ESSENTIALS OF CUSTOMS
1. Antiquity :- It means oldness of the customs. The customs must be ancient. There is no limit
of time for the antiquity of custom. In India there is no fixation of such time limit.
2. Reasonable :- The customs must be reasonable. It should not be un-reasonable and against
the public feelings.
3. Followed :- Customs must be followed by the society. There should be no contradiction in
observing customs.
4. Continuity :- Customs must be continuing from the time it was recognized as law. There
should not be any break or interruption. If there is break for sometimes it does not mean that
the right thing has been lost.
5. Certainty :- Customs must be certain in its nature.
6. Consistency :- There should not any confliction for its reorganization as a law.
7. Peaceful enjoyment :- Custom must be enjoyed peacefully for a long time without an
disturbances.
8. Immorality:- Customs should not be against the morality.
9. Public Policy:- It must not be against the public policies or against the will of people.
10. Not against the State of Law:- Customs should not over-ride the legislation . It should not be
against the law of the land.
WHEN DOES A CUSTOM BECOME LAW.
ANALYTICAL VIEW:- Austin and Gray are the supporters of analytical school. They say that a
custom becomes law when it is recognized by the sovereign in the sense of positive law only.
It means that if a custom has been accepted or adopted or recognized by the sovereign
then it will become a law otherwise there will be no value of the custom in judicial system of the
society.
HISTORICAL SCHOOL:- Sovereign as the supporter of Historical school says that custom is a
main source or base of law He says that “ consciousness of the volkgiest is the main source of
law.”
Custom is superior to Judge made law or legislation. The legislation while making a
law recognizes the customs of the society. The courts also while giving the decisions
recognized the customs prevailing in the society.
CONCLUSION
Custom occupies an important place as a source of law even to these days because most of the
material contents of developed system of law have been drawn from ancient customs. Custom
is one of most fruitful sources of law. According to Analytical school a custom when recognized
by State or sovereign becomes law. According to Historical school when state or courts make
law they give importance to the customs. So both of the view are combining to each other and
are correct for a custom as source of law.
19 Rights and duties are co-relative. Discuss. OR Distinguish between claims liberties powers
and immunities also explain the correlative of each.
Introduction:- Right and duties are the very important element of law. The term ‘ Right’ has
various meanings such as correct, opposite of left, opposite of wrong, fair, just and such like
other expression etc. But in legal sense a right is a legally permissible and protected action and
interest of a man group or state.
Definition
According to Austin :- “Right is a standard of permitted action within a certain sphere. He further
define right is a party has a right when others are bounds to obligesed by law to do or not to do
any act.”
According to Salmond : “ It is an interest recognized and protected by the rule of justice / law.”
According to Gray:- “Right is not an interest itself but it is the means by which the enjoyment of
an interest in secure.”
According to Prof. Allen:- “ The essence of right not a legal guarantee in itself but a legally
guaranteed power to realized an interest.”
ELEMENTS OF RIGHTS
1. Subject:- The subject of a right is concerned with the person legal and artificial or a group
who legally is entitled to seek the privilege and benefit of against other. In other words the
subject is that the person whom the right is vest.
2. Content:- This is the subject matter of the right along-with the nature and limits of that right.
3. The person of Incidence :- It means that the person upon whom falls the corrective duty.
OBJECT:- The object of the right may be material or immaterial determinate or indeterminate.
CHARACTERSTICS OF RIGHTS
1. RIGHT is a general o specific type of claim, interest or such like expression of the people in a
State.
2. The right is duly recognized and approved by the State through its agencies.
3. A legal right is expressed a deep correlation with a corresponding duty, liability or disability on
the part of those against whom such right is conferred.
4. A right may has its independent existence and type of assemblies with other rights.
5. Basic philosophy or the fundamental concept of right remains permanent but with the time
being it is subjected to incorporate the allied changed in it.
6. The realization and scope of a legal right depends upon the type of society and the nature of
interest.
THEORIES OF RIGHTS:- There are two main theories of legal right:-
1. Will theory:- The will theory says that the purpose of law is to grant the individual i.e. self
expression or positive declaration. Therefore right emerges from the human will. The definition
of right given by Austin and Holland, “ that the will is the main elements of a right.” Pollock says,
“ that right in term of will.”
2. The Interest Theory:- Interest is the basis of right. A great german jurists defines about the
legal right as, “ A legally protected Interest.” According to him the basis of right is “Interest” and
not “will”.
The definition of law is in term of ‘purpose’ that law has always a purpose. In case of right
the purpose of law is to protect certain interest and not the wills or the assertions of individuals.
These interests are not created by the State but they exist in the life of the community itself.
TYPES OF RIGHTS
1. Primary and secondary Right: They are known by Antecedent and remedial rights names
also.
2. Perfect and imperfect Right: Means which has a correlative positive duty.
3. Negative and Positive Right:-Positive means related to duty whereas negative means not
related to duty.
4. Right in Rem & Personam:
5. Right is repropria and Right is Re-aliena.
6. Vested and contingent right.
7. Propriatory and personal Right.
8. Equitable and legal right.
Duty
Introduction:- The term duty may be used in various form as an obligation, as responsibility and
accountability. There are some scolers who define Duty as following:-
Definitions of Duty:- According to Gray, Duty is the act of or forbearance which an organized
society used to impose on people through state in order to protect the legal right of
other. According to Rose Duty is the Pre-dicament of person whose act are liable to be control
with the assistance of the State. As per Hoffield The duty is the correlative of Right.
Classification of Duties:- Duty classified into two categories. There are as follows:-
Duties
1. Positive and Negative Duty:- A positive duty implies some act on the part of person on whom
it is imposed. Negative duty implies some forbearance on the part of the person on whom it is
imposed.
2. Primary and Secondary duty:- A primary duty is that which exists perse and independent of
other duty. A secondary duty is that duty whose purpose to enforce some other duty.
Essentials of duty:- There are following essential of duty:-
a. It may be dependent and independent.
b. It consists an obligation on the part of someone and confirm a privilege upon other.
c. The concept of duty is affirmed and protected by the law of the land where it exist.
d. The concept of duties is a changing process which arises from time to time, place to
place and circumstances to circumstances.
e. Duty in most of the cases creates an absence of right against some person.
f. Duty may be fundamental, legal or moral in character.
Relation between Right and Duties:- The following objects describes the correlation between
right and duties:-
i. A right is indispensible without any duty.
ii. A duty and right has separate and independent existence.
iii. A right procreates duty and vice-versa.
OR Your choice
Even though right and duties are opposite points but there is a great relation between two
relations. The right and duties has a relation of Father and Child, Husband and Wife because
there is no father without child and no wife without husband. So right and duties cannot be
separated form each other.
Right/Claim Liberty or privilege Power Immunity
Duty No claim Liability Disliability
(Jural opposites) (Jural correlative)
Conclusion:- Right and duties are correlative of elements of each other. There is no right without
duty and there is no duty without right. These are recognized by law for maintaining the society
very well.
Wesley Hofeld, a Harvard law professor in the early part of the 20th Century,
developed an analytical framework for understanding interests in property.
Hohfeld’s eight terms are arranged in two tables of 'correlatives' and 'opposites' that
structure the internal relationships among the different fundamental legal rights.
JURAL OPPOSITES
"Correlatives" signifies that these interests exist on opposing sides of a pair of persons
involved in a legal relationship. If someone has a right, it exists with respect to
someone else who has a duty. If someone has a privilege, it exists with respect to
someone else who has no-right. If someone has a power, it exists with respect to
someone else who has a liability. If someone has an immunity, it exists with respect to
someone else who has a disability.
A right can be enforced by a lawsuit against the person who has the correlative duty.
A privilege negates that right and duty, and typically would be asserted as an
affirmative defense in the lawsuit. A power is the capacity to create or change a legal
relationship. For example, when someone make an offer of a contract, that gives the
offerree the power to create a contract by accepting the offer (or not). If the power to
create the contract is exercised, then both parties have rights and duties with respect to
each other. Courts have power, only if plaintiffs or prosecutors exercise their power to
commence a lawsuit. Sovereign states are immune because courts lack power over
them, in which case courts are said to have a disability with respect to sovereigns.
If I "own" property, it means that I have various rights with respect to the thing
constituting my property--the "bundle" of sticks or rights. I probably have the right to
exclude and everyone else in the world has a correlative duty not to use my property.
Some people may have a privilege, however, as to fly over it. I also have power with
respect to my property because I can create rights in others, as by transfering some or
all of the property to them, as by creating an easement, which gives the grantee certain
rights vis-a-vis others and certain rights and privileges vis-a-vis me.
20 Define law as an instrument of social change. What special changes have been brought out
by law?”
INTRODUCTION:- Law as a command as it introduces subjective considerations whereas the
legal theory is objective. Notion of justice as an essential of law because many laws though not
just may still continue as law. Science as system of knowledge or a totality of cognitions
systematically arranged according to logical principles. The laws of natural science are capable
of being accurately described determined and discovered. A law is valid because it derives its
legal authority form the legislative body and the legislative body its own turn drives its authority
from Constitution of India. The aim of law as of any science is to reduce chaos and multiplicity to
unity.
According to Kelson, law is normative science but law norms may be distinguished from
science.
Definition of Law:- while emphasising Volksgeist as the essence of law, Savigny justified the
adoption of Roman Law in the texture of German Law which was more or less defused in it. Law
has unconscious organic growth, it found and not artificially made. Law is not universal in
nature. But like a language it varies with the people time and need of the community. With the
growing complexity of law the popular consciousness as represented by lawyers who are
nothing but the mouth peace of the Consciousness.
Law as an instrument of Social Change:- The following are the elements which have been
helping the law to be an instrument who bring the social changes:-
1. A social Utilitarian:- The system develops aspects of Austinian positivism and combines
them with principles of Utilitarianism as established and developed.
2. Law is the result of Constant struggle:- According to Ihering the development of law like
its origin is neither spontaneous nor peace full. It is the result of constant struggle with a view to
attain peace and order. Law is the guarantee of the conditions of life of society.
3. Law is to serve for social purpose:- As a result of social changes comes through law that
is social purposes comes in conflict with the duty of the State is to protect and further social
purposes to suppress those individual purposes which clash with it. Therefore, law is coercion
organised in a set form by the State.
4. Law protects Social Interest:- Law is a such type of instrument which protects the social
interest of the people. According to Bentam it is the persuit the pleasure and avoidance of pain.
5. Law is to found in social facts:- AS per Ehrlich, That the law of community is to be found
in social facts and not in formal sources of law. He says at present as well as any other time the
centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial
decision but it lies in society itself. It is a social changes.
6. Living law is the fact that govern social life:- The essential body of legal rules is always
based upon the social facts of law and the facts of law which underline all law are usage,
domination, possession and declaration of will .
7. Law according to the requirement of Society:- It means that law in a society should be
made and administered with the utmost regard to its necessity.
8. Law also to serve this and:- Law is the rule which men possess not by virtue of any
higher principle whatever, good, interest or happiness but by virtue and perforce of the facts
because they live in society and can live in society. This is because of to use the law as an
instrument which brought the Social Changes.
Conclusion:- The contribution of law in the social changes is a great and its approach is more
scientific and comprehensive. The study of law in social context and emphasizes its close
relation with the life of society.