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 CONTENTS
UNIT-I GENERAL
Definition of Jurisprudence
Nature and Scope of Jurisprudence
Kinds of Law
Sources of Law
Important Questions

UNIT- II SCHOOLS OF JURISPRUDENCE - I

Analytical Positivism School
Historical School
Natural Law School
Social Contract Theory (Hegel, Kant)
Important Questions

UNIT- III SCHOOLS OF JURISPRUDENCE - II

Sociological School
Legal Realism
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Economic Interpretation of Laws

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Social and Economic Justice

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Important Questions

UNIT- IV LEGAL CONCEPTS - I

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Administration of Justice
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Theories of Punishment

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Justice (Meaning and Kinds)

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Legal Rights and Duties

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Important Questions

UN IT-V
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LEGAL CONCEPTS - II
Possession
Ownership
Legal Personality
Liability
Important Questions
Suggested Readings
 UNIT - I
GENERAL
DEFINITION OF JURISPRUDENCE

The English word "Jurisprudence" has been taken from a Latin word "Jurisprudentia", which consists of two
words, 'Juris' and 'prudentia'. 'Juris' means law and 'Prudentia' means knowledge. Jurisprudence,

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therefore, literally means knowledge of law and its application.

It is difficult to give a singular definition of the term. Since the growth and development of law in different
countries has been under different social and political conditions, the different jurists have given different

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definitions according to their own notion of the subject-matter and so it is not possible to give a universal and
uniform definition of Jurisprudence. So the different jurists have defined this term in different ways-

Ulpian: According to Ulpian "Jurisprudence is the knowledge of things human and divine, the science of the

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just and unjust". The definition given by Ulpian is wide and broad enough because it includes the term

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'Dharma' under Hindu Jurisprudence. It also covers the province of religion, ethics and philosophy.

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Criticism: The above definition is wide and broad enough because it includes the term 'Dharma' under
Hindu Jurisprudence. It also covers the province of religion, ethics and philosophy. The modern
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jurisprudence does not study the spiritual salvation. It is now-a-days confined only to what Hindu jurists

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described as 'Vyavahara' which means those rules that determines the judicial proceedings or
controversies.
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Prof. Gray: According to Prof. Gray "Jurisprudence is the science of law, the statement and systematic

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arrangement of the rules followed by the courts and the principles involved in those rules." Prof. Gray is of

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the opinion that jurisprudence deals with that kind of law which consists of rules enforced by courts while
administering justice. In other words, the laws of the jurists deal with man and seek to regulate external

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human conduct in the society. It does not concern itself with the inner beliefs of man imposed in religious
laws, which derive their authority from superhuman source which we call 'God'. The sanction for their
enforcement is spiritual reward or curse according to man's deeds.

Holland: According to Holland "Jurisprudence is the formal science of positive law." It is wrongly applied to
actual systems of law, or to current views of laws, or to suggestions for its amendment, but is the name of a
science. The science is a formal, or analytical, rather than a material one. It is the science of actual or
positive law. The essential ingredients of his definition of jurisprudence are as under-

1. Formal
2. Science
3. Positive Law.

Holland's definition of jurisprudence has been criticized by various jurists like Gray Dr. Jenks and Prof.
Platt.

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According to Gray "Jurisprudence is, in truth, no more a formal science than physiology, so the acts and
forbearances of men and the events which happen to them are the subject-matter of jurisprudence and
physiology could as well dispense with the former as jurisprudence with the latter."

Salmond: Salmond has defined jurisprudence in two different senses-

1. In Wider (Generic) Sense: According to Salmond, "Jurisprudence in wider sense means the
science of civil law." Salmond says that in a generic and primary sense jurisprudence includes the entire
body of legal doctrine. Since jurisprudence is the knowledge of law, from this point of view it includes the
entire book of laws.

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2. Narrow (Specific) Sense: Salmond distinguishes jurisprudence in its generic sense, as including
the entire body of legal doctrine, from jurisprudence in a more specific sense, in which it means a
particular department of such doctrine exclusively. He says that in its limited significance it may be
called theoretical or general jurisprudence to distinguish it from the more practical and special

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departments of legal study. In this sense "Jurisprudence is the science of the first principles of civil law."
The words which are used by Salmond in his definitions may be explained as under-

1. Law: According to Salmond, "Law is the body of principles recognised and applied by the state in

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the administration of justice."

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2. Civil Law: The term 'civil law' is derived from the Latin word "Civitas" which means State. Thus, civil

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law means law made by state. It means the law of the land as opposed to other bodies of rules to which
the name of law has been extended by analogy.
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3.

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Science: According to Salmond, if we use the term science in its widest permissible sense, as
including the systematized knowledge of any subject of intellectual inquiry, jurisprudence may be
defined as the science of civil law. It is a science as distinguished from arts and indicates in its widest
sense all those subjects which directly or indirectly treat of the science of law. Salmond says that as the

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'science of law' there may be three kinds of jurisprudence-

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a. Expository or systematic jurisprudence, which deals with the contents of an actual legal system, as

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existing at any time whether past or present.

b. Legal history, which is concerned with the legal system in its process of historical development.
c. The science of legislation, the purpose of which is to set forth law as it ought to be. It deals with the
ideal future of the legal system and the purpose which it may serve.

Austin: According to Austin "Jurisprudence is the Philosophy of Positive Law." He was the first jurist to
make jurisprudence as a science. By the term "Positive Law" he means 'jus positivum', that is law laid down
by a political superior for commanding obedience from his subjects.

Austin divides jurisprudence into two parts, namely-

(i) General jurisprudence; and
(ii) Particular jurisprudence.

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By "General jurisprudence", he meant 'the science concerned with exposition of the principles of nations
and distinctions which are common to all the systems of law' whereas Particular Jurisprudence consisted of
the science of any such system of positive law as now obtains or once actually obtained in specifically
determined nation.

Allen: According to Dr. Allen "Jurisprudence is the scientific synthesis of the essential principles of law".

Paton: According to Paton "Jurisprudence is a particular method of the study not of the law of one particular
country but of the general notions of law itself." Paton is of the opinion that jurisprudence studies the basic
or fundamental principles or general notions of law itself.

Conclusion: On the basis of the above description we can say that Salmond's statement that

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'jurisprudence is the science of the first principles, of civil law', appears to be more sound than any other
definitions because in fact we study the basic principles of law in jurisprudence and not the law of any
particular country.

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NATURE AND SCOPE OF JURISPRUDENCE

Nature: Jurisprudence in its nature is entirely a different subject from other social sciences. The reason for
this is that it is not codified but a growing and dynamic subject having no limitation of itself. Every jurist does

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not base his study on the rules made but tries to understand their utility after due deliberation. So it can be

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said that Jurisprudence has no limited scope being a growing subject. There is a difference of opinion about

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the nature of jurisprudence. It is called both Art and Science. But to call it science would be more proper and

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useful. The reason for this is that just as in science we draw conclusions after making a systematic study by
inventing new methods, Jurisprudence is concerned with the fundamental principles of law and systematic
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and scientific study of their methods.

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Scope: Jurisprudence includes all concepts of human order and conduct in State and Society. According to

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Justice P.B. Mukherjee, "Jurisprudence is both an intellectual and idealistic abstraction as well as

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behavioural study of man in society. It includes political, social, economic and cultural ideas. It covers the

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study of man in relation to State and Society." Salmond has also opined that "In jurisprudence we are not

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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

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system." This makes the distinction between law and Jurisprudence amply clear. Thus, whereas in law we
look for the rules relevant to the given situation, in jurisprudence we ask what is for a rule to be a legal rule,
and what distinguishes law from morality, etiquette and other related phenomenon. 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 contents of jurisprudence are-

1. 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. Therefore, it obviously
forms the contents of jurisprudence. Subject such as custom, legislation, precedent as a source 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.

2. Legal Concepts: Jurisprudence includes the analysis of legal concepts such as rights, titles,

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 property, ownership, possession, obligations, acts, negligence, legal personality and the related
issues. The study of these abstract legal concepts furnishes a background for better understanding of
(aw in its various forms.

3. 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.

Utility I Importance of Jurisprudence: Salmond opines that jurisprudence has its own intrinsic interest
like any other subject of serious scholarship. Just as a mathematician investigates the number theory not
with the aim of seeing his findings put to practical use but by reason of the fascination which it holds for him,
likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest. The legal

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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.

Practical Applicability: Jurisprudence also has its practical applicability. It seeks to rationalize the

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concepts of law which enables us to solve the different problems involving intricateness of law. 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.

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Educational Value: Jurisprudence has great educational value. The logical analysis of legal concepts

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widens the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their

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rigidity and formalism and trains them to concentrate or social realities and the functional aspects of law. It is

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not the form of law but the social function of law which has relevance in modern jurisprudence. Law has to
take the needs of society and also of the advances in related and relevant disciplines such as sociology,
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economics, philosophy etc. The proper understanding of law of contract may perhaps require some

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knowledge of economics and economic theory or a proper grasp of criminal law may need some knowledge
of criminology and perhaps also of sociology.
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Holland: Commenting on the significance and utility of jurisprudence, Holland observed, "The ever

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renewed complexity of human relations calls for an increasing complexity of legal details, till a merely

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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 is why it has been characterized as "the eye of law"

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by some jurists.

Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the laws passed by the
legislatures by providing the rules of interpretation. It also furnishes them an opportunity to pinpoint the
lacunae, short-comings and defects in the laws framed by the legislature and remedy them through their
judicial interpretation.

The study of jurisprudence helps in rationalizing the thinking of 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.

Jurisprudence may also be helpful to legislators who playa crucial role in the process of law-making. The
study of jurisprudence may familiarize them with technicalities of law and legal precepts thus making their
job fairly easy as also interesting. The utility of jurisprudence should be tested in the light of its functional
role and in the context of the prevailing socio-economic and political philosophies of the time, place and

4
circumstances. 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 the importance of jurisprudence in the field of law is
called "the eye of law". The eyes are one of the most important parts of human body. Almonds all human
activities and the movements of body are possible only through them. Unless man can see things properly,
he cannot do any work. The reason of calling jurisprudence the 'eye of law' is that jurisprudence functions
for law in the same manner as the eyes do in human body.

The main function of jurisprudence is to study the origin of law, its development and its contribution towards
society. Law is the only nearest and important aspect in the absence of which the existence of a peaceful
and organised society cannot be imagined. Laws are the basis of all nation-activities. The proper existence

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of State is in obedience of personal rights and liabilities of people and the conduct of national activities
depends on the existence of solid and perfect law.

The matters relating to birth, marriages, death, succession etc., are equally controlled through laws. Hence

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it is essential to know the correct basic principles of law which are contained only in the jurisprudence. It is
necessary that the people should have a 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.

KINDS OF LAW

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Definition of Law: In one sense the law is a large body of rules and regulations based mainly on general
principles of justice, fair play and convenience, which have been worked out and promulgated by
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governmental bodies to regulate human activities and define what is and what is not permissible conduct in
various situations.
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The term law, however, is also used in a much broader sense. To denote the whole process by which the

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organized society, through governmental bodies and personnel (Legislatures, Courts, Administrative

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tribunals, Law enforcement agencies and officials, Penal and Corrective institutions etc.) attempt to apply

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these rules and regulations and thereby establish and maintain peaceful and orderly relations between the
people in that society.

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Thus the study of law is necessarily not only a study of legal rules but also a study of the whole legal system
through which society attempts to maintain law and order.

Article 13(3)(a) of the constitution. The term law includes any ordinance, order, by-law, rule, regulation,
notification, custom and usage having, in the territory of India, the force of law.

The Kinds I Classification of Law: The use of the term law is made in various senses. It denotes different
kinds of rules and principles. Now we are discussing various meanings given to law which shall be
discussed and the meaning in which it is taken in jurisprudence shall be discussed.

Thus according to Blackstone, "Law in its most general and comprehensive sense signifies a rule of action
and is applied indiscriminately to all kinds of action whether animate rational irrational." Thus, we say the
laws of motion of gravitation of optics or mechanics as well as laws of nature and of nations.

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Classification of Law: For a proper and Logical understanding of Law, its classification becomes
necessary. It helps in grasping the principles and the logical structure of the legal order. It makes clear the
inter-relation of rules and their effect on each other. It helps in arranging the rules in a concise and
systematic way. It presents an analysis for the architect of Law which greatly helps in codification. It is of
great use for a lawyer. It helps him in understanding the law.

Classification of law is generally on the following pattern -

1. Substantive Law and Procedural Law or Formal Law.

2. Civil Law and Criminal Law
3. International Law and Municipal Law.
4. Codified and Uncodified Law.

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1. Substantive Law and Procedural Law or Formal Law: Substantive law is the law dealing with the
topic with which it has been connected. e.g., Contract Act, Hindu Law, I.P.C.

Procedural or formal law deals with evidence and procedure in court of law- C.P.C. for civil cases
and Cr. P.C. for criminal cases. We have on the whole the same law of evidence in Civil cases.

Some laws are predominantly substantive and some mainly formal or procedural. But a substantive

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law also may have the formal in it., e.g., Company Law, Insolvency Law etc.

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Where the rule of formal law differs from a rule of substantive law, the substantive law prevails over

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the formal law, because all the formal laws deal with the form not with the spirit-

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a) Substantive law is that which defines the right while procedural law determines the remedies.

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b) Substantive law is concerned with the ends which the Administration of Justice seeks, procedural

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law deals with the means and instruments, by which these ends are to be attained.

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c) Procedure Law regulates the conducts and the relations of courts and litigants in respect of the

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litigation itself. Substantive Law determines their conducts and relation in respect of the matter
litigated.
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2. Civil Law and Criminal Law: Civil Law which is the part of the imperative law, is the law of land and is

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forced by its courts -

"Civil Law is all that body of principles, decisions and enactments made, passed, recognised or
approved by the legally constituted authorities or agencies in a state, for regulating rights, duties
and liabilities (between the state and the citizens, as also the citizens inter-se, and the citizens of the
state in relation to members of foreign state), and enforced through the machinery of the judicial
process for obedience to the sovereign authorities in a state."

Sometimes the expression Civil Law is used to convey the idea that the civil law is different from the
criminal law or the law of military.

Civil Law has what are known as sanctions behind it. A sanction means a coercive factor for the
enforcement of law. These sanctions are of three kinds namely- 1. Inner or moral, Le. the force of
one's soul. 2. Social Le. those arising out of public resentment and public opinion, and 3. Legal.

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 Civil Law includes Constitutional Law, Administrative Law and Public Law, Constitutional Law is the
Law that provides for the working of the Constitution of a country. That says how the Executive, the
Legislative and the Judiciary are to function. That determines the structure of e state, the allocation
of powers, the rights and liberties of the subject as also the obligation of t e citizen in consonance
with the maintenance of the solidarity of the State.

Administrative or Executive Law: Administrative or executive law is the law (including the rules)
concerning the Administration of the executive department of the State.

Characteristics of Civil Law:

a) Uniformity,
b) Territoriality of application.

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c) Generality of application, except in the case of a special law.
d) Attempted conformity with the principles of justice
e) The Creation of Legal rights.
f) The recognition by the State or its agency.

prevention of and punishment for offences.

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Criminal Law: Criminal law defines crimes/offences, and prescribes punishment for them. Its aim is the

Criminal law is necessary for maintaining order and peace within the State.

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In civilized societies crime is considered to be a wrong against the society. Therefore, the state initiates the
proceedings against the offender, and thus it is always a party in criminal cases. This is why the criminal law
is considered as a branch of pubic law.
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3. Municipal Law and International Law:

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opposed to International Law.

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1) Municipal law, State Law or national law is the law of a state or a country and in that respect is

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2) Municipal Law is the law of the Sovereign over the individual subject to the Sovereign rules.

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3) It is the rule or law by which particular nation is governed.

4) It is the rule or law by which particular nation is governed.

5) It is operated within the territory of the country.

International Law: International law, also called the Law of Nations, is the body of rules which regulates
mainly the mutual relations of States.

It is made up party of –
a) Customs between the nations,
b) Conventions as the result of International Conference and otherwise.
c) International reciprocity.

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 Some earlier jurists like Austin and his supporters were of the view that international law is not law as it
lacked many of the elements which a law should have.

But on the other hand Kelson, and his supporters were of the view that international law is a law and is
superior to the municipal law.

This controversy is no more and it has been recognised on almost all heads that international law is law
and is a very important branch of law.

According to some jurists, it may be divided into two classes-

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Public International Law: Public International law is the body of rules which governs the conduct and
relations of states with each other.

Really speaking, the term "International Law" is used for this class of Law.

private international law or conflicts of laws.

4. Codified and Uncodified Law

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Private International Law: Private International Law means those rules and principles according to
which the cases having foreign elements are decided e.g. a contract between India and Pak to be
performed in Cyclone.

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The rules and principles on which the rights and duties of person would be determined would be called

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According to Oxford Dictionary 'Code' means a systematic collection of statutes, body of laws, so
arranged as to avoid inconsistency and overlapping.

Codification means promulgation, compilation, collection and systematization of the body of law in

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a coherent form by an authority in a State competent to do so.

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The codified law is certain, simple and rigid whereas the uncodified law is flexible as a judge is

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bound by the precedent of higher courts.

The codified law can be laid down beforehand whereas the emergence of uncodified law depends
on litigation. Codified law is coherent whereas the uncodified law differs from case to case.
Uncodified law is the principle and enacted law is merely accessory.

The activity of the legislative is called for only on special occasions to do that which lies beyond the
constructive or remedial efficacy of the common law or uncodified law.

Codification means, not the total disappearance of case law or uncodified law, but merely the
reversal of this relation between it and statute law. Case law or uncodified law continue to grow,
even when codes are complete. It means that the substance and body of law shall be enacted law,
and that in that case law shall be incidental and supplementary only.

But no legislative skill can effectually anticipate the complexity and variety of facts. The function of

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 precedent (uncodified law, case law) will be to supplement, to interpret, to reconcile and to develop
the principles which the Code contains, Out of Code itself, therefore, a body of case law will grow, as
judicial commentary and supplement them. This supplementary and explainary case law is codified
and incorporated into successive additions of the Code then the process of interpretation will begin
again with the like results.

Before the codification, the customs and personal laws governed the individuals in India.

This classification can also be shown with the help of following diagram -

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So law can also be classified as follows-

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Public Law: The state activities are largely regulated by public law. It determines and regulates the
organization and functioning of the state and determines the relation of the state with its subjects. Public
law may be classified into three classes –

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Constitutional Law: By constitutional law is meant that law which determines the nature of the state
and the structure of the government.

Administrative Law: Administrative law deals with the structure, powers and functions of the organs of
administration, the limits of their powers, the methods and procedures followed by them in exercising
their powers and functions, the methods by which their powers and functions are controlled including
the legal remedies available to a person against them when his rights are infringed by the operation."

Criminal Law: Criminal law defines offences and prescribes punishment for them. Its aim is the
prevention of and punishment for offences. Criminal law is necessary for the maintenance of peace and
order within the state.

2. Private Law: This branch of law regulates and governs the relations of citizens with each other. The
parties in such cases are the individual and the state. Through it judicial organ adjudicates the matters

9
 in dispute between them.

A general classification is as follows -

a. Low of persons
b. Law of property
c. Law of obligations
d. Conflict of laws

Law of obligation is divided into three classes-

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a. Contract
b. Quasi Contract
c. Tort

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SOURCES OF LAW
The term 'sources of law' has many meanings. General meaning of the word source is origin another
meaning is the "Materials" or the constituents. There is difference of opinion among the jurists about the
origin of law. Austin says that law originates from the Sovereign. The theologians say that law originates

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from God. The Vedas, the Quran which are the primary law sources of Hindus and Mohammedans are
considered to have been revealed by God.
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Classification of Sources: Solmand has divided the sources of law into two classes –

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1. Former Sources, and
2. Material Sources.
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The Former source is the act of the State as manifested in the Statute. Former sources are those from

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which the law derives its force and validity.

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Material sources are those sources of law from which law derives not its validity but the subject matter of
which it is composed.
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Material sources are divided into two-
1. Legal sources, and
2. Historical Sources

Legal sources are those which are authoritative. These are recognised as such by the law itself. These are
allowed by the Courts as of right. These are immediate sources of law. The rest of the sources are the
historical sources; these are unauthoritative. Under this clause come- Juristic writings, Foreign decisions
and numerous other things from which a judge derives help in shaping his judgement. If they are
recognized by law as such or they are incorporated in law they may become legal. Solmand says that
historical sources pertain to legal history and not to legal theory. Therefore, in his book of jurisprudence he
has discussed only legal sources. And even in legal sources he has included Legislation, Precedent and
Customs only. As per Solmand, classified by reference to their legal sources, there are four kinds of law-

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1. Enacted law, having its source in legislation;
2. Case law, having its source in precedent;
3. Customary law, having its source in custom; and
4. Conventional law, having its source in agreement.

Customs
What is Custom? Custom may be defined as the uniformity of conduct of people under like
circumstances.

Those patterns of human behaviour which receive universal acceptance and recognition are called sage

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and when in the course of time they get established, they are called customs.

In the Tanistry case custom is described as "It is just non-scriptum and made by the people in respect of the
place where the custom obtains. For where the people find any act to be good and beneficial and apt and
agreeable to their nature and disposition, they use and practise it from time to time, and it is by frequent

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Iiteration and multiplication of this act that the custom is made and being used. From time in which custom is
made and being used to time in which memory runneth not to the contrary obtains the force of law.

Herbert Spencer points out "Before any definite agency for social control is developed there exists a control

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arising partly from the public opinion of the living, and more largely from the public opinion of the dead".

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Thus, it is tradition passing on from one generation to another that originally governed human conduct. This

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tradition is custom.

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According to Halsbury's Law of England "A custom is a particular rule which has existed either actually or

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presumptively from time immemorial, and has obtained the force of law in a particular locality, although

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contrary to or not consistent with the general common law of the realm".

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CLASSIFICATION OF CUSTOMS:
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Customs

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tu Customs Having Sanction Customs Without Sanction

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Legal

Local
Conventional

The customs in the wider sense can be classified as follows-

Customs without Sanction: Customs without sanction are those customs, which are non-obligatory.
They are observed due to the pressure of public opinion.

Customs having Sanction: Customs having sanction are those customs, which are enforced by the state.
These are the customs with which we are concerned. These can be divided into two parts-

i) Legal Customs.

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ii) Conventional Customs.

Legal Customs: Legal Customs operate as a binding rule of law and have been recognized by the courts
and have become a part of the law of land. These customs are enforced by courts and can further be
classified as follows-

a) General Customs: General customs are those customs which prevail throughout the territory of
the state, though the customs which are treated to be part of law of the land are general legal customs.

b) Local Customs: Local customs are those customs which apply to a defined locality i.e. to a
particular district or town. These can be classified as follows -

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Geographical/ Local.
Personal / Local Customs.

Essentials of a Valid Custom: Certain essentials have been laid down which must be satisfied by a

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custom for its judicial recognition. The essentials which were laid down by the jurists for the recognition of
custom are given below-

Antiquity: A custom to be recognized as law must be proved to be in existence from time immemorial. Time

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immemorial means time so remote that no living person can give its origin or can give incidence concerning
it.
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Continuance: The other essential for the validity of custom is continuance. If must have been practiced

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continuously. It means that custom must have been enjoyed continuously without interruption. If a custom

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has been disturbed for a considerable time, a presumption arises against it.

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Peaceable Enjoyment: The custom must have been enjoyed peaceably. If a custom is in dispute for a long

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time, in a law court or otherwise, it negatives the presumption that it 'originated by consent as the most of

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the customs naturally might have originated.

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Obligatory Force: For a valid custom it must have an obligatory force, which means that it must have been
supported by the general public opinion and enjoyed as a matter of right.
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Certainty: A custom must be certain a custom A which is vague or indefinite, cannot be recognized. It is
more a rule of evidence then anything else.

Consistency: Custom must not come into conflict with other established customs. There must be
consistency among the customs. It is, therefore, axiomatic that one custom cannot be set in opposition to
other customs.

Reasonableness: A custom must be reasonable. Custom gives a good deal of discretion to the court in the
matter of recognition of customs. The degree of reasonableness cannot be judged. The custom should not
be immoral and further the custom should not be contrary to the justice.

Conformity With Statute Law: A custom, to be valid must be in conformity with the statute law.

If a custom is having all the essentials given above then it is law otherwise it is not a valid custom.

12
Reasons For Recognition of Custom: Salmond has given two reasons for the recognition of custom. The
reasons for the recognition are as follows-

Custom is frequently the embodiment of those principles, which have commended themselves to national
conscience as principles of justice and public utility. The national conscience may be well accepted by the
court as an authoritative guide.

The existence of an established usage is the basis of a rational expectation of its continuance in the future.

When Does A Custom Become Law: To answer this question two views have been given by the jurists on
this point, which are contrary to each other.

embodied in some statute.

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The view of Austin and Gray is that a custom becomes law after its recognition by the Sovereign. Austin
says that custom is a source of law; it itself is not law. His definition of law that it is a command of the
Sovereign does not allow the customs to be included in law. A custom is not a 'positive law' unless it is so
declared by the court, or, in other words, it is not law until it has received judicial recognition or it has been

According to Savigny, who is the founder of this school, custom is per se law. A custom carries its

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justification on itself. They are based on the opinion of the people and national character. They embody

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those principles of justice which society recognises. He says custom is the badge and not a ground of origin

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of positive law.

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According to historical school, custom is law independent of any declaration or recognition by the State.
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The State has no discretion or power over them except to accept them.

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Conclusion: Customs lie in the foundation of all legal systems. They came into existence with the

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existence of the society. The customs are the basis of most of the laws, but at the same times, Judges,

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Jurists and Legislatures have played a very vital role in moulding them.

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Precedent: Precedent is a fundamental principle of judicial practice in the British Common wealth and in
the United States the decision of a Court (quite apart from its intrinsic merit) should have binding force on

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judicial tribunals.

What is Precedent? Precedent is an earlier event, decision or action used to guide in parallel circumstances
later.

Salmond : Precedents 'are' judicial decisions followed in subsequent cases.

Gray: A precedent covers every thing said or done which furnishes a rule for sub sequent practice.

Keeton: A Precedent is a judicial decision to which authority has (in some measure) been attached.

1. Civil Law System: Civil law system which is followed in U.S.S.R., Germany, Japan, France and
Latin American countries.

2. Common Law System: Common law system which is followed in British Commonwealth, India

13
 and U.S.A.

The Civil law system does not follow the Precedent System. The Doctrine of Precedent was taken from the
British System. Art. 141 of the Constitution of India. declares that the law declared by the Supreme Court of
India shall be binding on all Indian Courts.

Some jurists consider Precedent is not law. Some say that judges do not make law. The role of judges is to
explain and interpret the legislation and not to explain it. Look at the common law, for example¬which is
exclusively created by judges. The whole law of Torts in India is judge-made law. John Austin condemned
the practice of judges making law. Salmond and Gray maintained that law amounting to nothing but the
decisions of the Courts. However, all three agree that precedent is an important source of law.

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What is basis of Precedent: The judges create the Precedent on the basis of the existing law applicable to
the case, if any, and if there is none, then out of natural justice, equity and good-conscience.

What exactly is a Precedent

1. Is it the decision?
2. Is it the reason given by Court in such a decision, or

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3. It is the material set of facts which have forced such decision?

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It is very difficult to give a categorical answer to these questions. But one must find out from any judgement

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that portion which is actually binding. In other words, what rule of law is behind the decision in a case must

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be discovered.

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What is Ratio? : There are three major views on this point-

Salmond: One view of Salmond who states that "Precedent is a judicial decision which contains in itself a

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principle which forms its authoritative clement is termed as its Ratio decedent."

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Obiter Dicta: The other principles in the case remunerated in the case are Obiter Dicta. It means "things
said by the way or the statement of law which goes beyond the requirements of the particular case and
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which lay down a rule that is irrelevant or unnecessary for the purpose of the case, are called 'Obiter Dicta'.
The judges are not bound to follow them, though they can take advantage of the same".

Prof. Good-Hart: The other view is of Prof. Good-Hart "It lays down that the ratio in a given judgement is not
the principle of law laid down in that decision but the material facts (and the decision based on that set of
facts) forms the true ratio of any judgement."

Simpson and Stone: There is another theory propounded by Simpson and Stone "This theory holds that it
is erroneous to hold that each case has its own ratio. According to this view only a study of whole series of
decisions on a particular problem of law will be able to reveal the merging principle on that given problem."

The ratio is the product of the creative work of the courts. It is the Dynamic process of restricting and
expanding, and reporting, and interpreting and reformulating a prior body of Doctrine.

We have in theory accepted the view of John Salmond. However the latest view that Ratio of any case is a

14
productive and dynamic process's, in fact, applied by our courts.

1. Original Precedent: Original precedents are those which create or establish original or new.

2. Declaratory Precedent: Declaratory precedents are those which merely reiterate and apply an
already existing rule or law.

Precedents are further divisible in two classes-

1. Authoritative Precedent: An authoritative precedent is one which judges must follow whether they
approve of it or not. This is also called a Binding Precedent. Generally, a lower court is bound by the
decision of higher court.

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2. Persuasive Precedent: A persuasive precedent is one which the Judges are under no obligation to
follow, but which they will take into 'consideration' and to which they attach such weight as it seems
to them to deserve. Decisions of a court of co-ordinate jurisdiction are only persuasive.

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The Doctrine of Precedant in India: All ancient texts suggest that "That path is the right one which as
been followed by virtuous men. On the basis of this there was the theory of precedent in India.

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British Rule: In the beginning there were two types of Courts functioning in British India i.e. Crown Courts

m
and Company Courts. The Crown Courts were the Supreme Courts and they were established under the

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provisions of Regulating Act, 1773 and were functioning in three presidency towns i.e. Calcutta, Bombay

.
and Madras and these Courts were established under the authority of Parliament of England the other
hand, the Company Courts i.e. Sadar Diwani Adalat, Mofussil Diwani Adalat and the court head farmer
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purgana were functioning in mofussil areas of Bengal, Bihar and Orissa. Both Crown courts and Company

m
Courts were amalgamated under the provisions of Indian High Court Act, 1861 which established High

a
Courts at Calcutta, Bombay, Madras and then North West Provinces and so on. hen the Judicial Committee

n
of Privy Council / King-in-Council became the final Appellate Tribunal, a new chapter was added in the

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Indian Legal history and a clear hierarchy of the courts was established. There were Presidency Courts (in

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Presidency towns) and mofussils court (in districts) and above these Courts was the High Court. The Privy

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Councilor the King-in-Council was the final Appellate Court Tribunal for Indians in England. Every court was
bound by the decision of the superior court. This helped bringing uniformity and certainty in law because the

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decisions of Privy Council were binding on all the Courts in British India.

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Later on, on 1 October, 1937 a Federal Court was established in India under the provisions of government
of India Act, 1935. The hierarchy of the Courts before independence of India was as under-
1. Privy Council/Kind-in-council.
2. Federal Court
3. High Courts, and
4. District Courts.

Thus, the decisions of the Federal Court were binding on all the courts below. The decisions of the Privy
council were binding on the Federal Court and the Court below. The Privy Council was not bound by its n
decisions. During British time the Obiter Dicta (things said by the way) was binding on all the courts British
India.

15
After independence the Supreme Court of India was established as the highest court of India. The Article
141 the Constitution enacts that the decision of the Supreme Court is binding on all the Indian Courts. The
Supreme Court, sometimes overrules its earlier decisions or in other words, the Supreme Court is not
bound by its earlier decision (Art. 143 of the Constitution). The overruling is not a good law but if any thing is
detrimental to the general welfare of the public, the Supreme Court overrules the same as it has been done
by the Supreme Court in Sajjan Singh vs. State of Rajasthan and Shankari Prasad case. The question
before the court was whether the parliament has the power to abridge or to take away the fundamental
rights of the citizens. The Supreme Court held that yes, the parliament has the power to abridge or to take
away the fundamental rights of the citizens. But in Golak Nath case Supreme Court reversed/ overruled its
earlier decision and held that the parliament has no power to take away the fundamental rights of the
citizens. The Supreme Court evolved the Doctrine of prospective overruling and declared that the decision
of Golak Nath case will only be applicable to the future cases. This decision was not given retrospective

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operation so that there will be no choas and confusion among the masses and the whole progress of the
country shall be dashed to ground.

So the Obiter Dicta declared by the Supreme Court alongwith the ratio in a particular case is not binding on

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all the tribunals/subordinate courts in India as it was being done during British period (that the Obiter Dicta
declared by the Privy Council was binding on all the Courts, subordinate to Privy Council, in India)

Hierarchy of Courts under Indian Constitution

Supreme Court

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High Courts (in each of the States)

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District and Sessions Judges Courts (in each of the Districts)

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Civil (Civil Judge/Court of Munsif) CJM (Criminal)

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Small Cause Courts
Judicial Magistrate Executive Magistrate

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Nayaya Panchayats

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The Application of the Doctrine: The authority of a decision as a precedent lies in its ratio decidendi. It is,
therefore, necessary to know what this ratio decidendi is and how it is determined.

Ratio decidendi and obiter dictum. There are cases which involve questions which admit of being answered
on principles. Such principles are deduced by way of abstraction of the material facts of the case eliminating
the immaterial elements. And as the result the principle that comes out, is not applicable only to that case,
but to other cases also which are similar to the decided case in their essential features. This principle is
known as ratio decidendi, The issues which need determination of no general principles are answered on
the basis of the circumstances of the particular case and lay down no principles of general application.
These are called obiter dictum. It is the ratio decidendi or the general principle, and not the obiter dictum that

16
has the binding effect as a precedent. But the determination of ratio decidendi and obiter dictum is not so
easy in practice as it appears to be in theory. Many eminent jurists have laid down principles and methods to
determine the ratio decidendi of a decision. But the task is full of difficulties. Prof. Goodhart has made an
elaborate discussion about the structure of a case and has suggested methods for the determination of the
ratio decidendi, but he too has failed in laying down infallible test. In cases in which the reasons for the
decision are not given, or where judges have come to the same conclusion, but have given different, and,
sometimes, contrary reasons, or where a reason, is only a hypothesis it is very difficult to find out the ratio
decidendi. But this difficulty serves useful purpose also. It is for the judge to determine ratio decidendi and
to apply it on the case which he is going to decide. This gives an opportunity to him to mould the law
according to the changed conditions by laying emphasis on one or the other point.

When an appeal is heard by an even number of the judges and they are equally divided, the practice is that

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the appeal is deemed to have failed, and it is the resultant negative which is regarded as the precedent for
the future.

Precedents are cited not only in those courts, or tribunals where they have obligatory force, but also where

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the precedent cited is in any way relevant in answering the question involved. And relevant decision of a
court is a strong argument and it is given a respectful consideration. A precedent may be cited from any
source which is reliable. Generally, the reports are used, and some reports are considered more
authoritative than the other.

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A precedent is not abrogated by lapse of time. With the passing of the time the authority of a precedent goes

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on strengthening if the law on that point is not altered by some statute. But very ancient precedents are,

.
sometimes, inapplicable due to the changed circumstances, and then the courts resort to 'distinguishing'
and get rid of the binding authority of such precedents. Precedents have been compared with wine, which
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'improves with age up to a certain point and then begins to go off."

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Merits and Demerits of the Doctrine: It is clear from the discussion made in the preceding page that the

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doctrine has assumed a very important place in modern times. A number of jurists have expressed their

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views for and against the doctrine. The supporters of the doctrine put forward the following arguments in
support of the doctrine-
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Merits:
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1) It shows respect for the opinion of one's ancestors. Eminent jurists like Coke and Blackstone have
supported the doctrine on this ground. They say that there are always some reasons behind these
opinions, we mayor may not understand them.

2) Precedents are based on customs, and, therefore, they should be followed. Courts follow them
because "these judicial decisions are the principal and most authoritative evidence that can be given of
the existence of such a custom as shall form a part of the common law". Therefore, 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.

3) As a matter of great convenience it is necessary that a question once decided should be settled and
should not be subject to re-argument in every case in which it arises. It will save the labour of the judges
and the lawyers. If the precedents are not followed, every case would go from the court of the first
instance to the highest tribunal causing a lot of delay, expense and inconvenience to the public. At the
same time, it will cause a great impediment in the way of the administration of justice.

17
4) Precedents bring certainty in law. If courts do not follow precedents and the judges start deciding
and determining issues every time afresh without having regard to the previous decisions on the point,
the law would become most uncertain. A good law should always be certain. This certainty can be
brought about only by conferring authority on precedents.

5) Precedents bring flexibility in the law. Judges in giving their decisions are influenced by social,
economic and many other values of their age. They mould and shape the law according to the changed
conditions and thus bring flexibility in the law.

6) Precedents are Judge-made law. Therefore, they are more practical. They are based on actual
cases. It is not like statute law which is based on a priori theories. The law develops through precedents

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according to actual needs. This development is based on experience. Thus, it is better suited to fulfill the
ends of law.

7) Precedents bring about a scientific development in law. In a case Baron Parke observed-"lt appears

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to me to be of great importance to keep the principle of decision steadily in view, not merely for the
determination of the particular case, but for the interest of law as a science." In other words, precedents
bring logical perfection in law and put the law in the form of principles.

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8) Precedents guide judges and, consequently, they are prevented from committing errors which they

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would have committed in the absence of precedents. The law, in precedents, is laid down after

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thrashing of the points and argument in great detail. Therefore, it is of great value to the judges. By

.
following precedents, judges are prevented from any prejudice and partiality because precedents are
binding on them. By deciding cases on established principles, the confidence of the people in the
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judiciary is strengthened.

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9)
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As a matter of policy, decisions, once made on principle should not be departed from in the ordinary

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course. When reliance has been placed on a decision and the people have adjusted their rights and

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liabilities according to it, they should not be disappointed by an overruling of such decision. Jessel,

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M.R., in a case, observed:"Where a series of decisions of inferior courts have put a construction on an

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Act of Parliament, and thus, made a law which men follow in their daily dealings, it has been held, even
by the House of Lords, that it is better to adhere to the course of the decision than to reverse them

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because of the mischief which would result from such a proceeding. Of course, that requires two things,
antiquity of decision, and the practice of mankind in conducting their affairs."

DEMERITS OF THE DOCTRINE:

1) There is always a possibility of overlooking authorities. The vastly increasing number of the cases
has an overwhelming effect on the judge and the lawyer. It is very difficult to trace out all the relevant
authorities on every point. There are instances where a decision might have been different if some
precedent would not have been overlooked.

2) Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court on the
horns of a dilemma. The courts are faced with what an English judge called "complete fog of
authorities". Though there are rules for such contingencies, they are not of much help. The provision is
that the lower court should choose between the two conflicting decisions of a superior court. But this
makes law uncertain, depending on the individual interpretation and discretion.

18
3) A great demerit of the doctrine of precedent is that the development of law depends on the incidents
of litigation. Sometimes, most important points may remain unadjudicated because nobody brought
action upon them.

4) A very grave demerit, or, rather an anomaly, of the doctrine of precedent is that, sometimes, an
extremely erroneous decision is established as law due to not being brought before a superior court.
This is followed in later cases because courts do not allow the reopening of a question. Thus, it
becomes a settled practice, and if, later on a point is brought before a superior court in a case, it is
obliged to approve it on the principle "that it is not necessary or advisable to disturb a fixed practice
which has been long observed in regard to the disposition of property, even though it may have been
disapproved at times by individual judges, where no real point of principle has been related".

Conclusion

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Arguments Supporting the Doctrine not Sound: It is submitted that many of the arguments given in

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support of the doctrine of precedent are not realistic. The argument that by following precedents we pay
respect to the opinions of our ancestors is untenable and illogical. Bacon's view that the unlearned age
governs the more learned puts in a nutshell the absurdity of this argument. The other argument also that
precedents are based on customs contains but little truth. In any case it is not true in modem times. The

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precedents do not bring certainty in law. There is no infallible technique for discovering the law on a

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particular point except to turn the leaves of the terrifying volumes of reports and digests with every

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possibility of overlooking authorities. Therefore, there is more uncertainty than certainty in following the

.
precedents. The argument that the doctrine leads to the scientific development of law is unconvincing.
Such development can be secured even without the doctrine of precedent. In the name of precedent most
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unfortunate cases are established as law and mar the logical consistency of the law. Undoubtedly,

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precedents, in some cases, guide judges, but in other cases their binding effect makes the judges to deliver

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judgments which are in no way approved by their sense of justice. In some cases they express their regret

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for their own decisions which they themselves consider to be wrong. The doctrine, sometimes, causes

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great impediment in the development of law. Thus we see that the arguments given in support of the

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doctrine of precedent do not hold much water. In the Continent where there is no doctrine of precedent, as it

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is in England, there is more certainty, flexibility and scientific development of law. In any case, most of the
arguments given in support of the doctrine have no basis in India, because here there is no common law,

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and the legal development in this country has been on different lines.

They Contain Some Truth: However, all the arguments given in support of the doctrine are not without
foundation. Some of them contain truth also. The doctrine has important practical uses. By making certain
improvements and reforms, such as good reporting, evolving techniques for ascertaining law on a point
without overlooking authorities, etc., it may render valuable help to the development of law. In the legal
systems, where it has been adopted since long, to do without it is almost impossible. Therefore, there is no
likelihood of its being abandoned in near future.

It should not be concluded by what has been said above that a decision once given is binding for all the
times to come, or all the decisions carry equal authority. There are rules, principles and practices which
govern and regulate the authority of a precedent.

LEGISLATION

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Introduction: The term "legislation" is derived from two latin words, "Legis" which means 'Law' and 'Latum'
which means to make. The common meaning of legislation is the making of law. It may be defined as the
promulgation of legal rules by an authority duly empowered in that behalf.

According to Bentham and Austin. Legislation signifies any form of law making. The term legislation,
should, however, be restricted to that process of legal evaluation which consists in the formulation of rules
of law by the authority appointed by the Constitution for the purpose.

GRAY defined legislation as the formal utterances of the legislative organs of the society.

According to Salmond, Legislation is that source of law, which consists in the declaration of legal rule by a
competent authority.

Classification of Legislation:
1.
2.
Supreme Legislation.
Subordinate Legislation/Delegated Legislation.

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At present in all democratic countries only a relative small part of the total legislative output emanates
directly from the Legislature and much more extensive in bulk is what is known as delegated legislation.

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Supreme and Subordinate Legislation: Usually the legislature enacts a law covering only general

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principles and policies relating to the subject matter in question and confer rule making powers on the
Government or on Administrative Agencies. In other words, the Legislature makes a Skelton of an Act by

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providing aims, object and policies, and the flush and blood is provided by the subordinate authorities by

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making rules etc. thereof. For example- Import and Export Control Act, 1947 and Essentials Commodities

m
Act, 1948 are the supreme legislations. The Import and Export Control Act contains only 8 sections. The
Central Government has built a vast mechanism of Import and Export licensing through Delegated
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Legislation promulgated under the statutes. Similarly the Essential Commodities Act, 1953 contains 16
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sections and Central and State Government promulgated rules and regulations to control the whole
operation of controlling and regulating production, movement, supply, sales and price of a number of
commodities. d
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Delegated Legislation: Delegated legislation means the law made by the executive under the powers
delegated to it by the supreme legislative authority.

The term 'Delegated Legislation' is used in two senses. It may mean-

1) Exercise (by a subordinate agency) of the legislative power delegated to it by Legislature, or

2) The subsidiary rules themselves which are made by the subordinate authority in pursuance of the
power conferred on it by the Legislature.

In India Subordinate Legislation conveys the idea that the authority who makes legislation is subordinate to
the Legislature.

The subordinate legislation may be divided into following classes-

1. Autonomous Law: When the Supreme authority confers powers upon a group of individuals to

20
 legislate on the matters entrusted to them as a group, the law made by the latter is called autonomic law
and the body is an autonomous body.

2. Judicial Roles: In judicial rules, powers are given to the judicature to make rules for the regulation
of its procedure.

3. Local Law: In this the local bodies are given powers to make byelaws concerning their local
matters. Local laws are also known as Municipal Laws.

4. Colonial Law: Colonial laws are the law for the countries, which are not independent and are under
the control of some other state. The laws made by them are subject to the supreme legislation of the
state under whose control they are; thus it is subordinate legislation.

5.

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Executive Made Law: A government consists of three organs: Legislative executive and judiciary.
The function of legislative organ is to make laws, that of judiciary to administer justice and of the
executive to execute laws or to run administration. The executive organ in addition to its usual function

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does some law making also. This is subordinate legislation. This power to the executive is delegated by
the legislature. This kind of subordinate legislation is called "delegated legislation."

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Reason for Delegated Legislation: Delegated legislation has become imperative due to following
reasons-
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1.
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Want of Time: Parliament frames only the broad rules, principles and the departments are left to
make rules and to fill in the details due to lack of time.
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2.

3.

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Technicality of the Matter: With the progress of society things have become more complicated
and technical. All the legislators may not know them fully and hence they cannot make any useful
discussions on it. Therefore, after framing of the general policy by the parliament the govt. dept. or other
bodies who know its technicalities are given the power to lay down details.

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Emergency: During the time of emergency quick and decisive action is very necessary. Therefore,
delegated legislation is necessary in emergency.

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4.

5.

6.
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Flexibility: To adapt the law according to future contingencies or adjustments which are to be made
in future can be done efficiently and effectively only when a small body is given power to do so.
Therefore, delegation to the departments becomes necessary.

Local Matter: There are matters, which concern only a particular group or locality. Any legislation
on this matter needs the consultation of these groups. Therefore, delegation is necessary.

Experimentation: Some acts of parliament provide for their coming into operation in different
localities at different periods according to suitability. Therefore, delegation is necessary.

Dangers of Delegated Legislation: The dangers of delegated legislation are as follows-

1. Legislation may be passed in too skeleton a form and wide powers of action to make new laws may
be given.

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Safeguards Against Delegated Legislation: The following safeguards have been suggested by jurists
against delegated legislation-

1) Parliament Control : The act containing provision for making rules shall be laid on the table of
legislature and these rules shall be laid down on the table before a period of 30 days before the date of
their publication. These rules shall be subject to modifications by the house.

2) Judicial Control: Judicial control exercises effective control. Delegated legislation will be
ultravires if it goes beyond the basic policy.

Advantages of Legislation Over Precedent:

1)

2)

3)
4)
existing law.

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Legislation has abrogative power also. It does not create only new law but it can abrogate an

For the most part, the operation of legislation is prospective, though it may be retrospective also, if it
is so chooses.
A statute law can lay down law before hand.
Coherency and consistency. Statute law is coherent.

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5) Statute law is definite, brief, clear and easily understandable.

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Cardoze says "It is the output of a multitude of minds and must be expected to contain its proportion of

.
vagaries". The law made by judges has re-developed from precedent. It is every time restricted to the

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particular case which gives occasion for its formulation and application.

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According to Salmond, a case law is gold in the mine, a few grains of the precious metal to the ton of useless
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matter- while statute law is a coin of the realm ready for immediate use.
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Advantage of Precedent over Legislation:
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1)
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Better Ethical Content: Diecy says "the morality of the court is higher than the morality of

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politicians". It is because the legislation is generally the product of the will of the politicians who are

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liable to be affected by popular passions of the hour. Judiciary law, on the other hand is made in the
serene atmosphere of Courts of justice by persons trained to hold the scales of justice evenly.

2) Flexibility: Sir John Salmond points out that one of the advantages of a system of case-law over
enacted law consists in the greater flexibility of the former. Rigidity is the capital defect of statute law. In
the case of statute law the letter of the law governs and so the true spirit of the law has sometimes to be
sacrificed. The phraseology employed by a statute may fail adequately to express its true intent. The
courts, however, are bound by the lateral expression and it not infrequently happens that the reason of
the law is defeated by strict adherence to the letter. This cannot happen in the case of precedent for the
duty of the Court is to reach the spirit of the decision, the underlying ratio decident. Since it is not the
lateral expression but the reason of the rule that matters, analogical extension is permissible in the case
of precedents. The system thus assumes a flexible character and broadens from precedent to
precedent.

22
IMPORTANT QUESTIONS

Q.1. Discuss the importance of jurisprudence in the study of law.

Q.2. What do you mean by law and what are the various kinds of law?

Q.3. Discuss the classification of law.

Q.4. Write short notes on :

i) Legislation as a source of law
ii) Precedent as a source of law

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iii) Custom as a source of law
iv) Delegated legislation

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Q.5. What do you mean by sources of law? Discuss the importance of each source of law in brief.
Q.6. What do you mean by customs? What are the essentials of a valid custom?
Q.7. When does a custom become law?
Q.8. What do you mean by precedent? What are the various theories of precedent?

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Q.9. Discuss the doctrine of precedent with reference to Indian Law?

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Q.10. What are merits and demerits of precedent?
Q.11. Why is importance of precedent degrading?
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a

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Q.12. Discuss the importance of legislation as source of law.

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Q.13. What do you mean by delegated legislation? Why is it important in present scenario?

a
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KA S
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d
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23
 UNIT - II
SCHOOLS OF JURISPRUDENCE - I

Bentham: Austin is considered to be the father of analytical or positivist thought. However, Jeremy

S
Bentham whose many works have lately come to light appears to be the founder of this approach. Austin
owes much to Bentham and on many points his propositions are not more than a 'paraphrasing of
Bentham's theory. Jeremy Bentham (1748-1832) heralded a new era in the history of legal thought. He laid
the foundation of positivism in the modern sense of the term.

U
Bentham's Definition of Law: He defined law as follows –

"A law may be defined as an assemblage of signs declarative of a volition conceived or adopted by the
sovereign in a state concerning the conduct to be observed in a certain case by a certain person or class of

K
persons, who in the case in question are or are supposed to be subject to his power: such volition trusting

m
for its accomplishment to the expectation of certain events which it is intended such declaration should

co
upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a

.
motive upon those whose conduct is in question."

M
He ana lysed rights and duties which were adopted and improved upon by late jurists like Austin and by
many, even in the 20th century.
m
a
n
The purpose of law is to bring pleasure and avoid pain. Pleasure and pain are the ultimate standards on

A y
which a law should be judged. All considerations of justice and morality disappear from this approach. For

d
Bentham the right relationship between positive law and morality or moral criticism was expressed in the

tu
maxim" 'Obey punctually censure freely.'

K
Bentham's Contribution: Bentham's contribution to legal theory is the epoch making transition from the
peculiar brand of natural law doctrine in the work of Blackstone to a rigorous positivism. If represents one of
the major developments in the history of modern legal theory. He gave new directions for law making and
legal research.

"With Bentham came the advent of legal positivism and with it the establishment of legal theory as a science
of investigation as distinct from the art of rational conjecture. Bentham laid the foundations of this new
approach, but, far from containing the solution to problems involving the nature of positive law, his work was
only the beginning of a very long and varied series of debates, which are still going on today.

Criticism Against Bentham: Bentham's theory has its weaknesses. "The main weakness of Bentham's
work" says Friedman, "derives from two shortcomings".

One is Bentham's abstract and doctrinaire rationalism which prevents him from seeing man in all his
complexity, in his blend of materialism and idealism, of nobility and baseness, of egoism and altruism. This

24
leads Bentham to an overestimate of the power of the legislator and an underestimate of the need for
individual discretion and feasibility in the application of law.

The second fundamental weakness stems from Bentham's failure to develop clearly his own conception of
the balance between individual and community interests." Many of his propositions are neither convincing
nor prove true in practical application.

John Austin: (1790-1859) he is the father of English Jurisprudence and the founder of the Analytical
School of Jurisprudence. He was elected to the Chair of Jurisprudence in the University of London in 1826.
Then he proceeded to Germany and devoted some time to the study of Roman Law as it was taken in
Germany. The scientific treatment of Roman Law there made him aware of the chaotic legal exposition of
law in his own country. He took inspiration from it and proceeded to make a scientific arrangement of

S
English Law. The method which he applied was essentially of English origin. He avoided metaphysical
method which is a German characteristic.

John Austin as a Positivist: sought to show what law really is as opposed to Natural Law notions of what it

U
ought to be. According to Austin, positive law consists of commands, set as rules of conduct, by a Sovereign
member(s) of the independent political society wherein the author of the law is supreme and opposed to
model and natural law.

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Every law properly so called, must have three elements of Command, Sanction and Sovereign. It emanates

m
from Sovereign and has binding force and is authoritative. The law is command of Sovereign Commands

co
employees' duty and sanction. Command and duty are correlative terms Sanction an enforcement of

.
obedience.

M
Further it shall be convenient to discuss Austin's theory under two main heads-
1) Austin's conception of law. m
a
n
2) His method.

1.

A d
y
Austin's Conception Law: Law in the common use means and includes things which cannot be

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properly called 'law'. Austin defined. law as 'a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him.'

i)

K
S
Law of two kinds-
Law of God, and
ii) Human Laws
This may be divided into two parts-
i) Law of God-Laws set by God for men.
ii) Human Laws-laws set by men for men.

Two Kinds of Human Laws: Human Laws may be divided into two classes-
a) Positive Law: These are the laws set by political superiors as such, or by men not acting as political
superiors but acting in pursuance of legal rights conferred by political superiors. Only these laws are
the proper subject-matter of jurisprudence.

25
 b) Other Laws: Those laws which are not set by political superiors (set by persons who are not acting
in the capacity or character of political superiors or by men in pursuance of legal rights)

Analogous to the laws of the latter class are a number of rules to which the name of law is improperly given.
They are opinions or sentiments of an under-terminate body of men, as laws of fashion or honour. Austin
places International Law under this class. In the same way there are certain other rules which are called law
metaphorically. They too are laws improperly so called. A chart presenting this division clearly is given
below:

LAW

Law of God
Law properly so called

Human Lws

Positive laws (or laws

U S Law improperly so called

Laws by analog As
laws of fashion

Laws not set by men,

Law by metaphor,
i.e., laws of gravity

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Strictly so called) Set

m
as political superior,
by political Superior to

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or in pursuance
political inferior or by of a legal right
private Persons in
.
a

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pursuance of a legal right
Positive morality

m
a
n
"Laws proper, or property so called, are commands; laws which are not commands, are laws improper or

A y
improperly so called. Laws properly so called, with laws improperly so called, may be aptly divided into the
following four kinds:
d
1)
tu
The divine laws, or the laws of God; that is to say, the laws which are set by God to his human

K
creatures.

2) Positives laws; that is to say, laws which are simply and strictly so called, and which form the
appropriate matter of general and particular jurisprudence.

3) Positive morality, rules of positive morality or positive moral rules.

4) Laws metaphorical or figurative, or merely metaphorical or figurative.

Criticism against Austin's Theory: Austin's theory has been criticized by a number of jurists and by some
of them very bitterly, Bryce went to the extent of saying that 'his contributions to juristic science are so
scanty and so much entangled in error that his book ought no longer to find a place among those prescribed
for students. However, this is an extreme view. The main points of criticism against Austin's are as follows-

a) Customs Ignored: 'Law is the command of sovereign', as Austin says, is not warranted by

26
 historical facts. In the early times, not the command of any superior, but customs regulated the conduct
of the people. Even after coming of state into existence customs continued to regulate the conduct.
Therefore, customs should also be included in the study of jurisprudence, but Austin ignored them.

b) Law Conferring Privileges : The law which is purely of a permissive character and confers only
privileges, as the Wills Act, which lays down the method of drawing a testamentary document so that it
may have legal effect, is not covered by Austin's definition of law.

c) Judge-made Law: In Austin's theory there is no place for judge-made law. In the course of their
duty judges (in applying precedents and in interpreting the law) make law. Though an Austinian would
say that judges act under the powers delegated to them by the sovereign, therefore, their acts are the
commands of the sovereign. Nobody, in modern times, will deny that judges perform a creative function

S
and Austin's definition of law does not include it.

d) Conventions: Conventions of the constitution, which operate imperatively, though not enforceable
by court, shall not be called law, according to Austin's definition, although they are law and are a subject-

U
matter of a study in jurisprudence.

e) Rules Set by Private Persons: Austin's view that 'positive law' includes within itself set by private
persons in pursuance of legal rights is an undue extension because their nature is very vague and

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indefinite.

m
co
f) International Law: Austin put International Law under positive morality along with the law of

.
honour and the law of fashion. "The so called law of nations consists of opinions or sentiments current
among nations generally. It, therefore, -is not law properly so called." The main ingredient of law lacking
a

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in International law is sanction but this alone will not deprive it from being called law. Now nobody will

m
accept that International law is not law. Therefore, according to Austin's definitiol1, a very important

a
branch of law shall be excluded from the study.

A y
g) Command Theory Untenable: A modern theorist, Prof. Olivecrona from Sweden has denied the

d
applicability of the idea of command to law. He says that a command and not identical with a declaration

tu
of will. There is a difference between a command had the statement or declaration of a will. A command
is always an act through which one person seeks to influence the will of another. Command

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presupposes some determinate person who commands and another to whom the command is
addressed. In modern times, the machinery of state remains always changing and it is run by a
multitude of persons. Therefore, the idea of command does not apply in such systems.

h) It is Artificial: The view that law is 'command of the sovereign' suggests as if the sovereign is
standing just above and not as part of the community giving his arbitrary commands. This view treats
law as artificial and ignores its character of spontaneous growth. The sovereign is an integral part of the
community or state and his commands are the commands of the organized community. Most of the
theories regarding state, in modern times, say that the sovereignty does not remain in the shape in
which it was conceived by the writers of past ages. They say that state itself is sovereign and law is
nothing but the general will of the people. Therefore, the law cannot be said to be a command.

i) Sanction is not the Only Means to Induce Obedience: According to Austin's view, it is the
sanction alone which induces man to obey law. It is submitted that it is not a correct view. Lord Bryce has
summed up the motives as indolence, deference, sympathy, fear, and reason that induce a man to obey

27
 law. The power of the state is ratio ultima- the force which is the last resort to secure obedience.

j) Relation of Law and Morals Overlooked: According to Austin, the science of jurisprudence is
concerned with positive law, or with laws strictly so called, as considered without regard to their
goodness or badness. In other words, Law is not concerned with morals. But this is not a correct
proposition. The origin of the words 'right' 'wrong' and 'duty' etc. owe their origin to certain ethical
notions. Austin overlooked this aspect of the law.

Austin's Contribution: Opening a new era of approach: These are the weaknesses of Austin's theory
pointed out by his critices. Every theory has its limitations. Moreover, Austin laid down many of his
propositions as deducted from English law as it was during his time. The credit goes to Austin for opening an
era of new approach to law. He was intimate to great thinkers and philosophers of his time like Bentham and

S
Mill and he was greatly praised by Mill. Austin wiped out many false notions which had obscured the true
meaning of law and legal terms. His stand was to expel from the mind all ethical notions while considering
the nature of 'positive law'. He gave a death blow to the theory of natural law.

U
Austin's Influence: The influence of Austin's theory was great due to its simplicity, consistency and clarity
of exposition. That is why Gray remarked: 'If Austin went too far in considering the law as always proceeding
from the state, he conferred a great benefit on jurisprudence by bringing out clearly that the law is at the
mercy of the state.' Austin's method is described as characteristic of English Jurisprudence. Prof. Allen

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says: 'For a systematic exposition of the methods of English jurisprudence we will have to turn to Austin'.

m
The same is true about America also because Austin's method was greatly adopted there.

. co
Salmond and Gray further improved upon it and considerably modified the analytical positivist approach.
They differ from Austin in his emphasis on sovereign as law giver. According to Salmond, the law consists of
a

M
the rules recognized and acted on by the courts of justice. Gray defines law as what has been laid down as a

m
rule of conduct by the persons acting as judicial organs of the state. This emphasis on the personal factor in

a
law, later on, caused the emergence of the 'Realist' school of law.

A y
The Pure Theory of Law: Hans Kelson of Viena School erects an independent self-supporting structure of

d
law. According to him, theory of law should be universally applicable in all times and in all places. His idea of

tu
'Grundnorm' which may be said to be the foundation stone of the 'Pure Theory'.

K
'Pure Theory is Close to Some Other Theories': Kelsen's theory is in some respects close to the theory
of Austin. Both point out the coercive character of law and both are positivists. In one respect it is close to
Realists as it too wants to remove all illusions and distractions from law. Some of the Kelsen's conclusions,
though reached from different premises, bring him close to sociologists and specially to Duguit. But the
main point of his theory is that it proceeds to free "the law from the metaphysical mist with which it has been
covered at all time by the speculations on justice or by the doctrine of 'jus naturalie'. Therefore, his theory is
called the "Pure Theory of Law" and his theory contains many elements- ethics, sociology, politics and
history and it claims to be pure. These elements are known Extra Legal Considerations.

'Pure Theory of Law': Law is a Normative Science; Law Norms are 'Ought' Norms: According to Kelsen,
law is a 'normative science.' But law norms have a distinctive feature. They may be distinguished from
science norms on the ground that norms of science are norms of being or IS' (Sein), while the law norms are
'Ought' (Sollen) norms. Law does not attempt to describe what actually occurs but only prescribes certain
rules. It says, 'if one breaks the law, then he ought to be punished.' These legal 'Ought' norms differ from
'morality' norms in this respect that the former are backed by physical compulsion which the latter back, but

28
Kelsen does not admit the command theory of Austin as it itroduces a psychological element into the
definition of law which Kelsen avoids.

Hierarchy of Normative Relations: The science of law to Kelsen is the knowledge of hierarchy of
normative relations. He builds on Kant's theory of knowledge and extends this theoretical knowledge to law
also. He does not want to include in his theory 'what the law ought to be and speaks of his theory of law as a
structural analysis, as exact as possible, of the positive law, an analysis free of all ethical or political
judgements of value.'

The task of legal theory is to clarify the relations between the fundamental and all lower norms, but not to
say whether this fundamental norm itself is good or bad. That is the task of political science, or of ethics, or
of religion.

U S
It represents within the realm of legal theory the quest for pure knowledge in its most uncompromising
sense, for knowledge free from instinct, volition, desire. Thus the 'Pure Theory' on the one hand, avoids any
discussion of ethics or natural law, and, on the other hand, it reacts against the modern sociological
approaches which go to widen the boundaries of jurisprudence to a very large extent. Kelsen attempts to
establish universal principles in his legal theory, and, therefore, he may be said to be in favour of general
jurisprudence.

K
Validity of Legal Norm; 'Grundnorm'; Dynamics Process: Now coming back to the 'norm', we should

m
understand its practical working in a legal system. Every legal act relates to a norm which gives legal validity

co
to it. The legal norm derives its validity from an external source, that is, from a particular 'ought norm' or

.
sanction. Here, Kelsen comes near Austin (that is, from a particular 'ought norm' or sanction. Here, Kelsen
comes near Austin (that the sanction is the necessary element of law), but he differs from him about the
a

M
conception of the sanction. Austin's idea of sanction implies as if it is something standing outside the rule of

m
law, but Kelsen's sanction is itself another norm not different in nature from the norm which it supports. In

a
this way every legal norm gains its force from more general norm which backs it, 'Grundnorm', and it is from

n
this norm that all inferior norms derive their force. The 'Grundnorm' is the starting point in a legal system.

A y
From this base a legal system broadens down in gradation, becoming more and more detailed and specific

d
as it progresses. Kelsen calls this process 'gradual concretization' of 'Grundnorm' or the basic norm-thus

tu
focusing the law to specific situations. This is a dynamic process.

K
The Test of 'Grundnorm' - 'Minimum Effectiveness'; Jurist not Concerned with the Nature and
Origin of 'Grundnorm' : In every legal system there is always a 'Grund norm' although its forms are
different in different legal systems. For example, in Britain the 'Grund norm' is Crown in Parliament' and in
U.S.A. it is the 'Constitution'. The 'Grundnorm' can be recognised by the minimum effectiveness which it
possesses. But any discussion about the nature and origin of the 'Grund norm' is not within the province of
the 'Pure Theory of Law'. These are pre-legal questions in relations between 'Grundnorm' and all other
inferior norms and not to enter into other questions as goodness or badness of 'Grundnorm'. Any discussion
of such questions may involve the study of things and subjects which may adulterate the theory. But before
applying Kelsen's theory to any legal system one must discover the 'Grundnorm'.

Essential Foundations of Kelsen's Theory: To summarise, the essential foundations of Kelsen's system
have been enumerated as follows-

1) The aim of a theory of law, as of any science, is to reduce chaos and multiplicity to unity.
2) Legal theory is science, not volition. It is knowledge of what the law is, not of what the law ought to

29
 be.
3) Legal theory as a theory of norms is nor concerned with the effectiveness of legal norms.
4) A theory of law is formal, a theory of way of ordering, changing contents in a specific way.
5) The relation of legal theory to a particular system of positive law is that of possible to actual law.
Criticism Against Kelsen's Theory

Criticism Against Kelsen's Theory

His Grundnorm' Vague and Confusing: The first point in Kelsen's theory which is greatly criticized is his
conception of 'Grundnorm'. Though Kelsen has given its characteristic as possessing 'minimum
effectiveness', it is very vague and confusing and it is difficult to trace it out in every legal system. But its

S
discovery is a condition precedent for a successful application of Kelsen's theory to a legal system. Kelsen
seems to have given his thesis on the basis of the written constitutions as Austin created his 'Sovereign' on
the basis of the English system of government but even in written constitutions, 'Grund norm' is made up of
many elements and anyone of these elements alone cannot have the title of 'Grundnorm'. Another criticism

U
against the conception of 'Grundnorm' is from the point of view of the Historical school. It says that the origin
of law is in customs and 'Volkgeist' and not in any other source, such as 'Grund norm'.

The Purity of Norms cannot be Maintained: Kelsen is criticized, again, for his theory about the purity of

K
norms. The purity of norms cannot be maintained due to two reasons. First, for a proper analysis of legal

m
norms one will have to go to the 'Grundnorm'. In tracing the 'Grundnorm' by applying the test laid down by

co
Kelsen himself-" minimum effectiveness", one will have to look into political and social facts. It will cause
adulteration in the 'Pure Theory' because the impurity of 'Grundnorm' would infect the legal norms also
.
which emerge out of it. Prof. Stone observes: The social effects and questions of justice excluded, though
a

M
from all the side-doors and backdoors of his pyramid of norms, the front-door is wide open to both'. Second,
the task of deriving legal norm from'.
m
a
n
No Practical Significance: Sociological jurists criticize it on the ground that it lacks practical significance.

A y
Prof. Laski says" 'Granted its postulates, I believe the pure theory to be unanswerable but I believe also that

d
its substance is an exercise in logic and not in life.' Some see Kelsen as 'beating his luminous wings in vain

tu
within his ivory tower."

K
Criticism not Well Directed: So far as the criticism against Kelsen's view about the purity of legal norms is
concerned, it has some truth but in no way it impairs the initial thesis of the theory, namely, the hierarchy of
norms. The factors on which the 'Grundnorm' is founded are pre-legal and hence they are outside the study
of law. Even if we recognize the fact that the purity of legal norms cannot be maintained, the theory is not
materially affected. Kelsen develops his theory from the philosophical premises of Kant and aims at
establishing a universal theory of law.

'Natural Law' Ignored: Some criticize Kelsen's theory for its excluding 'natural law' from law. 'Natural law'
considerably affects legal concepts and operates in the society, and is incorporated in positive law also.
But, as said earlier, Kelsen presents a very scientific analysis of legal order, therefore, he could not take
these extra legal norms into consideration. It does not mean that the he denies the existence of 'natural law'.
If 'natural law' is incorporated in the positive law, it stands in the hierarchy of norms and is validly within the
field of study.

International Law-Weakest Point of the Theory: A more potent and substantial criticism is put forward

30
against Kelsen's view of International law. Kelsen in his attempt to apply his theory on International law runs
into a number of inconsistencies and artificiality of the approach is exposed. His comparison of
International law with primitive law is artificiality and no juristic conclusions can be based upon it. He
attempts to prove the existence of 'Grund norm' in International law also. He says that one legal system, in
practice, recognizes the equality of other legal systems and it implies the recognition of a 'Grundnorm'. This
equality is not possible without the 'Grundnorm'. He finds this 'Grundnorm' in the principle 'pacta sunt
servanda'. On the question whether this 'Grundnorm' comes into existence on the formation of an
association of states or states derive their validity and force from the 'Grundnorm'.

Kelsen leaves both the possibilities open as it is not within the province of the 'Pure Theory' to investigate
into it, but his line of approach seems to be favouring the latter view. If his zeal for establishing the primacy of
International law, Kelsen goes on forwarding arguments, but on the point of 'Grund norm' his arguments

S
explode and he is thrown on the horns of a dilemma. Prof. SJone remarks: "It is difficult to see what pure
theory of law contributes to a system which it assumes to be law, but which it derives from a basic norm
which it cannot find." Secondly, Kelsen says that sanctions of International law are war and reprisal.

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The whole difficulty is that the International law does not fit in his 'Pure Theory' and it should be taken as a
limitation of the theory. His arguments are based on 'Natural law' principles on which Prof. Lauterpacht
observes that 'by a backdoor, as it were, crept into the cast iron logic of the system, the ghost of natural law'.

K
In present times, a greater appreciation and understanding of Kelsen's theory has appeared. The great

m
jurists like Stone and Friedmann have very stoutly defended Kelsen's theory. The 'Pure Theory' is mainly

co
concerned with a theoretical analysis of legal norms within a state and there it is very easily applicable. The

.
application of the theory on International law (as the founder of the theory claims it to be of universal
application) exposes the limitations of the theory or a causual leakage in it. In his effort to establish the
a

M
primacy of International law, Kelsen applies the theory on it also, but it gives only ridiculous results. He

m
represents a picture of International law as what it ought to be and not what it is.

a
n
Though his theory is called pure, once it is associated with Extra Legal Consideration with the Grundnorm-

A y
his theory ceases to be pure. His conception of Grundnorm is vague and confusing. It is difficult to trace it

d
out in every legal system. No criterion has been given by him through which the minimum effectiveness of

tu
Grundnorm is to be measured. His Grundnorm seems to be little more than Austin's in a new guise.

K
Kelsen's Contribution

His Analysis of Legal Concepts; Positivist; His Logic and Precision Scientific; Practical Value:

Kelsen has made an original, striking and greatly valuable contribution to jurisprudence. He has
considerably influenced the modern legal thought. His views regarding right, personality, state, and public
and private law have received great support from various quarters and they require a very close study. The
theory very forcefully suggests a revaluation of these concepts. Pruning away the abstract notions which
covered the law, Kelsen took positive law as the subject matter of his study. With his scientific precision and
mighty and unparallel logical subtlety he analysed the legal order in a most convincing way. Such criticism
as "in the anxiety to keep his theory 'pure', he raises it to such a remote and inaccessible altitude that it has
difficulty in drawing the breath of life" which means that theory gives no practical guidance is out of point.
Kelsen himself never intended his theory for this purpose and it is not at all concerned with this end. This
criticism merely points out a limitation of the theory which the founder himself would acknowledge. The
practical value of the theory for a lawyer is that at least it clears mind and after that he is free to make a

31
choice of an ideology.

H.L.A. HART
Reformulation of Analytical Positivism

His Theory Bridges Age-Old Gap: A very comprehensive reformulation of analytical positivism has been
done by Hart in his 'Concept of law'. His theory, on the one hand, builds on and, on the other hand, makes
important modifications in the theories of Austen and Kelsen. "Two aspects of Hart's analysis of the concept
of law are of special importance: in the first place, he bridges the age-old conflict between the theories of
law emphasizing recognition and social obedience as the essential characteristic of a legal norm, and
secondly those that see the distinctive characteristic of law in the correlated elements of authority,

S
command, and sanction." The former approach is that of Savigny, Ehrlich and others. The latter is that of
Austin, Kelsen and their followers.

Primary Rules of Obligation and Secondary Rules of Recognition: Social acceptance predominates in
primitive societies and organized authority predominates in more developed societies. This distinction is

U
expressed in terms of contrast between primary rules of obligation and secondary rules of recognition.

Primary Rules Give Way to Secondary Rules: Both historically and logically, the primary rules of
obligation generally give way to secondary rules, in which the forms of recognition, change and

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adjudication are systematized, usually through the centralization of authority, the articulation of definite
m
procedures for the making application and execution of law, and a system of official sanction.

. co
Conditions Necessary for the Existence of a Legal System: Hart says that for the existence of a legal

a
system, two minimum conditions are necessary-

M
There are therefore two necessary minimum conditions-

tu
d
y n
a
m
"There are therefore two minimum conditions necessary and sufficient for the existence of a legal

A
system. On the one hand, those rules of behaviour which are valid according to the system's ultimate
criteria a validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the
criteria of legal validity and its rules of change and adjudication must be effectively accepted as common
public standards of official behaviour by its officials. The first condition is the only one which private citizens
S

K
need satisfy: they may obey each 'for his part only' and from any motive whatever; though in a healthy
society they will in fact often accept these rules as common standards of behaviour and acknowledge an
obligation to obey them, or even trance this obligation to a more general obligation to respect the
constitution. The second condition must also be satisfied by the officials of the system. They must regard
these as common standards of official behaviour and appraise critically their own and each others'
deviations and lapses. Of course it is also true that besides these there will be many primary rules which
apply to officials in their merely personal capacity which they need only obey".

International Law: According to Hart, in the contemporary world international law is the conspicuous
illustration of a system of primary rules.

"Again once we emancipate ourselves from the assumption that international law must contain a basic rule,
the question to be faced is one of fact. What is the actual character of the rules as they function in relations
between states? Different interpretations of the phenomena to be observed are of course possible; but it is
submitted that there is no basic rule providing general criteria of validity for the rules of international law, and

32
that the rules which are in fact operative constitute not a system but a set of rules, among which are the rules
providing for the binding force of treaties. It is true that, on many important matters, the relations between
states are regulated by multilateral treaties, and it is sometimes argued that these may bind states that are
not parties. If this were generally recognized, such treaties would in fact be legislative enactments and
international law would have distinct criteria of validity for its rules.

This approach to international law is possible by detaching the concept of law from the punitive sanction
regarded as essential characteristic of the legal norms as asserted by Austin and Kelsen.

Hart's Contribution: Hart is one of the great jurists of our time. He makes considerable improvement on
analytical positivism. His treatment of the subject is very comprehensive and constructive. In him we find a
subtle analysis of concept of law. He presents a clarification of the general framework of legal thought. His

S
approach though not much original, is important for its emphasis on the socially constructive function of law.
The demotion of he punitive sanction has great importance for contemporary international law. He has
greatly influenced the legal thought in modern times.

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The chief supporters of this school are- Savigny, Cartar, Puchta, Henary Maine and G.C. Lee. In this school
the study of mutual relations of state and law is made in historical perspective. According to the view of
Historical School law is found, not made. Law is based on customs and usages. One of the main exponents
of this school is Savigny (1779-1861). German jurist Fredrich Karl Von Savigny is known as the founder of

K
Historical School of Jurisprudence. He was a teacher in the University of Berlin. His study and scholarship
of Roman law was profound. His work-
m
(1) The Law of Possession,
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a

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(2) The History of Roman Law in Middle Ages (in 6 volumes), and

(3)
m
The System of Modern Roman Law-testify his genius. He attacked the idea of codification in
a
Germany as he knew the defects of the contemporary codes. According to him, code was not a

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suitable instrument for the development of German law at that time. Law is a product of the people's

A y
life as a manifestation of its spirit.

d
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The main propositions of his theory of law are as under-

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Source of Law is Volksgeist: Savingny was of the opinion that law is a product of the people's life- it is a
manifestation of its spirit. Law has its source in the general consciousness (Volksgeist) of the people.
According to Savigny, a law made without taking into consideration the past historical culture and tradition
of community is likely to create more confusion than solve the problems because law is not an "artificial
lifeless mechanical device." Thus, the origin of law lies in the popular sprit of the people which Savigny
termed as Volksgeist.

Law Develops Like Language and has a National Character: Savigny remarked that law has a national
character and it develops like language and binds people into one whole because of their common faiths,
beliefs, and convictions. He pointed out that "law grows with the growth of the society and gains its strength
from the society itself and finally it dies away as the nation loses its nationality." Law, language, customs
and government have no separate existence from the people who follow them. Common conviction of the
people makes all these as a single whole. The central theme of Savigny's historical jurisprudence may be
summarized as under-

33
"The organic evolution of Law with the life and character of the people develops with the ages, and in this it
resembles language. As in the latter, as in Law, there can be no instant of rest, there is always movement,
and development of Law is governed by the same power of internal necessity as simple phenomena. Law
grows with a nation, increases with it, and dies at its dissolution and is a characteristic of it."

Early Development of Law is Spontaneous

Later on it is Developed by Jurists: About the development of law, Savigny says that in the earlier stages law
develops spontaneously according to the principle of internal necessity. After the society has reached a
certain stage of civilization, the different sides of national activities, hitherto developing as a whole, divide in
different branches and are taken up by specialists as jurists, linguists and scientists. In the hands of
specialists, these subjects, become richer in ideas, more complete and technical. Law, like other subjects

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now assumes a double existence- "on the one side a general national life, on the other the distinct science,
of jurists. The relation of law to the general life of the people might be called its political elements, its
connection with the juristic science its technical element. The correlation of these two elements varies with
the elements of life of the people but both participate more or less in the development of law."

1)
2)
3)

4)
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Law is a matter of unconscious and organic growth. Therefore, law is found and not made.
Law is not universal in its nature. Like language, it varies with people and age.

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Custom not only precedes legislation but it is superior to it. Law should always conform to the
popular consciousness.

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m
As laws grow into complexity, the common consciousness is represented by lawyers who formulate

M
legal principles. But the lawyers remain only the mouthpiece of popular consciousness and their work is
to shape the law accordingly. Legislation is the last stage of law-making and, therefore, the lawyer or the
jurist is more important than the legislator. m
a
n

A
Criticism of Savigny's Theory: Savigny's thesis has been criticized on a number of grounds-
y
1)
d
Inconsistency in the Theory: He emphasized the national character of law but at the same time he

tu
recommended a method by which the Roman law could be adapted to modern conditions and

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advocated for the acceptance of Roman law as the law of Germany.

2)

3)
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'Volksgeist' not the Exclusive Source of Law: Savigny's view that popular consciousness is the
source of all law is not true. Sometimes, an alien legal system is successfully transplanted in another
country. Sometimes, a single personality greatly influences a legal system, who, in no way, can be said
to be a representative of popular consciousness. There are many technical legal rules which never
existed in nor have any connection with popular consciousness.

Customs not Always Based on Popular Consciousness: Savigny's view that customs are
based on the popular consciousness of community as a whole is also not perfectly sound. Many
customs originated only for the convenience of a powerful minority, as slavery. Many customs are
adopted due to imitation and not on the ground of their righteousness or any conviction of the
community. 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) He Ignored other Factors that Influence Law: Another criticism against Savigny is that he was "so

34
 occupied with the source of the law that he almost forgot the stream". He overlooked the forces and
factors which influence life. Many rules, in modern time, are the result of a conscious effort. For
example, the law relating to trade unions is an outcome of a long and violent struggle between
conflicting interests within a society.

5) Juristic Pessimism: According to Pound, Savigny encouraged 'juristic pessimism.' According to

his theory, 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 only because people are
accustomed to it. It is rightly said that Savigny's theory tended to hang traditions like fetters upon the
hands of reformative enterprise. It discouraged creative activity and legal reform. His statement was
simply to watch the unfolding of laws from popular consciousness with folded hands.

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Savigny's Contribution

His Theory, a Reaction Against Natural Law Theories: Historical Development of Law: His theory came
as a powerful reaction against 18th century 'rationalism and principles of natural law' , the advocates of

U
which tried of establish a legal theory of universal application without any consideration of time and place.
The great truth that the theory of Volksgeist contains is that a nation's legal system is greatly influenced by
the culture and character of the people. Savigny was mainly occupied with how law becomes and whether it
tends, or what the conscious effort can make it to tend, and his thesis in this respect still substantially holds

K
good.

m
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Influence of Savigny: The theory of historical school, later on, influenced many jurists. It was after Savigny

.
that the value of the historical method was fully understood. Apart from his followers in his own country and
in the Continent, his method was followed in England by Maine, Vinogradoff, Lord Bryce, and many others
a

M
who made studies of various legal systems on historical lines and purged off many of the exaggerations of

m
Savigny's theory and traced the course of evolution of law in various societies. Pollock, Maitland,

a
Holdsworth and Holmes in their works pointed out that the course of development of Common Law was

n
determined by social and political conditions of particular time.

KA S
d
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Maine (1822-1888): Maine made very valuable contribution to legal philosophy by way of historic

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comparative method. He was an erudite scholar of law. He started his career as Regius Professor of Civil
Law in the University of Cambridge at an early age of twenty-five. He was Law Member in the Council of the
Governor General of India between 1861 and 1869. This provided him an opportunity for the study of Indian
Legal System. From 1869 to 1877 he occupied the chair of Historical and Comparative Jurisprudence in
Corpus Christi College, Oxford. After that he held the distinguished post of the Master of Trinity Hall
Cambridge.

'Ancient Law,' 'Village Communities', 'Early History of Institutions, 'Dissertation of Early Law and Customs',
are the important contributions made by him to legal thought and legal philosophy.

Stages of Development of Law

1) Law made by the ruler under divine inspiration: In the beginning law was made by the
commands of the ruler believed to be acting under the divine inspiration, as the inspiration by Themistes
in the Homeric poems.

2) Customary Law: In the second stage the commands crystallize into customary law.

35
3) Knowledge of Law in the Hands of Priests: The knowledge and administration of customs goes
into the hands of a minority, usually of a religious nature, due to the weakening of the power of original
law-makers. This is the third stage.

Static and Progressive Societies

Further Development by Legal Fiction, Equity and Legislation: The societies which do not progress
beyond the fourth stage which closes the era of spontaneous legal development are static societies (as
Maine calls them). The societies which go on developing their law by new methods are called progressive.
Progressive societies develop their laws by three methods: legal fiction, equity and legislation. Legal
fictions change the law according to the changing needs of the society without making any change in the

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letter of the law. There are innumerable examples of it in English and Roman law. Equity consists of those
principles which are considered to be invested with a higher sacredness than those of the positive law. It is
used to modify the rigor of law. Legislation comes in the last which is most direct and systematic method of
law making.

his belonging to a particular group in the community.

KU
Status Disintegrated: As to the legal conditions prevailing at the end of general course of evolution, i.e., of
static societies, Maine calls them 'status.' The rights and liabilities of a member of the community depend on

m
Maine's Thesis True in his Time: Maine was perfectly right when he propounded this thesis. Apart from

. co
the instances from ancient Roman law, during his own time he saw the emancipation of individual from
statutes in England and in the Continent. In England, the position of married women improved. Manya civic
disabilities on the ground of religion were removed by statutes. More freedom was given to servants to
a

M
make contracts.

m
a
Theory no Longer Holds Good: Individual freedom of contract was curtailed. But then there came a

n
counter-move the signs of which were apparent in the time of Maine himself. It was realized that the idea of

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freedom of contract between a powerful capitalist and a starving workman was ridiculous and hollow. The

d
organizations to protect the workmen came into existence. The employers too formed their associations.

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Now, in place of individual freedom of contract there came a group bargaining.

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Changes in the Concept and Functions of the State: Now, there have been great changes in the
concept and functions of the State which have caused a growing interference into the activities of the
individual by the State. Even the contracts, which an individual enters into in every day life, have been
standardized, as contract for water, or electricity supply, or contract for a carriage with a railway company.
Individuals cannot change any of the terms of these contracts. Parties enter into these contracts as
members of social class and not as individuals. In modern times, contracts between government
departments and private firms have become important which also are standard contracts and the terms are
fixed before hand.

No Place for the Theory in Totalitarian States

Maine himself Qualified his Theory: In totalitarian States there has been a strong shift to the status again.
In these countries no contract is allowed which is in any way not in consonance with the State plan, or, is
otherwise harmful to the society. From these observations and examples one may gather that the societies
have not remained progressive (according to Maine's thesis), but have become retrogressive. But Maine

36
himself qualified his statement by the use of the word 'hitherto'. His theory was true during his time, and it
was rather an echo of the individual's development and the formation of a capitalist class which demanded
freedom of contract and labour. Another limitation of Maine's theory which he himself mentioned is that it
was not meant 'to apply to personal conditions imposed otherwise than by natural incapacity.

Contribution of Maine

Maine Improved Upon the Theory of Historical School: In Maine we find a very balanced view of history.
Savigny explained the relation between community and the law but Maine went further and pointed out the
link between the developments of both and purged out many of the exaggerations which Savigny had
made. Most of the historical jurists of the Continent confined their studies only to Roman law but Maine
studied the legal systems of various communities and by their analysis laid down a comprehensive theory

S
of the development of law. On the one hand, differing from Savigny, Maine recognized legislation as a very
potent source of law, and on the other hand, he avoided the excesses of philosophical school of Germany.

He inspired later jurists. Maine's theory preaches a belief in progress and it contained the germs of

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sociological approach. Jurists like Maitland, Vinogradoff and Bryce were inspired by Maine and they
applied his historical and comparative method to the study of law.

NATURAL LAW SCHOOL

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The natural law being co-existent with mankind and emanating from God Himself, is superior to all other

co
laws. It is binding over all the countries at all the times and no man-made law will be valid if it is contrary to
the law of nature.

a
.

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Dr. Freedmann has stated that the history of natural law is a tale of the search of mankind for absolute

m
justice and its failure. Therefore, with the changes in social and political conditions, the notions about
natural law have also been changing.
a
n

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The natural law philosophy dominated in Greece during 5th B.C. when it was believed that it is something

d
external to man. Sophists called it as an order of things which embodies reason. Socrates, Plato and

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Aristotle also accepted that postulates of reason have a universal force and men and endowed with reason
irrespective of race or nationality.

K
In the ancient societies, natural law was believed to have a divine origin. During the medieval period it had a
religious and super natural basis but in modern times it has a strong political and legal mooring.

It has found expression in modern legal systems in the form of socio-economic justice. The natural law
theory acts as a catalyst to social transformation thus saving the society from stagnation.

Definition of Natural Law: There is no unanimity about the definition and exact meaning of natural law and
the term 'natural law theory' has been interpreted differently at different times depending on the needs of
the developing legal thought.

From the jurisprudential point of view, natural law means those rules and principles which are supposed to
have originated from some supreme source other than any political or wordly authority. Some thinkers
believe that these rules have a divine origin, some find their source in nature while others hold that they are
the product of reason.

37
The natural law denies the possibility of any rigid separation of the 'is' and ought' aspect of law and belives
that such a separation is unnecessarily causing confusion in the field of law. The supporters of naturalla
theory argue that the notions of 'justice', 'right' or 'reason' have been drawn from the nature of man and the
law of nature and, therefore, this aspect cannot be completely eliminated from the purview of law.

1) Natural law is eternal and unalterable.

2) Natural law is not made by man, it is only discovered by him.
3) Natural law is not enforced by any external agency.

4) natural law is not promulgated by legislation, it is an outcome of preachings of philosophers,

S
Prophets, saints etc, and thus in a sense, it is a higher form of law to which all forms of manmade
laws should pay due obedience.

5) Natural law has no formal written code. Also there is no precise penalty for its violation nor any
specific reward for abiding by its rules.

6)

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Natural law has an eternal lasting value which is immutable.

The Evolution and Development of Natural Law Theory: From the point of view of convenience, the

K
evolution and development of natural law theory may be studied under the following broad heads:

co
m
Ancient Period: Heraclitus was the first Greek philosopher who pointed at the there main characteristic

.
features of law of nature, namely, (i) destiny (ii) order and (iii) reason. He stated that nature is not a scattered

a
heap of things but there is a definite relation between the things and a definite order and rhythm of events.

M
According to him' reason' is one of the essential elements of natural law.
m
a
Socrates (470-399 B.C.): The name of Socrates argued that like natural physical law, there is a natural

n
moral law. It is because of the 'human insight' that a man has the capacity to distinguish between good and

A y
bad and he is able to appreciate the moral values. thus according to Socrates, 'virtue is knowledge' and

d
'whatever is not virtuous is sin'. To him, justice may be of two kinds, namely, (i) natural justice; and (ii) legal

tu
justice. The rules of natural justice are uniformly applicable to all the places but the notion of legal justice
may differ from place to place depending on the existing statutory law and social conditions of the place. It is
S

K
a variable content which changes with time and place.

Thus natural law is a specie of law which is universal and immutable and uniformally applicable to all the
persons at all the places and times.

Plato (427-347 B.C.): 'Socrates' disciple, Plato carried further the natural law philosophy through his
concept of ideal State which he termed as Republic. In his Republic, Plato emphasised the need for perfect
division of labour and held "each man ought to do his work to which he is called upon by his capacities.

Aristotle (384-322 B.C.): Aristotle came out with a more logical interpretation of the natural law theory
According to him, a man is a part of nature in two ways. Firstly, he is a creation of God, and secondly, he
possesses insight and reason to which enable him to articulate his actions. He defined natural law as
'reason unaffected by desires.

He said, "Positive law should try to incorporate within it, the fine principles of natural law but it should be

38
obeyed even if it is devoid of the standard principles of natural law. He pleaded that the correct approach is
to reform or amend the law and not to break it."

Truly speaking, it was Aristotle and not Plato, who relieved natural law from oracular mess and founded it on
reason.

Cicero: According to Cicero, "True law is right reason in agreement with nature; it is of universal
application, unchanging and everlasting and there would not be different laws at Rome and at Athens, but
one eternal and unchangeable law which will be valid for all nations at all times."

Thus Cicero supported natural law because it was a creation of 'reason' of the intelligent man who stands
highest in the creation by virtue of his faculty of reasoning. He believed in the universal applicability of

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natural law based on general morality of the human society.

St. Thomas Aquinas (1225-1274): Among the logicians of the medieval period, the name of Thomas
Aquinas deserves a special mention. St. Thomas Aquinas is considered to be the representative of the

U
natural law theory of me medieval period, In his view, social organisation and State are natural
phenomenon.

He defined law as "an ordinance of reason for the common good made by him who has the care of the

K
community and promulgated through reason". He maintained that, "the primary precept of law is that good
should be done and pursued and an evil be avoided.
m
. co
St. Thomas Aquinas gave a fourfold classification of laws, namely, (1) Law of God or external law; (2)
Natural law which is revealed through "reason"; (3) Divine law or the law of Scriptures; (4) Human laws
a

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which we now called 'Positive Law'.

m
a
St. Aquinas agreed that natural law emanates from 'reason' and is applied by human beings to govern their

n
affairs and relations. He regarded Church as the authority to interpret divine law. He considered 'reason' as

A y
the sole repository of social life of man.

d
tu
Hugo Grotius (1583-1645): Hugo Grotius propounded the theory of functional natural law in his Law of War
and Peace (1625) and formulated the principles of international alaw which were equally applicable to all

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States both, during war and peace. He referred these principles of law of nations as natural law. He held that
natural law was not just based on 'reason' but on 'right reason', i.e., 'self-supporting reason' of man.

Grotius is rightly considered as the founder of the modern international law as he deduced a number of
principles which paved way for further growth of international law. He propagated equality of States and
their freedom to regulate internal as well as external relations.

Grotius believed that man, by nature is peace loving and desires to live according to dictates of reason. He,
therefore, treated "natural law as so immutable that it cannot be changed by God himself." He considered
divine law as the grand mother, natural law the parent and positive law as the child. Thus he placed natural
law at a higher footing as compared with the positive law.

SOCIAL CONTRACT THEORY (HEGEL, KANT)

Thomas Hobbes (1588-1679): Hobbes theory of natural law was based on natural right of sulfa-

39
preservation of person and property. He used natural law to justify the absolute authority of the ruler by
endowing him power to protect his subjects. Hobbes based his theory on social contract.

According to Hobbes, prior to 'social contract', man lived in chaoti condition of constant fear. The life in the
State of nature was "solitary poor, nasty, brutish and short". In order to secure self-protection and avoid
misery and pain, men voluntarily entered into a contract and surrendered their freedom to some mightiest
authority who could protect their lives and property. This led to the emergence of the institution of the 'ruler'
which later assumed the form of the State. Thus Hobbes was a supporter of absolute power of the ruler and
subjects had no rights against the sovereign who had to be obeyed howsoever bad or unworthy he might
be. Obviously, Church also had no power or authority over the sovereign.

It would thus be evident that Hobbes used natural law theory to support absolute-authority of the ruler.

S
Hobbes observed that law is dependent upon the sanction of the sovereign. In his opinion, "Governments
without sword are but words, and of no strength to secure a man at all.

John Locke (1632-1704): In order to support the rights of individual against the absolute power of the

U
sovereign, a new interpretation of the natural law and social contract theories became more or less
necessary. John Locke the Glories Revolution of 1688 and the wave of individualism in England which had
permeated the political and legal theories in Britain at that time. He, therefore, came out with a new
interpretation of the social contract rejecting Hobbes' earlier concept of state of nature. he stated that the

K
life in state of nature was not as miserable and brutish as stated by Hobbes, instead it was reasonably good

m
and enjoyable except that the property was insecure. In order to ensure proper protection of property, man

co
entered into the 'social contract' surrendering only a part of his rights, and not all the rights as contemplated

.
by Hobbesian theory.

M
The purpose of the state and law was to uphold and protect the natural rights of men. So long as the State

m
fulfils this purpose, its laws were valid and binding but when it ceases to do so, the people have a right to
revolt against the government and overthrow it.
a
n

A y
Locke pleaded for a constitutionally limited government. Unlike Hobbes who supported State authority,

d
Locke pleaded for the individual liberty.

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Jean Rousseau (1712-1778): Rousseau gave a new interpretation to 'social contract' and 'natural law' to

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suit the new situations. He pointed out that 'social contract' is not a historical fact as contemplated by
Hobbes and Locke, but it is merely a hypothetical conception. Prior to this so called 'social contract', the life
was happy and there was equality among men. People united to preserve their rights of freedom and
equality and for this purpose they surrendered their rights not to a single individual, i.e., sovereign, but to the
community as a whole which Rousseau named as 'general will'. Therefore, State and law are the product of
General Will, of the people. The essence of Rousseau's theory of General Will was that while the individual
parts with the natural rights, in return he gets civil liberties such as freedom of speech equality, assembly
etc.

It would thus be seen that while Locke laid emphasis on the individual, Rousseau favoured people's
sovereignty.

Immanuel Kant (1724-1804): The natural law philosophy and doctrine of social contract was further
supported by Kant and Fichte in 18th Century. They emphasised that the basis of social contract was
'reason' and it was not a historical fact. He favoured separation of powers and pointed out that the function

40
of State should be to protect the law.

Kant's theory of categorical Imperative was derived from Rousseau's theory of General will. It
embodies two principles -

1) The categorical imperative expects a man to act in such a way that he is guided by dictates of his
own conscience. Thus it is nothing more than a human right of self-determination.

2) The second principle expounded by Kant was the doctrine of 'autonomy of the will' which means an
action emanating from reason and does not mean the freedom to do as one pleases.

In essence, Kant held that "an action is right only if it co-exists with each and every man's free will according

S
to the universal law". This he called as "the principle of Innate Right". The sole function of the State,
according to him, is to ensure observations etc.

IMPORTANT QUESTIONS

Q.1.

Q.2.

Q.3.

Q.4.
U
Discuss the importance of analytical school of jurisprudence.

On what grounds has Austin propounded analytical school of jurisprudence?

K .
Who is the propounder of sociological school of jurisprudence?
co
m
Discuss the contribution of Savigny in the historical school of jurisprudence.

M
Q.6. Discuss the importance of Roscoe Pound in the sociological school of jurisprudence.

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Q.7. Discuss Kelsen's pure theory of law.
a
n

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Q.8. Discuss the natural law theory in detail.

d
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Q.9. Discuss "The Social Contract Theory" as developed by Thomas Hobbes and Kant.

K
Q.10 Discuss the contribution of H.L.A. Hart in the development of analytical positivism.

41
 UNIT - III
SCHOOLS OF JURISPRUDENCE - II

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K m
SOCIOLOGICAL SCHOOL

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Introduction: Sociological thought of law connotes not one approach but several whose common feature
is that these are, in one way or the other, study of law in relation to society. The main and the common field of
a

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study of the jurists who made such approach is the effect of law and society on each other. This approach

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takes law as an instrument of social progress.

a
Pioneers of the Sociological Thought

A y
August Comte (1786-1857): He is considered to be the founder of the science of sociology. Comte's

d
method may be called 'Scientific Positivism'. He pleads for the application of scientific method to the

tu
science of sociology. Society is like an organism and it can progress when it is guided by scientific
principles. These principles should be formulated by observation and experience of facts excluding all

K
metaphysical and other like considerations.

The implications of Comte's theory are many. He greatly influenced the philosophical and scientific
thoughts of his time. In the field of legal theory Comte's ideas inspired Durkheim, and who, in his turn,
inspired Dugut, a great sociological jurist.

Herbet Spencer (1820-1903); Organic Theory of the Society: He gave a scientific exposition of the organic
theory of society. He applied this evolutionary trend of society to sociology. The organic theory has been
very beautifully summarized by Prof. Allen. The inter-dependence of organisms, in its sociological aspect
means the mutual relation of all members of civilized society and the distribution of a sense of responsibility
far wider than can be comprised within the formula 'Sovereign and Subject'. It directed attention to the
necessity of considering law in relation to other social phenomena."

Jurisprudence Now a Social Science: Now the study of law in relation to society is the opening of a new
era in legal thought and this enabled jurisprudence to be called a 'social science.

42
Duguit (1859-1928); Inspired by Durkheim: It has been earlier that Duguit was inspired by Durkheim who
himself had taken inspiration from Comte. Durkheim's main point, which Duguit built upon, was that he
made a distinction between two kinds of needs of men in society. Firstly, there are common needs of
individuals which are satisfied by mutual assistance, and, secondly, there are diverse needs of individuals
which are satisfied by the exchange of services. Therefore, the division of labour is the most important fact
of social cohesion. He named it 'social solidarity. With development of free individual activities 'social
solidarity' develops. This 'social solidarity' is a fact and it is necessary for social life.

Interdependence of Men in the Society: Duguit built his theory on 'social solidarity'. He insisted on the
necessity of viewing social life as it is actually lived. The most important fact of the society is the
interdependence of men. In the present day society man exists by his membership of the society. Each man

S
cannot manufacture and procure the necessities of life himself. Functions are so specialized that each in
his turn depends on others for his necessities. The end of all human activities and organizations should be
to ensure the interdependence of men. This is Duguit's theory of 'social solidarity'.

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Law Also Serves This End: Law also is to serve this end. Duguit says:-"Law is rule which men possess not
by virtue of any higher principle whatever good, interest, or happiness but by virtue and perforce of facts,
because they live in society and can live in society."

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Implications of Degut's Theory

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Duguit's Attack on Sovereignty; His minimization of State Functions: He launched a vigorous attack

.
on the myth of state sovereignty. The 'social solidarity' is the touch-stone of judging the activities of
individuals and all organizations. State is also a human organization and it is in no way different from other
a

M
organizations. It is simply the expression of the will of individuals who govern. They too are under a duty to

m
ensure 'second solidarity'. Therefore, the state stands in no special position or privilege and it can be

a
justified only so long as it fulfils its duty. Duguit has no faith in an all powerful illimitable authority-sovereign.'

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He strongly pleads for the check on the State power. His plea is for the decentralization and ultimately he

A y
develops an idea of 'syndicalism'. Duguit's theory of minimization of State function leads him to deny any

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arbitrary power to legislator. Legislator does not create law 'but merely gives expression to judicial norm

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formed by the consciousness to the social group.'

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No Distinction Between Public and Private Law: Duguit's view on state and its function led him to deny
the distinction between private and public law. Both are to serve the same end, i.e., 'social solidarity'.
Therefore, there is no difference in their nature. Such a division will elevate the State above the rest of the
society which Duguit's theory never accepts. On this point Duguit' views are similar to that of Kelsen, the
propounder of the 'Pure Theory of Law.'

No Private Rights: Another important point in Duguit's theory is that he denies the existence of
private rights. With Comte he says-

"The only right which any man can possess is the right always to do his duty." Individuals working in any
capacity are the parts of the same social organization and each is to play his part in furtherance of the same
end social solidarity, 'though the latter proceeds from different premises.

Criticism Against Duguit's Theory: Duguit's theory has been criticized on various grounds-

43
'Social Solidarity' a Natural Principle: The first weakness of the theory is that though Duguit is a positivist
and excludes all metaphysical considerations from law his principle of 'social Solidarity' itself is a natural
law ideal. His special emphasis is on the valuation of law on a social plan. The facts of social life to which he
confines his study, in practice, tend to become a theory of 'justice'. He wants to establish an absolute and
uncontestable rule of law. Like 'natural law' theories he establishes a standard ('social solidarity') to which
all 'positive law' must confirm. It is nothing but natural law in a different form. Therefore, it has been rightly
observed that Duguit 'pushed natural law out through the door and let it come by window.'

'Social Solidarity' to be Decided by Judges: 'Social Solidarity' a vague expression; Social Solidarity' is
interpreted to serve divergent purposes. Again, a question may arise as to who is to decide whether a
particular Act or Rule is furthering the 'social solidarity' or not. Naturally, the judiciary will have the power to
decide it. But the judges too have their weaknesses and limitations, and this process may lead to a judicial

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despotism. The idea of social 'solidarity' is very vague and an analysis would reveal that it is not free from
metaphysical notion. 'Social Solidarity' may be subjected to different interpretations which may be pushed
to serve divergent purposes and actually they have been so used. Soviet jurists used Duguit's theory to
establish that individuals have no rights. His denial of the distinction between private and public law, his

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idea of minimising the state intervention (which resembles the Marxist view of 'withering away of state')
were other points of great attraction to Soviet Jurists.

He Confuses 'is' with 'Ought' : While defining law, Duguit confused it with what the law ought to be.

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According to his view, if law does not further the 'social solidarity' it is not law at all. He laid down certain

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fundamentals to which the law must conform. His definition of law instead of giving a clear cut picture of law

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confuses it as was done by natural law theories.

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He Overlooked the Growing State Activity: Duguit advocated for the minimization of State intervention at
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a time when State was growing all-important. Though he propounded his main thesis from the observable

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facts of social life, i.e. growing complexity and interdependence in society, he overlooked the fact that the

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social problems of modern community can be solved better by state activity is much more widened and has
grown very strong.
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from the individuals who constitute it.
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Inconsistencies in the Theory: Another weakness of Duguit's theory is its inconsistency at several

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places. On the one hand, he expresses faith in the biological evolution of society, and on the other hand, he
vigorously attacks the idea of collective personality. He denied any personality to state or group distinct

Duguit's Influence is Great: His idea of justice is in social terms. Later jurists took inspiration from him.
Despite defects and weaknesses in Duguit's theory, his contribution and influence were great. His
approach is very comprehensive and sincere. Though his theory ultimately becomes a theory of natural
law, or a theory of justice, which as we find in him is perfectly in social terms and derived from social facts.
He shaped a theory of justice out of the doctrines of sociology. Many later jurists, though proceeding from
different premises, reached similar conclusions as Duguit had reached (especially about the state, rights,
and public and private law). National socialists and Soviet jurists both adopted many of the principles from
such part of the theory, which supported their activities. Inspired by Duguit's emphasis on the importance of
'group' were many later jurists such as Hauriou and Renard. He is credited for his original and
comprehensive approach, which inspired many jurists to propound new theories.

Ihering

44
Ihering (1818-1892) He was a social utilitarian. He rejected the view of the Historical school. His 'system
develops aspects of Austinian positivism, combines them with principles of utilitarianism as established by
Bentham and developed by Mill."

Law is the Result of Constant Struggle: According to him, the development of law like its origin is neither
spontaneous nor peaceful. "It is the result of constant struggle or conflict with a view to attain peace and
order." Ihering says, "law is the guarantee of the condition of life of society, assured by the state's power of
constraint."

Law is to Serve Social Purpose: He takes law as a means to an end. The end of law is to serve purpose.
This purpose is not individual but social purpose. When individual purpose comes in conflict with social
purpose, the duty of the state is to protect and further social purpose and to suppress those individual

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purposes which clash with it. This end may be served either by regard or by coercion and it is the latter,
which is used by the state. Therefore, "law is coercion organized in a set form by the state."

Law is not the Only Means to Control Social Organism: But it should not be gathered that law is the only

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means to control the social organism, or it alone can protect and further all the social purposes. Law is the
only one factor among many others. There are some conditions of social life, such as climate etc, for which
no intervention by law is needed. There are some conditions of social life, such as climate etc for which no
law is made. Lastly, there are some conditions of social life, which are secured exclusively by law, such as

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the raising of revenue. In short, according to Ihering, law means those rules, which secure the conditions of

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social life by state through coercion. Law always has a purpose. The purpose is to further and protect social

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pursuit of pleasure and avoidance of pain. On this ground this theory is termed as social utilitarian. From

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these premises, Ihering laid down his theory of punishment and gave his analysis of many legal concepts.
His theory regarding punishment, in brief, is that punishment is a means to a social end. It should not be
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based on retributive or compensatory ground.

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Criticism Against Ihering's Theory
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He Points Out Only the Problems, not the Solution: The main criticism against Ihering theory is that

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though he says that the task of law is to reconcile the conflicting interest, he does not say in what direction it

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should be done. He draws our attention to the complicated problems of modern life but gives no solution to
it. His supporter answer this criticism by saying that it is enough that he drew our attention to problems, and

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one should not expect more than that from a theoriecian of his times.

Law Protects 'Will' and not 'Purpose': Another criticism is against his theory of purpose. According to him
the law protects will and not purpose. Korkunov has very stoutly defended Ihering's theory of purpose by
presenting a number of illustrations to show that law protects 'purpose and not 'will'.

Ihering's Contribution

Comparative Study of Legal Systems: Ihering rendered valuable services to the science of
jurisprudence. He was an investigator of ancient law, philogist and an anthropologist and made study of
various legal systems and said that law develops by conscious efforts. He launched a vigorous attack on
Savigny's historical theory and natural law theories. His juristic use of interests, as motive of social activity
is also very significant. In the fulfillment of social purposes he found the fruition of individual purposes,
which, later on, became the motto of socialist states.

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Founder of Sociological Jurisprudence: By pointing out the coercive character of law, by indicating that
law has only a relative value, by evaluating it in the social context and by speaking of it as an instrument and
source of social purpose, Ihering lays in embryonic form, all the chief traits of 'sociological jurisprudence',
which the later jurists elaborated. Roscoe Pound has given an account of the influence which Ihering had
on later jurists especially in Germany. Friedman calls him the 'father of modern sociological jurisprudence.

"He prepared" Friedman states, "the more elastic legal technique required to meet new and changing legal
problems by his fight against the 'jurisprudence of concepts'. Moreover, his insistence that law is realized
through struggle and self-assertion has effectively opposed the romantic conception of an unconscious
manifestation of the Volksgeist through the law."

By insisting at the same time on coercion as the characteristic of law and making the power of the state the

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instrument of law, Ihering has created the essential foundations of modern jurisprudence suitable to the
practical lawyer, because it was in much closer contact with the social realisties of the nineteenth and
twentieth centuries than Kant's idealism or Savigny's romanticism.

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Eugene Ehrlich

Law is to be Found in Social Fact: The central point in Ehrlich's (1882-1992) thesis is 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 at

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any other time the center of gravity of legal development lies not in legislation, nor in juristic science, nor in
judicial decision, but in society itself."
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'Living Law' is the Facts that Govern Social Life: The norms which, in fact, govern social life are only
partly reflected in the formal law (i.e. statute of judge-made law) of that society. The essential body of legal
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rules is always based upon the social 'facts of law'. The facts of law' which underlie all law are usage,

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domination, possession and declaration of will. These facts and the social relations make the 'living law of

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the people', state made laws (statutes and decisions) are only a part of this great body of law. Generally,

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these legal norms tag behind the 'living law.' Ehrlich gives examples of it from English commercial and

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many other branches of law where the relations, in practice, are regulated more by usages than by statutes.

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One may find some similarity between Savigny's Volkasgeist and Ehrlich's 'living law', but the latter's

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approach is more realistic and is concentrated on facts of law and avoids the former's mystical notions.
Ehrlich's plea is to enlarge the scope of jurisprudence. A proper study of law requires the study of all the

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social conditions in which the law operates.

No Substantial Difference Between the Formal Legal Norm and Customs, etc: According to Ehrlich,
there is no substantial differences between formal legal norms and the norms of customs or usages,
because the sanction behind both of them is the same (that is social pressure). If a statute is not observed in
practice, it is not a part of 'living law'. Hence he stands with Duguit on the point that the state is the source of
law. But he differs from Duguit on the point that whereas the latter puts his absolute un-contestable principle
of 'social solidarity', the former gives no such absolute principles and pleads for study of law in social
context.

Law according to the requirements of the society: His use of the term 'sociological jurisprudence'
means that law in a society should be made and administered with the utmost regard to its requirements. To
achieve this end a very close study of the social condition of the society in which the law is to function is
indispensable.

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Criticism Against Ehrlich's Theory

Makes no Distinction Between Legal and Other Social Norms: Theory outmoded: A very potent
criticism against Ehrlich's theory is that he makes no distinction between legal norm and other social norms
and confuses the whole matter. For proper study of jurisprudence, Friedman rightly says that 'Ehrlich's
sociology of law is always on the point of becoming a necessarily sketchy, general sociology. He expands
the scope of the subject and its relation to other social sciences to absurd limits. He established a seminar
of 'living law' for the 'cartography' of all possible phases of social activity. Prof. Allen rebukes this approach
by calling it as 'Megalomaniac Jurisprudence. Ehrlich overlooked the fact that sometime formal law
influences and changes the practice of the society. Again, his views on custom create type of law, which he
did not point out clearly. In modern times, custom is treated as but less and less important in the second
role. Modern society overwhelmingly demands articulate law made by a definite law giver. Such law will

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always, in varying degree, depend on these facts of law, but it does not derive its validity as law from this
factual observance. His view of the minimization of state function has become outmoded in modern times.

Roscoe Pound (1870-1964): Roscoe Pound of Harvard Law School can be called the father of the

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sociological jurisprudence. Pound is considered to be the 'American Leader' in the field of Sociological
Jurisprudence. He also shared the view that interests are the chief subject matter of law. For Pound, 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. According to him, the end of law should be to satisfy a

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maximum of wants with a minimum of friction.

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The Task of Law is 'Social Engineering': Pound's main thesis that the task of law is 'social

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engineering'. He says-

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"For the purpose of understanding the law of today, I am content with a picture of satisfying as much of the

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whole body of human wants as we may with the least sacrifice. I am content to think of law as social

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institution to satisfy social wants, the claims and demands involved in the existence of civilized society by

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giving effect to as much as we may with least sacrifice, so far as such wants may be satisfied or such claims

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or desires through social control; a more embracing and more effective securing of social interests; a

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continually more complete an defective elimination of waste and precluding of friction in human enjoyment

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of the goods of existence in short, a continually more officious social engineering."

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Social Engineering Means a Balance Between the Competing Interests in Society: The jurists must
work with a plan. By 'social engineering' Pound means a balance between the competing interests in
society. He entrusts the jurist with a commission. 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 legal history and the importance of reasonable, and
expatiate upon the interests to be protected by law. He himself enumerates the various interests, which are
to be protected by the law. He classifies them under three heads: Private interests, public interests and
Social interests.

Private, Public and social Interests. The Private Interests to be Protected by the Law are:

1) The Individual's Interests of Personality: These include his physical integrity, reputation,
freedom of volition and freedom of conscience. They are safeguarded by Government against
interference in the matter of belief and opinion;

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2) Individual's interests in children, and claims to maintenance,

3) Interests of substance: These include proprietary rights, inheritance and testamentary

succession, and occupational freedom. The principal public interests are-

(i) interests in the preservation of the State as such; and

(ii) interests of the state as the guardian of social interests.

The Social interests deserving legal protection are-

1) Interests in the preservation of peace and order and maintaining general security;

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2) Interest in preserving social institution like marriage and religious institution;
3) interest in preserving general morals by counteracting corruption, discouraging gambling and
invalidating transactions repugnant to current morality;
4) interest in conserving social resources

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5) interest in general progress which is to be achieved by freedom of education, freedom of speech
and expression, freedom of property, trade, and of commerce; and
6) interest in the promotion of human personality.

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Interest as the Main Subject Matter of Law: In short Pound's theory is that the "interests are the main

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subject matter of law and the task of law is the satisfaction of human wants and desires. It is the duty of law

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to make a 'valuation of interests.' In other words to make a selection of socially most valuable objectives and

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to secure them. At the same time the function of law is to strike a balance between stability and change.

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There is no any hard and fast rule for the valuation of interests. They are relative. It is responsibility of the

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jurists to make study of the interests by a 'sociological technique' and to evaluate them. This all is nothing
more than an experiment. That is why Prof?
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Criticism Against Pound's Theory

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'Engineering' Nor a Happy Word; 'Engineering' Ignores an Important Part of Law: Danger to
individual freedom. A general criticism against Pound's theory is regarding his use of the word 'engineering'

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because it suggests a mechanical application of the principles to social needs. But, really speaking, the
word "engineering" is used by Pound metaphorically to indicate the problems which the law has to face, the
objectives which it has to fulfill and the method which it will have to adopt for this purposes. Pound has
admitted that philosophy has failed to provide and ideal scale of value with reference to interests. In fact,
Pound himself has admitted that philosophy has failed to provide an ideal scale of values and that the best
that jurist can do is to proceed with the task of adapting law to the needs of his generation the choice
between conflicting ideologies is one for the community at large. Another criticism against his theory is that
emphasis on 'engineering' ignores an important part of law, which develops and evolves in the society
according to social needs and the law simply recognizes or approves it. This dynamic feature of law is
undermined. But, as in modern time, law is generally made consciously and deliberately, this criticism does
not hold much water. Secondly, Pound's suggestion for maintaining a balance, covers that aspect also.
Prof. Allen has pointed out a danger in the utilitarian trend of pound's theory that if we confine the
interpretation of 'wants and desires' (used by Pound) only to material welfare it may make serious inroads
on personal freedom and other things which contribute greatly for happy and rich life.

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Classification of Interest not Useful: Freidmann doubts the value of classification of interests. He states-

What is the Value of Such Classification?: In the first place, it pursues a line of thought originated by
Inhering and Bentham, which is the approach to law as a means to a social end and as an instrument in
social development. In the second place, such a classification greatly helps to make inarticulate premises
articulate, to make the legislator as well as the teacher and practioner of law conscious of the principles and
values involved in any particular issue. It is thus an important aid in the linking of principles values involved
in any particular issue. It is thus an important aid in the linking of principle and practice.

It is, however, equally essential to realise that any classification is in the nature of catalogues, to which
additions and changes have constantly to be made, and which is neutral as regards the relative value and
priority of the interests enumerated. As soon as the interests ranked in a specific order or given any

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appearance of exclusiveness or permanence, they lose their character as instruments of social
engineering and become a political manifesto. Pound himself has inserted a certain evaluation by
describing the interest in individual life as the most important of all. There is, however, as Pound himself
recognises, the danger of an implicit evaluation in the grading of interest is itself a matter of changing

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political or social conditions. What is an individual and what is a social interest is itself a matter of changing
political conception. Many interests come under different individual interest of personality as well as social
interest in economic progress. It is not only the numeration of interest as such but also their respective
weight which is a matter of changing political and social philosophies. The very conception of neutrality in

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the catalogue of interests, the evaluation of which depends on changing political and social system is
characteristic of liberal approach."
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Pound's Contribution: Pound's theory is free from dogmas. He points out the responsibilities of the judge
and the lawyer. Pound's contribution to jurisprudence is great. His takes a middle way avoiding all
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exaggerations. He speaks of values but says that they are relative. He approach is experimental. Pound's

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theory stands on a practical and firm ground and it has inspired great practical fieldwork. His emphasis on

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studying the actual working of legal rules in the society, the importance of social research for good law

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making and pointing out the great constructive function which the law is to perform are very valuable

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contributions to jurisprudence. He points out the responsibility of the lawyer the judge and the jurist and

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gives a comprehensive picture of the scope and field of the subject. Pound's influence on modern legal

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thought is great and the study of the subject is being undertaken under the light of this theory.

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Conclusion

The Common Point Law to be Studied in Relation to Society: It is to be stated that howsoever divergent
the views of various sociological jurists may a9pear, they have one common point that the law must be
studied in relation to society. This view has a great impact on modern legal thought. But it should not be
taken to mean that other methods have completely ceased to exist. Still there are advocates of natural law
thought with a 'variable content'. There are Catholic jurists who plead for maintaining a close relationship
between law and morals. But these approaches are, in many respects, basically different from earlier
approaches of type on the subject and are influenced by sociological approach.

LEGAL REALISM

The realist movement is a part of the sociological approach and is, sometimes, called the 'left wing of the
functional school'. It casts light on the realities. The founder of this school is J. Holmes and the supporters
are Prof. Gray, Liewellyn and Frank. It differs from the sociological school in respect of the fact that it is little

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concerned with the ends of law. It concentrates on a scientific observation of law in its making and working.
This movement is named as 'realist' because this approach studies law as it 'is' in actual working and its
effects.

The exponents of realist school reject the traditional definition of law that it is a body of rules and principles
that courts enforce. They avoid any dogmatic formulation and concentrate on the decisions given by law
courts. The decisions are not based only on formal law but also on the 'human factor' in the judge and the
lawyer. According to them, law is only an official action, and therefore, the forces that influence a judge in
reaching a decision (including bribery and corruption) are within the field of Study.

Factors Responsible for Realist Approach: Realist approach, firstly, reflects the influence of the
pragmatic philosophy which had its origin in America. Second and the most important factor which seems to

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have led to this thought is the organisation of judiciary in that country. The American Supreme Court is the
final authority to intrepret the law and to judge its validity. The judges of the lower courts are elected;
therefore, they are influenced by extraneous considerations in deciding cases and sometimes do not enjoy
the confidence of the people. The existence of separate State jurisdiction has caused multiplicity of law and

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decisions. All these made some jurists to concentrate more on courts to know the actual working of law and
to study those factors which determine and influence it. As these jurists made the actual working and effect
of law the subject-matter of their study, they were called 'Realists'.

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1) Justice Holmes (1841-1935) : He have an entirely empirical and skeptical definition of law in these

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words: "Take the fundamental question, what constitutes the law .... you will find some text writers telling

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you that it is something different from what is decided by the courts of Massachusetts or England, that it

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is a system of reason, that it is a deduction from principles of ethics or admitted actions, or what not,
which mayor may not coincide with the decision. But if we take the view of our friend, the bad man, we
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shall find that he does not care two straws for the action or deduction, but that he does want to know

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what Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of

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what the courts will do in fact and nothing more pretentious are what I mean by the law."

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Prof. Dias points out that Justice Holmes was not giving a final definition of law. The statement that law

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is only what courts do is iconoclastic and suggests that ethics, ideals and even rules should be put on

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one side. Holmes himself had no such intention as he himself insisted in the same paper on the need to
restrict the area of uncertainty and the need for more theory. Holmes played a fundamental part in

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bringing about a changed attitude to law. He puts emphasis on the fact that the life of law was
experience as well as logic. He stressed the empirical and pragmatic aspect of law. For him, legal
history was to be studied primarily as a first step towards a deliberate reconsideration of the worth of
rules developed historically.

According to Holmes, law must be strictly distinguished from morals. A lawyer is concerned with what
the law is and not with what it ought to be. Holmes was never tired of asserting how "policy" governed
legal development, especially in the form of the "inarticulate" convictions of those engaged in creating
law.

Hilmes felt that the development of law could be justifed scientifically. In this respect, Holmes relied
more on practical than on pure science. The lawyer trained in economics and statistics though he
nowhere clearly indicated how an objectively sound "policy" was to be attained, Holmes accepted the
possibility of scientific valuation in law, but he did not go so far as Dewey in the view that the choice
between different values can also be verified scientifically.

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 Holmes's view of law as "prediction" placed both litigation and the professional lawyers in the centre of
the legal stage. His emphasis on what courts may do, rather than on abstract logical deduction from
general rules, focused attention of the empirical factors which constitute a legal system. There was
much in the American system which made this new approach acceptable to American lawyers. Holmes'
reliance on practical social science seemed to point the way to future progress.

3. Gray defined law as "what the judges declare." He emphasised the fact that the personality and the
personal views of a judge play an important role in decisions. He prepared the grounds for a more
skeptical approach which proceeded to point out with greater emphasis the importance of non-logical
factors in decisions.

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4. Jerome Frank (1889-1957): His thesis is that law is uncertain, 'certainty of law is a legal myth.' The
child-like craving for certainty of law in men is due to the psychology which develops from childhood
when he gets protection and safety from his father. In other words, it is the 'father-complex' which makes
one to think of certainty. According to some critics, this is a Frieudian approach in the field of

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jurisprudence which is not at all necessary.

Frank says that it is not proper for lawyers and judges to stick to the myth of legal certainty in the name of
'precedent, or codification'. He points out the constructive work which judges and lawyers are required

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to do in every case. He speaks of the importance and necessity of law making by evaluating the facts of

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every individual case under the changed social conditions. However, it should not be taken that he

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wants complete divorce of principle; his view is only to maintain a balance and to develop the law in

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consonance with the advancement of civilization.

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5. Llewellyn: According to Llewellyn, realism means a movement in thought and work about law. This

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approach takes law as a means to social ends and any part of it needs constant examination for its

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purpose and effect. It implies the conception of a society which changes faster than the law. Therefore,

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it is the duty of the jurists to examine how the law meets contemporary social problems. For the

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purposes of study, realism makes a temporary separation between 'is' and 'ought'. It means that while

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one is investigating what the law does and how it works, the ideas of justice and other considerations as

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end of law, etc. should be put aside. 'Realism' distrusts traditional legal rules and concepts. It
concentrates more on what courts and people are actually doing. It does not accept theory that the legal

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rules are the only operative influence in the decision of a case. Realism defines law as 'generalised
prediction of what the court will do'. Therefore, they study law in narrower categories.

Characteristics of Realistic Movement: According to Llewellyn the following are the characteristics
of realist movement-

1. There is no realist school, realism means a movement in throught and work about law.

2. Realism means a conception of law in flux and as a means to social ends, so that any part is to be
examined for its purpose and effect. It implies a concept of society which changes faster than the
law.

3. Realism distrusts traditional legal rules and concepts in so far as they purport to describe what
either courts or people are actually doing. In view of the definition of rules (as "generalised
predictions of what the courts will do") realism groups cases and legal situations in narrower

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 categories than was the practice in the past.

4. Realism insists on the evaluation of any parts of the law in terms of its effect. Thus, this approach
insists 'on evaluation of any part of law in terms of its effects' and 'the worthwhileness of trying to find
these effects'.

Llewllyn suggests to study the problems of law on these lines and he lays down the techniques and the line
of enquiry to be adopted. He emphasises the study of case-law and to take into consideration the
personality of the judge and the jury. He further lays down a broad scheme for research which includes the
activities preceding legislation, the process of legislation, the activities of administrative bodies and the
activities of different courts and their relations and many other connected things.

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Criticism Against Realist Approach: The realist approach is criticized on the following grounds-

1. The realists have undermined the importance of legal principles and rules and regard law as a
jumble of unconnected decisions. For them, 'law never is, but is always about to be'.

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2. Their main concentration is on litigation, but there is a great part of law which never comes before
the courts.
3. The Realists launched a vigorous attack against juristic complacency and the myth of 'certainty',
but, in actual practice, we find a great amount of certainty and a lot of transactions are regulated on this

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basis.
4.
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The Realists have exaggerated the human factor in judicial decisions. Undoubtedly, it plays a part

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but it does not mean that judicial determinations are the result only of the personality of the judge.

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5. The Realist approach of American jurists is based on and is concerned with their own local judicial
setting, and, therefore, it does not give a universal method.
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Contribution of 'Realist' Approach: The 'Realist' movement has made valuable contributions to

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jurisprudence. Their approach to law is in a positivist spirit and they are not concerned with any theory of

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justice or natural law. They say that the 'certainty of law' is a myth. They plead for a comprehensive

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approach and examination of all the factors that lead in reaching a decision. Realists goaded the lawyers to
realise the nature of their work. Frank correctly observes that "it has contributed in parts to the liberation of
judges from enslavement by unduly rigid legal concepts, caused those judges to ground their reasoning on
broader and more human rule premises."

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ECONOMIC INTERPRETATION OF LAWS

The constitution of India is a basic legal document. It is fundamental law of the land. It is framed by the
constituent assembly. The preamble of the constitution suggest that the goal of our country is to achieve a
situation in which all the people of India got social economic and political justice. This means our law is
framed to ascertain economic equality.

Economic justice means the law should be legislated keeping in mind the poor and weaker section of the
society. Part IVth of our constitution i.e., Directive Principles of State Policy are the principles that are
enacted for the social well being. The provisions of this chapter like are equal pay for equal work. Maternity
benefit etc. promote economic equality.

The law should be interpreted liberally and for the welfare of the society. They should be interpreted in the
light of the objectives enshrined in the preamble of our constitution.

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SOCIAL AND ECONOMIC JUSTICE

Social Justice: Sometimes called civil justice, refers to the concept of a society in which justice is achieved
in every aspect of society, rather than merely the administration of law. It is generally thought of as a world
which affords individuals and groups fair treatment and an impartial share of the benefits of society. It can
also refer to the distribution of advantages and disadvantages within a society.

Social justice is both a philosophical problem and an important issue in politics, religion and civil society.
Most individuals wish to live in a just society, but different political ideologies have different conceptions of
what a 'just society' actually is. The term "social justice" is often employed by the political left to describe a
society with a greater degree of economic egalitarianism, which may be achieved through progressive

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taxation, income redistribution, or property redistribution. The right wing also uses the term social justice,
but generally believes that a just society is best achieved through the operation of a free market, which they
believe provides equality of opportunity and promotes philanthropy and charity. Both the right and the left
tend to agree on the importance of rule of law, human rights, and some form of a welfare safety net (though

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typically the left supports this last element to a greater extent than the right).

Social Justice features as an apolitical philosophical concept (insofar as any philosophical analysis of
politics can be free from bias) in much of I writing. It is fundamental to Catholic social teaching. Social justice

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is also a concept that some use to describe the movement towards a socially just world. In this context,
social justice is based on the concepts of human rights and equality.
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Economic Justice: Definition - Economic justice, which touches the individual person as well as the social
order, encompasses the moral principles which guide us in designing our economic institutions. These
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institutions determine how each person earns a living, enters into contracts, exchanges goods and services

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with others and otherwise produces an independent material foundation for his or her economic

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sustenance. The ultimate purpose of economic justice is to free each person to engage creatively in the

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unlimited work beyond economics, that of the mind and the spirit.

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The Three Principles of Economic Justice: Like every system, economic justice involves input, output,

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and feedback for restoring harmony or balance between input and output. Within the system of economic
justice as defined by Louis Kelso and Mortimer Adler, there are three essential and interdependent

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principles: The Principle of Participation, The Principle of Distribution, and The Principle of Harmony. Like
the legs of a three-legged stool, if any of these principles is weakened or missing, the system of economic
justice will collapse.

IMPORTANT QUESTIONS
Q.1. Discuss the sociological school of law in detail.
Q.2. Write short note on :
a) Duguits "social solidarity"
b) Eugene Ehrilch's "The Theory of Living Law"
c) Dean Roscoe Pound's "Social Engineering Theory"
d) Legal Realism
Q.3. Discuss the contribution of Justice Holmes and Jerome Frank in the development of legal realism
theory.

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Q.4. Write short note on:
a) Economic Interpretation of Laws
b) Social and Economic Justices

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 UNIT- IV
LEGAL CONCEPTS - I
ADMINISTRATION OF JUSTICE

Definition of Administration of Justice: The function of the judiciary is to protect and enforce the rights of
individuals and to punish the wrongdoer. This function is called administration of justice. Justice denotes
justice according to law or in other words enforcement of rights as they are defined by law. Thus to

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adjudicate the rights and duties of the individuals on the basis of the rules laid down by the state is
administration of justice.

According to Salmond, "The administration of justice implies the maintenance of right within a political

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community by civilized substitute for the primitive practice of private vengeance and violent self-help."

There are a number of other factors such as the social sanction, habit, convenience etc, which help in the
obedience of law. Thus administration of justice implies three things; the state, the law, and securing

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obedience to law by means of the physical force of state.

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Advantages of Administration of Justice: Administration of justice means justice according to law

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and it has the following advantages-

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1. It brings uniformity in the administration of justice.
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As the law is known to the citizens, it enables them to regulate their conduct in accordance with
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it.

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3. As the rules are fixed, it helps judges in applying the law uniformly. In administering justice there

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are little chances of discrimination.
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As justice is done according to the fixed principles of law, it ensures impartiality and equality.

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5. The rules of law represent the collective wisdom of the community.
6. Administration of justice brings uniformity and consistency in the law.

Disadvantages of Administration of Justice: Administration of justice has following

disadvantages-
1. It makes law rigid. The same rules are applied to all the cases of similar nature and it
sometimes causes hardship and injustice.
2. Sometimes law tends to be conservative and it does not keep pace with the changed conditions.
3. Due to this law, becomes formal and importance is given to form than to substance.
4. Law becomes complex.

ADMINISTRATION OF JUSTICE

Kinds of Administration of justice: Administration of justice may be divided in two parts-

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 i. Civil
ii. Criminal

The wrongs which are subject matter of civil proceedings are called Civil Wrongs
The wrongs which are subject matter of criminal proceedings are called Criminal Wrongs.
The above two parts of administration of justice differ from each other on following points-

1. Civil justice is administered by civil courts and criminal justice is administered by criminal courts.
2. The form and procedure for the administration of these two classes are different.
3. The result of proceedings is also different. A successful civil proceedings results in a judgment for
damages, or recovery of debts or any other like relief.

a)
b.
Primary Rights
Sanctioning or Remedial Rights- S
A successful criminal proceeding results in the punishment of the wrongdoer.

Civil Justice: The rights enforced by civil proceedings are of two kinds-
a.

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Primary Rights: Primary rights are those rights which exist as such and they do not have their

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source in some wrong.

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hb) Sanctioning or Remedial Rights: Sanctioning or remedial rights are those rights, which come into
being after the violation of (primary) rights.
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The administration of civil justice is of two kinds. The division is based on the nature of rights,
which an to be enforced by civil proceedings-
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1. Specific Environment: The first aim of law is to enforce the primary rights. Where the primary

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rights themselves can be enforced, there is no question of any sanctioning right for that purpose. The

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enforcement of primary right is specific enforcement.

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Sanctional Environment: However, there are cases where the primary right, as such, canna be

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enforced. In such cases sanctioning rights are enforced. Salmond calls the enforcement a the
sanctioning rights as 'sanctional enforcement'. Sanctioning rights are enforced in two kind: of cases-

a) The first kind of cases of sanctional enforcement is of those where it is not possible it enforce the
primary right.

b) The second kind of the case where the sectional enforcement is applied is of those il which though
the law can enforce the primary right, it does not enforce it as a matter c policy and awards damages
only.

The right of the plaintiff is either-

a. to receive money from the defendant which amounts to penalty on the part of defendant; or
b. to receive damages or pecuniary compensation. It is of the following nature-

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 a) Restitution. If the defendant is ordered to return or to restore any benefit, which he has taken from
the plaintiff, it is restitution.

b) Penal redress. If the law compels the defendant to pay to the plaintiff the loss suffered by him by the
wrongful act of the defendant without any consideration whether the defendant gained any thing out
of it or not, it is a penal redress.

Administration of Criminal Justice: The purpose of criminal justice is to punish the wrongdoer. The first
question that arises about the administration of criminal justice is purpose of punishment, or what is the end
of criminal justice. From very ancient times, a number of theories have been given concerning the purpose
of the punishment. These theories may be divided broadly into two classes.

THEORIES OF PUNISHMENT

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Theories of punishment are of two kinds. One class of the theories says that the end of the criminal justice is

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to protect and add to the welfare of the state and the society. The other class of the theories says that the
purpose of the punishment is retribution. The offender must be made to suffer for wrong he has done. "The
former class of theories makes a sociology approach and they are allied with the collectivist theory of state.
The theories of the latter class are based on ethical or moral grounds and they make an individualistic

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approach to the problem. They take the individual only as an individual and not as a unit in a group.

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There are five theories of Punishment-

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Preventive Theory of Punishment: This theory says that the punishment is for the purpose of
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disabling or preventing the offender from committing the offence again. In olden days the offender was

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prevented from committing theft by chapping of his hand. The death punishment is the most effective

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mode of preventing the offences. This purpose is served also by the execution of the offender.

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Therefore, then is an alternative punishment in these cases. In modern times, certain other preventive

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measures are adopted in various new kinds of offences. Some such measures are: forfeiture of office,

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suspension or cancellation of license for dealing in goods or driving etc. Apart from applying

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punishment as a measure for preventing the offender there are other measures in criminal proceedings
to prevent offences. These measures are purely preventive and are applied against the persons who

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threaten to commit offences, or are, otherwise dangerous to the society. Such preventive measures
are: preventive detention, security for keeping the peace or security for good behavior, etc. But these
preventive measures must be distinguished from punishment, which is punitive.

2. Deterrent Theory: According to some jurists, the deterrent punishment is the important purpose of
the criminal justice. Salmond says, "Punishment is before all things deterrent and the chief end of law of
crime is to make the evil-doer an example and a warning to all that are like minded with him." This theory
says that by punishment the wrongdoer is made an example. It creates awe not only in the mind of the
offender alone, but in the minds of others also and deter them from committing crimes. In this way it
checks crimes. In olden times, the severe punishment and the execution of the sentence before the
public were meant to serve this end.

3. Reformative Theory: This theory is of recent origin. It makes a study of the psychology of the
criminal and takes punishment as a means to a social end. It says that the offences are committed
under the influence of motive upon the character. Therefore, they can be checked either by a change of

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 motive or by a change of character. The defective mental condition of the criminal is also a reason for
the commission of crime. In other words, crime is the result of a disease. This theory puts more
emphasis upon the personality of the offender and considers him to be patient who should be given a
proper treatment. It takes punishment not as end in itself, but as a means to an end. It approaches
criminology from a sociological and utilitarian point of view. In short, according to this theory the
purpose of punishment should be to reform the criminal and to make him a good citizen. "Crime is a
pathological aberration, the criminal can ordinarily be redeemed. The state has to rehabilitate rather
than avenge. The sub culture that leads to anti-social behavior has to be countered not by undue cruelty
but by re-cauterization. Therefore the focus of interest in penology is the individual and the goal is
savaging him for society. The infliction of harsh and savage punishment is thus a relic of past and
regressive times. The human today views sentencing as a process of reshaping a person who has

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deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the
offender as a means of social defence. Therefore, a therapeutic rather than an "in terrorem" outlook,
should prevail in our criminal courts, since brutal incarceration of the person merely produces
laceration of his mind. In modern times, there is growing recognition of this theory. It has been stated by

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the Supreme Court that the penological purpose of sentence is, importantly, reformatory. It is so actual
application in certain classes of cases.

Juvenile Offenders and Reformative Theory: Reformative theories have been growingly adopted in
case of juvenile offenders. In India the oldest legislation of the subject is Reformatory School Act, 1890.

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Reformatory Schools were considered as schools for industrial Training of Youthful Offenders where

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youthful offenders were lodged, clothed, fed as well as taught with a view to their rehabilitation. The Act

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aimed at preventing the depraved and delinquent children from becoming firm criminals in coming

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years. According to Section 4 (a) 'Youthful offender' means any boy who has been convicted of any

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offence under the age of fifteen years. Thus the section abolishes all criminal proceedings for offences
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other than homicide against children. It places the entire responsibility of dealing with delinquent

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children on the local authority. Section 5 gives power to State Government to establish and maintain
Reformatory Schools.
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(b)

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According to Section 6, the Reformatory School must provide-

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Sufficient means of separating the inmates at night;

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Proper sanitary arrangements, water supply, food, clothing and bedding for the youthful offenders

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detained therein;

Retributive Theory: The origin of this theory lies in the primitive notion of vengeance against the
wrongdoer. When the society progressed, crimes were considered as a wrong against the whole of the
society and not only against a particular individual. Now, the state was substituted at the place of
individual, and as such the state initiated the proceedings against the criminal and was a party in such
proceedings. Now, the punishment gratifies the instinct of revenge not only of a single society because
if a criminal wrong is committed against an individual the extension of social sympathy in his favor
makes it a wrong against the whole of the society. Therefore, the society is interested in the punishment
of the wrongdoer, and thus the punishment satisfies a social instinct. Retributive theory considers
punishment as an end in itself. If an evil has been done, it can be undone or negative only by doing an
evil (that is punishment) against the wrongdoer. "An eye for an eye and a tooth for a tooth" is the
purpose of punishment according to his theory. If a person does a wrong intentionally, it must be
avenged. This theory proceeds on ethical grounds, and therefore, it concentrates upon the moral
culpability of the wrongdoer. Most of the ancient lawgivers and jurists considered retribution as the chief

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 purpose of the criminal justice. Some modern philosophers also have supported the view. Kant said,
"Punishment cannot rightly be inflicted for the sake of any benefit to be derived from it, either by the
criminal himself or by society, and that the sole and sufficient reason and justification of it lies in the fact
that the evil has been done by him who suffers it." It is submitted that, in modern times, it cannot be said
that the punishment is based only on vengeance. It is, more or less, considered to be a measures to
maintain order and peace in the society. Though retribution (as the purpose of punishment) has still an
important place in the popular thought, there is a growing tendency to regard punishment as a means to
an end and not an end in itself.

5. Expiatory Theory: This theory is linked with the retributive theory and is sometimes, considered to
be a part of it. It says that by undergoing punishment the crime is expiated. This has been the view of

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ancient Hindu lawgivers. Manu says "Men who are guilty of crimes, when condemned by the kind
become pure and go to heaven in the same way as good and virtuous men go." There are a number of
puranic stories in which persons underwent voluntary or self-imposed punishment if any wrong was
done by them so that wrong might be expiated. Hegel has also supported this theory. He says that the

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punishment makes the criminal. to expiate for the wrong done. This theory is based on morals and as a
purpose of punishment it has little value.

Criticism Against Preventive Theory:

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Criticism Against Preventive Theory: The preventive theory says that the punishment is for the purpose

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of preventing the offender from committing the offence again. It is submitted that it is not very logical and

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convincing and it will not work very successfully in checking crimes. If a person has committed a crime

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under some extraordinary psychological stress, or under some special circumstances, there is little

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possibility of his repeating it again. To punish such man so that he might not commit the crime again is
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meaningless. On the contrary, the punishment hardens his nature and he might do the crime again. The

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keeping of first or juvenile offenders with the habitual can have adverse effect upon them. Therefore, the

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punishment does not serve the purpose of preventing offences as the theory says and rather it develops a

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tendency in the offender to commit the crime again.

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Capital Punishment: There has been a world wide growing humanistic approach to the criminal and

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punishment. Efforts have been made and are being made to make punishment liberal and reform the
prisons. For quite sometime there has been a move to abolish death sentence. There has been a growing

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public opinion in favor of it. Though it has not been abolished so far the law has growingly become liberal in
this respect.

In 1962 a resolution was moved in the Lok Sabha for the abolition of capital punishment. The Government
assured the House to refer the matter to the Indian Law Commission and consequently it was referred to the
latter. The law Commission thoroughly examined the matter from various angles and took extensive
evidence. It recommended that the issue of abolition or retention has to be decided on a balancing of the
various arguments for and against retention. In arriving at any conclusion on the subject the need for
protecting society in general and individual human beings must be borne in mind.

Criminal Procedure Code 1973 made a further progress in the direction of liberalization. Section 354 (3)
provides that when the conviction is for an offence punishable with death or in alternative with imprisonment
for a term of years, the judgment shall state the reason for the sentence awarded and in case of sentence of
death the special reasons for such sentence. It will be seen that the shift in the legislative emphasis is that
for murder, life imprisonment should be the rule, capital punishment the exception to be resorted to only for

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reasons. Interpreting this provision, justice Krishna Iyer in E. Anamma V. State of Andhra Pradesh said:

"The disturbed conscience of the state on the vexed question of legal threat to life by way of death sentence
has set to express itself legislatively. The screen of tendency being towards cautious, partial abolition and a
retreat from total retention."

Thus in case where there are extenuating circumstances the accused is punished with life imprisonment. In
absence of extenuating circumstances the death punishment is given. In fact, death sentence is awarded
only in those cases where there are aggravating circumstances.

Recently, constitutionality of death penalty for murder provided under Section 302 of the Indian Penal

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Code, and the sentencing procedure embodied in Section 354 (3) of the code of Criminal Procedure, 1973
was challenged in the Supreme Court, on the ground that they are violative of Articles 14, 19 and 21 of the
Constitution. The majority of the Constitution Bench to whom the matter was referred held that provision of
death penalty as alternative punishment for murder and also the sentencing procedure in section 354 (3) do

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not violate Articles 14, 19 and 21 of the Constitution. The majority view of Bhagwati J., the reasons for which
have been given after more than 2 years, is that death penalty under Section 302 of the IPC read with the
sentencing procedure under Section 354 (3) of the Criminal Procedure Code, 1973 was constitutional and
not violative of Articles 14 and 21 of the Constitution.

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The Supreme Court evolved the Doctrine of the rarest of the rare cases and now capital punishment is only

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awarded in the case which comes under the category of the rarest of the rare cases. In the case of Machhi

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Singh and Bachan Singh, The Supreme Court held that life imprisonment is a rule and death sentence is an

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exception.

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Deterrent Theory Criticized: Deterrent theory contains some truth. To deter the criminal as well as others

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is the purpose of punishment and has been the view of the jurists since very early times. But the punishment

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cannot have its deterring effect in all the cases. In many cases, offences are committed under the heat of

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passion or extreme excitement or provocation. In these conditions, the offender loses his mental balance

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and commits the offences without directing his mind to the consequence. In such cases the punishment

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hardly works as a deterrent. Secondly when the offender is once punished, the punishment to some extent

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loses its rigour for him and it is a matter of common experience that an offender who has once undergone
imprisonment is no longer afraid of it to the same degree as he was before the punishment. Thus, the

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punishment has little deterrent effect upon the offender who has been offered it.

Views of Reformative Theory: The usefulness of the reformative theory is a debatable point. As
discussed earlier, this theory says that the purpose of punishment or criminal justice should be to readjust
the prisoner to the demands of the society. Much attention should be given to the criminal than to the crime.
The punishment should educate and make the criminal disciplined.

This theory considers the offender as a patient and admits punishment to cure him so that he might become
a good citizen. It has developed in recent times. It is a result of growing sociological outlook and the recent
researches in psychology. Now this theory commands a worldwide support. It has been criticized on a
number of grounds. It is said that there are dangers in the practical application of the theory. As a matter of
experience, there are persons who are incurably bad. To them crime is a habit, part of their nature and they
are beyond the reach of any reformative influence. In such cases reformative theory is of little use.
Secondly, if the offenders are kept in prison very comfortably, the prisons might turn into dwelling houses, at
least, for the poor and destitute and they would resort to some kind of offences to go to the prison house.

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Thus, this theory will fail in checking commission of offences. Thirdly, this theory does not take into
consideration numerous other cause of committing crimes. There are cases where crimes are committed
casually.

Reformative Theory Envisages a Particular Kind of Society: It is submitted that many of the arguments
given against the reformative theory are based on false assumptions and present only a one-sided picture
of it. Reformative theory envisages a society, which is developed and civilized to a particular stage. The
theory, undoubtedly, would not be applicable in all the societies. In a society where the majority of the
people suffer from want and distress, where the people are divided between classes on highly rich and the
other extremely poor, the reformative punishment would prove not only fruitless but dangerous also. If a
man is to suffer want, worry and starvation everyday, he would naturally prefer to go to prison where he

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would be in a position to keep his body and soul together. Thus the theory can be applied more successfully
in a developed and civilized society than in a poor and backward one. In India, though we cannot claim that
we have removed all the social and economic disabilities and inequalities, in the light of the developments
already made and likely to be made in future, we can safely say that the prospects of the application of the

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theory are very bright.

Retributive Theory Criticized: Retributive theory is based on the idea of revenge against the wrongdoer.
According to this theory the ground of the punishment is the moral blameworthiness of the offender. In
modern times, the theory has not the same narrowness as it had in the beginning. This theory has got an

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important place in the popular thought. The main defect of the theory is that it ignores a very important

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purpose of the punishment as well as of law. It does not regard punishment as measure of social security

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and welfare but considers it as an end in itself. In the present age which is of utilitarianism and socialism

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such a view cannot be admitted.

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The criminologists believe that this change from ethical to sociological base is a final change. It is submitted

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that this does not appear to be a sound view. The inhuman acts in the two World Wars and a general moral

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degeneration have tilted the balance in favor of looking to the moral blameworthiness again and to make it

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the basis of punishment.

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Possibility of the Revival of Retributive Punishment: Pointing out this development Keeton writes: "In

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developed societies at any rate, the pendulum will again swing from sociological to the ethical approach to
crime. Such a change indeed would be a necessary consequence of a reassertion of individualism. If that

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swing occurred then it would probably bring in its train a revival of the punitive theory of criminal justice,
having as its object the purging of the offence through the infliction of punishment, in the widest sense of the
word, upon the offender."

Expiatory Theory Criticized: Expiatory theory of punishment is closely related to the retributive theory.
The distinction between the two is that in retribution the person against whom the wrong has been
committed receives a satisfaction but in expiation the punishment is given to the offender for his outraging
the majesty of law.

Punishment Serves Many Purposes: In modern times, punishment is not for one purpose alone, but it
serves many purposes. It is retributive, deterrent, and preventive at the same time. In some cases, the
purpose of the punishment is reformative also, such as, in case of juvenile or first offenders. But which one
purpose it serves mainly is a point upon which there is no agreement among the jurists. Salmond says "It is
needful then, in view of modern theories and tendencies, to insist on the primary importance of the deterrent
element in criminal justice. The reformative element must not be overlooked but neither must it be allowed

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to assume undue prominence". According to Keeton, there is a possibility of the revival of the ethical basis
of the criminal justice.

Most of the views about the purpose of punishment have been given without making a careful study of the
theories of punishment. Really speaking these theories stand in a historical order and they were given in
different social backgrounds. The retributive theory had its source in the notion of private vengeance in the
primitive society. When society developed further, and a priestly class came to dominate it, expiatory theory
seems to have come into being. The preventive and the deterrent theories came when the social
organization had grown stronger and the state had become powerful. In this way, through the various
stages of development, the purpose of punishment went on expanding.

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In Modern times, the researches in various fields of knowledge, new inventions and discoveries, etc., have
made a complete change in the outlook towards the concept of the society, the individual and the state.
Now, the states are becoming welfare states. Utilitarianism and socialism have become the motto of the
present age. It is in this background that the reformative theory has come into existence.

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JUSTICE (MEANING AND KINDS)

Concept of Justice: Justice concerns the proper ordering of things and persons within a society. As a
concept it has been subject to philosophical, legal, and theological reflection and debate throughout history.

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According to most theories of justice, it is overwhelmingly important: John Rawls, for instance, claims that

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"Justice is the first virtue of social institutions, as truth is of systems of thought." Justice can be thought of as

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distinct from and more fundamental than benevolence, charity, mercy, generosity or compassion.

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Kinds of Justice
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1.
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Justice as Harmony: In his dialogue Republic, Plato uses Socrates to argue for justice which

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covers both the just person and the just City State. Justice is a proper, harmonious relationship between

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the warring parts of the person or city. Hence Plato's definition of justice is that justice is the having and

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doing of what is one's own. A just man is a man in just the right place, doing his best and giving the

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precise equivalent of what he has received. This applies both at the individual level and at the universal

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level. A person's soul has three parts - spirit, resourcefulness and mindfulness. Similarly, a city has
three parts - Socrates uses the parable of the chariot to illustrate his point: a chariot works as a whole

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because the two horses' power is directed by the charioteer. Lovers of wisdom - philosophers, in one
sense of the term - should rule because only they understand what is good. If one is ill, one goes to a
doctor rather than a quack, because the doctor is expert in the subject of health. Similarly, one should
trust one's city to an expert in the subject of the good, not to a mere politician who tries to gain power by
giving people what they want, rather than what's good for them. Socrates uses the parable of the ship to
illustrate this point: the unjust city is like a ship in open ocean, crewed by a powerful but drunken captain
(the common people), a group of untrustworthy advisors who try to manipulate the captain into giving
them power over the ship's course (the politicians), and a navigator, philosopher) who is the only one
who knows how to get the ship to port. For Socrates, the only way the ship will reach its destination - the
good - is if the navigator takes charge.

2. Justice as Divine Command: Justice as a divine law is commanding, and indeed the whole of
morality, is the authoritative command. Killing is wrong and therefore must be punished and if not
punished what should be done? There is a famous paradox called the Euthyphro dilemma which
essentially asks: is something right because God commands it, or does God command it because it's

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 right? If the former, then justice is arbitrary; if the latter, then morality exists on a higher order than God,
who becomes little more than a passer-on of moral knowledge. Some Divine command advocates
respond by pointing out that the dilemma is false: goodness is the very nature of God and is necessarily
expressed in His commands.

3. Justice as Natural Law: John Locke of the natural law believes that justice would become a natural
law, it involves the system of punishments which are prone from choices. In this, it is similar to the laws
of physics: in the same way as the Third of Newton's laws of Motion requires that for every action there
must be an equal and opposite reaction, justice requires according individuals or groups what they
actually deserve, merit, or are entitled to. Justice, on this account, is a universal and absolute concept:
laws, principles, religions, etc., are merely attempts to codify that concept, sometimes with results that

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entirely contradict the true nature of justice.

4. Justice as Human Creation: Justice may be understood as a human creation, rather than a
discovery of harmony, divine command, or natural law. This claim can be understood in a number of

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ways, with the fundamental division being between those who argue that justice is the creation of some
humans, and those who argue that it is the creation of all humans.

5. Justice as Authoritative Command: According to thinkers including Thomas Hobbes, justice is

created by public, enforceable, authoritative rules, and injustice is whatever those rules forbid,

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regardless of their relation to morality. Justice is created, not merely described or approximated, by the

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command of an absolute sovereign power. This position has some similarities with divine command

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theory, with the difference that the state replaces God.

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6. Justice as Mutual Agreement: According to thinkers in the social contract tradition, justice is
a
derived from the mutual agreement of everyone concerned; or, in many versions, from what they would

m
agree to under hypothetical conditions including equality and absence of bias.

a
n

A
7. Justice as a Subordinate Value: According to utilitarian thinkers including John Stuart Mill, justice

y
is not as fundamental as we often think. Rather, it is derived from the more basic standard of rightness,

d
consequentialism: what is right is what has the best consequences (usually measured by the total or

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average welfare caused). So, the proper principles of justice are those which tend to have the best
consequences.

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LEGAL RIGHTS AND DUTIES

Introduction: 'Right', in the ordinary sense of the term, means a number of things, but it is generally taken to
mean the standard of permitted action within a certain sphere. As a legal term, it means the standards of
permitted action by law. Such permitted action of a person is known as his legal right. Here we are
concerned with legal rights only. A legal right must be distinguished from rule of legal justice, a interest the
violation of which would be a legal wrong done to him whose interest it is, and respect for which is a legal
duty.'

'Moral' or natural right means 'an interest recognized and protected by a rule of natural justice, an interest
the violation of which would be a moral wrong, and respect for which is a moral duty. The difference between
the two lies in the sanctions behind them. The violation of a legal right is redressed by this state whereas
behind the moral rights there are only moral and social rebuke or disapprobation.

63
Prof. Holland distinguishes legal right from 'might' and moral right'-

About 'Might' He Says: "If a man by his own force, or persuasion can carry out his wishes, either by his
own acts, or by influencing the acts of others, he has the might so to carry out his wishes,

About 'Moral Rights' He Says: "If the public opinion would view the approval or at least with
acquiescence, a person carrying out his wishes, with disapproval any resistance made to his doing it, then
he has a 'moral right' so as to carry out his wishes.'

About Legal Rights He Says: if the power of the state will protect him in so carrying out his wishes and will
compel such acts of forbearance on the part of other people, as may be necessary in order that his wishes

S
may be so carried out, then he has a legal right so to carry out his wishes.

Definition of Rights:

U
Austin: About the definition and the analysis of the legal rights there is a great deal of difference of opinion
among the jurists. According to Austin, right is a 'faculty which resides in a determinate party or parties by
virtue of a given law and which avails against a party or parties (or answers to a duty lying on a party or
parties) other than the party or parties in whom it resides.' According to him, a person can be said to have a
right only when another or others are bound or obliged by law to do something or forebear in regard to him. It

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means that a right has always a corresponding duty. This definition, as it appears on its very face, is
imperfect because in this definition there is no place for 'imperfect rights.'
m
. co
Holland: Holland defines legal right as the 'capacity residing in one man of controlling, with the assent and

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assistance of the state the actions of others.' It is clear that Holland follows the definition given by Austin.
a
m
Salmond: Salmond defines right from different angles. He says, 'A right is an interest recognized and

a
protected by a rule of right. It is an interest respect for which is a duty, and disregard of which is a wrong.' The

A
main elements in this definition are two: First, 'a rule of right' means a rule of law, or in other words, that,

y
which is judicially enforceable. Thus, according to Salmond, a right must be judicially enforceable. Second,

d
a right is an interest. The element of interest is essential to constitute a right. So far as Salmond's first

tu
element is concerned, it is a corollary to his definition of law. In laying down the second element he follows
Ihering's theory of right which shall be discussed later.

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Duguit and Kelsen: There are certain jurists who do not recognize the existence of any legal right.
According to them, there is no such concept as 'legal right'. Prof. Duguit says that 'no one has any other right
than always to do his duty.' Prof. Kelsen also says that there is no such conception as right in law. The
theories of law of these jurists negative the idea of right. It is not possible here to discuss the numerous
definitions of right given by various jurists. It would be convenient to classify the definitions on the basis of
the main elements in them and to discuss them.

Indian Supreme Court: Then Supreme Court has observed: "In a strict sense, legal rights are correlative
of legal duties and are defined as interests which the law projects by imposing corresponding duties on
others. But in generic sense, the word 'right' is used to mean immunity from the legal power of another,
immunity is exemption from the power of another in the same way as liberty is exemption from the right of
another. Immunity, in short is "no-subjection."

Theories of Right: There are two main theories of legal right-

64
1. The Will Theory

'Will' as the Basis of Right: The theory says that the purpose of law is to grant the individual the
means of self-expression or self-assertion. Therefore, right emerges from the human will. The
definitions of right given by Austin and Holland by down that the 'will' is the main element of a right.
Pollock and Vinogradoff also define right in terms of 'will'. A strong support to the theory has been
given by the doctrines of natural rights, and by the jurists who have made metaphysical approach to
law. Locke believed in 'inalienable' rights. He declared that in certain spheres of individual life the
state could not interfere. According to him, the basis of the right was the will of the individual. Holmes
in his definition of right puts the same view more clearly. He defines legal right as nothing 'but a

S
permission to exercise certain natural powers and upon certain conditions to obtain protection,
restitution, or compensation by the aid of public force.'

Metaphysical Jurists: Hegel, Kant, Hume and others say that by right is meant the power of self-

U
expression of 'will'. The will theory has its greatest supporters in Germany. The German jurists of the
Historical school also supported the 'will theory. Puchta defined legal right as a 'power over an
object which by means of this right be subjected to will of the person enjoying the right.'

Will Theory Criticized: Duguit is vehemently opposed to the 'will' theory. According to him, the

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basis of law is the objective fact of 'social solidarity' and not the subjective will. The law is to protect

m
only those acts or things, which further 'social solidarity'. The idea of will is anti-social. The 'will'

co
theory has been criticized on other grounds also. Those who greatly emphasies the element of will

.
confuse the fact with abstract ideas, that is they do not make the distinction between 'what is' and

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'what ought to be'. It is submitted that 'will' is an important element of right. It is an important factor in
a
the determination of rights. The purpose of law is, more or less, to make a compromise between the

m
conflicting 'wills' of the individuals in the society. Secondly, the law does not create rights from a

a
vacuum but to a great extent it picks and chooses them from the wills of the individuals. The law

A
respects the wills of the individuals but curtails them to the extent to which it is in conflict with the

y
wills of other individuals or is in conflict with the social interest in general. It is due to these reasons

d
that Paton says that 'will is an essential element in the general conception of legal right, but it is not

tu
the only element.'

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2. The Interest Theory: Interest is the basis of right. The propounder of this theory is Inhering a great
German jurist. He defines legal right as 'a legally protected interest.' According to him, the basis of right
is 'interest' and not 'will'. His definition of law is in terms of 'purpose'. Law always has a purpose. In case
of rights the purpose of law is to protect certain interests and not the wills or the assertions of individuals.
These interests are not created by the State, but they exist in the life of the community itself. The state
only chooses out of them such interests, as it will protect. This view of Inhering is supported by Salmond
also, but the latter adds enforceability to it as a necessary element of right.

Argument In Favour Of Interest Theory: The main argument given in support of the 'interest' theory
that the 'interest' and not the 'will' is the basic element of right is that there are cases where a person may
have rights without having any 'will'. Infants, lunatics and corporations have legal rights but they do not
have wills. In such cases in the name of rights their interests are protected. Though this argument is not
very sound, because in all these cases a will is operative, that is, of the guardian of the infant, or the
lunatic, or of the members of the corporation, it has some truth.

65
Conclusions

Synthesis is the Correct Approach: An analysis of both the theories reveals that they are not so much
opposed to each other as they appear to be. One exaggerates the one element and second the other
element. It is only a synthesis of the two that can give a correct picture. The human will is always directed
towards perusing certain interests as rights. Therefore, right means the legal protection and recognition of
human will directed towards the satisfaction of certain interests. Allen puts it very beautifully as "the
essence of right seems to me to be not legally guaranteed power by itself, but the legally guaranteed power
to realize an interest."

Theories of Right are Based on the Theory of State and Law: It must be noted that these theories about

S
right are based not so much on an academic analysis of the concept of right as on the theories of state and
law. For example, Duguit's theory of right is based on the theory of 'social solidarity.' The totalitarian
approach to right is in many respects akin to the view of Duguit. According to it, the state is all, and is the only
reality. Individual has no separate and distinct existence from the state. The end of the state is to further the

U
cause of the proletariat and any act or omission to harm it can never be a right but is rather an offence. On
the basis of such principles serious inroads have been made on individual's freedom and rights.

Recognition and protection by the state are also the essential elements of legal right. Without recognition by
the state a right cannot be a legal right. On the point of protection by the state there is a difference of opinion

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among the jurists. Some say that the protection by the state is an essential element of a legal right. There

m
are others who do not agree to it. The protection of right by the state means than if the right is challenged by

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anybody, the state will enforce it.

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The Imperfect Rights are the First Exception: Imperfect right is that right which, though recognized by the
a
state, is not enforceable. A very popular example of this kind is a statue barred debt. In this case it is not the

m
right that is barred, but it is the remedy or enforceability that is barred. If the debtor pays the debt after the

a
limitation, he cannot sue to recover it on the ground that is was paid without consideration.

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In many cases the law does not enforce the right itself but provides remedy in the form of damages

d
awardable to the injured party. In such cases the damages are considered to be adequate remedy.

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The Element of A Legal Right: According to Salmond, every legal right has the following five

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elements or characteristics-

1. The Person of Inherence: A legal right is always vested in a person who may be distinguished on
the subject of 'right' known as person of inherence.

2. The Person of Incidence: It avails against a person in whom lies the co-relative duty. He is
recognised as the subject of the duty known as the person of incidence.

3. Contents of the Right: The act or omission which is obligatory on the person bound if favour of the
person entitled. This is called the content or substance of right.

4. Subject-matter of Right: It is something to which the act or omission relates that is the thing over
which a right is exercised which is called the object or subject-matter of right.

66
 5. Title of the Right: Every legal right has a title, i.e., certain facts or events by reason of which the
right has become vested in its owner.

Salmond illustrates above elements of a legal right by citing an example i.e., if A buys a piece of land from B,
A is the subject or owner of the right so required. The persons bound by the co-relative duty are persons in
general because a right of this kind avails against the world at large. The contents of rights consist in non-
interference with the purchaser's exclusive use of the land. The object or the subject-matter of right is the
conveyance by which it was acquired from the former owner.

Right-Duty Relationship: Rights and duties are the very important element of law. The administration of
justice, in most part, consists of the enforcement of rights and the fulfillment of duties. Rights and duties are

S
correlated to each other in such a way that one cannot be conceived of without the other. In other words, the
existence of the one depends on the existence of the other, as there can be no child without a father and no
father without a child. A right is always against someone upon whom the correlative duty is imposed. In the
same way, a duty is always towards someone in whom the correlative right vests. There are some jurists

U
who do not agree to this view. They say that there can be duties without a corresponding right. They call
duties as 'absolute duties.'

Austin's View: The duties which are always correlated with a right are called relative duties. Austin who
supports the above says that there are four kinds of 'absolute duties'-

1.

2.

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Duties owed to persons indefinitely (e.g. towards the community)
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m
Duties not regarding persons (e.g. those owed to God and the lower animals).

M a
Austin's View Wrong: On a close examination of Austin's view it becomes clear that it is wrong. The

m
absolute duties enumerated by him are not duties in the legal sense, or if they are duties at all, they are not

a
absolute. The duty towards God is not is duty towards the state and not towards God. Certain duties

A
imposed on individuals towards animals are in essence the duties towards the state or the owner of the

y
animal. Austin perhaps means the duties towards the community in general. But the general duty towards

d
the community is nothing more than a bundle of duties towards each particular individual of the community

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and each individual has got a correlative right. Self-regarding duties are also the duties towards the state
because it is a part of the criminal law as an attempt to commit suicide.

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Duties Towards the Sovereign: So far as the fourth class of absolute duties, e.g. 'duties owed to the
sovereign' are concerned, they are based on his definition of law and his theory about state and
sovereignty. According to Austin, the right duty relationship between two individuals can exist only when
there is a political superior to protect and enforce it. Without this political superior there can be no right-duty
relationship. If we regard the relationship between the state and the individual as the right-duty relationship
where is this political superior? In recognizing any other political superior, Austin's definition of the
sovereign would be exploded. The sovereign has the power to change the law at any time.

Therefore, the relationship between the state and the citizen cannot be termed as right-duty relationship.
The sovereign commands and the duty of the citizen is to obey. This power of the state cannot be called a
correlative legal right against the citizen.

Classification of Duties

67
Positive Duty: A positive duty implies some act on the part of the person on whom it is imposed. If a person
owes money to another, the former is under a duty to pay the money to the latter. This is a positive duty.

Negative Duty: A negative duty implies forbearance on the part of the person on whom it is imposed. For
example, if a person owns lands, others are under a duty not to make any interference with that person's
use of the land. This is a negative duty.

Primary and Secondary Duties: Primary and secondary duties: A primary duty is that duty which exists
per se and independent of any other duty. The duty not to cause hurt to any person is a primary duty. A
secondary duty is that duty whose purpose is only to enforce some other duty. If a person causes injury to
another, the former is under a duty to pay damages to the latter. This is a secondary duty. The duty not to

S
cause injury is the primary duty. When a breach of this duty has been committed, the secondary duty to pay
damages arises.

Kinds of Rights: Legal rights may be classified as follows-According to Salmond, legal rights may be

U
divided into eight kinds-

Antecedent and Remedial Rights: They are known by other names also, such as 'primary' and
'secondary' rights; principal and accessory rights. Pollock calls them 'substantive' and 'adjective' rights.
When a right exists independent of any other right and for its own sake it is an 'antecedent' right. When

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another right is joined to it (generally, in case of violation of the latter) then so joined right is called a remedial
right.
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. co
Perfect and Imperfect Rights: A 'perfect right' means a right, which has a correlative duty that can be

M
legally enforced. Generally, when law recognizes a right, it prescribes a remedy also and when the right is
a
violated, it enforces it, An 'imperfect right' which, although, recognized by law is not enforceable such as the

m
claims barred by time. In such cases the limitation does exist, but it cannot be enforced. Such cases may be

a
considered as an exception to the rule ubi jus ibi remedium (when there is a right there is a remedy)

A y
Positive and Negative Rights: Like positive and negative duties, which we have discussed earlier, the

d
rights are also positive and negative. A positive right is that right which has a correlative positive duty. In

tu
case of positive right the person having the right can compel the person upon whom the correlative duty is
imposed to do some positive act. The scope of a negative right is only that the person having the right shall

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not be harmed. For the law it is easier to enforce the negative than the positive right. Therefore, the number
of positive rights is smaller than the negative rights.

Rights in Rem and Rights in Personam: Rights are divided as rights in rem and rights in personam. But
these terms are very confusing and there is a great deal of controversy about their nature. Therefore, it is
necessary to discuss them in some detail. In Roman law actions were divided in two classes: action in rem
and action in personam meant a claim brought against a specific person. Thus right in rem means a right
available against the whole world or against the people in general. A right in personam is available against a
definite person or persons. For example, A's right to enjoy his garden and house is available against the
whole world or the people in general. It is a right in rem. If A works for B under a contract his right to get
remuneration is only against B and is a right in personam.

In rights in rem the emphasis is on the res, but in rights in personam it is on the relationship between the
parties, which gave rise to the obligation. This distinction is closely connected with the classification of the
rights between positive and negative. Generally most of the rights in personam are positive rights and right

68
in rem are mostly negative rights.

Proprietary and Personal Rights: Proprietary rights mean a person's right in relation to his own property.
Personal rights are rights relating to status and those arising out of contract. The aggregate of a person's
proprietary rights constitutes his property or estate. The aggregate of man's personal rights constitutes his
status.

Mainly two points of distinction between proprietary and personal rights are put forward: first,
proprietary rights are valuable; personal rights are not valuable. Proprietary rights are the elements of a
man's wealth.' Personal rights 'are merely elements in his well being.' Second, proprietary rights are
transferable, personal rights are not transferable.

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Rights in Re-Propria and Rights in Re-Aliena: This classification of rights is more or less a classification
of the proprietary rights. Rights in re-propria means the rights in one's own things. Right in re aliena are the
rights in the things of others. The latter are called encumbrances also. Salmond defines the right in re-
aliena or encumbrance as one "which limits or derogates from some more general rights belonging to some
other person in respect of the same subject matter and all others are jura in re propria.' The rights in re
aliena or encumbrances arise when a person's right in his property becomes subject to another person's
right in the same property, such as the right of way over the land of another.

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Vested and Contingent Rights: Another division of rights is into vested and contingent. Every right is

m
created by a title. The title comes by the happening or not happening of certain facts. Therefore, this

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happening or not happening of certain facts affects the nature of right. A right is a vested right when all the

.
facts happening or not happening of which it is necessary to create or vest the right, have happened or not

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happened. If only some of such facts have occurred then the right is a contingent right. It would become
vested when all the facts have occurred. a
m
a
Legal and Equitable Rights: This division of rights was due to the existence of two kinds of courts in

A
England for the administration of justice till the last century. The two kinds of courts were the common law

y
courts and the chancery courts. The rights recognized and enforced by the common law courts' were

d
known as 'legal rights' and the rights recognized and enforced by the chancery courts were known as

tu
equitable rights'. It is generally said that the equity was a gloss on common law or in other words, the
equitable rights were mostly remedial rights. But Pomeroy after analyzing found that equitable rights were

K S
in direct conflict with the legal rights. Thus chancery courts recognized a number of rights.

The division does not exist in India. In India there is no such division of rights as 'legal' and 'equitable'. There
never had been two separate jurisdictions in this country. Equitable rights were a creation of the English
legal system. Although in India certain equity rules are applied they are applied only as part of some statute
in which they have been incorporated and not as a matter of conscience.

Jural Relations: Hohfeld: A legal 'right' may be defined as any advantage or benefit conferred upon a
person by a rule of law.

There are four distinct kinds of 'right' : Claim, Liberty, Power and Immunity. They represent four different
ideas concerning the activity, or potential activity of one person with reference to another.

Hohfeld (1913) set out his table of jural relations as follows-

69
Jural Correlatives: Right Privilege Power Immunity
Duty Non-Right Liability Disability

Jural Opposites : Right Privilege Power Immunity

No-right Duty Disability Liability

The following presentation of this table is that of Prof. G.L. Willimas-

CLAIM LIBERTY POWER IMMUNITY

(Or privilege)

U S DUTY NO-CLAIM LIABILITY DISABILITY

Jural Correlatives: (I) e.g. claim in one person, X, implies the presence of its correlative duty in another
person, Y. Liberty in X implies the presence of no-claim in Y, and vice versa.

Jural Opposites: ( \) (Jural negatins) e.g. claim in one person, X, implies the absence of its opposite no-

K
claim in himself, and vice versa.

m
co
Jural Contradictories: ( ) (not mentioned by Hohfeld) e.g. claim in X implies the absence of it:

.
contradictory liberty in Y, and vice versa. (Note: The term 'claim' in the above table refers to 'right' stricto

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sensu i.e. right in the strict sense.)
a
m
(A jural relation between two parties should be considered only between them, even though the condu (of

a
one may create another jural relation between him and someone else.)

A y
The Scheme, which is to be discussed in details, has the following outline-

d
tu
1. Claim-duty Relation ('You Ought' or 'Must'): Whether rights (claims) and duties are necessarily
correlative?

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2. Liberty-No Claim Relation ('I May'): Distinction between claim and liberty. Controls of Iiberties/
kinds of liberties.

3. Power-Liability Relation ('I can'): Distinction between claim and power, between duty a liability;
and between liberty and power. Kinds of Powers.

4. Immunity-Disability Relation ('You cannot'): Distinction between claim and immunity, al

distinction between liberty and immunity.

1) Claim-Duty Relation: ('You Ought' or 'Must') Y's duty with regard to X would be expressed by X as
'you ought' (must) : (X is then said to have a claim or right). A claim is a sign that some person ought to
behave in a certain way. The correlation of claim and duty is not perfect, nor did Hohfeld assert that it
was. Every claim implies the existence of a correlative duty, since it has no content apart from the duty.
The statement, 'X has a claim', is meaningless; but the statement 'X has a claim that Y ought to pay him

70
 Rs. 10', is meaningful because its content derives from Y's duty.

On the other hand, whether every duty implies a correlative claim is doubtful-

a) Salmond thought that every duty must have a correlative claim (or right) somewhere. Every duty
must be a duty towards some person or persons, in whom therefore, a correlative claim (or right) is
vested.

b) The opposite school (Austin, Williams) distinguishes between relative and absolute duties, the
former being those which have claims (or right) corresponding to them, and the latter being those which
have none. This school conceives to be of the essence of a claim (or right) that it should be vested in

S
some determinate person, and be enforceable by some from of legal process instituted by him. On this
view, duties towards the public at large or towards indeterminate number of persons have no correlative
claims (or right) e.g. the duty to refrain from committing a public nuisance.

U
c) Austin said that absolute duties have no correlative claims. His examples involve criminal law. Prof.
Williams said that duties in criminal law are imposed with reference to, and for benefit of, members of
society, none of whom has claims correlative to these duties.

Statutory duties furnish other examples. It rests on the interpretation of each statute whether the duties

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created by it are correlative to any claims in the persons contemplated by the duties. It was held in Arbon

m
v Anderson that even if there had been a breach of the prison rules made under the Prison Act, a

co
prisoner affected by such a breach had no action since he had no claim. Similarly, a duty under a Food

.
Adulteration Act, has no correlative claim.

M a
d) The truth is that duties in the strict sense have corresponding claims, and duties in the wider sense

m
do not. Thus, where a debtor owes a duty to his creditor and that latter has a corresponding claim it

a
stresses the fact that the creditor is intimately concerned, that he will be personally injured by breach of

A
the duty, and that by law he can choose to compel obedience. The case is different where a duty to

y
refrain from committing a public nuisance is owed to the society, as here three factors of concern, injury

d
and choice do not relate to one and the same person in the same way as they do in the first case.

e)
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Conduct is regulated by the imposition of duties. Claims may assist in achieving this end, b if it can

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be otherwise achieved, there is no reason why the mere fact that Y is under a du : with regard to X
should confer upon X a corresponding claim. There is nothing to prevent, being the law that every
breach of duty shall be dealt with by the machinery of the State Such a state of affairs, though possible,
would be inconvenient, for it would stretch the State machinery to breaking point.

f) Thus, non-correlative duties do not fit snugly (comfortably) into the Hohfeldian scheme.

1. Art. 51-A of the Indian Constitution deals with 'Fundamental Duties', which are absolute
duties _ duties not accompanied by claims. Although it is a duty of every citizen to respect national
protect culture and environment, etc., yet the State cannot have any claim in respect of such duties.
Thus, fundamental duties are not Hohfeldian ones.

2. Liberty - No Claim Relation ('I May') : X's freedom to do something in relation to Y would be
expressed by X as 'I may' : (X has a liberty or privilege).

71
 Term liberty or privilege refers to the freedom which a person has to do or not to do something. X's so
called 'right' to wear a hat consists, on Hohfeld's analysis, of a liberty to wear the hat and another liberty
not to near it. The relationship between claim, duty, liberty and no-claim can be explained in the
following way-

a) Duty and Liberty (Jural Opposites) : Just as one's legal rights are the benefits which one derives
from legal duties imposed upon other persons, so one's legal liberties are the benefits which one
derives from the absence of legal duties imposed upon oneself. If X were under a duty to wear a hat,
this would imply the absence in him of any liberty not to wear it (however, there would be a liberty in
him to wear it). Thus duty and liberty do not always cancel out one another, it is only when the
content of one is irreconcilable with that of the other that cancellation occurs. Thus, if X were under a

S
duty not to wear a hat, this would be the opposite of a liberty to wear it, i.e. there would be no liberty
to do so.

Sometimes, it is held for reasons of policy that the liberty of doing a particular thing cannot be erased

U
by a contrary duty. Thus, the liberty of an M.P. to vote in any way he chooses on a given issue can't
be overridden by a contractual duty to vote in a certain way.

b) If Y has a claim, there must be a duty in X. A duty in X implies the absence of a liberty in X. Therefore,
a claim in Y implies the absence of a liberty in X, i.e. claim and liberty and jural contradictories.

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Conversely, a liberty in X implies the presence of a 'no-claim' (i.e. absence of claim) in Y, i.e. liberty
and no-claim and 'jural correlatives'.
m
. co
[No-claim is simply not having a claim, and having a claim is not being in the condition of no-claim, just as

M
having a wife is not being in a state of bachelordom (no-wife)]
a
m
The correlative of X's liberty to do a thing is Y's no-claim that it shall not be done, and the correlative of X's

a
liberty not to do a thing is Y's no claim that it shall be done (If you have a liberty to wear a hat, then one

A
cannot claim that you should wear a hat).

y
d
Distinction Between Claim and Liberty: A claim implies a correlative duty, but a liberty does not. X's

tu
liberty to wear a hat is not correlative to a duty in anyone. There is indeed a duty in Y not to interfere, but V's
duty not to interfere is correlative to X's claim against Y that he shall not interfere. The liberty and claim are

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separate and separable; the claim can be extinguished without affecting the liberty. For example, in a
contract between A and B, A extinguishes his claim against B that B shall not interfere with wearing of A's
hat, but A may succeed in evading Band wear the hat, thus exercising his liberty to wear hat.

It is important to note that X's liberty to wear the hat and his claim not to be prevented from so doing are two
different ideas. It is usual for liberties to be supported by claims (i.e. one will not interfere with (my) liberty),
but they are distinct and separate and the distinction is reflected in case law.

It was held in Musgrove v Chun T. Toy, that at common law an alien has the liberty to enter British territory,
but no claim not to be prevented. In Chaffers v Goldsmid, held that a person has the liberty of presenting a
petition to Parliament through his representative member, but no claim against such member that the latter
shall comply. A member of the public has only a liberty to attend public meetings, which is not supported by a
claim not to be prevented. Similarly, A's liberty to enter B's room is not supported by a claim.

The failure to distinguish between claim and liberty leads to illogical conclusions, as shown by the case on

72
trade competition. The claim not to be interfered with in trade corresponds to a duty not to interfere. There is
indeed a duty not to interfere, e.g. by smashing up the plaintiffs shop; but no duty not to interfere by
underselling him. So the question how far a duty not to interfere extends, i.e. how far the liberty of another
person to interfere is allowed, is a delicate decision of polity.

Kinds of Liberties:
a. Some liberties are recognised by the law generally e.g. liberty to follow a lawful assembly. So, too,
are "parliamentary privilege' in debate and 'judicial privilege', which are liberties in the Hohfeldian sense
in that both cannot utter defamatory statements.

b. Other liberties are recognised by law on special occasions, i.e. the normal duty not to do something

S
is replaced in the circumstances by the liberty to do it, e.g. self-help or defence, the defences of fair
comment and qualified privilege.

c. Liberty may be created by the parties themselves e.g. consent, or volenti non fit injuria, one effect of

U
which is that it absolves a defendant from his duty, as the plaintiff himself consented to his injury.

Limits (Controls) of Liberty:

1) Some liberties are unlimited even if exercised maliciously e.g. 'Parliamentary' or 'judicial privilege'.

anyone.

K . co
m
Similarly Prime Minister has a privilege to choose anyone into his cabinet, and there is no claim in

M
Likewise, President has certain privileges under Indian Constitution (i.e. legal immunities or protection
provided to him during his term of office). a
m
a
A person has a privilege to read cheap books and there is no claim in anyone. An accused has a

A
privilege against self-incrimination.

y
2)
d
The exercise of liberty may be limited by the public policy, or by malice, e.g. 'qualified privilege' and

tu
fair comment in defamation, or by statute.

K S
Various freedoms granted under Art. 19 of the Constitution e.g. freedom of speech, expression, trade, etc.)
are qualified privileges or liberties, because the State has imposed 'reasonable restrictions' on them.

3. Power-Liability Relation ('I Can'): X's ability to alter V's legal position would be expressed by X as
'I can': (X has power). Power denotes ability in a person to alter the existing legal relations (rights,
duties, liabilities, etc.), whether of oneself or of another, for better or for worse. Liability, the correlative or
power, denotes the position of a person whose legal condition is so altered (either benefiter burden for
that person). For example, X has a power to make a gift to Y, and correlatively Y has a liability to have his
legal position improved in this way. A landlord has a power of re-entry, and the tenant a liability to have
his lease determined by re-entry.

Right as a power e.g. right to make a will, or to alienate property; power to sue; right to enter into a
contract, etc.

Distinction Between Claim, Liberty and Power:

73
a) A claim is always a sign that some other person is required to conform to a pattern of conduct, a
power is the ability to produce a certain result.

The 'right', for example, to make a will can be dissected into a liberty to make a will or not, claims against
other people not to be prevented from making one, powers in the sense of the ability to alter the legal
conditions of persons specified in the will, and immunities against being deprived of will-making
capacity.

b) Powers differ from claims (or rights stricto sensu) in as much as they have no duties corresponding
to them. One's right to make a will corresponds to no duty in anyone else.

c)

U S
In David v Abdul Cader, the defendant refused to exercise a statutory power to grant the plaintiff a
licence to run a cinema. The court rejected the plaintiff's action for damages on the ground that until the
power had been exercised the plaintiff acquired no 'right' (or claim). The Privy Council, however, held
that acquisition or non-acquisition of the 'right' is independent of the question whether the defendant
was under a duty to exercise the power and whether there was in the plaintiff a claim correlative to this
duty.

In Ashby v White, 'right' to vote was held to import a duty not to prevent the person from voting. The 'right'

K
to vote is a power coupled with a liberty to exercise it, and there is a claim not to be prevented.

m
co
In another case, held that the defendant company had no 'right' to sell certain goods because a third

.
party could have restrained the sale for infringement of a trademark. This is a confusion between power

M
and liberty. For, the fact that the defendants had power to pass title is independent of whether or not they
had a duty not to exercise it (i.e. no liberty to do so). a
m
d)
a
All rights or 'liberties' are rights to act or abstain, not to produce legal effects. While, acts that have

A
certain legal effects are called powers. The liberty to perform or not applies to all types of conduct, but

y
only some actions result in change of legal relations, while others do not.

d
tu
Rightful and Wrongful Powers: Sometimes, a power may be coupled with a liberty to exercise it, while at
other times, it may be coupled with a duty to exercise it. In both situations, the exercise of power may be said

K S
to be 'rightful'. When a power is coupled with a duty not to exercise it, such exercise would then become
'wrongful'.

When a public power is coupled with a duty to exercise it, it is termed a 'ministerial' power, when it is coupled
with a liberty, it is termed 'discretionary'.

a) Where power is coupled with a liberty (i.e. a discretionary power), a party cannot be penalised for
having exercised it, or for not having done so. However, a malicious refusal to exercise a discretionary
power might amount to a breach of duty; but this is a limit on the liberty. Nevertheless, discretionary
powers may be controlled as follows: (i) abusive exercise may be held void, (ii) if reasons are given the
courts may inquire into their adequacy. An example of discretionary power is-Supreme Court has a
liberty to decide whether petitioner moved by 'appropriate proceeding' or not, under Art. 32(1) of the
Constitution.

b) Where a power is coupled with a duty to exercise it (i.e. no liberty not to exercise it), there is no

74
 question of any 'right' to do the act; the party 'must' do it. A simple example is the power and duty of a
judge to give a decision.

Generally, the presumption is against there being a duty to exercise statutory powers. The word 'may' in
statute is usually taken to confer a liberty to exercise a power and not a duty. Nevertheless, a remedy
will lie for a breach of such duty.

c) Where a power is coupled with a duty not to exercise it, the party concerned has no liberty to do so.
An example of a power without a co-existing liberty is where a thief sells a thing in the market openly to
an innocent purchaser. He exercises a power in that he deprives the owner of his title and confers title

S
on the purchaser (i.e. alter the legal relations), but he is under a duty not to exercise this power. The
exercise of such power is a breach of duty. To call such power 'right' would be a misnomer, for it would
amount to speaking of 'right' to commit wrongs. Thus, not all powers, in the sense in which Hohfeld used
the term, can be called 'rights'.

U
4. Immunity-Disability Relation ('You Cannot'): Immunity denotes freedom from the power of
another, while disability denotes the absence of power. The right of a peer to be tried by his peers, for
example, was neither a claim, nor a liberty, nor a power. It was an exemption from trial by jury-an
immunity from the power of the ordinary criminal courts. The President of India has various immunities

K
e.g. no civil or criminal proceedings can be instituted against him during the term of his office. The rule

m
Nemo dat quod non habet can be expressed as a disability on the part of persons in general to transfer

co
property that they do not themselves own.

M
The relationship between power, liability, immunity and disability may be expressed as follows-
a
m
a) If X has a power, Y has a liability. They re therefore 'jural correlatives'.

a
n

A
A liability in Y means the absence of an immunity in him. Therefore, immunity and liability are 'jural
opposites'.
y
d
tu
b) Conversely, the presence of an immunity in Y implies the absence of a liability in him (Immunity in
short is no-liability). The absence of a liability in Y implies the absence of a power in X. Therefore, an

K S
immunity in Y implies the absence of a power in X, i.e. power and immunity are 'jural
contradictories'.

c) The term disability denotes 'no-power'. Power and disability are thus 'jural opposites'. It follows from
this that immunity in Y implies the presence of a disability in X, i.e. they are 'jural correlatives'.

Distinction Between Claim and Immunity:

a) An immunity is not necessarily protected by a duty in another person not to attempt an invasion of it.
If X is immune from taxation, the revenue authorities have no power to place him under a duty to pay. A
demand for payment is ineffectual but X has no remedy against them for having made the demand. If
immunity is the same as claim, there should be a correlative duty not to make a demand.

b) Secondly, there may be an immunity in X, which is protected by a duty in Y, but the claim correlative
to that duty is not in X. Thus, diplomatic envoys are immune from the power of action or other legal

75
 process.

c) Finally, an immunity in X may be protected by a duty in Y and the claim correlative to the duty may
also be in X, as in the case of the malicious presentation of a petition in bankruptcy.

Distinction Between Liberty and Immunity: The position of diplomatic envoy illustrates this. Such a
person is treated as being capable of committing a breach of duty and is under a duty to pay damages,
although immune from the power of action or other legal process to compel him to do so. In other words, he
has no liberty to do the act, nor a liberty not to pay damages for it, but he has an immunity from process all
the same.

S
Evaluation of Hohfeld's Analysis: Hohfeld's work has earned as much criticism as praise-

1. Some of Hohfeld's Conceptions are without Juridical Significance: For example, liberty,
liability and disability. The answer to this criticism is that as these concepts are necessarily related to the

U
other concepts in the square, they too have juridical significance. For example, a power in X to alter the
legal condition of Y implies that Y is liable to have his conditions altered.

2. Hohfeld's Analysis is Incorrect and Incomplete: This is true to some extent. For example, non-
correlative duties do not fit into the scheme. However, these can be explained on the ground that they

K
are not jural relations, which is what the scheme purports to portray.

m
co
It has been objected that the power concept needs refinement. On the one hand there is 'capacity'

.
possessed by individuals (Le. private powers e.g. power to make wills, contracts, etc); on the other

M
hand there is 'authority' conferred on specially qualified individuals (Le. 'public' powers). While it is true
a
the exercise of both results in changing jural relations, the categories are so different that they should
not be grouped together.
m
a
n

A
3. Terminology is Unusual and Impractical: However, what is important is not the words, but the

y
ideas which they represent. One may think Hohfeld without talking Hohfeld.

d
tu
4. Though Hohfeld's work is valuable is distinguishing between claims, liberties, powers and
immunities, it is convenient and necessary to retain a general concept of 'right' to denote institutions,

K S
such as ownership or possession. Thus, such phrases as 'right to possess' and 'better right' in a thing
expresses the general idea of entitlement, which can't be conveyed adequately if it were reduced to
specific claims, etc.

5. Utility of Hohfeld's Scheme: It is argued that cases which accord with Hohfeld's analysis, were in
fact without the aid of his scheme. The scheme is therefore superfluous. If, on the other hand, a case is
not in accord with the scheme, then the scheme should be altered.

It is submitted that just as an established line of authority is not discarded as soon as the first aberrant
decision turns up, so too the occasional decision not in accord with Hohfeldian scheme should not of
itself be taken as discrediting it. Secondly, it could be of use in assessing the precise effect of an
aberrant decision without condemming it as wrongly decided. Thirdly the use of Hohfeld's analysis will
enable the law to be developed more in accordance with existing principles and less through
exceptions. Fourthly, the analysis is of value in understanding the law. Finally, it is an aid to clear

76
 thinking.

6. Application to Social and Political Slogans: It is important to apply the Hohfeldian analysis to
'Fundamental Right', 'Rights of Man', 'Woman's Rights', 'Prisoner's Rights', 'Animal's Rights' 'Worker's
Rights', and so forth. It is difficult to answer such questions- Is a particular campaign launched for
claims, liberties of action, power or immunities; in whom; in what circumstances; when; where? For
example, if we take 'worker's rights'-one aspect is the claim-right to be given jobs, correlative to a duty in
the State to provide them. Next, there is an assertion of an unrestricted liberty-right not to work at the
jobs, which are claimed 'as of right's i.e. the liberty to 'strike'. There is also the assertion of a power to
drive workers out of their jobs through the 'closed-shop' doctrine. There is the assertion of immunity
from suits in courts of law and immunity from having these various liberties and powers curtailed or

S
abolished.

If the 'right to work' is regarded as a liberty, this works against the claim that this right should be
protected by laws prohibiting others from preventing a man from doing his work. If on the other hand it is

U
spoken of as a right, this may operate to ground claims that the law should protect this right by
prohibiting interference, by guaranteeing employment, etc.

IMPORTANT QUESTIONS

K
Q.1. What do you mean by administration of justice?
m
co
Q.2. Discuss the various theories of punishment.
Q.3. Discuss the right-duty relationship.
.

M a
Q.4. What do you mean by rights? Discuss the classification of rights.
Q.5. What are the various theories of rights and how the right is recognized?
m
a
Q.6. Discuss the concept of legal personality.

A
Q.7. What is the difference between natural person and legal person?
Q.8.
y
What are the various theories of legal personality?
d
tu
Q.9. Discuss the obligation.

K
Q.10. What is the meaning of justice and what are its different kinds?

77
 UNIT - V
LEGAL CONCEPTS - II
POSSESSION

S
Introduction: "Possession" is a polymorphous term, which may have different meanings in different
contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformally
applicable to all situations in the context of all statutes.

U
It is the most difficult conception of the legal theory. Since very early times attempts have been made to
analyze and theorize it and various theories have been given about it. The courts in their decision on
'possession' have not followed any preconceived theory. This has made the conception a very compli-cated
one. Therefore, 'possession' is a subject of great academic interest. At the same time it is of utmost practical
importance.

K . co
m
Possession is an evidence of ownership. Its transfer is one of the chief methods of transferring owner-ship.
The possession of a thing (even if it is wrongful) is a good title against the whole world except the real owner.
That is why it is said that 'possession is nine points of the law'. Long possession creates ownership by

M
prescription. Possession is the basis or ground of obtaining certain legal remedies, for example, the
a
possessory remedy. In certain cases the possessor of a thing can confer a good title on a transferee of it

m
though he himself has none. Possession plays a very important role in criminal law. In a number of offences

a
against property, possession becomes the main issue to be determined.

A y
Why Law Protects Possession?

d
tu
A general conclusion can be drawn from the above discussion about the importance of possession that law
protects possession, even if it has been acquired unlawfully,.

K S
Rousseau; Kant; Hegel: Rousseau, the French philosopher, was of the view that men are born free and
equal. Freedom includes the freedom of will also. In possession individual's will is reflected, therefore, it
must be protected. The Massachusetts Bill of Rights also states to the same effect. Kant also held similar
view. He says that "the freedom of the will is the essence of man. It is an end in itself; it is that which needs no
further explanation, which is absolutely to be respected and which it is the very end and object of all
governments to realize and affirm. Possession is to be protected because a man by taking possession of an
object has brought it within the sphere of his will. He has extended his personality into or over that object.
Hegel is also of the same view. According to him, in possession there is manifestation of individual's will.
Therefore, it is entitled to absolute respect.

Savigny: The jurists of Historical school have given a different theory of the protection of possession.
According to Savigny, possession is protected because every act of violence is unlawful. It seems that
Savigny considers the protection of possession as a branch of the protection of the person.

78
It is submitted that the reason given by Savigny is not very sound, because possession is protected not only
against force but against fraud and other kinds of disturbances also. Certain other jurists have given their
views on similar lines.

Windshield, Ihering: The view of Winds chied is that the 'protection to possession stands on the same
grounds as protection against injury, and every one is the equal of every other in the state, and no one shall
raise himself over the other;' Inhering the great sociological jurist, makes a new approach. According to
him, possession is ownership in defensive. One who exercises ownership in fact (that is possession) is
freed from the necessity of proving title against one who is in an unlawful position.

Holland: Holland's approach is still more realistic. He says that the prominent motive in the protection of

S
possession is probably a regard for the preservation of peace. In modern times, following reasons are given
for the protection of possession:

a) Possession is Protected for the Preservation of Peace: It is a natural human instinct that he

U
does not want easily to part with what he possessions. Therefore an interference with possession leads
to violence. Thus the protection given to possession comes to aid criminal law and it prevents a breach
of peace.

b) Possession is Protected as a Part of Law of Tort: It was observed in Rogers v. Sphence that

K
'these rights of action are given in respect of the immediate and present violation of the possession of

m
the bankrupt independently of his right of property. They are an extension of that protection which the

co
law throws around the person.

M
c) Possession is Protected as Part of the Law of Property: Sometimes, proof of title is difficult, and
a
sometimes, there are other difficulties of this nature. In these cases to throw the burden of proving a

m
good title on the person who is in possession and whose possession is disturbed shall be very unjust.

a
Therefore, law protects possession. The law of property makes various provisions to protect

A
possession. For example, any person acquiring any immovable property or any share or interest in any

y
such property shall be deemed to have notice of the title, if any, of any person who is for the time being in

d
actual possession thereof. Section 53-A of the Transfer of Property Act, 1882 also protects possession.

tu
Possessory Remedies: As observed earlier possession is a god title against all except the person who

K S
has better title. Therefore, the possession is protected till someone else proves a better title in himself. The
law protects possession or in other words, helps the person in retaining his possession. It helps also in
recovering the possession if it is taken by anybody else from the person in possession unlawfully although
the former might be the real owner himself. This remedy (to recover possession) is called 'possession
remedy'. This possessory remedy is provided by statutes.

Possession in Fact and Possession in Law: The conception of possession has evolved through a long
course of time. In the beginning, it was only a fact; it meant physical control over a thing. Later on, this fact
started receiving recognition and protection by law. Now, certain consequences came to be attached to this
fact (possession).

Thus possession included a physical relation with the object as well as its recognition by law. These aspects
are, sometimes, termed as possession in fact, and 'possession in law'. In Roman Law they called it
'possession civil.' A relationship with an object to be recognized by law as possession should exist in fact as
such in other words, there must be a physical relation with the object and the person. But in certain cases,

79
due to special reasons, law recognized possession, though it did not exist as such in act, and in some cases
it did not recognize possession though it existed in fact. There are cases of constructive possession where
one person is in possession of the object in fact on behalf of another; - e law recognizes the latter as in
possession. The cases in which the law does not recognize the latter as in possession. The cases, in which
the law does not recognize possession, though it exists in fact, are the cases of detention and custody.

Whether possession is fact or right? In this connection one more question arises. 'Whether possession is a
fact or a right? Right means a legally protected interest. The right is a consequence attached by law o a fact
or a set of facts or a state of thing defined by law. When a person is so situated that fact or facts so defined
are complete, that person is said to have the right or rights that are attached to those facts. Thus the right
and fact are closely related to each other. When we speak of possession, we mean that a defined set of

S
facts exists with a defined relationship between an object and a person, and therefore, the consequences
are attached to such fact or facts. It implies the rights attached to them, and when we mention rights it
implies the existence of certain facts. Therefore, possession is neither a fact nor a right alone, but it consists
of both.

U
Analysis of Possession

Roman Law: The Roman law had its main aim to protect ownership and it was in this connection that the
law regarding possession developed. The Roman Law was mainly concerned with developing a theory to

K
distinguish detention and possession from each other. A possessor had two advantages-

m
co
1. First, he had a right to protection by the praetor's interdicts called possessory interdicts.

.
2. Second, after the expiry of a prescribed period the possessor could acquire ownership.

A M n
a
m
a
A great amount of discussion has been made about the nature of the distinction between detention and
possession, and various theories have been given as to why law protected only certain forms of physical
control. It is submitted that the law of possession did not develop in the liens direct by any theory or
principle, but it developed on the basis of convenience and policy. Instances shall be presented later on

y
from the Roman law to show that the laws of possession are based more on convenience than on anything
else.

tu
d

K
Savingny's Theory of Possession: Savigny said that there are two elements of possession-

Savigny' Theory
S
(1) Corpus possession is (popularly known as 'corpus')
(2) Animus domini (known as animus')

Corpus: by Corpus is meant an effective physical control of the object. Savigny explaining it says:
The physical power of dealing with the subject immediately and of excluding any foreign agency over it. .. is
the factum which must exist in every acquisition of possession, as we required to give rise to it; and
continuing possession depends rather on the constant power of reproducing the original relationship at will.

Animus: by animus is meant the mental element or the intention to hold the object as owner against all
others. In order words, it is a conscious intention to exclude others from the object. Without this mental state
there can be no possession. Savigny's theory explains as to why the tenant, the borrower, and the agent
had not possession of the object let, lent or entrusted to deal with to them in Roman law. They had an

80
animus domini as they did not intend to hold the object in their own right.

Savigny's Analysis is Wrong: This analysis of possession in Roman law given by Savigny is wrong and it
has a number of weaknesses. He based his theory on the text of a single jurist and interpreted it without
putting it in its proper context. He wrongly assumed that 'corpus' and 'animus', which were required for
acquisition constituted possession itself. He did not mark the change in the conception of possession,
which had taken place in later times. According to his theory, the possession was lost when either of the
elements of possession ('corpus and animus) was lost but in actual parties' possession continued although
one of the elements was lost and, sometimes, it continues even though both were lost. A number of
instances can be produced from Roman Law to show this development.

S
Ihering's Theory: Ihering's theory of possession is more objective and it presents a sociological approach
to possession. He takes up the question as to why Roman Law protected possession by means of
'interdicts'. The answer, according to him is that the persons holding property in majority of the cases would
be owners and the possession was attributed to such persons so that the interdicts might be made available

U
to them. Therefore, Ihering says "whenever a person looked like an owner in relation to a thing, he had
possession of it, unless possession was denied to him by rules of law based on practical convenience." The
'animus' element was merely an intelligent consciousness of the fact. This theory is more in consonance
with the practice in Roman Law than Savigny's theory. At the same time, this theory is flexible. It explains
those cases which Savigny's theory found difficult to explain.

K . co
m
Weakness of Ihering's Theory: Though Ihering's theory is greatly superior to Savigny's theory, this too
has certain weaknesses. It looks at possession from the point of view interdicts; it is incapable of explaining
the cases where law refused 'possessory right' to the persons who were in effective physical control. The

M
cases in which the persons did not look like owners (in relation to a thing) but for certain purposes law
a
recognized them to be in possession cannot be explained by Ihering's theory. Ihering says that such cases

m
are exception but it is submitted that they point out the narrowness of the theory.

a
n

A
Possession in Common Law

y
d
Possession a Fact: As observed earlier, in the first instance possession is a fact to be established like any

tu
other fact. Whether it exists in a particular case or not depends upon the degree of the control exercised by
the person who claims to be in possession. The control must be such a degree as the person having the

K S
control might effectively exclude interference by others. The law has laid down certain tests to judge
whether a particular control is possession or not. When the control falls short of the standards so
established, it is called only custody or detention.

Possession Defined: Various writers, who have analysed and discussed English law, have defined
possession (as its conception is in English Law). Some of the definitions given by them shall be presented
here so that one may understand it clearly.

Holmes: Holmes writes 'To gain possession a man must stand in a certain physical relation to the object
and to the rest of the world and must have a certain intent.

Salmond: Salmond divides possession into 'incorporeal' and 'corporeal' and defines corporeal possession
as "the continuing exercise of a claim to the exclusive use of it." In this claim, there are two elements the
'corpus' and 'animus'.

81
Pollock, a distinguished writer on the subject says- In common speech a man is said to possess or to be in
possession of anything of which he had the apparent control or from the use of which he has the apparent
power of excluding others.

Corpus: "Corpus" means that 'there exists such physical contact of a person with a thing as to give rise to a
reasonable assumption that others will not interfere with it. This contact or relation has two aspects-

a) The Relation of the Possessor to the other Persons. Salmond Says: I am in possession of a
thing when the facts of the case are such as to create a reasonable expectation that I will not be
interfered with in the use of it.. .what measure of security is required for possession. We can only
answer: any measure which normally and reasonably satisfies the 'animus domini'. A thing is

S
possessed when it stands with respect to other persons in such a position that the possessor, having a
reasonable confidence that his claim to it will be respected, is content to leave where it is." The sources
through which such measure of security can be derived are the physical power of the possessor, his
personal presence, secrecy, custom, respect for rightful claims, the manifestation of 'animus domini'

U
and the protection offered by the possession of other things (things connected with it) etc.

b) The Relation of the Possessor to the Thing Possessed : About it Salmond says that 'the
necessary relation between the possessor and thing possessed is such as to admit of his making such
use of it as accords with the nature of the thing and of his claim to it."

K
the 'corpus' there are two elements-

. co
m
Both these are necessary to constitute possession. Paton is also of the same view. He says that, "in

M
a) The Possessor's Physical Relation to The res: Some kind of physical relation with the object is
a
necessary. What should be the measure of the control as to be considered possession, there are no

m
precise rules about it. The important test is whether the possessor can make the use of the object as its

a
nature admits. If he can make such use, he is considered to be in possession.

A y
Corpus depends upon the nature of the thing- thus whether in a particular case the necessary physical

d
relation exists or not depends among other things upon the nature of the thing also. By possession is

tu
meant possession of that character of which the thing is capable. Any domestic animal that is in the
habit returning home shall be considered in the possession of the master although he is wandering

K S
during the day.

b) The Relation of the Possessor to the Rest of the World: In addition to the physical control over
the res the possessor must have the ability also to exclude others. This is the possessor's relation to the
rest of the world. There are no hard and fast rules regarding the amount of power required to exclude
others. The test is "what is normally regarded as sufficient, provided that no one else is exercising
control to an equal or a greater degree. The power to exclude others is relative. The main consideration
in determining it is as to how far a society is civilized and legally advanced. In a law abiding society it is
an ability to exclude others.

Animus: The corpus (the physical control) alone cannot constitute the possession. "Animus" is also
necessary. It means that there must be an intent, a mental consciousness on the part of possessor to
exclude any interference by others. Some principles about animus are as follows-

It is not necessary that the animus should be specific; it may be general animus. It means that the

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possessor need not have the continuous and present knowledge (animus) of every specific or particular
object forming part of a group or store. If the person has the required animus towards the group or the store,
it extends to the specific or particular part also; for example, if a person has got a library he might have
forgotten the existence of many books but still they are in possession.

It is not necessary that the animus should be based on legal claim to the object. The object might have been
taken unlawfully but if such taker has required animus he has the possession of the object. For example, a
thief has possession of the stolen property as real as the owner himself has.

Some Important Cases on Possession: The following decided English cases on possession will help in
understanding the principle and the concept on possession-

the carpenter.

U S
Cartright v. Green: In this case a bureau was delivered to a carpenter for repairs. There was some money in
a secret drawer of the bureau. The carpenter found the money and he appropriated it. He was convicted for
larceny. It was held that the money was not in his possession until he found it. Here animus was lacking in

Merry v. Green: In this case a person purchased a bureau. He found some money in a drawer, which he
appropriated. He was convicted for larceny on the same principle as laid down in the above case.

K
Rv Ashwell: in this case X gave and Y received a guinea in a dark night. Both of them believed it to be a

m
shilling. Y subsequently discovered that it was a guinea and he appropriated it. He was convicted for

co
larceny. In appeal to the Court for Crown Cases Reserved the court was equally divided so the conviction

.
was allowed to stand. The observation of Cave, j., in that case contains force:' A man has not possession of

M
that, of the existence of which he is unaware." This view found favor in the following case-
a
m
Rv. Hudson: In this case the accused received an envelope that was intended for another man of the same

a
name (as that of the accused). The accused kept it with him for some days and then opened it. He found

A
inside a cheque, which he appropriated. He was convicted for larceny. It was held that the cheque did not

y
pass into his possession till he opened the envelope and found it. The animus was lacking in him before he
opened the envelope.
d
tu
Elwas V. Brigg Gas Co.: In this case the defendant company had taken a lease of some land belonging to

K S
the plaintiff landlord for the purpose of erecting gas works on it. While the land was being excavated they
(defendant) found a pre-historic boat six feet below the surface. It was held that the boat belonged to the
landlord and not to the defendant company. The landlord being entitled to the land and in lawful possession
of the same, "was in possession of ground, not merely of the surface, but of everything that lay beneath the
surface down to the center of the earth."

So far as the possession of the things lying unattached on the surface of the land is concerned, the following
cases are relevant (law is not still perfectly settled on the point).

Bridges v. Hawkesworth: In this case a pocket book was left on the floor of the shop of the defendant
shopkeeper by a customer. The plaintiff (who also was a customer) found it. He gave it to the defendant for
the purpose of returning it to the real owner when he was discovered. It was held that the plaintiff, and not
the defendant, first acquired possession of the book (and so it belonged to him in default of the real owner).
The defendant did not know of the existence of the book before the plaintiff found it, therefore the former
had no animus and consequently, he was not in possession of it.

83
RV. Moor: This case was also decided on the same principle on which the above-mentioned case was
decided. In this case a bank note was dropped in the shop of the accused. The accused found it and
appropriated it knowing full well that the owner could be discovered. He was convicted of larceny. It means
that the accused was not in possession until he actually found the note because the animus was lacking.

Hannah v. Peel: In this case the decision given in Bridges v. Hawkesworth was followed. A solider was
stationed in a house. The house belonged to a person who had purchased it from somebody else but he
had never occupied it. The solider found a brooch on the top of a window frame covered with dust. The
person who owned the house took it from the solider and sold it. It was held that the solider was entitled to
receive damages from him because he (the solider) had the prior possession. The owner of the house had

S
no knowledge of the brooch and hence he was not in possession of it. Therefore, the soldier had a better
title. This decision too is criticized by many on the grounds given in the preceding paragraph.

Rights of the Possessor

U
We have described the importance of possession in the first paragraph of this Chapter and in that
connection we have mentioned some of the rights of the possession also. Now again, the rights shall be
discussed in some detail to give a full idea of it.

K
Possession has Better Claim Against All Except the Real Owner: "Possession" is said to be 'the nine

m
points of the law.' It means that the person in possession of an object has better claim over it against the

co
whole world except the real owner. This principle has been very well illustrated in Armorie v. Dalamirire. In

.
this case a chimney boy found a jewel and took it to the shop of the defendant to know its value. The

M
defendant refused to return it to the boy on the ground that the boy was not the owner. The boy was allowed
a
by the court to recover it from the shopkeeper. The boy being the prior possessor had a better claim to it

m
against the whole world except the real owner, and as the shopkeeper's claim was not on behalf of the

a
owner, the claim of the boy prevailed against him.

A y
Possession is a root of life: After a prescribed period it ripens into a complete and legal title. Possession is

d
substantive rights and as such it is transferable and inheritable. The period of the possession of all the

tu
persons claiming under the same possessor is added together to make up the prescribed period of
limitation. The person in possession can sue and get restrained the persons who interfere with their

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possession without proving title as owner of the property.

Possession is an Evidence of Ownership: Possession is an evidence of ownership. The possessor is

presumed to be the owner until one proves a better title to it than him. All these rules and the principles have
been recognized in almost all the legal systems.

Kinds of Possession

Mediate and Immediate Possession: Possession is mediate or immediate. Salmond says: "One person
may possess a thing for or on account of someone else. In such a case the latter is in possession by the
agency of him who so holds the thing on his behalf. The possession thus held by one man through another
may be termed mediate, while that which is acquired or retained directly or personally may be distinguished
as immediate or direct." He speaks of the three types of mediate possession.

1) The first mediate possession is that which is acquired through an agent or a servant. The agent or

84
 the servant acquires or retains the possession solely on behalf of his principal or the master without
claiming any interest of his own in the object. In such cases though the immediate possession is with the
agent or the servant, the mediate possession is with the principal or the master.

2) The second mediate possession is where an object is held by a person who holds it on his own
account as well as on another account but recognizes the superior right of the latter who can obtain it
whenever he choose to demand. The person having this superior right is in the mediate possession of
the object. For example, if someone has borrowed a book from me I am in the mediate possession of
the book.

3) The third type of mediate possession exists where the immediate possession of the object is with a

S
person who has a claim over the object until some time has elapsed or some condition has been
fulfilled. He acknowledges the title of another for whom he holds the object and is to deliver the object to
him after his claim has come to an end (by lapse of the time or the (fulfillment of the condition).

U
Corporeal and Incorporeal Possession: Again, a distinction is made between corporeal and incorporeal
possession. Corporeal possession is some form of continuing relation between a person and a material
object. It is a relation of fact and not of right. It is only a title or right and is not itself a right "Incorporeal
possession" is the continuing exercise of a claim to anything else (than the material object). The thing so
claimed may be either the non-exclusive use of a material object (for example, a way or other servitude over

K
a piece of land) or some interest or advantage unconnected with the use of material object; for example, a

m
trade mark, a patent, or an office of profit. In short the corporeal possession is the possession of an object,

co
and the incorporeal possession is the possession of a right

M
It is submitted that this distinction is not of much practical importance, nor it is very sound. The possession
a
of an object (corporeal possession) implies certain rights over the object and the possession of a right

m
(incorporeal possession) brings into picture some object over which or where the right is exercised.

a
Therefore, really speaking the difference between the corporeal and the incorporeal possession is only that

A
of the degree and not of the substance. It is on this ground that Ihering observes that 'both forms of

y
possession consist in the exercise of a right'. There are three modes of acquisition of possession-

d
tu
a) Taking: It implies an act exclusively on the part of the person who takes the possession. Taking is
"original" or "derivative". The original taking place when the object has no previous owner as res nullius

K S
(when a man catches a wild animal). When the possession of a thing is taken which has already a
previous owner it is 'derivative' taking. Here taking means acquiring possession without the consent of
that previous owner or possession.

b) Delivery: Delivery means voluntary relinquishment of possession by a person in favor of another.

Delivery may be actual or constructive. Actual delivery means the transfer of immediate possession. A
delivers a watch to B. This is actual delivery of possession to B. All that is not actual delivery is
constructive delivery. The delivery of the key of house with the intention of delivering the possession of
the house is the constructive delivery of the house.

c) By operation of law: A third mode of the acquisition of possession is by operation of law. It takes
place when by the operation of law goods are removed from the possession of one person to the other.

For example, when a person dies the things in his possession pass to his personal representative.

85
Possession and Ownership

Possession Fact, Ownership Right: This distinction is misleading. Ownership is a kindred conception of
possession; therefore it will not be out of place to say a few words on the relationship between the two.
Salmond makes a distinction between the two on the basis of fact and right. "Possession is in fact what
ownership is in right. Possession is the de facto exercise of a claim. It is maintained by the will of the State as
expressed in the law. It is possessed by me, when my claim to it is maintained by my own self-assertive will.
Ownership is the guarantee of the law; possession is the guarantee of the facts. It is well to have both forms
of security if possible, and indeed they normally co-exist. It is submitted that a distinction on the basis of fact
and right is not tenable. It has been observed earlier that fact and right are not quite separate and
independent ideas; one cannot exist without the other. Therefore, to say that one is fact and the other is right

S
is misleading. Though there may be difference of degree, both the things, (fact and right) are present in both
the concepts. However, we shall mention the relation and the points of distinction between the two.

Rights of Ownership Superior: One changes into the other: Two sets of facts. The right of ownership is

U
superior comprehensive and it includes the right of possession. Generally, ownership and possession
coincide and their separation is due to special reasons. They are very akin to each other and are of the
same species. Ownership tends to realize itself into possession and possession tends to become
ownership. The one cannot remain divorced from the other for a very long time. Possession for a long time
ripens into ownership and ownership without possession for a long time is destroyed. Rights called

K
possession and ownership are attached to two different sets of facts. The facts to which the right called

m
possession is attached are corpus and animus. The facts to which the right called ownership is attached are

co
possession of (res nullius), or prescription (possession of the object for a prescribed period without the

.
consent of the previous owner), or conveyance from the previous owner of the object. Sometimes rights

M
analogous to those of ownership may be given by the legislature to persons of whom a defined set of facts is
true, such as a patentee. a
m
OWNERSHIP
a
n

A y
Ownership is an akin conception of possession. The conception of ownership seems to have come into

d
being when the society changed from nomadic to agricultural. This course of development illustrates the

tu
principle that development of law and society are interconnected and therefore one cannot be understood
without the other.

K S
Before entering into the analysis of ownership it is necessary that we should distinguish it from
other kindred conception and present a definition of it.

The relation of person with an object can be of following kinds-

a) Custody: It is a relation of a person to an object in which he has no full control over the thing; in other
words, he has no required animus to exclude others for example, a customer examining a piece of cloth
in a shop before the shopkeeper who has only the custody of that cloth.

b) Detention: It is a relation where a person has in fact possession over the thing but law due to certain
reasons does not recognize it as possession, for example a servant has the detention over things of his
master with him.

c) Possession: it is relation of a person to an object which law recognizes as possession.

86
This is a relation of a person to an object which is exclusive or absolute or ultimate. The person who stands
in this relation is called "owner" and he has a right of complete control and enjoyment of the object.

Definition of Ownership
Hindu Law - Ownership and Property: Correlated Terms

According to ancient Indian Jurists, ownership is a peculiar kind of relation between a person and a
thing. This relation can be looked at from two different angles.

One can look at it from the angle of the person in whom the bundle of rights over the thing vests which

S
constitute ownership or he can look at it from the angle of the thing and can study it as subject to a special
kind of control, exercised by a particular person.

The bundle of rights of a person over a thing gives him the ownership of the thing and control exercised by

U
the person over the thing makes the thing a property of that person. Ownership and property are the two
aspects of the same relation. These concepts are mutually interdependent and can not be fully and clearly
understood without the other.

K
The view given by Austin and Salmond is very close to Indian view. According to this view ownership is a
relation which subsists of ownership as "a right over a determinate thing indefinite in the point of user,
unrestricted in point of disposition and unlimited point of duration."
m
co
According to this definition there are three elements of ownership-

M a
1) Indefiniteness in Point of User: It is one of the incidents which can be used in a variety of ways
which cannot be defined. There are certain limitations on the owner's power. Law obliges that an owner

m
should not use his property in such a way as to injure the rights of other persons.

a
n

A
2) Power of Disposal: The owner has power to dispose of the property. There are no limitations upon

y
this power. This is considered to be very important incident of ownership.

d
tu
3) Unlimited in Point of Duration: It means that right of ownership exists as long as the thing owned

K
exists. After the death of owner the thing goes to his successors.
S
Holland is Definition

Holland defines ownership as a plenary control over an object.

According to him, an owner has three rights on the object owned-
a) Possession
b) Enjoyment
c) Disposition

Rights of Ownership: The main rights of ownership are-

1. The right of possession of the property owned.
2. The right of enjoyment of the property. It includes the power to deal with the property as the owner
pleases.

87
3. The power to dispose of the property.

Classification Of Ownership

1) Corporeal and Incorporeal Ownership: The ownership may be of a physical object or of a right. It
the subject matter of the ownership is a physical object, it is corporeal ownership.

If the subject matter of ownership is a right of copyright or patent, it is incorporeal

ownership.

2) Sole and Co-Ownership: The general principle of ownership is that it should vest in one person

S
only. But sometimes two or more persons have the right of ownership of the same property vested in
them at the same time. When the ownership is vested in one person only it is sole ownership and
when it is vested in more ownership and when it is vested in more that one it is called co-ownership.

U
3) Trust and Beneficial ownership: Trust ownership is an instance of duplicate ownership. Trust
property is that which is owned by two persons at the same time, the relation between the two
owners being such that one of them is under obligation to use his ownership for the benefit of the
other.

K
4) Legal and Equitable Ownership: The distinction between legal and equitable ownership is closely

m
connected with the distinction between trust and beneficiary ownership but they are not identical.

co
This division of ownership is recognized in English Law but in India there is no such division. In

.
England two sets of courts existed-Common Law Courts and Chancery Court or Equity Courts.

M
They had separate jurisdictions.
a
m
5) Vested and Contingent Ownership: Ownership is either vested or contingent. When the title of

a
the owner is perfect, then it is vested ownership. If it is vested ownership the property is owned

A
absolutely. It implies that the fact is complete in all its parts.

y
d
6) Contingent ownership is the ownership when the owner's title is yet imperfect, but is capable of

tu
becoming perfect in future on the fulfillment of some condition. In contingent ownership the property
is owned conditionally.

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7) Absolute and Limited Ownership: When all the rights of ownership (Le. possession, enjoyment
and disposal) are vested in a person without any restriction (except that imposed by law in the
interest of society) his ownership is absolute ownership. When there are limitations on user or
duration or disposal, the ownership is limited ownership.

Modes of Acquisition of Ownership

Hindu Law: The modes of acquisition of ownership of property are as follows-
1. Inheritance 2. Gain 3. Purchase 4. Conquest
5. Application of Wealth 6. Employment 7. Acceptance of gift

LEGAL PERSONALITY

Definition: The word 'person' is derived from the Latin word 'persona' . This term has a long history. To

88
begin with, it simply meant a mask. Later on, it was used to denote the part played by a man in life. After that,
it was used in the sense of the man who played the part. In later Roman law, the term became synonymous
with caput. A slave had an imperfect persona. Last of all, the term is used in the sense of a being who is
capable of sustaining rights and duties.

The Nature of Legal Personality: 'Personality' in the philosophic sense means 'the rational substratum of
a human being.' In law means a 'right and duty bearing unit.' Personality should be distinguished from
humanity. Humanity means only the natural human beings but personality has a technical meaning and it
includes inanimate objects also. Thus personality is wider than humanity. Sometimes, humanity and
personality coincide and, sometimes, they do not. There are human beings who are not persons in the legal
sense, such as slaves (in early times). In the same way there are legal persons who are not human beings,

S
such as an idol or a corporation.

Persons of Two Kinds, Natural and Legal: Persons are of two kinds: natural and legal. Natural persons
means human beings. Legal persons mean beings and things which are teated as persons by law. Thus

U
'legal person' includes those things which are treated in the same way as human beings for the legal
purposes.

Natural Persons

K
All Human Beings not Legal Persons: All human beings are not legal persons. In olden days the slaves

m
were not considered legal persons. They were treated as chattel of their masters. In ancient Hindu Law,

co
persons having certain physical disabilities were considered as disqualified to inherit property. Manu said-

.
(Impotent persons and outcastes are excluded from a share of the heritage; and so are persons born blind

M
and deaf: as well as mad men, idiots, the dumb and those who have lost a sense or a limb). Lunatics and
a
infants have only a restricted legal personality. In modern times, with very few exceptions legal personality

m
is granted to all the human beings. The legal personality granted to a human begins at birth and ends with
the death.
a
n

A y
Personality Starts with Birth: When a child is born alive, he is considered to be a person in the eye of law.

d
Such child (in the womb) is considered as a life chosen to form part of the period in the rule against

tu
perpetuities. In Hindu law, a child in womb is considered in existence (in case of partition) and he inherits the
property if he is born alive. If a partition takes place among the co-parceners (while the child is in womb), a

K S
share is to be reserved for him. If the share is not reserved then the partition would reopen and the new born
boy would take the same share which he would have taken if he was born before the partition. Apart from
these rights, he is considered to be capable owning personal rights also. If a pregnant woman is awarded
death sentence, the execution of the sentence shall be postponed till she is delivered of the child. Abortion
and child destruction are crimes.

Personality Ends with Death

Certain Rights Protected after Death: The rights are generally created at birth and they extinguish at
death. But the law, in certain matters, recognizes and protects the desires and interests of the deceased.
There are three rights in this respect, i.e. about the deceased's body, his reputation and his estate, Law
secures decent burial for all dead men and the violation of a grave is criminal offence. In certain societies
law permits the creation of trusts for worship at the tomb of the deceased and it enforces such trust.

89
Animals

Animals have no Legal Personality: Animals are not persons in the eye of law and, therefore, they are not
subjects of legal rights and duties. In ancient times, animals for some purposes, were treated as persons.
There are a number of instances of this kind in ancient Indian stories where animals were sued in courts.
But in modern times, no legal system recognizes animals as persons. Therefore they have no rights and
liabilities. The human acts which are considered by law as wrongs against animals are, really speaking not
wrongs against the animals, but are wrongs either against the person who owns that animal or against the
society. In India, cruelty against animals (as defined in various statutes) is an offence, but at the same time
this duty is not a duty towards the animals; it is a duty towards the society or the state. In our country a trust
for the benefit of animals can be legally created.

U S
Legal Person: "A legal person", says Salmond, "is any subject-matter other than a human being to which
law attributes personality." It includes an object, a mass of property, an institution, a group of human beings
etc. Law treats them as right and duty bearing units or entities likes a natural person. It is a fiction of law that
they are treated as persons. The law in creating legal persons personifies some real thing or object and
then confers upon it a fictitious personality. The former can be called the corpus and the latter the animus of
the legal personality. Though legal personality, first of all, requires personification, (the use of) a
personification in common speech does not mean that the legal personality has been conferred upon it. We

K
speak of a bench (of judges) or a cabinet of (ministers) as a person but they have no legal personality. Legal
personality is attained when law recognizes a single entity over and above the group of the individuals or
m
the thing which represents the group of the individuals or the thing is district from them. There is a clear

co
distinction between the individuals who compose the group (corporation) and the group or corporation as a

.
legal person. A company (it is a legal person) might go bankrupt but the shareholders would retain their

M a
millions.

Evolution of Corporate Personality m

a
n

A y
Roman Laws: The idea of legal personality can be traced in Roman and ancient Hindu laws. The ancient

d
Roman society was undeveloped and its organization was not very complex; therefore the problem of legal

tu
personality did not bother them much. The family was the unit of the society. Though family consisted of a
number of individuals, all the powers were centred in 'peter familias. He represented the whole family;

K S
therefore, there was no theoretical difficulty about his position.

English Law: In England there are two main types of juristic persons: (1) Corporation Sole; and (2)
Corporation Aggregate. The origin and the course of evolution of the two are quite different; therefore, it
necessitates their discussion separately.

Corporation Sole: Corporation sole is defined as an "incorporated series of successive persons". The
concept of 'corporation sole' seems to have come into existence somewhat accidentally, and comparatively
late. It came into being to solve the problem of the devolution of land held by ecclesiastics in right of their
ecclesiastical office. Later on, the same theory was applied on certain public offices. In some cases this was
done through special statutes. A very popular example of 'corporation sole', in England, is the King. He is so
by common law. There is a distinction between the king as an individual and the king as the head of the
state. In the later capacity he is a corporation sole. The King never dies' and 'the King is dead, long live the
King' are based upon the King's position as 'corporation sole'. The distinction between the two capacities of
the king is drawn in the Crown Proceedings Act, 1947. Commonwealth has created another peculiarity in

90
the personality of the King. The Crown is considered as the symbol of the unity of the Commonwealth
nations. It means that for some purposes the Crown is regarded not as one person, but as a unity or
combination of many personalities, each representing one part of the Commonwealth (except the countries
which are republics). Other examples of Corporation sole are the Post Master General of England, the
Solicitor of the Treasury etc. They have been made Corporation Soles by special statutes. In Continental
law there is no such concept as 'Corporation Sole'.

Corporation Aggregate: 'Corporation Aggregate' means "an incorporated group of coexisting persons".
The personality is conferred upon groups by law. In the thirteenth and the fourteenth centuries, in England,
there were various kinds of groups such as 'boroughs' and 'merchant guids'. Though they possessed
corporate characteristics, they had no legal personality. Even in the time of Bracton the concept of

S
corporate personality had not occurred to jurists. It was in the sixteenth century that the idea of
incorporation took birth and it developed very fast. By the time of Coke it was established that the
corporations cannot arise at their own initiative. There must be some constitutive act or authority to create a
corporation. They could be created either under common law, or by a Royal Charter, or by a statute, or by

U
prescription, Thus, in every case there must be some lawful authority for their incorporation.

Apart from the corporations ('corporation sole' and 'corporation aggregate') the legal personality has been
conferred upon certain objects and things also. A fund dedicated for a special purpose, such as a trust, or a
charitable fund is a legal person. Certain objects or institutions, such as a church or a university are also

K
legal, persons.

m
co
India

.
Indian Law: Coparcenaries: In ancient India, like Roman law, the concept of legal personality was not

M
clearly understood nor was there any necessity for it. The coparcenary system of Hindu law may be
a
considered to be more or less a corporation. The head or the karta of the family acted in a representative

m
capacity and in this capacity he sued and could be sued. There were many kinds of groups also where

a
some members of it acted in a representative capacity. But they cannot be said to be legal persons in the

A
modern sense of the term.

y
d
Corporations: However, in ancient Hindu system some form of corporation was recognized. We

tu
find its evidence in certain texts, as:-

K S
(Among heretical sects, trading corporations, trade guilds, unions, troops, tribes and other associations the
King should maintain the conventions, as also in regard to fortfield towns and the open country Narada).

(Whatever is obtained by a member of the corporation shall belong to all in common-Brihaspatl).

Idols and Funds: Idol was considered to be juristic person. It owned property. It could sue and could be
sued. A fund dedicated for a religious purpose was also of the nature of a legal person. It had certain rights
and received certain protection from law, such as the property dedicated to a math.

State: State is a juristic person. It can sue and can be sued. Article 300 of the Indian Constitution provides:-

The government of India may sue or be sued by the name of the Union of India and the Government
of State may sue or be sued by the name of the State.

In Civil Procedure Code, 1908, provision has been made for making parties in suits by and against the

91
State.

Idol: Idol is a juristic person and as such it can hold property. But it is treated as a minor and Pujari or
somebody else acts on its behalf as its guardian. Mosque is not a juristic person. In a Lahore decision it was
held that a mosque was a justice person and could sue and be sued, but in the Masjid Shahid Ganj Case it
was decided by the Privy Council that suits cannot be brought by or against mosques, for they are not
'artificial' persons in the eye of the law. However, they left the question open whether a mosque could for
any purpose be regarded as juristic person'.

Mosque: A mosque is not a juristic person. In Maula Buksh v. Hafiz-ud-din, it was held by the Lahore High
Court that a mosque was a juristic person and could sue and be sued. [AIR 1926 Lah 372]. In the Masjid

S
Shahid Ganj case, it was decided by the Privy Council that suits could be brought by or against mosque as
they were not artificial persons in the eye of law.

Companies, Associations and Groups: Companies, associations and many other kinds of groups are

U
legal persons. They have been expressly so recognized in a number of statutes.
Theories of Corporate Personality

Theories of Corporate Personality

K m
Divergence Between Theory and Practice: There are various theories of corporate personality which

co
have attempted to theorise the nature of authority of it. This might make one to gather that theoretically all
the legal problems regarding juristic persons have been fully explored but this is not true. There is a great

.
divergence between theory and practice. Anyone theory alone is not capable of solving the problems fully.

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Therefore, the courts have not followed anyone theory consistently. Following are the principal theories of

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corporate personality:

1) a
Fiction Theory: This theory says that only human beings can property be called 'persons'. Same
n

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kinds of groups etc. are regarded as persons for certain purposes only by a fiction of law and they have
no real personality. Main supporters of this theory are Savigny, Salmond and Dicey. This theory is most
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applicable to English Law where the courts have not proceeded on any hard and fast principle in their

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recognition of juristic persons. There is much flexibility in the theory and it can accommodate the

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various decisions (which are sometimes divergent also) on legal personality. This theory is very popular
because it is not based on any metaphysical notion or argument. It is argued on the basis of this theory
that as a juristic person has only a fictitious will, it cannot commit crimes.

2) Concession Theory: This theory is allied to the 'fiction theory'. The supporters of both theories are
almost the same jurists. This theory says that corporate bodies have legal personality only to the extent
granted by law. Here law means the state. In other words, the law is the exclusive source or authority
which can confer juristic personality. Though this theory states a truism, by leaving the creation of
juristic personality absolutely at the discretion of state, it leaves room for mischief. This theory has been
used in many cases to suppress autonomous institutions. It differs from the fiction theory in one
important respect. It is this that the former identifies law with the state which the latter does not.

3) Realist Theory: This theory has another name also, i.e., 'organic theory'. The main exponent of this
theory is Gierke; Maitland also supports it. This theory says that a group has a real will, real mind, and a
real power of action. A corporation has all characteristics which a natural person has. Therefore, juristic
persons are real in the same sense in which human beings are. Legal personality is not fictitious, nor it

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 depends upon state's recognition.

4) Bracket Theory or Symbolist Theory: This theory says the members of the corporation are the
only persons who have rights and duties. The granting of juristic personality means putting a bracket
round the members in order to treat them as a unit. This is done for the purposes of convenience. In
order words, juristic personality is only a symbol which helps in effectuating the interest or the purpose
of the group. The theory speaks great truth when it says that the groups are only to effectuate the
interest of its members, but it has certain weakness also. The contention of the theory that only human
beings have personality and not the group is far from the truth. In modern times, it is agreed on all heads
and is fully established that corporation has a legal personality which is separate and distinct from its
members and it has entirely different rights and duties. It is the separate personality that enters into

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contract and other legal transactions with others.

Problems of Corporate Personality: A corporation is, in law, quite distinct and separate from the
members who compose it. Its rights and liabilities are different from those of the members. A shareholder of

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a company can legally enter into a contract with the company as such. Shareholders might be entirely
changed, or their number might greatly reduce, but it would make, in no way, any change in the identity of
the company. The company might go bankrupt but the shareholders would retain millions. The real
positions of a company can be understood only if we make a comparison of it with an unincorporated firm. In
an unincorporated firm there is not much difference between the rights and obligations of the firm and its

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partners. Even the separate property of the partners is liable for the debts of the firm. Change of anyone

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partner causes the reconstitution of the firm. There can be firm of only one partner, whereas a company

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may be of only one member. This special position of the company is due to the fact that a company is a

.
juristic person; therefore, it is distinct and separate from its shareholders but the unincorporated firm is not a

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juristic person; therefore, it does not have the above mentioned advantages.
a
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Salomon v. Salomon; Farrar v. Farrar: In short, the essential character of the corporation is that it has a

a
distinct personality from its members. In Salmon v. Salomon and Co. Ltd.' (a leading case on the point) the

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House of Lords refused to identify the company with its shareholder. It was held that 'he could claim the

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preferential rights of a bondholder against the company which was in reality he himself, to the detriment of

d
genuine creditors'. Again, in Farrar v. Farrar Ltd. it was held: "A sale by a person to corporation of which he is

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member not either in form, or in substance is a sale by a person to himself, the idea is that the corporate
body is distinct from the persons composing it. A sale by a member of a corporation to the corporation itself

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is in every sense, valid in equity as well as in law."

Principle not Consistently Followed; Lifting the Veil: The principle given above has, however, not been
consistently followed. "Greater familiarity with the problems implicit in the incorporations of groups has
compelled the courts to retract from the simplicity of the doctrine of lifting the veil and in some cases to
'pierce the veil' of legal personality in order to lay bare the realities behind it". This has made the law about
legal personality considerably complicated. There have been cases in U.S.A., England and other countries
where courts lifted the veil of legal personality and examined the reality behind it. The veil can be lifted when
it becomes necessary to know the character of a corporate person; or when a corporation has been created
to avoid some legal obligation; or when the device of corporate personality is used to perpetuae fraud, as to
evade tax; or when it is used to evade a statue or to delay creditors; or when it is necessary to promote
juristic or to obviate inequitable results.

Daimler Co. v. Continental Type Co.: In Daimler Co. v. Continental Tyre Co. the House of Lords lifted the
veil of legal personality of a company to discover its nature. The House held the company to be an enemy

93
company as all its share holders (with an insignificant exception) and directors were enemies (Germans,
during the World War 1).

Convenience and Policy is the Basis: It is thus clear that courts have not followed any theory consistently
and have proceeded mostly according to convenience and on the basis of policy. They have disregarded
legal personality in a number of cases, where law had conferred one, and on occasions they attributed legal
personality to groups where it was not so provided by law (statute). In modern times, the law is very lenient
in conferring legal personality upon groups, but at the same time it does not hesitate in lifting the veil if it is
necessary in the interest of justice or as a matter of policy.

Reasons for Divergence Between Theory and Practice: It has been pointed out earlier that there is

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divergence between the theory and the practice about legal personality and we have given also the reasons
for it. A discussion of the theories and practical problems has made it very clear. The theorizing spirit of the
jurists ignoring the practical problems, has also been one of the reasons for this gulf between theory and
practice.

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1. Liability of Corporations in Contract - Limited Power to Enter into a Contract; New
Comprehensive Memorandum: For entering into a contract two things are of vital importance, i.e. the
form of the contract and the capacity of the parties. A corporation has no material existence therefore, it
always acts through its agents. It signifies its assent through its seal. Therefore, the presence of the seal

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is considered as the evidence of the assent of the body corporate. Subject to certain exceptions this is

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general rule. The form of the contract is same in every case whether the parties are the natural persons

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or one or both parties are corporations. So far as the capacity of a corporation to enter into contract is

.
concerned, in England, it depends upon the source of the creation of the corporation. They are created

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either by a charter or by a statute. In common law a corporation created by a Royal Charter can itself
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deal with its property in the same manner as a natural person. The power of a corporation, created by a

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statute to enter into a contract is limited to what the statute grants. "Thus a company incorporated under

a
the companies Act is limited in its capacity to the objects set out in its memorandum of association. Any

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contract made beyond memorandum is ultra vires and void, although it is agreed upon by all the

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members unanimously. Such act (contact) is incapable of ratification." Such a limitation upon a

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corporation's power to contract has been criticized by jurists. However, in modern times, the rule is not

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working as a great impediment upon corporation's power because memorandum is drafted very
comprehensively. In India, there is no common law, therefore, the power of corporation to enter into a

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contract depends upon the statute.

2. Liability of Corporations for Torts: As observed earlier, a corporation acts always through its
agents. Therefore, liability of a corporation for the torts is based on the principle of vicarious liability. A
corporation is liable for the acts of its servants done in course of employment. But this rule applies only
for those acts which are intra vires the corporation. The difficulty arises in determining the liability for the
acts which are ultra vires. "The strict view of English law is that if a tram company has no power to run
buses, then any bus drivers engaged are not in law the servants of the Company, and therefore the
company is not liable for their torts". Such acts (ultra vires acts) are divided into two classes-the acts
done under the express authority of the corporation and acts done without any authority.

3. Liability of Corporation for Criminal Acts: Impossibility of mens rea; Made criminally liable. The
earlier view was that a corporation cannot be made liable for a crime. There are theoretical as well as
procedural difficulties. How mens rea can be attributed to a body corporate? And how it can be
punished? were the questions which created difficulties in holding a corporation liable for criminal acts.

94
 In England, the procedural difficulties have been removed by statutes and theoretical difficulties have
been overcome partly by statutes and partly by court decisions on the point.

In D.P.P. v. Kent and Sussex Contractors Ltd., the manager of the company had sent in false returns for the
purpose of obtaining petrol coupons. The Court held the company liable and said that through its manager
the company committed the offence.

In R. v. C.R. Haulage Ltd. A company was held liable for conspiracy to defraud. Its managing directors and
some others had conspired to practise fraud upon another company.

In Moor v. Bresler Ltd. The company was held guilty for the criminal act of its secretary.

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Offences by Companies:

1. If the person committing an offence under this Chapter is a company, every person who, at the time
the offence was committed was in charge of and was responsible to the company for the conduct of

U
business of the company, as well as the company shall be deemed to be guilty of the offence and shall
be liable to be proceeded against and punished accordingly:

2. Notwithstanding anything contained in sub-section (1) where an offence under this Chapter has
been committed by a company and it is proved that the offence has been committed with the consent or

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connivance of, attributable to any negligence on the part of, any director, manager, secretary or other

m
officer of the company, such director, manager, secretary or other officer shall also be deemed to be

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guilty of that offence and shall be liable to be proceeded against and punished accordingly.

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Explanation for the purposes of this section-
a
m
a) “company” means a body corporate and includes a firm or other association of individuals; and

a
b) "director", in relation to firm, means a partner in the firm. Thus, though some of the problems

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regarding the criminal liability of corporation have been solved and some principles have been

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established, how far this evolution will go is still uncertain.

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LIABILITY

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The Nature of Liability: In civilized societies most of the relations between the individual and the state are
governed by rules made and recognized by the state, that is, law. Law lays down the rights and duties of the
individuals. In other words, it prescribes what one is to do and what one is not to do and what one is entitled
to get (it) done. A breach of these rules is called wrong. When a person has committed a wrong he is said to
be liable. Thus liability is the condition of the person who has committed a wrong. Salmond defines liability
as the bond of necessity that exists between the wrong doer and the remedy of the wrong. The task of law is
not finished only by laying down rights and duties; it ensures their protection, enforcement and redress also.
Therefore, 'liability' is a very important part of the study of law. The kinds of liability: when one becomes
liable or in other words, when liability comes into existence and the measure of liability are those things that
must be known in this connection.

Kinds of Liability: Liability is either "civil" or "criminal", either "remedial" or "penal". Whilst criminal liability
is always penal, civil liability may be either remedial or penal.

Difference Between Civil and Criminal Liability:

95
1. Crime is a wrong against the society but a civil wrong is a wrong against a private individual or
individuals.

2. The remedy against a crime is punishment but the remedy against the civil wrongs is damages.

3. A third difference between the two is that of the procedure. The proceedings in case of crime are
criminal proceedings, but the proceedings in case of a civil have two different sets of court.

4. The liability in a crime is measured by the intention of the wrongdoer, but in a civil wrong the liability
is measured by the wrongful act and the liability depends upon the act and not upon the intention.

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Remedial and Penal Liability: The liability can again be classified as "penal' and 'remedial'. This
distinction has been made on the basis of the legal consequences of the action against the wrong. If after a
successful proceeding the defendant is ordered to pay damages or to pay a debt or to make a specific

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performance etc., the liability is called 'remedial liability'. When after a successful proceeding the
wrongdoer is awarded punishment, which may be fine, imprisonment etc., it is called penal liability. The civil
liability is generally remedial and the criminal liability in some cases is penal. Therefore civil liability is
remedial and penal both. So far as criminal liability is concerned with the very few exceptions, it is always
penal.

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Remedial Liability: This liability is based on the maxim 'ubi jus ibi remedium' (when there is a right there
must be some remedy). When law creates a duty it ensures its fulfillment also. For the breach of a duty there
is some remedy prescribed by law and law enforces it. The exceptions are the following:

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1. The Duties of Imperfect Obligation: This is the first exception to the rule that a duty is enforceable

m
by law. A time barred debt is an example of it. Though the debt exists in law, it is not enforceable.

a
Therefore, there can be no proceedings to compel its payment.

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2. There are some duties that are of such a nature that once broken they cannot be specifically

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enforced (in respect of the act done). For example, in a completed ingredient in the light of the definition,

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intention to take the property is a mental activity where the act originates. The circumstances are: the
property must be movable; it should be taken without the consent of that person; there must be some

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moving of the property in order to accomplish the taking of it. The consequence is that the property is
taken out of the possession of another person. A theft would take place when all the ingredients are
complete. When we use the word 'act' as condition of penal liability, it is used in its wider sense, and not
in its limited sense as the movement of the body only.

Penal Liability: The maxim 'actus non facit reum, nisi mens sit rea' (the act alone does not amount to guilt,
it must be accompanied by a guilty mind) is considered to be the condition of penal liability. Thus there are
two conditions of penal liability -

1. Act, and
2. Guilty mind, or mens rea.

Act: Austin defines act as a 'movement of the will'. It is the bodily movement caused by violation; a violation
being a desire for a bodily movement is immediately followed by such movement provided the bodily
member is in a normal condition. The view of Homes is that an act is always a voluntary muscular

96
contraction and nothing else. Thus according to both the jurists an act is a willed movement of the body.
Salmond takes 'act' in a wider sense. He says: we mean by it (act) any event, which is subject to the control
of human will.' Salmond's use of the word 'event' is of great significance. 'Event' is not an act in the strict
sense nor is movement but Salmond by act means those events which are subject to the control of human
will. Act consists of three stages-

a) Its origin in some mental or bodily: activity or passivity of the doer.

b) Its circumstances, and
c) Its consequences

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For example, if we take theft, it has five ingredients-
1. Dishonest intention to take property
2. The property must be moveable property
3. It should be taken out of the possession of another person
4.
5.

KINDS OF ACT
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It should be taken without the consent of the person, and
There must be some moving of the property in order to accomplish the taking of it.

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Positive and Negative Acts: When the wrongdoer does an act which he should not do or in other words,
he is prohibited by law not to do it, it is a positive act. When the wrongdoer does not do an act, which he
should do, in other words which he is directed by law to do, it is negative act. 'Act' includes positive as well as

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negative act.

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Voluntary and Involuntary Acts: If the act is a willed act, it is called a voluntary act but if the act is not a
a
willed act it an involuntary act. The penal liability is only for voluntary acts.
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Internal and External Acts: Internal act means the act of mind and external act means the act of body. An
external act, generally, implies an internal act also but an internal act is not always translated into an
external act. The term 'act' is commonly used for external act, but it should not be taken to be penal liability.

Intentional and Unintentional Acts: Intentional acts mean an act, which is foreseen and is desired by the
doer of the act. Unintentional act is that act which is not so foreseen or desired, or in other words, it is not a
result of any determination. Generally, by act we mean intentional act, but intention is not always necessary
condition of penal liability and therefore it is not an essential element in those acts where are not a condition
of liability.

Mens Rea

Salmond's View: 'Mens Rea' means guilty mind. It is the second condition of penal liability. Mens Rea is
defined 'the mental element necessary to continue criminal liability. In making a person criminally liable an
enquiry into his mental attitude is made. Criminal intention, malice, negligence, heedlessness, rashness
etc all are included in mens rea. Salmond says that mens rea included only two distinct mental attitudes of
the doer towards the deed-

a) Intention, and b) recklessness.

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It means that a man is liable only for those wrongful acts, which he does either willfully or recklessly.

Sometimes, inadvertent negligence is also punishable. Therefore, unless an act is done with anyone of
these three mental attitudes the doer is not liable.

External Conduct as the Basis of the Liability: Different legal systems have recognized, in different
ways this mens rea as the condition of penal liability. There are degrees of mens rea. In German Law,
theoretically, various forms of mens rea are recognized and they are distinguished from each other.
Historically, mens rea had its origin in the idea of blameworthiness of the wrongdoer for the wrongful act.
But as the aim of the law is to serve more an external purpose than to enquire into the blameworthiness the

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mens rea is determined, more or less, on the basis of external conduct. Therefore, the act is judged not from
the mind of the wrongdoer but the mind of the wrongdoer is judged from the act. The law presumes that
every man is of the average understanding and judges his act from that standard. What is an average or
reasonable man, more or less, depends upon the idea of the judge of on him. Therefore, in modern times,

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mens rea does not mean enquiry into the mental attitude of the wrongdoer from a subjective point of view,
but it simply means that the mens rea is judged from the conduct by applying an objective standard. Holmes
makes out the same point when he says: "it is not intended to deny that criminal the moral sense of any
civilized community; or to put it in another way, a law of the community would be too severe for that
community to bear. It is only intended to point out that, when we are dealing with that part of the law which

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aims more directly than any other at establishing standards of conduct, we should expect there more than

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elsewhere to find that the tests of the liability are external, and independent of the degree of evil in the

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particular person's motives or intentions.

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Mens Rea under Eclipse: The mens rea has no longer remained the condition of penal liability in its
a
original sense and it has been replaced by standards, which the law has established. Apart from this

m
change there are other factors also which have contributed in relegating the importance of mens rea as a

a
condition of a penal liability. Mens Rea or the degree of subjective guilt varies in different classes of

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offences. For example, against a charge of kidnapping a girl under the age of 18 an honest and reasonable

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belief of the accused that the girl was over 18 is no defence. In modern times the law has tended to establish

d
absolute liability. A number of new offences have been created, and are being created every year by the law

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in every society to ensure the smooth running of the community life under the growing complicated social
organization. The rules governing and regulating traffic, electricity and water supply, etc., are the rules of

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this kind. In the offences of these kinds for holding a person liable no mens rea is required. But for these
offences there is slight fine and they involve no moral stigma.

From the point of view of the mens rea applied in matters of interpretation -

1. Where mens rea amounts to intention or knowledge: the wrongs in which the mens rea of this
degree are intentional wrongs, or wrongs committed recklessly or there is culpable negligence.

2. Negligence in these wrongs carelessness amounts to mens rea.

3. Absolute or strict liability in cases of absolute or strict liability mens rea is not a necessary
condition of liability.

Intention: Intention is defined as the purpose or design with which an act is done. It is the "foreknowledge
of the act, coupled with the desire of it, such foreknowledge and desire being the cause of the act, inasmuch

98
as they fulfill themselves through the operation of the will. An act is intentional if, and so far as it exists in idea
before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied.
Holmes says that there are two elements of intention (1) foresight that certain consequence working as a
motive, which includes the act. A criminal intention means an intent to do an act whose natural and probable
ultimate consequences are criminal. Thus when we speak that a wrong is intentional, it means that the
intention is extended to all the three elements of the wrong (origin, circumstances and consequence).
Intention must be distinguished from the other similar terms.

Meaning of Intention: It means either desire or the consequence of one's conduct, or foresight of the
certainty of such consequence. But the intention does not extend to cover the knowledge of probable
events. A manufacturer who employs workmen has knowledge that some accident might take place which

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might kill a workman, but this knowledge would not be taken as an intention of the employer if any workman
is a victim of an accident. Sometimes, the intention is imputed from the act or the consequence. If a
particular act has been done, the law will presume that the person doing it had the intention to do it without
the enquiry as to whether actually he had the intention or not. This is called constructive intention.

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Intention and Motive: Though intention and motive are very close to each other, they are not the same.
Motive is called the ulterior intent. It is seldom that a man commits a wrongful act for its own sake. The
wrongdoer has some end in his mind, which he tries to achieve through his wrongful act. For example if A
fires upon B, his intention is to kill B. A intended to kill him due to reason that B was contestant against A in an

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election, and he is likely to win it. A intended to kill him for ensuring his success by removing B from the

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election field. This idea of removing B from the election field is motive of A for doing the wrongful act. Thus

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generally in committing a wrong the intent of the wrongdoer is two fold: one is the wrongful act itself, and the

.
other is that on which the wrongful act proceeds and it is beyond the wrongful act. If we take the intent in a

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comprehensive sense, it may be divided into immediate and ulterior. The immediate intent is coincident
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with the wrongful act itself. This is intention. The ulterior intent is beyond the wrongful act. It is motive.

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Intention is related to the immediate and motive to the distant object of the act. Motive is the feeling, which

a
prompts the operation of the will directing an overt act. An act may have more than one motive behind it. For

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example, if A kills, B his one motive may be be remove him from election field where he had a stronger

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support than A, and second motive may be to take away his (B's) property also.

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Malice: Sometimes, malice is also used in law to indicate a similar meaning. It denotes various things.
Sometimes, it is used to indicate a wrongful intention, and sometimes, it means motive-

1.

2.

3.
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In murder, it merely means that there is present one of the various forms of mens rea necessary to
constitute the crime;

In certain statutory offences it means that there must be either an intention to cause results of the
particular kind prohibited by the statute, or at least a recklessness which cares not whether the
prohibited consequences occur or not;

Sometimes the word is otiose, a pleading relic, as in the allegation that the defendant maliciously
defamed the plaintiff, since even the proof that there was not malice is not a defence.

4. Sometimes, the word means spite or actual ill-will or other improper motive; for example, malice in
this sense may be proved to rebut a defence of qualified privilege in defamation;

Relevancy of Motive: Motive Generally Irrelevant: Though most of the wrongful acts are done with a motive,

99
it is not very relevant in determining the liability. It is the immediate intent (intention or negligence) that is
material in the determination of the liability. With some exceptions, man's motives are irrelevant in
determining his liability. An act which is not unlawful otherwise will not become so because it was done with
a bad motive. In the same way an act which is unlawful would remain the same although it might have been
done with a good and laudable motive. If a person has stolen a single paisa from the pocket of a man, the
law will not exonerate him from the liability although he stole it to purchase milk for his newly born baby
whose mother is dead and who is dying in the house for want of food. Motive is relevant only in the following
cases-

Where it (motive) is the evidence of the evil intent.

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Though the proof of the existence of the motive is not necessary for a conviction, where it is proved it is an
evidence of the evil intent, and it is relevant in the showing that the person who had a motive to commit the
offence actually committed it. Thus any fact is relevant which shows or constitutes a motive or preparation
for any fact in issue or relevant fact.

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Motive is relevant in case of the criminal attempts also. Attempt is an act done with the intent to commit the
offence so attempted. A person is liable for his criminal attempts, as they show the existence and the nature
of motive or ulterior intent and thus motive becomes relevant.

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The ulterior intent or motive is seldom relevant in determining the civil liability. The law looks to the act alone

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and not to the motives from which it proceeds. But there are certain exceptions to his principle. These are

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cases where it is thought expedient in the public interest to allow certain specified kinds of harm to be done

.
to individuals, so long as they are done for some good and sufficient reason, but the ground of this privilege

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falls away as soon as it is abused, for bad ends. Therefore in such cases motive or malice is a very essential
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element in the cause of the action. Defamation and malicious prosecution are the wrong of this nature.

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a
Negligence: Negligence is the second form of the mens rea. In the offences in which mens rea is a

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necessary element the wrongful intention of negligence will have to be proved on the part of the person who

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committed the wrongful act to make him liable. Intention and negligence both constitute the mental attitude

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which a person has towards the consequences of his act. When a person does an act foreseeing and

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desiring the consequences he is said to have the intention to do the act. Negligence is not the doing of an
act, which one is under a duty to do, and it causes risk, danger or harm. Such negligence is wrongful and is

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called culpable negligence; and in many cases it is a condition for penal liability. The negligence is defined,
as 'the absence of such care as it was the duty of the defendant to use.' Negligence and wrongful intent are
two contrasted and mutually inconsistent mental attitudes of a person towards his act and its
consequences.

Negligence is of two kinds-

1. Advertent Negligence: It is called willful negligence or recklessness also. In this negligence the
harm done is foreseen as possible or probable, but it is not willed. For example, a person who drives
furiously in a crowded street and causes injury or harm to persons commits it by advertent negligence.
For legal purposes such negligence is classed with intention.

2. Inadvertent Negligence or Simple Negligence: The negligence which is a result of ignorance,

thoughtlessness or forgetfulness is inadvertent negligence. In such negligence the harm caused is
neither foreseen nor willful. For example, a doctor who treats a patient improperly through negligence

100
 or forgetfulness is guilty of inadvertent negligence.

No Duty, no Negligence; Criminal and Civil Law: Negligence is omission to take such care as under the
circumstances it is the legal duty of a person to take. Where there is no such duty there can be no
negligence. In different legal systems different duties have been imposed upon individuals. In the criminal
law negligence is a condition of liability only in exceptional cases. Generally, crimes are willful or intentional
wrong. Therefore, the question of negligence rarely arises. However, there are cases where negligence is a
condition of criminal liability. For example, negligence homicide is a criminal offence. In civil wrongs now
distinction is drawn between the two forms of mens rea that is, the intention and negligence, and with very
few exceptions when an act would be a civil wrong if done intentionally, it is a civil wrong if done negligently
also. The exception to this rule is the case where a person is civilly responsible for doing harm willfully, but is

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not bound to take any reckless falsehood, unless there is some special ground of obligation in the case, he
is not answerable for false statements which he honestly believes to be true, however negligent he may be
in making them.

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Standard of Care: As observed earlier, negligence is not taking care, where there is a duty to take care.
Now the question arises as to what is the standard of the care that a person is required to take. The
carelessness unlike the intention is of various degrees. The degree of negligence is determined on the
basis of the magnitude and probability of the wrong. The greater the evil is, and there is more probability of
its taking place, the greater is the carelessness on the part of the person who creates the danger; however,

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there are certain practices or acts to which people are accustomed and they are continued in public interest.

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Care of a Reasonable Man: The standard of care which the law desires from a person is the care of a

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'reasonable man' or of 'an ordinary prudent man'. It was said that 'negligence is the omitting to do something

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that a reasonable man would do, or the doing something which a reasonable man would not do. Holmes is
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also of the same view. He says that when the question of defendant's negligence is left to jury, negligence

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does not mean the actual state of the defendant's mind but a failure of act as a prudent man of average

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intelligence would have done. He is required to conform to an object standard at his peril. 'Reasonableness'

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does not mean uniform standard in every case, but it varies according to the nature of the act. For example,

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for a physician it is what a reasonable physician would do, and if he does not take care of the standard, he is

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guilty of negligence. In the same way, the standard of the care required from a motorcar driver is what a

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reasonable motor car driver would do. If a person practices a particular profession without having the
competence and skill of that profession and thus causes harm, he is guilty of negligence.

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Theories of Negligence: There are two theories of negligence. One theory was propounded by Salmond.
According to this theory, negligence is a state of mind-a mental attitude. This theory is called the subjective
theory of negligence. The other theory has been given by Frederick. According to him, negligence is a type
of conduct. This is called the objective theory of negligence. These theories are being discussed
separately.

1. Subjective Theory: As mentioned earlier, this theory is given by Salmond. His view is that
negligence is culpable carelessness. Although negligence is not the same as thoughtlessness or
inadvertence, it is nevertheless essentially an attitude of indifference. Therefore, according to this view,
negligence essentially 'consists in the mental attitude of undue indifference with respect to one's
conduct and its consequences'. A person is made liable on the ground of negligence because he does
not sufficiently desire to avoid a particular consequence-a harm. He is careless about the consequence
and does the act notwithstanding the risk that may ensue. Winfield is also the supporter of this theory.
He says that 'as a mental element in tortuous liability, negligence usually signifies total or partial

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 inadvertence of the defendant to his conduct and for its consequences.'

2. Objective Theory: This theory says that negligence is an objective fact. It is not an attitude of mind
or a form of mens rea, but it is a kind of conduct. Negligence is a breach of duty to take care. It means
that one should take precaution against the harmful results of one's actions and he must refrain from
unreasonably dangerous kind of conduct. Pollock, the founder of the theory says that 'negligence is the
contrary of diligence, and no one describes diligence as a state of mind. So it is never a mental state. It is
submitted that this view holds good in the law of tort where negligence means a failure to achieve the
object standard of a reasonable man. If a person fails to achieve this objective standard, the defence on
the ground of the mental state that he took the utmost care shall be of no avail to him. The same is the
principle in the criminal law also.

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Reconciliation of the Two Views: An attempt has been made to reconcile the two contrary theories with the
argument that the term negligence has two meanings, and one theory has adopted the other meaning and
each considers that the meaning given by it is the exclusive meaning. 'Negligence' is sometimes used in
one sense, and sometimes, it is used in the other sense, and therefore, its meaning depends upon the
context in which it is used. When 'negligence' is contrasted with intention it is used in the subjective sense.
As the wrongful intention is a state of mind, negligence is also a state of mind.

As observed earlier, 'negligence' has another meaning also. When 'negligence' is contrasted with

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inevitable accident it means a particular kind of conduct. In cases where there is no question of wrongful

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intention but the point to be determined is as to whether the wrongdoer caused the harm without any fault on

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his part, or by his unintentional fault, it is decided on the basis as to whether his conduct conformed to the

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standard of a reasonable man. He is liable only when he has not taken the care, which a reasonable man

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would have taken. In such cases the state of mind of the wrongdoer is irrelevant and everything is judged
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Strict Liability
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Redress of Sufferer: Apart from the negligence and wrongful acts there in another class of wrongful act for
which a person is liable irrespective of mens rea. This liability is called the strict or absolute liability. The
strict liability is an exception to the general rule about the conditions that constitute liability. It is said that in
civil wrongs strict liability should be the rule. The aim of civil law is to redress the person who has suffered
harm and there is no question of punishment. Therefore the person who suffered should be redressed
without the consideration as to recognition. In modern times cases where redress is a penal redress are
considered as punishment. In such cases the damages awarded to the plaintiff amount to a penalty inflicted
upon the defendant for which he is liable. Therefore it is argued that there should be no strict liability in civil
law also. This view is supported by many English jurists, and to some extent it is applied in the English law.
In modern times, there is a tendency of expanding the field of strict liability. In case where the redress is
penal, it is intended more for mending the conduct of the wrong doer in future than it is a penalty for
subjective guilt.

Difficulty of Knowing the Intention: A very strong argument that is given in favor of strict liability is that is
very difficult to procure the evidence of intention or negligence in every case and it would make the
administration of the justice very difficult. Therefore, in some kinds of cases the law makes a conclusive
presumption of mens rea on the basis of the external conduct. It is clear that this liability of mens rea would
be on the basis of the external conduct. It is clear that this liability would fall very heavily upon the innocent
persons. But the supporters of the strict liability say that it is not so serious and hard as it appears to be. In

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cases of civil wrongs a man does a thing at his own peril. Therefore, he should be liable for it in every case.
In criminal law the rule of strict liability is applied only to comparatively minor and trivial kinds of offences
which in many cases do not imply any moral stigma on the part of the wrongdoer and in majority of the
offences mens rea is a necessary condition for liability. Thus in criminal law rule of strict liability is almost an
exception. The strict liability may be divided into the following three headings-

1. Mistake of Law: The principle that 'ignorantia juris non excuast' (ignorance of law is no excuse) is
followed in almost all the legal systems. A person who has committed a wrongful act will not be heard to
say that he did not know that it was forbidden by law, in other words he did not know the law.

2. Mistake of Fact: The principle about it is that 'ignorantia facit excuast' (ignorance of the fact is

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excuse). It means that a person is not liable for a wrongful act if he has done it under a mistake of act. In
other words, mistake is a valid defence against a wrongful act. But this principle applies only in case of a
criminal wrong and not a civil wrong. In civil wrongs, except in few cases, the mistake of fact is not a valid
ground for discharging a person from liability. But in criminal law the strict liability for a mistake of fact is

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only in exceptional cases. An example of such exception, or strict liability is that if a person kidnaps a girl
below 16, he is always liable, although he honestly believed that she was above 16.

3. Accident: A person is not liable for an act taking place accidentally. Accident differs from a mistake
of fact. Every unintentional act is done by mistake when the consequences of the act are intentional, the

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mistake is only about the circumstances and in that respect it is unintentional. For example, if I arrest A

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taking him to be B, it is a mistake of fact. In this case the consequence, that is arrest intentional but there

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is mistake about the circumstances and I was to arrest Band not A. So the arrest of A is unintentional. An

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act is said to be done accidentally when it is unintentional in respect of its consequences also.

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Vicarious Liability

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Vicarious Liability on the Ground of Relationship: The general principle of law is that a person is liable

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for his own acts and not for the acts of others. But in certain kinds of cases a person is made liable for the act

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of another on account of his standing in a particular relationship with that person. This liability is called
vicarious liability. This kind of liability existed in ancient times also but the grounds of liability were entirely
different from what they are in modern times. The principle of vicarious liability in ancient times was that a

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person must be made answerable for the acts of the person who are kin to him. With the onward march of
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time this principle of liability underwent a great change, and in modern times, this liability exists in a limited
kind of cases. Now a person is made liable on the grounds of expediency and policy, and not on any other
ground. The scope and the field of application of the vicarious liability shall now be described here.

Criminal Law: In Criminal Law the general principle is that a person is not liable for the act of another. A
master is not criminally liable for the unauthorized acts of his servant. However, there are certain
exceptions to this rule. The legislature may prohibit an act or enforce a duty in such terms as to make the
prohibition or the duty absolute; in that case the master is liable if the act is in fact done by his servant. Thus
a statute may impose criminal liability upon the master as regards the nuisance done by the agent. Similarly
if a principal neglects the performance of an act, 'which is likely to cause danger to others, and entrusts it to
the unskillful hands, he will be in certain cases criminally liable.'

Civil Law: Vicarious liability exists mainly in civil law. It is recognized in civil law generally in two kinds of
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1. A master is liable for all tortuous acts of his servants done in the course of his employment.
2. The representatives of the dead person are, in certain cases, liable, for the acts of the deceased.

Master's Liability for the Acts of his Servant: Most of the jurists are of the view that the origin of the liability of
the master for the acts of his servant is in the old institution of slavery, Holmes tracing the developing of the
liability says that in the beginning it was the revenge that was the motive of the punishment. It was
vengeance on the immediate offender. If a slave committed a wrong the master of the slave had to
surrender him to person who had suffered the wrong. Even the inanimate things were surrendered or
forfeited if any injury to a person took place on account of them. Later on, instead of surrounding the slave
some compensation was paid to the person suffering the injury by the master of the slave or the things.

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Thus the master paid for the blood feud for taking back the slave or the thing, in other words the surrender
was substituted by compensation. Gradually a practice developed that the master was also made a party
when an action was brought against his servant for his wrongful act. It was only as a matter of convenience
to establish the liability of the master and to realize the money from him. Though in course of time the
institution of slavery was abolished and the nature of the liability also changed, a master continued to

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remain liable for the wrongful acts of his servants on the same analogy.

The Measure of Liability: The nature of kinds, and the conditions of the liability have been discussed. Now
a practical question remains to be answered i.e. what is the measure of liability. In other words, it means

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what are the considerations in determining the punishment for a criminal wrong and what are the

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considerations in determining the amount payable to the plaintiff by the defendant as redress for a civil

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wrong. The principles to determine the punishment in the case of a crime, and the damage, or
compensation in the case of a civil wrong are entirely different from each other. Hence they shall be
discussed separately.
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The Measure of Criminal Liability

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Depends Upon the Theory of Punishment: On the concept of the State: The measure of the criminal
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liability is different legal system. The measure of the liability is determining on various considerations. First,
the measurement of liability in a particular society depends on the theory, or, in other words, the aim of the
punishment is recognized in the society. It the punishment is for the purpose of the retribution, the law will
look into the motive of the wrongdoer and would take it as the chief measure of the liability. If the purpose of

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the punishment is to reform the wrongdoer, the measure of the liability would be the character of the
wrongdoer and so on. Second, the measure of the liability depends upon the concept of the State and the
kind of the government in a particular society. In Nazi Germany to be a Jew was the gravest offence and,
similarly to speak and to act against the wishes of the Dictator was a very serious crime. In a socialist state
the grave offences are those that undermine the interest of the society. Third, the measures of the liability
are also on the values, which are recognized in a particular society. In India, where sex morality is
considered to be a great virtue the punishment for sexual offences has been very severe since very early
times, but in England, where the sex morality is not the same as it is in India, adultery is not an offence and in
some cases seduction is a civil wrong and the wrongdoer and the wrongdoer is liable only for
compensation.

Modern Principle: Thus in modern times, the principle is that all the offences do not involve equal guilt on
the part of the wrongdoer and all the offenders are not equally guilty for the same offence. This being so, the
punishment for all kinds of offences and for all wrongdoer having committed the same offence. is not
uniform. The aim of the law is to bring the maximum good at the costs of the maximum sacrifice; therefore,
in awarding the punishment it proceeds on the same line. If the punishment is same for assault and murder,

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a person who intends to cause injury to his enemy would prefer to cause the latter kind of the injury. Thus the
uniform punishment for every offence would bring more evil than good. Similarly, if the punishment is very
severe such as hanging for petty thefts it may bring down the crimes, but the evil so prevented would be far
outweighed by that which the law would be called on to inflict in the cases in which its threats proved
unavailing. Therefore the different offences have different punishments and secondly the judge is left with
ample discretion in awarding punishments. The law has generally fixed the maximum punishment that can
be awarded in a particular offence and the judge awards the punishment within this limit taking into
consideration the nature of the guilt, the character of the offender etc.

In modern times, though there is a great theoretical support of the reformative theory of punishment, in
practice, the punishment to some extent, serves the retributive purpose and in the most part the deterrent

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purpose. Therefore, the factors which are taken into consideration in determining the liability are the
following-

a) Motive: The motive of the offence is a very important factor in determining the liability. If the motive

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to commit the offence is very strong, the punishment must be severe, because the punishment aims at
counteracting the motives, which made the offender commit the crime.

b) The Magnitude of the Offence: The other things being equal, if an offence brings greater evil
consequences or has greater evil tendencies, the punishment should be severe. Some criticize this

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view and say that the liability should not be determined on the basis of the evil caused to a person, but it

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should be determined on the basis of the benefit derived by the offender by the wrongful act. It is

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submitted that the punishment on the basis of the magnitude of the offence greatly helps in preventing

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offences, and where the offender is to choose one wrongful act out of many of the same nature, he

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would prefer to commit one for which there is lesser punishment. Thus the severe punishment for grave
offences deters the wrongdoer from committing it. a
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The Character of the Offender: The character of the offender is also a factor that measures

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liability; in other words, it is a consideration in determining the punishment. the offenders who have

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become habitual and have undergone punishment, punishment loses much of its rigour, and light

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punishment does not deter them. Therefore, they are given severe punishments.

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Some other Factors: There are some other factors also which are taken into consideration in deter-mining

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the punishment. One such factor is the nature of the offence. The offences which are inhuman and heinous
deserve severe punishment. The sensibility of the offender is also taken into consideration. A simple
censure or rebuke might hurt the sensibility of a wrongdoer who did a wrong casually in the heat of a
passion or anger and he may not commit the offence again, but to a habitual offender the censure or rebuke
will have no effect, Therefore, he should be given a severe punishment for the same offence.

The Measure of Civil Liability: As explained earlier penal redress is compensation to the person against
whom a wrong has been done, but it is a punishment for the wrongdoer. But in this case the liability is
measured exclusively by the magnitude of the wrong committed without any consideration of the motive,
character of the wrongdoer, or the evil tendencies of the wrongful act. When these conditions are not taken
into consideration, it is possible that the same liability might prove heavier to the one wrongdoer than to the
other. It is on this ground that some jurists say that this measure of liability is not in consonance with penal
principles, and as such it is unjustified. But other jurists have put forward a number of grounds in support of
it. First, the penal redress is a gain to the wronged person and is a loss to the offender. Therefore it gives
satisfaction and consolation to the former, and it deters the latter from committing the wrongful act again.

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Second, as this form of the redress is a gain to the wronged person, he is directly interested in the
administration of justice that is, in the persecution of the case, so that the wrongdoer may be ordered to
redress the wrong. Third, though the penal redress as such is not in conformity with the principle of the
punishment this deficiency is made up by other means. In all modern and developed bodies of law its
operation is supplemented and its deficiencies made good by a coordinate system of criminal liability.
These two together, combined in due proportions, constitute a very efficient instrument for 'maintenance of
justice'.

Absolute Liability: The Supreme Court of India laid down 'Absolute Liability' in M.C. Mehta v. Union of
India1 as "Where an enterprise is engaged in hazardous or inherently dangerous activity and harm results
to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity

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resulting, for example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to
compensate all those who are affected by the accident and such liability is not subject to any of the
exceptions which operate vis-a-vis the tortuous principle of strict liability under the rule in Rylands v.
Fletcher,2 "

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IMPORTANT QUESTIONS

Q.1. Discuss the difference between possession and ownership.

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Q.2. Possession is the nine points of law. Comment
Q.3. Discuss the right of the possession.
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Q.4. What are the different forms of ownership?
Q.5. What are the various notes of acquisition of ownership?
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Q.6. Discuss the importance of mens-rea in the offence.
Q.7. Write a detailed essay on negligence.
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Q.8. Discuss the concept of vicarious liability.
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SUGGESTED READINGS
Jurisprudence

Jurisprudence
Legal Theory
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Study of School of Jurisprudence

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Legal Theory and Jurisprudence
Jurisprudence and Legal Theory
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:
:
:
:
:
Dias
Salmond
Dr. B.N.M. Tripathi
Anirudh Prasad.
V.D. Mahajan
Nomita Agarwal
7. Jurisprudence in Indian Context : S.N.Dhyani
8. Jurisprudence and Legal Theory : Paranjpe
9. Jurisprudence : Avtar Singh

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