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Jurisprudence Class Notes

04.01.2011
Module I- Introduction to Jurisprudence
1. Nature and Scope of Jurisprudence
2. The Nature of Law
Nature and Scope of Jurisprudence
What is Jurisprudence?
There is no universal or uniform definition of Jurisprudence since people have different
ideologies and notions throughout the world. It is a very vast subject.
When an author talks about political conditions of his society, it reflects that condition of law
prevailing at that time.
Romans were the first who started to study what is law.
Jurisprudence- Latin word Jurisprudentia- Knowledge of Law or Skill in Law.
Most of our law has been taken from Common Law System.
Bentham is known as Father of Jurisprudence. Austin took his work further.
Bentham was the first one to analyse what is law. He divided his study into two parts:
1. Examination of Law as it is- Expositorial- Command of Sovereign.
2. Examination of Law as it ought to be- Censorial- Morality of Law.
Austin stuck to the idea that law is command of sovereign. The structure of English Legal
System remained with the formal analysis of law and never thought what it ought to be.
J. Stone also tried to define Jurisprudence. He says that it is a lawyers extra version. It is
lawyers examination of the percept, ideas and techniques of law in the light derived from
present knowledge in disciplines other than the law.
There can be no goodness or badness in law. Law is made by the state so there could be
nothing good or bad about it. Jurisprudence is the science of law.

Definitions by:
1. Austin
2. Holland
3. Salmond
4. Keeton
5. Pound
6. Dias and Hughes

05.01.2011
Austin- Science of Jurisprudence is concerned with Positive Laws that is laws strictly so
called. It has nothing to do with the goodness or badness of law.
Two Parts:
1. General Jurisprudence- It includes such subjects or ends of law as are common to all
system.
2. Particular Jurisprudence- It is the science of any actual system of law or any portion
of it.
In essence they are same but in scope they are different.
Salmonds Criticism
He said that for a concept to be General Jurisprudence, it should be common in various
systems of law. This is not always true.
Hollands Criticism
He said that it is only the material which is particular and not the science itself.
Hollands Definition- Jurisprudence means the formal science of positive laws. It is analytical
science rather than material science.
1. He defines the term positive law. He says that the positive law means the general rule
of external human action enforced by a sovereign political authority.

2. He simply added the word formal in Austins definition. Formal means we study
only the form and not the essence. We study only the external features and do not go
into the intricacies. How it is applied and how it is particular that is not the concern of
Jurisprudence.
3. The reason for using the word Formal Science is that it describes only the form or the
external sight of the subject and not its internal contents. Jurisprudence is not
concerned with the actual material contents of law but with its fundamental
conceptions. Therefore, Jurisprudence is a Formal Science.
4. It has been criticized by Gray and Dr. Jenks. Jurisprudence is a formal science
because it is concerned with the form, conditions, social life, human relations that
have grown up in the society and to which society attaches legal significance.
5. Jurisprudence is a science because it is a systematized and properly co-ordinated
knowledge of the subject of intellectual enquiry. The term positive law confines the
enquiry to these social relations which are regulated by the rules imposed by the states
and enforced by the courts of law. Therefore, it is a formal science of positive law.
6. Formal as a prefix indicates that the science deals only with the purposes, methods
and ideas of the basis of the legal system as distinct from material science which deals
only with the concrete detail of law.
7. It has been criticized on the ground that this definition is concerned only with the
form and not the intricacies.
06.01.2011
Salmond- Jurisprudence is Science of Law. By law he means law of the land or civil law. He
divides Jurisprudence into two parts:
1. Generic- This includes the entire body of legal doctrines.
2. Specific- This deals with the particular department or any portion of the doctrines.
Specific is further divided into three parts:
1. Analytical, Expository or Systematic- It deals with the contents of an actual legal
system existing at any time, past or the present.
2. Historical- It is concerned with the legal history and its development.
3. Ethical- The purpose of legislation is to set forth laws as it ought to be. It deals with
the ideal of the legal system and the purpose for which it exists.

Criticism- It is not an accurate definition. Salmond only gave the structure and failed to
provide any clarity of thought.
Keeton- He considers Jurisprudence as the study and systematic arrangement of the general
principles of law. Jurisprudence deals with the distinction between Public and Private Laws
and considers the contents of principle departments of law.
Roscoe Pound- Jurisprudence as the science of law using the term law in juridical sense as
denoting the body of principles recognized or enforced by public and regular tribunals in the
administration of justice.
Dias and Hughes- Jurisprudence as any thought or writing about law and rather than a
technical exposition of a branch of law itself.
Conclusion- Jurisprudence is the study of fundamental legal principles.
Scope of Jurisprudence- Austin was the only one who tried to limit the scope of
jurisprudence. He said morals and theology in the study of jurisprudence. Basically, the study
of jurisprudence cannot be circumscribed because it includes all human conduct in state and
society.
Approaches to the study of Jurisprudence- There are two ways
1. Empirical- Facts to Generalization.
2. A Priori- Start with Generalization in light of which facts are examined.
07.01.2011
Significance and Utility of the Study of Jurisprudence
1. This subject has its own intrinsic interest because this is the subject of serious
scholarship and researchers in jurisprudence; they contribute to the development of
society by having repercussions in whole legal, political and social thoughts. One of
the tasks of this is to construct and elucidate concepts serving to render the
complexities of law more manageable and more rational. In this way, theory can help
to improve practice.
2. Jurisprudence also has an educational value. It helps in the logical analysis of the
legal concepts and it sharpens the logical technique of the lawyer. The study of
jurisprudence helps to combat the lawyers occupational view of formalism which

leads to excessive concentration on legal rules for their own sake and disregard of the
social function of the law.
3. The study of jurisprudence helps to put law in its proper context by considering the
needs of the society and by taking note of the advances in related and relevant
disciplines.
4. Jurisprudence can teach the people to look if not forward, at least sideways and
around them and realize that answers to a new legal problem must be found by a
consideration of present social needs and not in the wisdom of the past.
5. Jurisprudence is the eye of law, grammar of law because it throws light on basic ideas
and fundamental principles of law. Therefore, by understanding the nature of law, its
concepts and distinctions, a lawyer can find out the actual rule of law. It also helps in
knowing the language, grammar, the basis of treatment and assumptions upon which
the subject rests. Therefore, some logical training is necessary for a lawyer which he
can find from the study of jurisprudence.
6. It trains the critical faculties of the mind of a student so that they can dictate fallacies
and use accurate legal terminology and expression.
7. It helps a lawyer in his practical work. A lawyer has to tackle new problems which he
can handle through his knowledge of jurisprudence which trains his mind into legal
channels of thought.
8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the
laws passed by the legislators by providing the rules of interpretation. Therefore, the
study of jurisprudence should not be confined to the study of positive laws but must
include normative study i.e. that study should deal with the improvement of law in the
context of prevailing socio-economic and political philosophies of time, place and
circumstances.
9. Professor Dias- The study of jurisprudence is an opportunity for the lawyer to bring
theory and life into focus, for it concerns human thought in relation to social
existence.
10.01.2011
Relationship of Jurisprudence with other Social Sciences
1. Sociology and Jurisprudence- There is a branch called Sociological Jurisprudence.
This is based on social theories. It is essentially concerned with the influence of law

on society at large particularly when we say social welfare. The approach from
sociological perspective towards law is different from a lawyers perspective. The
study of sociology has helped Jurisprudence in its approach. Behind all legal aspects,
there is something social. Sociology of Law is different from Sociological
Jurisprudence.
2. Jurisprudence and Psychology- No human science can be described properly without
a thorough knowledge of Human Mind. Hence, it has close connection with
Jurisprudence. Relationship of Psychology and Law is established in the branch of
Criminological Jurisprudence. Both psychology and jurisprudence are interested in
solving questions such as motive behind a crime, criminal personality, reason for
crime etc.
3. Jurisprudence and Ethics- Ethics has been defined as science of Human Conduct. It
strives for ideal Human Behaviour.
a. Ideal Moral Code- In relation to Natural Law.
b. Positive Moral Code- In relation to Command of the Sovereign.
c. Ethics is concerned with good human conduct in the light of public opinion.
d. Jurisprudence is related with Positive Morality in so far as law is the
instrument positive ethics tries to assert itself.
e. Legislations must be based on ethical principles. It is not to be divorced from
Human principles.
f. No law is good unless it is based on sound principles of human value.
g. A Jurist should be adept in this science because unless he studies ethics, he
wont be able to criticize the law.
h. Austin disagrees with this relationship.
4. Jurisprudence and Economics- Economics studies mans efforts in satisfying his
wants and producing and distributing wealth. Both Jurisprudence and Economics are
sciences and both aim to regulate lives of the people. Both of them try to develop the
society and improve life of the individual. Karl Marx was a pioneer in this regard.
5. Jurisprudence and History- History studies past events. Development of Law for
administration of justice becomes sound if we know the history and background of
legislations and the way law has evolved. The branch is known as Historical
Jurisprudence.
6. Jurisprudence and Politics- In a politically organized society, there are regulations and
laws which lay down authoritatively what a man may and may not do.

Nature of Law
1. Introduction- Law cannot be static because it has to grow with the development of the
society. The scope of law cannot be kept static. The result is that the definition of law
is ever changing with the change in society. The definition of law considered
satisfactory today might be considered a narrow definition tomorrow. This view has
been put forward by Professor Keeton. He says that an attempt to establish a
satisfactory definition of law is to seek, to confine jurisprudence within a Straight
Jacket from which it is continually trying to escape.
2. There are two jurists in this regards- Austin and Salmond.
3. Austin says law is the aggregate of the rules set by men as political superior or
sovereign to men as politically subject. In short, Law is the command of sovereign. It
imposes a duty and duty is backed by a sanction. There exists three elements in law:
a. Command
b. Duty
c. Sanction
4. Salmond defines law as the body of principles recognized and applied by the state in
the administration of justice.
5. Austins Theory of Law or Imperative Theory of Law
a. It is a type of command
b. It is laid down by a political superior
c. It is enforced by a sanction
6. He goes on to elaborate his theory. Request, wish, these are expressions of desire.
Command is also an expression of desire which is given by a political superior to a
political inferior. The relationship of superior to inferior, in consists in the power
which the superior enjoys over the inferior because the superior has ability to punish
the inferior for its disobedience.
7. He further says that the commands which are laws and there are certain commands
which are not laws. Commands which are laws are general in nature. Therefore, laws
are general commands. Laws are like standing order in a military station which is to
be obeyed by everybody.
8. He goes on define who is a sovereign. Sovereign is a person or a body or person
whom a bulk of politically organized society habitually obeys and who does not

himself habitually obey some other person or persons. Perfect obedience is not a
requirement.
9. He goes on to classify law. Laws are of two types
a. Divine Law- Given by god to men
b. Human Law- Given by men to men
i. Positive Laws- Statutory Laws
ii. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.
10. Criticism of Austins Theory of Lawa. Laws before state- It is not necessary for the law to exist if the sovereign
exists. There were societies prior to existence of sovereign and there were
rules that were in prevalence. At that point of time, there was no political
superior. It had its origin in custom, religion and public opinion. All these
were later enforced by the political superior. Thus, sovereign is a requirement
for law has received criticism - Historical and Sociological School of Thought.
b. This criticism is not supported by Salmond. Salmond says that the laws which
were in existence prior to the existence of state, they were something like
primitive substitutes of law and not law. They resembled law. Salmond gives
an example. He says that apes resemble human beings but it is not necessary
to include apes if we define human beings.
c. Generality of Law- The laws are also particular in nature. It is applicable to a
particular domain. There are laws which are not universally applicable. Thus,
laws are not always general in nature.
d. Promulgation- It is not necessarily for the existence of the law that the subjects
need to be communicated. But, Austin thought otherwise.
e. Law as Command- According to Austin, law is the command of the sovereign.
But all laws cannot be expressed as commands. Greater part of law in the
system is not in the nature of command.
f.

Sanction- The phrase regarding sanction might be correct for the monarchical
state. But for a democratic state, it does not find true meaning because it is not
the force of the state but willingness of the people. In civil laws, sanction does
not exist unlike criminal law.

g. Not applicable to International Law- Austins definition is not applicable to


International Law. International Law is a law between sovereigns. According
to Austin, International Law is simply Positive Morality.

h. Not applicable to Constitutional Law- Constitutional Law defines powers of


the various organs of the state. Thus, nobody can command himself.
Therefore, it is not applicable.
i. Not applicable to Hindu Law or Mohameddan Law or Cannon Law- It has its
origin in religion, customs and traditions. His definition strictly excludes
religion. Therefore, it is not applicable.
j. Disregard of Ethical elements- The moment law is devoid of ethics, the law
loses it colour and essence. Austins theory is silent about the special
relationship of Justice and Law because justice is the end of law. Salmond
says any definition of law which is without reference to justice is imperfect in
nature. He further says Law is not right alone, it is not might alone, it a perfect
union of the two and Law is justice speaking to men by the voice of the state.
According to Salmond, whatever Austin has talked about is a law and not
the law. By calling the law we talk about justice, social welfare and law in
the abstract sense. Austins definition lacks this abstract sense. A perfect
definition should include both a law and the law.
k. Purpose of law ignored- Law is formulated for social welfare. If we devoid
law of ethics, the social welfare part is lost. This part has been ignored by
Austin.
11. Merit of Austins Definition- Austin has given a clear and simple definition of law
because he has excluded ethics from law. He has given a paramount truth that law is
created and enforced by the state.
13.01.2011
Salmonds Definition of Law
Law may be defined as the body of principles recognized and applied by the state in the
administration of justice. In other words, law consists of rules recognized and acted upon by
the courts of justice.
Law may arise out of popular practice and its legal character becomes patent when it is
recognized and applied by a court in the administration of justice. Courts may misconstrue a
statute or reject a custom; it is only the ruling of the court that has the binding force of law.
Laws are laws because courts enforce them. He draws emphasis on administration of justice
by the courts. The true test of law is enforceability in the courts of law.

Salmond has defined law in the abstract sense. His definition brings out the ethical purpose of
law. In his definition, law is an instrument of justice.
Criticism by Vinogradoff
Definition of law by reference to administration of justice inverts the logical order of ideas.
The formulation of law is necessary precedent to the administration of justice. Law has to be
formulated before it can be applied by a court of justice. The definition given by Salmond is
defective because he thinks law is logically subsequent to administration of justice. A rule of
law because court of justice could apply and enforce it while deciding cases, vitiates the
definition of law.
Nature of Law
1. Sanction- It is derived from Roman law term sanctio, it is that part of the statute that
established the penalty or other provisions for its enforcement. Sanction is also the
motivating force for the purpose of better performance and execution of law. Reward
is also a type of sanction which will enable you to do or not do something.
a. Salmond says that sanction is the instrument of coercion by which any system
of imperative law is enforced.
b. He further says that physical force is the sanction applied in the administration
of justice. Censure ridicule and contempt are the sanctions by which the
society enforces the rule of positive morality.
c. Also war is the ultimate sanction for maintaining the laws of nations.
d. Jurists like Hobbes, Locke and Bentham have included Reward as part of the
sanction. It is reward that motivates a person to do or not to do something,
thus it is sanction.
2. Territorial Nature of Law- The enforcement of law is territorial in the same way as the
state is territorial. The territoriality nature of law flows from political divisions of the
world and as a general rule, no state allows another state to exercise powers within its
domain. Therefore, enforcement of law is confined to the territorial boundaries of the
state of enforcing it. The proposition that a system of law belongs to a defined
territory means that it applies to all persons, acts and things within that territory.
Mubarak Ali Ahmad v. State of Bombay- AIR 1957 SC 857- Admiralty Jurisdiction.
3. Purpose and function of law- Society is not static. Therefore, laws made for the
people are also not static. Thus, purpose and function of law cannot remain static.

There is no unanimity in theories as to purpose and function of law. We study purpose


and function in context of advantages and disadvantages.
a. Advantages of lawi. Fixed principles of law1. They provide uniformity and certainty of administration of
justice.
2. Law is no respecter of personality and therefore we say that law
is certain.
3. It avoids the dangers of arbitrary, biased and dishonest
decisions because law is certain and it is known. It is not
enough that justice should be done but it is also important that
it is seen to be done.
4. It protects the administration of justice from the errors of
individual judgments. Individual whims and fancies are not
reflected in the judgment of the court or rule of law.
ii. Legislature represents the wisdom of the people and therefore it is
much safer because it is the decision of the particular individual is not
much reliable.
b. Disadvantages of lawi. Rigidity of Law- An ideal legal system keeps on changing according to
the changing needs of the people. Therefore, law must adjust to the
needs of the people and it cannot isolate itself from them. However, in
practice, law is not usually changed to adjust itself to the needs of the
people. Therefore, the lack of flexibility resolves in hardship in several
cases.
ii. Conservative nature of law- Both lawyers and judges favour in
continuation of the existing laws and the reason is that very often laws
become static and they do not respond to the progressive society
because of the conservative nature.
iii. Formalism of law- Most of the times we look into the technical
operation of law and not the merits of the case. It creates delay in the
justice delivery system. There is injustice in certain cases.
iv. Complexity of law- It causes difficulty in Interpretation of Statutes.

c. Therefore, advantages of law are many but disadvantages are too muchSalmond.
4. Question of Law and Fact
a. Question of Law- Important for any question that comes before the court of
justice. It is very difficult to determine because there cannot be one single
meaning. It is ambiguous and it has different point of views.
i. Salmond has defined Question of Law from three distinct senses.
1. It means a question of law which the court is bound to answer
in accordance with the rule of law which has already been
authoritatively answered by the court. All other questions are
questions of fact. Therefore, every question which has not been
determined before and authoritatively answered by law is a
question of fact.
2. A question of law is a question as to what the law is. An appeal
in a question of law means an appeal in which the question for
decision is what the true rule of law is in a certain manner.
Question of law in this sense arise out of the uncertainty of law.
If the whole law could be definitely ascertained, there would be
no question of law in this sense. Therefore, when a question of
fact arises in a court of justice as to the true meaning of an
ambiguous statutory provision, the question is one of law. An
authoritative answer to the question becomes a judicial
precedent which is law for all other cases in which the same
statutory provision is in question. Therefore, the judicial
interpretation

of

statute

represents

progressive

transformation of the various questions of fact as to the


meaning of that statute into questions of law to be answered in
conformity with the decided cases.
3. The term question of law is used in the general sense that
questions of law are for judges and questions of fact are for the
jury to decide. In cases we do find, judges interpreting a
document, and then the judge is looking into the question of
fact which is supposedly to be done by jury.
b. Salmond has defined Question of fact as well.

1. The term question of fact has more than one meaning. In the
general sense it includes all questions which are not questions
of law, therefore, everything is a matter of fact which is not a
matter of law. According to Salmond, a question of fact means
either a question which is not predetermined by a rule of law or
any question except the question as to what the law is or any
question which is to be answered by the jury.
2. Therefore, in the narrower sense, a question of fact is opposed
to judicial discretion which includes questions as to what is
right, just, equitable or reasonable. Therefore, evidence can be
laid to prove or disapprove a question of fact.
5. Distinction between Question of fact and discretiona. Questions of fact are questions as to what actually the fact is. When we talk
about discretion, the question of right comes in or what ought to be.
b. In question of fact, the court tries to find out the truth, but in a question of
discretion, the court decides what is just.
c. Therefore, we find that, question of fact has to be proved by evidence and
demonstration but question of discretion is subject to reasoning and argument.
6. Mixed question of law and fact- The court has to decide at the same time on question
of law as well as fact. Earlier, we saw that there was gradual transformation of
question of fact into law.
7. Transformation of Question of fact into law- The very existence of a legal system
shows that transformation of question of fact into law. With more and more identical
decisions on identical facts, we find that in cases which have identical facts, the
discretion of judge disappears and the judge is bound to give decision on precedent on
that subject. Question of fact and question of discretion transform into question of
law.
8. Discordance between law and fact- Salmond says that the law is the theory of things
as received and acted upon within the courts of justice and this theory may or may not
conform to the reality of things outside. The eye of law does not infallibly see things
as they are.
a. Establishment of Legal Presumptions- Legal Presumption is a rule by which
courts and judges draw a particular inference from particular facts or from
particular evidence unless and until the truth of that inference is disproved.

Therefore, one fact is recognized by law as sufficient proof of another fact


whether it is in truth sufficient for the purpose or not.
i. Presumption of Law1. Conclusive (Presumptio Juris Et Dejure) - One which
constrains the courts to infer the existence of one fact from the
existence of another even though that inference could be
proved to be false. Law prohibits leading evidence to the
contrary.
2. Rebuttal- It is one where the law requires the court to draw an
inference even though there is no sufficient evidence to support
it. However, if sufficient evidence is given to contradict a
rebuttal presumption drawn by the court, the latter is bound to
reject it.
ii. Presumption of Fact
b. Device of Legal Fiction- Salmond says that fiction is a device by which law
deliberately departs from the truth of things whether there is any sufficient
reason for the same or not.
Kinds of Law
Salmonds division
1. Imperative Law- Imperative Law means a rule by which a general course of action
is imposed by some authority which enforces it by superior power either by
physical force or by any other form of compulsion. This theory is similar to John
Austin.
2. Physical or Scientific Law- Physical Laws or the scientific laws are the laws of
science and these are the expressions of the uniformities of nature, general
principles expressing the regularity and harmony observable in the activities and
operations of the universe. There is uniformity and regularity in those laws. They
are not creation of men and cannot be changed by men. Human laws can change
from time to time, country to country but physical laws are invariable and
immutable forever.
3. Natural Law or Moral Law- It means the principles of natural right and wrong and
the principle of natural justice if we use the term justice in the widest sense to

include to all forms of rightful action. Natural Law is also called Divine Law or
Law of Reason or The Universal Law and Eternal Law. This law is a command of
the god imposed on men. It is established by reason by which is the world is
governed, it is unwritten law and it has existed from the beginning of the world
and hence called eternal. This law is also called natural law as its principles are
supposed to be laid down by god for the guidance of man. It is called rational
thought because it is based on reason. Natural Law is unwritten as we do not find
it in any type of code. Therefore, Natural law exists only in ideal state and differs
from law of a state. Thus, philosophy of Natural law has inspired legislation and
the use of reason in formulating a system of law.
4. Conventional Law- Any rule or system of rules agreed upon by persons for the
regulation of their conduct towards each other. It is a form of special law. It is a
law for the parties who subscribe to it.
5. Customary Law- Any rule of action which is actually observed by men, any rule
which is the expression of some actual uniformity of some voluntary action. A
custom may be voluntary and still is a law and therefore, it is an important source
of law.
6. Practical Law- Practical or technical law consists of rules for the attainment of
certain ends. These rules guide us as to what we ought to do in order to attain a
certain end. E.g. Law of Health, Law of Architecture.
7. International Law- It consists of rules acknowledged by the general body of
civilized independent states to be binding upon them in their mutual relations. It
consists of rules which govern sovereign states in their relations and conduct
towards each other.
8. Civil Law- It is the law of the state or the land, the law of the lawyer and the law
of the court. Civil law is the Positive Law of the land or the law as it exists. Like
any other law, it is uniform and that uniformity is established by Judicial
Precedents. Civil law has an imperative character and has legal sanction behind it.
It is also territorial in nature. It is not universal but general.
Present Day Classification of Law
9. Laws of Nations
a. Public Law
i. Constitutional Law

ii. Administrative Law


iii. Criminal Law
b. Private Law- Diverse opinions
i. Laws of Persons
ii. Laws of Property
1. Law of Contract
2. Quasi Contract
3. Law of Torts
iii. Laws of Obligations
iv. Conflict of Laws
10. International Law
a. Public International Law
b. Private International Law
24.01.2011
Module II- Administration of Justice
A. Importance of Justicea. Salmond- Definition of law itself reflects that administration of justice has to
be done by the state on the basis of rules and principles recognized.
b. Roscoe Pound- It is the court who has to administer justice in a state. Both
Roscoe Pound and Salmond. Roscoe Pound stresses more on courts whereas
Salmond stresses more on the State.
B. Administration of Justice- Function of State
a. War
b. Administration of Justice
If a state is not capable of performing these functions, it is not a state.
Salmond said that the administration of Justice implies maintenance of rights within a
political community by means of the physical force of the state.
However orderly society may be, the element of force is always present and operative. It
becomes latent but it still exists.

In a society, social sanction is an effective instrument only if it is associated with and


supplemented by concentrated and irresistible force of the community. Social Sanction
cannot be a substitute for the physical force of the state.
c. Origin and Growth
i. It is the social nature of men that he wants to live in a community. It
demands that he lives in a society. This leads to conflict of interests
and gave rise to administration of justice. This is the history and
growth of administration of justice.
ii. In the next phase, the state was trying to come into force. The so called
state was not strong enough to regulate crime and to give punishment
to criminals. There was law of private vengeance and self-help.
iii. State comes into existence. With the growth and power of the state, it
began to act like a judge to assess liability and impose penalty. Public
Enquiry and punishment came into picture.
iv. The modern administration of justice is a natural corollary to the
growth in power of the political state.
C. Advantages and Disadvantages of Legal Justice
a. Advantages of Legal Justice
i. Uniformity and Certainty- There is no scope of arbitrary action and
even the judges have to decisions according to the declared law of the
country. As law is certain, people can shape their conduct accordingly.
ii. Law is not for the convenience for the special class. Judges have to act
accordingly. It is through this that impartiality is secured in
administration of justice. Coke says that the wisdom is law is wiser
than any mans wisdom. Justice represents wisdom of the community.
b. Disadvantages of Legal Justice
i. It is rigid. Society changes more rapidly than legal justice.
ii. Technicalities and Formalities
iii. It is complex. Our society is complex. To meet the needs of the society
we need complex laws.
iv. Salmond says Law is without doubt a remedy for greater evils yet it
brings with it evils of its own.
D. Public Justice- Classification of Justice. It can be divided into two parts

a. Private Justice- It is distinguished as being justice between individuals. Private


Justice is a relation between individuals. It is an end for which the court exists.
Private persons are not allowed to take the law in their own hands. It reflects
the ethical justice which should be there between individuals.
b. Public Justice- It is administered by the state through its own tribunals. It is a
relation between the courts and individual on other. Public Justice is the means
by which courts fulfil that end of Private Justice.
E. Concept of Justice According to Law- What the court renders to the people in the
form of justice, it is not actually in the so called sense. We cannot call it justice
because justice rendered is always according to law. The reason is judges are not
legislators, they are the interpreters. It is not the duty of the judge to correct the
defects in law. The only function of them is to administer the law of the country and
therefore, in the modern state, the administration of justice according to law is
commonly taken to imply recognition of fixed rules.
F. Civil and Criminal Justice- This follows from Public Justice and Private Justice.
Looking from a practical standpoint, important distinctions are in the legal
consequences. Civil Justice is administered by a particular set of courts whereas
Criminal Justice is administered by a different set of Courts. If successful, civil
proceedings result in a judgment for damages or injunction or restitution or specific
decree or other reliefs which are known as civil. If successful result in a number of
punishment which may range from hanging to fine or release on probation. Therefore,
he says that the basic objective of criminal proceeding is punishment and the usual
goal of civil proceeding is not punitive.
G. Theories of Punishment
a. Deterrent Theory- Salmond says that deterrent aspect of punishment is very
important. Object of punishment is not only to prevent the wrongdoer second
time but also to make him an example to other persons who have criminal
tendencies. The aim of this theory is not revenge but terror and as per this
theory an exemplary punishment should be given to the criminal so that others
may take lesson from him. Even in Manusmriti, this theory is mentioned. He
said Penalty keeps the people under control, penalty protects them, and
penalty remains awake when people are asleep, so the wise have regarded
punishment as the source of righteousness. Critics say that it is not effective in
checking crime.

b. Preventive Theory- The object of punishment is preventing or disabling and it


disables a person from committing a crime in future. Deterrent theory aims at
giving a warning to society at large whereas in Preventive Theory, the main is
to disable the wrongdoer from repeating of the activity, his physical power to
commit crime is disabled in this theory.
c. Reformative Theory- Punishment should be to reform to criminal even if the
offender commits a crime, he does not cease to be a human being, he may
have committed under circumstances which might never occur again. The
object of punishment should be to bring about the moral reform of the
offender. Therefore, under this theory, there are certain guidelines given:
i. While awarding punishment, the judge should study the characteristics
and the age of the offender, his early breeding, the circumstances under
which he has committed the offence and the object with which he has
committed the offence.
ii. The object of this exercise by the judge is to acquaint him with the
exact nature of the circumstances so that he may give a punishment
which suits the circumstances.
iii. Advocates say that by sympathetic, tactful and loving treatment of the
offenders, a revolutionary change may be brought about in their
characters. Critics say that Reformative Theory is alone not sufficient,
there should be compromise between the Deterrent Theory and the
Reformative Theory. The Deterrent Theory must have the last word.
iv. Distinction
1. It stands for the reformation of the convict but the Deterrent
Theory wants to give exemplary punishment so that the others
are deterred from following the course.
2. In Deterrent Theory, the criminal is not reformed whereas in
the Reformative Theory, it will want to punish the criminal as
little as possible. Under Reformative Theory, it is said that if
we inflict harsh punishment on criminals, there will be no
scope for reform.
3. It is said that the fundamental principle of Deterrent Theory,
punishment should be determined by the character of the crime
and too much emphasis is on the crime and not on the criminal.

In Reformative Theory, the circumstances under which the


offence was committed must be taken into consideration and
every effort should be made to give a chance to the criminal to
improve himself in future.
d. Retributive Theory- In primitive society, the punishment was mainly
retributive and the person wronged was allowed to have his revenge against
the wrongdoer. The principle was an eye for an eye. This principle was
recognized and followed. Another view of retributive theory is that it is an end
in itself, apart from a gain to the society and the victim, the criminal should
meet his reward in equivalent suffering. ( blood money in Islamic law)
e. Theory of Compensation- Punishment should not be only to prevent further
crime but it should also exist to compensate the victim. Critics point out that
this theory is not effective in checking crime. The purpose behind committing
a crime is not always economic. Imposing fine will not lower down the crime
though it might prove to be beneficial to the victim. Under this theory, the
compensation is paid to the persons who have suffered from the wrongdoing
of the government.

H. Kinds of Punishmenta. Capital Punishment- This punishment is available right from the primitive
ages and it was one of the most important punishments since ages. Even our
IPC prescribes for it. But several countries have abolished capital punishment
and this ideology has affected the Indian Judiciary while considering Capital
Punishment. A laxity has come in the minds of judges while awarding this
punishment. In Raghubeer Singh v. State of Haryana, Supreme Court accepted
that the murder was treacherous but still Life Imprisonment was given.
b. Deportation or Transportation- It was in practice under the British Era. It was
considered as a punishment at that time. The criminal is put in a secluded
place or in a different society. Critics say that the person will still cause
trouble in the society where he is being deported.
c. Corporeal Punishment- This punishment is abolished in our country but it
exists in some Middle Eastern Countries. Critics say that it is inhuman and
ineffective.

d. Imprisonment- It serves the purpose of three theories, Deterrent, Preventive


and Reformative.
i. Under Deterrent Theory, it sets an example.
ii. It disables the offender thus serving the purpose of Preventive Theory
iii. If the government in reforming the prisoner, thus serving the purpose
of Reformative Theory.
iv. There are certain disadvantages.
1. Short Term- It is disadvantageous.
2. Long Term
e. Solitary Confinement- It is an aggravated kind of punishment. It is said that it
exploits fully the sociable nature of men. Critics say that it is inhuman.
f. Indeterminate Sentence- The accused is not sentenced for any fixed period.
The period is left indeterminate while awarding and when the accused shows
improvement, the sentence may be terminated. It is reformative in nature.
I. Civil Justice
Module IIIAnalytical Positivist School- Sources of Law
Austin says that the term source of law has three different meanings.
1. The term refers to immediate or direct author of the law which means the sovereign in
the country.
2. The term refers to the historical document from which the body of law can be known.
3. The term refers to the causes which have brought into existence the rules which later
on acquire the force of law and here he says for example, the customs, judicial
decision, equity etc.
Historical Jurists- Savigny, Henrye Maine, Puchta- Law is not made but it is formed. The
foundation of law lies in the common consciousness of the people which manifests itself in
the practices usages and customs of the people. Therefore, customs and usages are the
sources of law.
Sociological Jurists- They protest against the orthodox conception of law according to which
law emanates from a single authority in the state. Law is taken from many sources and not
from one.

Ehlrich- He says that at the present as well as any other time the centre of gravity of legal
development lies not in legislation, not in science nor in judicial decisions but in society
itself.
Duguit- Law is not derived from any single source and the basis of law is public service.
There need not be any specific authority in a society which has the power of making laws.
Salmond on Source of LawSalmond has done a classification of sources
1. Formal Sources- It is as that from which rule of law derives its force and validity. The
formal source of law was the will of the state as manifested in statutes or decisions of
the court and the authority of law proceeds from that.
2. Material Sources- They are those from which is derived the matter though not the
validity of law and the matter of law may be drawn from all kind of material sources.
a. Historical Sources- In this rules are subsequently turned into legal principles,
were first to be found in an Unauthoritative form. They are not allowed by the
law courts as of right. They operate mediatory and indirectly.
i. Unauthoritative Writings
b. Legal Sources- They are sources which are the instruments or organs of the
state by which legal rules are created for e.g. legislation and custom. They are
authoritative and are followed by the courts as of right. They are the gates
through which new principles find admittance into the realm of law.
i. Legislations
ii. Precedent
iii. Customary Law
iv. Conventional Law- Treatise (CK Allen)
Allen says that Salmond has attached insignificant attention to historical sources which
demands more attention.
Keeton says that state is the organization which enforces the law. Therefore, technically state
cannot be considered as a source of law.
According to Salmond, a statute is a legal source which must be recognized and writings of
Bentham are without legal authority.

Legal source of English Law- There are two sources of English Law
1. Enacted Law having its source in legislation- It consists of statutory law. Legislation
is the act of making of law by formal and express declaration of new rules by some
authority in the body politic which is recognized as adequate for that purpose.
2. Case Law having source in judicial precedence- It consists of common law which we
find in law reports. Precedent is also making of law but by recognition and application
of new rules by the courts in the administration of justice. Case laws are developed by
the courts whereas enacted laws come into the courts ab extra.
3. Juristic Law- Professional opinion of experts or eminent jurists. These are also
sources of law. Though, they are not much accepted.
Source of Law: Are they source of right?
It means some fact which legally constitutes a right.
By source of law is meant some fact which is legally constitutive of right. It is the de facto
antecedent of a legal right in the same way as the source of law is de facto antecedent of a
legal principle.
Legislation- Legis means law and latum means making.
1. Salmond- Legislation is that source of law which consists in the declaration of legal
rules by a competent authority.
2. Gray- Legislation means the forma utterance of the legislative organs of the society.
3. Austin- There can be no law without a legislative act.
Analytical Positivist- They say that typical law is a statute and legislation is the normal
source of law making. The majority of exponents of this school do not approve that the courts
also can formulate law. They do not admit the claim of custom as a source of law. Thus, they
regard only legislation as source of law.
Historical School of Thought- Legislation is the least creative of the sources of law.
Legislative purpose of the legislation is to give better form and more effective the custom
which is spontaneously developed by the people. They do not regard legislation as source of
law.
Legislation

1. Supreme Legislation- Superior Legislation which proceeds from the sovereign power
of the state. It cannot be repealed, annulled or controlled by any other legislative
authority.
2. Subordinate Legislation- It is that which proceeds from any authority other than the
sovereign power and it is dependant for its continual existence and validity on some
superior authority.
Delegated Legislation- Function of the executive is to enforce the law. In case of Delegated
Legislation, executive is framing the provisions of law. It is also known as executive
legislation. It comes in the form of orders, by laws etc. Sub-Delegation is also a case in
Indian Legal system. The power to make subordinate legislation is derived from existing
enabling act. It is fundamental that the delegate on whom such power is conferred has to act
within the limits of the enabling act. Its purpose is to supplant and not to supplement the law.
Its main justification is that sometimes legislature does not foresee the difficulties that will
come while enacting the law. Therefore, Delegated Legislation fills in those gaps which are
not seen while formulation of the enabling act. Delegated Legislation gives flexibility to law
and there is ample scope for adjustment in the light of experiences gained during the working
of legislation. Controls over Delegated Legislation
1. Parliamentary Control
2. Parliamentary Supervision
3. Judicial Control- Indirect- Courts cannot annul subordinate enactments but they can
declare them inapplicable in particular circumstances. Though, these rules are not
actually abrogated but they become dead letter because in future, no responsible
authority will attempt to apply it.
4. Trustworthy Body of Persons- It can be ensured if power is trusted only to trustworthy
persons
5. Public Opinion can be a good check on arbitrary exercise of Delegated Powers. It can
be enlightened by antecedent publicity of the Delegated Laws.
In matters of technical nature, opinion of experts must be taken, that will minimize the
dangers of vague legislations.
Advantages

1. Abrogation- By exercising power to repeal, the legislature can abrogate any


legislative measure or provision which is meaningless or ineffective in the changed
circumstances. The ease with which the legislature can repeal a law is not the case in
situation of courts because interference of litigants is necessary in such cases.
2. Division of function- Legislation is advantageous because of division of function.
Legislature can make the law by gather all materials and relating it to the legislative
measure. In this process, legislature takes opinion of public and experts. Thus, public
opinion has its opinion in legislature. Judiciary cannot gather particular material
regarding enforcement of particular principles.
3. Prospective Nature of Legislation- This is because they are made applicable to events
which it is supposed to apply after the legislation is passed. Therefore, public can
shape its conduct according to enacted legislation. Judgment Law is necessarily
retrospective. The legality on the nature of act is pronounced after the act has been
done. Bentham said Do you know how they make it; just as man makes for his dog.
When your dog does something, you want to break him off, you wait till he does it
and beat him and this is how the judge makes law for men.
4. Nature of assignment- Due to the nature of assignment, the legislators interact with all
sections of people and thereby opportunities are available for them to know the failed
necessities of time. The decisions of legislators are collective in nature but this is not
so in case of Judgment Law. Sometimes, Judgment is also based on prejudice that
makes it uncertain at times.
5. Form- Enacted Legislation is abstract proposition with necessary exceptions and
explanations but Judgment Law is merged with details of facts of the case. When
Judge gives Judgment, he makes elephantiasis of law.
Legislation and Customary Law1. Legislation has its source in theory. Whereas customary law grows out of practice.
2. The existence of Legislation is essentially De Jure. Whereas existence of customary
law is essentially De Facto.
3. Legislation is the latest development of Law making tendency. Whereas customary
law is the oldest form of law.
4. Legislation is a mark of an advanced society and a mature legal system. Whereas
customary law is a mark of primitive society and under-developed legal system.

5. Legislation expresses relationship between man and state. Whereas customary law
expresses relationship between man and man. ( can be seen as state came after
customary law according to the historical perscpective of legal systems)
6. Legislation is precise, complete and easily accessible but the same cannot be said
about customary law because legislation is jus scriptum.
7. Legislation is the result of a deliberate positive process. But customary law is the
outcome of necessity, utility and imitation.
Advantage of Precedence Law over legislationDicey- The morality of courts is higher than the morality of the politicians.
A judge is impartial. Therefore, he performs his work in an unbiased position.
Salmond- Case law enjoys greater flexibility than statute law. Statute law suffers from the
defect of rigidity. Courts are bound by the letter of law and are not allowed to ignore the law.
In the case of precedent, analogical extension is allowed. It is true that legislation as an
instrument of reform is necessary but it cannot be denied that precedent has its own
importance as a constitutive element in the making of law although it cannot abrogate the
law.
Gray- Case law is not only superior to statute law but all law is judge made law. In truth all
the law is judge made law, the shape in which a statute is imposed on the community as a
guide for conduct is that statute as interpreted by the courts. The courts put life into the dead
words of the statute.
Coke- The function of a court is to interpret the statute which is a document having a form
according to the intent of them that made it.
Salmond- The expression will of the legislature represents short hand reference to the
meaning of the words used in the legislature objectively determined with the guidance
furnished by the accepted principles of interpretation.
It is the duty of the judiciary to dispower and to act upon the true intention of the legislature.
Sensitia legis
Maxwell on Interpretation-

1. Rule of Literal Construction- The first and most elementary rule of construction is
that it is to be assumed that the words and phrases of technical legislations are used in
their technical meaning if they have acquired one, otherwise in the ordinary meaning.
Second is that the phrases and words are to be constructed according to the rules of
the grammar. Therefore, it is very desirable in all cases to adhere to the words of the
act of parliament giving to them that sense which is their natural import in order in
which they are placed. Lastly, the length and detail of modern legislation has
undoubtedly reinforced the claim of literal construction as the only safe rule.
2. Mischief Rule- When the true intention of the legislature cannot be determined by the
language of the statute in question, it is open to the court to consider the historical
underlying the statute. The court may consider the circumstances that led to the
introduction of the bill, also to the circumstances in which it became the law. When
judges are allowed to probe into the questions of policy in interpreting statutes, there
is bound to be some uncertainty. It is maintained that the judges may look at the law
before the Act and the mischief in the law which statute was interested to remedy. The
act is to be construed in such a manner as to suppress the mischief and advance the
remedy. This rule is known as Mischief Rule. Heydons Casea. What was the common law before making this act?
b. What was the mischief and defect for which the common law did not provide?
c. What remedy, the parliament has resolved and appointed to cure the disease?
d. What is the true reason of the remedy and then, the office of all judges is
always to make such construction as shall suppress the mischief and advance
the remedy.
e. Smith v. Hughes- Lord Justice Parker tried to find out mischief in Street
Offences Act, 1959. Section 1 talked about offence for a prostitute to solicit
customers on a street but it did not make it an offence to solicit customers
from window. The purpose of the act was to clean the street, so it is
immaterial from where the prostitute solicits the customer.
3. Golden Rule- It is a modified version of literal construction. Although it is useful to
adhere to the literal rule of construction, yet if the ordinary meaning is at variance
with the intention of the legislature, it is to be collected from the statute itself. If it
leads to manifest absurdity or repugnance, the language may be varied to avoid such
inconvenience. Secondly, if the language is capable of more than one interpretation,
one ought to discard the more natural meaning if it leads to an unreasonable result and

adopt that interpretation which leads to a practicable and reasonable result. Therefore,
court when faced with two possible constructions of legislative language, it is entitled
to look at the result by adopting each of the alternatives in the quest for true intention
of the parliament.
4. Construction uti regis magis valeat qua pareat- Where alternative constructions are
equally open, that alternative is to be chosen which will be consistent with the smooth
working of the system which the statutes purports to be regulating and that alternative
is to be rejected which will introduce uncertainty, friction or confusion in the working
of legal system. Therefore, in accordance with these principles, the courts should
avoid interpretations which would leave any part of the provisions to be interpreted
without effect. The courts will not narrow down the enactments but it may give a wide
sense to the words in the statute.
5. Rule of Beneficial Construction- The construction of a statute must not so strain the
words as to include cases plainly omitted from the natural meaning of the language. F
v. C (Queens Bench Case). Therefore, Beneficial Construction is a way of relaxing
the strict principles of interpretation and that is the reason why they are called
beneficial construction. It is a way when the courts without supplying the omission
when confronted with a choice between a wide meaning which carries out what
appears to have been the object of the legislature more fully and narrow meaning
which carries it out less fully or not or at all, the courts will often chose the former.
6. Restricted Construction- There are some objects which the legislature is presumed not
to intend and a construction which would lead to any of them is therefore to be
aborted. It is not infrequently necessary to limit the effects of the words in an
enactment especially the general words and sometimes to depart from not only there
primary meaning but also from the principles of grammatical construction. It is more
beneficial or more reasonable to hold that the legislature expressed its intention in a
slovenly manner that a meaning should be given to them which could not have been
intended.
7. Construction to avoid collision with other provisions- If the two sections of the same
statute are repugnant the known rule is that the last must prevail and one way in which
repugnancy can be avoided is by regarding two apparently conflicting provisions as
dealing with distinct matters or situations.
8. Generalia Specialibus Non Derogant- Where there are general words in a latter act
capable of reasonable and sensible application without extending them to subjects

especially dealt with by earlier legislations, the judges are not to hold that earlier or
special legislation indirectly repealed, altered or derogated merely by the force of
such general word without any indication of a particular intention to do so.
9. General Clauses Act, 1897- This is a consolidating and amending act. N.Chandra v.
Mahendra Nath, AIR 1963 SC 1894- The main purpose of General Clauses Act is to
avoid superfluous and repetition of language and to place in a single act, provisions as
regards definitions of words and legal principles of interpretation which would
otherwise have to be incorporated in many different acts and regulations. The
definitions and the rules of interpretation contained in the General Clauses Act have
to be read in every statute governed by it provided the statute does not contain
anything repugnant to them in the subject or context or does not exhibit a different
intention.
Interpretative Process
Gadaner- Hermeneutics- It is a constructive process of Interpretation.
Constructive Process- Theories which are universally accepted in interpretative process.
Negative Hermeretics Process- It starts from the assumption that very notion of universal
valid interpretation is not tenable.
Gadamers Approach- Statutory Interpretation involves creative policy making by judges and
it is not just the courts figuring out the answers that was put in the statute by the enacting
legislature. Basically, the interpreter is situated historically and the interpretation is a
dynamic process. Every age has to understand the transmitted text in its own way. The real
meaning of the text as it speaks to the interpreter does not depend on the contingencies of the
author and to whom he originally wrote for. It certainly is not identical with them for it
always partly determined also by the historical situation by the interpreter and hence, by the
totality of the objective course of the history.
The chief metaphor in his interpretation is fusion of horizons. He says every text contains
assumptions and pre-understandings, a horizon which is quite different from the horizon of
the latter interpreter because both horizons are alienated from one another. The interpreter
can never completely recreate or understand the texts horizon. Interpreters effort is to find a
common ground and the common ground is possible because the temporal gulf is filled with
traditions and experiences that inform the current horizon and link it with the previous one.

He gives certain suggestions. The text lacks manning until interpreted. One does not
understand a text in the abstract without application of the text to a specific problem since,
finding the meaning of a statute is not a mechanical operation. It often involves interpreters
choice among several competing answers. Therefore, this creative supplementing of the law
which is involved in interpretation is a task that is reserved for the judge.
Dworkin also follows the line of Gadamer in Interpretative Process.
Pragmatic Hermeretics- Legal Interpretation is interpretative in character and it is different
from other types of interpretation.
1. Scientific Interpretation- This is generally done by the scientists to give meaning to
the phenomenon they observe.
2. Conversational Interpretation- It is a process by which the readers and the listeners
understand their communicative utterances and a standard view of this kind of
interpretation holds that the listener or the reader understand by duplicating or
substituting themselves with the propositional attitude of the author. This method is
common in the literature.
The most important character in interpretation is creative or constructive interpretation. This
legal interpretation has 2 characters.
1. Legal Practice
2. Legal Concepts
The need for creative interpretation arises when the community develops a complex
interpretative attitude towards the rules; the interpretation is called for when a text or a
practice is regarded as authoritative. The legal practice with regard to statute in a legal system
is interpretative precisely because there are some values served by granting authority to the
past political decisions that statute represents.
He does not agree with certain jurists. According to many jurists, jurisprudence is not
interpretative because there is no point in making practice of judges authoritative for legal
theories. The general theories propounded by a legal philosopher forms a constructive
interpretation because they try to show the legal practice as a whole in its best light to achieve
equilibrium between legal practices as they find it and the justification of that practice.

Hence, according to Dworkin, no firm line divides Jurisprudence from adjudication or any
other aspects of legal practice.
There are three kinds of interpretation liable for interpretative practice.
1. The text that judges and others within a particular legal culture, obligated to interpret
and obey.
2. The text created by judges within some particular legal culture which consists of
judicial practices in construing statutes and constitutions.
3. The work of prior legal theories some of whom seek to describe the judges
jurisprudence within some particular legal system and others who seek to do nonculture specific or general jurisprudence.
Pragmatic Hermeretics- This is also constructive interpretation. It is prevalent in the
American School of Jurisprudence. William James and Charles Pierce are the pioneers.
Previously, there was dualism of mind and matter and soul and body. But, this dualism
slowly vanished. Now it is based more on interpreting in a practical manner. For a pragmatist,
interpretation derives meaning not from the antecedents in perception but from the
consequences of action.
Richard Rotarys work were carried forward by Stanley Fish (Neo-Pragmatism)
In Neo-Pragmatism, Stanley gives a new formula for interpretation. Action is guided by the
tacit knowledge and not by application of general rules; principles or theories and
metaphysical theories are not necessarily not possible for activities like judging. The judge is
not a theorist of any kind at least when he is in the process of deciding cases and it is from
this position. It is from this position that he advances the concept of Interpretative
Community. Any written word derives its meaning from the society in which it is used.
After enactment of a statute, it is geared for the operation in the given society. But within a
society a community emerges that is so closely associated with the working of the above
statute and that the community gives a meaning to the working of the statute. Therefore, he
contends that meaning should be the governing factor in interpreting the statutes by the
courts. The community that gives the controlling meaning is called the interpretative
community.

Critic- Statutes are applicable only at a particular point of time. Also, if there are more than
one interpretative community, then it would create a lot of confusion in the mind of the judge.
Precedent as a Source of Law
Judgment rendered by Supreme Court is binding on all the subordinate courts, High Courts
and the tribunals within the territory of the country.
In case of a judgment rendered by the High Court, it is binding in nature to the subordinate
courts and the tribunals within its territory. In other territories, it only has persuasive value.
Indo-Swiss Time Ltd. v. Umroo, AIR 1981 P&H 213 Full Bench- Where it is of matching
authority, then the weight should be given on the basis of rational and logical reasoning and
we should not bind ourselves to the mere fortituous circumstances of time and death.
Union of India v. K.S. Subramanium- AIR 1976 SC 24351. Substantial and Compelling circumstances.
2. Error or baneful effect of decision on the general interest of the public.
3. Inconsistency of the decision with the Constitutional Philosophy and conflict between the
benches of the court, the decision of the larger bench should be followed.
What is the meaning of precedent as a source of law?
Loose Sense- The precedence that are reported may be cited and probably be followed by the
courts. This is was done till 19th Century.
After that, another meaning got momentum. Strict meaning said that precedence not only
have great authority but must be followed in certain circumstances.( i guess this is in cases
where res judicata applies. So precedent would necessariloy be followed )
Holdsworth- He supports the loose meaning.
Goodheart- He supports the strict meaning.
Declaratory Theory of Precedence- It is inapplicable to the principles of equity. Principles of
equity has its origin in either custom or legislation. Declaratory theory says that the binding
value is low since court simply declares on the basis of past historical values.
Authoritative Precedent- Judges must follow whether they approve of it or not.

Persuasive Precedent- Judges are under no obligation to follow but which they will take into
consideration and to which they will attach such weight as it seems to them proper.
Therefore, Authoritative Precedents are legal sources whereas Persuasive Precedents as
historical sources.
Disregarding a Precedent- Over ruling is a way by which we disregard a precedent. There are
circumstances which destroys the binding force of the precedent.
1. Abrogated Decision- A decision when abrogated by a statutory rule.
2. Affirmation or reversal by a different ground- The judgment which was rendered by a
lower court loses its relevance if such a judgment is passed by a higher court.
3. Ignorance of Statute- In such cases, the decision loses its binding value.
4. Inconsistency with earlier decisions of High Court
5. Precedent sub-silento or not fully argued
6. Decision of equally divided courts- Where there is neither a majority nor a minority
judgment.
7. Erroneus Decision

What is Ratio Decindi- The previous case is binding as to its ratio decidendi but ratio
decidendi is a vague concept. Ratio decidendi is the binding part for the case at hand.
Goodheart- He does not accept the classical view that ratio is the principle of law which links
the essential determination of the case with the essential or material facts of it and the
statement of the judge may or may not do that or may be formed too widely or too narrowly.
It is the general ground upon which the decision is based- Supreme Court of India
How to ascertain Ratio Decidendi
Krishna Kumar v. Union of India- AIR 1990 SC 1782
The ratio decidendi has to be ascertained by an analysis of the facts of the case and the
process of reasoning involving the major premise consisting of a pre-existing rule of law

either statutory or judgment and minor premise consisting of the material facts of the case
under immediate consideration. Therfore, we find that it is the ratio decidendi which is a
binding precedent.
Other material part is the Obiter Dictum.
Process of Reasoning1. Major Premise
2. Minor Premise
Union of India v. Maniklal Banerjee- AIR 2006 SC 2844- Only ratio decidendi is binding and
has precedent value.
State of Orissa v. Sudhanshu Shekhar Mishra- AIR 1968 SC 647- A decision is an authority
for what it decides and not for what can logically be deduced from it.
The only thing in a judge's decision binding a party is the principle upon which the case is
decided. On our analysis, we have to isolate the ratio of the case.
A decision contains:
1. Finding of Material Facts- Direct and inferential
2. Statement of the principle of law applicable to the legal problem disclosed by the facts.
3. Judgments based on the combined effects of the above two.
Ratio Decidendi is a statement of law applied to the legal problems raised by the facts as
found upon which the decision is based.
Dalveer Singh v. State of Punjab- 1979 3 SCC 745- Though we are able to find out the
ingredients from the decision. But later on, when there is a similar situation, it is very
difficult for him to apply the ratio in that case because a rigorous division of facts has to be
made which is not possible.
It is correct that a decision on a question of sentence depending upon the facts and
circumstances of a case can never be regarded as a binding precedent, much less 'law'
declared under article 141 of Constitution of India so as to bind all law courts within the
territory of India.

Minerva Mills v. Union of India- AIR 1980 SC 1789- If a provision is uphold by the
majority, the fact that the reasoning of some of the judges is different from the ratio of that
case will not affect its validity.
Fazlun B. v. Khadarwali- AIR 1980 SC 17301. Where the earlier decision is altogether unpalatable to the court in the latter case, the latter
court may be persuaded to interpret it as narrowly as possible.
2. The limit of the process is reached when some judges in extreme and unusual case are apt
to cease on almost any factual difference between the previous case and the case before them
in order to arrive at a different decision and the precedent is an authority on its 'actual facts'.
AR Anutulay v. RS Nayak- Order delivered without reference to relevant provision of the
Constitution of India or without arguments or without an act or a citation of authority is per
incurium.
Amrit Das v. State of Bihar- AIR 2000 SC 2264- Decisions sub-silento have no binding
value.
Saeyada Mossarrari v. Hindustan Steel Limited, Bhilai Steel Plant- AIR 1989 SC 406Sometimes well considered Obiter Dicta are taken as precedent but every passing expression
of a judge cannot be treated as an authority.
Swaran Singh Lamba v. Union of India- AIR 1995 SC 1729- Normally, even an Obiter Dicta
is expected to be obeyed and followed. It is binding on the High Court but has only
persuasive value for the Supreme Court.
Three Tests- (Ratio Decidendi Test)
1. Wambaugh's Test- It is an imperative proposition of law without which case would
have been decided otherwise. Inversion Test is in form of a dialogue between him and
his student. He sits with him and gave him some orders.
a. Frame carefully the supposed proposition of law and then insert in the
proposition, a word reversing its meaning.
b. Let him enquire if the court had conceived this new proposition to be good and
had in its mind the decision would have been the same.
c. If the answer be affirmative, then, however excellent the original proposition

may be, the case is not a precedent for that proposition.


d. If the answer be negative, the case is an authority for the original proposition.
e. In short, when a case turns only on one point, the proposition or the doctrine
of the case, the reason of the case, the ratio decidendi must be a general rule
without which the case must have been decided otherwise.
f. Sankara Narayanan v. Director of Legal Studies, Madras Law Journal- Justice
Ismail was in a law teacher in his initial days. Lecturers were removed without
giving any opportunity of hearing. The service rules said that only permanent
employees be given the opportunity of hearing. There was only one issue:
i. Whether removal was legal or not.
1. Old teachers are more competent than the new teachers.
2. In case of removal, opportunity of hearing should be given.
ii. Second proposition materially affects the decision, hence it is the ratio.
g. Rupert Cross- When Wambaugh states that we must insert the proposition that
has a reverse meaning from that of the supposed ratio, does he mean contrary
or contradictory proposition? Rules of law are complex proposition and
contain contrary principles.
i. Is ratio decidendi a proposition without which a case could not
logically have been decided as it was decided or is the one without
which the case would not have been decided as it was decided.
ii. How to apply Wambaughs Test when the decision contains more than
one ratio decidendi?
iii. In some cases, the court may consider some facts as immaterial for the
decision which others may consider as material.
2. Halsburys Test- Quinn v. Liatham- 1901 Appeal Cases 495- After stressing that
every judgment should be read in the lines of the facts of the case. Lord Halsbury says
that a case is only authority for what it actually decides. I entirely deny that it can be
quoted for a proposition that may seem to flow logically from it. Tamillarasans CaseMadras Law Journal- 1991 Case.
3. Goodhearts Test-Ratio Decindi is found out by ascertaining the facts treated as
material by the judge. The court is bound by the earlier decision must come to a
similar conclusion unless there is a further fact in the case that is considered by the
latter court as material or unless some fact treated as material is absent. He uses the
term principles of law in his essay called Determining the Ratio Decidendi Case.

He discusses six points on how to find out Ratio:


a. The principle of a case is not found out in the reasoning given in the opinion.
The reason given by the judge for his decision never constitutes as the binding
part of the judgment.
b. The principle is not found in the rule of law set forth in the opinion. For it is
not the rule of law set forth by the court or the rule enunciated as Halsbury
puts it which necessary constitutes as principles of the case. There may be no
rule of law set forth in the opinion or the rule of law stated may be too wide or
too narrow. In the appellate courts, the rules of law set forth by the different
judges may have no relation to each other, nevertheless, each of these cases
contain a principle which can be discovered on proper analysis.
c. Judges Opinion need not be consulted in order to find the principle of law for
which the case is an authority. The realist perception of the society held that it
is not the judges opinion but the way they decide cases which should be
dominant subject matter of truly scientific study of law.
d. The principle of case is found by taking into account:
i. The facts treated of the case by the judge as material
ii. His decision based on them.
iii. It follows that our task in analysing a case is not to state the facts and
the conclusion but to state the material facts as seen by the judge and
his conclusion based on them. It is by his choice of the material facts
the judge creates the law.
e. First is to find out all the necessary facts as seen by the judge. Secondly, to
discover which of those facts were treated by the judge as material?
f. The judge never expresses his view about what facts are considered by him as
material and what facts are immaterial. We should apply various tests to
determine which is material and immaterial.
g. The conclusion based on hypothetical facts is dictum. A Ratio Decidendi
cannot be based on assumed fact. Rupert Cross says that in cases even dictum
should be considered in finding out the ratio.
Custom as a Source of Law
Salmond says that Custom is the embodiment of those principles which have commended
themselves to the national conscience as the principles of justice and public utility.

Keeton says that Customary laws are those rules of human action established by usage and
regarded as legally binding by those to whom the rules are applicable which are adopted by
the courts and applied as a source of law because they are generally followed by the political
society as a whole or by some part of it.
Austin- Custom is not a source of law.
Roscoe Pound- Customary Law
1. Law formulated through Custom of popular action.
2. Law formulated through judicial decision.
3. Law formulated by doctrinal writings and scientific discussions of legal principles.
Historical School of Jurisprudence- Von Savigny says that Customary law which bought its
content from habits of Judicial Decision or from traditional modes of juristic thinking
expressing jural ideas of the people of conviction of rights, of its ideas or rights and rightful
social control.
The origin of custom of source of law- Greek historical School is the innovator of custom as
source of law.
Gierke- He held that every true human association becomes a real and living entity animated
by its own individual soul.
Henry Maine- He said custom is the only source of law.
Cusotm is a conception posterior to that of themestes or judgment.
Ingredients of a Custom1. Antiquity
2. Continuous
3. Peaceful Enjoyment
4. Obligatory Force
5. Certainty
6. Consistency
7. Reasonableness
Module IV

Legal Concepts
Legal Right
What is legal right as per the positivists?
Savigny gives us some fundamental conceptions and distinctions
1. Legal Rights are essentially those interests which have been legally recognized and
protected. These rights may also be interests which are ascertained and morally
protected. These moral rights are protected by a moral duty. A legal rights stands on
a different footing from a moral right. Salmond says legal right is an interest
recognized and protected by rule of law. An interest violation of which would be a
legal wrong. A legal duty is an act which obliges:
a. To do something and act, the opposite of which would be a legal wrong
b. Whenever law ascribes duty to a person, there is a corresponding right against
whom the duty is imposed.
c. Moral Duty and Legal Duty.
d. Rights are said to be benefits secured for persons by rules regulating
relationships.
e. Salmond says there can be no right without a corresponding duty. Every right
or duty involves a bond of legal obligation by which two or more persons are
bound together. There can therefore be no duty unless there is someone to
whom it is due. There can be no right unless there is someone from whom it is
claimed and there can be no wrong unless there is someone who is wronged,
that is to say, whose right has been violated. Viniculum Juris.
2. Duty can be of two types
a. Relative Duty- There is a corresponding right in these duties.
b. Absolute Duty- There is no corresponding right.
c. The conceive duty to be of the essence of a right that it should be vested in
some determinate person and be enforceable by some form of legal process
instituted by him.
3. Legal Right- Five Characteristics of Legal Right
a. It is vested in a person who may be distinguished as the owner of the right, the
subject of it, the person entitled or the person of inherence.

b. It avails against a person upon who lays a correlative duty. He may be


distinguished as the person bound or as the subject of the duty or as the person
of incidence.
c. A person bound to an act or omission in favour of the person entitled. This
may be termed as the content of the right.
d. The act or omission relates to something which may be termed as the object or
subject matter of the right.
e. Every legal right has a title, that is to say, certain facts or events by reason of
which the right becomes vested in its owner.
4. Every right involves a threefold relation in which the owner of it stands:
a. It is a right against some person or persons.
b. It is a right to some act or omission of such person or person.
c. It is a right over to something to which the act or omission relates.
Legal rights in a wider sense- A right may not necessarily have a correlative duty. A right
may be defined as an advantage or benefit conferred upon a person by a rule of law. These
legal rights are known as legal concepts and these legal concepts have their correlatives.
Right- Duty

Liberty- No right

Power- Liability

Immunity- Disability

Roscoe Pound gives an analysis of legal concepts. These rights are essentially interests
recognized and administered by law and belong to the science of law rather than to law and
are a complete idea. It may mean the legally recognized and delimited human demands or
some conceptions by which recognized interests are given form in order to be secured as
legal order.
Hohfields Analysis of Legal Right1. Jural Opposites
a. Right- No right
b. Privilege- Duty
c. Power- Disability
d. Immunity- Liability
2. Jural Correlatives
a. Right- Duty

b. Privilege- No right
c. Power- Liability
d. Immunity- Disability
3. Vertical lines represents jural correlatives and is the presence of in another. Thus,
right is the presence of duty in another and liability is the presence of power in
another.
4. Diagonals connect Jural contradictions and may be read either ways as is the absence
of in oneself. Thus, no right is the absence of right in oneself and disability is the
absence of power in oneself.
5. Horizontal lines connect contradictories of correlatives and may be read as is the
absence of in another. Thus, liberty (not) is the absence of right in another and
immunity is the absence of power in another.
6. They are applicable in general law and applicable in particular transactions.
a. It is improper to speak of a right inhering in A towards B unless it can always
be said that B has a duty.
b. It is improper to speak of A having a privilege vis-a-vis B unless it can be
shown that B has no right to prevent its exercise.
c. It is improper to speak of A as having a power against B unless is exercise of
the power involves an imposition of liability on B.
d. It is improper to speak of A as having immunity as against B unless it can be
shown that B is under a disability in respect of a same subject matter that is
has a no power to impose liability being the opposite of immunity.
7. Simplification
a. As a persons right is an expression of a wish or claim, that other person
against whom the right or claim is expressed has a duty to obey his right or
claim.
b. A persons freedom is an expression of a right or claim that he may do
something against other person to change his legal position.
c. A persons power is an expression of claim or a right that he can alter other
persons legal position.
d. A persons inability is an expression of a wish that another person cannot alter
the persons legal position.

Salmond- A perfect right is one which corresponds to a perfect duty and a perfect duty is one
which is not merely recognized by law but also enforced by law. In a fully developed legal
system, there are rights and duties which though recognized by law are not perfect in nature.
The rights and duties are important but there is no action for its maintenance. It is a good
ground for defence but it is not a good ground for action. There are some cases in which
imperfect right is sufficient to enforce equity.
A positive right corresponds to a corresponding duty and entitles its owners to have
something done for him without the performance of which his enjoyment of the right is
imperfect. Negative rights have negative duties corresponding to them and enjoyment is
complete unless interference takes place. Therefore, majority of negative rights are against
the entire world.
Negative rights correspond to negative duty of all others, not to interfere. In the case of
positive rights, the person subject to the duty is bound to do something, whereas, in case of
negative rights others are restrained to do something. Therefore, the satisfaction of a positive
right results in the betterment of the position of the owner. Whereas in case of a negative
right, the position of the owner is maintained as it is.
In case of positive rights, the relation between subject and object is mediate and object(
object being the end result for which the right exists itself) is attained with the help of others.
Whereas in case of negative rights, the relation is immediate, there is no necessity of outside
help. All that is required is that others should refrain from interfering case of negative rights.
Whereas in case of positive rights, a duty is imposed on one or few individuals. In case of
negative rights, the duty is imposed on a large number of persons.
Real and Personal Right
A real right corresponds to a duty imposed upon persons in general whereas a personal right
corresponds to a duty imposed upon determinate individuals. Therefore, a real right is
available against the whole world whereas a personal right is available against only the
particular person.
Real rights are more important than personal rights as they are available against the whole
world.

All real rights are negative and most personal rights are positive although in few exceptional
cases, they are negative. Therefore, a real right is nothing more than a right to be left alone by
others. It is merely a right to their passive non-interference. The only duties which could be
expected from the whole world are of negative character. All legal rights are negative but it is
not so in case of a personal right. There are some cases where they are both personal and
negative.
It is to be observed that real rights are Right in Rem and personal rights are Right in
Personam, real rights are generally negative rights, personal rights are generally positive
rights.
Right in rem and Right in personam
Every right is at the same time one in respect of something and against some person. Every
right involves not only a real but also a personal relation. Although the two exist together, but
they are not same. In real right, the relation is to a thing, in personal right, it is the relation to
other persons who owe the duties which is important. Real rights are derived from some
special relation to the object but personal rights are derived from special relation to the
individual or individuals under the duty.
A right in rem is available against the whole world but right in personam is available against
a particular individual only.
Proprietary and Personal Right
It includes a persons assets and his property in various forms. Proprietary Rights have some
economic or monetary value. They are the elements of wealth for men, whereas personal
rights are the elements of his well-being.
Test for determining Proprietary Right- It is not whether there can be any alienation, whether
it can be equivalent to some amount of money.
Inheritable and Uninheritable Rights- A right is inheritable if it survives the owner. It is
uninheritable if it dies with the owner.
Ownership

Ownership denotes the relationship between a person and an object forming the subject
matter of his ownership. It consists in a complex of rights, all of which rights in rem being
good against the entire world and not merely against the specific persons.
Incidence of Ownership
1. The owner will have the right to possess the things which he owns.
2. The owner normally has a right to use or enjoy the thing owned, the right to manage
it, the right to decide how it shall be used and the right of income from it. Right to
possess is not a right in the strict sense because in this case rights are in fact liberties.
The owner has no duty to others and he can use it in any way he likes and nobody can
interfere with the enjoyment of his ownership.
3. The owner has the right to consume, destroy or alienate the things. The right to
consume and destroy are straight forward liberties. The right to alienate i.e. the right
to transfer the rights involves the existence of power.
4. Ownership has the characteristic of indeterminate duration. The position of the owner
differs from the non-owner in possession, in that the latters interest is subject to be
determined out of some future set point whereas the interest of the owner can be there
theoretically forever.
5. Ownership has a residuary character.
Austins Concept of Ownership
Ownership means a right indefinite in point of user, unrestricted in point of disposition and
unlimited in point of duration over a determinate thing.
2 Caveats
1. Not to use your property to injure your neighbour.
2. It is not lawful to build upon your land to the injury of others.
Dias on Ownership
Ownership is needed to give effect to the idea of mine and not mine or thine. Ownership
consists of claims but owner may be divested of all the claims to the extent that he is not left
with any practical benefit of ownership. The way in which ownership arises differs in
different legal systems.

According to Salmond, the subject matter of ownership is the relationship between the thing
and the owner. This thing may be a land or a chattel. Ownership can also include interests.
Ownership may consists of incorporeal things as well which cannot be perceived by senses.
Ownership
1. When the statute says that property will devolve after sometime.
2. A person may take or make a property and become the owner.
3. By natural circumstances, the person can also become the owner.
Corporeal and Incorporeal Ownership
Corporeal Ownership signifies ownership in a physical object whereas Incorporeal
Ownership is a right or an interest. The distinction lies in the incorporeal or corporeal thing.
Corporeal things are things which can be perceived by senses whereas incorporeal things
cannot be perceived by senses and are in tangible.
Sole and Co-Ownership
Sometimes there is more than one person who owns the property. When an individual owns,
its sole ownership.
Trust and Beneficial Ownership
In trust, there is no co-ownership. Two persons- one for whom the trust is created, the
beneficiary and one on whom the responsibility lies for the benefit of the others, the trustee.
The trustee has no right to the beneficial enjoyment of the property. His ownership is limited.
Therefore, the trustee is merely an agent upon whom law has conferred the duty of
administration of property.
Trust ownership and beneficial ownership are independent of each other in their destination
and disposition. Trusteeship may change hands but the beneficial owners remain the same.
Legal and Equitable Ownership
Legal ownership is that ownership which has its ownership in common law but equitable
ownership comes from equity divergent of common law. The distinction between legal and
equitable ownership is very thin.
Vested and Contingent Ownership

Ownership is vested when the title is perfect whereas it is contingent when it is capable of
being perfect after fulfilment of certain condition. Vested ownership is absolute whereas
contingent ownership becomes vested when the conditions are fulfilled.
Absolute and Limited Ownership
Absolute- It designates when possession, enjoyment, disposal are complete and vested
without restrictions save as restriction imposed by law.
Limited- The ownership is subjected to the limitations of use, disposal or duration.
PossessionPaton- Possession is a concept of law, but it lacks a uniform approach. However, possession
has created various legal relations. Possession is the prima facie evidence of ownership. He
who has a possession must show that he has a better title over the property.
Possession is a root of title and all possession is regarded as just till it is shown to be
otherwise.
Salmond- Possession is the most basic relationship between men and thins as men require
basic necessities of food, clothing etc. and therefore, men has to possess them. He admits that
this concept if difficult but at the same time it is not purely a legal concept. It is not
independent of law. It varies from one system to another system. A person who may have a
possession in fact may not have a possession in law. It may be legal and non-legal.
Possession in fact and Possession in law
Possession in fact denotes that something is in ones control and by control he means that it
may be direct or indirect control. Direct control means that one has custody of the thing
whereas indirect control means that when the thing is lying somewhere and one has the
power to retain or regain it, this amounts to indirect control.
There can be variety of situations where Possession in fact depends on the intention as to
possessor, how he wants to possess the things.
Corpus Possessionis- This is comprised of both power to comprise things, to use possess and
existence of grounds for the expectation of the possessors use will not be interfered with.

Animus Possessiondi- It consists of an intention to appropriate it to oneself and to the


exclusive use of thing possessed.
Possession in law- It means that the possession has been given rights by law to keep the thing
in possession without interference by others.
Salmond says that this is a right in rem supported by right in personam against those who
violate possessors right and also include right to recover compensation and also it includes,
right of disposition. Law will protect possession against criminal and other sanctions.
Merry v. Green- A purchases an almirah which has several drawers and sells it to B. B finds
some jewels in a drawer. B wants to sell it to C. Is B guilty of theft?
B does not require legal possession until he discovers them. If he at this stage, decide to
dishonestly misappropriate them, he is guilty of theft.
Mediate and Immediate Possession
Salmond writes that one person may possess a thing for on account of someone else. In such
a case, the latter is in possession by the agency of him who holds the thing on his behalf.
Thus, possession held by one man through another may be termed mediate. While, acquired
or taken directly may be distinguished as immediate and direct.
There are three types of mediate possession
1. That acquired through an agent or servant.
2. That held through a borrower or hirer or tenant where the thing can be demanded at
will.
3. Where the chattel is lent out for a fixed or delivered as security for repayment of the
debt.
The possession acquired through an agent, it is through someone who solely owes on
someones behalf an account of claim in the agent or servant.
The possession where ones superior right is exercised for obtaining from the other the direct
possession, i.e. the cases of borrower and tenant at will.
Where the immediate possession is in a person who claims it for himself, until sometime has
lapsed or certain conditions have fulfilled but who acknowledges the title for another for

whom he holds the thing and to whom he is prepared to hand over the possession when his
own temporary claim has come to an end.
Immediate possession is a possession valid against the whole world including the mediate
possessor.
According to Paton, this type of classification is not possible and not recognized by common
law. But it may be true for civil law countries. It has created confusion as to what is mediate
and what is immediate. This classification is too facile a differentiation.
Paton
Propositions
a. Possession of a chattel is not required when mere physical control is taken; it
depends on the knowledge of the taker of the nature of the thing required.
b. A possessor of land possesses everything attached to or under the land and
things lying loose on the land are not in the possession of the land owner but
fall into the possession of the first finder if he is lawfully on the land.
c. The owner or possessor of the shop is not in possession of chattel on the floor
of his shop until he knows of their presence there.
d. The owner of the house, who may well have been in the possession of the
house for purpose of taking action against trespasser, may not be in the
possession of the chattel found on the premises if he has never physically
occupied the house.
e. The owner or the possessor of the land may not be in the possession of chattels
in the land even though he owes those chattels, another person not on the land
may be in possession of them.
f. The finder of the last chattel obtains possession of it and hence, title to it
against those to have no claims prior to his.
g. A finds a chattel, he finds in the course of employment, does not obtain
possession of it.
h. As between two or more person, who is in apparent physical control and
enjoyment of the use of chattel, the owner of the chattel is in the possession of
them.

i. To acquire possession of a thing, it is necessary to exercise such physical


control as the thing is capable and it is evident with the intention to exclude
others.
Possession in Roman Law- If one could show he has good faith and good cause, he could
acquire ownership.
1. Possessio Naturalis
2. Possessio Civilis
Savigny- False Text- Possession
1. Corpus Possessionis- Physical
2. Animus Domini- Intention with which such control is exercised.
Intention to hold or possess a thing is a requirement. But concept of intention may not be in
some cases.
Jenning- Adopted a more objective theory.
A man possesses who is in relation to a thing in the position in which the owner of such
things ordinarily animus being merely an intelligent consciousness of the fact.
Persons who hold the property will be the owners in majority of the cases. Whenever a
person is looked from the point of being the owner, the possession in law belongs to such a
person. Jennings theory is an improvement of Savignys theory.
J.L. Williams Criticism- Possession once acquired may continue even though animus or
corpus or both are lost. Therefore, these things are irrelevant.
Holmes Theory- A man must stand in certain physical relation to the object and to the rest of
the world and must hav certain intent. And intent must be searched in cases of possession.
This theory is criticized by Dias. He says this idea is a mere generalization and not clear
whether physical control should run concurrently.
Pollocks Theory- His test of De Facto Possession- Physical Control with intent is
possession.

Grey- Ethical Natural law philosophers of the 17th and 18th centuries as well as the
metaphysical theories of 19th century postulated the concept of will as an essential
requirement for exercising legal right and hence personality is the subjective possibility of a
rightful will.
Legal personality is an artificial creation of law and entities recognized by law are capable of
being parties to a legal relationship. A natural person is a human being whereas legal persons
are beings that are imaginary who are treated in similar or lesser degrees.
A legal person is any subject matter except a human being. All of them can sue and can be
sued.
Theories of Juristic Personality
1. Fictional Theory- Savigny and Salmond- When the law grants legal personality to an
entity that has no mind and no will, in short no legal personality, it is the work of a
fiction to which we attribute personality to non-living objects. Legal capacity is
considered as extended to artificial subjects admitted by means of pure fiction. Grey
supports this theory by saying that it is only human beings who are capable of
thinking, therefore it is by way of fiction we attribute will capable of thinking to nonhuman beings and assign them personality. Wolf says that there are three advantages
of this theory. It is analytical, more elastic and it makes easier to disregard juristic
personality where it is desirable.
2. Concession Theory- It assumes that associations are artificial creations of the state i.e.
law. According to this theory, law is the only source from which legal personality
may flow. It is something by way of a privilege ascribed to a group and is nearer to
fiction theories in concerning personality. Law decides what shall be regarded as
juristic entity.
3. Group Personality or Realist Sociological Theory- Gierke- He says that a group has a
real mind and it has a real will and it has a real power of action. The realist theories
builds on the concept that groups or associations when recognized by law become a
legal reality and also juristic personality.
4. Bracket Theory- Jerring- He contends that the member of an incorporated association
is bearers of rights whereas juristic persons are a symbol of giving effect to the
purpose of the group. Juristic person is a special form where members manifest their
relations of rights and law with outside world.

5. Hoffields Theory- He says that juristic persons are creation of arbitrary rules of
procedure. As human beings alone are capable of having rights and duties, any group
to which the law ascribes juristic personality is merely a procedure for working out
the legal rights and jural relations and making them as human beings.
6. Kelsens Theory of Legal Personality- There is no difference between legal
personality of a company and that of an individual. Personality in the legal sense is
only a technical personification of a complex of norms and assigning complexes of
rights and duties.
Module V
12-14th Century-Middle Ages
Political Social and Economic Affairs of the state- Four strands of thought
1. The political society and the state were considered to be moral epitomes of justice.
2. The rule of law was interpreted as the highest principle of society binding rulers and
rule alike.
3. The authoritative interpretation of Supreme law which to a great extent was jettisoned
within the spiritual authorities, the charge and the emperor depending upon the
political development.
4. The social and legal authority within the civil society, the principle that law and
government derive their existence from the people.
Summa Theologica- Law into three types1. Eternal Law- These are laws governing whole of the community of the universe that
is divine reason.
2. Natural Law- Law derived from eternal law from those who have divine reason of
deriving natural law from eternal law. An imperfect reflection of the dictate of the
divine reasons but it enables man to know some of the principles of eternal law.
3. Human Law- As human reason has to proceed from the precepts of natural law as
thought from certain common and undemonstratable principles to other more
particular dispositions arrived at by an effort of reason are called Human laws
provided other conditions necessary.
Human Law-

1. Common Good- law must have achieved its proper object- the wellbeing of the
community.
2. The achieving of common good, promulgation of law should be concern of the whole
community whose duty is to take care of the common good. Law is a rational ordering
of things which concerns with common good promulgated with whoever is charged
with the care of the community.
3. All actions concerned with above precepts are natural law besides a man should avoid
ignorance.
The basic tenet of Thomasian doctrine (St.Thomas Acquinas) gave importance to human
reason responsible for achieving peace and harmony in a given community and the world at
large and obeys the positive law as it is just and reasonable.
Friedman says that Saint Thomas system clearly upholds the supreme authority of the church,
gives the state or rather the emperor, his due share and at the same time discourages civil
revolution by opposing to injustice by opposing oppressive laws.
Saint Thomass analysis was much ahead of his time. His concept of justice was more
revealing as he described it as a habit whereby a man renders to each one his due by a
constant perpetual will. It consists of two parts- distributive justice and corrective justice.
Natural Law after 14th Century- Nicholo Machiavelli- He did not support natural law. He was
the one who glorified the omnipotence of state and subordination of all ethical principles in
public life to the political state craft. He said that the nation should be ruled by one ruler.
Jean Bodin- He supported Machiavelli by developing the doctrine of National Sovereignty
which justified the absolutism of the state.
In later parts, there was recognition of rights. All this lead to the concept of lassies-faire and
also liberalism in politics. Natural law became synonymous with natural rights. Natural law
had almost matured in developing the concepts of individual liberty, popular sovereignty and
freedom of will of an individual.
Hugo Grotius- Dutch Jurist- Father of International Law- Formulated the doctrine of social
life of men as its unique characteristics for peace and tranquillity with fellowmen according
to the measure of the intelligence with the intelligence of other fellow men with whom he has
to live with. This unique characteristic is to be found in natural law because natural law is

directly proportional to human intelligence. Natural Law is superior to all law as it is dictated
by reason and any law which is not in conformity with rational nature is either irrational or
immoral. He believed whole universe is regulated by the law of nature.
He also developed the concept of Pacta sunt Servanda. He conceptualized the notion of a
state as an association of the freemen joined together for the enjoyment of rights and for their
common interest. This association is a result of a contract in which people have transferred
their sovereign power to a ruler who has acquired it as his private power and whose actions
under ordinary circumstances are not subject to legal control. However, the ruler is bound to
observe the natural law and the law of nations. Grotius uses the construction of social
contract for a twofold purpose, internally for the justification of the absolute duty of
obedience of the people to the government, internationally to create a basis for legally
binding and stable relations among the states. Grotius puts forward social contract as an
actual fact in human history. The constitution of each state, Grotius thinks, had been
precedent by a Social Contract by means of which each people had chosen the form of
government which they consider most suitable for themselves.
Samuel Pufendorf- He based natural law on two sides of human nature while protecting
personal property but not to disturb peace of the society.
Christian Wool- German Jurist- He saw in the beauty of self-perfection, the principle or
command of natural law. The condition of such perfection is provided by a benevolent
sovereign who provides peace and security. According to him, natural law is a living force.
Thomas Hobbes- He preferred positive laws more than natural laws. In many respects, he
improved the social contract theory and made it an essential part of the system of
extraordinary logical power. He has written two books.
1. De Civi- 1642
2. Leviathan
He was convinced of the overwhelming importance of the state authority which he thought
ought to vest in an absolute ruler. In theory, he acknowledged authority of natural law but he
understood it in a different sense for those writers for whom natural law as an objective order
to natural right as a subjective claim based on the nature of men and prepares the way for
individualism in the nature of inalienable rights. It is necessary for men to enter into social

contract so as to transfer all their powers and strength to one men or assembly of men to be
constituted as leviathan or the mortal god. This god will provide peace and security.
1. Sovereign Power or sovereignty is absolute and not subject to any restraints including
legal restraints.
2. Civil laws are the extension of sovereigns will and natural laws are above civil laws.
3. Under Social Contract, there is no distinction between just and unjust laws.
4. The authors of laws are people who have yielded to sovereign to make laws for them.
5. People should have right to hold and enjoy some property as it is important to achieve
peace.
6. The people cannot revolt against unjust or tyrannical laws of the sovereign. The
tyrannical sovereign will be condemned in eternal death.
Basically, he emphatically rejects contractual or quasi-contractual right by which subjects
could demand the fulfilment of certain obligations by the ruler. His Social Contract is not true
contract but a logical fiction. And according to him only condition attached to the absolute
power of the ruler that he can govern and keep order. Hobbes naturally discourages civil
disobedience but he clearly states in leviathan that where resistance is successful, the
sovereign ceases to govern, the subjects are thrown back upon their original position and may
now transfer their obedience to a new ruler.
Hobbess concept of sovereignty is entirely rational and utilitarian and it is purely the result
of rational individual self-interest which supersedes the irrational and thus self-destructive
lust for power as man pursues it in the state of nature. These rights were not recognized to be
inalienable rights. The positive law was therefore reduced to the command of sovereign
whereas the law of nature were moral commands which the ruler or the sovereign ought to
follow. Thus, Hobbes laid down the first foundation for analytical positivism.
John Locke- He was a theoretician of the rising middle class who was individualistic and
acquisitive and avoided conflicts between ethics and profits. His ideas appealed to the
generations in the following centuries. He resorted to the medieval concept of natural law in
so far as he made it superior to positive law. He placed the individual in the centre and
invested him with inalienable natural rights among which right to property was the most
prominent.

Locke used the Social Contract to justify the government by majority which held the power
in trust with the duty to preserve individual rights whose protection was entrusted to them by
the individuals.
Locke is an opponent of Hobbes. Hobbes stood for authority whereas Locke stood for liberty.
So the contribution of Locke to the concept of natural law is twofold.
1. That man prior to the natural law living as they are in a state of nature has certain
important rights which at best are recognized by the law of nature.
2. Men have inalienable rights to be governed by a benevolent legislature who should
avoid despotic rule and separate the powers.
Locke prepared the ground for parliamentary democracy emphasizing on inalienable rights of
the men and to the great extent influenced the French and American Revolutions.
Jean Jacques Rousseau- According to him, the law of nature or the natural law is the general
will of people who come together to form an association called state. However, the
inalienable right of individuals may still remain with them.
Each men in giving himself to all, gives himself to nobody and as there is no associate over
whom he does not acquire the same right as he yields other over himself, he gains an
equivalent for everything he loses and an increase of force for the preservation of what he
has.
The general will is the core principle of Rousseau both in terms of his political thought and
the preservation of citizens rights. The sovereign represents the general will of the citizens
who have under a social contract organized themselves as state and the state is the expression
of individual wills collectively expressed and as such the decisions of the state are sovereign
which have to be taken by a majority of individual wills.
Rousseaus contribution has a profound influence on French Revolution as well as
determining the parliamentary supremacy. General will was a precursor to Adult Suffrage.
Immanuel Kant- He was a German Idealist. He is an idealist and he based his theory on pure
reason. He says man is a part of reality and is subject to its laws (sovereigns laws). Though,
it is through will of the people, the sovereign comes into existence, but still the man is not
free. His reason and inner consciousness makes him a free moral agent, so the ultimate aim of

the individual should be a life of free will and it is when free will is exercised according to
reason and uncontaminated by emotions, that free willing individuals can live together.
People are morally free when they are able to obey or disobey a moral law but since morality
and freedom are same, an individual can be forced to obey the law without forcing the
freedom provided by law in conformity with morality.
He talks about proclamation of autonomy of reason and will. Human reason is law creating
and constitutes moral law. Freedom in law means freedom from arbitrary subjection to
another. Law is the complex totality of conditions in which maximum freedom is possible for
all.
The sole function of the state is to ensure observance of the law. The individual should not
allow himself to be made a means to an end as he is an end in himself, if need be he should
retire from society if his free will would involve him in wrong doing.
Society unregulated by rights, results in violence. Men have an obligation to enter into
society and avoid doing wrong to others. Such a society has to be regulated by compulsory
laws. Those laws are derived by pure reason of the idea of social union; men will be able to
live in peace.
What is needed is a rule of law and not of man. Kants ideal of laws does not bear any
relation to any actual system of law; it is purely an ideal to serve as a standard of comparison
and not as a criterion for the validity of law. Kant considered political power as conditioned
by the need of rendering each mans right effective while limiting it at the same time through
the legal rights of others. Only the collective universal will armed with absolute power can
give security to all. This transfer of power is based on social contract which is not a historical
fact but it is an idea of reason. The Social Contract is so sacred that there is an absolute duty
to obey the existing legislative power. Rebellion is not justified. Therefore, he considers a
republican and representative state is an ideal state. Only the united will of all can institute
legislation and law is just only when it is at least possible when the whole population should
agree to it. He was in favour of separation of power and was opposed to privileges of birth
and established church and autonomy of corporations. He was in favour of free speech. The
function of the state was essentially that of the protector and guardian of that law.
Joham Gottefichte- Theory of Kant- A practical Approach- Classification of Rights-

Social ContractProperty Contract


Protection Contract
Through property, a person becomes a citizen as per the social contract exhibits. Everyone
must have property so that he is not excluded from legal community. The right to punish was
a part of the social contract and was based on retaliation. Fichte saw property as an emanation
of personality. Fichte appears to have understood the requirements of refined natural law of
the succeeding generations as his legal philosophy explains the various rights which state
should protect.
1. Right to live
2. Right to work
The state has a further duty
1. The necessities of life are produced in sufficient quantities proportionate to the
number of citizens.
2. Everyone should be able to satisfy his needs through work.
Individual and State Relationship
1. The individual fulfilling his civic duties becomes a member of the state.
2. The law limits and assumes the rights of the individuals.
3. The individual is free and only responsible to himself but subject to fulfilling his civic
duties.
He also recognized social responsibility of the individual while exercising his freedom. He
believed in natural destiny and was in consensus with Kant.

George Wilham Fredreich Hegel- 1770-1831- Theoretical explanation of the universe- He


developed a theory called ideal dialecticsism. It is a way of investigating the truth of opinions
by discussion and logical argument. Later on, Karl Marx converted this into material
dialectism and poltical idea and statecraft. The basic tenets of Hegel philosophy is neokantian natural law. His system is a monistic one. The idea unfolds from the simple to the

complex by means of the dialectical process and any face of reality is based on reason. The
history of civilization does not depend on unfolding of events but there is an objective spirit
as standard bearer of reason unfolding human civilization. What is reasonable is real and
what is real is reasonable. The moving spirit of civilization is the idea. This idea is
responsible for the movement of the civilization both in terms of leadership thrown up in the
movement of the civilization. All the social systems are on a move from one stage to another.
The first stage of conceiving the idea is thesis which is from the standpoint of the ones
observation, a given concept of the civilization from that standpoint. However, by the time
thesis is conceived, the opposite of idea of thesis is hidden within the idea. The principle or
doctrine which is taken at the first starting point would be thesis but these rules and principles
have a counter point inbuilt in them which when reduced to tangible categories may become
anti-thesis of them. However, the antithesis of idea of the doctrines, rules would before
becoming concrete and metamorphosed would enter into synthesis, new phase and the
synthesis would again become thesis as the content and structure of these rules, principles
and doctrines. This is an endless circle and is true human history.
The history of civilization does not depend upon unfolding of events but there is an objective
spirit. The nations are on a move to achieve this freedom. Once the nations achieves these
ideals, the young nations would strive to do the same. Law essentially is made to understand
the idea of freedom from its external manifestations. He used the metaphor of natural law that
man is free, passions, irrational desires and material interest which have to be subordinated to
his rational and spiritual self. The mandate of natural is that man should lead a life governed
by reason and respect the reason of others.
Property- Private Property. State has the ultimate control of the property.
Contract- Contract is the capacity of the individual to acquire or dispose of property.
Wrong- It is an act or disposition which negates the will of others.
Revival of Natural Law- 20th Century- The law making was put into searching questions as
the legal administration put up peculiar and trivial problems. The search for solutions to these
problems lead to revival of natural law and led to idealization of positive law and the theorists
of the 20th century took recourse to early natural law theories bordering between Aquinas and
18th century philosophers like Grotius, Kant, Hegel and Others.

The revival of natural law in 20th century is represented by Georgio Del Lucio, Duguit, John
Ross, Lon L. Fuller etc.
Georgio Del Vecchio- He talked about Ideals of Law as compared to positive law. Ideals of
law should correspond to natural law is higher law and provides criteria for evaluating
positive law and to measure its elements of justice. It is the basic principle which guides legal
and human evolution. The respect for human autonomy should be there.
His theory takes experience from Kantian metaphor which is the basis of justice. Earlier
conceptions of natural law such as consent, liberty, representative democracy and conscience
which have to a great extent recognized in positive law will further impact the evolution of
positive law. The law faces a struggle and this struggle leads again to evolution of law.
Though, he basis his thesis on Kant but he differs in one aspect. The state is not only
concerned with making of law but also with enforcement of law and should concern with
social, political and economic well-being of social life of human beings.
The contribution of Vecchio in reviving of natural law is that search of ideals for reforming
positive law lies in natural law as natural law is part of the human nature.
Joseph Kohler- 1849-1919- Kohler based his thesis on Hegel. He approved Hegels hesis of
civilization as unfolding of ideas and he describes law as a phenomenon of civilization. He
seeks to find the principle for critique of law based on anthropology of history and history of
civilization. Kohler holds law is a product of civilization of a people in the past and a product
of an attempt to adjust this result of the past to the civilization of the present. Kohler was
essentially concerned with the idea of individual liberty, individual and social interest and the
unfolding of such ideas in the totality of legal and political phenomenon.
Kohlers most important contribution is his jural postulates. These postulates are certain
principles of rights, logically derived or assumed by or expressed by a given civilization.
These postulates are useful instruments both by way of critique and ideals which law makers
should conform and these postulates may be used and applied by the jurist to develop the
legal system. Kohlers contribution is that his theory is in pursuit of seeking ideas of right and
justice through postulates. This would mould the law and determine its contents.
Rudolf Stammler- 1856-1938- His theories were based on Kants Theory of Pure ReasonHuman beings are by their cognitive perception of phenomenon capable of cognizing certain

a priori categories and forms of understanding which they have not obtained through the
observation of reality. In other words, Cognitive Perception may be different than the law
which is observed at the human life.
Concept of Law is a universal phenomenon of all legal systems notwithstanding the content
of law of a given legal system. The idea of law is the task set forth for the legal system to
pursue the concept of law. Law is an inviolable and autocratic collective will which he found
from all the forms and rules of the legal system which he observed.
The universally valid concept of law is that it arises out of volition because law is a mode of
ordering human conduct according to relations of means and purposes. Law is a product of
sovereignty and different from arbitrariness of an individual and law is an inviolable volition.
The concept of law is somewhere akin to positive law but is different from historical
approach to law. The idea of law is realization of justice and he says that justice postulates
harmonizing of individual purposes or interests with that of the society. Such a harmony can
only be brought by adjusting individual desire to the aims of the community. So, according to
Stammler:
1. Just law is the highest universal point in every study of social life of men.
2. It is only thing that makes it possible to conceive by means of an absolute valid
method of social existence as unitary whole.
3. It shows the way to a union with constitutionally permissible yet these restrictions
should not isolate the individual to a state of non-entity.
There are two principles of participation:
1. No person lawfully obligated must not be arbitrarily excluded from the community.
2. Every lawful power of decision may exclude the person affected by it from the
community only to the extent that the person may remain a fellow creature.
His natural law is a variable content. Stammler has put the law on its own feat using the
Kantian Theoretical premises and revive legal idealism. So, Stammlers revival in natural law
had a pragmatic influence on modern legal theories and jurisprudence.
Cognitive- Acquisition of knowledge through thought or perception.

Leon Duguit- 1829-1928- Social Solidarity Theory- He laid emphasis on duties as he


believed that positive law imposes duties both on the government and the governed. His
rejection of natural law theory was based on his zeal for recognizing social interdependence
through similarity of needs and diversity of functions.
This led to the principle of right and law binding on all members of the society to act so as to
further social interdependence and not to do anything that impairs it. There are duties but no
rights. He discarded the elements of sovereignty using the analogies of duty and restricted it
to perform social functions. The most important social function was organization and
maintenance of public services. The government officials are under a duty to guarantee a
continuous and uninterrupted operation of the public services.
Duguits most important contribution in terms of natural law is social solidarity by which he
meant solidarity is the social cohesive fact of existence of every social group which cannot be
denied. It leads to rule of law and rule of law demands that everyone should contribute to
social cohesion or solidarity. Social solidarity demands that the government and governed
should not do anything which is incompatible to social solidarity. No statute or administrative
order is valid if it is not in conformity with social solidarity.
The contribution of Duguit is although titled to Sociological Jurisprudence yet his
idealization of modern industrial country has lots of instructions in his theory. He is a
metaphysical jurist having sociological undertakings.
NOTES MISSING
John Finnis- Natural Law and Natural Rights- He considered as an authoritative modern
version of natural law. He aims at exploring the requirements of practical reasonableness in
relation to the good of human beings who live in a community are confronted with the
problems of justice and rights of authority of law. The principle of jurisprudential concern of
theory of natural law is to identify principles and limits of rule of law and to trace the ways in
which sound laws in all its positivity and mutuality are to be derived from unchanging
principles, the principles that have their force from reasonableness not from any originitive
acts or circumstances.
His thesis advocates that there are basic virtues which are sine qua non for any community of
people who are governed by a system of law. These basic virtues are expressed are in such a
manner that in the ultimate analysis, the basic human goods are being sub stratum of human

life. The ruler has to abide by some moral principle in enacting the law and the enforcers of
the law are also under an obligation to abide by the moral principle. The maintenance of
human rights is a fundamental component of common good.
Finnis integrates natural law with analytical jurisprudence. The contribution of Finnis is his
blending of positive law with natural law. The human rights are fundamental components of
common good.
Lon. L. Fuller- 1902-1978- He represents the most contemporary exponent of natural law
reflected in his writings which we find from his works. He says that all theories of natural law
in the times and context within which they were written have a common thread reflected in
common aim of discovering principles of social order which enables a man to attain a
satisfactory life in common.
All theories were moulded to discover a process of moral principles and by a collaborative
articulation of share purposes by which men come to understand that their own ends and to
discern more clearly the means of achieving them.
Natural law are procedural in character and are concerned with ways in which a system of
rules of governing the human conduct must be constructed and administered if it is to be
efficacious and at the same time remain what it purports to be. He was much concerned with
the structural and technical character of law and legal system.
The contribution of Fuller in recognizing natural in procedural aspects of law by itself is
novel.
Margaret Mead- Anthropological considerations of natural law- It is a universal fact
established from the studies of primitive culture and certain universal rules were always
recognized as sacred and ethical without which human evolution would not have happened.
She defines natural law as those rules of behaviour which have developed from a species, it
means the specific capacity to ethicize as a feature of those examples of such ethicalizing that
appear in all known societies.
The recognition of natural rights to life property and reproduction is found in all societies
with variation in interpretation.

H.L.A. Hart- He has drawn a connection between positive law and natural law. He admits
that there is a pore of indisputable truth in the doctrine of natural law. There are certain rules
of conduct which any social organization must contain if it has to be viable. Such rules
constitute a common element in the law and conventional morality of all societies. Therefore,
such universally recognized principles of conduct which have a basis concerning human
being, their natural environment and aims is the minimum content of natural law.
He lists down five truths as minimum content of natural law:
1. Human Vulnerability- As men are vulnerable, the common requirement of law and
morality demands that the use of force or violence in killing and bodily harm should
be avoided to the maximum.
2. Approximity- As men differ from each other in physical strength, agility and
intellectual capacity, law and morals demand that no individual should be subjected to
dominate by others than what can be tolerated under circumstances. Law and morals
demand mutual forbearance and compromise among strong and weak.
3. Limited Altruism- Human altruism is limited in range and intermittent and the
tendencies to aggression are frequent enough to be fatal to social life if not controlled.
4. Limited Resources- As resources are limited and scarce, law and morals demand a fair
approximation of the resources needed for the survival of human beings.
5. Limited understanding and strength of will- As all men are tempted to prefer their
own interest, it is important to understand the advantages of mutual forbearance and
the number and strength of those who would co-operate voluntarily would normally
be greater than those who combine together to achieve their interest.
Hart does not claim any connection between law and morality and is conscious of the fact
that human society has seen a record of operation, discrimination and intolerance in the name
of security and legal order such as slavery, religious prosecution. He refuses the formal
connection between law and morals. Minimum content of natural law is answer to those
positivists who think that some natural law content is possible to derive from positive law.
His contribution is remarkable as he draws a relationship between positive law, morality and
natural law.

Philosophers School of Law


It is the common ground of moral and legal philosophy of ethics and jurisprudence. It rivets
its attention on the purpose of law and its justification (laws justification) for coercive
regulation of human conduct by means of legal rules.
Kant has shown the chief purpose of law to be provision of field with free activity by an
individual without interference by his fellow men. Law is the means by which individual will
is harmonized with the general will of the community.
It concerns chiefly with the relation of law with the certain ideas. It investigates the purpose
of law and measure and manner in which that purpose is fulfilled. These jurists regard law as
neither arbitrary command of the ruler nor the creation of historical necessity.
Hugo Grotius- The law of war and peace- Natural law is the dictate of the right reason which
points out that an act, according as it is or is not in conformity with rational nature has in it a
quality of moral base and moral necessity.
There are fundamental ideas which are common to every legal system.
Immanuel Kant- He gave modern thinking a new basis which no subsequent philosophy
would ignore. In Critique of Pure Reason, he set for himself the task of analysing the world
as it appears to human consciousness. Nature follows necessity but human mind is free
because it can set itself purposes and free will. Compulsion is essential to law and a right is
characterized by the power to compel. The aim of Kant was a universal world state, the
establishment of a republican constitution based on freedom and equality of states was a step
towards league of states to secure peace. Kant was doubtful of the practical possibility of the
state of nations and he saw no possibility of international law without an international
authority superior to the states.
Fichte- Self-consciousness of reasonable being. No reasonable being can think himself
without ascribing free activity to himself. There is moral duty to respect the liberty of others
absolutely; a legal duty to do so is dependent on reciprocity. These must be protected as these
are necessary conditions of personal existence. His social contract is divided into property
contract and protection contract. It is through property that a person becomes a citizen.
The right to be protected by state and the right to work and without the latter, there can be no
duty to recognize others.

Hegel- He was the most influential one. Both the state and law are the product of evolution
and the legal institutions are within the sphere of legal, ethical and political institutions. The
various manifestations of social life including law are the product of evolutionary dynamic
process.
His philosophy stands between the 17th and 18th centuries and the liberalism of 19th century.
His critical philosophy of knowledge has been applied to law by the Neo-Kantian jurists.
Much of his teachings were inspired by Del Viccio. His relation between individual and state
laid the foundation of ascendency of state over individual and directly inspired modern fascist
ideas on the corporative and totalitarian state.
The outlook of these jurists is different but none of them could have elevated the individual
above the state. Basically, if we mix the three philosophies we get their personal opinions and
prejudices. Kants theory has remained the basis for all those conceptions of law and state
which denies that any organic character and definitely cease a paramount object of life in the
development of individual.
Modern German Neo-Hegelian Jurists- Binder and Larenz- Bosenquets view- The real will
of an individual is what he would desire if he were morally and intellectually fully developed.
The state embodies the purifier intellectual and moral conduct of which the average
individual is not capable.
Kohler- He was known as a Hegelian. Law as a standard of conduct which is in consequence
with the inner impulse that urges man towards a reasonable form of life emanates from the
whole and is forced upon the individual. His book is called as Philosophy of law. He
postulates the promotion and vitalizing of culture as the end achieved through the
instrumentality of law. By culture, he means the totality of the achievements of the humanity
and the assumption of the law of nature, a permanent law suitable to all times be not correct
as it involves the notion that the world has already attained the final aim of culture. The
actual fact is that the civilization is changing and progressing and law has to adopt itself
constantly advancing culture. Every culture should have its own postulates of law to be
utilized by the society according to requirements.
There is no eternal law or universal body of institutions suitable for all organizations. He does
not believe in divine law or law of nature. What might be good for one stage of culture may
be bad for another.

Stammler- 1856-1938- Neo-Kantian- The theory of Justice- The need for development of just
law in addition to the investigations of the positive law. The content of a given law can be
tested with reference to the theory of just law.
A law is just if it conforms to the social ideal of bringing a harmony between the purposes of
the individual and society. The social ideal is a community of men willing freely. The social
ideal represents the union of individual purposes. It requires the maintenance of proper
interest of every associate and the maintenance of social co-operation.
The use of universally valid concept of law is partly philosophical and partly practical.
Philosophically, the quest for universal concept of law is a manifestation of doctrine of
human mind to reduce the phenomenon to that unity which only human mind can provide.
Del Viccio- His work displays a profusion of philosophical, historical and juristic learning.
Law is not only formal but has a special meaning and an implicit faculty of valuation. Law is
a phenomenon of nature and collected by history.
Historical School of ThoughtFredrich Karl Von Savigny- Founder of Historical School of Jurisprudence- German
Jurisprudence- On the vocation of our age for legislation and jurisprudence- Written in
1840- He emphasized on the intimate connection of the peoples law.
1. Law was not a self-contained collection of verbal formulas but part of the complex of
peoples experience and character manifest in the common feeling of inner necessity
with which people regard it. In time law reflects peoples general development during
its youth, reach in forms and symbols. Law is a product of internal silently operating
forces.
2. The people do not remain instinctively remain familiar with law but regards law
literally true only for young people whose law remains simple in conception, narrow
in scope but imbibed with peoples spontaneous symbolism language and love for
form. As peoples life become more specialized and artificial, so does law.
3. The kind of law which expresses the real nature of law is customary law as all law is
originally formed in the manner in which in ordinary but not quite correct language,
customary law is said to have been formed. It is first developed by custom and
popular faith and only then by juristic activity. Therefore, law develops by internal
silently operating powers and not by arbitrary will of the law giver.

4. He believes as positives lives in the general consciousness of the people, it is peoples


law and the form in which law lives in the common consciousness of people is not
that of abstract rules but of living institutions of law in their organic connections so
that whenever necessity arises for the rule to be conceived in its logical form, this
must be first formed by a scientific procedure from the total institution.
5. The constant preservation of law is effected by tradition and is conditioned by and
based upon not sudden but gradual change of generations. The independence of the
life of individuals asserted of law appertains to the unchanged continuation of the rule
of law. Secondly, it is the foundation of the gradual formulation of law and in this
connection, it has special importance.
6. Famous Aphorism- The law, that law was rooted in the past of a nation and its sources
were popular faith, custom and common consciousness of the people. Like the
language, the constitution and the manner of the people was determined by the
peculiar character of a nation by its national spirit, Volksgeist.
Henry Maine- Founder of English Historical School of Jurisprudence- He developed
Historical jurisprudence based on following principles:
1. Volksgeist was not complete because it does not indicate the growth of legal system
as a whole and is a barrier to scientific comparison to the discovery of common
principles of co-relations of legal and social system which has to be rectified.
2. There is uniformity and communalities of legal ideas and conceptions which can be
explained uniformly.
3. There are stages of social development common to various people which could be
explained in a theory with different instruments of legal growth.
He was concerned to study the nature and the development of early law both in its historical
context and also as understood by the study of underdeveloped societies in the contemporary
world. He is also concerned with the development and growth of early law of Greece, Rome
and Old Testament and the also the ancient law of India. This entire study has been published
in a book called Ancient Law in 1861.
His comparative study of development of different legal systems led him to draw a
fundamental distinction between static and progressive societies and there legal evolution.
Equity has played a dominant role in the refinement of both Roman and English law and
according to him English common law was generally considered to have originated in equity

jurisdiction. So equity has often been used to modify existing laws as a set of principles
invested with a higher sacredness than those of the original laws. Legislation finally
represents the most direct, comprehensive and systematic method of law making vested in
law making authorities of state.
Maines Theory of Historical Jurisprudence has much more over tunes of Anthropology and
as a matter of fact, the anthropological research of law and legal institutions was triggered
with the publication of his book Ancient Law. His writings prompted the anthropologists to
study the primitive society in terms of their law and legal systems. The concerns of legal
anthropology are exactly same as that of general social scientist coinciding with the sociology
of law. However, the legal anthropologists have gone a little further in searching the models
of dispute settlements in the primitive society both formal and informal. On the whole, the
legal anthropology in 20th century has focused on local understanding of law and legal
practice and institutions.
American Realist School of Jurisprudence- American Realism is not a school of
jurisprudence but it is pedagogy of thought. They are concerned with the study of law as it
works and functions which means investigating the social factors that makes a law on the
hand and the social results on the other. The emphasize more upon what the courts may do
rather than abstract logical deductions from general rules and on the inarticulate ideological
premises underlying a legal system.
John Chipman Gray- 1839-1915- The real relationship of jurisprudence to law depends not
upon what law is treated but how law is created. Gray stresses the fact that the statutes
together with precedents, equity and custom are sources of law but the law itself is what the
persons acting as judicial organs of the state laid down as rules of conduct. To determine,
rights and duties, the judges settle what fact exists and also lay down rules according to
which they deduce legal consequences from facts. Gray emphasizes the role which judges
play in laying down the law because it is the judge who while interpreting the statute, custom
or equity create law rather than discovering the law. The law as expressed in statutes or
customs gets meaning or precision only after the judge expresses his opinion. The judge
depend on the sources of the law such as statute, judicial precedent, opinion of experts,
customs and public policies and principles of morality, the law becomes concrete and positive
only in the pronouncements of the court. Judge made law is the final and authoritative form
of law. He suggests that the judicial pronouncements of law are the true subject matter of

jurisprudence for evaluations. Grays contribution lies in the fact that judicial decisions often
have been responsible for giving not only content but direction to political, social and
economic thought.
The contribution of Gray in formulating the principle that the judges or the courts have the
first and the final say as to what the law is and obviously the role of jurisprudence is to
understand and evaluate the law made by judges is the realist approach to understanding law
and legal institutions.
Justice Oliver Wendell Holmes- American Realist Movement- Scope of Jurisprudence has an
enhanced effect on American Realist thinking. The concept of law traditionally is a collection
of rules from which deductions can be made. Holmes observed that life of the law has not
been logic, it has been experience. The law embodies the story of a nations development
through many centuries and it cannot be dealt with as if it contained only the axioms and
corollaries of mathematics. Law must be strictly distinguished from morals.
Holmes definition of law and the scope of jurisprudence led to future developments in
constructing American Realism which focused attention on empirical factors underlying legal
system.
Jerome Frank- 1889-1957- Law and Modern MindRule Sceptics believe that the lawyer should be able to predict to his clients, the decisions in
most law suits not yet commenced but legal rules enunciated in courts opinions sometimes
called paper rules, too often proved unreliable as guides in the prediction of decisions.
The Fact Sceptics also engage in rule scepticism and tear behind the paper rules. The Fact
Sceptics are primarily interested in trial courts, yet they too cannot predict future decisions.
The conventional description how the courts render decision from the application of legal
rules does not describe the picture of judicial law making correctly and fairly, especially
when testimony of witnesses are to be recorded in the trial where the chances making of
mistakes on part of the witnesses as to the correctness of what they saw or heard in their
recollection of what they observe may be at variance with the reality.
Similarly, Trial judges and jurists, also human, may have prejudices of an unconscious
unknown even to themselves for or against some judges, lawyers, witnesses. These prejudices
can even be racial, religious, economic, and political or gender biased. He laid emphasis on

understanding the working of the lower courts as he believed points of law emerge from fact
situation of the lowest situation of the court hierarchy. The textbook approach of law is
misleading as the working of the court system is uncertain and misty.
Instead of taking precedence, emphasis should be there in training in fact-finding, evaluation
of prejudices, psychology of witnesses both for the trial judges and for the prospective jurors
to give effect to the empirical analysis of law and legal institutions.
Karl Llewellyn- 1893-1962- he recognized the functional approach to law and delineated
certain positions as common to American Realist. He summarized it.
1. The conception of law is in a constant state of flux.
2. The conception of law is a means to social ends and not an end in itself so that any
part needs to be constantly examined for its purposes and for its effect and to be
judged in the light of both and of their relation to each other.
3. The conception of society is in flux and in flux it is typically faster than the law so
that probability is always given that any portion of law needs re-examination to
determine how far it fits the society it purports to serve.
4. For the purpose of these enquiries, the jurist should look at what courts and officials
and citizens without reference to what they ought to do. There should be a temporarily
divorce of is and ought for the purposes of study.
5. Juristic enquiry must regard with suspicion the assumptions that legal rules as they are
formally enunciated or inscribed in books represent what courts and people are
actually doing.
6. Jurist must regard with equal suspicion that rules of law formally enunciated actually
do produce the decisions which purport to be based on them.
7. There must be recognition of the necessity of grouping cases in narrower categories as
the realists tries to indicate explicitly which criterion is being applied in any particular
instance.
8. Jurists must insist on evaluation of any part of law in terms of its effects and
insistence on the worthiness of crime to find these effects.
9. Jurist must insist on sustained and programmatic attacks on the problems of law along
any of these lines.
My philosophy of law- He stresses that law is a going and necessary institution in the society.
Law as a going institution must be tested by life and achieve results. The legal phenomenon

can be booked for the purposes of law jobs. He goes on for advocacy, counselling, judging,
law making, mediation, conciliation, organization, policing etc. All these areas need a fresh
look. While commenting on common law traditions list three major characteristics of judicial
precedents as doing law jobs.
The reputations of the opinion writing judge, the principle of broad generalization to bring
order and sense in the precedent, and policy of prospective consequence of the rule under
consideration are considerations which must be taken into account before evaluating a
judicial decision.
The facts of law are facts of life and the precedence of courts whether lower or higher unit
not in the sense what they have decided but what was bothering and helping the court.
Scandinavian Realist School
The approach which they have developed over the centuries is peculiar and has very little
parallel with other countries. The law is Judge made law and little codification happens in
these countries.
Law can be explained only in terms of observable facts and the study of such facts which is
the science of law. Therefore, law is a true science with any other concern with facts and
events in the realm of casualty.
Law is nothing but the very life of mankind in organized groups and the conditions which
make possible peaceful co-existence of mass of individuals and social groups and the cooperation for the other ends than mere existence and propagation.
Axel Hagerstrom- 1868-1939-He is considered to be the spiritual father of the Scandinavian
Realists. He mastered the Roman Law. He was essentially a jurist of philosophical times.
Legal Science are important tools in reorganization of society in just the same way as natural
sciences depict the natural phenomenon.
The rights, duties, property, will of the state were all word play. Legal Philosophy is a
sociological dispensation based on Historical and Psychological Analysis. The idea of rights
and duties expressed in the imperative form is really about something which the legislator
had in mind too be actualized by means of the law.

The claims and assertions of rights and duties is basically what in fact a person claiming a
right can obtain from the party who is under an obligation through the process of law. Judges
while applying the legal odds, it shall be so is nearly a phrase which does not express any
kind of idea but serves as a psychological means of compulsion in a certain case.
It is only from the ideas that logical content can be drawn. On the other hand the ideal content
of law is arrived at for psychological associative reasons.
The legal enactments concerning rights and duties are powers which fall outside the physical
world. Even if, the legislator also understands why rights and duties are certain social state of
affairs which he aims at realizing, yet the idea of rights and duties are supernatural powers
and bonds present and active throughout. The essence of Hagerstorms thesis is the
extrapolation of the idea of rights and duties as they are odd propositions but there content is
something of supernatural power with regard to things and persons.
The second aspect of his thesis is that rights and duties have a psychological explanation
found in the feelings of strength and power associated with the conviction of possessing a
right. Therefore, one fights better if one believes that one has right on ones side.
Karl Olivercrona- 1897- Rules of law are independent imperatives that are propositions in
imperative form but not issuing like commands from particular persons.
Law as fact- Law is a link in the chain of cause and effect. The binding force of law is a
reality merely as an idea in human minds. The content of a rule of law looking at both
substantive and procedural aspects may be defined as an idea of imaginary action by people,
for e.g. judges in imaginary situations. The application of law consists in taking these
imaginary actions as models for actual conduct when the corresponding situations arise in
real life.
Rule of Law is not command in the proper sense. Its innermost meaning is to range law
among the facts of actual world and the commands if there are any are natural facts. State as
an organization cannot issue commands as it is the individuals who may issue commands.
The rules of law are independent imperatives as they are propositions which function
independently of any person who commands. Law chiefly consists of rules about force. The
rules of civil and criminal are at one and at the same time, the rules for private citizens as
well as the use of force by the officials.

He asserts that the belief that moral ideas are the primary factors that the law is inspired by
them and justice is represented by rules of law is incorrect as they are not based on facts
rather are superstitions.
Legal Language and Reality- He held that the purpose of all legal enactments,
pronouncements, contracts and other legal acts is to influence mans behaviour and direct
them in certain ways.
The contribution of Olivercrona is multifold.
1. By Stressing that Law as fact is something which has to be observed and the legal
conception such as command-duty, legal rights-duties are fantasies of mind.
2. The Psychological Pressures are the real reason for law.
3. Rules of Law are imperatives distinct from commands.
A.B. Lundstedt- 1882-1995- Legal Thinking Revisited- He contends that natural justice is an
external factor for balancing the interests of the parties based on evaluation. The entire
substratum of legal ideology, the so called material law and its basis, natural justice lacks the
character of reality. Even legal rights, legal obligations, legal relationships and the like lack
such a character. The common sense of justice is far from being able to support the material
law, on the contrary, receives its entire bearing through the maintenance of law i.e. legal
machinery which takes the common sense of justice into its service and directs it in groves
and furrows advantageous to society and its economy and consequently, legal ideology does
not and cannot perceive those realities appertaining to legal machinery but places them right
on their head. Legal conceptions such as wrongfulness, guilt and the like are operative only in
the subjective conscience and could not have objective meaning.
To contend that the defendant has violated a duty was a judgment of value and thus, an
expression of feeling. The only realistic significance that could be assigned to such terms was
in connection with the coercive legal machinery of the state called into action for the purpose
of enforcing a contract or punishing a wrong-doer.
The idea of law as a means of achieving justice is chimerical. It is not founded on justice but
on social needs and pressures. He promoted the method of social welfare which is a guiding
motive for legal activities.

Rylands v. Fletcher- The court decided what the rules as to damages should be for cases in
which something dangerous had escaped from land. The fact that the court reasoned in terms
of obligation on the property owner was illusionary, superfluous and because it mystifies,
also harmful.
Legal activities are indispensable for the existence of society. Social Welfare as a guiding
principle of legal activities are decent food, clothing, shelter, all conceivable material
comforts as well as the protection of spiritual interests.
The contribution of Lundstedt in developing a value neutral realist theory is remarkable as it
stresses that concepts such as right and duty, liability etc. are tools of thought used in
deciding the cases.
Alf Ross- 1899- The Concept of valid law on the analogy of a game of chess being played by
two players and an onlooker who does not know the rules of the game. Human social life
acquires the character of community life from the very fact that a large number of individual
actions are relevant and have significance on set of common conceptions of rules. They
constitute a significant whole bearing same relation to one another as move and counter
move.
A norm is a directive which stands in relation of correspondence to social facts. The norm is
said to be the directive in the sense of a meaning contained is a norm only if it corresponds to
certain social facts. The fundamental condition for an existence of a norm must be that it is
followed by in the majority of cases; the pattern of behaviour presented in the directive is
followed by members of the society.
On Law and Justice- Legal Sanction- They are applied as per the decisions of the courts.
Therefore, the existence of a legal norm would have to be derived from an observed
regularity in the courts decision. A norm may derive from a past decision and it follows from
this view that all norms include those of legislation, should be viewed as directives to courts.
Legal rules are rules about the exercise of force and as such are directed to officials.
Directives and Norms- He contends that from a psychological point of view, there is another
set of norms directed to individual which are followed by them and felt to be binding. The
test of validity of law lies in the predictability of decisions. So valid law means the abstract
set of normative ideas which serves as a scheme of interpretation for the phenomenon of law
in action which again means that these norms are effectively followed.

His contribution is multi-dimensional.


1. He is concerned to divest legal validity from all meta-physical necessities.
2. His thrust is that the legal norms are valid if courts would enforce and predict them.
Norms are essentially addressed to courts rather than to private individuals
3. The natural law philosophy in recognizing the relationship between law and morals is
fallacious.
Karl marx- 1818-1883- Fredreich Engels- Both of them were the founders of the greatest
social and political movement which began in 19th century and flourished in 20th century as a
political philosophy in Eastern Europe which is the erstwhile Soviet Union and influenced all
the decolonized colonies of the world and is practised in Chinas Political Philosophy.
Marxs view of state and law was co-terminus with the understanding of society and social
process. Marxs originality of thought lies in the fact that he synthesized almost entire
philosophical thought from Aristotle to Hegel.
The sociological understanding of the society led Marx to pronounce that the desired system
would be a Communist Society based on rational planning, co-operative production and
equality of distribution and most importantly, liberated from all forms of political and
bureaucratic hierarchy.
Marx condemned and rejected the state and money as Bourgeois concept and the proletariat
has a historical mission of emancipating the society as a whole. Law seems to be nothing than
a function of economy without any independent existence.
His classification of society into various classes1. The capitalists
2. The Wage Labourers
3. The land owners
This conflict will eventually have to be resolved. The resolution of the conflict will take the
shape of a Proletarian revolution. Once this revolution takes place, it will seize the power of
the state and transform the means of production in the first instance into the state property.
The earlier state of exploitation and representative of class antagonism will be replaced by a
state truly representative of society as a whole which means taking possession of means of
production in the name of society is at the same time its last independent act of a state. The

interference of the state in social relation becomes superfluous in ones sphere after another
and then ceases off itself. The government of persons is replaced by administration of things
and directs the process of production. However, the Proletarian revolution in order to reach
the stage of Communism shall have to pass through various stages.
1. Establishment of a Proletarian Dictatorship which is essential to convert the capitalist
modes of production to the Proletariat mode of production.
2. Stage of Nationalization of the property and all the capital modes of production.
3. Stage of Socialism as the property is in common ownership, the society at large shall
be responsible for the production and distribution of goods.
As the production of goods in common ownership, the distribution of commodities will have
to follow from each according to his ability to each according to his needs.
Inequalities will remain and hence, the need to distribute the goods is inevitable. The ultimate
stage is that of Communism and this state he imagined in his work called Critique of Gotha
Program-1875. Communist society will have to develop and emerge from capitalist society
and in respect will carry with it some marks of capitalist society. Accordingly, the individual
producer recedes back from the society what he gave to it by way of labour. If a labourer has
worked for fixed hours of a day, he is entitled to the amount of wages for which he has
worked. He receives a certificate from society that he has furnished such and such amount of
labour and with this certificate he draws from the social stock of means of consumption as
much as costs same amount of labour.
Higher Communist State- Concept of power and labour gets vanished. After production force
increases, then there will be all round development of individual. This we get from
Communist Manifesto. In higher form of communist state after enslaving subordination of
the individual to the division of labour and anti-thesis between mental and physical labour
has vanished after labour has become not only a means of life but lifes prime want, after the
productive forces have also increased with the all-round development of individual. And all
the springs of the co-operative wealth flows more abundantly.
The concept of state is a super structure in a capitalist state to organize and uphold class
oppression. The bureaucracy and the executive in a state are for the managing common class
and struggle waged by the society against each other. Law is not based on will but once the
bourgeois state is overthrown by a proletariat, the proletariat state comes into existence. This

state is representative of social will of all the classes. The nexus between safeguarding the
private property by a capitalist state is replaced by a proletariat state which has nationalized
all the private property. However, state and statecraft remains important and integral in the
proletarian society.
E. Pashukanis- 1891-1937- he tried to remove the gloss on law and Marxism as experimented
by the Marxist state. He believed that proletariat law practised in erstwhile Soviet Union
needs alternative general concepts to reinforce Marxist theory of law. Power is collective will
as the rule of law is realized in the bourgeois society to the extent that this society represents
a market.
Karl Renner- The institutions of private law and their social functions- It utilized the Marxist
theory of sociology to develop a theory of law. Socialists and Marxists have failed to
understand that new society has always pre-formed in the womb of the old and that is equally
true for law. The process of change from one given order to another is automatic.
Renner confesses that the concept of property in terms of Marx has not remained the same
but the property whether in socialism and capitalism has not remained an instrument of
exploitation rather the natural forces of change have put property into various restrictions be
it tenants, employees or consumers. However, the power of property remains whatsoever the
political character of the state may be.

Portion for End TermModule I


1. Law as a dictate of Reason
2. Purpose and Function of Law
3. The purpose of Legal Theory
4. The nature and value of Jurisprudence
Module II- Complete Module
Module III- The sources of law- Complete Module
Module IV1. Legal Rights
2. Ownership
3. Possession
4. Persons
Module V1. American Realist School of Jurisprudence
2. The Scandinavian Realist School
3. Marxist Theory of State and Law
4. Natural Law- Hugo Grotius, Immanuel Kant, Hegel, Del Viccio