JURISPRUDENCE NOTES

RONALD DWORKIN'S INTERPRETIVISM

One of Ronald Dworkins most distinctive claims in legal philosophy is that LAW is an
interpretative concept, a special kind of concept whose correct application depends neither on
fixed criteria nor on an instance-identifying decision procedure but rather on the normative or
evaluative facts that best justify the total set of practices in which that concept is used.

[L]aw is an interpretive concept, Dworkin declares, and therefore any jurisprudence worth
having must be built on some view of what interpretation is. More than two decades after
Harts The Concept of Law was first published,

Ronald Dworkin published his Laws Empire, his most systematic work of jurisprudence.
Here Dworkin discusses his unique and fascinating conception of law, which has been called
law as integrity, and law as rule and principle. Dworkins theory is decidedly a natural
law theory, because it argues that legal principles are moral principles of a sort. He sees law
as an irreducibly moral enterprise; he claims that all interpretation is necessarily connected to
and dependent upon morality and moral principles. The first sentence of Laws Empire reads,
It matters how judges decide cases

C.L :- Riggs v Palmer, 1882. A young man called Elmer murdered his grandfather in 1882,
knowing that once his grandfather died he stood to inherit a large part of the dead mans
estate. Moreover, he suspected that his grandfather, who had recently remarried, would
change his will to include his wife and thereby leave Elmer nothing. Unfortunately for him,
his crime was discovered, and Elmer was convicted and sentenced to years in prison. Goneril
and Regan (Wife and Children of grandfather) sued the administrator of the will, claiming
that Elmer should not inherit the money, because they claimed that he had no legal right to it.
The statute of wills, under which the creation and administration of wills is subject, specified
nothing about this instance, and therefore Elmers lawyer argued that he should inherit. None
of the judges denied that, if the statute was read a contextually, the statute of wills plainly
gave the inheritance to Elmer. They disagreed, however, on what the law actually was in the
given instance and how the pertinent statute should be read. The dissenting opinion, written
by Judge Gray, argued for the acontextual analysis of the statute. He argued that the statute
should be read with no given regard to the context or the original intention of the statute of
wills. This entailed that the statute should be read without any exception given for murderers
of the deceased; he argued that as a matter of law, Elmer should receive the inheritance. In an
acontextual analysis, the black letter of the law should be upheld and there should be no
circumstantial basis for denying this. Thus what the statute actually said (and nothing more)
should be followed in this case. The majority opinion, written by Judge Earl, drew upon the
statute authors intentions instead. The courts reasoning for this opinion involved what it
called general principles of law:judges should construct a statute so as to make it conform
as closely as possible to principles of justice assumed elsewhere in the law. The court thus
decided for the plaintiffs, Goneril and Regan.

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In Riggs v Palmer, Elmer murdered his grandfather in order to inherit his will. Had the court
taken the positivist view, that all laws are valid by the formal test (as per Harts thesis), the
court would most probably decide in favor of Elmer. But the court did not allow Elmer to
profit from his own wrong. That decision proceeded not on rules but on a principle of law,
Nullus Commodum Capere Potest De Injuria Sua propria, that is, no one can profit from his
own wrong.

On Dworkins view, the court decided the case by citing the principle that no man may
profit from his own wrong as a background standard against which to read the statute of wills
and in this way justified a new interpretation of that statute

3 Stages of Interpretation

1. Pre-interpretation - in which the rules and principles providing the content of the
practice are identified.
2. Interpretation - at which the interpreter settles on some general justification for the
main elements of the practice identified at the preinterpretive stage. 61 This stage
will consist of reasoning for why the practice is worth pursuing, if it turns out to be
so, and it must fit the practice well enough that the interpreter can justify his
interpretation without inventing a new practice altogether.
3. Post- Interpretation or reforming stage, in which the interpreter reforms his or her
ideas as to what the practice requires so as to serve the justification he or she gave in
the interpretive stage.

Dworkin argues that this structure of interpretation is integral to the judicial process, and that
law is an interpretive concept.

he rules and standards that constitute the practice. Then, in the interpretive stage, the
interpreter settles on some general justification for those elements identified at the pre-
interpretive stage. At the post-interpretive stage, participant adjusts his sense of what the
practice really requires so as to better serve the justification he accepts at the interpretive
stage.

Of the three stages, the interpretive stage is the pre-eminent. The proposal must satisfy two
dimensions: (1) it must be consistent with the data identified as constituting the practice at the
pre-interpretive stage; (2) he must choose a justification that he believes shows it in the best
light.

ABOUT CONVENTIONALISM

Conventionalism starts, then, on a positive note: almost everyone understands the concept of
precedent and past judicial decision as being a driving force of established law and future
legal decisions. However, conventionalism orders judges to look at past, established
conventions for their sources of law, and oftentimes judges disagree as to what the law really
requires in that instance. In the Elmer case, for example, the judges did not disagree about
what statutes applied to the case, but about what the statute really said, because they held
different theories of statutory interpretation. The majority opinion of the court decided that it

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was not right for Elmer to inherit according to established principles of justice. It is here,
Dworkin asserts, that judges must interpret past law using moral principles and not just
interpret what the law is from conventions, and there conventionalism falls apart. This soft
form of conventionalism is different from strict conventionalism, since strict
conventionalism asserts that there is no authority for legal decisions beyond uncontroversial
conventional understandings of past legal decisions. There is no room in strict
conventionalism for interpretation at all.

Conventionalism does not take principle into account when deciding cases; instead, it strives
to decide cases based on consistency in strategy. Dworkin makes the claim here, in fact, that
anyone who accepts that stronger consistency in principle is the right thing to do has already
rejected conventionalism.

ABOUT LAW AS INTEGRITY

According to law as integrity, propositions of law are true if they figure in or follow from
the principles of justice, fairness, and procedural due process that provide the best
constructive interpretation of the communitys legal practice,

Law as integrity states that the law must speak with one voice, so judges must assume that the
law is structured on coherent principles about justice, fairness and procedural due process,
and that in all fresh cases which comes before them, judges must enforce these so as to make
each persons situation fair and just by the same standard that is to say, treat everyone
equally.

Law as integrity, on the other hand, claims that people are entitled to consistency in principle
of past political and legal decisions. Law as integrity insists that the law - the rights and
duties that flow from past collective decisions and for that reason licensecoercion -
contains not only the narrow explicit content of these decisions but alsothe scheme of
principles necessary to justify them.

Law as integrity, furthermore, claims that the principles of justice, fairness, and procedural
due process have a definite place in judges decisions, and that a consistency in these
principles is necessary to discern what the law is. It strives to make the law the best it can be
by asserting that present practice [the law] can be organized by and justified in principles
sufficiently attractive to provide an honorable future"..

Law as integrity provides a consistency in principle which requires that various standards
governing the states use of coercion against the citizen be consistent in order to have a single
vision of justice.

Law as integrity is at best a conception for hard cases. Law as integrity explains and justifies
easy cases as well as hard cases and it also shows why they are easy. So easy cases are, for
law of integrity, only special cases of hard cases, and, to Dworkin, we need not ask question
when we already know the answer.

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The process of adjudication inherent in the theory of law as integrity yields right answer to
question of law. For Dworkin, in most hard cases there are right answers to be hunted by
reason and imagination.

As a consequence of this conception of law, lawyers are invited to search for an answer in
legal materials using reasons and imagination to determine the best way to interpret legal
data. It is therefore possible for lawyers to confront fresh and challenging issues as a matter
of principle, and this is what law as integrity demands of him.

CONCEPT OF CHAIN NOVEL

Dworkin uses the concept of a chain novel to illustrate these ideas: many authors write the
chain novel, and each writes his or her chapter constrained by the chapters he or she is
handed, in accordance with the general outlines of plot, character development, and genuine
aesthetic and literary merit. Dworkin argues that this manner of adjudication is not only
morally best, but most accurately reflects the nature of the accepted legal practice. The best
interpretation of the legal practice should reflect the right answer to the question, What does
the law require in this case?

His response is that law as integrity gives us the best answer (through past legal decisions and
moral principles), far better than conventionalism or pragmatism. The author in this situation
would be interpreting the law and applying the decision that best fits in with the existing body
of law, rather than inventing law, as would take place in both conventionalism and
pragmatism if pushed to their extremes.

Dworkin asserts that pragmatist judges invent law constantly, and decide what the law is
based on the outcome for the community as a whole. A judge operating under law as integrity,
by contrast, takes into account the existing legal practice and attempts to interpret (not invent)
the law to make a decision based on the most attractive moral principle, in order to determine
what the rights and duties of the parties were and are in that case.

DWORKIN AND HART

According to law as integrity, propositions of law are true if they figure in or follow from
the principles of justice, fairness, and procedural due process that provide the best
constructive interpretation of the communitys legal practice, it is clear that law as integrity
is a unique conception of law, and is certainly different from Harts law as primary and
secondary rules.

In Dworkins The Model of Rules, he sets out his distinction between legal rules and legal
principles. Legal rules exist and are a major part of both Dworkin and Harts legal
conceptions. A rule would be something like, No cars may park in this designated area,
while a principle would be, People have a moral obligation to obey traffic and street
ordinances.

A common law judge operating under law as integrity pays attention to history in that he or
she examines the history of the legal practice as expressed by the community personified, and

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then decides a case in the way that best justifies past judicial decisions in terms of principles
of justice.

Dworkin's dissatisfaction with Hart's positivism provides the setting for the development of
his rights thesis. Dworkin's claim that legal positivism is false provides major support for his
rights thesis. The shortcomings Dworkin finds in positivism inform his attempt to develop an
alternative theory that successfully avoids those defects.

Dworkin selects as his target H.L.A. Hart's important version of legal positivism in The
Concept ofLaw.' Dworkin claims that positivism is committed to four central claims:'

(1) Model of Rules: A legal system is a set of rules.

(2) Rule of Recognition and the Separation of Law and Morals:Valid legal rules are
distinguished from spurious legal rules and from moral rules and etiquette by a master rule,
the rule of recognition.' The rule of recognition sets out specific noncontentful criteria for
legality. Dworkin calls these criteria tests of "pedigree or the manner in which they were
adopted or developed.

(3) Discretion: The set of valid legal rules is all there is to "the law." If a case is not clearly
covered by rules, whether due to vagueness, conflicting rules, or a gap, the case is not
covered by "the law."

The judge must exercise his discretion, creating new law and applying it retroactively to the
case at hand.

(4) Legal Obligation: Citizens have obligations and duties only when their cases are covered
by valid rules. In hard cases, judges exercise discretion because there is no preexisting right
to enforce.

Dworkin's objections to positivism are motivated by the need to provide a principled

justification for the state's use of coercion and force in enforcing judgments.

RIGHT ANSWER THESIS

If all judges decide according to differing moral principles, will not almost every decision
made be different from one another? Each judge could decide on a different moral basis, and
this would result in conflicting legal decisions and practices. Even if these decisions are
somehow not drastically different, how can they be said to be properly justified, or right in
the moral or correct sense?

In Laws Empire and also in his Objectivity and Truth: Youd Better Believe It, Dworkin
argues that there is a right answer in virtually every case. This is so, according to his theory,
because an ideal judge (Hercules), given enough time, can potentially come to the objectively
right conclusion.

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C.L :- SNAIL DARTER CASE 1978

In 1973, in the United States there was a national climate of great concern relating to
conservation. In that same year the Endangered Species Act (hereafter ESA) was passed by
Congress. The ESA authorises the Secretary of the Interior to denote species that would be
endangered by the destruction of some habitat critical to their survival. Once this designation
has occurred, Section 7 of the ESA.

An opposition group of conservationists were against the Tellico Dam and Reservoir
construction projects of the Tennessee Valley Authority (hereafter TVA) not because of any
threat to species, but because these projects were altering the geography of the area,135 with
narrow ugly ditches being created from streams to produce a perceived unneeded increase in
hydroelectric power. It was discovered the Tellico Dam, almost finished and costing over one
hundred million dollars, would be likely to destroy the only habitat of the snail darter, a
three-inch fish of no particular beauty or biological interest or general ecological
importance.136 The Secretary was then persuaded to designate as endangered the snail
darter, and the conservationists then brought proceedings to enjoin the dam. he Supreme
Court ordered the dam be halted, with Justice Lewis Powell writing a dissent for himself and
Justice Blackmun.

Indeed, Dworkin also frames the issue as whether the Endangered Species Act gives the
[S]ecretary of the [I]nterior power to halt a vast, almost finished federaL power project to
save a small and ecologically uninteresting fish.

Hercules method, at its most basic, is that statutes must be read in the way that follows from
the best justification of a past legislative event. He is trying to show a piece of social history
in its best light, meaning his interpretation must justify the legislative process as a whole and
must be sensitive to his convictions about the ideals of political integrity and fairness as they
apply to legislation in a democracy.

RIGHT THESIS

Dworkin observed that there is a right answer to each case. Dworkins Right Thesis involves
the general claim that within legal practice and a proper understanding of the nature of law,
rights are more fundamental than rules. This is the opposite claim to most legal positivists.

Rights are trumps in Dworkins Theory, which means that if there is any right which comes
into conflict with any policy, the right must prevail.

The most widely discussed thesis in jurisprudence for a decade was Dworkin's rights thesis,
defended in Taking Rights Seriously(1977). The thesis holds that, in almost all legal cases,
one side has the legal right to win. Dworkin criticizes H. L. A. Hart's positivist classic The
Concept of Law (1961) for claiming that in hard cases, where legal rules do not determine
which side should win, judges have discretion to render decisions as social utility dictates.
Dworkin argues that Hart neglects the moral principles that underlie legal rules and constitute
part of the law. Such principles help to determine the legal rights of persons whereas rights
function as "trumps" that an individual holds against the government and its efforts to

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promote utility or some other societal good at the individual's expense. Dworkin imagines a
superhuman judge "Hercules," who knows all the best moral principles underlying the settled
law. Though more limited in their cognitive capacities, human judges should, and
characteristically do, seek out those principles that bear on the cases they decide.

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ADMINISTRATION OF JUSTICE

Salmond- Salmond said that the Definition of law itself reflects that Administration of
Justice has to be done by the state on the basis of rules and principles recognized.

Roscoe Pound- He believed that it is the court who has to administer justice in a state. Both,
Roscoe Pound and Salmond emphasized upon the Courts in propounding law. However,
Roscoe Pound stressed more on the role of courts whereas Salmond stressed more on the role
of the State.

Administration of Justice- There are two essential functions of every State:

a. War
b. Administration of Justice

Theorists have said that that if a state is not capable of performing the above mentioned
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.
Also, 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.

Origin and Growth of the concept of Administration of Justice

It is the social nature of men that inspires him to live in a community. This social nature of
men demands that he must reside in a society. However, living in a society leads to conflict of
interests and gives rise to the need for Administration of Justice. This is considered to be the
historical basis for the growth of administration of justice.

Once the need for Administration of Justice was recognized, the State came into being.
Initially, the so called State was not strong enough to regulate crime and impart punishment
to the criminals. During that point of time, the law was one of Private Vengeance and Self-
Help.

In the next phase of the development of Administration of Justice, the State came into full-
fledged existence. With the growth in the power of the state, the state began to act like a
judge to assess liability and impose penalty on the individuals. The concept of Public Enquiry
and Punishment became a reality.
Thus, the modern Administration of Justice is a natural corollary to the growth in the power
of the political state.

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NECESSITY OF ADMINISTRATION OF JUSTICE
Administration of justice is important for the following reasons.
1. Necessary for uniformity.
2. Necessary for protection of rights.
3. Necessary for peace and stability.
4. Necessary for integration of society.
5. Necessary to check injustice.
6. Necessary to educate people.
7. To promote welfare.
8. To promote equity.

C. Advantages and Disadvantages of Legal Justice

a. Advantages of Legal Justice

i. Uniformity and Certainty- Legal Justice made sure that there is no scope of
arbitrary action and even the judges had to decide according to the declared law of
the State. As law is certain, people could shape their conduct accordingly.
ii. Legal Justice also made sure that the law is not for the convenience of a particular
special class. Judges must act according to the law. It is through this that
impartiality has been secured in the Administration of Justice. Sir Edward Coke
said that the wisdom of law is wiser than any mans wisdom and Justice
represents wisdom of the community.
iii. Cohesive factor of society.
iv. Provides stability.
v. Provides certainty.
vi. Provides uniformity.
vii. Impartiality.
viii. Represent collective wisdom.
ix. Security.

b. Disadvantages of Legal Justice

i. It is rigid. The rate of change in the society is always more rapid than the rate of
change in the Legal Justice.
ii. Legal Justice is full of technicalities and formalities.
iii. Legal Justice is complex. Our society is complex too. Thus, to meet the needs of
the society, we need complex laws.
iv. Salmond said that law is without doubt a remedy for greater evils yet it brings
with it evils of its own.
v. Rigidity.
vi. Complexity.
vii. Formalities.

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D. Classification of Justice- It can be divided into two parts

a. Private Justice- This is considered to be the justice between individuals. Private Justice is
a relationship 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 that ought to exist
between the individuals.

b. Public Justice- Public Justice administered by the state through its own tribunals and
courts. It regulates the relationship between the courts and individuals. Public Justice is the
means by which courts fulfil that ends of Private Justice.

E. Concept of Justice According to Law

Justice is rendered to the people by the courts. Justice rendered must always be in accordance
with the law. However, it is not always justice that is rendered by the courts. This is because
the judges are not legislators, they are merely the interpreters of law. It is not the duty of the
court to correct the defects in law. The only function of the judges is to administer the law as
made by the legislature. Hence, in the modern state, the administration of justice according to
law is commonly considered as implying recognition of fixed rules.

F. Civil and Criminal Justice

Civil Justice and Criminal follow from Public Justice and Private Justice. Looking from a
practical standpoint, important distinctions lie in the legal consequences of the two. Civil
Justice and Criminal Justice are administered by a different set of courts.

A Civil Proceeding usually results in a judgment for damages or injunction or restitution or

specific decree or other such civil reliefs. However, a Criminal Proceeding usually results in
punishment. There are myriad number of punishments ranging from hanging to fine to
probation. Therefore, Salmond said that the basic objective of a criminal proceeding is
punishment and the usual goal of a civil proceeding is not punitive.

CIVIL JUSTICE
Civil justice results from the infringement of a private right. If a right of a person is violated
and it only concerns or directly affects him, it will be death with civil justice.
CRIMINAL JUSTICE
Criminal Justice results from the infringement of a public right. Even if the offence is
committed against one person but the nature of the offence is such that the state steps in and
considers it to be an infringement of a public right.

G. THEORIES OF PUNISHMENT
a. Deterrent Theory- Salmond said that the deterrent aspect of punishment is extremely
important. The object of punishment is not only to prevent the wrongdoer from committing

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the crime again but also to make him an example in front of the other such persons who have
similar criminal tendencies.

The aim of this theory is not to seek revenge but terrorize people. As per this theory, an
exemplary punishment should be given to the criminal so that others may take a lesson from
his experience.

Even in Manu Smriti, the Deterrent Theory is mentioned. Manu 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. However,
critics believe that deterrent effect not always leads to a decrease in crime.

b. Preventive Theory- This theory believes that the object of punishment is to prevent or
disable the wrongdoer from committing the crime again. Deterrent theory aims at giving a
warning to the society at large whereas under Preventive Theory, the main aim is to disable
the wrongdoer from repeating the criminal activity by disabling his physical power to commit
crime.

c. Reformative Theory- This theory believes that Punishment should exist to reform the
criminal. Even if an offender commits a crime, he does not cease to be a human being. He
might have committed the crime under circumstances which might never occur again. Thus,
the main object of Punishment under Reformative theory is to bring about a moral reform in
the offender. Certain guidelines have been prescribed under this theory.

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 the above mentioned exercise is to acquaint the judge with the exact
nature of the circumstances so that he may give a punishment which suits those
circumstances.
iii. Advocates of this theory say that by sympathetic, tactful and loving treatment of
the offenders, a revolutionary change may be brought about in their character.
However, the Critics say that Reformative Theory alone is not sufficient, there
must be a mix of Deterrent Theory and Reformative Theory in order to be
successful. Critics believe that in a situation of deadlock between the two theories,
the Deterrent Theory must prevail.

Distinction between Deterrent Theory and Reformative Theory

1. Reformative Theory stands for the reformation of the convict but the Deterrent Theory
aims at giving exemplary punishment so that the others are deterred from following the same
course of action.

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2. Deterrent Theory does not lead to a reformation of the criminal as it imposes harsh
punishments. Whereas, Reformative Theory believes that if harsh punishment is inflicted on
the criminals, there will be no scope for reform.

3. Deterrent Theory believes that the punishment should be determined by the character of the
crime. Thus, too much emphasis is given on the crime and too little on the criminal. However,
Reformative Theory takes into consideration the circumstances under which an offence was
committed. Reformative Theory further believes that every effort should be made to give a
chance to the criminal to improve his conduct in the future.

d. Retributive Theory- In primitive societies, the punishment was mostly retributive in

nature 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 for a long
time. Retributive theory believes 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.

e. Theory of Compensation- This theory believes that punishment should not only be to
prevent further crime but it should also exist to compensate the victim who has suffered at the
hands of the wrongdoer. However, critics say that this theory is not effective in checking the
rate of crime. This is because the purpose behind committing a crime is always economic in
nature. Asking the wrongdoer to compensate the victim will not always lower the rate of
crime though it might prove beneficial to the victim. Under this theory, the compensation is
also paid to the persons who have suffered from the wrongdoing of the government.

H. Kinds of Punishment

a. Capital Punishment- This is one of the oldest form of punishments. Even our IPC
prescribes this punishment for certain crimes. A lot of countries have either abolished this
punishment or are on their way to abolish it. Indian Judiciary has vacillating and indecisive
stand on this punishment. There have been plethora of cases where heinous and treacherous
crime was committed yet Capital Punishment was not awarded to the criminal.

b. Deportation or Transportation- This is also a very old form of punishment. It was

practised in India during the British Rule. The criminal is put in a secluded place or in a
different society. Critics of this punishment believe that the person will still cause trouble in
the society where he is being deported.

c. Corporal Punishment- Corporal punishment is a form of physical punishment that

involves the deliberate infliction of pain on the wrongdoer. This punishment is abolished in
our country but it exists in some Middle Eastern Countries. Critics say that it is highly
inhuman and ineffective.

d. Imprisonment- This type of punishment serves the purpose of three theories, Deterrent,
Preventive and Reformative.

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 i. Under Deterrent Theory, it helps in setting an example.
ii. It disables the offender from moving outside, thus serving the purpose of
Preventive Theory.
iii. If the government wishes to reform the prisoner, it can do so while the person is
serving his imprisonment, thus serving the purpose of Reformative Theory.

e. Solitary Confinement- Solitary confinement is a form of imprisonment in which a

prisoner is isolated from any human contact. It is an aggravated form of punishment. It is said
that it fully exploits and destroys the sociable nature of men. Critics say that it is inhuman
too.

f. Indeterminate Sentence- In such a 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 also reformative in nature.

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 RIGHTS AND DUTIES
The structure of law is built with a number of component concepts, which are sometimes
called the elements of law. The most important elements of law have been identified as
following:

(i) Legal rights and duties;

(ii) Ownership;
(iii) Possession;
(iv) Persons;
(v) Titles;
(vi) Property;
(vii)Obligation;
(viii) Liability;
(ix) Procedure.

CHARACTERISTICS OF LEGAL RIGHTS

Every right involves a threefold relation in which the owner of it stands:
I. It is a right against some person or persons.
II. It is a right to some act or omission of such person or persons.
III. It is a right over to some thing to which that act or omission relates.
A subject in whom the right inheres, and an object in respect of which it exists, are the
essential elements in the right. It is impossible to think of a right without an owner, though
the owner may be uncertain or indeterminate. Similarly, there cannot be any right without an
object. The following classification of rights is based on the object :-
1. Rights over material things - land, house, furniture, car, watch etc.
2. Rights in respect of one's own person - For instance, I have a right not to be killed.
The object is my life. I have a right not to be imprisoned. The object is my personal
liberty.
3. Right of reputation - The object is the good name of a person, which constitutes an
asset as valuable as any material thing
4. Rights in respect of domestic relation - If A enters into an agreement with B to sell his
land to B within one year, B acquires a right against A to have the land transferred to
him within the stipulated time. B's present right is a right to have the ownership of
land transferred to him at stipulated time. When the sale deed is executed, A acquires
the ownership right itself.
5. Rights over abstract property - Examples are copyright, patent, goodwill, etc
6. Right to service - Examples are right of a master over his servants.

Ownerless rights are not recognised by English law. This is because, there would be nothing
to prevent such a concept being used in legal reasoning. Ownership of a right may be merely
contingent or uncertain. The owner of it may be a person indeterminate.

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According to positivists, legal rights are essentially those interests which have been legally
recognized and protected.
1. Holland - Holland defines legal right as the "capacity residing in one man of
controlling, with the assent and assistance of the state the action of others".
2. Gray - Gray defines a legal right as " that power which a man has a make a person or
persons do or refrain from doing a certain act or certain acts, so far as the power arises
from society imposing a legal duty upon a person or persons.
3. Ihering - Ihering defines rights as 'legally protected interests.
4. Salmond said that a legal right is an interest recognized and protected by rule of law
and violation of such an interest would be a legal wrong.

Salmond further said that:

1. A legal duty is an act that obliges to do something and act, the opposite of which
would be a legal wrong.
2. Whenever law ascribes duty to a person, a corresponding right also exists with the
person on whom the duty is imposed.
3. There are two kinds of duties: Moral Duty and Legal Duty.
4. Rights are said to be the benefits secured for persons by rules regulating relationships.

Salmond also believed that no right can exist without a corresponding duty. Every right or
duty involves a bond of legal obligation by which two or more persons are bound together.
Thus, there can be no duty unless there is someone to whom it is due; there can be no right
unless is someone from whom it is claimed; and there can be no wrong unless there is
someone who is wronged, that is to say, someone whose right has been violated.

This is also called as vinculum juris which means a bond of the law. It is a tie that legally
binds one person to another

SALMOND ANALYSED RIGHT BY SPLITTING A LEGAL RIGHT INTO THE

FOLLOWING FIVE ESSENTIAL ELEMENTS.
i. The owner or the subject of the rights: A person in whom the right is vested
may be called the owner or the subject of a right. He is the person entitled or the
person of inheretence. The owner of a right need not necessarily be certain or
determinate. When the owner is an unborn person, the person entitled is uncertain.
When the right is owned by society at large, the owner is indeterminate.
ii. The person of incidence: he is the person bound by the duty and may be called
the subject of duty. He is the person against whom the right avails.
iii. Content: the act or forbearance, which the person in whom the right resides can
exact, is called the content of the right. It is an act or omission, which is obligatory
on the person of incidence to the person of inherence.
iv. The object: Something to which the act or omission relates is the object of the
right. The thing over which the right is exercised is the object. This may also be
called the subject matter of the right. Holland points out the possibility of rights
which have no object. Holland says that the object of the right should be some

15 | P a g e
 material thing. Salmond on the other hand observes that the term object need not
be narrowly defined. The object of a right is as essential an element in the idea of
right as the subject of right itself.
v. Title: Title denotes certain facts or events by virtue of which the right has become
vested in its owner.

An example is that, A buys a piece of land from B. here A is the subject or owner of the right
so acquired. The persons bound are the public at large, for it is a right available against
persons generally. The content of the right consists in non-interference with As exclusive use
of the land. The land itself is the object of the right. The title is the conveyance by which the
land was acquired by A from B

SALMOND ON RIGHTS AND DUTIES

Salmond said that 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 no action is taken for enforcing
these rights and duties. The rights form a good ground for defence but duties do not form a
good ground for action. However, in some cases, an imperfect right is sufficient to enforce
equity.

Salmond gave following classifications of rights.

1. Positive and Negative Rights
2. Real and Personal Rights
3. Right in rem and right in personam
4. Proprietary and Personal Rights
5. Inheritable and Uninheritable Rights

Salmonds Classification of Positive and Negative Rights

POSITIVE RIGHT NEGATIVE RIGHT

11 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.
2 In the case of positive rights, the person
subject to the duty is bound to do
something.
3 The satisfaction of a positive right results in
the betterment of the position of the owner.
4 In case of positive rights, the relation
between subject and object is mediate and
object is attained with the help of others.
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.
Whereas, in case of negative rights, others
are restrained to do something.
Whereas in case of a negative right, the
position of the owner is maintained as it is.
Whereas in case of negative rights, the
relation is immediate, there is no necessity
of outside help. All that is required is that

16 | P a g e
 others should refrain from interfering case of
negative rights.
5 In case of positive rights, a duty is imposed In case of negative rights, the duty is
on one or few individuals. imposed on a large number of persons.

Perfect right:

According to salmond, a perfect right is one which corresponds to a perfect duty I .e., which
is enforced by law. A perfect duty is one which is not merely recognised by law but also
enforced by law.
Example:
A contract specically enforceable through the Court of law is an example of perfect right.

Imperfect right:

An imperfect right is that which is recognized by law but cannot be enforced by law due to
some impediment. These may be turn into perfect rights.
Positive right: A positive right corresponds positive duty and the person subject to the duty is
bound to do something.
Negative right: Negative right corresponds to negative duties. The enjoyment of negative
rights is complete unless such interference takes place.

Example of Imperfect rights are the claims barred by the lapse of time, claims which cannot
be enforced on account of the absence of some special form of legal proof, claims against
foreign States or sovereigns, claims which cannot be enforced as they do not lie within their
local limits of the jurisdiction of the court, debts due to an executor from the estate which he
administers. In these cases, the rights and duties are imperfect as no action lies for their
maintenance. An imperfect right may be good as a ground of defence, though not good as a
ground of action. An imperfect right may become perfect. The right of action may be dormant
and not nonexistent

Salmonds Classification of Real and Personal Rights

Real Rights Personal Rights

1 A real right corresponds to a duty
imposed upon persons in general.
2 A real right is available against the
whole world.
3 All real rights are negative rights.
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.
In real right, the relation is to a thing.
Real rights are derived from some
A personal right corresponds to a duty
imposed upon determinate individuals.
A personal right is available only against a
particular person.
Most personal rights are positive rights
although in a few exceptional cases they
are negative.
In personal right, it is the relation to other
persons who owe the duties which is

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 special relation to the object.
4 Real rights are right in rem.
Salmonds Classification of Right in rem and Right in personam
Right in rem
1 It is derived from the Roman term actio
in rem. An action in rem was an action
for the recovery of dominium.
2 The right protected by an action in
rem came to be called jus in rem.
3 Jus in rem means a right against or in
respect of a thing.
4 A right in rem is available against the
whole world.
Rights under a contract are right in Personam as the parties to the contract alone are bound by
it.
Salmonds Classification of Proprietary and Personal Rights
Proprietary Rights
1 Proprietary rights means a persons right
in relation to his own property.
Proprietary rights have some economic
or monetary value.
2 Proprietary rights are valuable.
3 Proprietary rights are not residual in
character.
4 Proprietary rights are transferable.
5 Proprietary rights are the elements of
wealth for man.
6 Proprietary rights possess not merely
judicial but also economic importance.
Proprietary And Personal Rights:
Proprietary Right:
important. Personal rights are derived from
special relation to the individual or
individuals under the duty.
Personal rights are right in personam.
Right in personam
It is derived from the Roman
term action in personam. An action in
personam was one for the enforcement
of obligato i.e. obligation.
A right protected by action in
personam came to be called as jus in
personam.
Jus in personam means a right against
or in respect of a person.
A right in personam is available against
a particular individual only.
Personal Rights
Personal rights are rights arising out of
any contractual obligation or rights that
relate to status.
Personal rights are not valuable.
Personal rights are the residuary rights
which remain after proprietary rights
have been subtracted.
Personal rights are not transferable.
Personal rights are merely elements of
his well-being.
Personal rights possess merely judicial
importance.
18 | P a g e
The proprietary rights of a person include his estate, his assets and his property in many
forms. They have some economic or monetary value. They possess both judicial and
economic importance.
Example: The right to debt, the right to goodwill etc.

Personal right:
Personal right pertain to man, s status or standing in the law. They promote the man, s well
being. Personal rights possess merely judicial importance.
Example: Right to life, reputation etc are personal rights.

Salmonds Classification of Inheritable and Uninheritable Rights

Inheritable Rights Uninheritable Rights

A right is inheritable if it survives the A right is uninheritable if it dies with
owner. the owner.

Inheritable And Un inheritable Rights:

Inheritable Rights:
Inheritable rights are those which survives its owners.
Example:
A dies leaves his property him B his legal heir becomes owner of such property. This is an
inheritable right.
Uninheritable right:
A right is uninheritable if it dies with its owners e. g. personal rights die with its owner and
cannot be inherit.

Rights In Repropria And Rights In Re Aliena:

Rights in Re Propria:
Rights in Re propria are rights in one, s own property. These are complete rights to which
other right can be attached.
Example:
The owner of a chattel has a right in re propria over it.
Right in Re aliena:
Rights is Re aliena are rights over the property of another person. These rights derogate
form the rights of another person and add to the rights of their holder.
Example:
My right of way across the land another person is a right re aliena.

A right in re aliena, which is also called an encumbrance, is one which limits or derogates
from some more general rights belonging to some other person in respect of the same subject
matter. All other rights are rights in re propria.

19 | P a g e
The owner of a chattel has jus in re propria or a right over his own property. The pledge has
jus in re aliena or a right over the property of someone else.

Rights in re propria are rights in ones own property. Rights in re aliena are rights over the
property of another person.

There are four main classes of encumbrances, leases, servitudes, securities and trusts.

1. A lease is the encumbrance of property vested in one man by a right to the

possession and use of it vested in another.

2. A servitude is a right to the limited use of a piece of land unaccompanied either by

the ownership or by possession of it.

3. A security is an encumbrance vested in a creditor over the property of his debtor

for the purpose of securing the recovery of the debt.

4. A trust is an encumbrance in which the ownership of property is limited by an

equitable obligation to deal with it for the benefit of someone else.

The owner of the encumbered property is called the trustee and the owner of the
encumbrance is called the beneficiary

The right in repropria consists of the following four rights.

(a) Right to use a thing.

(b) Right to exclude others from using it.

(c) Right to dispose of it.

(d) Right to destroy the thing.

A right in re-aliena has the following characteristics:

(a) A right subject to an encumbrance is called a servant right.

(b) One encumbrance may be subject to another encumbrance e.g a lease may
create a sublease.

(c) Real rights may be encumbrances of other rights e.g a lease or a mortgage or
an easement over property.

(d) Personal as well as real rights may those selves is encumbered.

Principal rights

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Principal And Accessory Rights:
Principal rights
Principal rights exist independently of other rights. Accessory rights are appurtenant to
other rights and they have a beneficial on the principal rights.
Example:
X owes money to Y and he executes a mortgage deed in favour of Y. the debt is the
principal right and the security in the form of mortgage is the accessory right.

Principal rights exist independently of other rights. Accessory rights are appurtenant to other
rights and they have a beneficial effect on principal rights.
A security is accessory to the right secured.
Servitude is accessory to the ownership of the land for whose benefit it exists.
The rent and covenant of a lease are accessory to the ownership of the property by the
landlord.
Covenants for title in a conveyance are accessory to the estate conveyed.
A right of action is accessory to the right for whose enforcement it is provided.

Legal And Equitable Rights:

Legal Rights:
Legal rights are those which were recognized by common Law Court e. g., right to vote etc.
Equitable Rights:
Equitable rights are those which were recognized by the Court of chancery.
Example:
The right of the mortgagor to redeem the property is regarded as a creation of the Courts of
equity and is an equitable right knows as the equity of redemption.

Legal rights are those recognised by common law courts and equitable rights are those rights
recognised only in the Court of Chancery. Principles of equity evolved in English law in
order to mitigate the rigorous of ordinary law. In spite of the fusion of law and equity by the
Judicature Act 1873, the historical distinction still survives and is relevant in some situations.
When two legal rights are found inconsistent, the first in time generally prevails. When a
legal right and a equitable right are in conflict, the legal right will prevail over the equitable
right, even though subsequent in origin, provided that the owner of the legal right acquired it
for value and without notice of prior equity.

Primary And Secondary Rights:

Primary Rights:
Primary rights are also called antecedent, sanctioned or enjoyment rights. These are those
rights which are independent of a wrong having been committed. They exist for own
sake. They are antecedent to be wrongful act or omission.

21 | P a g e
 Example:
Right of reputation, Right to life etc.
Secondary Rights:
Secondary rights are also called sanctioning, restitutory or remedial rights. Secondary
rights are a part of the machinery provided by the state of the redress of injury done to the
primary rights. Their necessity arises on account of the fact that primary rights are very
often violated by the persons.
Example:
Rights to obtain compensation for defamation to person.

Primary are also called antecedent, sanctioned or enjoyment rights. Secondary rights are
called sanctioning, restitutory or remedial rights. Examples of primary rights are the right of
reputation, the right in respect of ones own person, the right of the owner of a guardian etc.
Secondary rights are a part of the machinery provided by the state for the redress of injury
done to primary rights.

Public And Private Rights: Public rights:

Public rights:
A public right is possessed by every member of the public. It is between a state and the
private individual e. g. , right to vote etc.
Private right:
A private right is concerned only with the individuals. Both the parties connected with the
right are private persons e.g., contract entered into by two individuals.

Vested And Contingent Rights:

Vested right:
A vested is a right in right in respect of which all events necessary to vest it completely in
the owner have happened. No other conditions remains to be satisfied.
Example:
If a valid deed of transfer is executed by ;A; in favour of B, B acquires a vested right.
Contingent right:
According to paton when part of the in vestitive acts have occurred, the right is
contingent until the appening of all the facts on which the title depends.
Example:
A executes a deed in favour of B according to which he entitles to the possession of
certain property when attains the age of 21, the right is contingent right and it will be
vested only when he attains the age of 21.s

A vested right is a right in respect of which all events necessary to vest it completely in the
owner have happened. No other condition remains to be satisfied.

22 | P a g e
In the case of a contingent right, only some of the events necessary to vest the right in the
contingent owner have happened.

According to Paton When all the investitive facts which are necessary to create the rights
have occurred, the right is vested; when part of the investitive facts have occurred, the rights
contingent until the happening of all facts on which the title depends.

Servient And Dominant Rights:

A servient right is one which is subject to an encumbrance. The encumbrance which
derogates form it may be contrasted as dominant.
Example:
X as the owner of certain house a right of way over the land of Y , his neighbor. The
house of X is the dominant heritage and X is the dominant owner. The house of Y is the
servient heritage and Y is the servient owner.

Municipal And International Rights:

Municipal rights:
Municipal right are conferred by the law of a country, it is enjoyed by the individuals
living in a country.
International rights:
International rights are conferred by international law. The subject of the International
rights are the persons recognized as such by International law.

Rights At Rest And Rights In Motion:

According to Holland, when a right is stated with reference to its orbit and its
infringement, it is a right at rest. Orbit means the extent of advantages conferred by such
right and infringement means an act which interference with the enjoyment of those
advantages. Causes by which rights are either connected or disconnected with persons are
discussed under rights in motion.

Ordinary And Fundamental Rights:

Some rights are ordinary and some are fundamental rights. The distinction between the two
lies that fundamental rights are often guaranteed by the onstitution i. e., right to life, liberty
etc.

Jus Ad Rem:
A jus ad rem is a right to right. It is always a right in personam.
Example:

23 | P a g e
If A sell his house to B. B acquires a right against A to have the house transferred to
himself.

DUTIES
According to Salmons, " A Duty is an obligatory act i.e., it is an act the opposite of which
would be wrong. Thus duties and wrong are generally co-related. The commission of a wrong
is the breach of duty and the performance of a duty is avoidance of wrong.
Duties are of two kinds, namely
(1) Legal and
(2) Moral.
A Legal duty is an act the opposite of which is a legal wrong. It is an act recognised as
a duty by law and treated as such for the administration of Justice.
A Moral or natural duty is an act the opposite of which is a moral or natural wrong.
A duty may be moral but not legal or it may be legal but not moral or it may be both
moral and legal at once.
Salmond illustrates this by an example. In England, there is a legal duty not to sell or
to have for sale adulterated milk whether knowingly or otherwise, and without any
question of negligence.
Since this duty is irrespective of knowledge and negligence, it is exclusively legal;
and not a moral duty. On the other hand, there is no legal duty in England to refrain
from offensive curiosity about one's neighbour, even if the satisfaction of it does them
harm. Here it is clearly a breach of moral duty and not of legal duty. Not to steal is
both, ones moral and legal duty.

Justin said that Duties can be of two types:

a. Relative Duty There is a corresponding right existing in such duties.

b. Absolute Duty There is no corresponding right existing.

Austin conceives this distinction to be 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.
Austin thus starts from the assumption that a right cannot vest in an indeterminate, or a vague
entity like the society or the people. The second assumption with which Austin starts is that
sovereign creates rights and can impose or change these rights at its will. Consequently, the
sovereign cannot be the holder of such rights.

THEORIES OF RIGHTS

There are two main theories regarding nature of legal rights.

They are (1) The Will or choice Theory, and
(2) Interest theory:

24 | P a g e
Will Theory of Legal Right
The Will theory of legal rights has been supported by Hegel, Kant, Hume and others.
According to this theory, a right is an inherent attribute of the human will. The
subject-matter of right is derived from human will. The theory suggests that it is
through a right that a man expresses his will over an object.
The theory has been also accepted by historical jurists of Germany. Puchta observed
that a legal right is a power over an object which by means of his right can be
subjected to the will of the person enjoying the right.
Vinogradoff considers that psychology of asserting claim is the basis of legal right. In
a social order established by law no man is absolutely free to act as he likes, but his
freedom of action is restricted due to rights of others.
According to Austin, right of a person means that others are obliged to do or forbear
from doing something in relation to him. Austinian conception of right is obviously
based on sovereign power of the state. Likewise, Austin defines duty as an obligation
the breach of which is punishable because of the penal sanction attached with it.
Justice Holland of U.S.A. pointed out that a legal right is nothing but permission to
exercise certain natural powers to obtain protection under certain conditions. It has the
support of public force for its protection.
Duguit suggests that will is not an essential element of a legal right or law. The real
basis of law is social solidarity. He calls theory of subjective right as a mere
metaphysical abstraction.

Interest theory of Legal Right

Another popular theory regarding the nature of legal right is called the Interest theory
which was mainly propounded by the German Jurist Ihring.
According to this theory, a legal right is a legally protected interest. Ihring does not
emphasize on the element of will in a legal right. He asserts that the basis of legal
right is interest not will. The main object of law is protection of human interests and
to avert a conflict between their individual interests.
But Salmond has criticized Ihrings theory on the ground that it is incomplete since it
completely overlooks the element of recognition by state. A legal right should not be
protected by the state but should also be legally recognized by it. He cites an example
to substantiate this view. The interests of beasts are to some extent protected by law in
as much as cruelty to animals is a criminal offence. But beasts cannot for that reason
be said to possess a legal right of not being treated with cruelty. Salmond treats the
right to protection of animals from cruelty merely as a moral right.

Hohfelds System of Fundamental Legal Concepts or Jural Relations

1 2 3 4
Right Privilege Power Immunity
Jural
25 | P a g e
 Opposites
No Duty Disability Liability
Right
Jural Right Privilege Power Immunity
Correlatives
Duty No Right Liability Disability
Jural Correlatives represent the presence of in another. Thus, right is the presence of duty in
another and liability is the presence of power in another.
Jural Opposites represent the absence of in oneself. Thus, no right is the absence of right in
oneself and disability is the absence of power in oneself.
Conclusion derived from Hohfelds System
a. As a persons right is an expression of a wish that the 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 that he may do something against other
person to change his legal position.
c. A persons power is an expression of a right that he can alter other persons legal position.
d. A persons disability is an expression of a wish that another person must not alter the
persons legal position.

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 OWNERSHIP

Salmond on 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 are rights in rem,
being good against the entire world and not merely against specific persons[4].

Incidence of Ownership

1. The owner has the right to possess things that 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. However,
Right to possess is not a right strictu sensu because such rights are in fact liberties as
the owner has no duty towards 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 again straight forward liberties. The right to alienate i.e. the
right to transfer the existing rights involves the existence of power.
4. Ownership has the characteristic of being indeterminate in duration and Ownership
has a residuary character. Salmond contrasted the rights of the owner with the lesser
rights of the possessor and encumbrancer by stating that the owner's rights are
indeterminate and residuary in a way in which these other rights are not.

Austins Concept of Ownership

Ownership or Property may be described accurately enough, in the following manner: the
right to use or deal with some given subject, in a manner, or to an extent, which, though is not
unlimited, is indefinite.

Austin while defining ownership has focused on the three main attributes of ownership,
namely,
Indefinite User
Unrestricted Disposition

27 | P a g e
 Unlimited Duration

Now in this description it is necessarily implied, that the law will protect or relieve the owner
against every disturbance of his right on the part of any other person. Changing the
expression, all other persons are bound to forbear from acts which would prevent or hinder
the enjoyment or exercise of the right.

Austin further said that Ownership or Property, is, therefore, a species of Jus in rem. For
ownership is a right residing in a person, over or to a person or thing, and availing against
other persons universally or generally. It is a right implying and exclusively resting upon
obligations which are at once universal and negative.

Dias on Ownership

After referring to the views of Salmond and other Jurists, Dias came to the conclusion that a
person is owner of a thing when his interest will outlast the interests of other persons in the
same thing. This is substantially the conclusion reached by many modern writers, who have
variously described ownership as the residuary, the ultimate, or the most enduring
interest.

According to Dias, an owner may be divested of his claims, etc., to such an extent that he
may be left with no immediate practical benefit. He remains owner nonetheless. This is
because his interest in the thing, which is ownership, will outlast that of other persons, or if
he is not presently exercising any of his claims, etc., these will revive as soon as those vested
in other persons have come to an end.

In the case of land and chattels, if the owner is not in possession, ownership amounts to a
better right to obtain the possession than that of the defendant. It is 'better' in that it lasts
longer. It is apparent that the above view of Dias substantially agrees with that of Salmond.
According to Dias it is the outlasting interest and according to Salmond, ownership has the
characteristic of being indeterminate in duration and residuary in nature

Types of Ownership

Corporeal Ownership Incorporeal Ownership

1. Corporeal Ownership signifies ownership in 1. Incorporeal Ownership is a right or an
a physical object. interest.
2. Corporeal things are things which can be 2. Incorporeal things cannot be perceived by
perceived by senses. senses and are in tangible.
Sole Ownership Co-Ownership
When an individual owns, it is sole ownership When there is more than one person who owns
the property
Trust Ownership Beneficial Ownership

28 | P a g e
1. There is no co-ownership.
2. The person on whom the responsibility lies
for the benefit of the others is called the
Trustee.
3. The trustee has no right to the beneficial
enjoyment of the property.
4. Ownership is limited. A trustee is merely an
agent upon whom the law has conferred the
duty of administration of property.
5. Trusteeship may change hands.
Legal Ownership
Legal ownership is that ownership which has its
basis in common law.
Vested Ownership
1. Ownership is vested when the title is perfect.
2. Vested ownership is absolute.
Absolute Ownership
Ownership is absolute when possession, Limited Ownership is subjected to
enjoyment, disposal are complete and vested limitations of use, disposal or duration.
without restrictions save as restriction imposed
by law.
1. There can be co-ownership.
2. The person for whom the trust is created is
called the Beneficiary.
3. The Beneficiary has the full rights to enjoy
the property.
4. Ownership is complete.
5. Beneficial Owners remain the same.
Equitable Ownership
Equitable ownership comes from equity
divergence of common law. Thus, distinction
between legal and equitable ownership is very
thin.
Contingent Ownership
1. Ownership is contingent when it is capable of
being perfect after fulfilment of certain
condition.
2. Contingent ownership becomes vested when
the conditions are fulfilled.
Limited Ownership
the

KINDS OF OWNERSHIP
There are many kinds of ownership and some of them are corporeal and incorporeal
ownership, sole ownership and co-ownership, legal and equitable ownership, vested and
contingent ownership, trust and beneficial ownership, co- ownership and joint ownership and
absolute and limited ownership.

Corporeal and Incorporeal Ownership

Corporeal ownership is the ownership of a material object and incorporeal ownership is the
ownership of a right. Ownership of a house, a table or a machine is corporeal ownership.
Ownership of a copyright, a patent or a trademark is incorporeal ownership. The distinction
between corporeal and incorporeal ownership is connected with the distinction between
corporeal and incorporeal things. Incorporeal ownership is described as ownership over
tangible things. Corporeal things are those which can be perceived and felt by the senses and
which are intangible. Incorporeal ownership includes ownership over intellectual objects and

29 | P a g e
encumbrances.

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned
by two persons at the same time. The relation between the two owners is such that one of
them is under an obligation to use his ownership for the benefit of the other. The ownership is
called beneficial ownership. The ownership of a trustee is nominal and not real, but in the eye
of law the trustee represents his beneficiary. In a trust, the relationship between the two
owners is such that one of them is under an obligation to use his ownership for the benefit of
the other. The former is called the trustee and his ownership is trust ownership. The latter is
called the beneficiary and his ownership is called beneficial ownership.

Legal and Equitable Ownership

Legal ownership is that which has its origin in the rules of common law and equitable
ownership is that which proceeds from the rules of equity. In many cases, equity recognizes
ownership where law does not recognize ownership owing to some legal defect. Legal rights
may be enforced in rem but equitable rights are enforced in personam as equity acts in
personam. One person may be the legal owner and another person the equitable owner of the
same thing or right at the same time.

The equitable ownership of a legal right is different from the ownership of an equitable right.
The ownership of an equitable mortgage is different from the equitable ownership of a legal
mortgage.

There is no distinction between legal and equitable estates in India. Under the Indian Trusts
Act, a trustee is the legal owner of the trust property and the beneficiary has no direct interest
in the trust property itself. However, he has a right against the trustees to compel them to
carry out the provisions of the trust.

Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested ownership when the title of the owner is
already perfect. It is contingent ownership when the title of the owner is yet imperfect but is
capable of becoming perfect on the fulfillment of some condition. In the case of vested
ownership, ownership is absolute. In the case of contingent ownership it is conditional. For
instance, a testator may leave property to his wife for her life and on her death to A, if he is
then alive, but if A is dead to B. Here A and B are both owners of the property in question, but
their ownership is merely contingent. It must, however, be stated that contingent ownership
of a thing is something more than a simple chance or possibility of becoming an owner. It is
more than a mere spes acquisitionis. A contingent ownership is based upon the mere
possibility of future acquisition, but it is based upon the present existence of an inchoate or
incomplete title.

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Sole Ownership and Co-ownership
Ordinarily, a right is owned by one person only at a time. However, duplicate ownership is as
much possible as sole ownership. When the ownership is vested in a single person, it is called
sole ownership; when it is vested in two or more persons at the same time, it is called co-
ownership, of which co-ownership is a species. For example, the members of a partnership
firm are co-owners of the partnership property. Under the Indian law, a co-owner is entitled to
three essential rights, namely
Right to possession
Right to enjoy the property
Right to dispose

Co-ownership and Joint Ownership

According to Salmond, co-ownership may assume different forms. Its two chief kinds in
English law are distinguished as ownership in common and joint ownership. The most
important difference between these relates to the effect of death of one of the co-owners. If
the ownership is common, the right of a dead man descends to his successors like other
inheritable rights, but on the death of one of two joint owners, his ownership dies with him
and the survivor becomes the sole owner by virtue of this right of survivorship.

Absolute and Limited Ownership

An absolute owner is the one in whom are vested all the rights over a thing to the exclusion
of all. When all the rights of ownership, i.e. possession, enjoyment and disposal are vested in
a person without any restriction, the ownership is absolute. But when there are restrictions as
to user, duration or disposal, the ownership will be called a limited ownership. For example,
prior to the enactment of the Hindu Succession Act, 1956, a woman had only a limited
ownership over the estate because she held the property only for her life and after her death;
the property passed on to the last heir or last holder of the property. Another example of
limited ownership in English law is life tenancy when an estate is held only for life.

POSSESSION

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SALMOND ON POSSESSION

Salmond said that in the whole of legal theory there is no conception more difficult than that
of possession. The legal consequences which flow from the acquisition and loss of possession
are many and serious. Possession, for example, is evidence of ownership; the possessor of a
thing is presumed to be the owner of it, and may put all other claimants to proof of their title.
The transfer of possession is one of the chief methods of transferring ownership.

Salmond also said that possession is of such efficacy that a possessor may in many cases
confer a good title on another, even though he has none himself.

He also made a distinction between possession in fact and possession in law.

1. Possession may and usually does exist both in fact and in law. The law recognizes as
possession all that is such in fact, and nothing that is not such in fact, unless there is
some special reason to the contrary.

2. Possession may exist in fact but not in law. Thus the possession by a servant of his
masters property is for some purposes not recognized as such by the law, and he is
then said to have detention or custody rather than possession.

3. Possession may exist in law but not in fact; that is to say, for some special reason the
law attributed the advantages and results of possession to someone who as a matter of
fact does not possess. The possession thus fictitiously attributed to him is termed
constructive.

In Roman law, possession in fact is called possessio naturalis, and possession in law as
possessio civilis.

Normally possession in law and possession in fact exist in a person but it may vary.
Possession in fact or de facto:
It means the possession, which physically exists in term of control over it. It can be seen
landlord and tenant where tenant holds possession of house physically or de facto, but it
is not possession in law or de jure.
Possession in law or de jure:
It is the possession which, in the eyes of law, exists. It may exclude physical control over
it. It is also called constructive possession. A servant may possess car, but in the eyes of
law, it is possession of master. Possession of bailor through bailee is de jure possession on
the part of bailor.

Corporeal and Incorporeal Possession

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Corporeal Possession is the possession of a material object and Incorporeal Possession is the
possession of anything other than a material object.
Corporeal possession is termed in Roman law possessio corporis. Incorporeal
possession is distinguished as possessio juris, the possession of a right, just as incorporeal
ownership is the ownership of a right.
Salmond further said that corporeal possession is clearly some form of continuing
relation between a person and a material object. It is equally clear that it is a relation of fact
and not one of right.
What, then, is the exact nature of that continuing de facto relation between a person
and a thing, which is known as possession?

According to Salmond, the possession of a material object is the continuing exercise of a

claim to the exclusive use of it.

It involves two distinct elements, one of which is mental or subjective, the other physical or
objective.
The mental element comprises of the intention of the possessor with respect to the
thing possessed, while the physical element comprises of the external facts in which this
intention has realised, embodied, or fulfilled itself.

The Romans called the mental element as animus and the subject element as corpus. The
mental or subjective element is also called as animus possidendi, animus sibi habendi, or
animus domini.

The Animus Possidendi - The intent necessary to constitute possession is the intent to
appropriate to oneself the exclusive use of the thing possessed. It is an exclusive claim to a
material object. Salmond made following observations in this regard.

1. It is not necessarily a claim of right.

2. The claim of the possessor must be exclusive.
3. The animus possidendi need not amount to a claim of intent to use the thing as owner.
4. The animus possidendi need not be a claim on ones own behalf.
5. The animus possidendi need not be specific, but may be merely general. It does not
necessarily involve any continuous or present knowledge of the particular thing
possessed or of the possessors relation to it.

The Corpus Possessionis The claim of the possessor must be effectively realized in the
facts; that is to say, it must be actually and continuously exercised. The corpus possessionis
consists in nothing more than the continuing exclusion of alien interference, coupled with
ability to use the thing oneself at will. Actual use of it is not essential.

Acquisition of possession:
Possession is acquired when both the animus and corpus are acquired:

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 By taking: When someone takes anything, he has possession. It may either be rightful
or wrongful possession.
By delivery: The thing is acquired by delivery with consents of previous possessor.
Actual deliveryActual delivery is a kind in which goods are delivered while
constructive delivery is the rental or sold goods.

Immediate and Mediate Possession

The possession held by one man through another may be termed mediate, while that which is
acquired or retained directly or personally may be distinguished as immediate or direct.

There are three kinds of Mediate Possession:

1. Possession that is acquired through an agent or servant who claims no interest of his
own.
2. The direct possession is in one who holds both on the actual possessors account and
on his own, but who recognizes the actual possessors superior right to obtain from
him the direct possession whenever he choose to demand it.
3. The immediate possession is in a person who claims it for himself until some time has
elapsed or some condition has been fulfilled, but who acknowledges the title of
another for whom he holds the thing, and to whom he is prepared to deliver it when
his own temporary claim has come to an end.

Concurrent or Duplicate Possession

1. Mediate and Immediate Possession co-exist in respect of the same thing as already
explained above.
2. Two or more persons may possess the same thing in common, just as they may own it
in common. This also called as compossessio.
3. Corporeal and Incorporeal Possession may co-exist in respect of the same material
object, just as corporeal and incorporeal ownership may.

Incorporeal Possession

In Incorporeal Possession as well, the same two elements required, namely the animus and
the corpus. In the case of incorporeal things, continuing non-use is inconsistent with
possession, though in the case of corporeal things it is consistent with it.

Incorporeal possession is commonly called the possession of a right, and corporeal

possession is distinguished from it as the possession of a thing. The distinction between
corporeal and incorporeal possession is clearly analogous to that between corporeal and
incorporeal ownership.

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Corporeal possession, like corporeal ownership, is that of a thing; while incorporeal
possession, like incorporeal ownership, is that of a right. In essence, therefore, the two forms
of possession are identical, just as the two forms of ownership are.

Hence, Possession in its full compass and generic application means the continuing exercise
of any claim or right.

Paton on Possession

Paton said that even though Possession is a concept of law still it lacks a uniform approach by
the jurists. Some jurists make a distinction between legal and lawful possession. Possession
of a thief is legal, but not lawful. In some cases, where possession in the popular sense is
meant, it is easy to use some such term as physical control. Possession is also regarded as
prima facie evidence of Ownership.

According to Paton, for English law there is no need to talk of mediate and immediate
possession. The Bailee and the tenant clearly have full possession: Salmond's analysis may he
necessary for some other systems of law, but it is not needed in English law.

Oliver Wendell Holmes and Von Savigny on Possesion

Savigny with other German thinkers (including Kant and Hegel) argued that possession, in
the eyes of the law, requires that the person claiming possession intend to hold the property in
question as an owner rather than recognize the superior title of another person, so that in
providing possessory remedies to lessees, Bailees, and others who lack such intentions,
modem law sacrifices principle to convenience.

To this Holmes responded that he cannot see what is left of a principle which avows itself
inconsistent with convenience and the actual course of legislation. The first call of a theory of
law is that it should fit the facts. It must explain the observed course of legislation. And as it
is pretty certain that men will make laws which seem to them convenient without troubling
themselves very much what principles are encountered by their legislation, a principle which
defies convenience is likely to wait some time before it finds itself permanently realized[6].

Holmes also criticised Savigny and other German theorists by saying that they have known
no other system than the Roman. In his works, Holmes proved that the Anglo-American
Law of Possession derived not from Roman law, but rather from pre-Roman German law.
One of Holmes's criticisms of the German theorists, signally including Savigny, is that they
"have known no other system than the Roman, ' .6 and he sets out to prove that the Anglo-
American law of possession derives not from Roman law, but rather from pre- Roman
German law.

LEGAL PERSONALITY

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In an ordinary meaning any living human being either male or female is person. In old
Roman law slaves were not supposed to be person because they were not possessed rights.
In legal term a being who is capable to possess rights and obligation and liabilities is person.
All human being are person. Any being whom law regards as capable of rights and duties.

Kinds of persons
There are two kinds of person in law
Natural persons
Legal person
Natural persons
All the human beings are natural persons. The entire male and female are persons. All the
living beings which are recognized as person by state, they are persons in law and persons in
fact.
Legal persons
Legal persons are created artificially and law regards them as legal person. They are persons
only in the eyes of law. They are also created by legal fiction so called as fictitious also. They
are also called juridical, conventional, imaginary, and they have rights and obligations as
natural person. They can sue and be sued.
Animals
They are no persons because they do not possess rights and obligations. Some people say that
they are persons because law prohibits cruelty to them. They should be treated
sympathetically and kindly. But this is our cultural heritage and the duty of society and not
the duty of animals. Rights always correlate with duties. Since they do not have any duty so
no rights and are not persons although in ancient Roman law a rooster was prosecuted and
punished but in modern law master of animals can be sued and punished and not the animals
itself.
Dead human beings
They cease their rights and obligation at the moment they go away from this world and their
connection is cut down. They are immune from duties and not subject of rights. Law
recognize the compliance of will, burial ceremony, no defamation, no desecration of graves,
but despite of this fact they are not persons and these duties lie to their legal heirs or living
society members.
Statues of unborn babies
In civil law they can sue after they are born through their next friends or at attaining the age
of majority. A child in womb has certain rights and inherits property. These all things are
subject to his living birth.
Following are important points

He can claim damages after birth, for the injuries he received before birth.
He can claim compensation for the death of his father or mother in fatal accidents.
He inherits even his father is died before his birth. He is natural person even his birth
is only for a moment.
A woman cannot be punished after conviction if she is pregnant, till birth of baby.

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Kinds of legal persons They are three kinds of Legal Person are as follows
Institutions are not personified or group of persons but institutions itself are legal
persons, such as, mosque, library, hospital etc.
Corporations Corporations are a group or series of persons and natural persons are
its members.
Funds or estatesFunds or estates are used for specific purpose. Property or fund of
deceased person for trust or charity is kind of legal person.

Kinds of Corporation

Corporation aggregate
Corporation aggregate is a group or collection of persons who become joint to accomplish
a task. Even all members of this corporation die, it will remain live and continue until
death by law. Common example of this corporation is Municipal Corporation or
registered company.
Corporation sole
Corporation sole is series of successive persons or individuals. It consists of only one
person at a time like king, postmaster general, Assistant Commissioner, or Prime
Minister. When a person dies, second one comes, fills in vacancy and performs functions.
After death of office holder, for the time being, office becomes dormant or inactive or
goes in sleeping position and as well as other person fills in the position, it become active.

JURISTIC PERSONALITY OR CORPORATE PERSONALITY

Ethical Natural law philosophers of the 17th and 18th centuries as well as the metaphysical
theorists of 19th century postulated the concept of will as an essential requirement for
exercising legal right. They also believed that personality is the subjective possibility of a
rightful will.

Legal personality is an artificial creation of law. Entities recognized by law are capable of
being parties to a legal relationship. A natural person is a human being whereas legal persons
are artificial persons, such as a corporation, created by law and given certain legal rights and
duties of a human being; a being, real or imaginary, who for the purpose of legal reasoning is
treated more or less as a human being[1]. All legal persons can sue or be sued.

THEORIES OF JURISTIC PERSONALITY

1. Fiction Theory This theory was put forward by Von Savigny, Salmond, Coke,
Blackstone, and Holland etc. According to this theory, the personality of a corporation is
different from that of its members. Savigny regarded corporation as an exclusive creation of
law having no existence apart from its individual members who form the corporate group and

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whose acts are attributed to the corporate entity. As a result of this, any change in the
membership does not affect the existence of the corporation.

It is essential to recognize clearly the element of legal fiction involved in this process. A
company is in law something different from its shareholders or members. The property of the
company is not in law the property of the shareholders. The company may become insolvent,
while its members remain rich.

Gray supported this theory by saying that it is only human beings that are capable of thinking,
therefore it is by way of fiction that we attribute will to non-human beings through human
beings who are capable of thinking and assign them legal personality.

Wolf said 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 This theory is concerned with the Sovereignty of a State. It pre-
supposes that corporation as a legal person has great importance because it is recognized by
the State or the law. According to this theory, a juristic person is merely a concession or
creation of the state.

Concession Theory is often regarded an offspring of the Fiction Theory as both the theories
assert that the corporation within the state have no legal personality except as is conceded by
the State. Exponents of the fiction theory, for example, Savigny, Dicey and Salmond are
found to support this theory.

Nonetheless, it is obvious that while the fiction theory is ultimately a philosophical theory
that a corporation is merely a name and a thing of the intellect, the concession theory is
indifferent to the question of the reality of a corporation in as much as it focuses only on the
source (State) from which the legal power of the corporation is derived.

3. Group Personality Theory or Realist Sociological Theory This theory was

propounded by Johannes Althusius and carried forward by Otto Van Gierke. This group of
theorists believed that every collective group has a real mind, a real will and a real power of
action. A corporation therefore, has a real existence, irrespective of the fact whether it is
recognized by the State or not.

Gierke believed that the existence of a corporation is real and not based on any fiction. It is a
psychological reality and not a physical reality. He further said that law has no power to
create an entity but merely has the right to recognize or not to recognize an entity.

A corporation from the realist perspective is a social organism while a human is regarded as a
physical organism. This theory was favoured more by the sociologists rather than by the
lawyers. While discussing the realism of the corporate personality, most of the realist jurists
claimed that the fiction theory failed to identify the relationship of law with the society in

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general. The main defect of the fiction theory according to the realist jurists was the
ignorance of sociological facts that evolved around the law making process.

Horace Gray, however, denied the existence of collective will. He called it a figment. He
said that to get rid of the fiction of an attributed by saying that corporation has a real general
will, is to derive out one fiction by another.

4. The Bracket Theory or the Symbolist Theory This theory was propounded by Rudolph
Ritter von Jhering (also Ihering). According to Ihering, the conception of corporate
personality is essential and is merely an economic device by which we can simplify the task
of coordinating legal relations. Hence, when necessary, it is emphasized that the law should
look behind the entity to discover the real state of affairs. This is also similar to the concept of
lifting of the corporate veil.

This group believed that the juristic personality is only a symbol to facilitate the working of
the corporate bodies. Only the members of the corporation are persons in real sense of the
term and a bracket is put around them to indicate that they are to be treated as one single unit
when they form themselves into a corporation.

5. Purpose Theory or the theory of Zweck Vermogen - The advocates of this theory are
Ernst Immanuel Bekker and Alois von Brinz. This theory is also quite similar to the fiction
theory. It declared that only human beings can be a person and have rights. This theory also
said that a juristic person is no person at all but merely a subjectless property destined for a
particular purpose. There is ownership but no owner. Thus a juristic person is not constructed
round a group of persons but based on an object and purpose.

The assumption that only living persons can be the subject-matter of rights and duties would
have deprived imposition of rights and duties on corporations which are non-living entities.
It therefore, became necessary to attribute personality to corporations for the purpose of
being capable of having rights and duties.

6. Hohfelds Theory- He said that juristic persons are creations of arbitrary rules of
procedure. According to him, human beings alone are capable of having rights and duties and
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.

7. Kelsens Theory of Legal Personality He said that 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.

TITLE

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Title is a link between a person and an object to establish ownership of property. A title is the
de facto antecedent of which the right is the de jure consequent. Right of possession on
ownership comes in term of de facto first and later de jure. For example, I have a watch on
my hand. How it can be said that it is my, or I have title over it. I have either purchased it, or
someone has gifted me, or I have inherited it from elsewhere. Title is created even of stolen
objects. It is right of ownership in fact and in law over property.

Kinds of Title

There are two kinds of title are as follow

Investitive facts Investitive facts create rights. This right is created first time on the
objects, which are ownerless. When I catch fish it is my original title and if I purchase it
from elsewhere then it is called derivative title. Derivative right is second right, which is
created after gone away of original right.
Divestitive facts Divestitive facts are those, which loss or keep away of right is
termed as divestitive facts.
Alienative right Alienative right is right which is separated or transferable.
Extinctive right Extinctive right is right which is kept away or destroyed.

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