I. LAW AND MORALS (p. 67-69) II. LAW AND JUSTICE (pp.
119-121)
Conflict between positive law and the moral law.
• Law and morality are inter-related and interact upon one another
in a highly complex way.
Three main attitudes towards the possibility of such divergency
1. Law and morals must necessarily coincide
a. Moral law dictates the actual contents of actual law.
i. Leads to a proposition that only moral law is
valid.
ii. Nothing inconsistent with moral law is binding.
b. Morality means nothing more than obeying the law.
i. HOBBES: Unjust law is a contradiction
ii. HEGEL: Moral superiority over state
• Individual could claim no higher right than
to obey the law of the state of which he
formed an insignificant part.
2. NATURALISM: Man-made law and moral law enjoys a realm of its
own but moral law is higher and is the basis for validity of
merely man-made law.
a. Conflict in favor of moral law.
i. Human law, in case of conflict is nullified and the
citizen is relieved of duty to obey.
ii. Matter to be left between God and unjust ruler.
b. Hellenistic Greeks, American and French Revolutions
3. LEGAL POSITIVISM: Autonomy of each spheres of law and
morality is exclusive, so neither can resolve questions of validity.
a. Validity is dependent on a legal criteria.
i. Pragmatic view of moral law.
ii. In extreme cases, a conflict between legal and
moral duty may be resolved in accordance to the
conscience of the individual and his moral
courage to defy a law which he believes is contrary
to what is morally right or just.
Formal justice and equality
• Conceptions of justice may vary from age to age.
o Greeks- inequality-Very lack of equality between human
beings called for different treatment.
• VITAL FUNCTION OF JUSTICE: Attainment of equality
o Association of justice to legal proceedings.
▪ A law which is applied without discrimination
may be regarded as embodiment of justice.
o Justice cannot mean that we are to treat everyone
alike regardless of individual differences.
▪ Like should be treated as like.
▪ Equal classification of laws.
• Formal Justice requires equality of treatment in accordance
with the classification laid down by the rules.
o Nothing said about how people should/not be
classified/treated.
• People are not in fact born equal either physically, mentally.
o Treating people equally may involve special
arrangements in favour of the poorer/humbler sections
of communities.
• “The law…is open to rich and poor alike.”
Treating like cases in the same way
1. There shall be rules laying down how people are to be treated
in given cases.
2. Rules shall be general in character.
a. Should be applied to persons generally/certain
categories of persons.
3. They shall be impartially applied.
a. Without discrimination, fear/favour.
 III. LAW AND FREEDOM (pp. 139, 140) ▪ Organs of public opinion to fall increasingly into a
very few hands by reason of newspaper mergers
Open and Closed Societies
and take-overs.
Open Society Closed society ▪ Considerable risk that such media will tend to
Emphasis on personal decision Almost tribal/collectivist- pander to what is regarded as acceptable to
and assuming of individual Community is completely rather conventional standards of public opinion.
responsibility dominant and individual ▪ The law itself can do very little to inspire
counts for little/nothing positive independence of this kind.
• Some measures that may be adopted
o The contrast is by no means an absolute but a relative one.
o Restricting/controlling mergers
o WEBER: ideal type.
o Ensuring that organs of
o Western Democracies
censorship are not used merely
▪ Open society: wish to conform; Significant
for the purpose of rigorously
developments in the direction of collectivist
enforcing conventional standard
society.
of taste and opinion.
▪ Increasing conformity in patterns of social
behavior/repressing/discouraging what are The Press
regarded rightly or wrongly as individual
aberrations. o Central position because of its unique capacity for serving as
focus of public opinion.
Positive and negative freedom o Sometimes considered as supreme freedom which ought to
override all other freedoms in the democratic community.
Positive Freedom Negative freedom
o Overlook the special position of newspapers= ownership
More like a spiritual conception Organizing the pattern of
is limited to a very small number of Press barons.
Maximum opportunity for self- society, that despite all the
realization. restraints/limitations o Understandable desire to increase circulation ->
Concerned with externals of that are placed upon an indulge in very highly irresponsible journalism.
conduct. individual action for the The Vassal Case
benefit of society as a
whole, there remains a o Two journalists were committed for contempt for refusing to
large sphere for give the name of the sources of their alleged information.
individual choice and o Defense: Overriding public policy
initiative compatible o Court rejected: matter of conflict between law and conscience.
with public welfare. o Unproved: There is any necessarily overriding public interest
which entitles journalists to complete immunity as to
Censorship problems (p.156-157) revealing their sources of information, although no such
immunity is enjoyed by anyone else.
o Positive point of view
o Real dangers from the age of mass media
The Rule of Law (161-164)
o Imposing those procedural guarantees which have been
found necessary to endure “due process of law.”
o Independence of judiciary
o Fair and speedy trial of accused persons
o Adequate judicial control over police and their methods of
securing confessions from accused persons.
o Adequate safeguards regarding detention/arrest pending
trial.
o Rights of individual squarely confront that of the state.
o Accused may refuse to make any statement that may
incriminate himself.
o No persons shall be found guilty of an offence which is not
specifically laid down in some criminal prohibition
established prior to the date of the commission of the
crime.
o Not permitted
▪ Courts to recognize new criminal offences from
time to time due to breach of morality.
▪ Retrospective application of law.
Doctrine of vicarious liability
o Responsibility is personal and individual
o Person is only to be answerable for his/her own wrong-
doing.
o Modern civil liability
o Man may be held for the acts of his servants.
▪ Reason: Accepted public policy
• Fairly distribute the liability by imposing
some to the employer who is easily able to
insure against any loss.
o Applicable only to civil AND NOT TO CRIMINAL CASES.
Exercise of state/governmental powers.
o Modern states found it necessary to develop rules of
administrative law.
o Enables ordinary courts of law to exercise supervision
over administrative/quasi-judicial functions of the
executive department.
Complaints against the state in relation to its administrative power.
o A citizen desires to there has been a grave abuse of discretion that
is detrimental to him/certain group of people.
o Common-Law: general supervisory powers of ordinary
courts.
o Continental Countries: Independent system of
administrative supervision [Ombudsman]
o The rule of law is not concerned with exact technical
procedure that is applied AS LONG AS A FUNDAMENTALLY
INEFFECTUAL SYSTEM WOULD NOT BE REGARDED AS
COMPLYING WITH THE NEEDS OF THE RULE OF LAW ITSELF.
o French: Counseil d’Etat.- effective measure
o Common law system is inadequate
▪ Where an authority acted within its power but the
exercise may be open to grounds of
abuse/negligence.
o English courts
▪ Effective control of administrative authorities and
agencies by establishing the rule that the state and
its agencies are entitled to claim privilege if it is
not in public interest that contents of these
documents should be disclosed.
▪ Citizens are almost precluded from establishing
their claims since he was prevented from seeing
the material documents dealing with the matter in
question.
 IV. LAW, SOVEREIGNTY AND STATE (pp. 172-174)
Sovereignty and the State
o Early days: Sovereign=king/body/ruler.
o Not sovereign in legislative sense
o Hence every independent country constituted itself a self-
supporting legal entity- The state.
Jean Bodin’s General Theory of Law and Sovereignty
o Nature of every independent state to possess a supreme
legislative power
o Acknowledged no superior
o Authority was completely unfettered.
o Problem: Not consistent for they also recognized that law-
making power is still subject to certain over-riding natural
law principles.
o By end of 18th century: The national state was fully
recognized as complete master of its own system of
positive law.
o Queen of Parliament as possessor of legal sovereignty
▪ The state is more general notion that the
sovereign, representing the community of
legal organizations and symbolizing all
various manifestations of legally organized
community.
▪ Sense: PERSONIFICATION
• All the wielders of official power in
community are organs of the state.
• Power is regarded as to derived from the
State itself.
o France: Difficulty in attributing ultimate sovereignty to
whatever person/body happens to wield power under the
arrangements in force for the time being.
▪ Need to rest that authority on some more
permanent source- state itself.
Internal and External Sovereignty
Internal External
Supreme Domestic Absolute monarch
Legislator under a customary
system of law.
o Newly established national states claimed total freedom of
action in dealing with one another both in peace and war
o Absence of any acknowledged authority who could
restrict or diminish this freedom of action.
o State Sovereignty in International Relations
o Each state was entirely free to regulate its relations
with other states, including the right to declare a war
and even annex the territory of the defeated state.
o Paved way for the opportunity of developing natural-law
theory as a means of regulating what would otherwise have
been a state of international anarchy.
▪ Nations, like individuals before civil society came
into being were in a state of nature towards one
another and were directly governed by natural
law.
▪ It gradually developed the modern principles of
international law.
▪ The state is subjecting itself to natural law in
new form in realm of international relations.
o Legal problem
▪ How unfettered sovereignty of national state
could none the less be subordinated to
international rules not derived from any superior
state/authority.
KELSEN’S PURE THEORY OF LAW (pp.1193-198)
Pure= positivist.
o Law is entirely autonomous and self-contained and that its
validity has to be conceived in legal terms and not in terms of
morals.
o LAW IS CONCERNED NOT WITH FACTS OF HUMAN
BEHAVIOUR BUT WITH MORNS WHICH ARE RULES OR
STANDARDS IF CONDUCT FORMING PART OF A UNIFIED
SYSTEM.
o Highest norms: most general: most abstract.
▪ Lay down the rules which govern the application
of norms on lower level of generality.
▪ Problem for lawyer: determine the conditions of
legal validity of any decision/rule within the legal
system.
 ▪ As one moves from lower to higher level, the legal
rules pass from concrete and specific to an
increasingly abstract and general.
• Each stage is dependent for its validity on
the norm in the hierarchy of norms which
provides basis for its application.
Need for coercion
o Insisted on the need for it is a condition of the validity of legal
order that is by and large effective and hence actually obeyed
and enforced.
o Every legal norm imposing a duty must have a sanction
attached.
o Sanction is NOT THE THREAT OF FORCE or the actual
application of it but simply the final concretization on the series
of norms.
Grundnorm
o Basic norm or ultimate premiss of the whole system and that for
legal purposes we cannot go behind it.
The Basic Norm
o Trace back the existing constitution to a historical first
constitution
o Constitution as a result of revolution
o Territory not previously possessing a constitution.
o Presupposition that the First constitution is valid and should be
obeyed is the basic norm of the existing constitution.
Basic Norms of International Law
o International Implications
o KELSEN: Each nation can in fact have its own ultimate
norm and treat international law as merely valid in so
far as its norms are incorporated in those individual
national system.
o Monistic system
▪ Basic norm of every state is a rule imposing
obedience to the rules customarily accepted by
states inter se.
▪ Desirable and operative:
• States adhere to it to an extent which
complies with the principle of minimum
effectiveness.
▪ International law recognizes the rule of
enforcement by self-help, by means of war and
reprisals as a last resort, in cases of flagrant
breaches of international law.
Does Kelsen provide a solution for the question of sovereignty?
o EMPHASIS on the IDEA OF THE BASIC NORM.
o Kelsen’s view of interlocking normative structure of legal
system is illuminating.
▪ Legal validity is something which can only be
explained in terms of a higher norm authorizing
norms on a lower level.
▪ It also cannot be reposed on purely de facto
considerations but must also explained in
normative terms.
o Problem: Insistence on a single basic norm outside the legal
system itself and chosen on principle of effectiveness.
o Constitutions frequently bristle with possible internal
conflicts= no basic norm will suffice to resolve.
▪ When conflicts arise, they are resolved in the light
of the political climate that prevails.
o Present international situation is far too fluid and variable
to say that every nation accepts or is obliged to accept
once for all a pluralistic/monistic attitude towards the
validity of international law as overriding system.
Nothing can stop this development save the force of tradition.
 V. LAW AND SOCIETY (pp. 200-210) only attainable by creation of national states
representing the peak of civilization.
Individualism and Collectivism d. “Libertarian”
i. State law always prevails.
Individualist Collectivist 1. Provides the standards of morality since it
Law should interfere as little as Human happiness-> improved embodied the highest development of the
possible with individual freedom the material welfare of society idea of reason.
of action, especially economic as a whole. 2. Subscribed by Nazism and Fascism
action a. Nation-state as an emergent entity
o Smith’s laissez faire Emphasis on value of social embodying the highest reality
o Maine’s freedom of contract welfare and necessity of attainable by man and to which
legislative intervention to individual, his conscience and
attain this. morality were subordinated.
Imposition of working hours is By blithely leaving the forces 3. Nietzche’s dogma of superman
problematic and wrong for it of economic market to a. Law itself was not matter of legal
unduly hampers the liberty of the operate, a vast amount of formulation but rather the
workers/bargaining. human misery, poverty and intuitive expression of the dictates
distress resulted. of race or the nation itself.
Economic forces of society
Henry Maine’s Freedom of Contract 1. Karl Marx
o Freedom of the individual to make any contract he wished was the o DIALECTICAL MATERIALISM.
symbol of a developed and open society. o It is not ideas the rule the world but material forces, especially
o POLICY OF THE LAW: Maintain this freedom and strike down any economic ones.
attempt to fetter the liberty of individual to choose the obligations o Two strands
to which he would submit. o Foretells a period of doom and destruction
o After the revolution and when the class conflict has
Society as an emergent entity already been resolved and private property has
1. Rosseau’s general will already been replaced by a communist regime
2. Edmund Burke’s traditional and historical roots of social o Law and state will wither away; No need for
organism. coercion.
3. HEGEL: Pattern of society as a metaphysical entity both o Prophetic element
distinct from and superior to the individuals who caused it. o Studied the existing economic and class system and
a. Linked to historicism: Development of human history as brought out in a novel fashion the close inter-
following a pre-ordained pattern. relationship between economic ordering of a society
b. Idealist: Idea was real more than the world of physical and its dominant ideology.
sensations. o Ideology depends on economic arrangements.
i. Governing idea is human reason. o Law was distilled out of the economic order which gave
1. State as embodiment of reason. rise to it and was an institutionalized form of the
c. Apostle of freedom: How mankind was developing prevailing ideology whereby the dominant section of
towards a higher form of political and cultural freedom society coerced the masses into obedience.
Science of Sociology applied to law. i. Problems of our society is based on ignorance
1. Benthamian utilitarians and French philosopher Comte rather than on inherent natural defects.
a. Man in society was just as capable of being scientifically b. Every coherent society has a pattern of culture which
studied as was any other phenomenon of the natural determines its various ideologies.
world. c. Law develops certain postulates of its own which tend
2. R. Von Jhering to set the pattern/framework within which the law
a. Law not as formal system of rules but as prime method develops.
of ordering society.
i. Society is composed of mass interests, many of Law and Society (p. 213-219).
them are economic but by no means at all. Later Developments: Legal Realism in U.S.
ii. Unfettered clash would lead to anarchy and chaos. o Rise of the ‘free-law’ school which rejects the idea that legal
iii. There was never enough of everything to go round decisions could be based upon rules at all and claims that
so as to meet everybody’s requirements. they were essentially a matter of policy and choice.
b. Law as impartial mediator. o Judges were really free to apply riles as his caprice,
c. The lawyer needs to bring the technical principles of ideology or sense of social need might direct.
his subjects to a genuine understanding of the o Manifestations of this in the United States
underlying sociological implications of the legal rules. o Reliance on social science and technology as a key to
3. Max Weber resolving the problems of human welfare.
a. The acceptance of law as rational science was based on 1. Pragmatism
certain fundamental and semi-logical postulates • Search for truth as a process of continuous
i. Law is a “gapless” system of legal principles experiment to find out what actually
ii. Every judicial decision involves an application of worked.
an abstract legal proposition to a concrete • WILLIAM JAMES: ‘bitch-goddess, success’
situation. o Reverence for practical
4. Ehrlich achievement was cardinal tenet in
a. Living law the American way of life.
i. Actual social norms which governed society in all o LAW WAS NOT A PROCESS OF
its aspects DEDUCING CORRECT
ii. A continual process of change DECISIONS FROM ESTABLISHED
1. Positive law needs to constantly be LEGAL PRINCIPLES BUT WAS A
adapted to it. CONTINUOUS PROCESS OF
2. Ethical values prevalent will be reflected. EXPERIMENTAL ADAPTATION
b. Pattern of culture OF DECISION-MAKING TO
i. Every society had an inner order of the PARTICULAR CASES.
associations of human beings which composed it, 2. Realism
and this inner order dominated life itself, even o JUSTICE OLIVER WENDELL HOLMES
though it had not been posited in legal o LAW IS NOT A TEXTURE OF
propositions of positive law. SUBSITING RULES BUT A MERE
5. Roscoe Pound TECHNIQUE OF PREDICTING WHAT
a. Legal process as social engineering. DECISIONS COURTS OF LAW ARE
 LIKELY TO MAKE IN PARTICULAR
CASES.
o Lawyer should explore all the
sociological and psychological factors
bearing upon the decision-making.
o What really matters is not words but
actions, not what the court says but
what the courts do.
o Law as a great social fabric constituted by
human behavior in all the mass of
transactions which have legal significance.
Two aspects of American realism
1. Technique of predicting decision-making
a. Aims to develop improved methods by which the course
of future decisions might be more clearly and readily
foreseen.
2. An attempt to achieve a profounder understanding of the
functioning of the legal system with a view of rendering it a more
effective means of social control and of attaining the aims which
society has set itself.
a. Aims are in a state of perpetual flux.
Chinese and oriental societies
o Legal justice is a process of mediation or arbitration rather than
an adjudication in accordance with fixed rules.
o Justice of the ‘cadi under the palm tree’
The Scandinavian Realists
o Shares similarities with American movement
o Law as a figment of imagination: Hans Andersen’s tale of the
king who paraded naked while subjects continued to describe as
his rich and elegant royal robes.
o KARL OLIVECRONA
o The idea that there are rules of law and that these are in a
mysterious way ‘binding’ upon us is a mere fantasy
created in our minds by various superstitions and
magical beliefs of the past.
o LAW IS NO MORE THAN A LOT OF WORDS WRITTEN
ON PIECES OF PAPER.
▪ These words serve to evoke on appropriate
occasions all kinds of thoughts, recollections and
notional pattern of conduct.
o LAW AS A FORM OF PSYCHOLOGY
▪ Human responds in particular ways to certain
kinds of social pressure.
▪ Printed laws emanate from time to time not from
the will of the legislative body but because the
people who comprised it are psychologically
induced to act in certain ways.
▪ If a revolution occurs, the revolutionaries would
exert propaganda psychological pressure upon
the citizens which will cause them to produce the
same response as to the previous constitutional
authorities.
o Law/mental obligations are mental constructs but this
does not mean that laws can be reduced to psychology.
o Law is neither a mere exercise in linguistics, a mere set of
psychological reflexes nor a mere complex of social
patterns- It is a peculiar anagram of all these key
concepts which are central to the nature of man and
without which he would be a different creature.
The Contrasting Ideologies of Common Law and Civil Law.
CIVIL LAW COMMON LAW
Post classical roman law Protestant and secularist
Rationalism English empiricism
Codified Pragmatic art to be left to practical
layers and judges who know what
to do in order to resolve a dispute.
Catholic faith is Laws are a matter of political
predominant and natural /practical decision to be
law-ideology is embedded distinguished from religion and
morality
The Ideology of International Law
o Effectiveness depend on the extent to which it corresponds to
the underlying ‘living law’
o So long as nations are ready to accept the authority of
international system.
o Laws are reflections of the society to which it operates.
 VI. LAW AND CUSTOM (pp. 251-253)
Custom and the Historical School
o Romantic Movement
o Nation-state is no mere rationalist construction of
freely-consenting citizens but is a historical entity
deeply rooted in tradition and possessing an organic
unity deeply rooted in tradition and possessing an
organic unity.
o GERMANY’S HEGEL.
▪ Doctrine that the state as a living organism is
an end-in-itself and the highest embodiment
of human reason.
o SAVIGNY
▪ Law was not deliberately created product of
some artificially contrived legislator, but was a
slow organic distillation of the spirit of the
particular People among which it operated.
• Customary law- product of a long and
continuing historical process and its
validity depended on the fact that its
traditional character was rooted in
popular consciousness and was thus
the true national law in accordance to
the spirit of the people.
▪ Law is not just an abstract set of rules
imposed on society but is an integral part
of it deeply rooted in the social and
economic order in which it functions and
embodying traditional value-system.
▪ Development of customary law at the
professional level was achieved effectively
because the judge and jurist were acting as
organs of popular consciousness.
▪ Complexity and technicality means that courts
and judges have to assume a creative role
o The Volksgeist
▪ Weakness: Highly dubious conception of
people as an identifiable entity.
▪ Volk- capable of reference not only to a people
but to a nation, a race, or a racial group.
o The English Historical School
o SIR HENRY MAINE
▪ Need of a progressive society to adapt its law
to new social requirements.
▪ Continuity of historical development.
▪ Only legislation and codification could solve
the problem.
VII. THE JUDICIAL PROCESS (pp. 256-263)
The Separation of Powers
o Montesquieu- doctrine of separation of powers.
o Each of these powers was vested in a different body or
person.
The Independence of Judiciary
o Laws are to be fairly interpreted and impartially applied, judiciary
should be free from political pressure.
o But appointments?
o Development of strong tradition in favor of ignoring
political considerations when making judicial
appointments.
▪ Appointment by President, confirmation by
Legislature.
▪ Judges should hold office for life or until
retirement.
▪ Requirement of concurrence of judiciary or bodies
representing the bar/legal professions.
o How about promotions?
o Judiciary may be unwilling to incur executive displeasure.
▪ Avoiding too hierarchical of a pattern
▪ Salaries at the same level.
▪ Avoiding promotion on the basis of sovereignty.
Can Judges Make the Laws?
o Judicial role is not properly legislative at all but consists in merely
stating what the existing law actually is and in interpreting
authoritatively doubtful points as they arise.
o COMMON LAW: Judges have no power to make law but simply to
declare it as I had always been.
o TWO VIEWS OF NATURE OF LAW
o Law is a sacred mystery
 ▪ Associated with an aristocratic order of society The Binding Force of Precedent
and was not altogether alien to the older common o Stare decisis.
law. o COMMON LAW
▪ Judges as exponents of written law and o Royal judges as true founts and expositors of legal
depositories/living oracles of law. principle and their recorded judgments in decided
o Law as a body of customary rules judgments in decided cases have always enjoyed a
▪ Judges are mere qualified exponents, not creators. peculiar sanctity and authority.
The Idea of Judges doing no more than to declare a law is a pretense o Treating judicial opinions as authoritative
o BENTHAM pronouncements of the law.
o Common law as ‘Judge-made’ law/product of Judge and o Stare decisis
Co. o Obiter dicta have a high level of persuasive authority.
o It is derived from the state of legal professional opinion of o CIVIL LAW APPROACH
which the judiciary was an important element. o Although pronouncements if some tribunals of high
o Believes that by virtues of rational codification, judicial authority might be regarded as especially weighty.
legislation could be avoided. o Development of legal principle was the province of
o AUSTIN learned legal professors and writers than of the court.
o All law from the command of a sovereign legislator. o No stare decisis.
o Judge-made law-paramount importance in legal system. The Status of the Judges
▪ Bringing the law into line with the needs of a o Much of the authority enjoyd by common-law precedent has
modern community. stemmed from high status, independence and substantial salaries
o Another aspect of his approach gave further strength to accorded to the judiciary in common-law countries.
assumption that it is of no concern of the judges to make
what the law is but only to say what it is COMMON LAW CIVIL LAW
▪ Differentiation between what the law is and what Status, salaries High status, Lower standing,
it ought to be independence, modest salaries.
▪ Judges are not concerned with that the law ought substantial salaries
to be.
Limits of Judicial Law-Making How the common law system functions?
o Judges cannot divorce themselves from the pattern of values o A decision of the higher court is binding on all lower courts in
which it implicit in the group/society to which they belong and no hierarchy.
amount of impartiality and judicial lack of passion will succeed in o Any judicial pronouncement if higher courts are deserving of the
eliminating the influence of factors of this kind. closest consideration and will only be departed from after careful
scrutiny of the reasons given for it.
Development of law of negligence Ratio-decidendi of a case
o Broad acceptance of principle that there should be a duty to make o Portion of the case which is binding.
reparations whenever injury is inflicted owing to negligence. o Every case which applies the law to a given set of facts is animated
o Doctrine of vicarious liability. by legal principle which is necessary to the decision arrived at.
o Ratio is not always found on the statement of the rule.
o Cases are only binding in relation to other cases which are
precisely similar.
The Realist viewpoint
o What matters in law is not so much what courts say, as what they
do.
o Even in the case of binding precedents the courts recognize a
reserve doctrine that the earlier case may have overlooked some
point contained in a statute or another binding precedent.
How does the civil-law system function
o Individual decisions are not in themselves binding, but only a line
of decisions which places a principle beyond controversy.
o Not prepared to accept that appellate courts should be precluded
from reviewing their own earlier decisions.
Codes and statutory interpretation
o Civil law has learned heavily upon a rationalized codification of
the basic principles of the law.
o Main impulse: legal unification and the elimination of local
variations in legal institutions and rules within the same country.
o Common lawyers usually assail any attempt at a codification by
arguing it is either time is not yet ripe, or such process is unduly
rigid and will impede that empirical growth which is regarded as
part of the spirit of the common law.
o On the form of drafting of the civil-law codes in accordance with
Continental practice are expressed in very broad principles
without any attempt to work out all the details in advance.
o A code being a form of legislation, much will depend on the way
the courts approach the general problem of legal interpretation.
VII. SOME LEADING LEGAL CONCEPTS (pp. 309-325)
Rights and Duties
o Legal norm seems to carry with it the corollary that those to
whom it is directed are in some sense ‘bound’ by it or subjected
to some kind of ‘obligation’
o Idea of being bound to act (or not to act).
o Duties imposed by law have to be carefully distinguished from
duties derived from other normative sources, such as morals,
religion or social convention.
o Citizen should feel himself committed to compliance but because
the rule of law itself is a vital part of the social morality of the
community.
Rights
o Right has both a moral connotation and an emotional overtone.
o Recht, droit, diritto- moral right.
The Connexion Between Rights and Duties
o Rights and duties are said to be ‘correlatives’ that is to say that
they are simply opposite ends of a legal relationship and this
bilateral relation must invariably exist.
o There may be duties which are imposed without conferring any
rights [i.e. public and social welfare duties]
Duty
o Fundamental concept of a legal system .
Primary and Remedial/ Sanctioning Rights
o SUBSTANTIVE LAW
o Laying down all the various rights and duties which the
law treats as governing people in all their legal
relationships and existing prior to any actual breach of
duty.
o PROCEDURAL LAW
o Breach of duty has occurred and the injured party seeks
by legal proceedings to obtain some remedy/relief.
o Injured party’s rights can be expressed rather in terms of
the claims he may have upon the court to a particular kind
of order.
o The law creates a huge apparatus of rights and duties
which may properly be regarded as primary-> directed at
controlling the behavior of the people in general.
o The division is blurred by extreme sanctionist view of law
o Nothing can rank as legal duty unless It is capable of actual
enforcement.
▪ De facto unenforceable
• Law distinguishes between a substantive
and a merely procedural bar to obtaining
enforcement of a legal right.
o [See index cards]
Ownership, Property and Possession
o Ownership- things; right to a thing.
o Property- legal relationship resulting from a set of legal norms.
Ownership of Rights
o Right is ‘owned’ by a particular person, or transferred from one
person to another.
o Not all legal rights can be transferred to others.
o Right to one’s reputation
o Rights that are grounded on public policy
o Claim to damages in tort.
o No more than that rights are exercisable by certain persons
and that such persons may accordingly be described as
owners of those rights.
Is Ownership an Absolute Right to ‘a Thing’
o Ownership as involving an absolute right to something which may
be either tangible or intangible.
o Intangible: Avoid the difficulty created by such instances
as ownership of patents or copyright.
o Absolute right to legal rights.
o The notion of absoluteness is introduced to indicate the unlimited
character of the owner’s right.
o Ownership may be virtually completely divested of the
elements of enjoyment and control and still remain
ownership.
Rights ‘in rem’
o Certain rights are only exercisable against a particular person or
closely defined group of groups, whereas other rights are
available against everyone.
o There are some rights which would not qualify as propriety rights
in law but which are nevertheless enforceable against everyone,
including the true owner.
o Exclusive license granted by a copyright owner.
o Two types of owners: legal and equitable owners [trust]
o Ownership cannot be reduced to one simple central idea.
o Certain right has a specific subject matter and which is
capable pf being treated as pecuniary interest/pecuniary
value.
o Owned by a person who can lay claim to the ultimate
core of title to that thing.
o DOCTRINE: Possession is nine points of the law
o Possession cannot be regarded as conclusive
evidence of a good title but must always be
relative to the circumstances in which it was
acquired.
2. Beneficial ownership
o Ownership is tied up with various ways in which an owner
may exercise certain legal powers or liberties in relation to its
subject-matter.
o Strict settlement-> ownership in land is divided between
succession of life tenants and other future interests has played
a large role in the historical formation of English society.
o Civil law systems- treating ownership as less readily divisible.
o CIVIL LAW: Shared rights of husband and wife in
matrimonial property
o COMMON LAW: Property of each spouse is virtually
separate for all purposes.

Ownership as a bundle of rights

1. Root of title
o More fundamental