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What is jurisprudence? Definition and examples

Jurisprudence or legal theory is the philosophy of law, i.e., the science of law. It is the study of the
theories and principles on which a legal system is founded. Jurisprudence is the science. The term may
also refer to a department of law, as in ‘medical jurisprudence.’

There are several different types and schools of jurisprudence. Some treat the subject like science or
math. Others, however, take a different approach.

“Jurisprudence or legal theory is the theoretical study of law, principally by philosophers but, from
the twentieth century, also by social scientists.”

Jurisprudence – Main Aspects

Four main aspects

There are many aspects to the study of the philosophy of law. However, according to Cornell Law
School, four of them stand out:

– This is where jurists seek to analyze, explain, and classify whole bodies of law. They also examine it
carefully and criticize it. This is the form of jurisprudence with the greatest prevalence.

Legal encyclopedias and law school textbooks represent this kind of scholarship.

– This type of legal theory contrasts and compares law with social sciences and literature. It also
compares law with economics and other fields of knowledge.

– There is also a type that seeks to reveal where a particular legal concept came from. Scholars look at
it historically and also try to find cultural and moral connections.

– According to Cornell Law School: “This body of jurisprudence focuses on finding the answer to such
abstract questions as ‘What is law?‘ and ‘How do judges (properly) decide cases?'”

Three main aspects

Natural Law: Natural law is the notion that some laws that govern us are unchangeable. Therefore,
institutions should make sure that our institutions match these laws.

Analytical jurisprudence: This aspect includes questions such as “What is law?” or “What is the
relationship between morality and law?” In other words, questions that legal philosophers might ask
regarding the law.

Normative jurisprudence: This aspect overlaps with political and moral philosophy. It asks what law
should be like. Should we obey the law? How should we punish law breakers and on what grounds? It
also includes the proper limits we should have and uses of regulation.

When we precede a field of study with the word ‘normative,’ it usually means looking at how things
should be. For example, normative economics is all about value judgments, i.e., how things should be
or should have been.

Meaning and Definition of Jurisprudence

The study of jurisprudence started with the Romans. The term Jurisprudence is derived from Latin
word 'Jurisprudential' which means either "Knowledge of Law" or "Skill of law". The word "juris"
means law and prudential mean knowledge, science or skill. Thus, Jurisprudence signifies knowledge
or science of law and its application. In this sense, Jurisprudence covers the whole body of legal
principles in the world.

1) Jurisprudence Meaning: Jurisprudence in its widest sense means. " knowledge of the law" but in
its limited sense evolution and explanation of general principles upon which actual rules of law are
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based. It is mainly concerned with the rules of external conduct which people are compelled to obey.
Therefore, sometimes it is said that jurisprudence is that Jurisprudence is that science which gives us
knowledge about "law" but the term law we always use in its abstract sense i.e. not in the sense of
concrete statutes but in the sense of principles underlying law. Thus, for example, there are various
branches of law existing in the modern legal system such as contract, crime, trust, properties,
companies, labor etc. In jurisprudence, we have to study the basic principles of each of these branches
and we are not concerned with the detailed rules of these laws. We definitely study these laws in detail
when we study those branches of law separately. Jurisprudence examines the general principles of
law; therefore, Jurisprudence may be considered to be the study and systematic arrangements of the
general principles of law.

2) Definition of Jurisprudence: It is very difficult to define term 'jurisprudence’; However, several

attempts were made in this context to define the term. Some of the definitions of the term
"jurisprudence" given by various eminent jurists as under –

Austin: Austin was the first jurist to make jurisprudence as a science. He defines 'jurisprudence' as
"the philosophy of positive law." He opines that the appropriate subject to jurisprudence is a positive
law i.e. law as it is (existing law). In other words, jurisprudence is not a moral philosophy but it is a
scientific and systematic study of the existing, actual and positive law has distinguished from natural,
ideal or moral law.

Austin divides jurisprudence into two classes. Viz 'general Jurisprudence and Particular
Jurisprudence. According to him 'General Jurisprudence is the philosophy of positive law. On the other
hand, 'particular jurisprudence is the science of any such system of positive law as now actually
obtains or once actually obtained in a specifically determined nation or specifically determined
nations.

Relation of Jurisprudence with other social sciences

Jurisprudence is studying law, law is regulating the conduct of individuals and individuals are living
and forming societies. Therefore, law is an important social phenomenon which is making
jurisprudence as a Social Science.
However, there are several other Social Science, like Ethics, Political Science, Sociology, Psychology
etc. Now, it is logical that these social sciences should be interlinked with each other at some point.
Moreover, these social sciences could not study in isolation. In other words, none of these sciences can
be understand with having a fair knowledge of others. Jurisprudence, being a social science is, in fact,
related with other social sciences.

Jurisprudence and Sociology

Jurisprudence is the study of law and sociology is the study of society and it is also discussing law but
from a different stand-point. Therefore, there is a link between jurisprudence and sociology.
Jurisprudence is concerned with legal rules that actually exists; however, sociology is studying the
effectiveness of those legal rules and their impacts on society.

The Nature of Law-Jurisprudence

Jurisprudence or legal theory is the theoretical study of law. Scholars of jurisprudence seek to explain
the nature of law in its most general form and provide a deeper understanding of legal reasoning, legal
systems, legal institutions, and the role of law in society.
Modern jurisprudence began in the 18th century and was focused on the first principles of natural
law, civil law, and the law of nations. General jurisprudence can be divided into categories both by the
type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought,
regarding how those questions are best answered. Contemporary philosophy of law, which deals with
general jurisprudence, addresses problems internal to law and legal systems and problems of law as
a social institution that relates to the larger political and social context in which it exists.

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This article addresses three distinct branches of thought in general jurisprudence. Ancient natural
law is the idea that there are rational objective limits to the power of legislative rulers. The
foundations of law are accessible through reason, and it is from these laws of nature that human laws
gain whatever force they have. Analytic jurisprudence (Clarificatory jurisprudence) rejects natural
law's fusing of what law is and what it ought to be. It espouses the use of a neutral point of view and
descriptive language when referring to aspects of legal systems. It encompasses such theories of
jurisprudence as "legal positivism", which holds that there is no necessary connection between law
and morality and that the force of law comes from basic social facts; and "legal realism", which argues
that the real-world practice of law determines what law is, the law having the force that it does because
of what legislators, lawyers, and judges do with it. Normative jurisprudence is concerned with
"evaluative" theories of law. It deals with what the goal or purpose of law is, or what moral or political
theories provide a foundation for the law. It not only addresses the question "What is law?", but also
tries to determine what the proper function of law should be, or what sorts of acts should be subject
to legal sanctions, and what sorts of punishment should be permitted.

Administration of Justice | Jurisprudence

1) Introduction -

State maintain law and order and establish peace and social security. Administration of Justice is one
of the primary functions of the State. The main function of the administration of justice is the
protection of individuals' rights, enforcement of laws and punishment of wrongdoer. In determining a
nation's rank in a political organization, no test is considered more decisive than its administration of
justice, for it has been conceived as one of the firmest peelers of any government.

2) What is Administration of Justice

In simple words administration of Justice means justice according to law. Justice generally means the
quality of being just. for example, the awarding of what is due. justice consists of impartiality,
integrity or rightness etc. Administration of justice is generally divided into two parts-
viz Administration of Civil Justice and Administration of Criminal Justice. A State may not be called a
State if it has failed to discharge its functions concerning the administration of justice. Life may not be
lived in a society in which there is no preservation of the rights of man and no prevention of injustice.

3) Origin and Growth of Administration of Justice –

The origin and growth of administration of Justice is identical with the origin and growth of man. In
modern civilized societies, it has evolved through stages.

In early stage when society was primitive and private vengeance and self-help were the
First Stage –
only remedies available to the wronged person against the wrongdoer. He could get his wrong
addressed with the help of his friends or relatives.

Second Stage – The second stage of development of the society was characterized by the state
coming into existence in its rudimentary form when its functions where only persuasive in nature. It
did not have enforcing power by which it could punish the wrongdoer.

In the third Stage of development of society, wrongs could be redressed by payment of

Third Stage –
compensation by the wrongdoer to the wronged(victim) who was affected by the wrongful act.

Thus, up to this time, the justice remained private in nature without the compulsive force of the State.

4) Advantages of Administration of Justice -

Advantages of Administration of Justice are as follows –

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Uniformity and certainty - Legal Justice ensures uniformity and certainty. Everybody knows what
the law is and there is no scope for arbitrary action. Even Judges have to give decisions according to
the declared law of the Country. As the law is certain, citizens can shape their conduct accordingly.

Impartiality - Another Advantage of Administration of Justice, there is impartiality in the

administration of justice. Judges are required to give their decisions according to the pre-determined
legal principles and they cannot go beyond them.

5) Disadvantages of Justice –

Despite the aforesaid advantages there are certain disadvantages of Legal Justice which are as follows.

Rigidity - One Disadvantage of Legal Justice is that it is Rigid. Law has already been laid down
in precedents. It is not always possible to adjust it to the changing needs of society. Society may change
more rapidly than legal justice and may result in hardship and injustice in certain cases. Judges act
upon the principle that "hard cases should not make bad law".

Technicalities - Another disadvantage of legal justice is its technicalities (formalism). Judges attach
more importance to legal technicalities than they deserve. They give importance to form than to
substance.

Complexity - Modern society is becoming more and more complicated and if made from time to time
to codify or simplify the legal system but very soon law becomes complicated.

6) Types of Administration of Justice –

a) Criminal Administration of Justice – Administration of criminal justice deals with public wrongs.
all offenses included in Indian Penal Code (IPC) are public wrongs. The administration of criminal
justice is to punish the offender. Punishment may be described as the infliction by State Authority, of
a consequence normally regarded as an evil (for example imprisonment or death) on an individual
found to be legally guilty of a crime.

Importance and Purpose of Criminal Justice.

The main purpose and object of criminal justice is to punish the wrongdoer (offender) and to maintain
law and order in society. It is the State which punishes the Criminal. Punishment necessarily implies
some kinds of pain inflicted upon the offender or loss caused to him for his criminal act which may
either be intended to deter him from repeating the crime or maybe an expression of
society disapprobation for his Anti-Social conduct or it may also be directed to reform and regenerate
him and at the time ported the society from criminals.

b) Civil Administration of Justice –

The main object of the administration of civil justice is to provide relief by way of compensation or
other relief to the injured party. The rights enforced by Civil proceedings are of two kinds viz., Primary
rights and Sanctioning rights. Primary rights are those which exist as such. They do not have their
source in some wrong. Sanctioning or remedial rights are those rights which come into being after the
violation of a primary right. A primary right is right arising out of conduct or as a jus in rem.
A sanctioning the right is one which arises out of the violation of another right. For example, if X enters
into a valid contract, his right to have the contract performed is a primary right. If the contract is
broken, his right to damages for the loss caused to him for the breach of contract is sanctioning right.
A primary right may be enforced by specific enforcement. A sanctioning right is enforced by
sanctioning enforcement.

Purpose of Civil Administration of Justice- The purpose of civil justice is the enforcement in civil
proceedings, either a primary or a sanctioning right.

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Definition and Kinds of Sources of Law
The term "Sources of law" means the origin from which rules of human conduct came into existence.
The term has been used in different senses by different writers and different views have been
expressed from time to time.

1) Definition: According to C. K. Allen " agencies through which the rules of conduct acquire the
character of law by becoming definite, uniform and compulsory".
According to Keeton Source means "the material, out of which is eventually fashioned, through the
activity of judges".
Oppenheim defines source of law as " the name for a historical fact out of which the rules of conduct
came into existence and acquire legal force".

2) Kinds of Sources of law: Sources of law may be classified into - Formal Sources and Material Sources

i) Formal sources: The formal sources law also be called the Actual or ultimate Sources of law.
According to Sir John Salmond, that "sources " from which a rule of law derives its force and validity.

ii) Material Sources: The material sources of law are those which gives the matter or content of a
principal of law. As the word material suggests, material sources deal with the substance, elements or
constituent material of law. Material sources of law tells us what is contained in the law.
According to Salmond, material sources are of two kinds - Historical Sources and Legal Sources.

Historical Sources: Historical Sources of law are those which expresses the history or evolution for
the principal of law and the circumstances through which it attained the form of law. These Sources
are unauthoritative, they are Sources in fact but they have no legal recognition. And have only
persuasive value. Historical Sources may become legal if they are recognized by law.

Example: Acts of Parliament is a Legal source and the work of H. L. A Hart is a Historical Source.

Legal Sources: Legal Sources are those Sources which are the instruments or organs of the State by
which legal rules are created. Salmond has classified the Legal Sources of English Law into four
divisions are as follows:

a) Legislation b) Precedent c) Custom d) Agreement

A) Legislation: which gives rise to enacted law. According to Salmond Legislation is that source of
law which consists in the declaration of legal rules by a competent authority.

B) Precedent: Precedents signify past judicial decisions. Judicial Precedents are an important source
of law. They have enjoyed high authority at all times and in all countries.
C) Custom: Custom is also an important source of law. Custom signifies the habits and practices of the
people. Custom gives rise to customary law. According to Salmond, Custom is the embodiment of those
principles which have commended themselves to the national conscience as principal of justice and
public utility.
D) Agreement: An Agreement is the state of being in accord of conformity such as to agree to the
details of a transaction. An agreement may be defined as the expression by two or more persons
communicated to each other of a common intention to affect the legal relations.

Legislation in jurisprudence
In modern times, legislation is considered as the most important source of law. The term ‘legislation’
is derived from the Latin word legis which means ‘law’ and latum which means “to make” or “set”.
Therefore, the word ‘legislation’ means the ‘making of law’.

The importance of legislation as a source of law can be measured from the fact that it is backed by the
authority of the sovereign, and it is directly enacted and recognized by the State. The expression

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‘legislation’ has been used in various senses. It includes every method of law-making. In the strict
sense it means laws enacted by the sovereign or any other person or institution authorized by him.

Kinds of Legislation
The kinds of legislation can be explained as follows:

Supreme Legislation:

When the laws are directly enacted by the sovereign, it is considered as supreme legislation. One of
the features of Supreme legislation is that, no other authority except the sovereign itself can control
or check it. The laws enacted by the British Parliament fall in this category, as the British Parliament
is considered as sovereign.

Subordinate Legislation:
Subordinate legislation is a legislation which is made by any authority which is subordinate to the
supreme or sovereign authority. It is enacted under the delegated authority of the sovereign. The
origin, validity, existence and continuance of such legislation totally depends on the will of the
sovereign authority. Subordinate legislation further can be classified into the following types: -

Autonomous Law: When a group of individuals recognized or incorporated under the law as an
autonomous body, is conferred with the power to make rules and regulation, the laws made by such
body fall under autonomous law. For instance, laws made by the bodies like Universities, incorporated
companies etc. fall in this category of legislation.

Judicial Rules: In some countries, judiciary is conferred with the power to make rules for their
administrative procedures. The Supreme Court and High Courts have been conferred with such kinds
of power to regulate procedure and administration.

Local laws: In some countries, local bodies are recognized and conferred with the law-making powers.
They are entitled to make bye-laws in their respective jurisdictions. The rules and bye-laws enacted
by them are examples of local laws.

Colonial Law: Laws made by colonial countries for their colonies or the countries controlled by them
are known as colonial laws. For a long time, However, as most countries of the world have gained
independence from the colonial powers, this legislation is losing its importance and may not be
recognized as a kind of legislation.

Laws made by the Executive: Laws are supposed to be enacted by the sovereign and the sovereignty
may be vested in one authority or it may be distributed among the various organs of the State. In most
of the modern States, sovereignty is generally divided among the three organs of the State. The three
organs of the State namely legislature, executive and judiciary are vested with three different
functions. The prime responsibility of law-making vests with the legislature, while the executive is
vested with the responsibility to implement the laws enacted by the legislature. However, the
legislature delegates some of its law-making powers to executive organs which are also termed
delegated legislation. Delegated legislation is also a class of subordinate legislation. In welfare and
modern states, the amount of legislation has increased manifold and it is not possible for legislative
bodies to go through all the details of law. Therefore, it deals with only a fundamental part of the
legislation and wide discretion has been given to the executive to fill the gaps. This increasing tendency
of delegated legislation has been criticized. However, delegated legislation is resorted to, on account
of reasons like paucity of time, technicalities of law and emergency. Therefore, delegated legislation is
sometimes considered as a necessary evil.

Precedent in Jurisprudence
JUDICIAL PRECEDENT AS A SOURCE OF LAW
In simple words, judicial precedent refers to previously decided judgments of the superior courts, such
as the High Courts and the Supreme Court, which judges are bound to follow. This binding character
of the previously decided cases is important, considering the hierarchy of the courts established by
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the legal systems of a particular country. Judicial precedent is an important source of law, but it is
neither as modern as legislation nor is it as old as custom. It is an important feature of the English legal
system as well as of other common law countries which follow the English legal system. In most of the
developed legal systems, judiciary is considered to be an important organ of the State. In modern
societies, rights are generally conferred on the citizens by legislation and the main function of the
judiciary is to adjudicate upon these rights. The judges decide those matters on the basis of the
legislations and prevailing custom but while doing so, they also play a creative role by interpreting the
law. By this exercise, they lay down new principles and rules which are generally binding on lower
courts within a legal system. It is important to understand the extent to which the courts are guided
by precedents. It is equally important to understand what really constitutes the judicial decision in a
case and which part of the decision is actually binding on the lower courts.

Judicial decisions can be divided into following two parts:

Ratio decidendi (Reason of Decision): Ratio decidendi’ refers to the binding part of a judgment.
‘Ratio decidendi’ literally means reasons for the decision. It is considered as the general principle
which is deduced by the courts from the facts of a particular case. It becomes generally binding on the
lower courts in future cases involving similar questions of law.
Obiter dicta (Said by the way): An ‘obiter dictum’ refers to parts of judicial decisions which are
general observations of the judge and do not have any binding authority. However, obiter of a higher
judiciary is given due consideration by lower courts and has persuasive value.

Custom in jurisprudence
Custom can simply be explained as those long-established practices or unwritten rules which have
acquired binding or obligatory character. In ancient societies, custom was considered as one of the
most important sources of law; In fact, it was considered as the real source of law. With the passage of
time and the advent of modern civilization, the importance of custom as a source of law diminished
and other sources such as judicial precedents and legislation gained importance.
There is no doubt about the fact that custom is an important source of law. Broadly, there are two
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom
as law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom
as the main source of law. According to him the real source of law is the will of the people and not the
will of the sovereign. The will of the people has always been reflected in the custom and traditions of
the society. Custom is hence a main source of law.

Kinds of Customs
Customs can be broadly divided into two classes:

Customs without sanction: These kinds of customs are non-obligatory in nature and are followed
because of public opinion.
Customs with sanction: These customs are binding in nature and are enforced by the State. These
customs may further be divided into the following categories:
 Legal Custom: Legal custom is a custom whose authority is absolute; it possesses the force of law. It
is recognized and enforced by the courts. Legal custom may be further classified into the following two
types:

 General Customs: These types of customs prevail throughout the territory of the State.

 Local Customs: Local customs are applicable to a part of the State, or a particular region of the
country.

 Conventional Customs: Conventional customs are binding on the parties to an agreement. When two
or more persons enter into an agreement related to a trade, it is presumed in law that they make the
contract in accordance with established convention or usage of that trade. For instance, an agreement
between landlord and tenant regarding the payment of the rent will be governed by convention
prevailing in this regard.

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 Essentials of a valid custom All customs cannot be accepted as sources of law, nor can all customs
be recognized and enforced by the courts. The jurists and courts have laid down some essential tests
for customs to be recognized as valid sources of law. These tests are summarized as follows:

Antiquity: In order to be legally valid customs should have been in existence for a long time, even
beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England has been
fixed for the determination of validity of customs.

Continuous: A custom to be valid should have been in continuous practice. It must have been enjoyed
without any kind of interruption. Long intervals and disrupted practice of a custom raise doubts about
the validity of the same.

Exercised as a matter of right: Custom must be enjoyed openly and with the knowledge of the
community. It should not have been practiced secretly. Accustom must be proved to be a matter of
right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.

Reasonableness: A custom must conform to the norms of justice and public utility. A custom, to be
valid, should be based on rationality and reason. If a custom is likely to cause more inconvenience and
mischief than convenience, such a custom will not be valid.

Morality: A custom which is immoral or opposed to public policy cannot be a valid custom. Courts
have declared many customs as invalid as they were practiced for immoral purpose or were opposed
to public policy.

Status with regard to: In any modern State, when a new legislation is enacted, it is generally preferred
to the custom. Therefore, it is imperative that a custom must not be opposed or contrary to legislation.
Many customs have been abrogated by laws enacted by the legislative bodies. For instance, the
customary practice of child marriage has been declared as an offence.

Legal Rights Jurisprudence

There can be on duty without a right and According to Hibbert “a right is one person’ capacity of
obliging others to do or forbear by means not of his own strength but by the strength of a third party.
If such third parts are God, the right is Divine. If such third parts are the public generally acting though
opinion, the right is moral. If such third parts are the stale acting directly or indirectly, the right is
legal.”

Definition of Legal Right: The term legal right has been used in two senses:

Restricted or Popular Sense:

According to Gray: A legal is that powers which a man has to take a person or person do or refrain
from doing a certain act or certain acts, so far as the power arises form society imposing a legal duty
upon a person or persons.

Wider Sense: In a wide sense, legal right includes any legally recognized interest whether it
corresponds to a legal duty or not. It is an addition or benefit conferred upon a person by a rule of law.

Kinds of Legal Rights:

Following are the kinds of legal rights:
 Perfect right
 Imperfect right
 Real and Personal Rights
 Rights in Rem and Rights in Persona
 Proprietary and Personal Rights
 Inheritable and Uninheritable Rights
 Rights in Repropria And Rights in Re Aliena
 Principal and Accessory Rights
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 Legal and Equitable Rights
 Primary and Secondary Rights
 Public and Private Rights
 Vested and Contingent Rights
 Servient and Dominant Rights
 Municipal and International Rights
 Rights at Rest and Rights in Motion
 Ordinary and Fundamental Rights
 Jus Ad Rem

Perfect right: According to salmond, a perfect right is one which corresponds to a perfect duty i.e.,
which is enforced by law.
Example: A contract especially 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.

Real and Personal Rights:

Real right: According to salmond, a real right corresponds to a duty imposed upon persons in general.
It available against whole word. Real rights are generally a negative right as the duties which can be
expected form the whole world is of a negative character.
Example: I have a right to be deprived of my life is a real right as it is available against the whole world.
Personal right: A personal right corresponds to a duty imposed upon determinate individuals. It
against a particular person. Personal rights are generally positive right as it imposes a duty on a
particular person to do something.
Example: I have a personal right to receive compensation form any individual who is any harms me.

Rights in Rem and Rights in Persona:

Rights in Rem: It is derived from the Roman term action in Rem”. It is available the whole world
Examples are rights of ownership and possession. My right of possession and ownership is protected
by law against all those who those may interfere with the same.
Rights in Persona: It is derived from the Roman term “action in persona,” Right in persona corresponds
to duty imposed upon determinate persons.
Example: Rights under a contract are right in Persona as the parties to the contract alone are bound
by it.

Proprietary and Personal Rights:

Proprietary Right: 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,
as well being. Personal rights possess merely judicial importance.
Example: Right to life, reputation etc. are personal rights.

Inheritable and Uninheritable 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.

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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.

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 favor of ‘Y’. the debt is the principal
right and the security in the form of mortgage is the accessory right.

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.

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.
Example: Right of reputation, Right to life etc.
Secondary Rights: Secondary rights are also called sanctioning, statutory 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.

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 remain to be satisfied.
Example: If a valid deed of transfer is executed by; A; in favor 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 happening of all the facts on which the title depends.
Example: ‘A’ executes a deed in favor 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

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.

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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 constitution 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 persona.
Example: If ‘A’ sells his house to ‘B’. ‘B’ acquires a right against ‘A’ to have the house transferred to
himself.

Conclusion: To conclude, I can say, that legal rights are those which are conferred by the state on
certain individuals and imposes corresponding duties on others. It is enforced by the physical force of
the state. It is been classified into different kinds according to their scope by various authors.

Ownership in jurisprudence
Jurists have defined ownership in different ways. All of them accept the right of ownership as the
complete or supreme right that can be exercised over anything. Thus, according to Hibbert ownership
includes four kinds of rights within itself.
 Right to use a thing
 Right to exclude others from using the thing
 Disposing of the thing

Right to destroy it. Austin’s definition Austin while defining ownership has focused on the three main
attributes of ownership, namely, indefinite user, unrestricted disposition and unlimited duration.
Indefinite User Unrestricted Disposition Unlimited Duration

The abolition of Zamindari system India, the abolition of privy purses, nationalization of Bank etc. are
some example of the fact that the ownership can be cut short by the state for public purpose and its
duration is not unlimited. Austin’s definition has been followed by Holland. He defines ownership as
plenary control over an object. According to him an owner has three rights on the subject owned.

Possession Enjoyment Disposition

Planetary control over an object implies complete control unrestricted by any law or fact. Thus, the
criticism levelled against Austin’s definition would apply to that given by Holland in so far as the
implication of the term “plenary control” goes.

Salmond’s Definition: According to the Salmond ownership vests in the complex of rights which he
exercises to the exclusive of all others. For Salmond what constitute ownership is a bundle of rights
which in here resides in an individual. Salmond’s definition thus points out two attributes of
ownership: Ownership is a relation between a person and right that is vested in him
Ownership is incorporeal body or form.

Possession
Salmond defines possession (in legal terms) as the continuous exercising of a claim, to the exclusive
use of an object or a thing constitutes possession of the object. In simpler words, if a person has
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apparent control of an object and apparent power to exclude others from the use of the object, then
we can say he has possession.

Now it is a de facto relation between a man and an object. So, a man can possess a thing he doesn’t
own. Say for example the possession of a property that he has leased from someone (who will be the
owner). And the opposite is also true. One can own some object and not possess it.

Ownership vs Possession

Ownership Possession
Possession is more the physical control of an
Ownership involves the absolute rights and
object. The possessor has a better claim to the
legitimate claim to an object. It means to own the
title of the object than anyone, except the
object by the owner.
owner himself.
Ownership is the right of the owner against the
As per the definitions, it is the continuous
world indefinite in point of the user, unrestricted
exercise of a claim to exclusively possess and
in point of disposition or destroying and unlimited
use the object/thing.
in point of duration over a thing

Ownership itself gives the owner the right to However, it does not indicate the right to
possession. ownership.

The transfer of ownership is a technical and long Transfer of possession is fairly easier and less
process and involves conveyance technical.

Ownership is essentially a bundle of rights, all It is not a right, just a prima facie evidence of
rights in rem. ownership

Titles in Jurisprudence
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.

Persons in Jurisprudence
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 is person. Any being whom law regards as capable of rights and duties.
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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.

Kinds of legal persons They are three kinds of Legal Person are as follows
Institutions: 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 estates: Funds 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.

<First Deserve then Desire> Prepared By: Faraz Ali Faqeer