JURISPRUDENCE LONG ANSWERS

DIFFERENT SCHOOLS OF JURISPRUDENCE

There are four important schools of jurisprudence. Out of which three are based on three

branches of jurisprudence, i.e. Analytical, Historical and Philosophical Schools of

jurisprudence and the last, i.e., Sociological school is of more recent origin.

SCHOOLS

Philosophical Analytical Historical Sociological

Cicero Bentham Savigny Ihering

I Kant Austin Henry Maine Ehrlich

Grotius HLA Hart Dugit

Hegel Hans Kelsen Roscoe Pound

Kohler

500B.C. 1800 A.D. (19th Century) (19th Century) (19th Century)

I) Philosophical School: Philosophical school is interested primarily in the development of

the idea of justice as an ethical and moral phenomenon and its manifestation in the principles

applied by the courts. The exponents of this School of Jurisprudence firmly believed that

law, in order to command respect from the society, must have an element of ethical value so

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that it may achieve the ideals of thought which has been called as the Ethical or Philosophical

School of Jurisprudence.

Hugo Grotius: He says that there are certain rules of human conduct on which there is a

general agreement among majority of mankind. Hugo Grotius is regarded as the Father of the

Philosophical jurisprudence. According to him, law investigates the purpose of law and the

measure and manner in which that purpose is fulfilled. The Philosophical jurists regards law

neither as the arbitrary command of a Ruler nor as the creation of historical necessity, but is

the product of human reason and its purpose is to elevate and ennoble human personality.

Immanuel Kant: Distinguished between law and ethics. Ethics concerns itself with laws of

free action in so far as we cannot be compelled to it but positive law concerns itself with free

action in so far as we can be compelled to it. Ethics is science of Virtue; Law is science of

Right.

Hagel: Emphasized the purpose of law. The free Ego (i.e. individual will) comes into

conflict with other Egos in society. The purpose of legal order is to produce a synthesis of

these conflicting Egos in society. His main contribution to philosophical jurisprudence is

the development of the idea of Evolution in society. Kohler and Stammler are the other

Jurists who contributed to Philosophical School.

II) Analytical School: The Analytical School is positive in its approach to the legal

problems in society. This school takes for granted the developed legal system and proceeds

logically to analyze its basic concepts and classify them so as to bring out their relations to

one another. The jurists of this school consider that the most important aspect of law is its

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relation to the State. Law is treated as a command or imperative emanating from the State.

For this reason this school is also known as the Imperative School.

Contributions of the Analytical School

The important contributions made by this school are as follows:-

1. All positive law is deduced from a determinable law-giver i.e. a sovereign.

2. This school has kept positive law and ideal law strictly distinct. Therefore, it has

analyzed the concept of civil law and established its relationship with other forms of

law.

3. It has laid down the essential elements that make the whole fabric of law like State

sovereignty and the administration of justice.

4. It also takes into account the legal sources from which the law proceeds. The most

important legal sources are legislation, judicial precedents and customary laws.

Analytical School is also known as the Imperative School because law is treated as command

or imperative emanating from the State. All positive law is deduced from the Sovereign.

Jurists of the Analytical School:

1) Bentham (1748-1832)

Jeremy Bentham heralded a new era in the history of legal thought in England. He is

considered to be the founder of positivism in the modern sense of the term.

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Benthams concept of law is an imperative one which means that law is an assembling of

signs, declarations of volition conceived or adopted by the sovereign in a State.

Benthams legal philosophy is called Individualism Function of law is to emancipate the

individual from the bondage and restraint upon his freedom.

Benthams utilitarianism:

He supported the economic principle of Laissez-faire which meant minimum interference

of the State in the economic activities of individuals. According to his Utilitarian theory, the

proper end of every law is the promotion of the greatest happiness of the greatest

number He discussed this principle of utility in Introduction to the Principles of Morals

and Legislation

Bentham summed up his philosophy in the following words:

Nature has placed man under the empire of pleasure and pain. We owe to them all our ideas;

we refer to them all our judgments, and all the determinations of our life.

According to him, the purpose of law is to bring pleasure and avoid pain. Pleasure and pain

are the ultimate standards on which a law should be judged.

2) Austin (1790-1859)

John Austin is the founder of the Analytical School. He is considered to be the father of

English Jurisprudence He was born in 1790 and till 1812 he served as an army officer. After

his graduation he joined the newly founded Benthamite University College as Professor of

Law.

Austins conception of law:

Austins theory of Law has the following important characteristics.

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a) That law is a command of a sovereign authority;

b) That Sovereign is the only source of Law;

c) That Law being a command there are sanctions for its enforcements

According to Austin Law is only an aggregate of individual laws. They are either

directives or those imposed by general opinion. A directive is issued in the form of

commands. A command may be a particular command or general command.

Austin distinguished between laws properly so called and laws improperly so called.

The key to laws properly so called lies in obligation. Laws properly so called are

subdivided into divided law into two parts-

1) Laws set by God for men, and

2) Human laws, i.e. laws made by men for men.

Laws set by men to men are positive laws Positive laws are the subject matter of

Jurisprudence.

a) Positive laws: These are the laws set by political superiors as such, or by men not acting

as political superiors but acting in pursuance of legal rights conferred by political superiors.

Only these laws are the proper subject-matter of jurisprudence.

According to Austin, the study and analysis of positive law alone is the subject matter of

jurisprudence, and the chief characteristics of positive law are command, duty and

sanction.

3) HLA Hart: As per Harts account, Analytical Jurisprudence searches for some kind of

clarity about the idea of law and other basic legal ideas as they occur in our ordinary

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experience. In short, HLA Hart at best can be described both a positivist and naturalist and

by correlating law and morality he conceived what Austin and Kelsen failed to conceive in

legal theory.

4) Hans Kelsen (1881-1973):

Kelsen proposes to expel all non-legal, historical, sociological, metaphysical notions from

science of law in order to make it truly formal.

The Basic Norm: Nature and Origin:

In Kelsens Pure Theory of Law the basic norm or Grundnorm supplies the legal order

with a hierarchy of norms which derive the validity from the basic norm itself. The

Grundnorm the basic norm, determine the content and gives validity to other norms derived

from it.

Basic norm or the grundnorm is a concept created by Hans Kelsen used this word to denote

the basic norm, order or rule that forms an underlying basis for a legal system. For Austin,

law is a command backed by a sanction. However, Kelsen disagreed in two respects. Firstly

he rejected the idea of command, because it introduces a psychological element into a theory

of law, which should, in his view, be pure. Secondly to Austin the sanction was something

outside a law imparting validity to it. To Kelsen, the operation of the sanction itself depends

on the operation of other rules of law. In this way, the contrast between law and sanction in

the Austiniansense disappears.

III. HISTORICAL SCHOOL: The Historical School arose more or less contemporarily

with Analytical Positivism at the beginning of the 19th century. The Historical approach to

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law arose as a reaction against natural law theories. The Historical School concentrates on

the evolution of law from the primitive legal institutions of the ancient communities.

Characteristics of Historical School:

1. Law is found and not made

2. Law is self-existent. i.e. exists even before a State comes into force

3. Law is independent of political authority and enforcement. It is enforced by the

sovereign because it is already law; it does not become law because of enforcement

by the sovereign.

4. Law created in this form is called custom.

Savigny: Savigny is regarded as the founder of the historical school. He was a teacher in the

University of Berlin. His works include The Law of Possession The History of Roman

Law in the Middle Ages

According to Savigny, the chief supporter of the school held that law is the spontaneous

expression of the people and is the result of organic growth. Law of a Country develops in

the same way in which language and culture of that country develop. According to him law

is the result of the popular spirit of the people which he termed as VOLKSGEIST (Volk =

people, geist=spirit) So law has its foundation in the common consciousness of the people

and associated with people. He further says that law grows with the nation, increases with

the nation and dies with its dissolution. As per him the Nation means people.

2) Henry Maine: The honour of being the founder of the Historic Comparative School of

jurisprudence in England belongs undoubtedly to Sir Henry Maine. Maine improved upon

Savignys legal theory explaining the inter-relationship between law and community. He

recognized the role of legal fictions, equity and legislation in the evolution of law.

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The Historical School traced evolution of law through four stages namely, divine law,

customary law, priestly class as a sole repository of customary law and codification. Societies

which do not progress beyond the fourth stage of legal development are called static societies

whereas those which continue development of law by new methods are called progressive

societies.

IV. SOCIOLOGICAL SCHOOL:- The sociological school of jurisprudence emerged as a

result of the synthesis of various juristic thoughts.

Auguste Comte: He was the first to use the term Sociology and he is considered to be the

founder of the science of sociology.

Roscoe Pound (1870-1964):

He conceived of law as social engineering whose main task is to accelerate the process of

social ordering by making all efforts to avoid conflicts of interests of individuals in the

Society. Pound classified the various interests into three heads: viz.

A. Private Interests

B. Public Interests

C. Social Interests

V. REALISTIC SCHOOL: An extreme wing of sociological Jurisprudence developed in

America was the Realist School.

Holmes: Justice Holmes issued a paper in which for the first time seeds of realism were

sown by him.

Gray: Gray defined law as what the judges declare

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Elements of Ancient Indian Jurisprudence

In India the development of jurisprudence and legal theory owes as much to the ancient

Hindu legal thinkers as it owes to the Western jurists and legal philosophers. There have

been great Indian jurists such as Narada, Jaimini, Yagnavalkya, Manu, Kane, Kautilya.

These legal thinkers founded and developed their own system of law and jurisprudence which

excels in many respects with other ancient legal systems.

Among the twentieth century Indian jurists, the names of Dr. B.R. Ambedkar, PV

Gajendragadkar, Justice PN Bhagwati, Justices Chagla, Desai and V.R. Krishna Iyer and

Nani Palkiwalla require special mention.

Dharma or Law: In Hindu legal works, the equivalent word for law is Dharma. The literal

meaning of the term Dharma is that which sustains or holds. Dharma includes religious,

moral, social and legal duties and can only be defined by its contents

Hindu Legal Theory is Hindu Dharmasastra:

Hindu jurisprudence is rooted in Hindu religion and custom. Like the personal law of

Mahomedans, Hindu law is based on religious precepts and rituals. Religion plays a

prominent part in the making of Hindu Law.

The fundamental truths of Hinduism are:

I. Brahma (God)

II. Dharma (righteousness)

III. Karma (act accruing merit or demerit)

Man has to do Karma, and go along the path of Dharma and attain Brahma which attainment

is called Moksha

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Jaminis View:

According to Jamini, Dharma is founded on revelation which is conducive to the welfare of

the society. According to him, Dharma is that which is ordained by the Vedas.

Sources of Dharma:

The Hindu jurists conceived of law as derived from some positive revelation of the deity, the

revelation itself being the outcome of divine reason. Law is discoverable by reason because

the will of God and human reason coincide. On the basis of this principle several sources of

law were laid. Smritikar laid down four sources of law i.e. Veda, Smriti, Sadachar, and self

satisfaction. In the words of Jamini The Smritis have been compiled by sages who were

also repositions of the revelation, there arises an inference that they are founded on Sruti.

Smritikars were those persons who were learned in the Vedas, they only interpreted the

Vedas and did not create it. Manu, Yagnavalkya, Brihaspati and Narada are the main

Smritikars. Manus authority is supreme because Manu Smriti is considered to embody the

essence of the Vedas.

Manu and Manusmriti : The most revered of all the Rishis or sages is Manu. His code has

always been regarded as of paramount authority. Manus work, given to him by Brahma, was

communicated by Manu to his ten followers the ten sages. Bhrigu was the greatest of those

ten sages who further communicated to the world the immortal Code of Manu.

Manu gave eighteen titles of rights and remedies like

i. Recovery of debt;

ii. Deposits;

iii. Sale;

iv. Relationship of partners ; Assaults; Defamation

v. Relation between and duties of husband and wife etc.

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These eighteen titles clearly provide for all the needs of the time for the protection of rights

and liberties.

These eighteen titles clearly provide for all the needs of the time for the protection of rights

and liberties.

Yajnavalkya:

Another great jurist of the age was Yajnavalkya. He can be regarded as next to Manu in

importance and authority. His works include Mitakshara (which is a well known

commentary on Yajnavalkyas work) He in most cases, agrees with Manus teachings and

bases his work on Manus Code.

Narada: he was a divine sage who have his Smriti known as Naradasmiriti. He distinguished

between law and ethics, and proclaimed that the laws and ordinances passed by princes and

rulers could override even the Smritis.

CONCEPTION OF LAW:

According to Vedas law has a divine origin. The Rig Veda conceives law not merely as an

ordering of human conduct and adjustment of human relations, but it is something more i.e.

ordering of things in a fixed and pre-determined manner.

According to Manu, law is an order of human behaviour. This ordering of human relations is

absolutely valid and just because it emanated from the will of God, and because it has

regulated the behaviour of men in a way satisfactory to all.

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LAW AND EQUALITY:

According to Hindu thinkers equality before law was inherent. Manu had proclaimed

equality but according to him, equality did not mean exact sameness.

Compare and contrast Historical School and Sociological School.

Historical School Sociological School

1) Main supporters of this school 1. Ehrlich, Ihering, Duguit and

Are Savigny, Henry Maine, Hugo Roscoe Pond are the Jurists

2) Law is not made, it is self 2. Law is a social phenomenon,

Existent in the Society. It is found law is a social function;

3) law is antecedent to the State. 3. Law is an expression of human

It exists even in the primitive society society.

4) custom is the source of law 4.

5) Law is the outcome of the social

Necessity.

6) Custom is superior than the

Man made law.

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7) It is called Customary Law

8) Unwritten and Common Law.

RELATIONSHIP BETWEEN LAW AND MORALITY IS LAW DEVOID OF

MORALITY

Though law and morality are not identical, yet there is an intimate relationship between these

two. Law, it cannot be denied, is a powerful instrumentality for the maintenance of peace

and the procuring of a harmonious balancing of interests.

Roscoe Pound has pointed out

Equity and natural law insist on good morals. The strict law insists on form, equity and

natural law on justice in the ethical sense; the strict law insists on remedies, equity and

natural law on duties; the strict law insists on rule, equity and natural law on reason.

Though law and morality are closely inter-related and the one cannot be divorced from the

other without baneful consequences, yet it should be borne in mind that law and morality

cannot be regarded as identical.

Law and morals are two separate concepts. The morals are concerned with the individual and

lay down rule for the moulding of his character whereas law concentrates mainly on the

society and lays down rules concerning the relationships of individuals with each other and

with the State.

Relation between Law and Morals:

Relationship between Law and Morals can be seen from three angles

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 1. Morals as the basis of law

2. Morals as the test of (positive) law

3. Morals as the end of law.

1) Morals as the basis of law: In early societies, all rules originated from the common

source and the sanction behind them was of the same nature. When the State came into

being, those rules which were important from the point of view of the society and the

observance of which could be secured by it, were picked up by the State. Behind these rules

the State put its own sanction and then enforced them. Then these rules came to be known as

laws. Though law and morality are not the same, and many things may be immoral which

are not necessarily illegal, yet the absolute divorce of law from morality would be a fatal

consequence.

2) Morals as the Test of Law:

In the 17th and 18th centuries, when the natural law theory was at its peak, it was contended

that law (positive law) must conform to natural law. According to them, any law which does

not conform to natural law is to be disobeyed and the government which makes such law

should be overthrown.

3) Morals as the End of Law:

Morals have been often considered to be the end of law. Law is defined in terms of justice

by many jurists. According to them, the aim of law is to secure justice which is very much

based upon morals.

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About the influence of morals on law, HLA Hart says

The law of every modern State shows at a thousand points the influence of both the accepted

social morality and wider moral ideals. These influences enter into law either abruptly and

avowedly through legislation, or silently and piecemeal through the judicial process.

The further ways in which law mirrors morality which are myriad, and still insufficiently

studied; statutes may be a mere legal shell and demand by their express terms to be filled out

with the aid of moral principles;

Conclusion:

In the case of a statute which is merely undesirable, it has to be followed even by the judges.

But if the statute is inhuman or atrocious, the judge should consider it his duty not to apply it;

it is his duty then to ignore it and to hold that it is no law at all. By proper understanding of

the relation between law and morality and by seeing to what extent there can be a separation,

the dilemma would be minimised.

A CRITICAL NOTE ON PURE THEORY OF LAW

Kelsen regards jurisprudence as a normative science as distinguished from a natural science.

In natural sciences, laws are statements of the sequence of cause and effect but in

jurisprudence laws do not have a casual connection.

The theme of Kelsens pure theory of law is that law is a derivative of norms of actions and

the jurisprudence is the normative science which is distinct from a natural science.

Kelsen built his pure theory of law on the hypothesis of the Grundnorm or Basic norm. He

contended that from the Grund norm, norm making power devolves upon a lower level, from

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which it flows to a still lower level and so on. Thus there is hierarchy of norms, the

Grundnorm being at the peak of it.

Further according to Kelsen, the law must deal with the law, as it is and not with the law as it

ought to be. He claims his theory to be pure theory of law on the ground that the lawness of a

norm is not dependent upon met-legal facts. i.e. it remains free from ethics, politics,

sociology, history etc.

CHARACTERISTICS OF GRUNDNORM

According to Kelsen, following are the qualifications of characteristics of a Ground norm;

1. It is not capable of deduction from any Principles of law;

2. It is incapable of Logical proof

3. It is above all rules of law. In fact every law draws its force from the Grundnorm

only;

4. It should command support from the majority of people.

Implications of the pure theory of Kelsen are wide and include concepts of State, sovereignty,

legal personality, private and public law etc.

a. Law and State are not different things.

b. No difference between public and private law

c. No difference between natural or juristic persons

d. No individual rights

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ELEMENTS OF KELSENS PURE THEORY OF LAW

Kelsens pure theory of law is an improvement upon Austins theory of law in the following

aspects;

1) There is no dualism between State and Law: Since law is according to Austin, the

command of the sovereign, it cannot control the sovereign. But Kelsen treats State as a unity

of legal order, hence there is no dualism between the State and law.

2) Law need not be imperative: Like Austin, Kelsen also thinks that sanction is a necessary

element of law but he does not treat law as a command of sovereign. According to Kelsen,

law need not be imperative.

3) Customary law is also a law: According to Austins theory of law, customary law is not

law in the strict sense of the term but Kelsen has treated legal order as the Pyramid of

norms and has brought custom within the definition of law as it is an intermediate norm and

a popular practice which finally generates into a legal norm.

4) There is no dichotomy between Private and Public Law: The ideology of positive

school which draw a distinction between Private and Public law was refused by Kelsen and

he denied accepting sovereignty as a distinct entity.

5) International law is a law: Austin did not consider International law a law but called it as

a mere positive morality But Kelsen regards International organisation as superior to the

legal order, i.e. State and hence, its norms are binding upon the States.

Austins imperative theory and Kelsens pure theory, although had many distinctions but they

have many common aspects too.

Criticism: Kelsens pure theory of law was criticized on the ground that it accepts the

primacy of International law over National law and thus permitted natural law a back door

entry.

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DIFFERENT POSITIVE LAW THEORIES

Natural law theory exaggerates the relation of law and morality. Positive law is a reaction

against particularly that aspect of Natural law theory. It insists on a distinction between

human law, which they call positive law and moral and scientific laws. Human laws are

posits of human society while scientific laws are independent of what we take them to be.

The Classical version of positive law theory is John Austin's (1797-1859)"command

theory." His model was that of a definition and his goal was to give a definition of law

that removed all evaluative language. We see some continuity with Aquinas' natural law.

While he rejected the blurring of law and morality, he did give a similar "unified"

definition of law: "A rule laid down for the guidance of an intelligent being by an

intelligent being having power over him." God and men both make laws so his distinction

is between the laws of God (reason) and those of historical human societies made by

political "superiors." He insisted on distinguishing the theory of (concept of) law from the

"science of legislation" which had to do with the criticism (evaluation) of the law (c.f.

Dworkin's theory of legislative justice).

Austin is a prime example of a positivist in legal theory, but his was only one version

which we call "command theory:" Law, Austin reasons, has the status of command. Austin

then defines 'command" as any signification of a desire by the sovereign. He then defines

the sovereign as "the determinate rational being or body that the other rational beings are in

the habit of obeying." Each of these further definitions is an attempt to substitute a

descriptive analysis of some prescriptive concept. The notion of a 'command', for example,

includes a normative element of authority and imperative (as distinct from a presumptive

request). Similarly 'sovereign' has a normative element of legitimacy. He tries to define

these both away through the notion of shared habits. One of Austin's motives was to block

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moralistic theories of legitimacy such as those the USA used for forty years in refusing to

recognize China. If a government is in stable effective control of a territory, then its writ

just is the law of that land.

The rest of the definition of 'command' is important. Austin's analysis of a law is different

from a normal command in the sense that a law must be logically general. The court makes

particular judgments, but the legislation is always general in form. A direct, one-time

command to an official is not law. Law is a command to "forbear a whole class of acts."

There is a further element that Austin thinks is inherent in the notion of law-namely that of

punishment. However, 'punishment' also has a normative connotation, namely, of a harm

that is "deserved" or results from violation of a valid law. This Austin tries to define away

with the words "accompanied by the threat of evil in case he does not."

These once all the definition all illustrate how Austin tries to eliminate the notion of legal

'duty' or 'ought' in terms of the probability of punishment-the 'habit' or tendency of the

system. Degree of obligation corresponds to probability and severity of harm. This raises

serious problems for the command theory. Consider one serious crime that is difficult to

prosecute: rape. The rate of arrest and conviction for rape is lower than that for most other

serious crimes. Further, the punishments are relatively light because male judges frequently

have a "boys will be boys" bias.

The problem, simply, is that the definition doesn't capture our concept. The counter-attack

on positivism focused mainly on the command aspect and its link to punishment. We

distinguish laws from illegitimate commands. Rule by a criminal gang may be generalized

and backed by threat of force, but it is not the rule of law. And many laws have no

punishments attached to them.

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Austin knew about and acknowledged some of these difficulties. He addresses declaratory

laws such as laws that repeal laws and laws with no penalties, laws merely creating rights

for example and laws defining marriage. Other problems arise, especially for Austin, with

English "customary" laws (The "Common law" includes decisions of judges made

according to legal "principles" for which there is no written legislation. European states

with a Roman law heritage do not have this element as strongly in their law.) Austin

explains all of these away with his notion of tacit consent of the sovereign. Since the king

does not object, he must have consented. However, they certainly require a very loose

application of a "signification of desire."

Other problems concern international and primitive law. Most legal history recognizes laws

of primitive tribes that have no writing, hence, no formal, legislated code. Austin's

somewhat unsatisfactory response is primitive law is not law. A good theory could take that

position, in principle, but not when we present it as a counter-example to the definition. We

naturally judge that the definition fails if it does not explain our normal use of 'law'.

Another problem has to do with Austin's failure to recognize a kind of complexity in the

law. In England and America, there are "layers" of law which Austin cannot easily make

sense of. They treat the constitution and treaties as a "higher" law. Such a law "constrains"

subsequent legislation and Austin's command theory makes little sense of that. It has equal

trouble with the complex federal legal system where each state is sovereign and yet part of

another state.

America poses other problems for the implicit political theory in Austin's definition. The

American political system has an arrangement of "branches of government" with "checks

and balances" so, in theory (current events to the contrary), no single branch is superior or

has a free hand. How would we determine who, in that system, is "the determinate superior

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body"? The highest authority in their local theory is the "people" who contract or "hire" the

government institutions through their constitution. Who, then, is the "bulk" of society who

owes that body obedience?

The attempt to eliminate evaluative language fails. Austin tries to make law "closed on

facts," but the effect is to make it mysterious how there could be any legal obligation or

right.

Some of the most devastating criticisms of Austin's Command theory come from other

"positivists." One is H. L. A. Hart, whom we will read frequently in this class. He raised the

problem alluded to above of the mob of gangsters on an island. Their demands on the local

population seem to meet Austin's definition but we would call their's the opposite of a rule

of law.

Hans Kelsen (1881-1973) developed an interesting modern version of positivism around

this implicit criticism of Austin. He is still committed to the separation of law and morals,

but tries to avoid Austin's mistake of reducing obligations to non-moral habits,

probabilities, harms and expressions. Kelsen is still a positivist in that he agrees that law

must be posits (social constructions) rather than derivations from reason. The key evidence

for this is that public law is flexible and dynamic in contrast to God's law, which never

changes. Natural law seems to imply that real law cannot change (except, remember, in the

details).

However, Kelsen recognized that law must also have a normative base. Logically, he

concludes, there must be a basic norm on which law rests. However, it does not need to rest

on a moral norm. It is the prescriptive premise from which the obligation of law follows.

Without that basic norm, we can't get the legal "ought" from the sociological or historical

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"is." There has to be such a norm or justification would never come to an end. Still, the

normative grounding is different from the norms of morality-Kelsen preserves the

separation. This yields a more subtle and defensible version of positive law.

He calls that basic norm "the logical constitution." It is the basic evaluative premise from

which the legitimacy or validity of all the laws derive. Laws can be created, but the basic

norm specifies how they can be created and changed. Only those created in accordance

with the basic norm will be valid laws. The notion of a valid (binding) law must be kept

distinct from the notion of a good (just) law. Criticism of law is indeed a moral matter but a

bad law may still be a valid law and create a legal (but not moral) obligation.

One feature of Kelsen's separation is that he thought of the basic norm as purely

procedural. It specified how other laws could be made, but not what possible content they

may have. If a law followed from the procedure, it could have any content at all. Further,

the basic norm, unlike ordinary laws, does not "follow" from any other higher norm. It is

not a component of God's natural law What makes the basic norm "real"? What gives a

basic norm its normative status--its ability to create other legal "oughts"?

This puzzle plagues all of positive law theory. How can they explain the legitimacy of the

rule of law itself-of the basic norm of law? Kelsen wanted to avoid Austin's recourse to

habit, but ends up facing a similar problem and giving a more complex but still inadequate

solution. The basic norm, he says, is an accepted custom, or in Kelsen's full wording,

"when the custom through which the constitution has come into existence or the

constitution-creating act consciously performed by certain human beings, is objectively

interpreted as a norm-creating fact. . ." then a basic norm exists. It is not created or justified

by that "objective interpretation" or widespread, interpersonal acceptance. The acceptance

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comes in merely presupposing the norm. The basic norm is when the custom is consciously

interpreted as being a norm creating fact.

This leads Kelsen to an interesting doctrine of revolution. Revolution is when the basic

norm is changed by some procedure not specified in the basic norm. Would changes to the

basic law and bill of rights by the provisional legislature constitute a revolution? The USA

had such a "revolution" early in its history when the US constitution was written. Its

adoption did not follow the rules of amendment contained in the old "constitution"

(theArticles of Confederation). But the society "consciously interpreted" the ratification

procedure as conferring legitimacy, so it constituted a change of basic norm.

The principle of legitimacy, Kelsen asserts, is limited by the principle of effectiveness.

Some "fact of the matter" determines what is the legitimate government of a society and

what are its laws. Validity is a matter of effectiveness only for the basic norm, however. If

no one pays obeys the subsequent laws, then the regime is plagued by lawlessness. But as

long as the people accept that they are laws (which they are disobeying, the basic law is

still effective

AUSTINS IMPERATIVE THEORY OF LAW

Diametrically opposed to the theory of natural law is the imperative, or the positivist, theory

of law. The main exponent of this theory was John Austin and therefore, this theory is also

known as the Austinian Theory of Law.

According to Austin Every positive law or every law simply and strictly so called is set by a

sovereign individual or sovereign body of individuals to a person or persons in a state of

subjection to its author According to him positive law has three characteristic features

a. It is a type of command

b. It is laid down by a political sovereign and

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 c. It is enforceable by a sanction.

Austin holds that law is made up of general commands issued to the subjects. He says that

positive law consists of commands set as general rules of conduct by a sovereign to a member

or members of the independent political society wherein the author of the law is supreme.

A command to be a law, must be general and not particular. As pointed out by Blackstone,

where a command obliges persons individually, it is not a law. Therefore, according to

Austin, law is an expression of a wish by the sovereign that the subjects shall do or forbear

from doing acts of a class as distinguished from a simple isolated act.

According to Austin, law commands general obedience of it. Law is to be obeyed by subjects

whether they wish to obey it or not. The disobedience of law would result in punishment,

which is the sanction behind law. Thus sanction is an essential ingredient of law.

CRITICISM OF THE IMPERATIVE THEORY OF LAW

I) Criticism by Henry Maine:

Maine, who was the main exponent of the Historical School, criticized Austins theory on

two grounds. Firstly, law is not invariably linked with the Sovereign. In early communities,

rules which regulated life were derived from immemorial usages and these rules were

administered by domestic tribunals, in families or village communities.

Secondly, there are rules of customary law, international law and even constitutional law in

England which are habitually obeyed and yet do not fall within the Austinian definition of

law. Austins theory of law historically inaccurate in so far as it postulates the

interdependence of law and sovereignty.

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Examine the Theory of Sovereignty

Sovereignty: Sovereignty is one of the chief attributes of statehood. The term

Sovereignty means supremacy or the right to demand obedience. A sovereign state is one

which is subordinate to no one and is supreme over the territory under its control. Its

commands are necessarily to be obeyed by all men and associations within its territories.

According to Bryce, legal sovereignty lies in that authority, be it a person or a body, whose

expressed will shall bind others, and whose will is not liable to be overruled by the expressed

will of any one placed above him or her.

AUSTINS THEORY OF SOVEREIGNTY

Austin has explained the theory of sovereignty in the following words

i) Sovereign power is determinate: According to Austin, in every independent political State

there is a sovereign power, which extracts obedience from the bulk of the members of the

society.

ii) Sovereign power is legally unlimited:

Austin considers the sovereign to be the source of law. Law is the will or command of the

sovereign. The sovereign is that authority in the State which can make or unmake any and

every law. The power of the sovereign is unlimited legally, for the sovereign cannot be

controlled by any command of his own. According to him, the sovereign power may have

de facto limitations because it is dependent upon two factors which are coercive force and

docile disposition of the people.

iii) Sovereign power is indivisible:

if the power of the sovereign cannot be legally limited, it follows that it is incapable of

division. According to Austin, there can be only one Sovereign in the State.

25
SALMONDS THEORY OF SOVEREIGNTY

According to Salmond, sovereign power is determinate, divisible and it may be legally

limited.

i) Sovereign power is determinate

ii) Sovereign power may be legally limited

iii Sovereignty is divisible;

OTHER THEORIES OF SOVEREIGNTY

i) Diceys theory:

Dicey said that there are two kinds of sovereigns the political and the legal. Legislature is

the legal sovereign because it has the supreme power of lawmaking. Behind the legal

sovereign there is the political sovereign, i.e. the electorate. Legal sovereign acts in

accordance to the wishes of the political sovereign.

ii) Kelsens theory:

according to Kelsen, there can be no concept of sovereignty distinct and separate from and

above the law. The only meaning that can be given to the State sovereignty is that the legal

order is a unity distinct from and independent of other similar legal orders.

Sovereignty under Indian Constitution:

The Constitution of India is quasi-federal, i.e. it has the characteristics of both federal as well

as unitary States. As in a Federation, legislative power is divided between the Union and the

Member-States. Executive Power of the Union is vested in the President of India (Art 53)

We can see that there is not one Constitution amending body for all purposes and therefore,

26
no sovereignty can be located in the Constitution amending body under the Indian

Constitution.

DEFINITION OF LAW BY AUSTIN AND SALMOND

According to Austin Every positive law or every law simply and strictly so called is set by a

sovereign individual or sovereign body of individuals to a person or persons in a state of

subjection to its author

According to him positive law has three characteristic features

i. It is a type of command

ii. It is laid down by a political sovereign and

iii. It is enforceable by a sanction.

Austin holds that law is made up of general commands issued to the subjects. He says that

positive law consists of commands set as general rules of conduct by a sovereign to a member

or members of the independent political society wherein the author of the law is supreme.

A command to be a law, must be general and not particular.

According to Salmond, Law may be defined as the body of principles recognised and

applied by the State in the administration of justice

Salmond has defined law in the abstract sense. The central idea of juridical theory is not a

law or law in the concrete sense of enacted law, but the law or law sensu abstractu which

embraces every rule of law from whatever source it may arise. According to him laws may

be made by legislation, they may also arise out of popular practice. Their legal character,

27
however becomes potent only when they are recognised and applied by a court in the

administration of justice.

Imperative law theory defined law as the command of the sovereign. According to Austin,

the main exponent of this theory, every positive law or every law simply and strictly so called

is set by a sovereign individual or sovereign body of individuals to a person or persons in a

state of subjection to his authority.

Legal realism theory defines law as the practice of the court. As per Salmonds version all

law is not made by the legislature.

Conclusion: As per the imperative law theory law is the command of sovereign is only to

some extent; there are customs, practices which prevails law. It is always not the command

and sanction of the sovereign which rules the society. Morals are also part of the law.

Even as per Salmons legal realism which defines law as the practice of the court and the

judgments, there are certain peoples aspirations, practices, customs which also form part of

the law. It is not always that the practice of the court and judgments, but rules, regulations

also forms part of the law. These theories which were formed in the 18th and 19th century are

as per the prevailing circumstances then. Law is Dynamic and it changes according to the

needs of the Society.

MAIN AIM OF ADMINISTRATION OF JUSTICE AND ITS DRAWBACKS

According to Taylor a herd of wolves is quieter and more at one than so many men unless

they all had one reason in or have one power over them. This shows the necessity of force of

the State for administration of justice;

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Unlimited and unrestrained liberty leads to a state of anarchy, therefore, some kind of

external coercive authority is needed to keep man within his limits and restrain his unfettered

liberty.

Aim of Administration of Justice:

Administration of justice implies the maintenance of peace and order within a political

community by means of physical force of the State. Administration of justice means justice

according to law and it is one of the essential functions of the State.

There are two types of justice, civil and criminal. Criminal justice deals with criminal

wrongs or public wrongs, while civil justice deals with civil wrongs which are private

wrongs.

Purpose of criminal justice: Punishment;

There are two aspects of punishment, it can be regarded as a method of protecting society by

reducing the occurrence of criminal behaviour or it can be regarded as an end in itself.

Punishment can protect society by deterring the potential offenders;

Civil justice: Primary and Sanctioning Rights

The rights enforced in civil proceedings are either primary or sanctioning rights. A

sanctioning right is one which arises out of the violation of another right. All others are

primary, they are the rights which have some other source than wrongs.

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Drawbacks of Administration of Justice According to law:

i. Administration of justice makes law rigid. When same rules are applied to all the

cases of similar nature, sometimes it may cause hardship and injustice

ii. Law tends to become conservative because it does not keep pace with the changed

conditions;

iii. Law becomes more formal

iv. Law becomes very complex.

Due to these disadvantages, Salmond said that law is without doubt a remedy for greater

evil, yet it brings with it evils of its own

The main aim of administration of justice is to keep peace and tranquillity in the society and

to protect individuals rights, which is a primary duty of the State. Without civilized society

with peace and order there is no state but anarchy.

RELATIVE MERITS AND DEMERITS OF LEGISLATION AND PRECEDENT AS

SOURCES OF LAW

Legislation is that source of law which consists of the declaration of legal rules by a

competent authority. When used in a wider sense, the term includes all methods of law-

making but when used in the strict sense, legislation is the laying down of legal rules by

sovereign or subordinate legislator.

Law comes into existence not only through legislation but also through regulation and

litigation. Laws from all these three sources are binding. A rule of regulation emanates from

delegated legislative power.

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Kinds of Legislation:

1) Supreme and Subordinate Legislation

2) Direct and Indirect legislation;

Relative merits and demerits of legislation:

Merits of Legislation:

1) Legislation is both constitutive and abrogative. Legislation is not only a source of

new law but also the most effective instrument of abolishing the existing law.

Abrogative power is necessary for legal reform and this virtue is not possessed by

precedent;

2) Legislation is based on the principle of division of labour and consequently enjoys the

advantage of efficiency.

3) Legislation satisfies the requirement of natural justice that laws shall be known before

they are enforced. Law is declared in the form of legislation and the same is later on

enforced by the Courts.

4) Legislation makes rules for cases that have not yet risen

5) Legislation is superior in form to precedent. It is brief, clear, easily accessible and

knowledgeable.

Demerits of legislation:

1. Legislation fails to make full laws by passing in too skeleton a form leaving wide

powers of action to the executive.

2. Parliament may fail to scrutinise the regulation of the executive due to inadequate

time.

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 3. It may create difficulties to the subjects (citizens) to obtain redress for illegal actions

done under the authority of delegated legislation

4. Excessive power may be delegated to the executive

5. The government Departments may assume a wider legislative competence than what

the Parliament has granted.

6. Some of the regulations attempt to deprive the subjects of recourse to the law courts

for protection.

PRECEDENT:

A precedent is statement of law found in a judicial decision of a High Court or a superior

court, meant to be followed by the same court as also by subordinate courts. If judges were

free to decide contrary to decisions in decided cases, then the law and the fate of the litigants

would hang on the fancy of individual judges

Judicial precedent when it speaks with authority, the embodied principle becomes binding for

future cases and it thus becomes a source of law.

Ratio decidendi then really is that principle of law on which a judicial decision is based. A

precedent has a ratio decidendi, i.e. the basic principle on which it rests. If there is no

precedent, how is the judge to decide the case? He must himself make a precedent an

original precedent.

Advantages of Precedent:

1) It shows respect for the opinion of ones ancestors;

2) Precedents enable the judges to re-shape the law according to the needs of the time

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 3) Precedents provide flexibility to the law to adapt itself to new environments;

4) Precedents are based on customs and therefore, they are followed. In following

precedents we follow customs which in their turn have been a general practice or

conduct of the people for a long time.

5) They provide useful guidelines to the judges for decisions

6) Precedents give rise to practical and perfect laws because they are the result of

concrete problems that have actually happened.

7) Precedents give rise to practical and perfect laws because they are the result of

concrete problems that have actually happened.

8) Precedents carry some legal principles. The legal principle on which a case is decided

is called the ratio decidendi of that case.

Disadvantages of Precedents:

1) Bentham has not recognised precedent as law because it lacks binding force of the

State

2) It overlooks the fundamental rule of natural justice that law must be known before it

is actually enforced.

3) According to Frederic Pollock, the law based on case-law is incomplete because the

judges take into consideration only those facts which are involved in the cases before

them.

4) Major setback of precedent is that the development of law through case law more or

less depends upon chance.

5) Sometimes erroneous decisions of Supreme Court create practical problems for the

subordinate judges.

6) Another disadvantage may occur when an extract from a judgment is quoted without

verification.

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BASIC PRINCIPLES OF STATUTORY INTERPRETATION

Legislation is inseparable from a process of interpretation by the courts. Though the statutes

are carefully drawn up, the courts have to determine the precise meaning of the phraseology

before they can apply the law.

Interpretation is of two kinds

i. Literal interpretation (grammatical) and

ii. Functional interpretation (logical)

Literal interpretation is that which regards exclusively the verbal expression of the law.

General Rules of Interpretation:

1) The first rule is the golden rule of interpretation which says that so long as the

meaning of the statute is clear and certain, judges should not apply their opinion to

modify the meaning of the words used in the statute.

2) Statute must be read as a whole in order to give effect to the intention of the framers

of it.

3) The courts must proceed on the footing that the legislature intended what it said.

4) For the true interpretation of all statutes in general, four things are to be considered

a) What was the common law before the making of the Act;

b) What was the mischief and defect for which the common law did not provide;

c) What remedy the Parliament has provided

d) The true reason of the remedy.

5) No statute shall be construed to have retrospective operation.

6) An important rule of interpretation is that a general law does not abrogate an earlier

special law by mere implication.

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 7) The meaning of a word must be judged by the company it keeps rule of noscitur a

sociis.

8) Penal and fiscal statutes must be construed strictly.

These are classified under the following heads:

1) Golden Rule of Interpretation

2) Mischief Rule of Interpretation

3) Rule of Ejusdem Generis

4) Logical interpretation

5) Strict and equitable Interpretation

6) Restrictive and Extensive Interpretation

7) Historical Interpretation

CUSTOM AS SOURCE OF LAW AND REQUISITES OF A VALID CUSTOM

Custom may be defined as the uniformity of habits or conduct of people under like

circumstances Custom is one of the most fruitful sources of law. In early societies, where

there was no articulated system of law making, custom is the only law that we can discover.

According to Salmond Custom is the embodiment of those principles which have

commanded themselves to the national conscience as principles of justice and public utility

A custom is a particular rule which has existed either actually or presumptively from time

immemorial and has obtained the force of law in a particular locality. A custom to be valid

must have four essential attributes.

First, it must be immemorial;

35
Secondly, it must be reasonable;

Thirdly, it must have continued without interruption since its origin

Fourthly, it must be certain in respect of its nature generally as well as in respect of the

locality to which it is alleged to pertain;

Custom is authoritative; it stands in the place of law, and regulates the conduct of men in the

most important concerns of life. Customs have more force in a simple state of society. Both

practice and custom are general or particular but the former is absolute and the latter is

relative.

It is a well established principle of law that though the custom has the effect of overriding

law which is purely personal, it cannot prevail against a Statutory law.

REQUISITES OF A VALID CUSTOM:

1) Immemorial antiquity: Custom to have the force of law must be immemorial.

According to Salmond it must have existed for so long a time that, no living person would

have known when it started;

2) Continuous: A custom to be valid should have been continuously in existence from time

immemorial. In England, it is essential that the custom should not have been abandoned at

any time after 1189.

3) Certainty: A custom must be certain. A custom which is vague or indefinite cannot be

recognised.

4) Consistency: There must be consistency in the custom. A particular custom not come into

conflict with the other established customs.

36
5) Reasonableness: A custom must be reasonable because no court will enforce an

unreasonable custom. The authority of a prevailing custom is never absolute, but it is

authoritative because it conforms to the notions of public justice and utility.

6) Confirmity with Statute Law: A custom must not be contrary to statute law. In the

words of Coke, No custom or prescription can take away the force of an Act of Parliament

Custom must yield where it conflicts with statute.

7) Observance as of Right: Custom as a source of law must have been observed as of right.

It must have been followed openly. It must have an obligatory force and must have been

supported by the general public opinion.

8) Not to be immoral: A custom to be valid must not be immoral. There is however no

fixed test to judge the morality of a custom whether a custom is immoral is to be judged by

the sense of the whole community.

9) Public Policy: A custom can be refused recognition only when it is opposed to public

policy and is manifestly repugnant to rights. The doctrine of public policy should only be

invoked in clear cases in which the harm to the public is substantially incontestable.

DIFFERENT KINDS OF CUSTOM DIFFERENCE BETWEEN CUSTOM AND

PRESCRIPTION

The customs in their wider sense may be divided into two classes:

1) Customs without Sanction: they are those customs which are non-obligatory. They are

observed due to the pressure of the public opinion. They are social customs. Austin calls

them positive morality

37
2) Customs having sanction: They are those customs which are enforced by the state. It is

with these customs that we are concerned here. According to Salmond, a custom which has

the force of law is of two kinds, legal and conventional.

CUSTOM

Legal custom conventional custom

Local General

1) Legal Customs: A legal custom is one which possess in itself the force of law. These

customs operate as a binding rule of law. A legal custom is one whose legal authority is

absolute one which in itself and proprio vigour possesses the force of law. They have been

recognised by the Courts and have become a part of the law of land.

i. Local custom: That custom which prevails in some defined locality only and

constitutes a source of law for that place only is known as local custom.

ii. General Custom: that custom which is observed by all the members of a society is a

general custom. According to Keeton, a general custom must not only be reasonable

but also be followed and accepted as binding. It should not be contrary to statute law

and the common law of the land.

2) Conventional Customs or Usages: A conventional custom or usage is a practice

established by having been followed for a considerable period of time, and arising out of

38
contract between the parties, it does not arise out of its own force. A conventional custom or

usage is an established practice which is legally binding.

CUSTOM AND PRESCRIPTION

According to Salmond, custom is a long practice operating as a source of law while

prescription is a long practice operating as a source of rights. Prescription is fixed in the

person and therefore, ought always to be laid in persons, a custom is lex loci and inherent in

the soil whereto it is fixed for the service of everyone that is qualified to use it. The main

points of distinction between custom and prescription are:

1) When a course of conduct is practiced for a long time, it gives rise to a rule of law

known as custom, but it if gives rise to a right it is called prescription.

2) In cases of customs the old rule as to time immemorial still exists whereas in the case

of prescription the fiction of lost grant operates and is governed by the statutorily

prescribed time.

3) A custom extends to a particular place, locality, or community as a whole but

prescription is of personal nature which is confined to an individual or his relatives;

4) A custom originates from long usage whereas a prescription originates from waiver of

a right;

5) For the validity of a custom, it is necessary that it must be in conformity with the

principles of justice and public utility but it is not so in the case of prescription.

39
CORPORATE PERSONALITY VARIOUS THEORIES OF CORPORATE

PERSONALITY

A corporation is an artificial person. It is a group of series of persons, which by legal fiction

are treated as a person and has capacity to have rights and duties and holding property.

Corporations are of two kinds

Corporation aggregate and Corporation sole.

Kinds of Corporations:

i) Corporation Aggregate

a corporation aggregate is an incorporated group of co-existing persons. Corporations,

aggregate have several members at a time. Examples are a registered company, consisting of

all the shareholders and a municipal corporation consisting of all the inhabitants of the

Borough. Limited companies are best examples of Corporation aggregate.

ii) Corporation sole:

a corporation sole is an incorporated series of successive persons. Corporation sole has only

one member at a time. According to Salmond, corporation sole is found only when the

successive holders of some public office are incorporated so as to constitute a single,

permanent and legal person. For example, the sovereign is said to be a corporation of this

kind, the Postmater-General, the Solicitor to the Treasury, Attorney-General of India have

ben endowed by statute with the same nature.

Theories of Corporate Personality: Two theories have been propounded by jurists

regarding corporate personality;

Fiction Theory and Realistic Theory

40
1) Fiction Theory: Savigny, Salmond, Kelson and Holland are the jurists who have

propounded this theory. These jurists argue that corporations are mere fictions. A

Corporation is a group of persons, which by legal fiction is regarded as a real person. A

corporation is clothed with legal personality which is different from its members.

2) Realist Theory: Main exponent of the realist theory is the German jurist, Dr.Gierke who

put forward the concept that corporation is a real person, its reality being psychic. A

corporation has a real existence irrespective of the fact whether it is recognised by the state or

not.

Reconciliation of Fiction and Realist Theory:

The main difference between the fiction theory and the realistic theory is that the fiction

theory denies that corporate personality has any existence beyond what the State chooses to

give it and realist theory holds that a corporation is a representation of physical realities

which the law recognizes.

COGNATE CONCEPTS OF RIGHT

Definition:

Salmond defines a legal right as an interest recognised and protected by a rule of legal

justice. Rights are concerned with interests and indeed have been defined as interest

protected by rules of right, that is by moral or legal rules.

According to Austin A party has a right when another or others are bound or obliged by law

to do or forbear towards or in regard of him

Rights and Cognate Concepts or Hohfelds scheme of Rights

41
1) Rights (strict sensu) and duties;

2) Liberties and no-right

3) Powers and liabilities, and

4) Immunities and disabilities

1) Rights and duties: According to Salmond there can be no right without a correasponding

duty, or duty without corresponding right, any more than there can be a husband without a

wife, or a father without a child. According to this view every duty must be a duty towards

some person or persons, in whom therefore a correlative right is vested.

2) Liberty and No-Right: A person has liberty when there is absence of the legal duty

imposed upon him. Ones liberty is his ability to do a thing without being liable for it in law.

According to Salmond A legal right is the benefit which one derive from legal duties imposed

upon other persons.

Co-relative of liberty is no-right. The term no right was invented by Hohfeld. It is purely a

negative concept. It means an absence of a right against another in a particular respect.

3) Powers and Liabilities:

A power may be defined as ability conferred upon a person by the law to alter, by his own

will directed to that end, the rights, duties, liabilities or other legal relations, either of himself

or of other persons.

Powers are either public or private. Public powers are those which are vested in a person as

an agent or instrument of the functions of the State.

42
4) Immunities and Disabilities:

An immunity is an exemption from having a given legal relation changed by another.

Immunity means no liability. The correlative of immunity is disability which means the

absence of power.

On the basis of the above conceptions of right, liberty, power, and immunity, Salmond says

that

a) Right is that which other persons ought to do in my behalf

b) Liberty is that which I may do without the interference of law

c) Power is that which I can do effectively against others.

d) Immunity is that which other persons cannot do effectively in respect of me.

RIGHT AND VARIOUS KINDS OF RIGHTS

Definition: Salmond defines a legal right as an interest recognised and protected by a rule of

legal justice

According to Austin A party has a right when another or others are bound or obliged by law

to do or forbear towards or in regard of him

We may define a legal right as any interest which is either vested or created under a law or

under a contract. A natural right is an interest recognized as proper by the rules of natural

justice, i.e. by what is proper, truthful and fair. And a moral right is an interest or power,

recognized by the ethical code of a community, enjoining all persons to respect and recognize

it.

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KINDS OF LEGAL RIGHTS:

1) Perfect and Imperfect Rights;

A perfect right is one which corresponds to a perfect duty; and a perfect duty is one which is

not merely recognized by the law, but enforced by the law.

2) Positive and Negative Rights:

A Positive right corresponds to a positive duty. Therefore, the person having the positive

right is entitled to something to be done by the person who has the corresponding positive

duty

A negative right corresponds to a negative duty. Therefore, the person having a negative

right is entitled to some forbearance on the part of the person who has corresponding

negative.

3) Rights in Rem and Rights in Personam

A right in rem corresponds to a duty imposed upon persona in general whereas a right in

personam corresponds to a duty imposed upon determinate individuals. Rights in rem and

rights in personam are also known as real rights and personal rights respectively.

4) Proprietary and Personal Rights:

Proprietary rights are those which have an economic significance, for example rights of

ownership and possession, etc. the sum total of a mans personal rights. Proprietary rights

are valuable, worth money and are elements of mans wealth. Whereas personal rights are

not valuable, worth none and are merely elements of a mans well being.

44
5) Rights in Re Propria and Rights in Re Aliena:

According to Salmond a right in re aliena or encumbrance is one which limits or derogates

from some more general right belonging to some other person in respect of the same subject-

matter. All others are jura in re propria.

Right in re propria means right over ones own property and right in re aliena means right

over the property of someone else.

6) Principal and Accessory Rights:

A principal right is the main or primary right vested in a person under the law. An accessory

right is a secondary right which is connected to, or arises out of the principal right. For

example, if a debt is secured by a mortgage, the recovery of the debt is the principal right

while the security is the accessory right.

7) Primary and Sanctioning Rights:

A sanctioning right originates from some wrong i.e. from the violation of another right.

These are also known as antecedent or substantive rights. Primary rights have a source in

something other than wrongs. According to Salmond, a primary right can be either a right in

rem, or personam.

8) Legal and Equitable Rights:

Legal rights are those which were recognized by the Courts of Common Law, Equitable

rights are those which were recognized solely in the Court of Chancery.

9) Vested and Contingent Rights:

45
According to Salmond, a right vests when all the facts have occurred which must by law

occur in order for the person in question to have the right. A right is contingent when some

but not all of the vestitive facts have occurred.

10) Public and Private Rights:

A right vested in the State is called a public right and it is possessed by every member of the

public. A private right, on the other hand, is concerned only with private individuals.

LEGAL RIGHT AND ITS ESSENTIAL ELEMENTS

Definition:

Salmond defines a legal right as an interest recognised and protected by a rule of legal

justice. Rights are concerned with interests and indeed have been defined as interest

protected by rules of right that is by moral or legal rules. A legal right is an interest

recognized and protected by a rule of law-an interest the violation of which would be legal

wrong done to him whose interest it is and respect for which is a legal duty.

According to Austin A party has a right when another or others are bound or obliged by law

to do or forbear towards or in regard of him

According to Sir John Salmond legal rights involve five essential elements:

1) Subject: Right is vested in a person who may be the owner of the right, the subject of

it, the person entitled, or the person of inheritance.

46
 2) Object: A legal right operates against some person who is under a duty or obligation

to obey or respect that right. He may be distinguished as the person bound, or as the

subject of the duty, or as the person of incidence.

3) Content: There is some content or substance of a legal right, i.e. the act or

forbearance by which the person in obligation is bound.

4) Acts: There is the act or omission relates to something which may be termed as the

object or subject matter of the right.

5) Title: Every legal right has a title, that is to say, certain facts or events by reason of

which the right has become vested in its owner.

That a right involves all these five elements will be clear from the following illustration.

Suppose a testator leaves a house to a legatee. The legatee becomes the subject or owner of

the house; the house is the object of the right; delivery of the house is the content of the

right; the executor is the person of incidence and the will bequeathing house is the title of the

right.

CONCEPTS OF RIGHT AND DUTY AND THEIR CORRELATION

According to Salmond a duty is an obligatory act, it is an act the opposite of which would be

a wrong. Duties and wrongs are co-relative. The commission of a wrong is the breach of a

duty, and the performance of a duty is the avoidance of a wrong.

According to one group of jurists, every right has a corresponding duty. Therefore, there can

be no duty unless there is someone to whom it is due. There can be no right without a

corresponding duty, or a duty without a corresponding right.

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The other group distinguishes between relative and absolute duties. The jurists of this school

believe that the essence of a right is that it should be vested in some determinate person, and

that it should be enforceable by some form of legal process to be instituted by him.

According to Austin, every right implies a corresponding duty, but every duty does not imply

a corresponding right.

It may be concluded that duties in the strict sense of the term have corresponding rights, but

duties in the wider sense do not have corresponding rights.

Statutory duties rest on the interpretation of each statute whether the duties created by it are

correlative to any claim (right) in the persons contemplated by the duties.

NATURE OF OBLIGATION AND THE SOURCES OF OBLIGATION

Obligations in a popular sense are merely a synonym for duty. Obligations are merely one

class of duties, namely, those which are the correlatives of rights in personam. An obligation

is the vinculum juris, or bond of legal necessity, which binds together two or more

determinate individuals. It includes, for example, the duty to pay a debt, to perform a

contract, but not the duty to refrain from interference with the person, property or reputation

of others. Secondly, the term obligation is in law the name, not merely of the duty, but also

of the correlative duty. Thirdly, all obligations pertain to the sphere of proprietary rights.

According to Holland, an obligation is a tie, whereby one person is bound to perform some

act for the benefit of another. According to Savigny, an obligation is the control over

another person, yet not over this person in all respects, but over single acts of his which must

be conceived of subtracted from his free will and subjected to our will

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Sources of obligations:

1) Contractual : The first and most important class of obligations consists of those which are

created by contract. A contract is an agreement which creates rights in personam between the

parties to it. The rights so created are proprietary in nature but sometimes they may not be in

personam such as the promise of marriage, which falls within the law of statute.

Damages for breach of a contract can be included in the contract either as a sum to be paid in

case of breach of contract or any stipulation by way of penalty. The stipulation for

reimbursement is not by way of penalty. It is neither punitive nor vindictive. Therefore the

clause of reimbursement or repayment in the event of delayed delivery or non-delivery is not

to be regarded as damages.

2) Delictal: According to Salmon, by an obligation of this kind is meant the duty of making

pecuniary satisfaction for that species of wrong which is known in English law as a tort.

A tort may be defined as a civil wrong, for which the remedy is an action for damages, and

which is not solely the breach of a contract or the breach of a trust or other merely equitable

obligation. According to Salmond, this definition contains four essential elements, there

being four kinds of wrongs excluded by it from the sphere of tort

i. A tort is a civil wrong; crimes are wrongs, but are not in themselves torts.

ii. Even a civil wrong is not a tort, unless the appropriate remedy for it is an action for

damages;

iii. No civil wrong is a tort, if it is exclusively the breach of a contract.

iv. The fourth and last class of wrongs which are not torts consists of breaches of trusts or

other equitable obligations.

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3) Quasi-contractual:

There are certain obligations which in reality are not contractual but are treated by the law as

if they are contractual; these obligations are called quasi-contractual obligations. In Roman

law, such obligations are called obligations ex contractu;

Quasi contractual obligations also include those obligations which are in fact not contractual

but delictal or tortuous, but if the person wronged desires, he may treat them as contractual

and sue the wrongdoer for a breach of contract.

The Indian Contract Act recognizes the following quasi contracts;

i. Claim for necessaries supplied to person incapable of contracting, or on his account

ii. Reimbursements of person paying money due by another in payment of which he is

interested

iii. Obligation of person enjoying benefit of non-gratuitous act

iv. Liability of person to whom money is paid, or thing delivered, by mistake or under

coercion

v. Rights and liabilities of a finder of goods

4) Official obligations

By an official obligation is meant an obligation or services rendered by public servants, who

are bound to help the members of the public who need their help on certain occasions. Such

obligations arise by virtue of their office and are therefore, called official obligations, for e.g.

police officers, members of fire brigade etc. these obligations are in personam, because they

only apply to some particular office or offices.

5) innominate obligations:

This is a residuary class of obligations. Salmond says that those obligations which are not

covered under any of the aforesaid three categories are called innominate obligations. For

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e.g. obligations of trustees towards their beneficiaries and other equitable obligations are the

species of innominate obligations though they form a part of the law of property in modern

legal systems.

PRINCIPLES OF VICARIOUS LIABILITY CAN IT BE EXTENDED TO

GOVERNMENTS LIABILITY

Normally the person who does the wrong is liable for the wrongful act but there are certain

circumstances when the liability of the wrongdoer is imposed on some other person than the

wrongdoer himself. Therefore, in vicarious liability, one man is made answerable for the acts

of another. Modern civil law recognizes vicarious liability in two chief classes:

1) Masters are responsible for the acts of their servants done in the course of their

employment, and

2) Representatives of dead men are liable for the acts of the deceased whom they

represent;

1) Masters Liability for the Acts of his Servants:

Vicarious liability means liability which is incurred for or instead of another . Every person

is responsible for his own acts, but in certain circumstances liability attaches to him for the

wrongs committed by others. Liability of the master for the acts of his servant is both joint as

well as several.

The following three reasons for holding a master liable for the wrongs of the servant

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 a) Qui facit per alium facit per se - the meaning of this maxim is that he who does an

act through another is deemed in law to do it himself.

b) Respondent superior the master is to be responsible for every wrong of his servant

in the course of the employment, and no express authority of the master need be

proved.

c) Financial considerations - Masters are financially well off compared to their

servants. Therefore they are in better position to bear the burden of paying damages

to the injured par;ty. They are also capable of distributing the burden by adding it to

the cost of production.

2) Living Representatives responsible for the Acts of the Dead:

The common law maxim was Actio personalis moritur cum persona which mean that a man

cannot be punished in his grave and, therefore, it was held that all actions for penal redress

must be brought against the living offender and must die with him.

Governments liability for acts of its Servants:

Article 300(1) provides that the Government of India may be used in relation to its affairs in

the like case as the Dominion of India.

The Supreme Court in the case of P and O Steam Navigation Company v. Secretary of

State for India held that the Secretary of State for India was liable for the damages caused by

the negligence of Government servants, because the negligent act was not done in the

exercise of a sovereign function. The Court drew a distinction between acts done in the

exercise of sovereign power and acts done in the exercise of non-sovereign power. The

liability could only arise in case of non-sovereign functions. The above principle has been

approved and applied by the Supreme Court in the following cases:

In State of Rajasthan v. Vidyawati, the driver of a jeep owned and maintained by the State

of Rajasthan for the official use of the Collector of a district drove it rashly and negligently

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while bringing it back from the workshop after repairs and knocked down a pedestrian and

fatally injured him. As a result of the injuries the pedestrian died. His widow sued the State

of Rajasthan for damages. The Supreme Court held that the State was liable and awarded

damages.

In the Steam Navigation Company the Supreme Court held that the State should not be held

liable vicariously for the tortuous acts committed by its servants.

In Kasturi Lal v. State of U.P. the Court held that the tortuous act of the Police Officers was

committed by him in discharge of sovereign powers and the State was therefore not liable for

the damages caused to the appellant. The Court however made a strong plea for enactment of

a legislation to regulate and control the claim of the State for immunity on the lines of the

Crown Proceedings Act of England.

In Rudal Shah v. State of Bihar the Court directed the State of Bihar to pay compensation of

Rs.35,000/- to the victim of tortuous acts done by Government employees during sovereign

functions.

KINDS OF LIABILITY THE RELATIVENESS OF MOTIVE IN CRIMINAL

LIABILITY

Liability is responsibility for an act or omission,. Whoever commits a wrong is said to be

liable for it. According to Salmond Liability or responsibility is the bond of necessity that

exists between the wrongdoer and the remedy of the wronged. Liability arises from a breach

of duty which may be in the form of an act or omission. He prefers to call liability as

imputability

Liability can be classified in two ways. In first place, it can be civil or criminal, and in the

second place, it can be remedial or penal. Civil liability consists in enforcement of the right

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of the plaintiff against the defendant in civil proceedings whereas in the case of criminal

liability the purpose of the law is to punish the wrongdoer. The difference between civil and

criminal liability is as follows:

1) Crime is a wrong against the society but a civil wrong is a wrong against a private

individual;

2) The remedy for a crime is punishment but the remedy for civil wrongs is damages

3) The proceedings in case of crime are criminal proceedings but in case of civil wrong

they are civil proceedings.

4) In a civil wrong, the liability is measured by the wrongful act and the liability depends

upon the act and not on the intention, while liability in a crime is measured by the

intention of the wrongdoer.

Motive in Criminal Liability:

The general conditions of penal liability are indicated in the maxim actus non facit reum, nisi

mens sit rea, i.e. the act alone does not amount to guilt; it must be accompanied by a guilty

mine. For penal responsibility to be imposed, two conditions are to be fulfilled

i. Doing of some act by the person to be held liable. A man is responsible only for the

wrong done by himself, not by others;

ii. Presence of guilty mind or mens rea with which the act is done

Motive is the ulterior intention. Itg is seldom that a man commits a wrongful act for its own

sake. The wrongdoer has some end in his mind, which he tries to achieve through his

wrongful act.

Motive though closely related to intention, it differs from intention in many respects.

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A mans motive for an act consists in a desire for something which will confer a real or

imagined benefit of some kind on the actor himself, whereas his intention need not relate to

some personal interest of this kind.

Motive is generally irrelevant. It is the immediate intent that is material in the determination

of liability. With some exceptions, motive is irrelevant in determining the liability of a

wrongdoer. An act which is not unlawful act is done with good motive, will not become

lawful. Motive is relevant in the following:

i. Motive is relevant in cases of criminal attempts. Here as the act in itself has not taken

place, for assessing the liability of the wrongdoer, it becomes necessary to examine

the ulterior intent or the motive with which such an attempt was made.

ii. Though the proof of the existence of the motive is not necessary for a conviction,

where it is proved, it is an evidence of the evil intent, and it is relevant in the showing

that the person who had a motive, to commit the offence, it is he alone who must have

actually committed it.

iii. Jus necessitates - means an act done in necessity. Where one has to make an option

between two acts, both harmful, the act which is to cause less harm should be opted.

iv. In determining punishment, motive is also taken into consideration. Though for

purpose of conviction good motive is no defence, in determining the sentence, if good

motive is present a lighter punishment is awarded.

THE THEORIES EXPLAINING NATURE OF NEGLIGENCE

Negligence is a particular state of mind of the person who does an act. It is culpable

carelessness. It has been variously defined by many jurists. Willes, J says that it is the

absence of such care as it was the duty of the defendant to use

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Salmond defines negligence as the mental attitude of undue indifference with respect to

ones conduct and its consequences. Negligence is breach of a legal duty to take care which

results in damage undesired by the defendant to the plaintiff.

Few examples demonstrating the concept of duty of care can be considered here. In

Donoghue v Stevenson a manufacturer of ginger-beer sold to a retailer in an opaque bottle, in

which unknown to any were the decomposed remains of a dead snail. She sued the

manufacturer and it was held that the manufacturer owed her a duty to take care.

Theories of negligence: There are two rival theories of negligence

1) The subjective theory of negligence and

2) The objective theory of negligence

This theory was propounded by Salmond. According to him a careless person is a person

who does not care. Although negligence is not synonymous with thoughtlessness or

inadvertence, it is nevertheless, essentially an attitude of indifference.

Objective theory of negligence: the objective theory of negligence means that negligence is

an objective fact. It is not a particular state of mind or form of the mens rea at all, but a

particular kind of conduct. It means that one should take precaution against the harmful

results of ones actions, and he must refrain from unreasonably dangerous kind of conduct.

Mind behaviour theory: another theory which can be considered here is that given by Dr. MJ

Sethna. In his mind-behaviour theory the learned author has maintained that negligence

really is a faulty behaviour arising out of lethargy of the mind or out of faulty thinking

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THE MEASURES OF CIVIL AND CRIMINAL LIABILITY

Liability means and implies responsibility for an act or omission. Liability may arise out of a

guilty mind. Liability is of two kinds

i. Civil liability

ii. Criminal liability

The Measure of Civil Liability:

In measuring civil liability the law attaches more importance to the principle of compensation

than to that of fault. For it is measured exclusively by the magnitude of the offence, that is to

say by the amount of loss inflicted by it. Apart from some exceptions it takes no account of

the character of the offender and so visits him who does hard through some trivial want of

care with as severe a penalty as if his act had been prompted by deliberate malice.

The Measure of Criminal Liability:

In considering the measure of criminal liability it will be convenient to bestow exclusive

attention upon the deterrent purpose of the criminal law, remembering, however, that the

conclusions so obtained are subject to possible modification by reference to those other

purposes of punishment which we thus provisionally disregard.

In every crime there are three elements to be taken into account in determining the

appropriate measure of punishment. These are

i. Motive to the commission of the offence;

ii. The magnitude of the offence;

iii. The character of the offender;

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DIFFERENT KINDS OF OWNERSHIP AND DIFFERENCE BETWEEN

OWNERSHIP AND POSSESSION

According to Pollock ownership is the entirety of the powers of use and disposal allowed by

law

Austin defines ownership as a right which avails against the world (right in rem) indefinite in

point of user, unrestricted in point of disposition and unlimited in point of duration.

Kinds of ownership:

There are five different types of ownership:

1) Corporeal and Incorporeal Ownership:

The ownership of a material object is called corporeal ownership. It is a right of ownership in

some corporeal property, immoveable and movable like land, buildings, things attached to the

land, chattels etc.

The ownership of a right is incorporeal ownership. For example, the ownership of a

copyright, patent, trade mark right of way are all incorporeal. Incorporeal property is

property which is such only in the abstract sense, i.e. it cannot be seen, felt or touched.

2) Sole Ownership and Co-Ownership:

When the ownership is vested in a single person, it is known as sole ownership but when it is

vested in two or more persons at the same time, it is called duplicate ownership.

3) Trust and Beneficial Ownership:

Another instance of duplicate ownership is trust ownership which allows for the separation of

the powers of management and the rights of enjoyment. Trust property is that which is

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owned by two persons at the same time, the relation between the two owners being such that

one of them is under an obligation to use his ownership is trust ownership; the latter is called

the beneficiary, and his ownership is beneficial ownership.

4) Legal and Equitable Ownership:

Legal ownership is that which has its origin in the rules of common law, while equitable

ownership is that which proceeds from rules of equity divergent from the common law.

Distinction between legal and equitable ownership is merely equivalent to that between trust

and beneficial ownership. A legal owner is always a trustee for the equitable owner, if he is

present.

5) Vested and Contingent Ownership

An interest is said to be vested, when it is not subject to any condition precedent or when it

has to take effect on the happening of an event which is certain.

Where on a transfer of property, an interest therein is created in favour of a person to take

effect only on the happening or not happening, of a specified uncertain event, such a person

acquires thereby a contingent interest in the property. Such interest becomes a vested interest

on the happening of the event or when the happening of the event becomes impossible.

Difference between ownership and possession:

According to Dr. Sethna, the relationship between ownership and possession is the same as

that of body with soul. According to Salmond, a person is said to be the owner of a thing

when his claim receives the recognition and protection from the law of the State, but

possession may be exercised and realized even without such recognition or protection from

the law.

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