DR N K Jayakumar of Jurisprudence

Ramkumar p.
Lectures in Jurisprudence
Second Edition
Dr NK Jayakumar
Professor and Head, Department of Law & Dean, Faculty of Law, University of Kerala
6988
IP LexisNexis Butterworths Wadhwa

Nagpur
U LexisNexis Butterworths Wadhwa
Nagpur
This book is a publication of LexisNexis (A

Division of Reed Elsevier India Pvt Ltd)
14th floor, Building No 10, Tower-B, DLF Cyber City, Phase-
Il, Gurgaon122002, Haryana, India.
Tel : + 91 124 4774444 Fax: + 91 124 4774100
LexisNexis (A division of Reed Elsevier India Pvt Ltd) 2006
All rights including copyrights and rights of translations etc. reserved and vested
exclusively with Reed Elsevier I ndia Pvt Ltd-owner of the LexisNexis
Butterworths Wadhwa Nagpur brand. No part of this publication may be
reproduced or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, or stored in any retrieval system of any
nature without the written permission of the copyright owner.
NK jayakumar, Lectures in Jurisprudence.
ISBN: 978-81-8038-130-0
This book can be exported from India only by the publisher. Infringement of this
condition of sale will lead to civil and criminal prosecution.
Typeset By
^'Tliu9#i.Graphics, A-125, Dilshad Colony, Delhi 110095. ' / Rakmo&fess
Pvt Ltd, C-59, Okhla Ind. Area, Phase-1, New Delhi-110020..
The publisher shall not be liable for any direct, consequential, or incidental
damages arising out of the use of this book.
In case of binding mistake, misprints, or missing pages etc., the publishers entire
liability, and your exclusive remedy, is replacement of this book within one
month of purchase by similar edition/reprint of the book.
Printed and bound in India.

Preface
Nothing gives more happiness to an author than a call from the publisher informing him
that his book is sold out, and that a new edition is needed. Naturally, I was very happy
when LexisNexis informed me that the first edition of this book was about to be sold out,
and a new edition would be required by the beginning of 2006. It was also a pleasant
surprise to me, because the call came much sooner than I had expected-infact, only 15
months after the release of the first edition. That goes to prove that the book was able to
generate a positive response from the teachers and students of law all over India.
Jurisprudence is not a subject which changes fast as is the case with some other legal
subjects. The impact of juristic theories, judicial decisions, or legislation on jurisprudence
is an incremental and rather long term process. Even when there is an impact, the author
of a textbook meant for students thinks twice before deciding to burden students with the
ripples of such impact. He would rather wait patiently to see whether the ripples become
a strong wave or slowly disappear, leaving no mark. That explains why we have reprints
of books on jurisprudence, which appeared many decades back. So what justifies a new
edition hardly within two years of the appearance of the first edition of this book? The
author does not claim that substantial changes or developments made a revision
necessary. No significant change has been made in the contents, structure, or style of the
previous edition. However, some chapters have been updated adding subsequent
developments; some other chapters have been rewritten in order to make the presentation
more lucid, and to avoid repetition of ideas. In a few chapters glaring omissions have
been rectified. In all the chapters the mistakes have been corrected so that the present
edition is, hopefully, free from mistakes. Of course, many more aspects could have been
added; but I resisted the temptation because I wanted to retain the present size of the
book. A bigger book would intimidate most students.
I got invaluable feedback from teachers and students from different parts of India.
Most of them found the book dependable and, more importantly,
IP* LexisNexis* Butterworths
Wadhwa
Nagpur
This book is a publication of LexisNexis (A Division of Reed

Elsevier India Pvt Ltd) 14th floor, Building No 10, Tower-B,
DLF Cyber City, Phase-II, Gurgaon-122002, Haryana, India.
Tel : + 91 124 4774444 Fax: + 91 124 4774100
LexisNexis (A division of Reed Elsevier India Pvt Ltd) 2006
AJ1 rights including copyrights and rights of translations etc. reserved and
vested exclusively with Reed Elsevier India Pvt Ltdowner of the LexisNexis
Butterworths Wadhwa Nagpur brand. No part of this publication may be
reproduced or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, or stored in any retrieval system of any
nature without the written permission of the copyright owner.
NK Jayakumar, Lectures in Jurisprudence.
ISBN: 978-81-8038-130-0
This book can be exported from India only by the publisher. Infringement of
this condition of sale will lead to civil and criminal prosecution.
Typeset By
îf]/^hi.Graphics, A-125, Diishad Colony, Delhi II0095.
5~ /
if/ PririWr$y - / Rakmb&hs Pvt Ltd, C-59, Okhla Ind. Area, Phase-1, New
Delhi-110020..
hi
^^^Nor^/jD)ie care and diligence has been taken while editing and printing this book. ~
ftether'the author nor the publisher of the book holds any responsibility for any
mistake
tharmay have inadvertently crept in.
The publisher shall not be liable for any direct, consequential, or incidental
damages arising out of the use of this book.
In case of binding mistake, misprints, or missing pages etc., the publisher's

entire liability, and your exclusive remedy, is replacement of this book within
one month of purchase by similar edition/reprint of the book.
Printed and bound in India.
Preface
Nothing gives more happiness to an author than a call from the publisher informing him
that his book is sold out, and that a new edition is needed. Naturally, I was very happy
when LexisNexis informed me that the first edition of this book was about to be sold out,
and a new edition would be required by the beginning of 2006. It was also a pleasant
surprise to me, because the call came much sooner than I had expectedinfact, only 15
months after the release of the first edition. That goes to prove that the book was able to
generate a positive response from the teachers and students of law all over India.
Jurisprudence is not a subject which changes fast as is the case with some other legal
subjects. The impact of juristic theories, judicial decisions, or legislation on jurisprudence
is an incremental and rather long term process. Even when there is an impact, the author
of a textbook meant for students thinks twice before deciding to burden students with the
ripples of such impact. He would rather wait patiently to see whether the ripples become
a strong wave or slowly disappear, leaving no mark. That explains why we have reprints
of books on jurisprudence, which appeared many decades back. So what justifies a new
edition hardly within two years of the appearance of the first edition of this book? The
author does not claim that substantial changes or developments made a revision
necessary. No significant change has been made in the contents, structure, or style of the
previous edition. However, some chapters have been updated adding subsequent
developments; some other chapters have been rewritten in order to make the presentation
more lucid, and to avoid repetition of ideas. In a few chapters glaring omissions have
been rectified. In all the chapters the mistakes have been corrected so that the present
edition is, hopefully, free from mistakes. Of course, many more aspects could have been
added; but I resisted the temptation because I wanted to retain the present size of the
book. A bigger book would intimidate most students.
I got invaluable feedback from teachers and students from different parts of India.
Most of them found the book dependable and, more importantly,
Preface
readable. I express my gratitude to all of them. Among those who offered constructive
comments, two persons deserve grateful acknowledgement Prof (Dr) VD Sebastian,
former Dean, Faculty of Law, Cochin University of Science and Technology, and Dr A
Prasanna, Reader, Government Law College, Thiruvananthapuram. I have tried to
incorporate their suggestions in this revised edition.
As in the case with the previous edition, I acknowledge my indebtedness to Smt I
Sreelatha for her research support, and to Shri O Geevarghese for his help in word
processing. The LexisNexis team, as usual, were persistently engaged in the rather
unpleasant task of reminding me of deadlines. For their persistence and the meticulous
care in editing, I thank Ms Richa Kachhwaha and Shri Arun Bhanot.
Acknowledgments remain incomplete unless I mention the encouragement and moral
support which I received in abundance from my wife Susha and daughter Malavika.
I repeat my request in the first edition of this book to all readers for their comments
and suggestions.
24 January 2006 NK Jayakumar
Jayapadmam 503,Darsan Nagar

Thiruvananthapuram- 695005.
VI
Preface to The First Edition
When one attempts to write a new book on a subject in which a number of books are
already available, he must have some justification for that. After agreeing to write a book
on jurisprudence for law students in response to a request from LexisNexis Butterworths,
I asked myself: why a new book? What is wrong with the existing textbooks? As my
probe progressed, I discovered that jurisprudence was the last choice of most of the law
teachers and it was at the top of the 'hate list' of law students. There is a communication
gap between scholarly books on jurisprudence, and an average student of law. The style
and presentation of most of the textbooks on the subject fail to stimulate the interest of
the students in the subject and to convince them that jurisprudence has its own relevance
and significance.
These prefatory remarks are not intended to precede a tall claim that this book is
different from all other textbooks and is free from all the defects of other books. On the
other hand, I must confess that as the work of writing this book progressed I realised the
difficulty in the task of writing a textbook on jurisprudence which is different and
student-friendly and does not also miss out anything important. This book is the result of
an earnest attempt to fulfil a very ambitious and difficult task. To what extent have I
succeeded in that attempt is to be judged by the teachers and students of law.
The Report of the Curriculum Development Centre of the University Grants
Commission (1990), which contains a model curriculum for jurisprudence, begins with
the observation that without a deep understanding of the concept of law, neither legal
education nor legal practice can be a purposive activity oriented towards attainment of
justice in society. It further states that a course in jurisprudence 'should, primarily, induct
the student into a realm of questions concerning law so that he is able to live with their
perplexity or complexity and is driven to seek answers for himself.' This objective has
been kept in mind while preparing the text of these lectures.
f
Preface to The First Edition
I have taken special care to include topics which are not found in most of the Indian
books on jurisprudence, especially critical legal studies, feminist jurisprudence, post-
modern legal theory, science, technology and law, globalisation and law etc. In the case
of other topics also I have tried to update the content. Since this is mainly intended to be
a textbook for students of the first-degree course of law, it was my endeavour to make
the presentation as simple as possible, while avoiding the perils of over simplification. It
goes without saying that the text of these lectures borrows heavily from the sources
enlisted in the bibliography.
I must gratefully acknowledge my indebtedness to Prof KG Pillai, whose expertise and
experience of teaching jurisprudence for more than three decades was totally placed at
my disposal. Prof Pillai has read the entire manuscript and made many useful comments
and suggested changes which, \ am s\xw,\Nt ^v^x^^^^^N^W^W in the content of
these lectures. Smt I Sreelatha, who worked as my research assistant Oil this project,
helped me with the necessary research support without which this book would not have
materialised. Ms Bindu also rendered useful help in preparing the draft of some of the
chapters. Ms R Neethu, a student of law, was patient enough to read the whole
manuscript and to offer valuable suggestions from a student's point of view. Shri O
Geevarghese helped in word processing. I owe a deep debt of gratitude to all of them.
The editing and production of LexixNexis Butterworths, under the dynamic
leadership of Ms Ambika Nair and Ms Pankhuri Shrivastava, deserves all the credit, not
only for the editing and production quality but also for keeping me frequently under
pressure, without which this book would never have seen the light of the day. Finally, I
must place on record my appreciation for the emotional support given by my wife
Susha and daughter Malavika.
I place this book before the students and teachers of law in all humility, fully
conscious of its imperfections, with the fervent hope that their comments and
suggestions would definitely help in improving the quality and utility of the book in its
next edition, which, hopefully, may be needed in the not too distant future.
11 June 2004
Jayapadmam
503, Darshan Nagar
Thiruvananthapuram 695 005
NK Jayakumar
Contents
Preface f
Preface to The First Edition vii
Contents ix
TableofCases xvii
PART I LAW: NATURE AND SOURCES
Lecture 1 Law: Its Nature and Functions 3
Meaning of Jurisprudence 4
The Idea of Law 4
Functions of Law 7
Law and Morality 9
law as Social Control 14
Territorial Nature of Law 15
Law and Fact 16
Lecture 2 Importance of Jurisprudence 19
Meaning and Scope of Jurisprudence 19

Comparative Law 24
Relevance in Historical and Philosophical Legal Research 26
Understanding and Improving National Law 27
Development of International Relations 28
Unification of Law 29
Comparative Law as an Autonomous Branch of Legal Knowledge 30
Major Global Legal Systems 30
Romano-Germanic Family 31
Common Law Family 31
Family of Socialist Laws 32
Lecture 3 Sources of Law I: Legislation 33
Introduction 33
Contents
Legislation: Nature and Meaning 35

Different Forms of Legislation , 37
Colonial Legislation 38
Executive Legislation 38
Judicial Legislation 39
Municipal Legislation > 39
Autonomous Legislation 39
Delegated Legislation and Autonomic Legislation 39
Advantages of Legislation 40
Disadvantages of Legislation 42
Relation of Legislation to Other Sources 42
Codification 43
Codification in India 44
Lecture 4 Sources of Law II: Precedent 47
Meaning of Precedent 47
The Doctrine of Stare Decisis 48
Classification of Precedents 49
Original and Declaratory Precedents 49
Authoritative and Persuasive Precedents 50
Ratio Decidendi and Obiter Dicta 51
Theories of Precedent 5*
Declaratory Theory 52
Judges as Lawmakers Theory 53
Hierarchy of Courts 5
Exceptions to the Doctrine of Stare Decisis 5
Judicial Techniques of Using a Precedent 5
Refusal to Follow a Precedent
Distinguishing a Precedent 5
Reversing a Precedent '
Overruling a Precedent 5
Prospective Overruling
Law Reports
Advantages and Disadvantages of Precedents
Lecture 5 Sources of Law III: Custom
Origin and Importance of Custom

Kinds of Customs
Requisites of a Custom
Reasonableness
Contents
Conformity with Statute Law 66

Observance as of Right 66
Immemorial Antiquity 66
General Custom of the Realm 67
Custom and Prescription 67
PART II LAW: THEORIES AND APPROACHES
Lecture 6 Approaches to Law I: Historical Approach 71
Overview 71
Comments on Volksgeist 73
Anthropological Approach 75
Dialectical Interpretation 77
Biological Interpretation 78
Racial Theory of Law 78
Leadership Principle 78
Racial Principle 79
Gierke: A Historian with a Sociological Perspective 79
Lecture 7 Approaches to Law II: Economic Approach 81
Marxist Theory 82
Doctrine of Economic Determination of Law 82
Doctrine of Class Character of Law 82
Doctrine of Identity of Law and State 82
Doctrine of Withering Away of Law and State 83
Economic Analysis of Law 87
Lecture 8 Approaches to Law III: Sociological Approach 93
Social Origins of Law and Legal Institutions 93

Impact of Laws on Society 94
Task of Laws in Society 95
Individual Interests 97
Public Interests 98
Social Interests 98
Criteria to Test Validity of Laws 101
Sociological Jurisprudence and Sociology of Law 103
Lecture 9 Theories of Law I: Natural Law 105
Influence of Natural Law Ill

xi
Contents
United States of America... Ill

England 112
India 112
Revival of Natural Law 115
Lecture 10 Theories of Law II: Legal Positivism 117
Austin 118
Command 118
Sovereign 119
Theory of Sovereignty 121
Hart 126
Lecture 11 Theories of Law III: Pure Theory of Law 133
Lecture 12 Theories of Law IV: Legal Realism 139
American Realism 139

Scandinavian Realism 144
Lecture 13 Modern Trends and Theories 147
Critical Legal Studies 147

Post-Modern Legal Theory 152
Feminist Jurisprudence 156
Science, Technology and Law 160
Globalisation and Law 163
PART III LAW AND JUSTICE
Lecture 14 Justice 169
Principle of Reciprocity 170

Just Savings Principle 170
Justice: Indian Perspective 173
Lecture 15 Administration of Justice 175
Civil and Criminal Justice 175

Criminal Justice 177
Civil Justice 180
Secondary Functions of Courts 181
Alternative Methods of Dispute Resolution 186
xii
Contents
PART IV ELEMENTS OF LAW
Lecture 16 Rights and Duties 191
Rights 191
Duties 193
Elements of a Legal Right 195
Different Meanings Of Right 197
Right in the Strict Sense or Stricto Senso 197
Liberty or Privilege 198
Power 198
Immunity 199
Hohfeld's Analysis of Rights 200
Classification of Legal Rights 204
Perfect and Imperfect Rights 204
Positive and Negative Rights 205
Real and Personal Rights or Rights in Rem and Rights
in Personam 205
Jus ad rem or a Right to a Right 206
Proprietary and Personal Rights 206
Rights in re propria and Rights in re aliena 207
Principal and Accessory Rights 208
Primary and Sanctioning Rights 208
Legal and Equitable Rights 208
Vested and Contingent Rights 209
Theories on the Nature of Rights 209
Will or Choice Theory 209
Interest or Benefit Theory 210
Dworkin's Theory of Rights as Trumps 211
Fundamental Rights 211
Fundamental Duties 212
Natural Rights and Human Rights 213
Lecture 17 Ownership 217

Definitions 219
Indefinite in Point of User 219
Unrestricted in Point of Disposition 219
Unlimited in Point of Duration 220
Kinds of Ownership 221
Corporeal and Non-corporeal Ownership 221
Sole Ownership and Duplicate Ownership 221
Ownership as a Social Concept 224
xiii
Contents
Lecture 18 Possession 227 Legal

Definitions 228 ^
Animus Possidendi 228 Lecti
Corpus Possessionis 231
Relation of the Possessor to other Persons 231 Vest!
Relation of the Possessor to the Thing Possessed 234 Acts
Kinds of Possession 235 Agre
Corporeal and Incorporeal Possession 235 |
Mediate and Immediate Possession 236 rf
Duplicate or Concurrent Possession 237 u^Cecti
Adverse Possession 237 | ^
Acquisition of Possession 237
Modes of Acquisition 238 |
Commencement and Continuance of Possession 239 >
Relation Between Possession and Ownership 239
Constructive Possession 240
Possessory Remedies 241
Lecture 19 Persons 243 Moi

Nature of Legal Personality ; 243
Corporations 245
Persons in a Corporation 245
Acts and Liabilities of a Corporation 246
Unincorporated Associations 247 /j^.
Uses and Purposes of Incorporation 247
Theories of Legal Personality 248 Soli
Purpose Theory 248
Theory of Enterprise Entity 248
Symbolist or Bracket Theory 249
Hohfeld's Theory 249 Sot
Kelsen's Theory 245
Fiction Theory 2 58
Concession Theory 25t
Realist Theory 25f
An Evaluation 25
Problems of Corporate Personality
Lifting the Veil of Corporate Personality 25J
Importance of Incorporation 2)
State as a Legal Person 251
Legal Status of Animals 2jT
Legal Status of The Deceased 21
xiv
Contents
Legal Status of Unborn Persons 258

Double Capacity and Double Personality 259
Lecture 20 Titles 261
Vestitive Facts 262

Acts in Law 263
Agreements 264
Classes of Agreements 265
Lecture 21 Property 269
Meaning 269
Kinds of Property 270
Ownership of Material Things 270
Movable and Immovable Property 271
Situs of Right 273
Rights in re propria in Immaterial Things 273
Rights in re aliena or Encumbrances 274
Modes of Acquisition 277
Possession 277
Prescription 278
Agreement 279
Inheritance 280
Lecture 22 Obligations 283
Solidary Obligations 285

Several 285
Joint 286
Joint and Several 286
Sources of Obligation 287
Contractual 287
Delictal 288
Quasi-contractual 288
Innominate 289
Lecture 23 Liability 291
Remedial Liability 291

Imperfect Duties 292
Irrevocable Wrongs 292
Other Remedies 292
Contents
Penal Liability 292

Acts 293
Positive and Negative Acts 293
Internal and External Acts 293
Intentional and Unintentional Acts 293
Constituents of an Act 294
Two Classes of Wrongful Acts 294
Damnum Sine Injuria 295
Mens Rea 295
Malice and Mens Rea 296
Exemptions from Liability 298
Negligence 299
Duty to Take Care 300 Ashbyv W
Standard of Care 301
Absolute Liability 302
Mistake of Law 302
Mistake of Fact 303 g-.J^
Accident 304 BridgavH,
Vicarious Liability In Civil Law 305 Brown vBos
Vicarious Liability In Criminal Law 306
Lecture 24 Law of Procedure 307 Cartwrighn
Scope of Law 307 I

Evidence 308 DaimlerCo,
Valuation of Evidence 310 Rubber C
Conclusive Proof or Conclusive Presumptions 310
Conditional or Rebuttable Presumptions 3Id
Insufficient Evidence 311 Elwes v Brig
Exclusive Evidence , 311 EMSNambc
No Evidence 311
Production of Evidence 311
CioIakNathi
, ajj Great North*
Bibliography 31.
Hannah v Pa
Hindustan G
xvi
Table of Cases
A
Ashbyv White, 181 B
Bengal Immunity Co Ltd v State of Bihar, 55

Bijoe Emmanuel v State of Kerala, 140 Bridges v Hawkesworth, 233 Brown v Board of
Education, 111
C
Cartwright v Green, 230 D
Daimler Co v Continental Tyre and Rubber Co, 253
Elwes v Briggy Gas Co, 233

EMS Namboodiripad vTN Nambiar, 87
Golak Nath v State of Punjab, 58 Gteat Northern Railway v Sunburst Oil Refining Co, 58
Hannah v Peel, 233

Hindustan Coca Cola Beverages (P) Ltd v Perumatty, 272
Jumbo Circus v Union of India, 257
Kailash Chand Sharma v State of

Rajasthan, 59 Keshavananda Bharati v State of
Kerala, 122
L
Linkletterv Walker, 58 London Corp vAppleyard & Anor, 233 London Tramways v
London County Council, 55
Managing Director v B Karunakar, 59 Merry v Green, 229 Muller v State of Oregon, 28
Narayanaswamy v Emperor, 297 NRNairv Union of India, 257
Peoples Pleasure Park Co v Rohleder, 253 Perumatty Grama Panchayat v State of

Kerala, 272 Plessy v Furguson, 111
Q
Queen Empress v Ramakka, 297 R
RvAshwell (A), 230 Rv Dudley, 298

Table of Cases
Rv Hudson, 230
R v Mental Health Review Tribunal
Noah and East London Region, 37 Rv Prince, 299, 304 R v Secretary of State for
Transport, ex p
Factortame, 36 Rv Senior, 259 Rylands v Fletcher, 304
Sajjan Singh v State of Rajasthan, 56, 58 Sakshiv Union of India, 156 Salomon v
Salomon & Co, 252 Shankari Prasad v Union of India, 58 Shaw v DPP, 12
South Staffordshire Waterworks Co v
Sharman, 233 State of Gujarat v Mirzapur Moti Kureshi
Ksasabjamat, 56 State of Maharashtra v George, 303
T
Tall Vale Railway Co v Amalgamated

Society of Rail, 255 Thomson v The London County
Council, 286 Tukaramv State of Maharashtra, 157
V
Vishakav State of Rajasthan, 214 W
Walker v Great Northern Rly of
Ireland, 259 Willis v Baddeley, 53 Wurzel v Houghton Main House
Delivery Service Ltd, 254
xviii
PART 1
Law: Nature and Sources
Lecture 1
Law: Its Nature and Functions
What is law? If this question is posed to a layman, the first images that come to his mind
may be those of a courtroom, a judge, a lawyer, a policeman, or an accused person. This
is natural because ordinary persons always think of law in terms of dispute settlement,
and maintenance of law and order.
If you pose the same question to a lawyer or a judge, he might think of a statute, a code,
or a judicial decision. This is again natural because, since these are the sources from
which the law is determined and, therefore, the very mention of the word 'law' brings to
his mind the all too familiar sources of law.
I have asked the question 'what is law' to hundreds of law students over a period of
three decades. Most of them consider law as a regulatory mechanism, a code of conduct,
or a set of binding norms governing human behaviour in society. However, some of them
do think of law as an instrument of social change, or as a means to achieve justice in
society.
From the above discussion, it is obvious that different people have different ideas about
law. This is because they look at law from different perspectives. Although each of these
versions is correct, yet they are partial descriptions of law. It is possible to understand law
by looking at its sources. We will get a clearer picture of law if we look at the nature and
functions of law. Once the functions of law have been identified, it may be pertinent to
ask whether the laws actually perform those functions effectively. If the answer is in
negative, a further question as to why it is so and what could be done about it, arises.
I have started the discussion with the question 'what is law' just to show that there are
several approaches to law, and that there are several methods to understand the idea of
law. A student of law must necessarily have a clear idea of law because that will help the
student in a proper understanding of any particular branch of law, and also in
understanding the manner in
which a legal system works. The task of jurisprudence, put in the simplest! terms
possible, is to help form a clear picture of law. This is basic to af proper study of law.
That explains the relevance of jurisprudence, and the! reason behind making it a
compulsory subject in the curriculum of law. '
Meaning of Jurisprudence
The next question which arises is as to what is jurisprudence? It has been described as
the knowledge of law or the science of law. In this chapter we will discuss the main
components in the study of jurisprudence.
An important area of jurisprudence is concerned with the sources of law, viz,
legislation, precedent, and custom. The relative importance of these sources keeps on
changing with time. It is interesting to study the various sources of law, and their relative
importance in different legal systems and| during different periods in history. The study is
very important because it * tells us a lot about the evolution of law, and also what the law
is today. 1
It is possible to approach law from various perspectives, such as historical,
economic, and sociological. No single approach gives us a comprehensive, picture of law.
Nevertheless, each approach is important because it throws light on some aspect of law.
Jurists have spent a great deal of their time and creative energy to develop their own
concepts of law. These theories, which include natural law, various versions of positivism
and sociological theories, continue to grow and enrich our knowledge of law. A study of
the approaches to law and various theories of law form another important cqniponent of
jurisprudence.
There are certain legal concepts which form the foundation of every legal system.
These concepts, sometimes called the elements of law, which include right, duty,
obligation, ownership, possession, legal personality etc, are the core of any branch of
law. A proper study of the elements of law equips a person with the expertise to analyse,
understand, and solve any legal problem. Jurisprudence as a basic subject is, therefore,
concerned with a study of the elements of law as well. The subsequent lectures in this
book will be concerned with the sources of law, various theories of and approaches to
law, and the elements of law.
The Idea of Law
The idea of law with which we began this lecture needs more elaboration. Whenever we
want to understand a concept, our usual method is to turn to the definition or definitions
of that concept. In understanding the concept of law also the definitions help. However,
they do not tell us the
whole story. No simplistic definition of law is considered satisfactory. We need an

analysis to unravel the confusions surrounding the concept of law, in order to highlight
the salient features of a legal system, and to provide an insight into the nature, functions,
and operation of law. Definitions constitute only the starting point of our investigation.
A complete picture of the concept of law will emerge only after we have discussed the
theories, approaches, and elements of law.
The existence of law presupposes the existence of a community. When we use the
word 'community', we mean a group of people who have accepted a set of values dealing
with the fundamental issues on which the existence of that society depends. In the
absence of such agreement, men cannot act together effectively. When it reaches a
certain stage of development, the community sets up a legal order which determines the
methods by which the law is to be created, declared, and enforced. It is aptly said ubi
societas, ibijus, ie, wherever there is a society, there is law. The questions as to who uses
the machinery of law, and for what ends, continue to be debated upon. When it is said
that the end of law is justice, it must be clearly understood that it is more of human
justice, rather than ideal justice defined by those who control the machinery.
From one perspective, law may be simply described as an abstract body of rules. From
another perspective, it is a social process for compromising the conflicting interests of
men. One approach to law may emphasise its coercive character, while another may lay
stress on social acceptance of law. One can also look at law as something which
emanates from, and is enforced by the state. Law can also be conceived as evolving from
society, and being sustained by social acceptance. Various definitions of law reflect these
various approaches.
Kant defines law as the 'sum total of the conditions under which the personal wishes of
one man can be combined with the personal wishes of another man in accordance with
the general law of freedom'. In Hegel's view, law is 'the abstract expression of the general
will existing in and for itself. Henry Maine's idea of law is closely associated with two
notions, ie, the notion of order, and the notion of force. Savigny defines law as 'the rule
whereby the invisible borderline is fixed within which the being and the activity of each
individual obtains a secure and free space'. Another jurist, Vinogradoff, sees law as 'a set
of rules imposed and enforced by a society with regard to the distribution and exercise of
powers over persons and things'.
Duguit's definition is important because he treats law essentially and exclusively as a
social fact. He identifies the foundations of law in the essential requirements of
community life. Law can exist only when men live together.
Lectures in Jurisprudence j
Law, according to Duguit, denotes an obligatory code of human coni designed to satisfy
the social needs of the community. Ihering bring two elements, namely, social control,
and social purpose. He defines lai 'the form of guarantee of the conditions of life in
society, assured by st power of constraint'. Ehrlich includes in his definition of law all the
m which govern social life within a given society.
Austin defines law as the general command of the sovereign to his sub, obliging them
to a course of conduct. This definition is the basis of positivist approach, which will be
discussed in detail later. The elemeii coercion is not prominent, but latent, in Paton's
definition of law as body of rules which are seen to operate in a community backed by $
mechanism accepted by the community by means of which suffic compliance with the
rules may be secured to enable the system or s rules to continue to be seen as binding in
nature'. In a similar vein is definition of Friedmann. According to him, the concept of law
mea norm of conduct set for a given community and accepted by it as bin< by an
authority equipped with the power to lay down norms of a degrc general application to
enforce them by a variety of sanctions.
The courts are at the focal point of some definitions of law. A tyt example is the
definition of Holmes, who said: 'The. prophesies of what courts will do in fact and
nothing more pretentious are what I mean by law.' Salmond's definition also conveys the
same idea when he defines as the body of principles recognised and applied by the state
in administration of justice. Pointing out that this definition does adequately bring out the
element of force involved in the conceptioi law, Parker defines law as 'the body of
principles enforced by the s through judicial authorities by physical force in pursuit of
justice, whe attained or not'. The element of prediction and the pivotal role of courts are
seen in the definition given by Cardozo also. Accordin] Cardozo, a principle or rule of
law is a principle or rule of conduc established as to justify a prediction with reasonable
certainty that it be enforced by the courts if its authority is challenged. All these definit
reflect the approach of the realist school, which will form the topic discussion in a
subsequent lecture.
The ethical content of law, which is conspicuously absent in all definitions we have so
far examined, is the core of Del Vecchio's definit He defines law as 'the objective
coordination of possible acts among ; according to an ethical principle which determines
them and prev their interference'.
6
Functions of Law
One can go on citing various definitions of law, but that will only add to the
confusion. Now let us try to understand the nature of law in terms of
groups within a society, at least in so far as these individuals and groups accept
a version or aspect of a common social order that includes submission to law.
Law also provides procedures for conflict resolution. The third important
function of law is the resource allocation function. Law guarantees
f and protects existing production relations and ways of distributing
resources, apart from providing the means for active intervention to actualise
i new principles and policies for resource allocation, and to enforce and
I supervise the same.
f The main function and purpose of law has been stated to be achieving justice,
stability, and peaceful change in society. This naturally leads us to 1 I the question,
what is justice? Primarily, it means equality. As Aristotle says, e I injustice arises
when equals are treated unequally, and also when unequals e I are treated equally. In
other words, equality means not singling out persons n I for special treatment in the
absence of significant differences, but in treating te I like cases alike, and meting out
fair and equal treatment to all. However, )t the difficult question is as to what
constitutes a significant difference jf J justifying special treatment in a particular
context. In order to answer this te I question we have to move from a formal and
procedural notion of equality er 1 to a substantive and political notion. It is important
to realise that the ie | number and types of classes a legal order can establish for
differential to treatment is almost infinite. Caste, gender, religion, race, economic status,
so educational attainments, place of birth and many other factors may
'ill constitute the basis for differential treatment. Ginsberg points out that
us control of power relations and exclusion of arbitrary power are necessary to
For ensure impartiality in the process of determination of equality. Equality in
political rights must be extended to equality in social and economic rights, :he
Another dimension of justice is distributive justice, which aims at
3n. ensuring a fair division of social benefits and burdens among the members
ten of the community. It serves to secure a balance or equilibrium among
nts members of society. When this balance is disturbed, corrective justice must
step into correct the inequilibrium. It is said that distributive justice is the
Itask of the lawmaker, and corrective justice is the task of the judge. Stability and
peaceful change, which we have seen as the other function
amount of uniformity, certainty and stability are necessary to malnta credibility of law.
Unless there is predictability, a citizen cannot pi; activities in conformity with law.
Certainly in laws excludes arbitra in decisions. Every social order, therefore, desires
stability and se< While the importance of these as ideals cannot be overlooked, the re;
that law can never attain that ideal in a perfect manner. No rule can p for every possible
situation. Distinctions must be drawn when circums vary. Too much stability will lead
only to rigidity and stagnation. As I Pound observes, 'law must be stable, yet it cannot
stand still.' So a fl approach in tune with changing circumstances is necessary to alk
peaceful change. The success of a legal system depends on its propen employ general
rules, standards and principles in the task of regu human affairs, and in balancing the
needs of stability with those of cl
When we think of law as a synthesis of order and justice, the disti between these two
concepts, though interrelated, must not be overl< Order relates to forms of social life
rather than to its substance and q It is not sufficient to create a satisfactory mode of social
existence, directs our attention to the fairness and reasonableness of the rules, prii and
standards that are components of the normative edifice. Considei of justice lead us to the
content of legal norms and institu arrangements, their effect upon human beings, and
their worth in te their contribution towards achieving satisfaction in the society and
building of civilisation. The aim of justice is to satisfy the reasonable and claims of
individuals, and at the same time to promote prod effort and that degree of social
cohesion which is necessary to mair civilised social existence. Thus, it can be said that
law must aim creation of order, as well as the realisation of justice.
In any society, there will inevitably be disagreements on questii justice. If under a
policy of protective discrimination, seats are reser favour of certain castes in education
and employment because th been deprived of opportunities for generations, it is
arguable that : policy promotes justice. However, it is also arguable that such a does
injustice to meritorious candidates belonging to other castes w not enjoy the benefit of
reservation, and are denied admissi employment because of the policy of protective
discrimination.
Similarly, where property owned by a landlord is taken over by th without paying any
compensation or on payment of a token amour the land is distributed to landless
labourers, one can look at it from di perspectives, and draw different conclusions. From
the landlord's pc view, it is clearly an instance of injustice because he had been depri
his property without adequate compensation. From the poor landless labourer's point of
view, he was tilling the soil and the landlord was exploiting his hard labour. The law has
only corrected the injustice, and restored the balance in society.
If a law is enacted to provide for 33 percent reservation for women in legislatures, it
may be hailed as a measure to achieve real equality by empowering women. It may also
be criticised as a denial of equality to men and thus, a denial of justice. Similarly, any
number of questions may be raised in relation to justice, as for instance, whether laws,
which permit abortion, capital punishment and euthanasia, promote justice in society.
The content of justice, as Kelsen observes, is not amenable to rational determination. In
response to the above-referred issues, it is not possible to give clear-cut answers in terms
of right and wrong. Answers to these questions rather depend on value judgments.
Now the question is whether we should include value judgments in our definition of
law. In other words, in order to describe something as law whether it should satisfy some
criterion based on justice or fairness. If a law does not satisfy your sense of justice, will it
be considered as law, and hence binding? Does a law attain the quality of law merely
because it was laid down by the state, and is backed by the coercive power of the state to
enforce it? If an oppressive and unjust law is imposed on a society, resistance to such law
will grow in that society, because people may not accept the legitimacy of such law, even
though it satisfies the test of formal validity. Thus, we draw a distinction between the
validity of law and its legitimacy.
Law and Morality
The relation between law and morality has also been the subject matter of much debate
and discussion. It is closely related to the questions we have been considering. Morality
aims at increasing social harmony by diminishing the incidence of excessive selfishness,
noxious conduct towards others, internecine struggles, and other potentially disintegrative
forces in social life. The classical distinction, which characterises law as concerned with
external conduct and morality as concerned with internal conduct, was first made by
Kant. It was strengthened by the support of jurists like Paton, Kantorowicz, and
Stammler. In this view, law requires external compliance with existing rules regardless of
the underlying motive. Morality appeals to the conscience of man, his intentions, sense of
ethical duty, and the concern for good for its own sake. Law is heteronomous, ie, imposed
on man from outside, while morality is autonomous, ie, coming from within man's inner
self.
V^T' Lectures in Jurisprudence
However, the relationship between law and morality appe complex, ambiguous and
fluid than what the classical disi out. Law, in some contexts, is as much concerned
with intentions as morality. For instance, when the question whet guilty has to be
determined on the basis of mens rea or b cannot merely look at external conduct and
decide. Simila concerned not only with internal conduct, but also with exi
Historically, we find that no clear distinction was draw and morality in ancient times.
In Greece, lay juries who admi in popular courts did not perceive any clear
distinction her Liit language ui molality, in L-iiglanU, chancellor: equity
according to the dictates of their conscience, which h by the prevailing moral ideals,
and the religious doctrines catholic church. In India, the all-pervasive concept of
dharm of both law and morality. However, tatet therule Roscoe Pound identifies four
stages in the law-moral The first is a stage of undifferentiated ethical customs, cus
actions, religion, and law. This may be called the pre-legal si stage is that of strict
law, codified or crystallised, which i< morality. The third stage is that of infusion of
moralit; reshaping law by morals. Ideas of equity and natural law pi role in the
growth of law. The final stage is that of conscio law making in which morals and
morality are for the law m: Law attains maturity and judges have to decide only
accon Several jurists believe that there is a distinction between la although there are
some features common to both. According 'the object of law is the submission of the
individual to the v society, while the tendency of morality is to subject the in dictates
of his conscience'. Roscoe Pound accepts that lav have a common origin, but
adds that they diverge in then
^ Bentham sums up the relation aptly, saying that 'law has t
as morals, but it has by no means the same circumference', Hart
is not in favour of rejecting the distinction between , based on the
internality and externality of conduct altogether, four features,
which distinguish morality from legal as well They are as
follows:
(i) Importance: Hart places moral rules at a higher pi to

other social rules and even some rules of law. ' rules
demand sacrifice of individual interests on t
10
ft _
person bound, compliance with them obtains vital interests which all share alike.
(ii) Immunity from deliberate change: In the case of legal rules, it is always possible
to repeal old rules, change existing rules, and introduce new rules. The
competence of the legislatures to change law may be limited by a written
Constitution. However, even the Constitution is amenable to change in the
prescribed manner. Moral rules cannot be brought into existence, altered or
repealed, in a similar manner. Moral rules of a society may also change, but the
change is not deliberately brought about by any single factor. It is the result of
several factors which exert an influence on social morality. Law may also be one
of the factors which influence a change in moral rules.
(iii) Voluntary character of moral offences: A person will be absolved from moral
responsibility if he can establish that his act contrary to a moral rule was done
unintentionally, and inspite of every precaution that it was possible to take in the
given circumstances. A legal system, on the other hand, will not always accept
such an excuse. Legal responsibility is not inevitably excluded by the
demonstration that an accused could not have kept a law which he has broken. In
the case of moral responsibility, it is always a pre-condition that the individual
must have a certain kind of control over his conduct.
(iv) Form of moral pressure: The typical form of legal pressure consists of physical
punishment or unpleasant consequences. Since moral rules are concerned with the
conscience of man and obedience to them is considered to be internal rather than
external, a rule, which is enforced by threat of punishment, cannot be regarded as a
moral rule. Moral pressure is exerted, not by threats, but by reminders of the moral
character of the action contemplated and the demands of morality. It is an appeal to
one's conscience. Deviations from the moral code may meet with a number of
hostile reactions ranging from informal expressions of contempt to severance of
social relations.
Friedmann who considers the classical distinction between law and morality outdated,
argues that the relative spheres of law, morality and ethics differ considerably, but there
exists an active reciprocal relationship between the legal order, and the moral order.
Moral values press upon the legal system, and the modern lawmaker can, to an increasing
extent, influence and modify the social habits of the community. Thus, in the
contemporary, highly articulate and organised society, law becomes an increasingly major
factor in the transformation of social morality.
11
Some jurists draw a line of distinction between ethics and positiv morality. While
ethics deal with an absolute ideal, positive morality i made up of the actual standards
which are adopted in the life of an particular community. In some respects positive
morality is similar to la\i Positive morality, like law, emphasises conduct, rather than state
of mind It is also imposed on individuals externally and has behind it the effectivi though
unorganised, sanction of public opinion. However, public moralit differs from law in the
following respects:
(i) a rule of law is imposed by the state, whereas positive morality i imposed by the
community;
(ii) sanction behind positive morality is not applied by organise machinery, nor is it
determined in advance, as in the case of law
(iii) the content of law is different from that of positive morality;
(iv) another difference lies in the method of expression. Rules of posim morality lack
precision, whereas rules of law are expressed in precis and technical language.
The relation between ethics, positive morality and law is aptly summed u by Paton thus:
Law, positive morality, and ethics are overlapping circles which can never
entirely coincide, but the hand of man can move them and determine the
content that is common to all or to two or confined to one.1
Another question which has sparked off a heated jurisprudential debate i as to whether
the law should be concerned with the enforcement of moralit] The controversy arose
following the decision of the House of Lords i Shaw v DPP1 In this case, a person
published a book under the title 'Ladit Directory', listing the names and addresses of
prostitutes in London. Strict!) speaking, such publication did not constitute any offence as
defined b] law. Nevertheless, he was convicted for the offence of 'conspiring to corrup
public morals', an offence not known to law till then. Justifying th conviction, Viscount
Simmonds said:
There remains in the courts of law a residual power to enforce the supreme and
fundamental purpose of law, to conserve not only safety and order, but also the
moral welfare of the state.
Supporting this view, Lord Devlin argues strongly that a society possesse public morality
simply because it is a society, and the criminal law canno
1Paton GW, A Textbook of Jurisprudence, fourth edn, 1972, p 73.

2[1961] 2 All ER 446.
12
ignore the collective moral judgment of the community. If there is a strong and pervasive
feeling that certain conduct is extremely threatening and reprehensible to basic rules of
community life, then the sanction of the criminal law should be applied.
HLA Hart enters the debate with a different view. He argues, on the basis of Mill's
essay titled 'On Liberty', that the only purpose for which power can rightfully be
exercised over any member of a civilised community against his will is to prevent harm
to others. Hart wants to separate law from moral questions. Naturally, he is opposed to
the very idea of vesting a power in the courts of law to enforce the supreme and
fundamental purpose of law in order to conserve the moral welfare of the state.
The debate assumes a different dimension with Lon Fuller's reply to Hart. In his book, 3
Fuller asserted that law must possess certain characteristics if it is to be classified
correctly as 'Law'. The most important characteristic is 'inner morality' which must
command respect. Fuller enumerated the following qualities, which must be present in a
legal system if it is to command allegiance from citizens:
(i) Laws must be in existence. They must not exist merely as ad hoc settlements of
disputes.
(ii)Laws must be promulgated publicly. They must be made known to persons who
will be bound by them.
(iii) Laws must not be retroactive. They must not affect adversely persons who relied
upon the law as it was.
(iv) Laws must be intelligible and clear.
(v) Laws must be internally consistent through time, ie, they must not change so that
citizens are unable to orient their actions by them.
(vi)Laws must be free from contradiction.
(vii) Laws must not require the impossible.
(viii) Laws must be administered so that there is no failure of congruence
between the rules as promulgated and their administration in practice.
Fuller provides a clear answer to the question as to how should citizens react to a regime
which ignores these principles, or when the legal regime assists in the systematic denial
of rights to groups of citizens. The regime which is based upon, or which actively assists
in the spread of, injustice has no right to expect allegiance from its citizens. According to
Fuller, even though the law may be formulated and promulgated in traditional, formal
fashion, its lack of internal morality deprives it of the nature of 'true law'.
3 The Morality of Law, 1963.
13
Hart concedes that there are certain rules of conduct which organisation must follow if
it is to be viable, and such rul considered as constituting a common universal element in 1
societies. However, according to him, it does not follow that a i legal validity must
include, expressly or by implication, any r justice or morality. A rule of law may be
morally iniquitous, bi law. The validity of law cannot be impugned solely on the gn lack
of morality.
To conclude, Hart believes that the immorality of law cannoi the basis of a denial that it
is, and will continue to be, law un repealed. Fuller, on the other hand, is of the view that
the imm law vitiates, or destroys, its right to be called 'law'. A law foum denial of the
principles of the inner morality of the law is not any respect from the citizens.
Subsequently many other jurists i the debate, adding new dimensions to it, and the debate
conti in the course of our discussion, its echo will be found in the positions of natural law
and legal positivism.
Law as Social Control
The importance of law as one of the forms of social control c attention. In order to
understand this we have to consider the of law to the social control process as a whole,
and also to the of social control.
In every society we find great complexity in the actions of the and groups. The
question is how do we then perceive society ; as an organic community? Two
perspectives of society become our discussion. The first looks at society as an
autonomous s< independent of those who form it, giving rise to social forces th; control,
and determine the conduct of its constituents. Socie the mechanisms of social control, is
perceived as acting upon and its members. This view of man as a product of social fore
'determinism'.
The other perspective views individuals as active agents in i of social reality. This
view is known as 'voluntarism'. Social coi as a product of the normative process mainly
in terms of the process operating through internalisation of values. This takes t through
customs, mores, folkways, and morality. These may 1 as informal, or non-
institutionalised mechanisms of social coi activity and interaction give rise to social
values, which e expectations of others, constitute norms. Adherence to
14
expectations is induced by a range of socially available sanctions that are associated

with the norms themselves. These sanctions are applied as a response to norm
violation in the course of primary social activity within the primary social units of
group, family, and kinship. The constraint that is exercised through the informal
mechanisms of social control is seen as being essentially a process of self-regulation.
The forces of social control form a continuum ranged along a scale from informal
means to the more institutionalised forms. Law is considered as the most specialised
form of social control by jurists like Roscoe Pound. This view stresses the normative
character of law, and the relationship between societal values, and the value content
of legal propositions. Rules of law are seen as embodying the most widely diffused
social values. Law shares with other forms of social control a reliance upon
enforcement through widely diffused consensus. Durkheim views law as the direct
embodiment of the 'conscience collective'. This view seems to ignore the coercive
character of law.
Even while accepting the coercive character of law, it is important to remember
that law does not operate as an exclusively coercive mechanism. If law must be
effective as a method of social control, it must have legitimacy, and value consensus
as the root of legitimacy.
Law as a method of social control functions to circumscribe power, private as well
as public. Power, according to Max Weber, is the probability that one actor within a
social relationship will be seen in a position to carry out his own will despite
resistance, regardless of the basis on which this probability rests'. Law being
essentially a restraint upon the exercise of arbitrary power is hostile to anarchy as
well as to despotism. To avoid anarchy of numerous conflicting wills, law limits the
power of private individuals. To avoid* the tyranny of an arbitrary government, law
curbs the power of the ruling authority. By setting barriers to unlimited exercise of
power and attempting to maintain a certain social equilibrium, law acts as a
restrictive force in social life. It seeks compromise, peace and agreement in the
political and social sphere.
Territorial Nature of Law
When we consider law as a body of rules created by a legislature and applied and
developed by courts, we are identifying law with stare. Since stares are territorial in
nature, law must also necessarily be territorial. The territoriality of law is in regard to
its enforcement as we\\ as operation. A state can enforce its law only within its
territorial boundaries. When we say that the operation of law is always territorial, it
means that it applies to all persons,
I
15
things, acts and events within that territory. Negatively, it means tl does not apply to
persons, things, acts and events outside such terri Since the enforcement and operation
of law are essentially termor can be said that a legal system belongs to a defined
territory. This n that:
(i) its rules do not purport to apply extra-territorially;

(ii) those who apply and enforce them do not regard them as app extra-territorially;
and
(iii) other states do not so regard them.
The principle of territoriality of law is relaxed in some situations. Somei a legal system
may permit a person within its territory to follow the 1; his nationality. Private
international law, which is also known as confl laws, deals with cases in which courts of
a state have to administer fo laws in their adjudication. In such cases, the law applied
may not b law of the state, but the law of some other state. Here we may say tha law of a
state is given extra-territorial application. In extradition proceed a citizen of one state
who has committed a crime in another state is se the state where the crime was
committed. Here, a state agrees to mal citizens amenable to the jurisdiction of another
state. These exceptior not weaken the principle of territoriality of law because they bee
operative only with the consent of the state. It is logically possible to a that the rules of
private international law for extradition are part of th< of a state.
Law and Fact
The questions that come up for adjudication before courts in the cour: administration of
justice may be broadly divided into questions of law, questions of fact. The term 'question
of law' is used in three distinct sei
(i) a question, which the court is bound to answer in accord with a rule of law;
(ii) a question, which the law itself has authoritatively answere the exclusion of the
right of the court to answer the question thinks fit in accordance with what is
considered to be the t and justice in the matter; and
(iii) a question as to what the law is.
All questions, which are not questions of law, are called questions of Thus, it can be said
that any question, which is not predetermined by and any question except a question as to
what the law is, is a questio fact. If a legal system follows jury trial, then questions of fact
are left to
16
fact.
jury, and questions of law to the judge. Questions of fact may be primary or secondary.
Primary facts are proved by oral, documentary, or other evidence. Secondary facts can be
inferred from primary facts.
Questions of fact may be distinguished from questions of judicial discretion. Questions
of fact are capable of proof, and are the subject of evidence adduced for that purpose.
Matters of judicial discretion are not subject of evidence and demonstration, but of
argument, and are submitted to the reason and conscience of the court. In fact-finding, the
task of the judge is to ascertain the truth. The purpose of exercising discretion is to
discover the right or justice, and it involves moral judgment, something which cannot be
proved by evidence or determined by law. Law may not even provide the criteria for
assessment, which are matters of evaluation for the judge. Standards like due process of
law, reasonableness, fairness, decency, and morality etc provide great scope for the
exercise of judicial discretion.
The following illustration will make the distinction between questions of fact, law, and
discretion clear. X forcibly took his watch from a repairer, who refused to give it back
except on payment of his repairing charges. The question whether X took his watch
without the repairer's consent, is a question of fact to be proved by evidence. The
question whether that act amounts to theft, is a question of law governed by the
provisions of the Indian Penal Code 1860. Finally, the question what shall be the
reasonable punishment for this wrong, is a question of judicial discretion.
When questions of law arise, the duty of the court is to ascertain the rule of law, and to
decide in accordance with it. As regards questions of fact, the duty of the court is to
exercise intellectual judgment on evidence in order to ascertain the truth. As far as
questions of judicial discretion are concerned, the court must exercise moral judgment in
order to ascertain the right and justice of the case.
The existence and development of a legal system represents the transformation of
questions of fact, and of judicial discretion into questions of law. This happens by the
establishment of authoritative and predetermined answers to these questions, mainly
within the sphere of judicial discretion. During this process, natural and moral justice gets
transmuted into legal justice. These developments provide the courts with a fixed
framework within which they are relatively free to arrive at decisions on their merits.
They allow rules of law to function as 'guide posts rather than hitch posts'.
The law may sometimes deliberately depart from the truth for sufficient or insufficient
reasons. This is done mainly through two devices, legal presumptions, and legal fictions.
In legal presumptions, one fact is recognised
J
17
by law as sufficient truth of another fact whether it is in truth suffic Presumptions of

law may either be conclusive, or rebuttable. A concli presumption is one which
constrains the court to infer the existence of fact from the existence of another even
though this inference couli proved to be false. Law prohibits leading evidence to the
contrary. Exam of conclusive presumptions are: (i) a child born during the continuanc
marriage and within 280 days after its dissolution is presumed to legitimate; (ii) a child
under seven years of age is presumed to be incap of committing a crime; (iii) a
certificate issued by the Registrar of Compa that the requirements of the Companies Act
1956 regarding registrai have been fulfilled, is conclusive evidence that such
requirements have b fulfilled. Conclusive presumptions are called presumptio juris et
de jure.
A rebuttable presumption requires the court to draw such an infere even though there
is no sufficient evidence to support it, provided ther no sufficient evidence to establish
the contrary inference. For instana negotiable instrument is presumed to be given for
value, unless the contr is proved. A person who has not been heard of for seven years or
more those who would naturally have heard of him if he had been alive, is presurr to be
dead. However, this presumption may be rebutted by sufficie evidence to prove that he is
alive. In our criminal justice system, an accus person is presumed to be innocent, which
again is rebutted if the prosecutii proves that he has committed the offence.
Another deliberate departure from truth takes place by the use of^ci juris, ie, legal
fictions. Henry Maine defines a legal fiction as any assumptk which conceals or tends to
conceal the fact that the rule of law had undergo] any alteration, its letter remaining
unchanged but its operation beir modified'. According to Salmond, legal fiction is a
device by which la deliberately departs from the truth of things, irrespective of whether
thei is any sufficient reason for the same. Attributing legal personality to company is a
legal fiction. Legal fictions do not exclude judicial discretior but merely limit it. The
question whether legal fictions still play at important role in a developed legal system is
debatable. Henry Mai recognised the necessity of fictions in undeveloped legal
systems, but adba that they are not necessary in modern legal systems. Legislative
amendment are to be preferred to legal fictions. According to Frederick Pollock, the ag of
fictions is not over. Gray also considers fictions as 'compatible with th
18
w
r
Ik
by law as sufficient truth of another fact whether it is in truth sufficient.! Presumptions of

law may either be conclusive, or rebuttable. A conclusive presumption is one which
constrains the court to infer the existence of one fact from the existence of another even
though this inference could be proved to be false. Law prohibits leading evidence to the
contrary. Examples of conclusive presumptions are: (i) a child born during the
continuance of marriage and within 280 days after its dissolution is presumed to be
legitimate; (ii) a child under seven years of age is presumed to be incapable of
committing a crime; (iii) a certificate issued by the Registrar of Companies that the
requirements of the Companies Act 1956 regarding registration have been fulfilled, is
conclusive evidence that such requirements have been fulfilled. Conclusive presumptions
are called presumptio juris et de jure.
A rebuttable presumption requires the court to draw such an inference even though there
is no sufficient evidence to support it, provided there is no sufficient evidence to establish
the contrary inference. For instance, a negotiable instrument is presumed to be given for
value, unless the contrary is proved. A person who has not been heard of for seven years
or more
by those who would naturally have heard of him if he had been alive, is presumed to be
dead. However, this presumption may be rebutted by sufficient evidence to prove that he
is alive. In our criminal justice system, an accused person is presumed to be innocent,
which again is rebutted if the prosecution proves that he has committed the offence.
Another deliberate departure from truth takes place by the use of fictio juris, ie, legal
fictions. Henry Maine defines a legal fiction as 'any assumption which conceals or tends
to conceal the fact that the rule of law had undergone any alteration, its letter remaining
unchanged but its operation being modified'. According to Salmond, legal fiction is a
device by which law deliberately departs from the truth of things, irrespective of whether
there is any sufficient reason for the same. Attributing legal personality to a company is a
legal fiction. Legal fictions do not exclude judicial discretion, but merely limit it. The
question whether legal fictions still play an important role in a developed legal system is
debatable. Henry Maine recognised the necessity of fictions in undeveloped legal
systems, but added that they are not necessary in modern legal systems. Legislative
amendments are to be preferred to legal fictions. According to Frederick Pollock, the age
of fictions is not over. Gray also considers fictions as 'compatible with the most refined
and most highly developed systems of law'.
e e >e :s >f >e le es >n
Lecture 2
Importance of Jurisprudence
ice is , a ary by led ent sed ion
Ictio tion ;one sing law here to a tion, y an [aine dded nents .e age h the
Meaning and Scope of Jurisprudence
If the different branches of law are studied without paying any attention to the
subject of jurisprudence, one will never have a comprehensive vision of law; rather
the vision of law will be narrow and partial. This is aptly illustrated by an old story
of four blind men, who went to see an elephant. Each one of them touched one part
of the elephant and formed his own impression about the elephant. Later, when they
were asked to describe the elephant; one said that it was like a pillar because he had
touched only the leg of the animal. The second man said that it was like a long brush
moving from one side to the other, because he had touched the tail of the elephant.
The third man said that the elephant was very thin and soft, for he had touched the
ears of the elephant. The last one described the elephant as a long tube, an
impression gathered by touching the trunk of the animal. What each of the persons
said was partially true. None of them saw the elephant, but touched only parts of the
animal.
Let us begin the discussion with an attempt to explain the meaning and scope of
jurisprudence. Thereafter, we will discuss its uses and values.
Jurisprudence, which is a combination of two Latin words juris and prudentia,
literally means knowledge of law. One of the oldest definitions of jurisprudence
given by Ulpian describes it as the 'knowledge of things human and divine, the
science of the just and unjust'. Sometimes, we may find the word used to describe
legal connections of any body of knowledge, as in medical jurisprudence, or
environmental jurisprudence, but more accurately jurisprudence is the analysis of
the formal structure of law and its concepts.
The word 'jurisprudence' began to acquire a technical significance in England in
the early nineteenth century. The contribution of Bentham and Austin in elevating
jurisprudence to a place of honour is worth
remembering. Austin was, incidentally, the first professor of j in the University of

London.
Metaphorically, it can be said that jurisprudence attemj symmetry out of the chaos
of conflicting legal systems. Accord it is the scientific synthesis of all the essential
principles of defined jurisprudence as 'the study and systematic arrange! general
principles of law.'
All communities, which reach a certain stage of developmi legal system to protect
certain interests. As the community d concept of law becomes more refined, and the
interests protect change. The first task of jurisprudence is to throw light on tl law. It is
also a functional study of the concepts which legal syste and of the social interests
which the law protects. This cann satisfactorily without a complementary study of the
purpose: the society exists. In this sense, jurisprudence offers a wide ran for study and
analysis.
However, there are jurists who think that jurisprudence has scope. Austin, whose
imperative theory of law will be disci considers that the matter of jurisprudence is
positive law, law : strictly so called, law laid down by political superior to politics The
formal aspect of jurisprudence finds expression in the de Holland also, who defines
jurisprudence as the formal science law. He explains positive law as the general rule of
external hur enforced by a sovereign political authority. Roscoe Pound's defi: considers
jurisprudence as the science of law. He uses the word juridical sense, as denoting the
body of principles recognised an< by public and regular tribunals in the administration of
justice. G a similar approach when he defines jurisprudence as 'the science i statement
and systematic arrangement of the rules followed by and the principles involved in those
rules.' Jenks, however, obje description of jurisprudence as a formal science, which he
say justified only if we use the word formal in a strained and artific: Fitzgerald carries
this idea further by defining jurisprudence as given to a certain type of investigation into
law, an investigat abstract, general and theoretical nature, which seeks to lay bare thi
principles of law and legal systems. The general theoretical i jurisprudence is prominent
in the definition of Jolowicz, who jurisprudence as a 'general theoretical discussion about
law and its p as opposed to the study of actual rules of law'. Schumpeter < jurisprudence
as the sum total of the technique of legal reasonin
20
the general principles to be applied to individual cases. In a similar vein, Karl Llewellyn
observes: 'Jurisprudence means to me any careful and sustained thinking about any phase
of things legal, if the thinking seeks to reach beyond the practical solution of an
unmediated problem in law. Jurisprudence thus includes any type at all of honest and
thoughtful generalisation in the field of the legal.'
The study of jurisprudence in a wider perspective includes not only the study of the
concepts of positive law, but also the influence of the social forces upon their
development. As Dias observes: 'Jurisprudence is concerned not only with law, and its
institutions as they are and with their social impact, but also with improving them and
changing them in line with social development.' Julius Stone describes jurisprudence as
the lawyers' extraversion. According to him, it is the lawyers' examination of the
precepts, ideals, and techniques of law in the light of present knowledge derived from
disciplines other than the law.
Thus, jurisprudence involves the study of the general theoretical questions about the
nature of law and legal systems, about the relationship of law to justice and morality, and
about the social nature of law. It develops concerns which properly reflect the social and
political concerns of the contemporary period. It attempts to supply an epistemology of
law, a theory as to the possibility of genuine knowledge within the legal sphere.
An important aspect of jurisprudence is that, it is transnational in nature. Its concerns
relate in various ways to most, if not all, legal systems. That is the reason why Paton
defines jurisprudence as a particular method of study not of the law of one country, but of
the general notion of law itself. It is a certain type of investigation into law, an
investigation of an abstract, general or theoretical nature, which seeks to lay bare the
essential principles of law and legal systems.
A law student studies a number of typical legal subjects like the law of contracts, or the
law of crimes. Each such subject consists of a set of rules md principles to be derived
from authoritative sources, and applied to factual situations in order to solve practical
problems. Jurisprudence, by contrast, does not constitute a set of rules, is not derived
from authoritative sources, and is apparently without practical application. Here, the
method of inquiry is different from that of other legal subjects. The concern of
jurisprudence is not to derive rules from authority and apply them to problems, but to
reflect on the nature of legal rules, on the meaning of concepts, and on the essential
features of legal systems. Several questions arise, such as, what makes a rule a legal rule,
and what distinguishes law from morality, etiquette, and other related phenomena?
21
YI
Jurisprudence tries to build up a general and more comprehensive

picture of each concept as a whole. It also examines such concepts
against the background of ordinary language in order to see the relation
between ordinary and legal usages, and the extent to which legal
problems may be generated by language itself. This is the logical
function of jurisprudence It is important to understand that jurisprudence
goes beyond this logical function. Legal theory is concerned with law as
it exists and functions in society, the way in which law is created and
enforced, the influence of social opinion and law on each other, the
effectiveness of law, and the part played by sanctions. It is also the task
of jurisprudence to link law with other disciplines, and to help to locate
it within a wider social context. The interdisciplinary approach also
helps analysis of legal concepts against the background of social
developments and changing economic and political attitudes. In a wide
sense, jurisprudence investigates the consistency between legal system,
and the way of life of the society in which it operates.
Austin divides jurisprudence into two categories, namely, analytical
and normative. Whereas analytical jurisprudence is concerned with the
logical analysis of the basic concepts that arise in law, such as duty,
responsibility, negligence etc and the concept of law itself, normative
jurisprudence is concerned with the rational criticism and evaluation of
legal practices. Such criticism is often moral in nature, but it can also be
economic, psychological, political, or social. It raises questions such as,
whether law should enforce morality; what rights should a legal system
recognise and protect; whether protective discrimination can be just;
whether capital punishment is a cruel and inhuman punishment etc.
Austin also makes a division of jurisprudence into general and particular. He explains
general jurisprudence as 'the science concerned with the exposition of the principles,
notions and distinctions which are common to all systems of law'. Particular
jurisprudence is the science of any system i of positive law actually obtaining in a
specifically determined political
society. The difference between these two is not in essence, but in scope.
Sometimes particular jurisprudence is contrasted with comparative
jurisprudence. While particular jurisprudence is the science of law
relating to a particular state; comparative jurisprudence compares the
rules of law relating to a particular matter in two or more systems of law.
Some jurists consider comparative jurisprudence as only a method of
study. Comparing it with historical method, Bryce observes: 'The
comparative method is concerned with space as the historical method is
with time.' The use of the term 'Comparative Law', instead of comparative
jurisprudence or comparative method, though debatable, has become
popular. The?
22
re ie :n be :e. :al in of art ith he :he cal ;en
is a
advantages of Comparative Law or comparative method have been discussed later in this
lecture.
Bentham distinguishes between expositorial jurisprudence, and censorial
jurisprudence. The former is concerned with the law as it is, while the latter with what
the law ought to be. Salmond's division of jurisprudence into analytical, historical, or
ethical also deserves our attention. His focus was mainly on analytical jurisprudence,
but he has not excluded the historical and ethical aspects altogether in his book on
jurisprudence,1 because he realised that it will be impossible to give a complete
analytical picture of law if these aspects are totally excluded. Salmond's division has
been criticised because it appears to create confusion between subject matter and
method. 'Analytical' connotes a method of approach, which applies not only to formal,
but also to historical and sociological study.
Jurisprudence occupies a prominent place in the academic discipline of law. Any
academic discipline worth its name, as Kahn-Freund rightly observes, 'must entail
instilling in the student a capacity for critical thought'. Legal education needs to teach
both law and its contextsocial, political and theoretical. Jurisprudence sets law in a
wider context, and motivates the students to learn to think rather than just what to
know. The thinking may grow into research, which can produce repercussions in the
legal, political and social thought.
Another value of jurisprudence lies in its elucidation of legal concepts. This renders
the complexities of law more manageable and more rational. Thus, it helps to improve
practice of law. Jurisprudence sharpens the lawyer's own logical technique. It helps to
combat the vice of formalism resulting in disregard of the social function of law.
Jurisprudence has a valuable role to play in law reforms. It provides clintv. intellectual
order, structure, and standards of rational and moral criticism and evaluation. It thus gives
insight into the relevant questions to ask when laws are being discussed or legal reforms
are being proposed. Passion may dominate discussion on the merits or demerits oF
particular laws. Jurisprudence can help to introduce an element of reason into such
discussions.
Students, or even teachers of law and lawyers, generally consider kr,ce as a
subject which has no practical value. Some teachers ask 2nts to suffer' jurisprudence
as a necessary evil. Some \y* -Ko Z students in law schools tell the students to
concentrate more on ub Ss Ich have practical relevance. It ts important to remember
that J is a subject wh.ch has practical relevance and tmportance.
1 Sdmondon Jurisprudence, twelfth edn, 1966.

Even while considering law as a practical discipline, we must not that its practicality is
based on the adequacy of theory upon which it For instance, although an airplane is a
practical machine; it works o its design is based upon sound aerodynamic theory.
Questions aboi that involve either normative issues or issues of conceptual analysis ai
raised only by legal philosophers. Lawyers and judges have to, an. frequently raise such
questions. Bare perusal of the various law re shows that a number of such questions are
raised before courts. For insi what is the meaning of the words 'procedure established by
law' in a of the Constitution? From a value-neutral meaning attributed to words in the
early decades after the enactment of the Constitutior Supreme Court has moved to a
meaning which incorporates fairnes: reasonableness in the words procedure' and 'law'.
Similarly, answe questions like what is the 'rarest of the rare cases' in which ca
punishment may be given, whether death penalty is cruel and inhi punishment, and
whether an attempt to commit suicide should be i an offence etc, cannot be found in the
provisions of the Constitutio statutes, or by a process of logical reasoning. Law students
must, there realise the great potential for interaction between legal philosophy legal
practice.
It may be unreasonable to claim that without studying jurisprud< one cannot
understand law. However, it may reasonably be claimed if much fuller appreciation of
law is conferred through the stud jurisprudence. We can speak or write a language
without learninj grammar. The study of grammar, no doubt, enables us to use the lang
more effectively and sharply as a medium of communication. Jurisprud< has been rightly
described as the grammar of law.
Comparative Law
The importance of Comparative Law is emphatically recognised in Holla observation:

'Jurisprudence is impossible unless it is preceded Comparative Law.'
We have already made a brief reference to Comparative Law earlier. > we will discuss
various aspects of Comparative Law in more detail, generally use the word law with a
prefix to denote a particular brand law. Examples are criminal law, constitutional law,
environmental law, lab law etc. However, when we use the term 'Comparative Law' we
do refer to any particular branch of law in the above sense. The to Comparative Law
denotes a jurisprudential method or technique of sti and research of the laws of different
countries comparatively and is, therefc
24
not a distinct branch or department of law. The process of comparing rules of law taken
from different systems does not result in the formulation of independent rules for the
regulation of human relationships or transactions. There are no comparative rules of law,
and there are also no transactions or relationships, which can be described as
comparative. According to HE Gutteridge, a well-known exponent of Comparative Law:
'Comparative Law is an unfortunate, but generally accepted label for the comparative
method of legal study and research which has come to be recognised as the best means of
promoting a community of thought and interests between the lawyers of different nations
and as an invaluable auxiliary to the development and reform of our own and other
systems of law.'
The Vocabulaire Jridique defines Comparative Law as a branch of legal science whose
object is to bring about systematically the establishment of close relations between the
legal institutions of different countries. In this definition, Gutteridge observes, '[W]e hear
the voice of the unificationist who regards comparative research as of little importance
except in so far as it operates to promore the movement in favour of international
uniformity of law.'
Interest in the laws of foreign countries and comparisons of laws is not something new.
Aristotle is said to have studied 153 Constitutions in order to find out the best form of
political community. In the middle ages, Canon Law and Roman Law were compared. In
the sixteenth century England, the respective merits of the Canon Law and Common
Law were debated. However, the development of Comparative Law as a science is a
more recent development. The use of the term 'Comparative Law' was established only in
the nineteenth century. Its importance was recognised, and its method and aims were
systematically studied during this period. Two factors which led to the popularity of
comparative studies of law are the increasing identification of law with geographically
defined nation states, and the setback to the idea of a universal law. The unprecedented
expansion in international relations accelerated this process. Comparative Law has
gained so much acceptance today that it is admitted to be a necessary part of any legal
culture and training.
In the beginning, discussions on Comparative Law were mainly focused on its aims and
nature, its place among the sciences, its methods, possible applications, and general
usefulness. The most frequently raised questions in these discussions were: whether
Comparative Law was an autonomous body of legal knowledge or simply a method (the
comparative method) applied to established legal science; whether it was a field, distinct
from comparative legal history, general legal theory, and the sociology of law. Further, in
what precise areas of law, would comparison be especially useful,
25
Lectures in Jurupmdence
and what laws could properly and profitably be compared? What were the dangers in
comparative legal studies? As Comparative Law got firml) established, these questions
lost much of their importance and relevanct Now, the challenges of Comparative Law
are to convince those who remain skeptical about the general utility of Comparative
Law, and to find mean to assist those who want to use Comparative Law for their own
purposes,] The usefulness of Comparative Law may conveniently be analysed undo
three heads, viz, (i) its relevance in historical and philosophical legal researctj (ii) its
importance in understanding and improving national law; and its importance in
promoting the understanding of foreign laws, an contribution to the creation of a context
favourable to the development o international relations. Now we will consider these
three heads in somi detail.
Relevance in Historical and Philosophical Legal Research
Comparative Law was first recognised as important in the nineteen* century because of
the works of scholars like Montesquieu, Henry Maine,* and Kohler. These works studied
different legal systems in order to;, demonstrate, in an historical perspective, the progress
of humanity! Comparative studies in legal history succeeded in throwing light on th|
origins of the idea of law, and in providing a better understanding of certain! institutions,
and rules of ancient law. Early Roman law, Germanic law, and Feudal law have been
clarified in many respects through the use oil Comparative Law. I The contribution of
Comparative Law to legal philosophy mainly lies in identifying the variations, which
exist in the very concept of law itself. Studies by Comparative Law scholars have
unravelled the existence of societies where the western notion of law was altogether
unknown, or where law was synonymous with force or a symbol of injustice, or was
intimately linked to religion. These studies have established beyond doubt the crucial,
role that Comparative Law can play in the development of legal philosophy.
The question which arises is as to how can jurisprudence and general legal theory
benefit from Comparative Law. When an observer places himself; outside his own legal
system, or in other words, when he adopts a comparative perspective, it enables him to
understand and analyse historical origins of the classifications known to any system, the
relative character of its concepts, and the political and social conditioning of its
institutions, When we try to understand the sources and methods of different legal
systems, we realise that some legal systems consider codification and enacted law as
progressive modes for giving expression to legal rules, and judicial decisions are
considered merely as a means of applying the law. Comparative
26
Law demonstrates that there are other legal systems, no less democratic, which reject
codification as the only method of giving expression to legal rules, and which assign a
more important and creative role to the judiciary.
Understanding and Improving National Law
Comparative Law helps us to gain a better understanding of our own national law, and in
improving it. The importance of Comparative Law in Constitution making is amply
illustrated by the Constitution of India. The framers of the Indian Constitution,
undertook a comparative study of various constitutional processes operating in different
countries of the world. This exercise helped them to fashion a constitutional system
suited to the political, social, and economic exigencies of India. The Constitution of
India, which has finally emerged after such extensive comparative studies, affords
immense opportunities for exhaustive studies and research to a student of Comparative
Law. The influence of the Constitution of USA on the federal provisions of the Indian
Constitution, Fundamental Rights, and the amending process, is obvious. The
parliamentary system of government is by and large modelled on British constitutional
theories and practices. The powers, privileges, and immunities of the Indian Parliament,
and state legislatures have not been defined in the Constitution, but stated to be similar to
those enjoyed by the House of Commons. The system of prerogative writs, another
significant institution borrowed from England, plays a crucial role in protecting the legal
rights of individuals and ensuring judicial control over administrative action. The
influence of the Australian Constitution could be seen in the provisions relating to centre-
state financial relations, and freedom of trade and commerce. The Directive Principles of
State Policy contained in Pt IV of the Constitution have been inspired by the Constitution
of Ireland. The elaborate emergency provisions in our Constitution owe much to the
German Constitution. Apart from adopting suitable provisions from several Constitutions,
the Indian Constitution also contains many innovative provisions, which have influenced
Constitution-making in developing countries, notably South Africa.
The practical utility of Comparative Law to the law-maker can hardly be exaggerated.
When a Bill is under the consideration of the legislature, comparable provisions of
similar legislation existing in other countries will be of great use. After a careful study,
provisions found suitable to the prevailing conditions of the state could be accepted, and
others rejected. For instance, while enacting a law on freedom of information, Indian
parliamentarians considered the provisions in similar legislations already existing in
other countries. Parliamentary committees, to which Bills are
27
generally referred for scrutiny, often undertake such comparative studies it M order to
decide the best model for the country. an
Judges and lawyers also derive great benefit from Comparative Law. As en people
directly concerned with the effective application of law, they find gl< comparative studies
to be of great practical utility. The persuasive influence cr of the doctrines developed by
American and English judges on Indiai co judiciary has been really remarkable. We find
this influence greater in the ef field of constitutional and administrative law than in other
branches oi gt law. of The best illustration of the value of Comparative Law for a
practisint ja, lawyer could be seen in an American case relating to the working hours o
women. In this case,2 a lawyer named Brandeis, who later became a judge of the
Supreme Court of USA, presented his brief containing relevant statistical data collected
from different countries. He was thus able to convince the judges hearing the case of the
need to accept the norms adopted ^ by several civilised nations of the world. The
Supreme Court, whilt st: accepting the contentions of Brandeis, declared that the views
adopted bj w' several civilised countries cannot be considered as capricious. The method
pi of presenting a brief containing socio-economic and comparative data camt ju to be
known as 'Brandeis Brief. Comparative Law, thus, provides excellent at opportunities for
research-oriented lawyers in their professional career. His
The immense utility of Comparative Law for legal academics is much xh more
significant. Comparative studies and research on various critical p] problems enrich legal
literature, and influence law-makers and judges. Today ;n we find a greater movement of
law students and researchers to foreign j. countries in pursuit of advanced studies and
research. In today's world of increasing global communications and trade, no legal
system can afford to^| remain isolated. Not surprisingly, therefore, the importance of
Comparative Law is being increasingly recognised now. ^"
The utility of Comparative Law for foreign diplomats posted in different j countries
deserves special mention. The indepth knowledge of the law of ^ the country to which the
diplomat is posted is essential for him when^^ several agreements concerning varied
subjects are prepared and signed byH c' both countries. Without adequate knowledge of
Comparative Law, no suciiM' agreement should be drafted, since it may lead to future
conflicts inHC( interpreting the provisions of the agreement. r'
r<
Development of International Relations B
Is t] n
r
2 Mutter v State of Oregon 208 US 410 (1907).
28
More than mere peaceful co-existence, new forms of co-operation develop among the
nations of the world, especially in relation to communications, environment, technology
and trade. This process is accelerated by globalisation. In all these spheres of
international co-operation, law plays a crucial role. One has to gain knowledge of the
laws in which different countries give expression to their sense of justice and regulate, in
the light of their respective political views and the variety of state structures. The Statute
of the International Court of Justice recognises 'general principles of law recognised by
civilised nations' as one of the sources of international law. The interpretation of this
provision can be based only on a,n understanding of Comparative Law.
Another potential field, where Comparative Law can contribute a great deal is private
international law. This branch of law, also known as 'Conflict of Laws', consists of rules
which determine whether the courts of a particular state are competent to hear a dispute
with a foreign element, and if so, which law must be applied to adjudication of the
dispute. While studying private international law, one realises that conflicts of laws and
conflicts of jurisdiction are most often resolved in a country without paying any attention
to the rules applying in other countries. The consequence of this is uncertainty about the
result of litigation, and conflicting solutions to the same problem from one country to the
other. Comparative Law can play an important role in introducing a degree of coherence
in private international law. It can, by drawing the attention of the national courts to the
way in which the problem put to them is resolved by legislations or courts of other
countries, encourage the acceptance of uniform rules.
Unification of Law
The unification of the law touching international legal relations are, as Rene David and
Briefly rightly observe, undoubtedly a major contemporary challenge. According to
Gutteridge: 'Unification can only be achieved by lengthy and patient efforts which will
ultimately convince those in all countries who are in a position to sponsor and carry
through changes in the law that it is a matter of urgent necessity to take steps in order to
remove sources of inconvenience and friction in the international sphere.' By unification,
we do not mean replacement of national law with a uniform supra-national law. It only
implies a certain amount of harmonisation through a variety of techniques, such as
international conventions and model contracts, which will result in improvement of
international relations. Comparative Law, by revealing the points of real agreement and
29
Efforts to establish' a wunu 5 ^~*tf&^V^?J^
" w - > t rtf Nations after World War 1. Many |*ujc
hoped that the Cttaut ^ ... . :, ... ,.,,V ' , :-u
for all nations and of all times', would become a reality. However, failure of the
League of Nations shattered all such hopes. Later, establishment of the United
Nations and the acceptance of the Univ< Declarations of Human Rights revived
hopes about an emerging w legal order. A number of international conventions and
treaties on hur rights, environment, trade etc came into existence under the auspice
the United Nations, and provided a framework for uniform laws througl the world.
Today, international trade \s almost totally dominated by GtWOTil tV.t^ttVetu on
Tariffs and Trade (GATT) 1994, and the rul<
the World Trade Organisation (WTO). It is mandatory lor all Sign countries to
amend their municipal laws so as to conform to the prov of GATT. As a
consequence, we may say that today almost the entire' is governed by a common
intellectual property rights law. While the ci trends indicate a shift towards greater
unification, those who oppose a move argue that national laws are the product of
the peculiar < economic environment of a country, and it would be unwise to intr a
uniform set of rules for countries with varying cultures.
Comparative Law as an Autonomous Branch of Legal Knowi
Before concluding this discussion, it is necessary to point out difficulties involved in

the comparison of different laws. The first pi is that of language and vocabulary. A
legal system in some other c may have a tradition, structure, and methods entirely
different frc own, and may be operating in a totally different social and economic c
Law courses and institutions devoted to the study and resea Comparative Law
mainly aim to develop Comparative Law autonomous branch of legal knowledge,
and to train a category of who can properly be termed 'comparatists'. Their task is
to prep ground for others who want to adopt a comparative method in their fields.
In other words, comparatists, by way of general studies of social and legal
structures, create the conditions necessary for dialogues.
Major Global Legal Systems
Undoubtedly, there is a great diversity of laws in the modern wc anyone who

wants to embark on a comparative study, this divers
30
appear to be an insurmountable problem. Comparatists have attempted to identify a

limited number of types or categories within which this diversity can be organised. This
categorisation or classification of laws into 'families' is done on the basis of the constant
and more fundamental elements, rather than the less stable rules found in the law. Such
classifications simplify presentation, and facilitate an understanding of the world's
contemporary laws. However, the problem is that different writers base their
classification on different criteria.
Two contemporary exponents of Comparative Law, Rene David and John EC
Brierley,3 recognise three legal families, which occupy an uncontested place of
prominence. They are Romano-Germanic family, Common Law family, and family of
Socialist Law. It is to be remembered that there are other systems such as the Hindu Law,
Muslim Law or Jewish Law situated outside these three traditions or sharing only part of
their conception of things, which prevail in a large number of contemporary societies.
Now let us examine the main features of the three prominent legal families.
Romano-Germanic Family
This family, which is also known as the civil law system, includes those countries in
which legal science has developed on the basis of Roman his
civile.
The rules of law are conceived as rules of conduct intimately linked to ideas of justice
and morality. Another feature of this family is that the law has evolved as an essentially
private law for regulating the private relationships between individual citizens. Other
branches of law were developed later according to the principles of civil law. Countries
belonging to this family attach special importance to enacted legislation in the form of
codes.
This family of laws, which originated in Europe, spread to other territories as a result
of colonisation. We also find voluntary reception of the civil law system in countries,
which were not colonised, mainly as a result of their desire for modernisation. In some of
these countries the reception has been partial, leaving some legal relations subject to the
principles of the traditional, local law.
Common Law Family
This family includes England, and countries whose laws are modelled on English law.
The Common Law was formed primarily by judges in the
3 Major Legal Systems of the World Today, 1985.
31
process of resolving disputes. The rules of Common Law appear in t form of rules,
which provide the solution to a trial, rather than genei rules of conduct for the future. The
origins of the Common Law are link to royal power. Disputes between private
individuals did not fall with the purview of Common Law courts, except when they
involved the inten of the crown or kingdom. It, therefore, seems to be a public law. T
divisions of Common Law, its concepts, vocabulary and methods are entire different
from those of the civil law.
Common Law also spread to vast territories either through colonisatio or reception. In
India, Common Law was introduced during the Briti rule. However, in some areas of
law, notably the personal laws of Hind and Muslims, the traditional law was allowed to
continue. The legal syster of USA and Canada, though belong to Common Law, enjoy a
large autonomous place within the family mainly because of the existence of different
civilisation.
Close contacts between countries which follow the civil law system, at those of
Common Law naturally resulted in each system influencing tl other. The establishment of
the European Union, of which the Unit< Kingdom is a member, is the most significant
development in recent yeai The European Court, which mostly consists of judges of the
civil la tradition, applies the doctrines, principles and methods of that traditic in
adjudication. The impact of this on English law is not insignificant.
Family of Socialist Laws
The legal system of the erstwhile Union of Soviet Socialist Republics (USSI and other
socialist countries are included in this family. The distinguishir feature of this family is its
revolutionary nature and proclaimed ambitic to create the conditions of a new social
order in which the very concept < state and law will disappear. Law as such is not
important, but subordina to the task of creating a new economic structure. Since all
means ( production are under state ownership, private law relationships betwee citizens
are very limited. In the socialist legal system, private law loses i pre-eminence, and
practically all law becomes public law. With the fall < USSR, and the return of many
other socialist states to a liberal democrat; order, there now remain only a few members
in the family of socialist law
32
Lecture 3
Sources of Law 1: Legislation
Introduction
One question that frequently comes to our mind is as to what is the source of law. Most
people may think of Acts passed by the legislature as the source of law. However, if we
think further on this question, it must necessarily occur to us that there are many other
sources of law as well. The very expression 'source of law' is not free from ambiguity.
Some jurists even make a distinction between 'law', and 'sources of law'. John Chipman
Gray considers law as the rules authoritatively laid down by the courts in their decisions.
According to him, sources of law are certain legal and nonlegal materials upon which
judges customarily fall back in fashioning the rules which structure the law. Such sources
include Acts of legislative organs, judicial precedents, customs, opinions of experts, and
principles of morality. The approach of Gray and those who support him consider only
the rules laid down by the courts as law, and everything else as the sources of law. Other
writers, following a different approach, equate sources of law with the official
authoritative texts from which formulated legal rules usually derive their force. These
include the Constitution, statutes, treaties, executive orders, judicial opinions etc. Yet
another sense in which the expression 'sources of law' is used is to denote certain bodies
of law which have served as traditional reservoir of legal rules and principles, such as the
Common Law, equity, and the Canon Law.
Let us, for the moment, leave aside the controversy over the meaning of the expression
'sources of law', and try to find out what are the different sources of law. A clear
understanding of the sources of law is very important for a proper understanding of the
nature of law. A study of the sources of law is also important because it helps us to
answer questions about the validity of law.
Sources of law are often divided into formal and material sources. Salmond
defines a formal source of law as that from which a rule of law derives its force and
validity. In other words, it is the will of the state as manifested in statutes or decisions of
courts. A material source of law is that from which is derived the matter, not the validity
of law. A familiar example of the material source is custom. The rule applied by a judge
in deciding a case may be drawn from a custom, but what gives it legal force is not the
custom, but the solemn determination of a court.
It is common knowledge that in the modern state, the law is normally created by the
formal act of legislation, or by the decision of a court. Law may also be created by the act
of a subordinate person, or a group of persons acting within the limits of delegated
authority. These are the formal sources of law. Material sources include anything that
may be drawn into the process of law making. They range from a custom of the
community to a principle of ancient Roman Law, Islamic Law, or Hindu Law, from
juristic writings to decisions of foreign courts. While all these may influence the process
of law-making, it is important to remember that they have to be filtered through a formal
source in order to attain the quality of law. When a question arises as to whether a
particular proposition is a valid proposition of law, we need a criterion of validity to
answer that question. Every legal system lays down the criteria of validity, which a
proposition has to satisfy before it is considered as a valid proposition of law.
Another way of classifying sources of law is into legal, and historical sources. Legal
sources are those sources which are recognised as such by the law itself. Historical
sources are the sources lacking formal recognition by the law. Legal sources of law are
authoritative because courts readily accept them as such. Historical sources, though not
authoritative, are important because they influence the course of legal development.
Legal sources are said to be the only gates through which new principles can find
entrance into law. When we say this, we are stressing the authoritative nature of the legal
sources. However, this does not deny the importance of historical sources. Infact, all rules
of law have historical sources.
It is also important to remember that in every legal system there are certain ultimate
principles from which all rules are derived. This idea may be explained better with an
illustration. The rule that a person must not allow waste water to flow from his kitchen or
toilet to a public road may have its source in the byelaws of a municipal council. The rule
that these byelaws have the force of law has its source in a legislative enactment namely,
the Panchayati Raj Act. We can also trace the source of authority of this Act to the
Constitution of India. When a further question is asked as to what is the source of the rule
that the Constitution has the foje of law, we may have to say that it is only historical, not
legal. Thus, we may have to conclude
34
Sources of Law I: Legislation
that the ultimate source is always historical, and not legal. The validity of the
Constitution is assumed or accepted as self-existent.
In jurisprudence, we are mainly concerned with the legal sources of law from which
law may be found to proceed. These sources are, inter alia, written Constitution,
legislation, judicial precedent, and custom. Some people include writings of experts also
as a legal source, but it is debatable whether such writings constitute a legal source, or
remain only as a historical source. It is common knowledge that today law proceeds
mainly from two legal sources, namely legislation, and precedent. Legislation is the
making of a law by the formal and express declaration of a recognised authority, very
often the legislature of the state. It is accepted as the most powerful instrument of legal
reform. Precedent denotes the making of law by a declaration and application thereof by
the court in a decision in the course of administration of justice. To these two major
sources of law we may also add Customary and Conventional Laws. Customary Law is
constituted by those customs, which fulfill the requirements laid down by laws as the
condition of their recognition as obligatory rules of conduct. Conventional Law is
constituted by agreements having the force of special law inter partes, in derogation, of
or in addition to, the general law of the land. The legal sources of law may be categorised
as follows:
(i) enacted law having its source in legislation;

(ii) case law having its source in precedent;
(iii)customary law having its source in custom; and
(iv)conventional law having its source in agreements.
We will now discuss in detail the various aspects of legislation as a source of law,
postponing the discussion of other legal sources to subsequent lectures.
Legislation: Nature and Meaning
Legislation means law making. It also refers to the laws made by the legislature. In a
wider sense, it includes all the sources of law, any act done with the effect of adding to,
or altering the law. When a judge establishes a new principle in a judicial decision, it is
possible to say that he has exercised legislative power, and it is also legislation in the
wider sense of the term.
Legislation is generally used in a more limited sense.it denotes the laying down of
legal rules by a sovereign or subordinate legislature. An important distinction between
law-making by a legislature and law making by a court must be clearly understood.
When the legislature makes a law, it does not have any actual disputes before it, and it
lays down general
35
rules for the future, without reference to any actual dispute. Courts, other hand, are
engaged in the settlement of disputes, and any law- that they may do is only with
reference to actual disputes before the only insofar as is necessary for their solution.
Thus, may say that law-making is incidental to the solving of legal disputes; while law-
is the main function of the legislature.
The legislature of a state performs many functions other than law-i In a wider sense,
all its functions are included within the term 'legi However, in a jurisprudential sense,
legislation includes only an ex of the will of the legislature directed to the making of the
rules Thus, legislation may be defined as the enunciation or promulg; laws by the
legislature of the state. It is the formal declaration of i rules by the legislative organ of
the body politic.
Legislation is most accurately termed enacted law, all other forn distinguished as un-
enacted. In Roman Law there was a division 1 Customary Law (jus non scriptum), and
other law (jus scriptum). Tl familiar to an English lawyer are Common Law, and
statutory lav like Blackstone prefer to use the expressions written and unwrittei indicate
the distinction. In modern democracies, the law-making ] vested in a body of elected
representatives of the people. If the federal, there will be a law-making body at the
Centre, and each i also have its own law-making body.
The significant question that arises in relation to legislation is re the legal limits of the
power to enact law. This is further complic the presence of entrenched Fundamental
Rights in the Constitutior limit the law-making power of the legislature. It is obvious that
< legal systems have different approaches to the problem of legislativi Historically,
England has been following the principle of parliament sovereignty, which practically
makes the legislature omnipotent in the feeld of legislation.
However, recent developments have placed several restraints law-making power of
the British Parliament casting a shadow of a out on its omnipotence, and diluting the
concept of parliamentary sovi The first step in restricting parliamentary sovereignty was
take Britain became a member of the European Community in the yes Section 2 of the
European Community Act 1972, passed by Parliament in 1972, stated that parliamentary
statutes, both past anc shall take effect subject to community law. We find a change in
the tra approach of the British courts to the question of parliamentary sov in R v
Secretary of State for Transport, ex p Factortame.1 It was affirn
1 [1991] 1 AC 603.
36
the doctrine of parliamentary sovereignty had been superseded by a new

hierarchy of legal rules, and that the community treaty obligations had indeed
made it possible for the Parliament to bind its successors.
The enactment of the Human Rights Act by British Parliament in the year
1998 is another significant step. This Act incorporated the European
Convention on Human Rights 1950 ('European Convention') into domestic law.
The Act provides that if any British legislation is found to be incompatible with
the provisions of the European Convention, a court can issue a declaration of
incompatibility. This is fairly similar to judicial review of legislation being
practised by the courts in India or USA. However, technically the doctrine of
parliamentary sovereignty is protected by providing that even after a court has
made a declaration of incompatibility, the statute continues to be enforceable. It
is generally agreed that this protection is only technical, and the declaration
constitutes a serious moral limitation on parliamentary sovereignty. The effect
of the declaration of incompatibility is illustrated by a recent decision of the
Court of Appeal in R v Mental Health Review Tribunal North and East
London Region? In this case, the Court of Appeal declared s 73 of the Mental
Health Act 1983 incompatible with art 5 of the European Convention. The
relevant provision was promptly amended in order to make it compatible with
the European Convention.
In India, the Fundamental Rights guaranteed in part 3 of the Constitution,
and the distribution of legislative powers between Union Parliament and state
legislatures in Sch VII of the Constitution limit the law-making powers of the
Parliament and state legislatures. Any law enacted by the legislature does not
automatically attain the quality of law; it has to satisfy a further criterion of
validity, namely the test of constitutionality. The test of constitutionality is
applied by the judiciary. This gives the judiciary the power to decide whether a
law enacted by the legislature is
ne valid. Legislation thus loses its dominating position as a source of law to
btsome extent. The power of the judiciary to sit in judgment over laws enacted
ty.by the legislature raises not only questions concerning the relative importance
enof legislation and precedent, but also very important jurisprudential questions
73.concerning the inter-relationship between the legislature and the judiciary, ish
ire, Different Forms of Legislation

ntvLegislation may be broadly classified as supreme, and subordinate. Supreme
hatlegislation proceeds from the supreme or sovereign power in the state and
2 [2002] qb 1.
37
J
is, therefore, incapable of being repealed, annulled, or controlled by any other legislative
authority. Subordinate legislation proceeds from any other authority, and is dependent for
its validity on some superior or supreme authority. In a modern state, the tasks of a
legislative body are so manifold and complex that they cannot be performed effectively
by that body alone. Matters of detail, matters requiring specialised knowledge or
expertise may put an exorbitant burden and strain on the shoulders of a legislative body.
It has, therefore, become a common practice to delegate a part of the lawmaking power to
the government or autonomous bodies. It is important to remember that the authority of a
subordinate body to legislate is derived from the sovereign legislature. Subordinate
legislation can be repealed by and must give way to sovereign legislation. Subordinate
legislation is subject to parliamentary control.
Five different forms of subordinate legislation can be identified. These are:
i
Colonial Legislation
This denotes the limited law-making power enjoyed by the colonies, subject to the
control of the imperial legislature. The imperial legislature may repeal, alter, and
supersede any colonial enactment. This is the first and the most important species of
subordinate legislation, though its importance has diminished along with the decline of
colonialism. An important principle of delegation is delegatus non potest delegare, ie, a
delegatee cannot further delegate. The question whether a colonial legislature can
delegate its legislative powers was raised in Re Powell Apolb Candle Co} It was held that
a colonial legislature is not a mere delegate of the imperial Parliament, and hence can
delegate its legislative powers to other bodies, which are dependent upon it.
Executive Legislation
When legislative powers are delegated to the executive, it is called executive legislation.
Though the essential function of the executive is to implement the laws and carry on the
administration, it is always entrusted with some subordinate legislative powers also.
Today, practically every law enacted by the legislature contains delegation clauses
conferring law-making powers on the executive to supplement the statutory provisions.
Common Law also recognises the prerogatives of the Crown to make laws for the
territories, acquired by conquest or cession, which do not possess their own legislatures.
3 [1885] AC 282.
38
Judicial Legislation
The power of the superior courts to make rules for the regulation of their own procedure
is considered as a delegated legislative power. This is judicial legislation in the true
sense of the term. Law-making by courts by way of precedents is not considered as an
instance of delegated legislation.
Municipal Legislation
Municipal authorities, which are units of local self-government, are given limited and
subordinate law-making powers by the enactments establishing them. The byelaws or
regulations made by municipal authorities by virtue of the delegated powers are
applicable only within the territorial limits of such authorities.
Autonomous Legislation
All the above kinds of subordinate legislation proceed either from the state, or from one
or other of its many subordinate departments. However, legislation is not necessarily
limited to the state. In exceptional cases, the state delegates legislative power to certain
groups of private individuals. In such cases, the limited legislative power given to such
groups are confined to matters which concern them. A registered company may, for
example, alter its articles of association, thereby changing its constitution and
management. This kind of delegated legislation is categorised as autonomous.
Autonomous legislation resembles conventional law in some respects. Yet an important
difference between the two must not be forgotten. Conventional law is always a product
of agreement. Autonomous law, on the other hand, is the product of a true form of
legislation, and is imposed by superior authority. It does not depend on agreement of
parties for its validity. For instance, when the articles of association of a company are
altered by a majority of shareholders, it would also be binding on the minority who did
not agree to the alteration.
Delegated Legislation and Autonomic Legislation
Some jurists make a distinction between delegated and autonomic legislation. They
consider law-making powers exercised by virtue of delegation by the supreme law-
making authority as delegated legislation. Autonomic legislation, on the other hand,
originates from the power of persons or organisations other than the government to make
laws or adopt rules essentially similar in character to laws. Such power was exercised in
39
early societies by the heads of families, and later by the Church and religious groups. The
state's authority and power was rather weak d that period. Gradually, the public power of
the state began to suppl; restrict the private power of the head of the family for the purp
protecting his wife and children from arbitrary and autocratic exen power by him.
However, the power of religious groups to regulate own affairs is to a large extent
retained even in a modern secular stati powers enjoyed by such groups cannot be said to
owe their existenc mere delegation by the state.
The powers of (i) corporations and other associations to enact artl associations and
byelaws; (ii) trade unions to regulate the rights and of their members; and (iii)
professional associations of lawyers and d to make rules of discipline and professional
ethics, are also included category of autonomic legislation. The fact that such powers ex
permission of the state and within the limits of the constitutional s does not deprive them
of their autonomic character because a subsi amount of private power to regulate within
certain boundaries is st intact. The noted jurist Lon L Fuller, rightly calls such enclaves
of autoi legislation 'miniature legal systems'. Autonomic legislation is very similar to
autonomous legislation, which we have already explained ; of the categories of delegated
legislation. Jurists like Edgar Bodenh consider it as a distinct category of legislation, and
not as a categi delegated legislation.
Advantages of Legislation
A comparative analysis of legislation and precedent, which are the main sources of law,
reveals many advantages of legislation over prea These are as follows:
(i) The process of legal evolution necessarily involves three step (a) making new
laws; (b) repealing old laws; and (c) mod current laws. The advantage of
legislation is that it can make, i and modify laws with simplicity and efficacy.
Precedent may new laws and modify current laws; but in a rigid syst<
precedents, it cannot overrule a settled principle of law. disadvantage of
precedent is gradually disappearing as the m trend is to abandon.the strict
doctrine of precedent. The Suj Courts of most countries, including India and
USA, and the Council and the House of Lords in England, have the po\ overrule
their own previous decisions. Still, the power of the to overrule when compared
with the power of the legislati
40
(v)
repeal is at a disadvantage, because a court has to wait until an appropriate case comes
before it for consideration, whereas the legislature can, on its own initiative, repeal a law
any time it chooses to do so. Legislation, therefore, possesses greater abrogative power,
and becomes a more effective instrument of legal growth and law reform.
When the legislature makes the law and the judiciary interprets and applies it, there is
division of labour leading to increase in the efficiency of the work. This kind of division
secures time and opportunity for mature consideration of effects and defects by two
independent bodies. The functional differentiation is ideal for a healthy system of
government. The difference is blurred when the business of making the law, and that of
enforcing it is vested in the judiciary. Precedent is a form of law-making which compels
the judge to make the law, and to enforce it. The formulation of law by the judge in a
precedent is always conditioned by the facts of the case. There may not be sufficient time
for reflection on its merits and demerits in relation to the generality of cases with large
diversity of circumstances. Legislation can always comprehend the generality of a
problem in all its dimensions. Moreover, legislation also satisfies natural justice because
laws are known before they are enforced. A precedent operates retrospectively, because it
is applied to facts which occurred prior to the formulation of the law.
The ex post facto nature of precedent is a violation of moral justice. In the case of
legislation, citizens get an opportunity to know the law before they would be charged
with a violation of it. In the case of a precedent, a person is punished for violating a law
before that law is made known. This defect of precedent results in greater injustice when
one precedent is overruled by another, making all transactions on the basis of the earlier
precedent unlawful. A judge can declare law only in the course of deciding a case actually
before him. Precedents, therefore, depend on the accidental course of litigation. Any
systematic development of law cannot take place through such accidental course of
litigation. Legislation, in comparison, is a much better planned activity, which can
anticipate social problems, and provide for legal rules to solve those problems. It is
possible to present a systematic code of rules to meet future contingencies. The
legislature, in the process of law-making, can also draw inferences from the varied
experience of a cross section of the community.
41
t fill no a eap, settle a doubt or
1} Whenever it becomesnecessary to> ffl ^ only by J
advantage, of le^laxiotu (vii) Another advantage of legislation is its superiority in

form. It concise, clear, and easily accessible. A statute enacted by t legislature
follows a definite form, and the provisions are stai with brevity and clarity.
Judgments, on the other hand, may r to several pages, and the task of extracting the
ratio decidendi i difficult one even for persons well versed in law. Salmond ap
observes: 'Case law is gold in the minea few grains of the precic metal to the ton
of useless matterwhile statute law is coin of t realm ready for immediate use.'
Disadvantages of Legislation
When we compare legislation and precedent as sources of law, we find tr legislation

suffers from certain disadvantages too. The first among t disadvantages of legislation is
its rigid nature. Legislation applies irrespecti of circumstances, whereas precedent can
be distinguished or modifi according to the circumstances. Precedent is, therefore, more
elastic ai flexible.
Legislation is hypothetical in nature, because it proceeds on the basis assumed facts.
The application of legislation to complex fact situatio often becomes difficult. In the
case of precedents, the judge shapes the 1; with reference to real facts, and it is always
possible to shape the law to si the needs of individual cases. In this sense precedent is
more practical the legislation.
An advantage of legislation, which we have stated above, is its superior; in form
which may, in some cases, become a disadvantage. If the drafti of the law is defective,
its meaning becomes ambiguous resulting in difficu] in application. In case of
precedents, on the other hand, the princip! assume more importance than words. This
naturally gives the judges me freedom to interpret precedents.
Relation of Legislation to Other Sources
It is evident that the various sources of law are interlinked, and ofti interdependent. In
modern states, legislation assumes more importan than other sources. However, we
cannot overlook the fact that legislatio
42
as a source of law, is comparatively new in origin. Early law was conceived as jus, ie, the
principle of justice rather than as lex, ie, the will of the state. The state was not expected
to make the law, it was only expected to enforce it. It was believed that the rules to be
enforced by the state are those rules of justice and right, which have been divinely
revealed to men. They are found in the ancient customs, or in religious faiths and
practices. The earliest courts were believed to be not the work of mortal men, but the
work of Gods. It was only later that the power of the political rulers to change the law for
achieving political and legal development was recognised. The weakening influence of
custom and religion on law strengthened the role of legislation. The emergence of
independent and impartial courts to interpret and apply the written law and to adjudicate
disputes, made precedent one of the important sources of law. As the judicial function
goes beyond mere dispute settlement and extends to filling the gaps in law, which
Cardozo calls 'legislating interstitially', precedent becomes as important or perhaps more
important than legislation as a source of law. It is also important to note that the relative
importance of different sources of law is dependent on the stage of development and
features of each legal system.
Codification
Codification means the reduction of corpus juris, ie, the whole body of law, so far as
practicable, to the form of enacted law. This follows the recognition of legislation as the
only, or at least the most important, source of law, other sources being subsidiary or
supplementary. The movement towards codification became strong in Europe in the
nineteenth century. The French Civil Code, known as the Code of Napoleon, was enacted
in the year 1804. Soon codes were enacted in Austria (1811), Germany (1896), and
Switzerland (1907). The main motive behind codification was the desire to render the law
accessible, certain, definite, harmonious, logically arranged and simple. GW Paton 4
identifies two types of countries, which tend to adopt codes: (i) those with well-
developed systems where the possibility of further development is remote for the
moment; and (ii) those with undeveloped systems, which cannot grapple with new
economic problems.
Once the process of codification is completed, the presumption is that every case could
be decided by deduction from the provisions of the code. However, experience shows
that no code has ever been perfect. The flaws in drafting, such as ambiguity and conflict
with other provisions, have been
4 Textbook of Jurisprudence, fourth edn, 1972.
43
as a source of law, is comparatively new in origin. Early law was conceived as jus, ie, the
principle of justice rather than as lex, ie, the will of the state. The state was not expected
to make the law, it was only expected to enforce it. It was believed that the rules to be
enforced by the state are those rules of justice and right, which have been divinely
revealed to men. They are found in the ancient customs, or in religious faiths and
practices. The earliest courts were believed to be not the work of mortal men, but the
work of Gods. It was only later that the power of the political rulers to change the law for
achieving political and legal development was recognised. The weakening influence of
custom and religion on law strengthened the role of legislation. The emergence of
independent and impartial courts to interpret and apply the written law and to adjudicate
disputes, made precedent one of the important sources of law. As the judicial function
goes beyond mere dispute settlement and extends to filling the gaps in law, which
Cardozo calls 'legislating interstitially', precedent becomes as important or perhaps more
important than legislation as a source of law. It is also important to note that the relative
importance of different sources of law is dependent on the stage of development and
features of each legal system.
Codification
Codification means the reduction of corpus juris, ie, the whole body of law, so far as
practicable, to the form of enacted law. This follows the recognition of legislation as the
only, or at least the most important, source of law, other sources being subsidiary or
supplementary. The movement towards codification became strong in Europe in the
nineteenth century. The French Civil Code, known as the Code of Napoleon, was enacted
in the year 1804. Soon codes were enacted in Austria (1811), Germany (1896), and
Switzerland (1907). The main motive behind codification was the desire to render the law
accessible, certain, definite, harmonious, logically arranged and simple. GW Paton 4
identifies two types of countries, which tend to adopt codes: (i) those with well-
developed systems where the possibility of further development is remote for the
moment; and (ii) those with undeveloped systems, which cannot grapple with new
economic problems.
Once the process of codification is completed, the presumption is that every case could
be decided by deduction from the provisions of the code. However, experience shows
that no code has ever been perfect. The flaws in drafting, such as ambiguity and conflict
with other provisions, have been
4 Textbook of Jurisprudence, fourth edn, 1972.
43
found to be the major drawbacks of codes. These flaws make it impossible to decide
every case by deduction. Therefore, even under a code, interpretation becomes an
important task.
The development of law in England has been characterised by the virtual absence of
enacted law. The Common Law developed from case to case. The prevalent opinion was
also against codification. The first influential jurist to support codification was Jeremy
Bentham. The movement for codification gathered some momentum in England also, but
it did not share the enthusiasm of the continental countries, and still lags behind in
codification.
It will be a mistake to think that codification involves the total abolition of precedent
as a source of law. Prior to codification, unenacted law is the principal source, and
legislation is considered as a special instrument for occassional modification or
development of law. This relation is altered as codification progresses. Legislation
becomes the principal source, and case law is considered incidental and supplemental.
The process of interpretation of the law grows into a body of judicial commentary, which
gives meaning to the words and phrases used in enacted law. A full understanding of the
law is possible only when an understanding of the provisions of enacted law is
supplemented by knowledge of case law. Commentaries incorporating provisions of
statutes and decisions of courts are published in response to this need. Prominent
examples of such commentaries are the American Law Institute's Restatement of
American Law, Halsbury's Laws of England; and Halsbury's Laws of India. These
commentaries, though not authoritative and official, have been accepted as dependable
expositions of the law by the professional community.
Codification in India
Codes have been in existence in India since ancient times. The codes of Manu,
Yajnavalkya, Brihaspathi, Narada, and Parashar are the most well known among the
ancient Indian codes.
In the modern period, attempts to codify the law in India were initiated by the British
rulers with the appointment of the First Indian Law Commission under the provisions of
the Charter Act of 1833. This Law Commission with Lord Macaulay as its chairman,
made significant contributions through the drafting of a number of codes, including
Indian Penal Code, Code of Civil Procedure, and Limitation Act.
The Second Law Commission, which was appointed in 1853, did not favour the
codification of Hindu Law and Muslim Law. The Third Law Commission appointed in
the year 1861 was mainly concerned with the
44
Sources of Law 1: Legislation
ible law of succession and inheritance, generally applicable to all persons other
de, than Hindus and Muslims. The Commission's recommendations resulted
into the enactment of the Indian Succession Act 1865. The Act was to
ual apply generally for all testamentary and intestate succession, except those
ise. who were exempted. Hindus, Buddhists and Muslims were exempted from
rial the purview of the Act. The Third Law Commission's recommendations
for were responsible for the subsequent enactment of the Negotiable
lot Instruments Act in 1871, Specific Relief Act in 1871, and the Indian
in Contract Act and the Indian Evidence Act in 1872. The Commission had
also proposed the draft of the Transfer of Property Act, which was again
on considered and revised by the Fourth Law Commission appointed in the
he year 1879.
or After independence, the Government of India took a major initiative
as towards codification of Hindu law. Inspite of opposition from orthodox
sc sections of the Hindu society, a number of Acts, which are collectively
>n called the Hindu Code, were enacted. They include the Hindu Marriage
ig Act 1955, Hindu Succession Act 1956, Hindu Minority and Guardianship
ie Act 1956, and Hindu Adoptions and Maintenance Act 1956. These Acts
:d apply to any denominations of Hindus and also to Jains, Sikhs, and
igI Buddhists. The enactment of the Special Marriage Act in the year 1956 is
o I also considered to be a significant step. It is a secular law of a general
n nature under which any two Indians, irrespective of their religion, may
/; marry. It is only a permissive and optional law.
e The Constitution of India places emphasis on codification of personal
y I laws by inclusion of art 44 in the Directive Principles of States Policy,
which reads: 'The state shall endeavor to secure for the citizens a uniform
civil code throughout the territory of India.' However, this constitutional
goal still remains a pious wish even after 55 years of the enactment of
Constitution of India.
The Law Commission of India is entrusted with the task of making
proposals for reform, and codification of Indian law. There has been hectic
legislative activity in India after independence, both at the Central and state
level. With thousands of Central and state laws in force, legislation has
practically superseded the other sources of law.
45
Lecture 4
Sources of Law II: Precedent
Meaning of Precedent
Precedent means judgment or decision of a court of law cited as an authority for the legal
principle embodied in it. The doctrine of precedent, which is also known as the doctrine
of stare decisis, ie, stand by the decision, is based on the principle that like cases should
be decided alike. Once a case is decided by a judge by applying a principle, a case on
similar facts which may arise in future must also be decided by applying the same
principle. This not only saves the time and labour of judges, but also secures certainty,
predictability, and uniformity in the application of law.
The English legal system has always attached great importance to judicial precedent.
The vast body of Common Law is almost entirely the product of decided cases.
Continental system, on the other hand, considers precedent only as evidence of law, and
not a source of law. Precedents are instruments for the persuasion of judges. English law
considers precedents not merely as evidence of the law, but as source of law, and accepts
the authority of precedents. It is an assumption of English law that every decision shall be
accepted as precedent and followed not only by all subordinate courts, but also by courts
of co-ordinate jurisdictions. This approach has influenced all legal systems, including
India, which follow the Common Law tradition. It must be added that even in continental
legal systems such as France, Italy and Germany, the importance of the reported
decisions has been increasing, and the courts of these countries now tend to attach greater
weight to their own previous decisions. However, the respect shown to judicial
precedents depends on their excellence or merit.

The Doctrine of Stare Decisis
Historically, the doctrine of precedent began by asserting the doctri stare

decisis. This means 'to stand by precedent and not to distur settled point of
law'. In other words, judicial decisions have a bi: force, and enjoy status of
law per se. The doctrine of stare decisis post two conditions to be satisfied,
viz, (i) there must be a settled ju hierarchy, for otherwise it will not be
known whose decisions are bii on whom; (ii) there must also be reliable
reports of cases. If cases are authoritative as law, there should be precise
records of what they lay c
The simple reason behind the doctrine of stare decisis was that one
community accepts a precedent as authoritative law and rests its expecta on
it, overturning it would cause grave inconveniences to the commi and might
disappoint and disturb their legitimate expectations in va affairs. Therefore,
it is considered better in the interest of certainty consistency to stand by the
decision.
This view is further strengthened by the maxim communis error fact ie,
common mistakes make law. Judicial declaration of law by a comp> court is
always respected by the society as being authentic, authorit and valid, even if
the decision of the court is founded on faulty and erron premises. A
subsequent annulment of the decision will certainly dis and disappoint the
legitimate expectations of the people, by unsettling settled issues, resulting in
a chaotic condition in the society. So, considered wise, in the interest of
certainty, consistency and stabilit stand by the earlier decision. As Blackstone
observes, 'It is an establi: rule to abide by former precedents, where the same
point comes-agai litigation as well as to keep the scale of justice even and
steady and liable to waiver with every new judge's opinion.' Therefore, it is
consid proper to stand by the earlier decisions in the interest of stability of
legal system.
Julius Stone, has identified the rationale of the doctrine as 'resting
maximising fairness and efficiency in adjudication or as fulfilling expectati of
litigants or as a basis of confidence in the judiciary'. He says that essence of
stare decisis is that where there is no sufficient reason for depari from
principle laid down in a prior decision, judges should not dej from them. In
other words, there should be sufficient teasons for depart from prior
decisions.
Professor A Lakshminath,2 discusses the sociology of stare decisis, say
that while identifying stare decisis as a judicial attitude, a judge is requi
1 Precedent and Law: Dynamics of Common Law Growth, 1985.

2 Precedent in The Indian Legal System, second edn, 2005.
48
I
The Doctrine of Stare Decisis
Histor'icany, the doctrine of precedent began by asserting the doctrine of ......... (;>.
tu;c mpins 'to stand by precedent and not to disturb the |
settled point of law'. In other words, judicial decisions' nave a' tmdinr^g, force, and
enjoy status of law per se. The doctrine of stare decisis postulates two conditions to be
satisfied, viz, (i) there must be a settled judicial hierarchy, for otherwise it will not be
known whose decisions are binding on whom; (ii) there must also be reliable reports of
cases. If cases are to be authoritative as law, there should be precise records of what
they lay down.
The simple reason behind the doctrine of stare decisis was that once the community
accepts a precedent as authoritative law and rests its expectations on it, overturning it
would cause grave inconveniences to the community, and might disappoint and disturb
their legitimate expectations in various affairs. Therefore, it is considered better in the
interest of certainty and | consistency to stand by the decision.
This view is further strengthened by the maxim communis error facit jus, ie,
common mistakes make law. Judicial declaration of law by a competent court is
always respected by the society as being authentic, authoritative and valid, even if the
decision of the court is founded on faulty and erroneous premises. A subsequent
annulment of the decision will certainly disturb and disappoint the legitimate
expectations of the people, by unsettling the settled issues, resulting in a chaotic
condition in the society. So, it is considered wise, in the interest of certainty,
consistency and stability to stand by the earlier decision. As Blackstone observes, 'It is
an established rule to abide by former precedents, where the same point comes
againSn litigation as well as to keep the scale of justice even and steady and not liable
to waiver with every new judge's opinion.' Therefore, it is considered proper to stand
by the earlier decisions in the interest of stability of the legal system.
Julius Stone,1 has identified the rationale of the doctrine as 'resting on maximising
fairness and efficiency in adjudication or as fulfilling expectations of litigants or as a
basis of confidence in the judiciary'. He says that the essence of stare decisis is that
where there is no sufficient reason for departing from principle laid down in a prior
decision, judges should not depart from them. In other words, there should be
sufficient reasons for departing from prior decisions.
Professor A Lakshminath,2 discusses the sociology of stare decisis, saying that
while identifying stare decisis as a judicial attitude, a judge is required
1 Precedent and Law: Dynamics of Common Law Growth, 1985.

2 Precedent in The Indian Legal System, second edn, 2005.
48
to consult accumulated wisdom. Stare decisis is both a social and legal norm. It is an
unwritten social rule which contains clusters of rules and values on shared understanding
among groups. It also embodies a complexity of unwritten or half-written legal rules of
practice having distinct consequences. He holds that the social justification of stare
decisis is in its promise of certainty and stability. Besides, the doctrine fosters fairness in
adjudication, promotes efficiency, disciplines the court, excludes arbitrariness, and
legitimises judicial power. The doctrine helps to generate judicial accountability.
In Professor Hart's analysis, the stare decisis doctrine represents the secondary rule or
power conferring rule or a rule of recognition.
Sir William Holdsworth's general thesis was that the English doctrine of precedent 'hits
the golden mean between too much flexibility and too much rigidity; for it gives to the
legal system the rigidity which it must have if it is to possess a definite body of
principles, and the flexibility which it must have if it is to adapt itself to the needs of a
changing society'.
Classification of Precedents Original and
Declaratory Precedents
The judicial decisions are of two types, namely those which create a new law, and those
which apply known and settled principles of law to the particular facts of a case. Both
these types of decisions are treated as precedents. It is because the legal principles
embodied therein are authoritative guides to courts for the determination of future
controversies. Decisions which create a new law are called original precedents, while
those which apply known and settled principles of law to the particular facts of a case are
called declaratory precedents. A declaratory precedent is not a source of new law,
whereas an original precedent is.
There are several declaratory precedents, for the law on most of the points is already
settled, and judicial decisions are mere declarations of pre-existing rules. On the other
hand, original precedents, though fewer in number, are greater in importance, as they
alone develop the law.
This distinction between original and declaratory precedents is based on two
diametrically opposite theories of precedent. One theory supported by jurists like Austin
and Friedmann concede the law-making role of the judge. In their view, some precedents
may be original because they lay down original or new principles of law. Jurists like
Blackstone do not agree with this, and consider precedents as declaratory only, ie, they
merely reiterate recognised principles of law. The Common Law contains a rule for
49
__ Lectures in Jurisprudence ;
every situation, and the judge's function is only to discover and apply it top the case at
hand. This is known as the declaratory theory of precedent! Critics of the theory dismiss
this as a childish fiction. English judges liktt Mansfield, Wright, Atkin, and Denning also
did not subscribe to the declaratory theory. These judges believed that judges have to
develop lav* in tune with the changing needs of the society, and the progressive demands
of justice, whenever occasion demands so.
In countries like India, where judges have to interpret the Constitution and determine
the validity of legislative enactments and even constitutional amendments, it is only
natural that judges get more opportunities to perform a creative role. The declaratory
theory of precedent is inadequate to provide a jurisprudential basis to such a judicial
role.
Authoritative and Persuasive Precedents
Classification of precedents into authoritative and persuasive is a widely accepted

classification. An authoritative precedent is one which the judge is bound to follow
irrespective of whether he approves it. In other words, the judge has no choice. For
instance, a decision of the Supreme Court of India is binding on a judge of the Kerala
High Court. Similarly, a decision of the Kerala High Court is binding on lower courts in
Kerala. In a system of precedents, decisions of superior courts are always considered as
authoritative precedents.
Authoritative precedents are further classified into absolute and conditional. An
absolutely authoritative precedent is absolutely binding, and must be followed without
any question, however, unreasonable or erroneous it may appear to be. It has a legal
claim to implicit and unquestioned acceptance by the court. Conditionally authoritative
precedent is one which is normally binding on the judge, but may^be disregarded by him
in limited circumstances.
A persuasive precedent is one which the judge is under no obligation to follow. Here,
he has a choice in deciding whether to follow a precedent. If he is convinced of the merits
of a decision, he may follow it; otherwise he may refuse. A decision of the Delhi High
Court is only a persuasive precedent as far as the Madras High Court is concerned, and it
is under no obligation to follow it. Foreign judgments may also be considered as
persuasive. Persuasive precedents, though not binding, often exert a decisive influence on
judicial decisions. The distinction between a persuasive precedent and a conditionally
authoritative precedent lies in the fact that the former requires reason to support it, while
the latter requires a reason to reject it. Authoritative precedents are considered to be legal
sources of law, while persuasive precedents are only historical sources.
50
Ratio Decidendi and Obiter Dicta
Our discussion of precedent has so far carefully avoided the use of two important words,
namely, ratio decidendi, and obiter dicta. When we say that a judicial decision is binding
as a precedent, what we really mean is that a rule or principle formulated and applied in
that decision must be applied when similar facts arise in future. This rule or principle is
the ratio decidendi, which is at the centre of the doctrine of precedent. The expression
ratio decidendi has different meanings. The first meaning, which is the literal translation
of the expression, is 'the reason for deciding'. A more satisfactory way of explaining ratio
decidendi is as 'the rule of law proffered by the judge as the basis of his decision'. Some
people are in favour of shifting the emphasis and regard ratio decidendi as the rule of law,
which others regard as being of binding authority. This gives more importance to
subsequent interpretations of the principle than the pronouncement of the judge who
decides the case. Interpretation is treated as a continuous and creative process in which
the judge has the freedom and flexibility in interpreting a precedent, expanding, or
limiting its application.
Ratio decidendi may best be described as the underlying principle of a decision, which
forms its authoritative element. Explaining what is ratio decidendi is easier compared to
explaining how to find out ratio decidendi. Since different judges follow different styles
of writing judgments and there may be several judgments in the same case, the task of
extracting the ratio of a decision becomes very complicated indeed. One method
suggested by Goodhart involves the identification of material facts of a case. One has to
look at the decision on material facts in order to reach the ratio of the decision. The
difficulty with this method is that there is no ascertainable yardstick to find out the
material facts. What appears to be material fact to one person may appear to be
immaterial to another. Another method, which is known as 'Wambaugh's test', is based on
a negative test. First of all one has to formulate a proposition, which he considers as the
ratio. Then a word is added, which will have the effect of inversing the meaning of the
proposition. If it is possible to reach the same conclusion with the second proposition
also, the original proposition cannot be treated as the ratio. This method considers ratio as
the principle or principles without which the court could not have reached the decision
that it reached. The success of this method depends chiefly on the formulation of the first
proposition for which one has to rely on his own intelligence and intuition.
The position that finally emerges is that there is no foolproof method of finding out the
ratio decidendi of a case. It is always a matter of judicial creativity and discretion. It is
the judicial choice involved in the application
51
of precedent that makes the doctrine of precedent flexible, and responsmj to changes.
Pronouncements of law in the judgment, which are not part of the ratio decidendi, are
known as obiter dicta. In other words, it is a chance remark which has no binding force.
Although obiter dicta is not considerei authoritative and lacks status of law, it cannot be
dismissed as insignificant Very often it influences judicial thinking and may, in course
of time, becorat the ratio. The impact of obiter dicta depends on the reputation of the
judge, the position of the court in the hierarchy, and the circumstances in which it came
to be pronounced. Examples of obiter dicta are rules of Ian stated merely by way of
analogy or illustration, a suggested rule upon which the decision is not finally based, a
ruling based on hypothetical facts, a judicial declaration of a rule unaccompanied by its
application etc. The observations of the highest court, though obiter dicta, have high
persuasive effect on lower courts. Obiter dicta may help to rationalise the law, and also
serve to suggest solutions to problems not yet decided by the courts.
Theories of Precedent
When we mention case-law or precedent as judge-made law, the question arises whether
the judges have any power or authority to make or change the law. There are two
conflicting views on this question. The first is that the judges only declare the existing
law and never make the law; but the second asserts that the judges do make or create
new law. Let us examine these conflicting theories in some detail.
Declaratory Theory
This theory was propounded by Sir Mathew Hale as early as in 1713 whenj he said:
.. .the decisions of courts of justice... do not make a law properly so called, for
that only the King and Parliament can do; yet they have a great weight and
authority in expounding, declaring and publishing what the law of this Kingdom
is.3
However, it was Blackstone who formally enunciated this theory. According to him:
A judge is sworn to determine, not according to his own judgment, but according
to the known laws and customs of the land, not delegated to pronounce a new law,
but to maintain and explain the old one jus decree et nonjus dare.4
3 History of the Common Law, 1820, p 89.

4 Commentaries I, p 88.
52
sive
itio irk, red mt. >me the s in law pon ;ical etc. ligh
the
ange that c the

This means that the judges can only declare the law, and never make or give new law.
The staunchest supporters of this Blackstonian doctrine were the judges themselves. For
example, Lord Esher MR said:5
...there is in fact no such thing as judge-made law, for the judges do not make the
law, though they frequently have to apply existing law to circumstances as to
which it has not previously been authoritatively laid down such law is applicable.
This Blackstonian doctrine uncompromisingly asserts that the function of the judge is jus
decree et non jus dare, ie, to discover in the existing rules of law the particular principles
that govern the facts of individual cases. Judges are, therefore, only 'law-finders' rather
than law-makers.
Criticism of the Theory
This classical theory of Blackstone has been subjected to severe criticism by eminent
jurists. The great law-reformer Jeremy Bentham said that the statement that judges only
declare the law is 'a willful falsehood having for its object the stealing of legislative
power by and for hands which could not or durst not openly claim it'. His disciple John
Austin also has assailed it as a childish fiction employed by our judges that judiciary or
common law is not made by them, but is a miraculous something made by no body,
existing, I suppose, from eternity and merely declared from time to time by the judges'.
Several other eminent jurists like Munro Smith and Holmes also consider that this
orthodox theory cannot be taken seriously.
Judges as Lawmakers Theory
The second theory of precedent is that judges make law. Law made by a judge is as real
and effective as any statute. A number of jurists have supported this view. Prominent
among them is Prof Dicey who says:
As all lawyers are aware, a large part and, as many would add, the best part of the
law of England is judge-made law- that is to say, consists of rules to be collected
from the judgments of the courts. This portion of the law has not been created by
Acts of Parliament and is not recorded in the Statute Book. It is the work of the
courts, it is recorded in the reports, and it is, in short, the fruit of judicial
legislation.6
An American jurist, Prof Gray has, however, taken an extreme view contending that
judges alone are makers of law. He says, 'Whoever hath an absolute authority to interpret
any written or spoken law, it is he who is
5 Willis v Baddeley [1892] 2 QB 324.

6 Law and Public Opinion in England During The Nineteenth
Century, 1914, p 361.
53
truly the law-giver to all intents and purposes and not the person who first wrote or
spoke them', and he concludes, 'v4 fortiori whoever hath an absolute authority not only
to interpret the law but to say what the law is, is truly the lawgiver.'
Limitations of the Theory
Although this theory proclaims that the judges make law, it is to be admitted that they do
not enjoy an unrestricted power of laying down abstract principles of law. There are
certain well-defined limitations on the power of judicial legislation. For instance:
(i) The judge has no power to ignore or override the provisions of a statute. He is
duty bound to enforce the statutory provisions, leaving to the legislature to deal
with any unpleasant consequence not foreseen at the time of passing of the Act.
(ii) An authoritative precedent limits the law-making power of the judge.
(iii) The judicial legislation is restricted to the facts of the case placed before the
judge, which is the outcome of an accidental course of litigation.
(iv) Only the ratio decidendi, and not the obiter dicta, has a binding force and
authority of law.
It is, thus, clear that within certain limits judges have the power of profoundly
influencing the development of law. Even if they do not 'make' the law in the usual sense
of promulgating at will the rules of human conduct, it must be acknowledged that they
develop the law by contributing several original precedents.
Hierarchy of Courts
For the operation of the doctrine of precedent, a settled hierarchy of courts is imperative,
because the basic rule of precedent is that a court is bound by the decisions of all superior
courts. In England, the House of Lords occupies the highest position in the hierarchy. The
Court of Appeal (civil and criminal divisions) comes next. The high court, court of
sessions, magistrate courts are the other courts in the order of hierarchy. According to the
doctrine of precedent in England, the high court is bound by the decisions of the Court of
Appeal, and the Court of Appeal is bound by the decisions of the House of Lords. Courts
are bound only by decisions of higher courts, and not bound by those of lower or equal
rank. High court is not strictly bound by its own previous decisions, but it will normally
54
follow previous decisions, on the principle of judicial comity, in order to avoid conflicts
of authority, and to secure certainty and uniformity in the administration of justice. The
Court of Appeal, and possibly divisional courts, still consider themselves bound by their
own decisions. This rule is, however, subject to the following exceptions:
(i) If two earlier decisions are in conflict, the Court of Appeal may choose between
them.
(ii)If a decision although not overruled is inconsistent with a decision of the House of
Lords or with a decision of the Judicial Committee of the Privy Council, the Court
of Appeal is not bound by it.
(iii) If a decision was given per incuriam, ie, in ignorance of a statute, or other binding
authority, the Court of Appeal is not bound by it.
The question whether the House of Lords is bound by its own previous decision was
answered in the affirmative by Lord Halsbury in London Tramways v London County
Council.7 This was considered necessary in order to produce finality and certainty in the
law. This practice continued until 1966, when a change of practice was announced by a
Practice Statement. The House of Lords accepted 'the use of precedent as an
indispensable foundation upon which to decide what is the law and its application to
individual cases'. It was pointed out that precedent 'provides at least some degree of
certainty upon which individuals can rely in the conduct of their affairs, as well as a basis
for orderly development of legal rules'. However, the House of Lords recognized that 'too
rigid adherence to precedent may lead to injustice in a particular case and also unduly
restrict the proper development of the law.' It was, therefore, proposed to modify the
existing practice and 'while treating former decisions of this House as normally binding,
to depart from a previous decision when it appears right to do so'. It is significant to note
that the Practice Statement does not use the word 'overrule', but continuously uses the
expression 'depart from a previous decision'.
In India, as we know, the Supreme Court is the highest court of law in civil, criminal,
and constitutional matters. There are high courts at the state level, and civil and criminal
courts below the high court. Article 141 of the Constitution states that the law declared by
the Supreme Court of India shall be binding on all courts in India. The question whether
the Supreme Court is bound by its own decisions under art 141 was raised in Bengal
Immunity Co Ltd v State of Bihar. In that case it was held that
7 (1898) AC 375.
8 AIR-1955 SC661.
55
although the words, 'all courts in India appear to be wide enough to include
the Supreme Court also, they do not include the Supreme Court. Asa result,
the Supreme Court is not bound and is free to reconsider its previous
decisions in appropriate cases. This position was reiterated in Sajjan Sin$
v State of Rajasthan* wherein it was held that the Constitution does not
place any restrictions on the powers of the Supreme Court to review its
earlier decisions or even to depart from them. The court made it clear that
the doctrine of stare decisis should not be permitted to perpetuate
erroneous decisions to the detriment of the general welfare. The court
recognised the need for exercising restraint in overruling previous
decisions, stating that the power must be exercised only when
considerations of a substantial and compelling character make it necessary
to do so.
Summarising the position, the Supreme Court observed in a recenti
case:10 I
... stare decisis is not a dogmatic rule, allergic to logic and reasons;
1
it is a flexible principle of law operating in the province of precedents
I
providing room to collaborate with the demands of changing times
1
dictated by social needs, state policy and judicial conscience. I
Where there is a conflict between the two decisions of the Supreme Court, f
the decision of the larger Bench prevails over that of the smaller Bench This
principle is true in the case of high courts also.
Exceptions to the Doctrine of Stare Decisis
If there is an excessively rigid application of the doctrine of precedent, the'

courts may not be able to adapt the law to changing situations. On the other
hand, excessive relaxation of the doctrine will result in confusion and
uncertainty. It is, therefore, necessary to retain the doctrine of precedent,
and at the same time, to permit a relaxation of the doctrine in appropriate
cases. A rigid application of precedent is relaxed by empowering the
superior courts to overrule their decisions, and also by recognising certain
exceptions to the doctrine of stare decisis.
The well recognised exceptions to the doctrine of stare decisis are:
(i) if a decision conflicts with a previous decision of the same court;

(ii) if a decision has been impliedly overruled by a subsequent decision
of a higher court;
9 AIR 1965 SC 845.
10 State of Gujarat v Mirzapur Moti Kureshi Ksasab Jamat (2005) 8 SEE 534, p
589.
56
i
(iii) if a decision was reached per incuriam, ie, is a

decision which is given in ignorance of the
terms of a statute or a rule having the force of a
statute;
(iv) if a decision has become obsolete, ie, it is no
longer functional or has become out of date; and
(v) a decision is sub silentio, ie, a decision arrived
at without application of mind or precedent and
without any reason.
Judicial Techniques of Using a Precedent
An analysis of the judicial process reveals several judicial techniques of using precedents.
The most important among such techniques are: (i) refusal to follow a precedent; (ii)
distinguishing a precedent; (iii) reversing a precedent; and (iv) overruling a precedent.
Refusal to Follow a Precedent
A judge can refuse to follow a precedent only when it

is not binding. In the case of a persuasive precedent,
the judge has the freedom to decide whether to follow
the same. Even in cases where there is a refusal to
follow, the judge often considers the precedents
carefully, and after a process of reasoning comes to the
conclusion that it need not be followed.
Distinguishing a Precedent
Every decision is pronounced on a specific set of past facts. When similar
it, the situations arise in future, a judge has to decide whether the rule formulated
)n the in the previous decision should be applied in the present case. In other
>n and words, applying precedent is a process of matching the facts of the
precedent
edent, and the ruling thereon with the facts of the instant case. If they match, the
jpriate rule is applied. If not, it is distinguished. The decision whether the facts
iperior match is to be taken by that judge. Since the decision whether to apply the
prions precedent depends on it, the technique of distinguishing a case affords
great flexibility in the application of precedents.
court; xision
Reversing a Precedent
Reversal of a decision takes place on appeal. The effect of reversal is normally that the
first judgment ceases to have any effect at all. It amounts to a nullification of the decision
as well as the principle which formed the basis of the decision.
57
I
,11
Overruling a Precedent
Overruling involves disapproval of the principle laid down in a decision off the same or a
lower court. It never affects the decision in the earlier easel and the parties in the
overruled case continue to be bound by the decision} under the doctrine of res judicata.
Reversal takes place in an appeal from a! decision, whereas overruling takes place in
some other case of similar nature.^ Overruling may be express or implied. In express
overruling, it is clearly* stated that a particular decision is overruled. It is implied when a
later decision of a superior court is inconsistent with that of the inferior court. The effect
of overruling is retroactive, except that it does not unsettle matters, which are res judicata
as between the parties in the overruled decisions, and accounts which have been settled.
This is consistent with the theory that judges do not make law, but only declare what
always has been the. law. It considers an overruled decision as an erroneous declaration
of the law and hence, not law. However, this rule of retroacrivity may create practical
difficulties. It is with a view to avoid such practical difficulties that the doctrine of
prospective overruling has been enunciated.
Prospective Overruling
The doctrine of prospective overruling was laid down by Cardozo J in Great Northern
Railway v Sunburst Oil Refining Co.1' It means overruling of an established precedent
with effect limited to future cases, leaving events, which arose before the date of such
overruling to be governed by the old precedent itself. The justification for this doctrine
has been furtha clarified u\ Linfefetter v Walkeru V w>- -. '
the Supreme Court had held that in exercise of the power to amend the Constitution
under art 368, the Parliament was competent to enact amendments abridging the
Fundamental Rights in Pt III of the Constitution. Overruling these decisions, the court
held that art 368 did not empower the Parliament to abridge Fundamental Rights. If this
principle was applied retrospectively then some amendments to the Constitution which
were held valid in Shankari Prasad and Sajjan Singh, would have become invalid. The
court wanted to avoid the insurmountable practical problems of such retrospective
invalidation of constitutional amendments. It, therefore, borrowed the doctrine of
prospective overruling enunciated by the Supreme Court of USA to hold that all the
amendments which have already been made, will continue to remain valid. The limitation
on amending power laid down in Golak Nath is applicable only to future amendments.
The doctrine of prospective overruling which was applied to constitutional amendments
in Golak Nath was later extended to laws found unconstitutional, and also to the
interpretation of ordinary statutes. Explaining the scope of the doctrine, the Supreme
Court in Kailash Chand Sharma v State of Rajasthan16 observed:
...when the court finds or lays down the correct law in the process of which the
prevalent understanding of law undergoes a change, the Court, on considerations
of justice and fair deal, restricts the operation of the new found law to the future so
that its impact does not fall on the past transactions. The doctrine recognises the
discretion of the court to prescribe the limits of retroactivity of the law declared by
it. It is a great harmonising principle equipping the Court with the power to mould
the relief to meet the ends of justice.
It was explained in Managing Director v B Karunakar7 that the doctrine is applied in

order to prevent unsettlement of the settled position, to prevent administrative chaos, and
to meet the ends cf justice.
The doctrine of prospective overruling is a judicial assertion of the law making role of
the judge. This comes into direct conflict with the Blackstonian doctrine that judges
cannot make law. In the context of judicial activism and judicial legislation emerging as
realities, it is no more relevant to turn back to the controversy whether judges can make
law. It has to be accepted that overruling obviously changes the law, and thereby upsets
16 AIR 2002 SC 2879.

17 (1993) 4 SEE 727.
59
expectations based thereon. The decision as to whether such change should be

prospective or retrospective in effect assumes great significance. The guiding factors in
arriving at a proper decision on this question must be the considerations of stability,
protection of reliance on law, efficiency in administration of justice, equality, and the
ideal justice.
Law Reports
Earlier, we have seen that for a system of precedent to be operational, a settled hierarchy
of courts, and the availability of law reports are necessary. In all legal systems which
follow the doctrine of precedent, the judgments of superior courts are published in a
regular and systematic manner. It has been rightly observed that the history of stare
decisis is the history of law reporting. While it is true that an efficient system of reporting
judgments is highly essential for the survival of the doctrine of precedent, it is equally
true that reliance on precedents improves the quality of law reporting. The usual method
now being followed is to give a head-note, summarising the facts and decision in the
beginning, followed by the text of the judgment. In England, regular weekly report of
cases began with the All England Reports in the year 1936. There are also several series
of reports covering the earlier period, but their authority varies. In India, there are official
as well as unofficial publications reporting the decisions of the high courts and the
Supreme Court. The Supreme Court Reports and the Indian Law Reports are the official
law reports published under the authority of the Supreme Court and the high courts
respectively. Private publications reporting judicial decisions include the Supreme Court
Cases, All India Reporter, Law Reports of India, Judgments Today, Delhi Law Times,
Calcutta Law Times, Madras Law Journal, Kerala Law Times etc. There are also
publications reporting cases on particular branches of law, such as the Criminal Law
Journal, Income Tax Reports, Labour Law Journal, Consumer Protection Judgments,
Company Cases etc. Thus, we find that there is a highly competitive and reliable system
of law reporting in India which makes precedents easily accessible.
Advantages and Disadvantages of Precedents
In any modern legal system, legislation and precedent assume almost equal importance.
Some people consider precedent to be a better source of law than legislation, while others
do not consider precedent as law at all. The truth is that both legislation and precedent
play their own roles in the development of law. The most obvious advantage of precedent
is that it can
60
aJways respond to the practical needs of the society. This imparts flexibility to the rigid
rules in the statute. A judge deals with a concrete problem, whereas the legislatures lays
down a rule in an abstract and general form in anticipation of problems. The judge is able
to get a 'feel' of the actual problem before he thinks of a remedy.
The supporters of precedent argue that case law is easier to understand than statute law.
Principles and rules are stated with reference to a particular factual context, and the
reasoning which leads to the conclusion is also elaborately stated. Adherence to the letter
or to the formula of words, which is called the vice of formalism, is absent in case law.
The various rules of interpretation permit a judge to go beyond the text of the statute, and
facilitate an interpretation which will promote the objectives of the statute. Another
advantage of precedent is that it is a product of the best legal brains. Judges of superior
courts, whether appointed directly from the Bar or promoted from the lower ranks of the
judiciary, possess considerable experience and expertise. Legislative draftsmen and
legislators cannot claim to possess these qualities.
Critics of precedent point out that case law is not law at all, because it is not imperative.
This view is not accepted by positivists like Austin who hold that judges are the agents of
the sovereign, and the law made by them is also supported by sanctions as in the case of
any other command of the sovereign. Another criticism levelled against precedent is that
the community has no control over judicial law making. This is true; but there is also
some intrinsic merit in the fact that an independent and impartial judiciary can always
remain detached and objective without being influenced by the emotional currents
prevalent in the community. This enables the judiciary to protect the rights of individuals
as well as those of the minorities. It is also important to remember that if a judicial
decision goes against the spirit of the community, it can always be overruled by
legislation.
Another criticism of precedent is that it is subjective in nature. A judge can decide cases
according to his whims and fancies. While there is some truth in the statement that there
is a subjective element in every judicial decision, it may not be correct to say that it is
totally subjective. There are many factors, which Karl Llewellyn describes as the
steadying factors, which ensure fairness and objectivity in judicial decisions, and which
do not permit a judicial decision to be arbitrary. Some critics of precedent allege that
judicial decisions are made in haste and under the pressure of compelling facts. However,
it must be noted that every judicial decision is taken after elaborate arguments on both
sides by experts, and after careful deliberation of the relevant provisions of law and
precedents.
A comparison between precedent and legislation immediately reveals
61
one major drawback of precedent, namely, the bulky and voluminous nature of case law.
The habit of some judges to write very lengthy judgments using incomprehensible
language contributes to the difficulties involved in extracting the ratio of a decision. The
increasing trend of separate concurring judgments adds a new dimension to the problem.
Another major defect of precedent is that it is always ex post facto. A rule laid down in
a judicial decision is applied to facts which had occurred earlier in point of time, when
the parties had no knowledge of this rule. The hardship caused to the parties is increased
when a new rule is laid down overruling an earlier decision. In the case of legislation, this
problem does not arise because legislation operates only prospectively.
It is also to be noted that precedents can never be a substitute for legislation, because
they can never be comprehensive. A precedent is a response to a problem that reaches the
court. Whether a particular social problem actually reaches the court depends on several
factors, including the awareness and economic capacity of the aggrieved parties.
A final question that has to be considered in relation to precedent is whether in a
system of precedent it is possible to adapt law to the changing conditions of social life.
While following precedents, we look at the past for a solution to the present problem. The
development of law and its capacity to meet new challenges necessarily postulate a
futuristic perspective. In a rigid system of precedent, the judge is always tied down to the
past. This is remedied to a great extent by permitting the courts to overrule their own
decisions. Creative judges can also find out methods of expanding and extending earlier
precedents, and also use the judicial technique of distinguishing, which has been already
explained. A good judge is a master, and not a slave of precedents.
The doctrine of precedent serves a great purposethat of ensuring certainty,
consistency, predictability, and stability of the legal system. Stretched beyond a point,
these virtues will become stumbling blocks to the progress of the law, since law has to
respond to social changes. The challenge of a judge working within the system of
precedent is to reconcile stability and change. The experience of Common Law over a
long period of history, as Julius Stone concludes after an incisive study, bears ample
testimony to the fact that Common Law judges have achieved significant success in
meeting this challenge.
62
Lecture 5
Sources of Law III: Custom
Origin and Importance of Custom
There are several theories concerning the origin of custom, and its relationship with the
law. A discussion of those theories is not necessary for our purpose. However, a
conclusion which emerges as a consensus of all the theories and is established by actual
study of primitive communities is that custom is anterior to Kings and courts. The origin
of custom may be traced to the very inception of the community itself. A community
involves three essential elements: (i) the group; (ii) the existence of the divergent desires
within the group; and (iii) the claims made by some members against others or against
the group. Conflicting claims and desires within the group naturally generate problems. If
the group is to remain a community, these problems must be resolved, for which certain
norms are required. Even in a primitive community, a distinction must be made between
what is actually done, and what ought to be done. It may also become necessary to
reconcile the norms of the family, or the tribe with those of the community. When a
problem arises, an answer must be found. Tact and sense of the merits and appreciation of
the strength of each party, play a greater part than the desire to find a rule that is just and
logically justifiable. Once a rule is adopted, practice generates conviction. Practice grows
into convention. What makes convention a custom is the recognition that there is
authority behind it. In other words, custom comes into existence when the community in
some way backs a particular rule. In the modern state, the legally recognised custom is
supported by the courts, and an apparatus of coercion.
Custom is not necessarily linked to any sense of justice. The existence of a custom may
be justified by expediency or power relations in a community.
The obvious example of a custom, which has no element of justice in it, is slavery.
The importance of custom diminishes with the growth of a legal system, since custom
is superseded by legislation and precedent. Nevertheless, custom is useful to the framers
of law in two ways: (i) it provides thet material out of which the law can be fashioned by
saving the intellectual! effort needed to create a law, de novo; and (ii) psychologically, it
is easier to secure obedience to a law if it claims to be based on a custom immemorially
observed. There is inevitably a tendency to adopt what has been followed in the past as
safe guide for the future.
The main reasons for the reception of Customary Law into the law of the modern state
are:
(i) Custom is frequently the embodiment of those principles, which have

commended themselves to the national conscience as principles of justice and
public utility, and are embodied in the maxim via trita via tuta, ie, frequented
path is reliable path. The law embodies those principles that have been
acknowledged and approved by the state in the exercise of its sovereign power.
Custom embodies those principles that have been acknowledged and approved
not by the power of the state, but by the public opinion of the society at large. It
is, therefore, said that custom is to the society, what law is to the state.
(ii) The existence of an established usage is the basis of a rational expectation of its
continuance in the future. As far as possible the state tries to fulfill people's
rational expectations rather than frustrate them. Even in fully developed legal
systems, customs ate not totally replaced by positive law. Customs which are not
contraij to the prevalent mores of the community are either recognised and
incorporated into the law, or are merely tolerated. An earl] example of custom
gaining statutory recognition is the Native Rights Act 1865 of New Zealand,
which allowed the aboriginal Maoris to continue to be governed by their own
tribal customs. In India, during the colonial period, there was an attempt to codify
the civil law and criminal law, but the religious personal laws wete left untouched
by the British. Even after independence, the Hindu personal law alone was
reformed and codified, leaving the personal- laws of other major religious
communities as they were befottl independence. The tribals in India are also
mostly governed byl their customary laws. It is, thus, clear that the influence of
custom! is still a factor to be reckoned with even in a modern legal system.1
64
Kinds of Customs
Custom is usually divided into legal, and conventional. Legal custom is one whose
authority is absolute, and which in itself and proprio vigore possesses the force of law. It
is operative per se as a binding rule of law, independent of any agreement on the part of
those subject to it.
Conventional custom, which is also called usage, operates only indirectly through the
medium of agreements, where it is accepted and adopted in individual instances as
conventional law between the parties. It is an established practice which is legally
binding not because of any legal authority independently possessed by it, but because it
has been expressly or implicitly incorporated in a contract between the parties
concerned. Most agreements consist of two partsnamely, expressed terms, and implied
terms. It is for the law to supply implied terms supplementing the terms expressed by the
parties. Courts deem conventions as implied terms of contract, when the following
conditions are satisfied:
(i) The usage must be so well established as to be notorious. No particular period of

longevity, however, is necessary to satisfy the requirement of notoriety.
(ii) The usage cannot alter the general law of the land, whether statutory or Common
Law. Usage derives its force from its incorporation into an agreement and,
therefore, can have no more power to alter the law than an express agreement.
(iii) The usage should be a reasonable one.
(iv) It need not have any particular scope. Usages may be, and usually are, limited to a
trade or locality, but they may be common to the whole country or even the world.
(v) The usage will not be enforced in a particular case if it purports to nullify or vary
the express terms of a contract. Its sole function is to imply a term when the
contract is silent. The parties cannot be understood to have contracted in the light
of a usage, which they have expressly contradicted.
Law originating in usage normally passes through three successive historical stages. First
is the existence of the usage, which is a question of fact. Then the courts take judicial
notice of it. Finally, it may be embodied in a statute, and then it assumes its ultimate form
as enacted law.
Once a general usage has received judicial or statutory recognition, it cannot be altered
by the growth of any other later usage in conflict with it. As Buckland remarks, what is
law is not usage, but the statement of the characteristics which it should possess.
65
Custom has also been classified into local custom, and general custom of the realm.
A local custom prevails in some defined locality only, and constitutes a source of law
for that place only. In order that a local custom may be valid and operate as a source of
law, certain requirements must be satisfied.
Requisites of a Custom
In order to operate as a source of law, a custom must have the following attributes:
Reasonableness
A custom must be reasonable. Malus usus abolendus est. The authority of j usage is not
absolute, but conditional upon its conformity with justice and ' public utility. It is not
meant that the courts are at liberty to disregard a | custom whenever they are not satisfied
as to its absolute rectitude and wisdom, or whenever they think that a better rule could be
formulated in the exercise of their own judgment. This would be to deprive custom of all
authorityeither absolute or conditional. The true rule is, or should be, that a custom, in
order to be deprived of legal efficacy, must be so obviously and seriously repugnant to
right and reason that to enforce it as law would do more mischief than that which would
result from overturning the expectations and arrangements based on its presumed
continuance and legal validity. I
Conformity with Statute Law 1
A custom must not be contrary to an Act of Parliament. In the words of Coke, 'No
custom or prescription can take away the force of an Act of Parliament.'
Observance as of Right
The third requisite of the operation of custom as a source of law is that it must have been
observed as of right. However, this does not mean that a custom must be acquiesced in as
a matter of moral right.
Immemorial Antiquity
The fourth and the last requirement of a legal custom relates to the length of time during
which it has been established. A custom, to have the forct
66
of law, must be immemorial. A custom is said to be immemorial when its origin is so

ancient that the beginning of it is beyond human memory, and no testimony is available
as to a time when it did not exist.
In addition to the aforesaid requirements, continuity, peaceableness, certainty, and
consistency with other customs, are also considered as requisites for a valid custom.
General Custom of the Realm
A custom prevailing throughout England since 1189 is considered as part of the

Common Law. The expression 'general custom of the realm,' is, therefore, synonymous
with Common Law. It is no longer a living and an operative source of English law. All
the general customs of the realm have been transformed into case law, which has its
immediate source in precedent.
Custom and Prescription
Historically, the law of prescription has been regarded as a branch of the law of custom.
A prescription was conceived as a custom limited to a particular person and his ancestors
or predecessors. It may, therefore, be described as a personal custom, and may be
distinguished from a local custom which was limited to a place.
The difference between a local custom and prescription will be clear from the following
example. If on the death of an owner intestate all lands belonging to him have, from time
immemorial, descended to his youngest son, it is a custom, and is the source of a rule of
special and Customary Law. Similarly, if the owner of a farm and all his predecessors in
title from time immemorial have used a way over the adjoining farm, it is a prescription
and is the source of a prescriptive right of way vested in the owner. Therefore, we can say
that custom is a long practice operating as a source of law; while prescription is a long
practice operating as a source of rights.
Both prescription and custom are essentially governed by similar rules of law. The
requisites of a valid prescription are in essence the same as those of a valid custom,
namely, it must be reasonable, immemorial, and consistent with statute law. Gradually,
other forms of prescription not known to the early law came to be recognised. The
requirement of immemorial antiquity is not insisted on in the case of prescription. In
cases of easements, enjoyment for 20 years confers a prescriptive right. Thus, when a
person has been enjoying a right for 20 years, he now has an absolute title instead of a
mere evidence of user.
67
Law: Theories and Approaches
Lecture 6
Approaches to Law I: Historical Approach
Overview
Different people have different ideas about law. Everyone tries to explain the meaning,
nature, and function of law from his own perspective. This is the reason behind the
existence of multiple theories of law, and different approaches to law. Legal philosophers
who had devoted a lifetime of study and analysis to the fundamental issues of law, as
distinct from any particular branch of law, have contributed much to our understanding of
law. Textbooks on jurisprudence usually classify these contributions under theories of
law, approaches to law or schools of jurisprudence. For analytical purposes, we may
classify the theories under several broad titles. However, the truth is that under every
category we find several varied versions and views. Each theory or approach has been
accepted or rejected at various points in time. Each theory has been criticised, re-
interpreted, or modified. Students of law generally feel that the most difficult part of
jurisprudence is the one that deals with theories of law. While it is true that the task to
grasp the intricacies of various theories of law is not easily accomplished, a preliminary
understanding of the important aspects of these theories is intellectually well within the
reach of an average student of law. Infact, the syllabus requires study only to that extent,
leaving a deeper and more critical study for those who are really interested and
motivated.
The questions which arise are as to why we should study these abstract theories and
approaches, and in what way does the study help us in understanding particular branches
of law, or in solving practical problems of law? These are the questions frequently asked
by the law students. It must be understood that no branch of law can stand in isolation,
and no legal problem can be solved with the help of a readymade rule alone. Each legal
rule and each branch of law must be conceived as part of a legal
_ Lectures in Jurisprudence i
system. Various approaches to law, and theories of law help in understanding a legal
system.
A word of caution is necessary here. The approaches and theories, which we will
discuss in this and the subsequent lectures, will help in understanding the nature and
function of law and the legal system. Finally, one may feel that no single theory provides
a totally satisfactory explanation. That is precisely the reason why it becomes necessary
to undertake a study of all these theories. While each theory offers only a partial view
and has many defects and limitations, an understanding of all the theories will certainly
give a broad vision of law.
Let us begin our discussion with the historical approach. It considers law in direct
relationship with the Life of the community. The central question that this approach
raises is as to how did law evolve? The historical approach believes that law evolved, as
did language, by a slow process, and law, like language, is a peculiar product of a
nation's genius. Later, when we discuss the positivist approaches to law, we will find that
Austin defined law as the command of the sovereign. The historical approach rejects this
definition, and states that the source of law is not the command of the sovereign, not
even the habits of the community, but the instinctive sense of right possessed by every
race. The real source of law lies deep in the mind of men.
The historical approach comprises inquiries into the past and evolution, with the object
of elucidating the position today. The inquiry is undertaken mainly to find out the extent
to which the 'oughts' of contemporary laws have been fashioned by the past. Inquiry into
the past, especially into primitive and undeveloped communities, conducted to discover
what 'law' might appropriately be taken to mean, is known as the anthropological
approach. It is a variant of the historical approach.
There are several factors which paved the way for the rise of the historical approach.
First of all, it was a reaction against the non-historical assumption of the natural law
theory, which we will examine later. The need for a realistic investigation into historical
truths was recognised. The French revolution, with all its brutalities, was considered as
the culmination of the attempt to establish a legal system based on reason, without
reference to past or existing circumstances. It was French conquest by Napoleon that
aroused the growth of nationalism in Europe. Since there was hostility towards
everything associated with French, the idea of codification, which arose in France, was
also treated with hostility, and the historical approach provided a theoretical foundation
to the opponents of codification. The influence of thinkers like Montesquieu, who
maintained that law was shaped by social, geographical and historical considerations,
was another
72
AW
significant factor. In England, Edmund Burke echoed this view, and referred to the
importance of tradition as a guide to social change.
The most influential and important jurist of the historical school was Savigny. He
warned that reforms which went against the stream of a nation's continuity were
destined to fail. The essential prerequisite to the reform of law was a deep knowledge
of history. Historical research was the indispensable means to the understanding and
reform of the present. Savigny emphasised that the muddled and outmoded nature of a
legal system was usually due to a failure to comprehend its history and evolution.
The most important contribution of Savigny to the understanding of law was his
theory that the nature of any particular system of law was a reflectionoJLthe spirit of
the people who evolved it. He called it 'Yolksgejsj'. Puchta, a cfisciple of Savigny,
asserted that law was the manifestation of a common conscience. 'Law grows with the
growth and strengthens with the strength of the people and finally dies as the nation
loses its nationality.'
The broad principles of the system are to be found in Volksgeist, which are manifest
in customary rules. It follows that law isji matter of unconscious growth. Law making
should, therefore, follow the course of historical
development. Savigny considered custom as preceding and superior to
legislation. Legislation should always conform to the popular consciousness. Law is,
thus, not of universal application. It varies with people and ages. Volksgeist, according
to Savigny, is the standard by which laws are to be justified.
Savigny clearly admitted that Volksgeist only formulated the rudimentary principles of
a legal system, and it did not provide all the necessary details. As society, and
consequently law, becomes more complex, a special body of persons is called into being
whose business is to give technical, detailed expression to Volksgeist. These are the
lawyers whose task is to reflect accurately the prevailing geist. In the branches of law
the Volksgeist manifests itself; it would be helpful if legislators took account of
traditions when framing new laws. Even though Savigny maintained that legislation
was subordinate to custom and should conform to Volksgeist, he did not oppose
legislation or reform by way of codification at some appropriate time in the future. The
only requirement is that codification should be preceded by 'an organic, progressive,
scientific study of the law'.
Comments on Volksgeist
Even those who accept the idea of Volksgeist point at the difficulties in
fixing it with precision. Savigny treated it as a discoverable thing.
However,
73
our experience is that even in a small group, people hold different views on
different subjects. This is all the more true for a nation. Some critics go to the
extent of saying that the geist does not exist.
History is replete with examples of transplantation of law in alien lands. Roman
Law was transplanted in Europe. Roman-Dutch Law was taken to distinct places,
and it still survives in South Africa and Sri Lanka, long after it has disappeared
from its homeland. The reception of English Law in so many parts of the world,
including India, is also an evidence of supra-national adaptability and resilience.
All this is inconsistent with Savingy's idea of Volksgeist, and goes to show that
there is some quality in law other than just popular consciousness.
It has been pointed out that the influence of Volksgeist is only a limited one. Its
influence seems to manifest itself more strictly in some branches of law than in
others. For instance, inspite of the successful introduction of an alien system of
law into India and Turkey, the indigenous family laws remained practically
unaffected.
Some commentators have drawn attention to the distinction between j the
creative influence of Volksgeist, and its adaptative and abrogative influence. In
modern times, the function of Volksgeist is that of modifying and adapting, rather
than creating. The fact that law is sometimes used deliberately to change existing
ideas and may also be used to further interstate co-operation in many spheres, is
not recognised by the historica] school.
Some other limitations of Volksgeist also need to be mentioned. Many; institutions
have originated, not in Volksgeist, but in the convenience of a ruling oligarchy.
Slavery is a clear example of this. In India, the practice of. untouchability was started
by the dominant classes. It is pertinent to point I out that many customs owe their
origin to the force of imitation, and not to any innate conviction of their
righteousness. j
Volksgeist does not adequately explain the existence of local custom. The
question is if law is the product of Volksgeist, how is it that only some people and
not all have evolved a special rule? Savigny tries to explain this by recognising
the existence of 'inner circles' within a society.
In any modern state important rules of law very often develop as the result of
conscious and violent struggle between conflicting interests, and not as a result of
imperceptible growth. The laws protecting the rights of workers is a conspicuous
example. In India, the conflict between the landless labourers and the landowners
has seen violent agitation and intervention of law in the form of land reform
legislation. Thus, at least in some cases, instead of being a reflection of
Volksgeist, law has in effect shaped Volksgeist.
Roscoe Pound was critical of Savigny s 'juristic pessimism' in distrusting
74
I
any deliberate attempt to reform the law, and in not recognising the creative work of
judges and jurists. Dias observes that Savigny 'did grasp a valuable truth about law, but
ruined it by over emphasis'.
Inspite of its limitations, the historical approach has made many significant
contributions to the legal theory. It provided a great stimulus to the historical study of
law and legal institutions, which has ingrained a sense of historical perspective in the
outlook of lawyers. In England, the influence of the historical approach can be seen in
the writings of Maine, Vinogradoff, Pollock, Maitland, and Holdsworth. It clearly
demonstrates the close connection between the Common Law, and the social and
political history of England.
By insisting that law cannot be understood without an appreciation of the social milieu
in which it had developed, the historical school destroyed the idea of immutable rules of
law discovered by abstract reason. In the place of moral authority behind law, the
historical school substituted social pressure. This bridged the gap between historical, and
sociological schools. Though the historical school challenges most of the assumptions of
the natural law school, there is one point where both these theories concur. Both consider
formal criteria of validity of law to be of subordinate importance. Thus, the growing
influence of the historical school indirectly paved the way for the resurgence of natural
law.
>< In a period when the emphasis was shifting from custom to legislation and attempts
for law reforms through legislations were in full swing, the historical school
demonstrated its perils and taught the lesson that development should flow within the
channels of tradition. It also demonstrated the connection between some parts of law and
cultural evolution, and the need to delve into the past sometimes in order to obtain a full
understanding of the law as it is at present.
We have now seen the contribution and limitation of the historical approach. Now how
do we conclude our discussion? We borrow from Paton who observed: 'The historical
method in jurisprudence should be supplemented by a critical approach based on a
philosophy of law, in order that true perspective may be maintained.'
There are some other approaches to law closely allied to the historical approach, which
are also generally discussed along with the historical school. We will examine them
briefly.
Anthropological Approach
Henry Maine, who is considered to be the greatest representative of the historical school
in England, inaugurated both the comparative and
75
anthropological approaches to the study of law. Instead of stressing the I uniqueness of

national institutions, he brought to bear a scientific urge to I unify, classify, and
generalise the evolution of different legal orders.
Tracing the pattern of legal development, Maine identified four stages, E
(i) law-making by personal command believed to be of divine inspiration; f
(ii) commands crystallise into customs; (iii) the ruler is superseded by a minority who
obtain control over the law; and (iv) revolt of the majority against oligarchic monopoly
and publication of law in the form of a code. According to Maine, static societies do not
progress beyond this point. However, progressive societies proceed to develop the law
by three methods, viz legal fiction, equity, and legislation. By the use of fiction, law
could be i extended or changed to meet the changing needs of society, while it was ,
pretended that law remained unchanged. Equity was a set of principles that were
conceived to have a higher sanctity than the current rules of law, and, therefore, could
supersede law. Legislation is the direct law making by the authority of the state. Maine
recognised that the progress of civilisations demanded an increasing use of legislation.
Codification is an advanced form of legislative development, and represents the stage at
which all the preceding phases of development are woven into a coherent whole.
According to Maine, in early societies the legal condition of the individual was
determined by status. It means that his claims, duties, liberties etc, were determined by
law. The march of 'progressive' society witnessed the disintegration of status and the
determination of the legal condition of the individual by free negotiation on his part.
This is summarised in Maine's famous observation: 'The movement of progressive
societies has hitherto been a movement from status to contract.'
Maine's 'status to contract theory' may be illustrated with reference to the early
Indian society. In the age of ancient codes, such as the Smritis, family was a unit of the
society. Legal conditions of the individual, his rights, duties, privileges etc, depended
on his status in the family, Subsequent social developments reduced the authority of the
pater families or the karta of the joint family. The rigid dependency of the individual
status gave way to a greater freedom of will and movement. The individual acquired
the capacity to enter into contracts, and to involve himself in f personal obligations.
Another example is the position of slaves who were not recognised as persons by law.
Gradually, they acquired freedom, and eventually slavery evolved into contractual
relation of employer and employee. Early history also reveals the denial of many legal
rights, including the right to own property and the right to vote, to women. In a feudal
society, a person's status determined his relation to land. However, all these are now
things of the past.
76
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Legal scholars have raised doubts about the relevance of Maine's 'status to contract
theory' in modern times. Some trends now indicate everi a return to status. Collective
bargaining has reduced the worker to the status of mere member of a trade union,
curtailing his individual freedom of contract. The growing power of employers and the
standardised forms of contracts, which leave no choice to the employee, show the
swing of the pendulum to the other extreme of making the worker a slave again. In
other fields also a return to status from contract is becoming visible, eg, standardisation
of landlord-tenant relations, debtor-creditor relations, insurance, supply of services etc.
The terms and conditions of social relations in these fields are now fixed by law, and
not by free contracts.
Fieldwork carried out by anthropologists, notably Malinowski, brought to light
several inadequacies of Maine's theory. It revealed that primitive law was neither as
rigid as Maine had thought, nor were people inflexibly bound by it. Primitive societies
exhibited a wide range of institutions, and considerable latitude was inherent in the
conduct of their customary practices. Even in primitive societies people controlled their
destinies. They were by no means blindly subservient to customs.
Maine was of the opinion that law and religion were indistinguishable in primitive
societies. This assertion has been rejected by Diamond who says that it is a
comparatively recent development. In primitive societies a phenomenon could be
isolated from religion and other social observances, for which the term 'law' would be
convenient. This view emphasises the secular character of primitive law.
Malinowski held the view that obedience to custom rested on the reciprocity of
services. People did unto others what the law bade them to do, because they depended
on some service in return or as part of this mutual co-existence. He underestimated the
part played by sanction.
Most anthropologists agree that what is called 'law' should be described in terms of its
functions and the attitude of the people towards it, rather than in terms of form or
enforcement.
Dialectical Interpretation
This theory, associated with the great thinker Hegel, distinguishes between laws of
nature, and positive laws. Laws of nature are outside human consciousness, and can
never be improved. They have to be accepted because they exist. Positive laws, on the
other hand, are man-made and, as such, do not have to be accepted because they exist.
Hegel considered evolution as a process of action and reaction between opposites,
thesis and anti-thesis, which results in their synthesis. The 'idea'
77
is thesis and its anti-thesis is the 'idea outside itself, which is nature. The synthesis is
spirit, of which the Volksgeist is possibly an aspect. The subjective spirit (thought and
consciousness) and its anti-thesis, the objective spirit (legal and social institution) are
synthesised in the absolute spirit. Law comes into the category of objective spirit. Law
and other social institutions, according to the Hegelian theory, are the result of free
subjective will endeavouring to realise freedom objectively.
Biological Interpretation
Herbert Spenzer advanced a theory of law, drawing parallels between the social
organism, and the biological organism. According to him, the adaptation of the individual
to social conditions is due to heredity. He inherits a social instinct from his ancestors,
including ideas of morality, obligation, right, and justice. In this manner different
sociological groups evolve differently, and so do their laws and institutions.
Spencer identifies two stages in the process of evolution. In the first, which is
primitive, war and compulsion figure prominently. In the second, which is advanced,
peace and freedom are prominent. Spencer was a strong individual with a laissez faire
approach to government. He denied the complete absorption of the individual in the state,
and maintained that the duty of government was to secure individual to the greatest
possible extent. With his strong belief in the evolution of law, Spencer naturally did not
have much faith in legislative reform.
Racial Theory of Law
This theory, which prevailed in National Socialist Germany under Hitler, is based on the
following two cardinal principles:
Leadership Principle
The state is a group, and a group has no strength or unity without a leader. The leader,
therefore, becomes the mystical personification of national unity. Law and the states
become the same thing and since the leader is the embodiment of the state, law is what
the leader commands. This implies the following: (i) unquestioning obedience; (ii) law
should serve political ends; and (iii) nothing, not even reverence for statutes, should
stand in the way of implementing the will of the leader.
78
Racial Principle
According to this theory, law was inherited by blood. It should (i) save the ends of the
state and its policies; and (ii) help to preserve racial purity, for the state cannot be strong,
unless it is racially pure.
According to this theory, the only international system, which could be tolerated, was a
nordic one, ie, one based on a blood tie. Every state has a natural privilege and power to
prevail over other states, and to take their land for its own people.
This theory derived inspiration from the historical school, biological interpretation, and
the Hegelian theory, but in a perverted way. From the historical school, the idea that the
roots of law lie deep in the past was adopted to lend a nationalist flavour to the racial
theory. The biological theory was used to perpetuate the idea that law was inherited by
blood. The Hegelian theory, which showed how the individual could be integrated into
society, was utilised to suppress individual rights.
Gierke: A Historian with a Sociological Perspective
Gierke, who carried on the survey of the historical school further, represented a
collectivist rather than an individualist approach. To this extent, his work is closer to that
of the sociologists, but his interpretation of this development on historical lines earns him
a place among the front-runners of the historical schools.
The distinct contribution of Gierke lies in his emphasis on the significance of
associations. Gierke denied that the recognition of an association as a person depended on
the state. According to him, the reality of social control lies in the way in which
autonomous groups within society organise themselves. He then proceeded to trace the
progress of social and legal development in the form of history of the law, and practice of
associations.
Gierke's critics point out that he never quite succeeded in reconciling the independence
of autonomous bodies with the supreme power of the state.
79
Lecture 7
Approaches to Law II: Economic Approach
The economic approach may be considered as a variant of the historical approach in so

far as it has sought to unfold a pattern of evolution. To some extent, it is sociological
because it concerns the part which law has played, and is playing in society. Yet it differs
from both historical and sociological approaches in that its main concern is with the
content of law, the nature of which is regarded as a reflex of an economic substrata.
Interpretation of law as a part of an economic interpretation of social evolution is a by-
product of the social and political theories of thinkers like Marx and Engels. We do not
find any specific definition of law in the writings of Marx and Engels. Their views on
law are not set out separately in any treatise, but lie scattered in their writings. The
approach in these writings, which we may call Marxism, reveals a system of sociology, a
philosophy of man and society, and a political doctrine. In order to understand the
Marxist approach to law, which is often described as an economic theory of law and
state, it is necessary to consider at least some aspects of Marxist ideology because law is
treated as a manifestation of that ideology.
Like Hegel, Marx and Engels visualised history as an unfolding and dynamic
phenomenon according to the recurrent conflict between a thesis and anti-thesis. Hegel
considered ideas as the determinant factor of development. This was substituted with
material and economic forces by Marx and Engels. According to Hegel, 'reality is but a
reflection of an idea.' However, to Marx, 'ideas are reflections of reality'.
The primitive tribal society, according to Marx, contained no anti-thesis in itself as long
as there was equal distribution of commodities. When distribution became unequal, the
society was split into classes patterned by the division of capital and labour. Value of
commodities, thus, came to be governed by the cost of labour required to produce them.
The place of
the tribal society was taken by the state, which became the instrument of the stronger
class. The modern capitalist state necessarily involves the domination of the labouring
majority by a minority which controls the economic resources of the country. Law is an
instrument by which this minority exploits the working class. The tension between
capital and labour will eventually break into conflict, a revolt of the majority against the
minority. Ultimately, the majority will gain control of the economic resources, eliminate
the minority, and establish a dictatorship of the proletariat. This will lead to communism
or classless society. Domination will cease, inequalities will vanish and eventually, the
state and the superstructure in the form of law will disappear as well.
Marxist Theory
Marxist theory conceived law as an instrument of government policy. Traditional

doctrines such as separation of powers, rule of law, and judicial independence were
meaningless. Marxist theory asserts that judges, like law itself, are instruments of state
policy. I Pursuant to Marxist theory, the following four doctrines as to the nature I of law
may be formulated: I
Doctrine of Economic Determination of Law 1
According to this doctrine, law is a superstructure on an economic system. Economic

facts are independent of, and antecedent even to law. Bourgeois theories of law which
present it differently are mere distortions. There may be other superstructures and
ideologies, eg religion, but they all have their ultimate reality in the background of
economics.
Doctrine of Class Character of Law
This doctrine postulates that law is an instrument used by the rulers to keep the masses
in subjugation. Even after the establishment of proletarian dictatorship, law will
continue to be used as the instrument by which the working class majority can crush and
eliminate the capitalist minority. Law is, thus, an instrument of domination.
1
Doctrine of Identity of Law and State
The state came into existence as soon as there was unequal distribution off commodities,
and subsequent development of class distinctions. Law was
82
one of the means whereby the capitalist minority sought to preserve and increase its
power. Those who had property used the legal system to protect it against those who did
not have property. The law and the state in capitalist societies together form an apparatus
of compulsion and domination.
Doctrine of Withering Away of Law and State
This doctrine states that when the communist or the classless society is established, there
will no longer be any domination or inequality. Therefore, the two instruments of
domination, ie, the law and the state, will wither away.
The Marxist theory draws attention explicitly to the coercive and repressive features of
law. Law is seen as a means of domination, oppression, and desolation. The focus of
attention is on the law-state relationship. Law is reduced to a position where it is
presented as a simple instrument in the hands of the holders of state power. The state is
viewed as an instrument or mechanism wielded by the dominant socio-economic class.
This is sometimes called the instrumentalist view of law. While explaining the class
content of law, DN Pritt observes that a class holding state power is the maker of law, and
it makes it in accordance with its class interest. Law is successful because it disseminates
a false consciousness, spreading the illusion of neutrality and impartiality. The greater the
functionality of law, the greater is the domination of law over people's lives. Law has
been compared to an 'iron fist in the velvet glove'.
Attempts have been made by modern jurists to present modified versions of the Marxist
theory of law. Before examining them, we will briefly consider the major criticisms of the
theory. While agreeing with the fact that law has been used as an instrument for the
repression of one class by another, some critics point out that this has not been the sole
function of law. Regulation, and even coercion, is unavoidable in order to enable any
society to function effectively. Law gives practical expression to the balance that has to
be struck between competing interests. It ceases to be merely an instrument of
domination, and becomes a means of adjusting interests; an independent judiciary plays a
major role in this process. Critics attack the Marxist theory for its failure to recognise the
role of law as a means of preserving security and moral standards, and also as a means of
restraining oppression by classes of individuals. According to them, law satisfies the
ineradicable human craving for justice.
Other features of the conceptualisation of law which run counter to the Marxist theory
are:
(i) law represents the value consensus of society;
83
J
i
(ii) law represents those values and perspectives which are fundamental to social
order, and deserve protection in public interest;
(iii) the state as represented in the legal system is value-neutral; and
(iv) in pluralistic societies, the law represents the interests of the society at large by
mediating between competing interest groups.
The conceptualization of law as an agency of integration, which we find as a basic

postulate in the critique of the Marxist theory, and that of law as an instrument of
oppression and protector of the dominant economic interests, which is the basic tenet of
the Marxist theory, seem to represent two extreme positions. Marxism challenges the
assumption of desirability and naturalness of law, of the essentiality of law, and of law as
a necessary expression of a
well-balanced and integrated society.
There are other thinkers who have expressed doubts about the validity of the basic
superstructure metaphor, and the economic determinism prominent in the Marxist theory
of law. Max Weber feels that law might affect the economy. Hartwell argues: '...legal
institutions have some autonomy of their own which, in varying degrees, makes them
exogenous variables in any process of economic change.' Horowitz, who studied the
relationship between law and economy in the American context, traces the influence of
economy on law, and also shows how law helped to forge a major change in the
economy. It is interesting to note that Horowitz's study identifies an alliance between the
legal profession, and the mercantile class. He shows the manner in which law actively
participated in economic growth, and demonstrated the role it played in capitalist
accumulation, and in redistribution of wealth ar\d poVitkai power. T\\\s study provides
i new insight into the relationship between basic and superstructure revealing the active
role played by the superstructure in re-designing the economic base.
Marxist theory has generated a great deal of discussion in various disciplines, some of
which have a bearing on law also. Although it is not possible to touch even the fringe of
all modern writings on the subject, we will briefly refer to a few of them. Sumner 1
observes that legal ideology contains more than just capitalist economic ideology. Law
reflects the ideologies of different fractions within the bourgeoisie, and the ideologies of
other classes. It also reflects the ideologies of occupational groups, minority groups, and
ideologies related to family structure, political representation etc. Law is an ideological
form of the fullest complexity, but it is not equally pluralistic. Sumner says that it is
basically a reflection of class inequality expressing the ideologies of the dominant class.
According to him, 'the
1 Reading Ideologies, 1979.
84
legal system is first and foremost a means of exercising political control available to the
propertied, the powerful and the highly educated. It is the weapon and toy of the
hegemonic bloc of classes and class fractions whose rough consensus it sustains.'
Poulantzas explores the concept of autonomy of state, and that of law. He uses the
expression 'relative autonomy of the state' to express the idea that whatever autonomy the
state might have, it remained, for all practical purposes, the state of the ruling class.
Deviating from this view, Theda Skocpol argues that the state is 'an autonomous
structure, a structure with a logic and interests of its own, not necessarily equivalent to,
or fused with, the interests of the dominant class in society'. The degree of autonomy
enjoyed by the state is dependent on the hegemony of the dominant class. Where the
dominant class is truly all powerful in economic, political, social and cultural terms and
free from effective challenge, the state will be subject to its hegemony. Where such
hegemony is strongly challenged, the autonomy of the state is likely to be substantial.
Upendra Baxi,2 an Indian jurist, after analysing Poulantzas's concept of relative
autonomy of state and law, observes that modern law performs distinct and separate
functions against the dominating class, and for the dominated. He accepts the reality of
the notion of relative autonomy of law, and adds that within it also dwells the differential
autonomy of legislation, adjudication, administration, and enforcement.
Karl Renner is another important jurist who attempted to construct a theory of law
using the Marxist sociology. Renner noted that infrastructure and superstructure were
metaphors which served only to illustrate the connection, not to define in exact terms. He
made a deep analysis of the relationship of property and society.3 His thesis is that inspite
of the stability of legal concepts like property and contract, their social functions had
undergone profound transformation. While agreeing with the view that in order to
understand a legal concept one had to penetrate its economic base, Renner deviated from
the Marxist approach in recognising that law might itself become an active agent in
reshaping social conditions. The importance of Renner's work lies in demonstrating that
part of law which has shaped the economic development.
Gramsci widened the Marxist focus on economic relations in society to embrace
politics, culture, and ideology. He believed that class domination resulted as much from
popular consensus engineered in a civil society as from physical coercion or its threat by
the state apparatus. This was
2 Marx, Law and Justice, 1993.

3 Institutions of Private Law and their Social Functions, 1949.
85
particularly the case in advanced capitalist societies where the media, mas.' culture,
education, and law had assumed new roles.
A critical school of Marxism, known as the Frankfurt school, attempta to link Marxism
to social psychology. The school draws our attention t< the oppressive complexity of
advanced technological society, which i increasingly subjected to the control of
technocrats. Technology and scieno create a specific type of knowledge which is utilised
to maintain dominatioi and repression. Marcuse, who belongs to the Frankfurt school,
expresse doubts about the revolutionary potential of a working class dominated b the
impact of technocratic ideology.
While trying to understand law from a Marxist perspective, one questio that may arise
in our minds is about laws which restrain oppression, ( laws which are against the
interests of the ruling class. Chambliss assei that Inws are passed which reflect the
interests of the general populatk and which are antithetical to the interests of those in
power. Marxists wou argue that such laws are a bribe, a small concession to buy-off the
demai for more fundamental changes. Another problem that we face while applyi the
Marxist theory to contemporary pluralist societies is the difficulty identifying the ruling
class. The power structure in such societies i: complex arrangement of power centres,
which makes shifting compromi and accommodations. Robert Dahl points out the
difficulties in identify a monolithic, all-powerful ruling elite. Modern developments also
sho\ decomposition of capital and a separation of ownership of means production from
their control, as a result of the managerial revolution: growth of corporatism. Dahrendorf,
who raised these issues, also refei to the decomposition of labour, division between
skilled and unski workers, indigenous workers and immigrants, and the emergence of mil
class. When we try to develop a theory of law from the Marxian perspeci these
developments must also be taken into account.
In the Marxist analysis, the judiciary is. as much a part of the central state power as
the executive, legislature, civil service, military, and the pc JAG Griffith 4 asserts that
the judiciary supports the status quo. interesting to recall how a criticism of the
judiciary in the Marxist ideolo perspective led to contempt of court proceedings before
the Supreme C of India. In the year 1967, the then Marxist Chief Minister of K( EMS
Namboodiripad, made the following observations in a press inter
Marx and Engels considered the judiciary as an instrument of oppression..

Judge are dominated by class hatred, class interests and class prejudices.
When evidenc is balanced between a well dressed pot bellied rich man and a
poor, ill dresse
4 The Politics of the Judiciary, 1991.
86
and illiterate person, a judge instinctively favours the former... the Judiciary is
weighted against workers, peasants and other sections of the working classes and
the law and the system of the judiciary essentially serve the exploiting classes..
.Even when the judiciary is separated from the executive it is still subject to the
influence and the pressure of the executive.
The Kerala High Court convicted Namboodiripad for contempt of court, inspite of the
dissent by KK Mathew J who held that the right to freedom of speech and expression
guaranteed by the Constitution protected Namboodiripad's observations. The Supreme
Court also upheld the conviction, but reduced the fine from Rs 1,000 to Rs 50.5
Economic Analysis of Law
As distinct from the Marxist approach, which denies law any autonomy and considers it
as an element of superstructure and as an instrument of class domination, there is another
approach rooted in economics which is found in the works of Ronald Coase, Guide
Calabresi, and Richard Posner. This school of thought advocates that law ought to be
concerned with economic efficiency. It claims to put forward a descriptive theory of law
in which law is simply concerned with promotion of economic efficiency, and the
protection of wealth as a value. Wealth, in the economist's sense, is not a simple monetary
measure, but refers to the sum of all tangible goods and services.
The economic school makes the assumption that human beings are rational. In other
words, the man is a rational maximiser of his satisfactions. The economic approach
argues that people are rationally self-interested. What they do, shows what they value,
and their willingness to pay for what they value is the ultimate proof of their rational self
interest.
The rational man in the economist's assumption is not the same as the reasonable man
according to this legal doctrine. The reasonable man will ordinarily behave in a
reasonable, prudent manner. Thus, he will act with fair regard to the welfare of others.
The rational man, on the other hand, seeks to maximise his own self interest. He shows
only limited concern for the well being of others.
One significant contribution to the economic approach was made by Ronald Coase. His
theory is widely known as the 'Coase Theorem'. We will explain the Coase Theorem with
an example. Suppose a factory is emitting smoke, and thereby, damaging the clothes hung
out for drying on the terrace of five neighbouring houses. In legal terms, the question is
5 EMS Namboodiripad v TN' NambiarAIR 1970 SC 2015.

1
whether the residents have a right to clean air, or whether the factory has a right to
pollute. The answer that immediately comes to your minds may be to assert the right of
the residents to clean air. We may also add that they have a right to be compensated
because the factory is causing damage. However, for the economists the issue is not one
of causation, in that although the factory has caused the damage, that damage would not
have occurred if the houses were not so close to the factory. According to Coase, 'both
parties cause the damage'. For him it is not an issue of causation or justice, but of
efficiency.
The question which arises is as to how do we measure efficiency in this situation?
Suppose the damage suffered by each resident is Rs 750, it makes a total of Rs 3,750. The
smoke pollution can be eliminated either by installing a smokescreen in the chimney of
the factory at a cost of Rs 1,500, or by providing each resident with a tumble dryer to dry
the clothes at a cost of Rs 500 per resident, which will cost Rs 2,500 for the
neighbourhood. The efficient solution is clearly to install the smokescreen since it costs
only Rs 1,500, and is cheaper than purchasing five dryers for Rs 2,500. However, the
question now is, who must purchase the smokescreen? We may say, on the basis of a
well-accepted principle of environmental law, viz the polluter pays, that the factory must
purchase the smokescreen. The answer is not dictated by efficiency, but by our own
instinct for justice which is embodied in the 'polluter pays' principle.
The efficient solution depends on whether there are transaction costs. Transaction costs
include the costs of identifying the parties with whom one has to bargain, the costs of
getting together with them, the costs of the bargaining process itself, and the costs of
enforcing the bargain reached. If the transaction costs are zero, then for an efficient
solution it does not matter whether we have a legal rule (polluter pays), or a legal rule
allowing the right to pollute. In conditions of zero transaction costs, the judge may
impose a rule based on notions of justice apart from the requirements of efficiency.
However, in actual practice zero transaction costs rarely exist. If there are positive
transaction costs, the efficient outcome may not occur under every legal rule. In such
circumstances, the preferred legal rule is the rule that minimizes the effects of transaction
costs.
Calabresi argues for a wider approach. In situations where transaction costs are not
zero, not merely the narrow issue of efficiency, but the nature of the right and the issue of
its distribution also become relevant. The society has to make 'first order legal decisions',
ie, which entitlements prevail over others. In our example, the decision whether the right
to clean air or the right to pollute must prevail is a 'first order legal decision'. According
88
as a nay that age. that lave jase, n or
this takes :r by ,500, : at a lood. costs ,500. i? We w, viz . The ustice
costs, whom of the led. If es not owing ;e may :nts of xist. If occur e is the
saction nature nt. The ; prevail n air or cording

to Calabresi, those decisions must be taken on considerations of economic | efficiency,

distributional preferences, and other justice considerations. Richard Posner, another
leading exponent of the economic school, is of the view that the whole process of
legislation is based on the fundamental assumption that legislators are rational
maximisers of their satisfactions like anyone else. The desire for getting elected leads
legislators in striking deals with organised interest groups for votes, the bargain being
that the interest groups will provide votes and money for the campaign in return for
favourable legislation. According to Posner, judges have a dual role: to interpret the
interest group deals embodied in legislation, and to provide the basic public service of
authoritative dispute resolution. Judges are also driven to be efficient by the fact that
inefficient decisions will impose greater social costs than efficient ones. Litigants losing
from an inefficient judicial decision will have a much greater incentive to appeal than
those who lose by reason of an efficient decision. The proliferation of appeals and
subsequent legal costs act as a disincentive for the judge to act beyond the confines of
efficiency. However, Posner admits that although wealth maximisation is built into the
law, yet due to the independence of the judiciary the law does not achieve perfect
efficiency. The judicial preference for basing decisions on precedents rather than on
economic considerations is another factor.
Now we will examine the manner in which economic analysis could be applied to
specific branches of law. First, we will take the law of contract. Contractual
transactions are voluntary transactions. Why is there a need for a law governing them?
Why does the law have to intervene in this natural' process of exchange? Posner argues
that there is no need for legal intervention when the parties perform their part of the
bargain simultaneously. This is very rare. Usually, there is a gap between the executory
stage, and the executed stage of a contract. It is because of this lapse of time that the
law of contract has developed. In the period between agreement and performance, one
parry is at the mercy of the other and, therefore, requires legal protection. Posner
explains the basic doctrine of contract in terms of efficiency. Consideration promotes
the need for economic exchange. Damages for breach protect a party's expectations.
Students of contract law are familiar with unilateral contracts or general offers. Posner
puts such contracts in a new light in the following example: 6 X offers $10 for the return
of his lost cat. There is no negotiation with potential finders, no acceptance of this offer
in the conventional sense. Yet someone who hears of the reward and returns the cat has
a legally enforceable
6 Economic Analysis of Law, third edn, 1986, p 89.
89
claim to the reward; his compliance with the terms of the offer is treated as acceptance.
The result is correct because it promotes a value maximising transaction. The cat is worth
more than $10 to -X"and less than $10 to the finder, so the exchange of money for the cat
increases social welfare, yet it would not be so likely to occur if the finder did not have a
legally enforceable claim to the reward.
Criminal law may appear to be outside the boundaries of economic analysis of the
efficiency principle. Infact, it is not so. The economic rationale behind criminal law
views crime, with the exception of crimes of passion, as an economic activity with
rational participants. WZ Hirsch explains it in following words:7
A person commits a criminal offence if his expected utility exceeds the level of
utility he could derive from alternative (legal) activities. He may choose to be a
criminal, therefore, not because his basic motivation differs from that of other
persons, but because his options and the valuation of their benefits and costs differ.
The criminal law seeks to influence human behaviour by imposing costs on
criminal activities, thereby providing the individual with an economic incentive to
choose not to commit a criminal offence; that is, a deterrent incentive.
In criminal law, as we know, the right of action is taken over by the state from individual
victims. This moves the law away from the economics of the market place, where the
principles of law, as in the case of contract and tort, mimic the response of individuals as
rational maximisers. The economic school does not seem to provide any satisfactory
explanation for this. Another related question is about a substantial overlap between tort
and criminal law. The question is whether it is better, in the interest of efficiency, to leave
most of the acts currently categorised as crimes, to the law of tort. Posner thinks that
most of the common law crimes are intentional torts which represent 'a pure coercive
transfer either of wealth or utility from victim to the wrongdoer'. His commitment to
economic analysis takes Posner to the extent of saying that 'the prevention of rape is
essential to protect the marriage market'.
Now that we have examined the Marxist approach and the economic analysis of law,
the question arises whether we find anything common to both. The economic analysis
recognises that a legal system reflects the economic system. For instance, an economic
system, which is based on free market principles with the aim of wealth maximisation,
will have a legal system which reflects this. To this extent the economic analysis
recognises the correctness of the Marxist approach.
7 Law and Economics, 1979, p 200.
90
eated as ximising iO to the ire, yet it iforceable
economic c rationale of passion, explains it

It is generally agreed that the economic analysis can be a useful tool in explaining
the working of law, especially some branches of law. However, the problem with the
economic school is that its proponents converted it into a straitjacket into which
every aspect of law is forced. In the process, they have also ignored many other
factors which shape law. Moreover, the two assumptions they make, viz, that wealth
maximisation is the sole social value, and that individuals are all rational
maximisers, rest on shaky and unproven foundations. The edifice built on these
foundations, though looks impressive, suffers from many imperfections and
weaknesses.
: level of >e to be a :ofother and costs sing costs :conomic incentive.
by the state economics of f contract and The economic r this. Another i and
criminal f efficiency, to he law of tort, itentional torts or utility from c analysis takes
ie is essential to
id the economic ling common to stem reflects the h is based on free will have a legal
analysis recognises
91
1
What is generall) legal thought wh number of difft approaches is to t jurisprudence. Sir

thought we have We can identi sociological jurist!
CO Inquiries Here the have shapi (ii) Inquiries c society.

(iii)Inquiries v society.
(iv) Inquiries v validity of
Social Origins of
Ihering, a German j laws and legal institu of 'purpose' as the rrn in sociological factors
and as an instrumen exist for the individi
Law as a Means to an j
Lecture 8
Approaches to Law III: Sociological Approach
What is generally described as sociological jurisprudence is infact a body of legal

thought which shares some common elements, but which reveals a number of
different approaches. The best way to understand these approaches is to turn to the
writings of the major exponents of sociological jurisprudence. Since a number of
jurists are associated with this school of thought we have to be selective.
We can identify the following types of inquiries in the writings of sociological
jurists:
(i) Inquiries which seek social origins of laws and legal institutions. Here the
focus is on the content of 'oughts', and the factors that have shaped and are
shaping them.
(ii)Inquiries concerned with the impact of laws on various aspects of society.
(iii)Inquiries which deal with the tasks which law should perform in society.
(iv) Inquiries which attempt to find some social criteria to test the validity of
laws.
Social Origins of Law and Legal Institutions
Ihering, a German jurist, started with an analysis of the social origins of laws and
legal institutions. In his seminal work,1 Ihering projected the idea of purpose' as
the mainspring of laws by stating that the origin of laws lay in sociological factors.
Ihering considered law as a part of human conduct in& as an instrument for
serving the needs of the society. Law does not a\st for the individual as merely to
satisfy him, but serves his interests
1 Law as a Means to an End, 1924.

with the good of the society in view. Applying this idea to the concept of property,
Ihering says that property is both a social and an individual institution. Limitation of the
individual's right to property, or even its expropriation, is justified in the interests of
society.
Ihering recognised that laws are only a type of means for achieving social control. He
classified the factors found in society into: (i) extra legal conditions, those under the
control of nature; (ii) mixed legal conditions, those in which laws do not play a prominent
part; and (iii) purely legal conditions, those interests which are secured solely by legal
regulation, The recognition of inter-dependence of all those factors is a distinguishing
feature of Ihering's approach to law. He considered laws as 'the sum of the conditions of
social life in the widest sense of the term, as secured by the power of the state through the
means of external compulsion'. Ihering emphasised the need to reconcile competing
social and individual interests. I He was not in favour of any a priori theories of justice,
for the simple reason that a law may be bad today and good tomorrow if the social \
background shifts in the meantime.
Impact of Laws on Society
Ehrlich, another important jurist of the sociological school, was mainly concerned with
the impact of laws on various aspects of society. According to him, laws found in formal
legal sources, such as statutes and decided cases, give only an inadequate picture of
what really goes on in a community. The norms which really govern life are only
imperfectly and partially reflected in them. He drew a distinction between norms of
decision, which correspond to what is traditionally understood to be laws, and norms of
conduct which govern life in society. There is often a considerable divergence between
the norms of decision, and the norms of conduct.
The inevitable gap between the norms' of formal law and those of actual behaviour is
the basis of Ehrlich's formulation of the 'living law' theory, for which he is best known
today. He said that the living law of every society lies outside the confines of formal
legal material, ie, in society itself. Only a minute fraction of social life comes before the
courts. The problems which come before the courts do not truly represent social life, but
represent only some form of breakdown of social life. The task of formal law makers,
according to Ehrlich, is to keep formal law as nearly abreast of the living law as
possible.
We find a striking similarity in the approach of both Ihering and Ehrlich to the
question of law's role in social control. Both considered the norms emanating from the
state and its organs as only one factor of social control
94
the concept of an individual ty, or even its
tchieving social (i) extra legal al conditions, i) purely legal ;al regulation, distinguishing
he sum of the ecured by the sion'. Ihering dual interests. >r the simple if the social
was mainly y. According and decided community, illy reflected i correspond lduct
which between the
se of actual theory, for 'ery society tself. Only ems which resent only w makers, the
living
id Ehrlich :he norms al control

along with other forms of social control such as customs, morality, and the practices of
groups and associations. A statute which is habitually disregarded by the community,
according to Ehrlich, is not a part of the [ivingjaw. Since formal laws are only an
adjunct of the living law, jurisprudence must rSFconcerhed not only with formal laws,
but also with the living law. This involves an observational study of society.
Commentators have drawn attention to some of the drawbacks in Ehrlich's theory with
its emphasis on living law. While accepting the distinction between formal law and
living law as necessary and important, a question has been raised as to whether both
should be called 'law'. Ehrlich deprived formal law of any creative activity and
presented it as invariably trailing behind social developments. This view also does not
seem to be totally correct. Another drawback is that Ehrlich rightly drew a distinction
between norms of decision and norms of behaviour, but failed to bring out their mutual
interactions. He has not recognised the ever -increasing part played by the state
organisation in the regulation of social life. Finally, Ehrlich's concept of jurisprudence is
considered so wide as to make it unwieldy and amorphous. However, it must be
admitted that Ehrlich's powerful influence induced jurists to abandon purely abstract
pre-occupations, and to concern themselves with the problems and facts of social life.
Task of Laws in Society
The third type of inquiry, viz, inquiry into the task of laws in society, was the main
concern of Jeremy Bentham, who is remembered for his utilitarian theory. According to
Bentham, promotion of the greatest happiness of the greatest number, was the function of
laws. This can be achieved by bringing about the maximum happiness of each individual,
for the happiness of each will result in the happiness of all. Bentham also designed a
method to measure the happiness by the quality of pleasure resulting from an action. The
good or evil of an action should be measured by the quality of pain or pleasure resulting
from it. The business of government was to promote the happiness of society by
furthering the enjoyment of pleasure, and affording security against pain.
Legislation should aim at providing subsistence, abundance, equality of opportunity,
and security for all. Bentham said: 'The public good ought to be the object of the
legislator, general utility ought to be the foundation of his reasoning'. He favoured private
property because it was essential to ensure the fulfilment of settled expectations. The
importance given to private enterprise and private initiative in Bentham's writings clearly
shows his preference for economic liberalism.
95
Bentham's utilitarian theory, with 'pleasure-pain' criteria as a yardstick to measure

happiness of individuals and ultimately the quality of law, has been criticised mainly on
the ground that it is subjective. The problem of balancing individual interests with the
interest of the community did not receive adequate attention from Bentham. Inspite of
these weaknesses, | Bentham's contribution to sociological jurisprudence is significant
because j he asserted that the task of law-making is to achieve social ends and that laws
should be judged by their consequences. Bentham is considered to be the pioneer of
functional jurisprudence, which we can definitely bring under the sociological approach.
Some people consider Bentham as a precursor of legal positivism because he was
opposed to all doctrines of natural law, and defined law as 'the NVvVV Q\ tWKKCfflA
d a VgttWr
Y&flV ^tuatt MA\, in his well- known essay,2 added a new dimension to" Bentham's
utilitarianism. Mill agreed with Bentham that 'actions are right in proportion as they tend
to promote happiness; wrong as they tend to produce to reverse of happiness'. However,
he was of the view that pleasures of the intellect, such as the enjoyment of art, poetry,
literature and music, the pleasures of feelings and inspiration, as well as those of moral
sentiments, must be assigned a much higher value than those of mere sensations. Mill
disagreed with Bentham on the significance that should be attributed to the concept of
justice. While Bentham had subordinated justice completely to the dictates of utility,
Mill was not prepared to go to that extent. He agreed that the standard of justice should
be grounded on utility, but j believed that the origin of the sense of justice must be
sought in two sentiments other than utility, viz, the impulse of self defence, and the
feeling of sympathy. In other words, the feeling of justice is the urge to counter a wrong,
placed on a generalised basis. The sense of justice, according to Mill, encompasses all
those moral requirements which are most essential I for the well-being of mankind, and
which human beings, therefore, regard' as sacred and obligatory.
Among the proponents of sociological jurisprudence the name of Roscoe Pound is
perhaps the most famous. He has written extensively on various aspects of legal
philosophy. An attempt has been made here to capture some of the important ideas of
Roscoe Pound which are crucially relevant to our discussion.
Sociological jurisprudence, according to Roscoe Pound, should ensms. that the
framing, interpretation, and application of laws should take account of social facts. For
this, he suggested a functional study of the social effects" of legal administration, and
social investigations as preliminaries to
2 'On Liberty', 1859.
96
f Roscoe i various capture relevant
i ensure account il effects aries to

legislation. What is needed, for making laws more effective, is a constant study, both
psychological and philosophical, of the judicial method and a sociological study of legal
history. Pound saw legal history as 'the record of a continually wider recognising and
satisfying of human worth or claims or desires through social control'.
In order to achieve the purpose of the legal order, Roscoe Pound suggested that there
must be:
(i) a recognition of certain interests, individual, public and social;

(ii) a definition of the limits within which such interests will be legally recognised and
given effect to; and
(iii)the securing of these interests within the limits as defined.
When determining the scope and subject matter of the system, the following must be
done:
(i) preparation and classification of an inventory of interests;

(ii) selection of interests which should be legally protected;
(iii)demarcation of the limits of securing the interests so selected;
(iv)consideration of the means whereby laws might secure the interests, when these
have been acknowledged and delimited; and
(v) evolution of the principles of valuation of interests.
From this, Roscoe Pound developed his famous theory of law as social engjneering. The
aim of social engineering is to build as efficient a structure of society as possible, which
requires the satisfaction of the maximum wants with least friction and waste. It involves
the balancing of competing interests. Pound defined interests as 'claims or wants or
desires or expectations which men assert de facto, about which the law must do
something if organised societies are to endure'.
Pound considered the task of the jurist very important. To classify and elaborate on the
interests protected by law, and thus to assist the courts is the task of the jurist. Pound
prepared an inventory of interests, classifying them into individual, public, and social
interests. We will now examine the meaning and components of these three classes of
interests.
Individual Interests
They are claims, demands or desires involved in, and looked at from the standpoint of the
individual life. They concern the following:
Personality: Personality includes interests in (i) the physical person; (ii) freedom of will;
(iii) honour and reputation; (iv) privacy; and (v) belief and opinion.
L
97
^ Lectures in Jurisprudence
Domestic relations: Domestic relations include (i) parents; (ii) children; (iii) husband;
and (iv) wife. Pound made a distinction between interests of individuals in domestic
relations, and those of society in institutions such as family and marriage.
Interests of subsistence: These include interests of (i) property; (ii) freedom of industry
and contract; (iii) promised advantages; (iv) advantageous relations with others; (v)
freedom of association; and (vi) continuity of employment.
Public Interests
Pound defined public interests as 'the claims associated in title of a politically' organised
society; as one might say for convenience, the claims of the state, political organisation
of society'. The interests of the state as a juristic person include:
(i) the integrity, freedom of action and honour of the state's personality ;
(ii) claims of the politically organised society as a corporation to property acquired
and held for corporate purposes; and "
(iii) the interests of the state as guardian of social interests.
Social Interests
They are claims, demands or desires, thought in terms of social life and generalised as
claims of the social group. They include:
Social interest in the general society: The claim, want or demand, asserted in title of
social life in civilised society and through the social group, to be secured against those
forms of action and courses of conduct which threaten its existence. It includes (i)
general safety; (ii) general health; (iii) peace and order; (iv) security of acquisition; and
(v) security of transactions.
Social interest in the security of social institutions: The claim, want or demand '
involved in life in a civilised society that its fundamental institutions be . secure from
those forms of action and courses of conduct which threaten their existence or impair
their efficient functioning. It includes (i) domestic institutions; (ii) religious institutions;
(iii) political institutions; and (iv) economic institutions. j
Social interest in general morals: The claim, want or demand involved in social life in
civilised society to be secured against acts or courses of conduct offensive to the moral
sentiments of the general body of individuals therein for the time being. It includes laws
dealing with prostitution, drunkenness, gambling etc.
98
J
Social interest in the conservation of social resources: Pound stressed on the principle
that want or demand involved in civilised society should not lead to a situation where the
goods of existence are wasted; that where all human wants may not be satisfied, in view
of infinite individual desires and limited natural means of satisfying them, the latter
should be made to go as far as possible; and to that end, the acts or courses of conduct
which tend needlessly to impair these goods should be restrained. This includes
conservation of natural and human resources. Pound's views remind us of the present day
emphasis on sustainable development. It is also appropriate to remember Mahatma
Gandhi's observation that the nature has enough to satisfy human needs; but not enough
to satisfy human greed.
Social interest in general progress: The claims or demands involved in a civilised

society are such that the development of human power and control over nature for the
satisfaction of human wants moves forward. The demand that social engineering be
increasingly and continuously improved, and the self assertion of social groups towards
higher and more complete development of human powers are an indication of social
interests in general progress. Pound divides these interests into three categories, viz:
(i) Economic progress, which includes freedom to use and sell property, free trade,
free industry, and encouragement of inventions by grant of patents.
(ii) Political progress, which includes free speech and free association.
(iii) Cultural progress, which includes free science, free letters, free art, promotion of
education, and learning and aesthetics.
Social interest in individual life: The claim or demand involved in civilised society that
each individual be able to live a life, according to the standards of the society. It includes
(i) self assertion; (ii) opportunity; and (iii) conditions of life.
After the detailed enumeration of interests, Pound proceeds to examine the means by
which the interests are secured. He considered the device of legal power and the
attribution of claims, duties, liberties, powers and immunities as one of the most
important means by which the interests are secured. Then there is the remedial
machinery which consists of punishment, redress, and prevention in appropriate cases.
A very important question that arises in relation to Pound's social engineering theory is
as to how the interests are to be balanced. According to Pound, law is really an attempt to
reconcile, harmonise, or compromise overlapping or conflicting interests. This is done
either 'through securing them directly and immediately, or through securing certain
individual interests... so as to give effect to the greatest number of interests, or to the
99
interests that weigh most in our civilization, with the least sacrifice of other interests.'
Pound is of the view that interests should be weighed on the same plane. However, it is
not possible to balance individual interests against social interests. Therefore, individual
interests must be transformed to a social plane. For instance, although freedom of the
person is an individual interest, we can transfer this interest to a social plane as an interest
of the society that its members should be free. The balancing process involves problems
of 'eliminating friction and precluding waste in human enjoyment of the goods of
existence.' This is what Pound calls the 'social engineering' function of law. In this
context he makes a reference to the following classification of the institutions of law,
which play a role in the process of balancing.
(i) Rules, which are precepts attaching definite consequences to definite factual
situations;
(ii) Principles, which are authoritative starting points for legal reasoning in cases not
covered by rules;
(iii) Conceptions, which are categories to which types or classes of transactions, or
situations can be referred and on the basis of which a set of rules, principles or
standards becomes applicable;
(iv) Doctrines, which are the union of rules, principles and conceptions with regard to
particular situations or types of cases in logically independent schemes so that
reasoning may proceed on the basis of the scheme and its logical implications;
(v) standards, which prescribe the limits of permissible conduct that is to be applied
according to the circumstances of each case.
Claims for the recognition of new interests will emerge as society advances and changes.
For this purpose, Pound enumerates a set of underlying values, which he calls 'the jural
postulates' of a civilized society. The citizens of a civilized society are entitled to assume
the following postulates:
(i) Others will commit no intentional aggression upon them;

(ii) They may control for beneficial purposes what they have discovered, created,
and acquired;
(iii) Promises will be carried out in good faith and unreasonable and unjust
enrichment will be prevented as far as possible;
(iv) Persons engaged in a course of conduct will act with due care so as not to create
unreasonable risk of injury to others;
(v) Citizens shall be entitled to ensure that the burdens incident to social life shall be
borne by society;
(vi) A standard human life shall be assured to every citizen.
100
\
Approaches to Law III: Sociological Approach /_>>>^"
The above mentioned postulates will allow legislators to conjîd^ythe modification of

values and the enunciation of new ones so as to^^fefm with basic general values. Ov<
Roscoe Pound's contribution to sociological jurisprudence is sXjjJât that many people
call him the father of modern sociological jurispruden< That does not mean that his views
have been accepted without any criticism. His social engineering theory has been
criticised as misleading. Critics point out that it is not possible to work out in detail any
plan of a finished product in the case of a law vis-a-vis the method of engineering. The
reason is that the society is constantly developing and changing, and the pressures behind
the interests are changing too. Pound assumed that de facto claims pre-exist laws.
However, the truth is that some claims are subsequent to law. Pound's obsession with
interests has also been criticised because more than interests, it is the yardstick with
reference to which they are measured that matters. Very often the choice between
competing ideals is a matter of decision, not of balancing. The whole idea of balancing is
subordinate to the ideal that is in view. Interests need be considered as and when they
arise in disputes. So when we look at it from the realist's point of view (which we will
discuss in our next lecture) what is important is the way in which they are viewed and
evaluated by a particular judge. Commentators have also pointed out that Pound's
catalogue of interests is only the product of personal opinion. Important questions which
confront a legal system, such as how to balance the interests of minorities which are
irreconcilable with those of the majority, do not find an answer in Pound's theory. Finally,
it may be said that Pound devoted too much attention to interests, but too little attention
to ideals of guidance, which provide the criteria for evaluating interests.
v..
Criteria to Test Validity of Laws
Let us now turn to the fourth type of inquiry which attempts to find some
criteria to test the validity of laws. We will do this with reference to the
writings of Duguit, who made a bold attempt to develop a new approach to
traditional concept of state, sovereignty, and laws from the perspective of
society. Duguit is today mainly known for his 'Principle of Social
Solidarity'. According to him, social interdependence is an inescapable fact
of human existence. All organisations should be directed towards smoother
and fuller co-operation between people.
Duguit advanced the notion that all institutions are to be judged according
to how they contribute towards social solidarity. The state can
101
1
_ ,
claim no special position or privilege. Going one step further, Duguit maintained that
when the state ceases to further the cause of social solidarity, there is a duty to revolt
against it.
The doctrine of sovereignty, according to Duguit, has become meaningless. It fails to
explain the kind of authority that governors now wield over the governed. A better way
of looking at it is that all powers and organisations are subject to the test of social
solidarity. Their existence is functional, and does not extend beyond the function they
perform in society. Two important implications follow from Duguit's statements, viz, (i)
the state is not indispensable; and (ii) the state is useful, but its power is limited by social
solidarity. Duguit also held that social solidarity is the criterion of validity of laws, and
that public opinion is the expression of social solidarity. However, he does not provide
satisfactory answers to questions as to what is public opinion, and by what means is it
discoverable.
There are many unconventional elements in Duguit's theory of law. He denied
personality to the state and public corporations, and also rejected the distinction between
public and private law, using the social solidarity principle. What may appear to be very
startling is that Duguit denied the existence of rights. He said that the focal point of law
lies in duty, which is the means of guaranteeing that everyone fulfils his part in the
furtherance of social solidarity. In his words, 'The only right any man can possess is the
right [to] always do his duty.' Duguit expressed his disapproval of natural law by
banishing all ethical elements from law.
Duguit's theory of social solidarity has been interpreted by different people in different
ways to suit their convenience. For instance, the Soviet jurists used this theory as a
justification to exclude individual rights and separation of powers. Duguit opposed the
personification of the state because it could lead to totalitarianism. It may be an irony of
fate that this theory was used by Nazi jurists to strengthen the authority of the state.
Duguit's emphasis on the minimisation of conflict within society was used as a
justification for the suppression of trade unions and strikes.
The sociological approach is a synthesis between natural and positive law theories.
Sociological jurists are concerned with laws in their social context. They inquire into the
circumstances in which laws arise, and are differentiated from morality and the like.
Their field of inquiry also extends to questions as to how the administration of laws is
related to justice, and what influences are mutually exerted by laws and other types of
social phenomenon and changes in fhem. The greatest practical contribution of
sociological approaches to law has been its thrust on fieldwork in examining the
interaction between law and the social milieu.
102
Sociological Jurisprudence and Sociology of Law
It is also necessary, before we end this lecture, to draw a line of distinction between
sociological jurisprudence and sociology of law, though this distinction has become
blurred, and is not very significant now. We can understand the nature and scope of
sociological jurisprudence from the following definition of Julius Stone, 'Sociological
jurisprudence, and any study which seeks to bring social science knowledge to legal
problems, address themselves to the influence of social, economic, psychological and
other non-legal factors on the process in the concrete content of legal propositions.'
Sociology of law, on the other hand, attempts to create the science of social life as a
whole, and to cover a great part of general sociology and political science. The emphasis
is on society, and law is studied as a mere manifestation. Gurvitch, in his pioneering
work3 defines the sociology of law as follows:
The sociology of law is that part of sociology which studies the full social reality
of law, beginning with its tangible and externally observable expressions, in
effective collective behaviours and in the material basis. Sociology of law
interprets these behaviours and material manifestations of law according to the
internal meanings which, while inspiring and penetrating them, are at the same
time in part transformed by them.
Gurvitch also explains that the task of sociology of law, which is also called legal
sociology, is to give the jurist an objective description of the social reality of law valid in
a given social milieu. The philosophy of law gives him a criterion of jural values, aiding
them in their attempts to reach concrete goals. Sociology of law may be compared to
different branches of sociology, such as industrial, political, and educational sociology.
The main interest of a legal sociologist is to analyse the society, and to fit legal
administration as a whole into the concept of society.
Summing up his discussion on sociology of law, Roger Cotterrell, a modern jurist,
draws our attention to the following features of the sociology of law:4
(i) Sociology of law reveals that law does not provide the autonomous structure of
understanding the coherent system of values, or the securely independent
discourse of legality that is often associated with it.
(ii) Sociology of law also reveals the contradictions and limitations of
3 Sociology of Law, 1947.

4 The Sociology of Law: An Introduction, second edn, 1992, pp 312-313.
103
the mediation of power through law. It reveals the ambivalent relationships

between law as governmental instrument, and law as a form of knowledge or
reason whose integrity supports the legitimating ideal of the rule of law.
Sociology of law's most effective strategy will be its permanent search for broadened
perspectives. This involves the effort to portray and interpret the localized, yet very
powerful knowledge and practices of the professional and political world of state law, in
ways that enable them to be confronted by understandings of power, morality, and social
order arising in the experiences of ordinary citizens in many situations and conditions of
life.
The present trend is to use the term 'socio-legal studies' which embraces both
sociological jurisprudence and sociology of law. Socio-legal studies have their emphasis
on the importance of placing law in its social context, of using social science research
methods, and of recognising that many traditional jurisprudential questions are empirical
in nature, and not purely conceptual. The growing value of empirical research on legal
problems all over the world is ample testimony to the influence of sociological approach
to law.
104
Lecture 9
Theories of Law I: Natural Law
Let us begin our discussion on natural law theory with an illustration. Suppose your law
school is selecting a team to represent the institution at a national moot court competition.
While you are preparing to participate in the competition, the director of the law school
announces that only the wards of advocates are eligible to enter the competition. He
justifies this decision on the ground that he wants to limit the number of participants, and
the children of advocates will have better access to legal materials and will get better
guidance and, therefore, they can perform well. He is also of the view that he is
competent to make any rule for conducting the competition. The question which arises is
that if you are not the ward of a lawyer, how will you feel about this rule? You may agree
that the director is competent to make rules to regulate the competition. You may also
agree that there is some truth in his justification for the rule. Yet you may ftel that there is
something unfair or unjust in the rule, which excludes you from the competition merely
because you are not the ward of a lawyer. Your feeling that such a rule is unjust is
actually the recognition of the principle that the law must possess something beyond
validity. The content of law must satisfy a higher test of fairness. The belief in a higher
standard evaluate ordinary law is the basis of the natural law theory. Natural law theory
began with the philosophers of ancient Greece who itgarded law as being closely related
to justice and ethics. Nature is conceived as a relation or an order of things. Man as a part
of nature is endowed with ability of active reasoning; and it distinguishes him from all
other creatures of nature. Law, according to the Greek philosophers, consists of rules in
accordance with reason and nature. Man's power of reason enables lira to suppress
instinct, and act against its dictates. It inspires a sense of podand evil. It induces conduct,
which is consistent with good, and torbids evil conduct. The criteria, which distinguish
good from evil, right *3uct from wrong conduct, are the instinctive laws of nature.
Socrates
Lectures in Jurisprudence ;
declared such laws to be immutable principles. Plato made a further refinement by

stating that the goodness of laws must be measured by thct coi\tt\but\ori to socvaV
Katmony, because a\\ md'w'\dua\ interest mustbi subject to social welfare. Aristotle
named a law inspired by reason as natursi law, and declared that natural law is inherent
in the nature of man.
Natural law theory, in its original formulation, believes in the existetK of objective
moral principles which depend on the essential nature of tit universe, and which can be
discovered by natural reason. Ordinary hums law is only truly law insofar as it conforms
to these principles. fEre principles of justice and morality constitute the natural law,
which is valid, as the rules for human conduct are logically connected with the trurii
concerning human nature. This connection enables us to ascertain the principles of
natural law by reason and common sense. Natural law this differs from the rules of
ordinary human law (positive law), which can It found only by reference to legal
sources such as Constitution, legislation, precedent etc. A question may now arise in
your mind on the status of positive law, which may be contrary to natural law. Natural
law theory does not accept human law at variance with natural law as law, but consider!
it merely as an abuse or violation of law.
Natural law theory has passed through several stages and versions. Hit Romans
developed the conception of natural law as universal law. Thej accepted the superiority of
natural law (jus naturale) as higher law. Cicero said, 'It is not allowable to alter this law,
nor deviate from it, nor can it Ik abrogated, nor can we be released from this law either
by the senate or \ the people'. Inspired by natural law, Romans tried to develop a code
called Jus gentium. The Jus gentium contained elements of a refined legal system, and
subsequently became the foundation of many legal systems in the world. *
It is curious that the influence of natural law did not result in tit abolition of slavery,
which is clearly a negation of the principles of equality in natural law. The principles of
natural law were distorted to justify sud practices. However, the injustices inherent in
such practices were projected by some proponents of natural law, and their influence
was instrumental in enlarging opportunities of slaves to regain freedom.
In the medieval period we find the Christian church, with the Pope as its head,
asserting its power and claiming supremacy over the political heads of state. The church
asserted that the Christian teaching was the embodiment of the supreme law. St
Augustine, who was a leading exponent of this view, went to the extent of stating that
King-made lai may be disregarded, if it was contrary to a law of God. The church could
interfere with, and override the state. It implied that the ultimate interpreter
106
Theories ofLaw I: Natural Law
ther :heir it be tural
tence .f the iman These valid, truths n the v thus :an be lation, itus of theory nsiders
us. The v. They Cicero an it be re or by le called system, s in the
It in the equality tify such projected rumental
: Pope as political I was the i leading made law rch could nterpreter
i
i
of the law was the church, and not the emperor. This naturally led to a struggle for power
between the church and the state, and both invoked natural law to support their
assertions. When we trace the history of natural law, the striking feature of this period is
that the superiority of natural law was accepted both by the church and the state.
Our discussion of natural law will remain incomplete if we do not consider the
contribution of St Thomas Aquinas. He is considered to be the proponent of the
scholastic theory of law. St Thomas Aquinas defined law as 'an ordinance of reason for
the common good made by Him who has the care of the community and promulgated'.
According to him, divine law is supreme, but the whole of it is not accessible to men.
Such part of it as is intelligible to men reveals itself through eternal law. Natural law is a
part of divine law, and reveals itself in natural reason. It is from the principles of
tKFeternal law as revealedîrrTraruraT law that all human law derives. Lex divina, the
positive law enacted by the God for the mankind in the scripture, stands in a similar
relation to human law as eternal law does to natural law. All laws enacted by a human
authority (positive law) must be within these limits. Positive law is valid only so far as it
is compatible with natural law, and thus with eternal law.
The theory of natural law developed by St Thomas Aquinas differs with its earlier
version by St Augustine in two important respects. The state, according to St Thomas
Aquinas, is a natural institution born from elementary social needs of men, not an evil as
St Augustine had thought. This view seems to be influenced by Aristotle. St Thomas
Aquinas also recognises human laws as variable according to time and circumstances.
Their purpose is to be useful to man, to further the common wealth, without at the same
time being a part of divine and natural law. The state Vias a legitimate function and
sphere, to regulate social life justly, ie, for the common good within the limits of the
authority of the law-giver. State laws must not be tyrannical. When a law is unjust either
in respect of the end or the author or the form, such law is unjust and, therefore, a
contradiction to natural and divine law.
Another significant difference in the views of the earlier theorists St Augustine and St
Thomas Aquinas relates to the right of property. The position of St Thomas in this regard
is
between the earlier unconditional rejection of the right, and the later elevation of the
right as a natural right by Locke and others. The philosophical basis of right of property,
according to St Thomas Aquinas, is that the use of things must not be for one's own
benefit, but for the common good. He considers the right to the acquisition of property
as one of the matters left by natural law to the state as a proper agency for the regulation
of social life. However, it is important to remember
107
that St Thomas did not consider the right of private property as a principle of natural law.
In the subsequent reformulation of scholastic philosophy by the Catholic Church in the
later half of the nineteenth century, the right of private property has been included among
the natural, God-given rights.
The influence of the natural law theory is evident in the origin and development of
international law. Hugo Grotius, who is often called the father of international law,
asserted that man always desired to live in peacefiil society with opportunities to display
his intellect to his fellowmen, and to be appreciated by them. This desire for society and
peace compels him to observe certain rules of conduct inspired by intelligent reason,
which constitutes the rudiments of natural law. The most important among such rules of
conduct are the obligation to fulfill promises, the respect for other's property, the duty to
restore gain made at another's expense, and the liability to repair the damage caused by
one's fault. These rules are common to mankind and are applied to rulers also as a part of
mankind. The rulers also must have a society a society of nations. This is how Grotius
paved the way for the system of international law. He said that the law of nations is
originally not different from the law of nature applied to nations.
Friedmann expresses his hope that a world community will evolve on the basis of the
principles, which Grotius called natural law, and modem jurists called general principles
of law. He identifies four such principles. They are:
(i) Clausula rebus sic stantibus,ie, agreements must accord with rjEjl affairs. This is
a principle recognised by most legal systems in the world, and is also recognised
in international relations.
(ii) The principle of estoppel under which a person cannot deny what he has
impressed on others by his own conduct. This principle applies to individuals as
well as states. In the present era of globalisation and liberalisation, foreign direct
investment takes place on the basis of promises given by various states. The
principle of estoppel becomes relevant in resolving disputes.
(iii) The principle of unjust enrichment which insists that no one should enrich
himself at the expense of another without lawful cause.
(iv) The principle of abuse of right which expresses a social duty in the exercise of
private right. This principle justifies restrictions on the exercise of a right or even
its nullification in the larger interest of society.
The developments during the seventeenth and eighteenth centuries brought into
prominence the secular dimension of natural law. The principles of natural law were used
in the struggle to liberate people from political
108
tyranny. The influence of natural law in a greater or lesser degree could be seen in the
English Revolution of 1688, the American Declaration of Independence of 1776, and the
French Revolution of 1789. Political absolutism looked for justifications of its claim to
unlimited authority over the people. The idea that legal authority comes from the people
gained increasing acceptance in society. Del Vecchio said, 'Law is an essential foundation
for the life of man in society and it is based on the needs of man as a reasonable being
and not on the arbitrary whim of a ruler.'
The major political thinkers of this period tried to interpret natural law in their own
way. Some of them went to the extent of denying natural law altogether. One of the most
influential theories of this period was that of social contract. This theory stated that from
a state of nature in which they have no law, no order and no government, men have
passed to a state of society by means of a contract in which they undertook to respect
each other, and live in peace. Later, a second part is added to a social contract by which
the people undertook to obey the government, which they themselves have chosen. All
protagonists of social contract theory find the source of political power in the people and
are unanimously opposed to the deduction of political authority from above, whether
from divine law, or the grace of God.
We will briefly examine how the theories of the leading thinkers of that period treated
natural law. Hobbes shifted the emphasis from natural law as an objective order to natural
right as a sociological claim based on the nature of the man. Natural law is not a set of
ethical precepts, but laws of human conduct based on observation and appreciation of
human nature. The chief principle of natural law is the natural right of self-preservation.
Hobbes emphatically rejected any contractual or quasi-contractual right by which
subjects could demand the fulfillment of certain obligations by the ruler. There is only
one condition attached to the absolute power of the ruler, viz, that he can govern and keep
order. From this, Hobbes deduced the following propositions:
(i) Every law is dependent upon sanctions and is commanded and enforced by a
sovereign.
(ii) There is no society as distinct from the state. All social and legal authority is
concentrated in the sovereign.
(iii) The church is definitely and unconditionally subordinated to the state.
(iv)The sovereign is in no way instituted and legitimated by superior sanction,
whether divine right or natural law. It is purely and solely a utilitarian creation of
individuals who institute him in order to prevent them from destroying each other.
109
ft
1
While Hobbes conceived natural law as shorn of all power, Locke, his contemporary,
made natural law superior and immutable by positive law. Locke was a great
individualist, and he placed individual at the centre and invested him with inalienable
natural rights, including a right of private property. He used the notion of social contract,
unlike Hobbes, to justify government by majority and to show that governments held
their power in trust, with the duty to preserve the individual rights whose protection the
individuals have entrusted to them. As long as it is faithful to this pledge, a government
cannot be deprived of its power. Rousseau also shared most of these views. He
considered freedom and equality as natural rights, and believed that the state derives its
existence and justification solely from f the guarantee of freedom and equality.
Montesquieu, another great thinker f of this period, accepted that there is a standard of
absolute justice prior to I positive law. He added that law, although vaguely based on
some principles \ of natural law, must be influenced by
environment and conditions, such as climate, soil, religion, customs, conventions etc.
Hume destroyed the theoretical basis of natural law. According to him, reason in itself
dictates no way of acting. It can only show what means will lead to a desired end. The
guides of human action itself are certain values inspired by human motives and
propensities to actions. Reason is and ought only to be the slave of the passions, and can
never pretend to any other office than to serve and obey them. It is merely a matter of
conventions based on utility, if human actions followed certain patterns. Hume was
greatly influenced by Bentham who regarded natural law as nothing, but a phrase and
natural rights as 'nonsense on stilts'. According to him, natural law reasoning resulted
from confusing scientific laws with moral and legal | laws. Scientific law describes what
generally has occurred; moral or legal laws prescribe how men should behave?)
Pursuant to the influence of these theories and also the acceptance of parliamentary
sovereignty, natural law suffered a setback in the nineteenth century England. However,
the influence of natural law in the development of English law cannot be overlooked.
The idea of rule of law with its emphasis on supremacy of law, the principles of equity,
justice and good conscience, natural justice etc, are inspired by natural law. Natural law
also provided a corrective to reduce the severity and rigidity of the general law. The
influence of natural law in the process of law-making in all Common Law countries,
especially in providing guiding principles in law-making such as reasonableness, is
indeed remarkable.
The decline of natural law in the nineteenth century was also due to the growing
influence of the positivist theory, which considered state law alone as law. The
positivist movement relegated natural law to the realm of morals
110 I
and religion. We will discuss the various versions of legal positivism in the next lecture.
Influence of Natural Law
Let us now briefly examine the influence of natural law on different legal systems.
United States of America
The influence of natural law is clearly visible in the Constitution of USA, and the
development of judicial review of any legislative and administrative act in the light of
constitutionally entrenched rights. The Constitution of USA has been influenced by the
theory of inalienable natural rights. The Supreme Court's interpretation of the due process
clause in the Constitution strengthens the belief in higher principles of law, which cannot
be taken away by positive law. The Supreme Court of USA also elevated private property
to a fundamental right. State interference with the right was justified by the doctrine of
eminent domain, which requires that such interference must be only for public purposes,
and for adequate compensation. The court restricted the state's power to impose taxes for
public purposes, and assumed authority to determine what public purposes were. An
analysis of American Supreme Court's decisions over a period of more than two centuries
also illustrates how changing ideas, pressures and personalities may influence the scale of
legal values, while the basic constitutional provisions remain unchanged. In the year
1860, the Supreme Court upheld the validity of racial segregation in schools in Plessy v
Furguson. However, in 1954 under the influence of a totally changed social environment,
the Supreme Court had to declare segregation as a violation of equality, and hence
unconstitutional in Brown v Board of Education.2 The court's faith in natural law
remained unchanged, but its attitude vacillated from down right condemnation to
wholehearted support of social and economic legislation. The continuing conflicts of
values and interests in social life show that the guarantees of fundamental rights in a
Constitution cannot eliminate them. Conflicting principles like private enterprise and
social control, equality and discrimination, tolerance and intolerance will continue to
fight for legal recognition. It is interesting to note that in such ?i$\xs. both sides invoke
natural law principles to support their position.
1163 US 537 (1896).

2347 US 483 (1954).
Ill
We also find that where the fight is in terms of fundamental rights

embodied in a written Constitution as in the USA, the appeal to
natural law theory is more direct and powerful than in a system
where parliamentary legislation is supreme as in England.
England
The legislative supremacy of Parliament is one of the basic

principles of constitutional law in England. This principle rules out
any judicial review of an Act of Parliament. As far as matters
covered by statutes are concerned, the courts are bound to accept
them as such, and cannot invoke any higher principles of natural
law or Constitution as of overriding importance. This does not
mean that the principles of natural law are totally irrelevant in
England. In matters not covered by a statute, English courts have
relied on natural law. For instance, in Somersell's case,3 Lord
Mansfield declared slavery to be 'an institution so odious to
natural law that the English courts would not countenance it'.
Natural law is also invoked by English courts to test the
reasonableness of a custom, to test the acceptability of a foreign
law, and to control administrative and quasi-judicial functions of
public authorities by writs of certiorari and prohibition. The two
principles of natural justice viz, (i) no person shall be a judge in
his own cause; and (ii) no one shall be condemned without being
given an opportunity of being heard, are also the contributions of
natural law. The doctrines of quasi- contract and unjust enrichment
also owe their origin to principles of natural law.
The enactment of the Human Rights Act in the year 1998 is a
significant development. It empowers the courts to determine
whether the provisions of any Act of Parliament are compatible
with the provisions of the Human Rights Act, and also to make a
declaration of incompatibility if the provisions are found
incompatible. This is recognition of some higher principles of law
with reference to which the ordinary law must be evaluated.
Natural law will have a more influential role to play in England
because of the dilution of the doctrine of parliamentary
sovereignty, and increasing importance of judicial review.
India
The influence of natural law on Indian system can be analysed

with reference to the ancient period, the British period, and the
post-independence period.
If
3 (1772) 20StT 1.
112
i
We find the essence of natural law in the ancient Indian concept of Dharma
(righteousness). Dharma was neither a cult nor a code in the western sense, but the right
law of life and true ideal of living and social order. It was not static, rigid and absolute,
but relative, dynamic and evolving, always changing according to the needs and
development of society. All good habits like speaking the truth, self-restraint,
benevolence to neighbours, charity, kindness etc, are considered virtues. All malpractices
like adultery, seduction, sorcery, witchcraft and gambling are considered as evils and
denounced. The Upanishads emphasise knowledge as an essential means of self-
realisation, and insist on right living. The law of Dharma in ancient India made a bold
attempt of building an organised social life wherein each individual realised his goals
within the parameters of social norms and morality. It signified the moral law, 'the law on
which our life is founded, the eternal law of right and reason, that which makes for
righteousness both within us and without'. Thus, we can see that the idea of law as the
dictate of reason found in western legal thought was present in Indian philosophical, and
legal tradition centuries ago.
The concept of Dharma was enlarged through various interpretations. It came to mean
'morally proper, ethical duty, religious virtue, ideal, absolute truth, universal law or
principle, divine justice, conventional code of customs and tradition'. Mahabharat
describes Dharma as being ordained for the advancement and growth of all creatures, for
restricting creatures from injuring one another, and to uphold all creatures. It is not a
simple and unitary concept, but manifold and complex and is concerned with the
behaviour of the state and its subjects, castes, families, groups and ordering of life,
charity, expediency, salvation, and duties of human beings in general. In short, it infused
an ideal of higher law by which the ruler and the ruled were equally bound, and it was the
modern indicator to distinguish between good and evil, right and wrong, just and unjust.
The belief in the inalienable, immutable and everlasting natural law is seen in the concept
of Sanatan Dharma. It may appear to be paradoxical that along with these high ideals of
Dharma, many social practices, which are a negation of human dignity, like the caste
system, untouchability, sati pratha etc, also prevailed in India.
The social reformers and leaders of Indian national movement also drew inspiration
from the values and ideals of ancient philosophy. The existence of a higher law above the
positive law of the state was recognised. Mahatma Gandhi justified disobedience to the
law imposed by colonial rulers 'not for want of respect for lawful authority but in
obedience of higher law of our beingthe voice of conscience'.
The Muslim rulers in India introduced Quaranic teachings, but they were confined only
to the Muslim community. The Hindu concept of
113
I
Dharma remained uninfluenced and untouched. However, the advent of British rule and
the reception of English law in India had a great impact on Indian legal system. The
personal laws of Hindus and Muslims were left untouched, but in other fields of law
principles of English law and jurisprudence were introduced through codification of law.
This resulted j in greater importance to positive law, but natural law principles survived
through the application of the western principles of justice, equity and good conscience,
which guided the judges.
The attainment of independence and subsequent adoption of the Constitution gave an
opportunity to the national leaders to incorporate their cherished ideals in the basic law.
The Constitution guaranteed Fundamental Rights and declared that any law, which
contravened a Fundamental Right, was invalid. The larger policy goals were enumerated
under the Directive Principles of State Policy in Pt IV of the Constitution. The influence
of natural law on the Constitution-makers is quite evident from the fact that they have
placed the natural rights and fundamental freedoms beyond the reach of ordinary
legislation. We see the continuing influence of natural law on the judiciary in the
interpretation of the Fundamental Rights with reference to certain higher principles and
values. We can illustrate this with reference to art 21 of the Constitution of India. Article
21 says, 'No person shall be deprived of his life or personal liberty, except according to
procedure established by law.' The word 'life' in this article was given an enlarged
meaning through dynamic judicial interpretation. It was held to mean a right to live with
human dignity which included so many concomitant rights such as the right to food, right
to water, right to clean environment, right to shelter, right to health, and right to
education. The phrase 'procedure established by law', which was interpreted as any
procedure established by an Act of the legislature during the initial years of the
Constitution, was later interpreted to mean reasonable and fair procedure. The judicial
creativity, which we find in the interpretation of art 21 is undoubtedly influenced and
inspired by natural law.
The Supreme Court has also imposed limitations on the power of Parliament to amend
the Constitution. The makers of the Constitution have not expressly provided any such
limitation in the Constitution. However, by laying down that the basic structure of the
Constitution cannot be amended or abridged in exercise of the amending power, the
Supreme Court has proclaimed that there are some immutable values and principles
underlying the Constitution. This is nothing, but a declaration of faith in natural law,
which must remain superior to positive law.
114
Revival of Natural Law
of the rporate anteed ened a lerated ution. vident lental nuing if the dues, ndia. >erty, this
icial nity >od, ilth, lich ure :an rhe ral
of >n ti. n
es
| Legal positivism and analytical jurisprudence, which posed a serious challenge to
natural law, failed to offer satisfactory solutions to the complex problems confronting
legal systems across the world in the twentieth century.
, The certainty and stability of the law, which were projected as the greatest virtues by
legal positivists and the logical methods popularised by analytical jurisprudence, were
found to be inadequate. Decline in the social and economic stability, expansion in
government activity, growing social inequalities etc, again led to a search for an ideal
of justice beyond positive law. The brutal atrocities in Germany perpetrated under Nazi
laws also led to a rethinking about natural law. Radbruch, a German jurist, suggested
that any law, which violated elementary justice to an intolerable extent, was a lawless
law, and had no claim to obedience. Accepting this view, the Supreme Court of West
Germany dismissed the defence of compulsion by Nazi laws in the trial of Nazi
criminals(jThe court observed that laws which altogether deny the value, and dignity
of human personality, would not be regarded as law.V
The proposition that a law without justice is no law and, therefore, it need not be
obeyed raises very complicated questions. For one thing it undermines the very
authority of positive law, and its claim to obedience. The question is when is a person
entitled to disobey the law? It is also pertinent to ask, whether it is justifiable to
penalise a person for obeying the law. Radbruch was aware of the dangerous
possibilities of his proposition, and cautioned that the obedience to positive law can be
held illegal only in extreme cases by a superior court.
Several attempts have been made to reconcile the principles of natural law with the
practical expediency of positive law. One such attempt is by Srammler who advances
the idea of natural law with a varying content. The basic principles remain the same,
but their detailed applications would depend on the special circumstances of each
society. However, the critics of Stammler point out that if we allow the content of
natural law to vary according to social differences, we would abandon all hopes of
objectivity in ethics or law.
Finnis is a modern jurist, who has attempted a restatement of natural law. According
to him, there are human goods that can be secured only through the institution of human
law. He describes human goods as forms of human flourishing or basic values of human
existence. The most important among such human goods are: (i) knowledge; (ii) life,
which includes physical and mental health and freedom from pain and injury; (iii) play;
(iv) aesthetic experience; (v) social ability or friendship; (vi) practical
115
IS
reasonableness; and (vii) religion. Every human law must be evaluated in terms of how
it secures these basic values of human existence. To the question, whether a person is
entitled to disobey an unjust law, his answer is that there may be an obligation to
comply with an unjust law to the extent that such compliance is necessary to avoid
bringing the law as a whole into contempt. Fuller, who accepts a necessary connection
between law and morality does not agree with the view that the rules of the legal system
must conform to any substantive requirements of morality, or to any external standard
He postulates the need for rules of law to comply with inner morality. In order to be
consistent with inner morality, laws must be: (i) general; (ii) published; (hi) prospective,
not retrospective-, (Vv) intelligible; (v) consistent; (vi) capable of being complied with;
(vii) endured without undue changes and (viii) applied in the administration of society.
Even though positivism is apparently an antithesis of natural law, HU Hart, a modern
jurist who is identified with analytical positivism, ha made an attempt to bring
positivism and natural law together. In his attempt to restate natural law from a semi-
sociological point of view, Hart admits that there are certain substantive rules, which
are essential if human beings are to live continuously together in close proximity. He
also concedes die ft natural necessity for certain minimum form of protection for
persons,! property and promises. Natural law contains the elementary principles, which
we must respect as long as men are what they are. These principles propose the setting
up of a viable society. However, Hart, who travels along the path of natural law up to
this point, refuses to accept that the validity of a legal norm depends on its conformity
with natural law principles. Ht does not give a clear answer to the question of the status
of law whicl flagrantly violates the minimum protection for persons property and
promises. A further question that arises is as to what, if any, is the rightd resistance to
such laws?
Finally, irrespective of whether one is a supporter of natural law thcort we cannot fail
to appreciate its role as an antidote to legal rigidity. It plan before us an ideal and
inspires us to change the rules of law from what tip are to what they ought to be. The
natural law theory also weakens J authority of unjust and immoral laws. Whatever be its
deficiencies, natu|M law theory will remain with us so long as there is a feeling of
disconur with justice based on positive law alone.
Theories of Law II: Legal Positivism
The emergence of positivism in philosophy is the result of a shift in emphasis from

metaphysical to empirical trends in theoretical philosophy. When thinking proceeds
on the basis of deductions from pre-conceived ideals, it is known as metaphysical;
when it proceeds on a study of facts and experiences it is termed as empirical or
positivistic. This is, of course, an oversimplified method of explaining the two terms.
However, it makes the fundamental difference between the two approaches clearer
to the reader.
The advancement in modern science based on fact-observations induced legal
thinkers to reject metaphysical pursuits in favour of fact-observations or experience
either on the techniques of law, or on its functions in social life. In general, legal
positivism shared with positivistic theory an aversion to metaphysical speculations,
and to the search for ultimate principles.
A notable feature of the positivist approach was its rejection of any attempt to
articulate an idea of law, transcending the empirical realities of existing legal
systems. Rejecting value considerations from the science of jurisprudence, it
declared that the task of jurisprudence is confined to analysis and dissection of
positive legal orders. Legal pîtiyists_accept only positive law as law,
and_pjosidye_law means those juridical jiorms which have been established by
the_authority of the state^
This is how Julius Moor, a Hungarian jurist, explains legal positivism: 'Legal
positivism is a view according to which law is produced by the ruling power in
society in a historical process. In this view, law is only that which
J^Xuiin^p^vverJias commanded, and any thing which it has commanded is law by
virtue of this very circumstance.' ~TR e positivist approach insists on a strict
separation of positive law from ethicsjtnd social policy, and idemiFIesûstTce with
legality, ie, observance of the rules laidjdown by the state. Positivism distinguishes
the question whether a rule is a legal rule from the question as to whether it is a just
Lectures in Jurisprudence |
rule. It seeks to define law not according to content, but according tt formal criteria,
which differentiates the legal rules from other rules.
Legal positivism is not a single creed, as you will understand when % proceed
further/A well- known classification of positivism into anali^ and pragmatic was made
by Yficdmann, Analytical positivism concentres Otl liw as it is, and not on law as it
ought to be. This separation eliminait all considerations of ideologies, and value
judgments. Law, according a analytical positivism, is the command of political authority
whose force i nor dependent on their moral virtues, historical origins, or sociologid
effects. Pragmatic positivism, on the other hand, treats law as a resultant of social facts
and social forces. This approach is very similar to the approad of some sociological
jurists^
Austin
John Austin, an influential jurist, is considered as the typical representative of analytical

positivism. His theory of law is usually called the imperative theory because of its
emphasis on command. We will now discuss in detail the imperative theory of Austin.
Austin defined law as the general command of a sovereign to his subjects obliging
them to a course of conduct. This definition obviously involves two elements, viz, (i)
command; (ii) sovereign. Let us analyse these two elements so that we can understand
Austin's theory better. |
Command 1
A command is the expression of a wish or desire to another that he shall do, or forbear
from doing, a particular act coupled with an intimation that, in case he does not comply
with it, he will be visited with certain evil consequences. What distinguishes a command
from other expressions oi\ wish is the evil consequences in case of non-compliance. The
essential components of a command are:
(i) dutythe obligation to comply with the command on pain of the evil attendant
on its noncompliance;
(ii) rightthe capacity to direct another to oblige in a particular act or forbear from
doing a particular act; arid
(iii) sanctionthe evil which would be the consequence of disobeying the command.
One question that arises in relation to sanction is whether rewards could also be
considered as sanction. Though some jurists, including Bentham and Locke, are in favour
of considering rewards also as sanction, Austin
118
ccording to rules.
d when we
0 analytical oncentrates
1 eliminates cording to )se force is aciological esultant of :approach
esentative nperative in detail
> subjects involves lese two

does not agree with this view. According to him, a reward cannot be more than a motive,
and may at best be an inducement to comply with a command. A reward is never capable
of enforcing a command against an unwilling person. It is the power of inflicting an evil
in case of noncompliance that gives to an expression of wish the nature of a command.
Further, rewards are for compliance, while sanctions are the consequence of non-
compliance. Austin does not consider rewards for compliance as consistent with the
dignity and authority of law.
In some cases, a transaction in contravention of a rule of law will be treated as a nullity
by the courts. Austin includes this as a real sanction, even though it only avoids benefits
or privileges, but does not inflict any evil.
Commands may be particular, or general. According to Austin, a particular command
enjoins or forbids a particular act specifically determined; whereas a general command
enjoins act or forbearance of a class or series forming a course of conduct. Some other
jurists, notably Blackstone and Markby, instead of looking at the act in question, look at
the person to whom the command is addressed in order to call it particular or general. A
command is general if it is addressed to a class of persons in general, and it is particular if
it is addressed to individuals only. However, Austin maintained that even if a command is
addressed only to one person, it will amount to a general command if it prescribes a
course of conduct to him.
ihall do, that, in un evil ;ions of\ ssential
pain of
Jar act
beying
could itham Austin

Sovereign
A sovereign is a person or body <af persons who wields supreme power in an

jndejjenden^political society. AuWin TaringT out thTÊr^ctefistics of a sovereign as
rollowsTTf a determinate human superior, not in the habit of obedience to a like superior,
receives habitual obedience from the bulk of a given society, that determinate superior is
sovereign in that society.' From this definition, two important aspects of sovereignty
emerge, namely:
(i) The bulk of the society shall pay habitual obedience to a determinate and
common superior. This is called the positive mark of sovereignty. Some call it
internal sovereignty because it relates to conditions within the state.
(ii) The superior shall not be in the habit of obedience to any other human superior.
This is called the negative mark of sovereignty, or external sovereignty.
A detailed analysis of Austin's writings reveals that he had bestowed great attention to
each and every word in his definition of the word 'sovereign'.
119
.A
We will examine them briefly now.
(i) The sovereign must receive obedience from the bulk of the sociec It indicates a
general measure of obedience. The presence of sora rebels in the society will not
affect the existence of the sovereign provided they are not strong enough to
resist the exercise of thi sovereigns power to any effective degree.
(ii) The obedience must be habitual or permanent. An occasional oi transient
obedience is not sufficient to constitute sovereignty. It is also necessary that
obedience must be free and voluntary, and not forced. Thus, the people who obey
the commands of an army which has occupied their territory, out of fear alone
cannot be treated as paying habitual obedience. Austin makes it clear that perfect
obedience is not necessary, and a general measure ofj obedience is sufficient to
make the law effective. On the causes of general obedience, whether it is out of
fear, habit or love of order, Austin said that it is for the social scientist to
investigate that question. Similarly, the question as to how the sovereign came to
enjoy obedience, whether through conquest, usurpation or election, is left to the
historian. Austin believed that the fact of obedience is enough for the legal
theorist.
(iii) The sovereign must be a superior in the society, implying that he must have the
power to compel obedience. This is how Austin explains superiority: 'The power
of affecting others with evil or pain and of forcing them, through fear of that evil,
to fashion their conduct according to one's wishes.' Austin identified two kinds of
superiority, viz, natural and positive. The superiority of God is natural, and his
commands may be called natural law. Positive superiority is derived by virtue of
position in society. The sovereign occupies the supreme position in a society, and
his commands are i called positive laws.
(iv) The superior must be a determinate person or body of persons. In other words, an
indeterminate body of persons cannot constitute a sovereign. The question is
when do we say that a body of persons is determinate? It is when we can
ascertain its members with precision. A body of persons is indeterminate if all the
persons who comprise it cannot be ascertained exactly. For instance, 'the
members of Indian Parliament' is a determinate body of persons; while 'the elite
of India' is indeterminate.
(v) The superior must be common to the entire society. No society can have two
independent sovereigns; but sovereignty may be vested in a body of two or more
persons jointly.
120
(vi) The superior must be independent of all imperative control from outside. The
governor of a colony may receive habitual obedience from the bulk of the society,
and thus satisfy the internal mark of sovereignty. However, he does not satisfy the
external mark of sovereignty because he is under the control of the colonial power.
(vii) The final condition is that the sovereign must preside over a political society.
Austin considered the number of persons comprising a society as crucial in
determining whether it is a political society. A father, whose commands are
habitually obeyed by the family, or a tribal chief whose commands are habitually
obeyed by a tribe, are not sovereign because they do not preside over a political
society.
The third important element in Austin's definition of law is sanction, which may be
considered as in-built in the idea of a command. It signifies a method of coercion to
enforce the command, not leaving the citizen free to decide whether to obey the law, but
to make him obey irrespective of whether he likes it. Sanction consists of the penalties
inflicted on the orders of the sovereign for the violation of law. If, for instance, the
sovereign decrees that no driver should exceed 60 km/hr on the highway, a person who
violates that command will be liable to pay fine or undergo imprisonment. Thus, the
sovereign power, namely the state, has given a command and enforced it by a sanction.
Theory of Sovereignty
From Austin's theory of law, a theory of sovereignty also emerges. Austin has identified
three essential characteristics of sovereignty. According to him, sovereign is:
(i) essential in every state;

(ii) indivisible; and
(iii)unlimited and illimitable in power.
Now we will examine each of these three characteristics.
Essentiality: Every political society or state must essentially have a sovereign. In the
absence of sovereignty, no society can have a political existence in itself. It will only be
a limb of another society which has sovereignty. Partly modifying this view, Salmond
observed that there may be semi-sovereign states in which sovereignty is shared. In a
federal state, sovereignty may be divided between the component states, and the federal
union. However, this view seems to be against the second attribute of sovereignty, viz
indivisibility.
121
Indivisibility: In a state, there can be only one sovereign in whom the totality of the
sovereign power must reside. In other words, sovereignty cannot be divided. The
sovereign may be a composite body. Here, sovereignty is vested in the body as a whole,
and taken as one legal person. No member of that body can claim to have any share of the
sovereignty.
Salmond, who did not consider indivisibility as an essential attribute of sovereignty,

considers the different organs of the state, viz, the legislature, the judiciary and the
executive, as capable of exercising sovereign power in their respective sphere of activity.
Following Salmond's argument, it may be argued, that the state legislatures in India are
sovereign in respect of matters enumerated in the State List in the Seventh Schedule of
the Constitution of India. Yet, how do we explain the power of the judiciary to strike
down a law enacted by a state legislature as unconstitutional? The Constitution of India
prescribes the procedure for the amendment of the Constitution in art 368. In addition, the
Supreme Court has laid down in Keshavananda Bharati v State of Kerala that the
Parliament cannot amend or abridge the basic structure of the Constitution. One wonders
then as to who is sovereign in respect of the amending power? Is it the Parliament, or the
Supreme Court? Or is the sovereign power shared by both?
Illimitability: Sovereignty, according to Austin, is unlimited and illimitable. It means that

the sovereign's powers are absolute, uncontrolled, illimitable, and infinite. Any limitation
on the extent of power in a person is incompatible with the existence of sovereignty in
him.
Applying this test, we may say that none of the organs of the state, namely, the
legislature, the executive, and the judiciary can lay any claim to sovereignty in India
because the powers of all these organs are limited, and controlled by the provisions of the
Constitution. Analysing the position in USA, which is substantially similar to the position
in India, the eminent political thinker, Harold Laski concluded that a 'peculiar historical
experience has devised the means of building a state in which the conception of
sovereignty is absent'. In India also, neither the legislature (including Parliament), nor the
executive, nor the judiciary is sovereign. The task of locating sovereignty in any
determinate body, therefore, fails. Some jurists have suggested that in India the
Constitution is sovereign. However, this does not accord with Austin's insistence that the
sovereign must be a determinate person or body of persons.
The power of a sovereign infact depends on and is measured by:
(i) the physical power at his command; and

(ii) the disposition of the people to obey his commands.
1 AIR 1973 SC 1461.
122
in whom the totality wereignty cannot be sovereignty is vested No member of that
ssential attribute of viz, the legislature, sovereign power in
:d, that the state enumerated in the of India. Yet, how i law enacted by a f India
prescribes 368. In addition, v State of Kerala structure of the in respect of the 3ourt? Or
is the
and illimitable, lied, illimitable, in a person is
is of the state, lay any claim us are limited, lg the position i, the eminent cal
experience onception of e (including The task of Some jurists lowever, this \ must be
a
dby:
The idea of illimitability necessarily fails, because neither of these two things can be
unlimited.
Another important question is whether it is desirable to have unlimited and illimitable
power in the sovereign. It is now recognised that every power, including even the power
of the state, must be limited, as otherwise despotism and tyranny will be the result. So,
Austin's concept of sovereignty militates against the concept of limited government.
DiceVj^wlw^sôjisiderecLas the authoritative exponent of the British Constitution,
attempted to resolve this dilemma by his theory that the people taken collectively as one
body are the political sovereign, and Parliament which has the supreme power to
promulgate and enforce laws is the legalsovereign. Even though, in theory, the
Parliament has legislative supremacy, it cannot go against the people's will. In addition,
the idea of dividing sovereignty and the concept of political sovereignty does not accord
with Austin's concept of sovereignty. Diceys concept of a political sovereign is not that of
a superior receiving obedience from the people; it is the very people themselves.
Another jurist, Jethro Brown, has advanced the theory that real sovereignty is vested in
the state viewed as a corporation, and that all other authorities in the state are only its
agents through whom it expresses its will and acts. This view also conflicts with Austin's
theory that the sovereign must be a determinate person or group of persons, imposing his
will upon the rest of the community.
We find that modern political organisation is so complex that it is not possible to
divide a political society into two distinct classesthe ruler and the ruled, or sovereign
and subject. It may be more correct to say that in a modern state, sovereignty is really
diffused throughout the society, an idea that finds expression in Diceys concept of
political sovereignty.
Austin was conscious of the fact that his definition of law as a general command of the
sovereign, attended by a sanction for its enforcement, cannot be applied to all laws. He
recognised the following exceptions:
(i) Declaratory laws, which merely explain or interpret the provisions of other laws.
The General Clauses Act 1897 is an example.
(ii) Repealing laws, which repeal an existing law and thus free people from the
obligations imposed by the repealed law. Such laws do not contain any command.
(iii) Imperfect laws, which create imperfect obligations. It is left to the discretion of the
individual concerned to adopt the law or to reject it. There is no compulsion, and
no sanction is attached. For example, if the Debt Relief Act provides that a debt
will stand
123
discharged if the debtor pays 75 percent of the debt before a stipulated date, there is
no compulsion on the debtor to pay before that date. However, if he pays he will be
entitled to the benefit, (iv) Laws of procedure, which prescribe the procedure to be
followed for law-making, adjudication, etc are also not commands with sanctions
attached to them.
Austin did not consider judge-made law as an exception to the theory of law. A judge in
deciding a case, is only exercising the will of the sovereign by delegation. The force and
authority of a judge's decision is really the force and authority of the sovereign. Austin
considered judicial decisions as tacit commands of the sovereign.
The question is how to classify Customary Laws and Conventional Laws.' They are
not made by the sovereign, but are voluntarily adopted by the people. In this sense they
are not commands of the sovereign. However, Austin considers them also as tacit
commands because the sovereign could have abolished a Customary or Conventional
Law. The fact that the sovereign permits the custom to be enforced as law in his courts
shows his desire or command that such custom shall be law to his subjects. This is
equated with a tacit command.
We have devoted so much time to a discussion of Austin's theory because he is still
considered a dominant force in English legal thinking. It is not because Austin's theory is
still followed or accepted, but because a great deal of jurisprudential thought has evolved
in response to his theory. Perhaps, there is no other jurist who has been criticised so
much. It is apt to say that one may agree with Austin, or disagree with him, but one
cannot ignore him.
Austin was a positivist, but adherence to positivism does not necessarily mean
adherence to the command theory. Therefore, Austin's critics include not only jurists
belonging to the natural law school or the sociological school, but also analytical
positivists like Hart. Now we will turn to some of the criticisms.
The most forceful criticism of Austin's theory came from natural law. It was pointed
out by Lon Fuller that law is a kind of order, which has an internal moral structure to
which it must conform in order to be called law. Austin's definition does not link law with
justice, which is the aim and purpose of law. By giving importance only to the imperative
force of law, Austin included any general command of the sovereign, irrespective of
whether its object be justice, in his definition of law.
The exclusion of sociological content from law is the main target of attack of the
sociological school. Austin, his critics allege, postulated his definition from a social
vaccum. He has ignored the sentiments of the
124
community. It is the conviction of the people that the law has prescribed the right course
of conduct that really constitutes its authority and force. At best, sanctions enforce
obedience against a recalcitrant minority, but when there is a general feeling in the
community that a law is totally oppressive and unjust, there will be universal
disobedience. Sanctions cannot enforce obedience in such a situation.
Another criticism against the command theory is that it views law as something thrust
upon the people by an extraneous superior. This may be true in a dictatorship or a police
state. However, how far is it true in a modern democratic welfare state?
Sanction, as an essential element of law, is true only of criminal law. Civil law aims
mostly at the proper maintenance of legal obligations, and does not impose any penalty.
Henry Maine, who belongs to the historical school of thought, has described Austin's
theory as historically inaccurate. In ancient states, the sovereigns were not concerned
with laying down the laws. Customs and popular usages established the laws in those
states. The laws were then not the commands of the sovereign, but were adopted by the
people for themselves. This criticism of Henry Maine is dismissed by Salmond, as it
refers only to the crude laws of primitive days, and not to the developed laws of a modern
state.
/Another limitation of Austin's theory is that it does not recognise important branches of
law, such as Constitutional Law, and International Law. How can one bring Constitutional
Law, which imposes limitations on the power of the state, within the definition of law as
the command of the sovereign to his subjects? In International Law, there is no superior
authority to enforce the laws on the states. There is no sovereign whom the states obey
habitually. There is no command, but only mutual agreement and goodwill of the states
which gives authority to International Law. So Austin considered the expression
'international law' a contradiction in terms. Yet all modern jurists consider International
Law as an important branch of law.
Austin's theory leaves out a great part of the law which is directly applied to people and
their ttansactions, viz, judicial decisions, and delegated legislation. Of course, Austin
considered them as tacit commands of the sovereign because law is made in exercise of
the will of the sovereign by delegation. However, this is not a satisfactory explanation
because judicial law-making assumes very significant dimensions in many legal systems
including India, though it was not so prominent during Austin's time.
The definition of law given by Salmond recognises this importance. He defines law as
'the_bgjiy_of principles recognised and applied by the state
125
ijnjhejînistration of justice'. This is the approach of American realism, which we will

discuss in a subsequent lecture.
- Austin's theory also fails to provide an adequate explanation to the continuance of
persona) laws like Hindu Law, Mohammedan Law, and the Canon law. Austin includes
them under tacit commands, because 'what the sovereign permits, he impliedly
commands'. However, what the sovereign permits is only their enforcement as law. The
tacit commands implied in such permission are related only to their enforcement, but not
to their enunciation. These personal laws have not been created by the commands of the
sovereign. Therefore, it follows that laws may be thus created otherwise by the
commands of the sovereign. Laws may pre-exist the commands.
Friedmann's criticism was mainly directed to Austin's approach to concepts such as
right, property, possession, etc. Austin assumed that these concepts had a fixed and static
meaning, but neither a word, nor a concept can have a fixed meaning for all occasions.
Their meaning varies according to the context, purpose, and also time.
When Austin formulated his theory of law, he had the contemporary English system in
mind. However, instead of confining his theory to the English system, he stated it as a
theory of law in general. This has also been criticised.
Austin, the positivist, propagated the doctrine that it is necessary to separate the law as
it is from what it ought to be. His concept of law is reducible to a prescription of conduct
phrased in imperative form. His method of logical analysis, ie, of deducting the nature of
legal conceptions from the conception of law is, as Stone points out, no more than the
use of a model to reveal the logical consistency of a system. The value of any such model
depends on the degree of correspondence between it, and the way in which laws and
legal conceptions are actually used. Austin believed that there was a sufficient measure
of correspondence between his model and actuality. In this belief, he was mistaken.
Another drawback of Austin's theory was that he did not reveal the reasoning which
led him to his concept of law, but simply made certain assumptions and applied them
logically.
Hart
HLA Hart is the most prominent modern jurist belonging to the school of analytical
positivism. His work' is considered one of the most important works on jurisprudence in
recent times. Hart gave the following five meanings of positivism:
2 The Concept of Law, 1961.
126
100I of >ortant lg five

(i) Laws are commands of human beings. However, he did not subscribe to the
command theory of Austin.
(ii) There is no necessary connection between law and morals, ie, law as it is, and law
as it ought to be.
(iii) Analysis (or study of meanings) of legal concepts is worth pursing. It must be
distinguished from (a) historical inquiries into the causes and origins of laws; (b)
sociological inquiries into the relation of law and other social phenomena; and (c)
the criticism or appraisal of law, whether in terms of morals, social aims,
functions, or otherwise.
(iv) A legal system is a closed system in which correct legal decisions can be deduced
by logical means from pre-determined legal rules without reference to social aims,
policies, or moral standards.
(v) Moral judgments cannot be established or defended by rational argument,
evidence or proof, as statements of fact can be.
Hart attempted to bridge the gap between theories of law emphasising recognition and
social obedience as the essential characteristics of a legal norm, and those that see the
distinctive characteristics of law in the correlated elements of authority, command, and
sanction. Hart begins with a criticism of Austin, explaining the shortcomings of his
theories, and then advances his own theory of law.
According to Hart, the core of Austin's theory that identifies law as commands backed by
the threat of sanction may be true with respect to some laws, for example criminal law.
However, as a general theory, it fails because there may be other types of laws that do not
resemble orders backed by threats. For instance, laws which prescribe the way in which
valid contracts, wills, or marriages are made. They do not compel people to behave in a
certain way. They 'provide individuals with facilities for realising their wishes by
conferring legal powers upon them to create, by certain specified procedures and subject
to certain
conditions, structures of rights and duties'. Similarly, laws of a public nature, in the
field of Constitutional and Administrative Law, Procedural Law and judge-made law
cannot be treated as orders backed by threats. They are better regarded as power
conferring rules.
Hart points out that in Austin's scheme, the law-maker is not bound by the command he
gives. However, in many legal systems, legislation is binding on the body that makes it.
The origin of law, Hart says, is different from the origin of an order backed by a threat.
For instance, those customs that are recognised as law within a particular society do not
stem from any deliberate act. He rejects the 'tacit command' theory also, because in any
modern state, it is rarely possible to say at what point a sovereign, whether
127
the supreme legislature or the electorate, learns of the application of a custom as law, and
decides not to interfere with it.
Hart considers the notion of the habit of obedience also deficient, because it fails to
account for the continuity in a legal system. He elaborates this with the help of an
illustration. Suppose a country is ruled by an absolute monarch Rex I. After his death,
his eldest son Rex II succeeds to the throne. Yet we do not know whether the people will
obey his orders, until we find that the people are in a habit of obedience to him. Only at
this point can we say that an order by Rex II is law. During the intervening period, since
there is no sovereign to whom the bulk of the society is in the habit of obedience, there
can be no law, according to Austin. What we actually find in any legal system is the
existence of rules which secure the uninterrupted transition of power from one law
maker to the next. If the rule provides for the succession of the eldest son, then Rex II
has a title to succeed his father. He will then have the right to make law, and when his
first orders are issued, we can very well say that they are already law. It is not necessary
to establish any relationship of habitual obedience between him. and his subjects. In a
democracy, the rules, which provide for continuity may be more complex. The point is
that such rules are essential.
The 'habit of obedience' test also does not answer why orders of Rex I continue to the
regarded as law. Hart rejects the 'tacit command' theory, and substitutes the notion of
habit of obedience with the notion of currently accepted fundamental rules specifying a
class or line of persons whose word is to constitute a standard of behaviour for the
society', ie, who have the right to legislate.
Hart then sets out to demolish Austin's notion of sovereignty as legally unlimited and
illimitable. The competence of legislature may be limited by a written Constitution. If the
legislature oversteps, the law purported to have been made will be declared invalid by the
courts. The true nature of a legal system cannot be explained in terms of a sovereign with
unlimited powers. Hart tells us that this is possible only in terms of rules that confer
authority on a legislature to legislate. Rules used by the courts are regarded 'as a criterion
of the validity of purported legislative enactments coming before this'.
The question arises whether it is possible to defend Austin's theory by identifying a
sovereign 'behind the legislature', a sovereign who makes the rules which determine the
legislature's competence. If the electorate is considered as the sovereign behind the
legislature, a further difficulty arises.
Austin defines law as the command of a sovereign to whom the bulk of the populace is
in the habit of obedience. If the electorate is the sovereign, then we have the populace in
the habit of obedience to itself. In this case,
128
r
neither there exists 'orders' in the original sense, ie, expression of intention that others
shall behave in certain ways, nor 'obedience'. Hart, therefore, concludes that the simple
ideas of orders, habits, and obedience cannot be adequate for the analysis of law. 'What is
required instead is the notion of a rule conferring powers, which may be limited or
unlimited, a person qualified in certain ways to legislate by complying with a certain
procedure'.
After rigorous and comprehensive critical analysis of Austin's command theory, Hart
begins the presentation of his own concept of law. As a prelude, Hart draws a distinction
between social habits, and social rules. For instance, it may be the habit of a group to go
to the cinema on Saturday evenings. If some members of the group do not go to the
cinema on Saturday evenings, it will not be regarded as a fault, and will not render them
liable to criticism. The rule that a person should not wear a hat in church is an example of
a social rule. Here, if someone breaks the rule, it is regarded as a fault, and renders him
liable to criticism.
A social rule has an internal and an external aspect. The awareness of, and support for, a
social rule is the internal aspect. The fact that the rule can be observed to exist by an
outsider is the external aspect. From this, Hart takes us to an external point of view and
an internal point of view, which he explains with the help of an example. Suppose an
observer watches the traffic. Although he does not know anything about the traffic rules,
he observes
that when the lights turn red, the traffic stops. This is the external point of view. A
person who drives a car looks at this in a different manner. For him, the light tuning red is
a signal to stop. He knows that when the light turns red, he ought to stop. The driver
looks at the rule from an internal point of view.
Social rules may be social conventions, or rules which constitute obligations. A group
strives to see that social conventions are observed, and those who break them are
criticised. When there is an insistent demand that members of the group conform, and
when there is great pressure brought to bear on those who break the rule or threaten to do
so, we call it a rule which constitutes an obligation. Such rules are necessary to maintain
social life. Examples are rules which restrict violence, or which require promises to be
kept. They involve some sacrifice on the part of the person who has to comply with the
rule for the benefit of others in the society.
Hart made a further division of the rules which constitute obligation into two, viz:
(i) Rules which form part of the moral code of the society, or moral obligations. There
is no authority responsible for punishing breaches of such rules. There will be
social pressure for conformity in the form of hostile reaction, disapproval or
approval to the
129
individual's respect for the rule. The pressure may rely on inducing feelings of
shame, remorse, or guilt in the offender, (ii) Rules which take the form of laws.
Here, the pressure for conformity includes physical sanction against a person
who breaks the rule, generally applied by officials.
Now, Hart brings the last category of rules, ie, those which take the form of law or
legal rules into focus. He identifies two kinds of legal rules, viz primary rules, and
secondary rules. Primary rules tell people to do things or not to do things. They lay
down duties. Secondary rules lay down the ways in which primary rules may be
introduced, varied, and abandoned.
A secondary rule which enables us to know what the primary rules are, is a 'rule
of recognition'. If a society has a 'rule of recognition then it has a way of
determining whether a law is valid. A secondary rule that provides for ways in
which the primary rules can be changed is a 'rule of change'. It may specify the
persons who have the power to alter the law, and also lay down the procedure to be
followed. A secondary rule which enables any individual to find out whether a
primary rule has been broken, is a 'rule of adjudication'. It lays down who must
decide this, and the procedure which must be followed. Rules of adjudication are
concerned with judges, courts, jurisdiction and judgments. There are secondary
rules which prohibit individuals from taking law into their own hands, and punish
them for breaches of primary rules. They provide for an official system of penalties
administered by officials, and thus amount of sanctions.
A legal system, according to Hart, is made up of the combination of primary rules
and secondary rules of recognition, change, adjudication, and sanction.
We have already seen that there are several sources of law, eg, Constitution,
legislation, judicial decisions, and customs. Does it mean that there are several rules
of recognition? Hart appears to be in favour of the view that there can be only one
rule of recognition in any legal system, that which establishes the supreme source of
authority for legal validity. This rule may have subsidiary rules, but it must lay
down the order of priority between them. A law is valid because it complies with the
rule of recognition of that system. Yet how do we determine the validity of the rule
of recognition? Its validity is assumed but cannot be demonstrated as in the case of
Kelsen's Grundnorm, which we will discuss in the next lecture.
As far as the question when does a legal system exists is concerned, Hart
enumerates two conditions for the same:
(i) the rules which are valid according to the system's ultimate rule of
recognition must be generally obeyed; and
130
1 inducing
:onformity is the rule,
:e the form al rules, viz

0 do things y down the abandoned, ry rules are, then it has a hat provides f change'.
It and also lay enables any
, is a 'rule of :edure which idges, courts, iich prohibit ish them for
1 of penalties
mbination of adjudication,
Constitution, that there are the view that an, that which This rule may iority between
gnition of thut ecognition? Its ase of Kelsen's
)ncerned, Hart iltimate rule of
I
(ii) the system's secondary rules (of recognition, change and adjudication) must be
accepted as common public standards by the officials.
A legal system breaks down when one of these conditions is not satisfied. Such a
situation may arise due to revolution, occupation by an enemy power, or anarchy leading
to a breakdown of legal control. Hart's concept of law may be illustrated by the following
table:
Table 1
HART'S CONCEPT OF LAW
Things that influence human behaviour
Social Rules Social Habits

gations
(External and Internal (External Aspects Only)
Aspects)
Conventions Obli
Moral Obligation âW

Primary Rules Secondary Rules
Rules of Recognition Rules of

Change Rules of Adjudications
Sanction Imposing Rules
Constituents of a Legal System
Note: This is a slightly modified version of the diagram given in JG Riddall,

Jurisprudence, second edn, 1999, p 53.
According to Hart, a rule of recognition constitutes 'the criteria for the identification of
the laws which courts have to apply'. The question whether these criteria can include
principles or moral values is problematic. A 'hard positivist' will not accept the inclusion
of anything other than identifiable criteria in his rule of recognition. Hart seems to have
adopted a 'soft positivist' position when he recognises that where a judge is required to
make decisions in a penumbral area in which no settled law exists, he may look outside
the criteria recognised by 'hard positivists', and take into account moral values and social
practices as a valid source of legal authority.
131
I
The rule of recognition is a secondary rule, which is power conferring. Some jurists
suggest that it is better to regard them as a special kind of rule than a power. Raz goes to
the extent of stating that the rule of recognition is not a power, but a duty addressed to
officials.
A legal system, according to Hart, is constituted by the union of primary rules creating
duties, and secondary rules creating powers. The distinction between these two types of
rules has been questioned. The same rule may create a power plus a duty to exercise it, or
a power plus a duty not to exercise it. Fuller is of the view that the same rule may confer
power and duty, or power or duty according to the circumstances. Neil MacCormick tells
us about rules, which abolish one's duty on an event, eg, a contract discharged by
frustration. Such a rule is neither power, nor duty conferring. There may even be rules
about secondary rules, which may be power or duty conferring. A rule requiring the
government to change a law on a referendum is an example of such a rule. Critics point
out that the distinction between rules creating powers and rules creating duties, which is
the foundation of Hart's concept of law, is very fluid.
Another weakness of Hart's theory has been brought to light by Dworkin, who says
that in unprovided cases, the question as to what the law is, must be decided by the
judge. This has to be decided with reference to doctrines, standards and principles which
do not derive their law-quality from a rule of recognition. Dworkin says that to relegate
them to 'discretion' is inconsistent with judicial acceptance of them as 'legal'. Hart's
theory also makes insufficient allowance for institutions, ie, particular ways in which
rules and clusters of rules operate. These evolve in many ways which cannot be attributed
to a rule of recognition, Summing up a critical evaluation of Hart's concept of law, Dias
observesjT'For the limited purpose of identifying 'laws', his concept seeks to accomplisn
more than is necessary, for the purpose of portraying law in a continuum, it does not go
far enougn.'
132
I
:rnng. >f rule nition
rimary nction le may not to /er and iormick ;ontract iferring. ower or iw on a ;tinction h
is the
)workin, is, must loctrines, jm a rule retion' is leory also in which ich cannot iluation of
identifying he purpose
Lecture 11
Theories of Law III: Pure Theory of Law
We have already analysed in detail the positivist theory of law as propounded by Austin.
This theory is also referred to as the 'imperative theory' because of the idea that law is
the command of the sovereign. Austin and his followers conceived the command as an
order to a citizen to do something or not to do something. Hans Kelsen, who has
developed the 'pure theory of law' with great analytical refinement, belongs to the school
of analytical positivism.
Kelsen believed that a theory of law should be uniform, ie, it should be applicable at all
times, and in all places. Law itself consists of a mass of heterogeneous rules, and the
formation of a theory of law is to organise these rules into a single, ordered pattern.
Kelsen's theory is known as the pure theory of law, because he declared that a theory of
law should be free from ethics, politics, sociology, history etc. In other words, it must be
pure. Kelsen did not deny the value of ethics, politics, sociology or history in shaping the
law or in understanding the law, but he asserted that a theory of law must keep clean of
them.
The distinction between propositions of science and propositions of law is the starting
point of Kelsen's reasoning. Propositions of science relate to events which are observed
to occur, and which do occur. They deal with what does happen, ie, what is. Propositions
of law, on the other hand, deal only with what ought to occui, we, vAvax o\ig,V\x to be.
Explaining this distinction further, Kelsen said, 'The principle according to which natural
science describes its object is causality, the principle according to which the science of
law describes its object is normativity'.
The propositions of law, or 'ought propositions', are called ngrrns. A norm is a
proposition in hypothetical formif X happens, then Fought to happen. The science of
law, ie, jurisprudence, consists of the examination of the nature and organisation of
normative propositions as they are found.
It involves all norms created in the process of applying some general norm to a specific
action.
Kelsen defines law as 'a system of coercion imposing norms which are laid down by
human acts in accordance with a constitution, the validity of which is presupposed if it is
on the whole efficacious'. Both Austin and Kelsen regard sanction as crucial. However,
Kelsen disagrees with Austin's definition of law as command backed by sanction mainly
in two respects: (i) a theory of law, according to Kelsen, must be pure. The idea of
command introduces a psychological element into a theory of law and must, therefore, be
rejected; (ii) Austin considered sanction as something outside a law,; imparting validity to
it. Kelsen found such a statement inadequate and i confusing, for the operation of the
sanction supporting a rule resolves itself into the operation of other rules, and further the
validity of a rule has nothing to do with its sanction. The operation of the sanction itself
depends on the operation of other rules of law.
Kelsen conceives law as a hierarchy of norms. The validity of a norm (ought) is not to
be derived from any 'is' of fact outside the law, but from some other norm (ought)
standing behind it and imparting validity to it. The validity of a norm is ascertained with
reference to its authorising norm, which confers a power to create it, and may also
specify conditions for its exercise. A particular norm, therefore, is 'authorised' if it can be
subsumed under a more general norm. In any legal order, a hierarchy of norms is
traceable back to some initial, fundamental norm on which the validity of all the others
ultimately rests. This basic, or fundamental norm, is what Kelsen calls the Grundnorm.
The Grundnorm need not be the same in every legal order, but there will always be a
Grundnorm of some kind.
Let us now try to understand the idea of law as a hierarchy of norms, and the
Grundnorm with the help of an illustration. Suppose a speed limit of 40 km/hr is
prescribed for motor vehicles during peak hours on the main road. We can express this as
a norm: 'If any person exceeds the limit of 40 km/hr in driving his car on the main road
during peak hours, he ought to be prosecuted'. This may also be expressed in the form of
a direction to officials. A direction to the police officers will be: 'If you find any person
driving his car at a speed exceeding 40 km/hr on the main road during peak hours, you
ought to arrest and prosecute him'; or as a direction to the judge: 'If you find that the
prosecution has proved that a person has driven his car at a speed exceeding 40 km/hr on
the main road during peak hours, you ought to impose a fine of Rs 500/- or sentence him
to two week's imprisonment'. All these norms will have some other more general
validating norm 'authorising' them. It may be a provision in the Police Act or the Code of
Criminal Procedure enacted by the state legislature or
134
Parliament. There is a validating norm behind these Acts, which we may locate in a
provision of the Constitution conferring legislative powers on state legislatures and
Parliament. The question is whether the Constitution is the Grundnorm. The answer is in
the negative because there is some other norm standing behind the Constitution, and
imparting validity to it. That is the reason why Kelsen says that the Grundnorm is not the
Constitution; it is simply the pre-supposition demanded by theory, that this Constitution
ought to be obeyed. Therefore, the Grundnorm is always adapted to the prevailing state
of affairs. The Grundnorm only imparts validity to the Constitution, and all other norms
derived from it; but it does not dictate its content. Kelsen's pure theory differs from
natural law theory in a significant manner here, because the focus of natural law theory is
on the content of the norms.
Kelsen does not rule out the possibility of more than one Grundnorm in a legal system,
but a system cannot be founded on conflicting Grundnorms.
Kelsen's own formulation of a norm, as we have already seen, is: 'If X happens, then
Fought to happen'. Now the question is whether we can consider the Grundnorm as a
norm in this sense. It is obvious that it does not conform to Kelsen's own formulation of a
norm. It only empowers and does not impose a sanction. The Grundnorm has no rule
behind it. Its validity has, therefore, to be assumed for the purpose of theory. It is the
initial hypothesis, 'the postulated ultimate rule according to which the norms of this order
are established and annulled, receive or lose their validity.' It is not possible to account
for the validity of the Grundnorm by pointing to another rule of law. The Grundnorm
validates the rest of the legal system. We cannot, therefore, utilise the system, or any part
of it, to validate the Grundnorm.
At this point, it is necessary to distinguish between validity and effectiveness, which is
an important part of Kelsen's theory. Every norm other than the Grundnorm is valid not
because it is, or is likely to be, obeyed by those to whom it is addressed, but by virtue of
another norm imparting validity to it. This explains the validity of a new statute even
before it is applied.
Effectiveness of the legal order as a whole is a conviction, not a reason, of the validity
of the Grundnorm, and of any individual norm. There must not be a total disregard of the
Grundnorm; but there need not be universal adherence to it. All that is necessary is that
it should command a minimum of effectiveness. When a Grundnorm ceases to derive a
minimum of support, it ceases to be the basis of the legal order, and any other proposition
which does obtain support will replace it. Such a change in the state of affairs is said to
amount to a revolution in law. The question is at what point can it
135
Lectures in jurisprudence
-\
be said that the laws of a rebel regime are efficacious? The answer to this question is a
matter of political and military reality, not a matter of
"While appreciating the logical coherence of Kelsen's sttucture, its weaknesses in

actual application have been brought out by subsequent commentators. The thrust of
the criticism has been the concept of Grundnorm. Kelsen claimed that he had
enumerated a pure theory of law, but once the question of effectiveness of the
Grundnorm is raised, the theory ceases to be 'pure'. In whatever way the effectiveness
of the Grundnorm is measured, it would seem to depend on those very sociological
factors which Kelsen so vehemently wanted to exclude from his theory of law. If some
inquiry into political and sociological factors has to precede, or at least is j implicit in
the adoption of a particular Grundnorm as the criterion of validity, \ and if the validity
of every part of the system is dependent upon the | continued effectiveness of the
whole, the study of jurisprudence should [ include the study of the social environment.
It is, therefore, difficult to j deny that every proposition of law has an ultimate ethical
basis. How then f is a total separation of law from morality possible?
Kelsen's failure to lay down criteria, by which the minimum effectiveness of legal
norms is to be measured, has also been criticised. The requirement of effectiveness
suggests that the Grundnorm is a fact, and not a practice or assumption. An effective
Constitution is a fact upon which the Grundnorm posts an 'ought'. This is not possible
without some kind of a value judgment. , As Hume observes: 'An "ought" cannot be
derived from an "is" without the j interposition of a value judgment that the "is" is
desirable and for that \ reason "ought to be".' If you take away this value judgment, then
Kelsen's j theory would conceal an ideology that "might is right".'
Inspite of its weaknesses, Kelsen's theory produced many important implications for
legal theory. We will briefly consider some of thos^ implications. |
Kelsen's theory considers the traditional distinction between public law' and
private law as one of degree, which even disappears at times.
The idea of concretisation developed by Kelsen is also very important in
understanding the legal process. Concretisation is the process by which norms get more
and more specific. From the apex downwards, the norms become increasingly less
general, and more specific. The distinction between . the legislative, executive, and
judicial process thus appears in a new light. I They are all norm-creating agencies. The
executive and the judiciary are | seen as steps in the concretisation of norms in
particular cases.
I
136
I
its
I
Kelsen's theory also treats the distinction between substantive law and procedural law
as relative, with procedural law assuming greater importance. Similarly, the distinction
between propositions of law and fact also become relative. The finding of fact by a judge
is not necessarily what actually happened, but what he regards as having happened for the
purpose of applying a particular norm.
Kelsen considers the legal order as a normative structure which operates so as to
culminate in the application of sanctions for certain forms of human behaviour. The idea
of duty is of its essence. He makes no specific allowance for powers, while liability is
seen as an 'extra legal phenomenon'. The concept of'person' was simply seen as a step in
the process of concretisation. 'Person' is a legal conception and Kelsen, therefore, rejected
the traditional distinction between 'natural' and 'juristic' persons.
The state is viewed by Kelsen as a system of human behaviour, and an order of social
compulsion. Law is a normative ordering of human behaviour backed by force, which
makes the use of force a monopoly of the community. State and law are, therefore,
identical.
In International Law, Kelsen recognises the existence of two Grundnorms, the
supremacy of each municipal system, and the supremacy of International Law.
Kelsen belongs to the positivist tradition because of his firm belief that the moral value
of a legal system or of an individual law and its validity as law are separate things.
Validity is in no way concerned with content. A law is valid because it is created in a
certain way. While thus excluding questions of morality from validity, Kelsen seems to
forget that a legal order is not merely the sum total of laws, but involves doctrines,
principles and standards, all of which are accepted as legal and which influence the
application of rules. Their validity is not traceable to the Grundnorm. Are they, then, to
be lumped with values and banished from a theory of law?
The concretisation of general norms, whether by the administrator or the judge, is not a
mechanical process as Kelsen presented it to be. It involves choice either in decision or
interpretation. However, the question lis how should an administrator or judge make the
choice? It is common knowledge that the choice is guided by value considerations. To
the extent that these considerations are left out, Kelsen's theory offers only an incomplete
and partial version of the legal process.
137
Lecture 12
Theories of Law IV: Legal Realism
The word 'realism' has multiple meanings, depending upon the context in which it is
used. In jurisprudence, when we speak of realism we generally mean a school of thought
represented by some jurists in the USA, which is more specifically called American
realism'. There is also another school of jurisprudential thought known as 'Scandinavian
realism', which we will . discuss towards the end of this lecture. I We use the word
'realism' here to mean 'relating to the real world, the world as it actually operates'. It
carries the idea of being practical, down to earth, and pragmatic. As a theory it indicates
the testing of theories by measuring them against what is observed in the world, and
dismissing theories that fail to match the recorded facts.
American Realism
The most prominent jurists who belong to what is described as American realism are
Oliver Wendell Holmes, Jerome Frank, John Chipman Gray, and Karl Llewellyn. Their
writings scattered over many books and journals, extending over more than a century,
do not reveal a corpus of agreed opinion, a central creed, or a consensus. What justifies
bringing them all under the common label of realism is a common characteristic, viz, a
determination to look at the law with open eyes, to look, not at the law in books, but at
the law as it actually operated in every day practice. Thus, we may very well say that
although we do not find a shared view in rhe writings of these jurists, there is certainly
a shared attitude, a shared approach.
The core of American realism is brought out by Holmes' definition of law. To the
question what constitutes the law, Holmes rejects the answer given by some text writers
that it is a system of reason, or a deducrion from principles of ethics or admitted
axioms. He prefers to look at law from a bad man's point of view. The bad man does nor
care about axioms or
Lecture 12
The word 'realism' has multiple meanings, depending upon the context in which it is
used. In jurisprudence, when we speak of realism we generally mean a school of thought
represented by some jurists in the USA, which is more specifically called 'American
realism'. There is also another school of jurisprudential thought known as 'Scandinavian
realism', which we will discuss towards the end of this lecture.
We use the word 'realism' here to mean 'relating to the real world, the world as it
actually operates'. It carries the idea of being practical, down to earth, and pragmatic. As
a theory it indicates the testing of theories by measuring them against what is observed in
the world, and dismissing theories that fail to match the recorded facts.
American Realism
The most prominent jurists who belong to what is described as American realism are
Oliver Wendell Holmes, Jerome Frank, John Chipman Gray, and Karl Llewellyn. Their
writings scattered over many books and journals, extending over more than a century, do
not reveal a corpus of agreed opinion, a central creed, or a consensus. What justifies
bringing them all under the common label of realism is a common characteristic, viz, a
determination to look at the law with open eyes, to look, not at the law in books, but at
the law as it actually operated in every day practice. Thus, we may very well say that
although we do not find a shared view in the writings of these jurists, there is certainly a
shared attitude, a shared approach.
The core of American realism is brought out by Holmes' definition of law. To the
question what constitutes the law, Holmes rejects the answer given by some text writers
that it is a system of reason, or a deduction from i principles of ethics or admitted axioms.
He prefers to look at law from a I bad man's point of view. The bad man does not care
about axioms or
deductions, but is interested only in knowing wkat the courts are likely to do in fact.
Holmes concludes: 'The prophecies of what the courts will do vn fact, and notYivrvg
more pretentious, are wViat 1 mean by tVie \aw.'
Are you confused? Do you find this definition of law as 'the prophecies of what the
courts will do in fact' a negation of whatever ideas you had formed in your mind about
law? In order to understand the realist approach to law a little better, let us consider the
following situation: Three students are expelled from a school because they refused to
sing the national anthem along with other students in the school assembly. There was a
government circular stating that all students must sing the national anthem together in
the school assembly. Justifying their refusal to sing the national anthem along with other
students, the expelled students said that they belonged to a particular religious sect
which prohibited the singing of any song in praise of anyone except God. Their parents
had also told them that it would be contrary to their religious faith if they join the
singing of the national anthem. The students challenged the validity of their expulsion
from school on the ground that the freedom to profess and practice religion is a
Fundamental Right guaranteed to them by the Constitution of India. The government,
however, argued that loyalty to the nation is of paramount importance and Fundamental
Rights are not absolute rights. It was also pointed out that there was a Fundamental
Duty in the Constitution to respect the national anthem.
The question which arises is as to what is the law to be applied in the aforesaid
situation? Can you cite a rule, using which the validity of the expulsion order could be
determined? The reality is that until the court decides the matter, no one is certain about
the rule.
The above-referred facts are taken from a famous case Bijoe Emmanuelv State of
Kerala.1 In this case, the Supreme Court held that the students were exercising their
Fundamental Right to freedom of religion, and their expulsion was wrong. The court
observed that the question is 'not whether j a particular religious belief or practice
appeals to our reason or sentiment I but whether the belief is generally and
conscientiously held as part of the profession or practice of religion. The students, the
court said, showed due respect to the national anthem by standing up when it was sung,
and they did not show any disrespect by not joining in the singing. If we follow the
realist approach, we may say that until the Supreme Court pronounced the judgment in
Bijoe Emmanuel, there was really no rule to settle the question we had raised earlier. If
the expelled students approach a lawyer and ask him whether they will succeed if they
challenge the expulsion
1 AIR 1987 SC 748.
140
Theories of Law TV: Legal Realism
order, the lawyer will not be able to give a categorical answer; but can only make a
prediction. When Holmes defines law as 'the prophecies of what the courts will do in
bet', what he means is that the law remains uncertain and unsettled until the court's
decision. After going through the facts and decision in Bijoe Emmanuel, one can
conclude that there is an element of truth in what Holmes says.
Holmes was a great judge, and so was Jerome Frank, whose seminal work 2 added new
dimensions to legal realism. His analysis of law from a psycho-analytical point of view
is very interesting. He described legal certainty, so valued by lawyers and judges, a
myth. The desire for certainty was similar to 'father complex' in a child, ie, a craving for
infallible authority. Frank accepted rules of law as one of the bases of the judge's
decision. Judicial decisions are conditioned by emotions, intuitive hunches, prejudices,
tempers, and other irrational factors. Terming court decisions as very uncertain and
almost unpredictable, Frank said, 'No one knows the law about any case or with respect
to any given situation, transaction or event, until there has been a specific decision
(judgment, order or decision) with regard thereto'. This uncertainty is not to be deplored,
but is of immense social value. A wise and creative judge, unfettered by paragraphs in
the code and precedents, will find justice through a clear and cool perception and
valuation of the social issues at stake. Frank compared such a judge to the Philosopher-
King of Plato's Republic.
Jerome Frank's thesis that there are no settled rules and that rules are always uncertain,
is called rule-scepticism. In his later writings Frank also reveals what is called fact-
scepticism, because he found innumerable sources of error in the determination of facts
by trial courts. Let us now try to understand these sources of error in Frank's own words,
'There may be perjured witness, coached witnesses, biased witnesses, witnesses mistaken
I in their observation of the fact as to which they testify, or in their memory of their
observations, missing or dead witnesses, missing or destroyed documents, crooked
lawyers, stupid lawyers, stupid jurors, prejudiced jurors, un-attentive jurors, trial judges
who are stupid or bigoted and biased or 'fixed' or inattentive to the testimony' f As a
result, the judge has virtually uncontrolled and uncontrollable fact discretion. Whatever
reforms we may introduce in the trial process, Frank believed that there will still remain a
large element of irrationality, chance and guess work in judicial fact finding, making
predictability of the outcome of law suits impossible.
The realist movement held that the development of law does not consist of mere
mechanical deduction of conclusions from premises, but must
2 Law and the Modem Mind, 1930.
141
is.
involve a process of creating new rules to deal with new situations, where a choice
between competing alternatives had to be made by reference to social, moral, political,
and other factors. As Holmes put it, 'the life of the law has not been logic, it has been
experience'. Gray, another important jurist of the realist school, observed that courts put
life into the dead words of the statute. j
This approach, as already noticed, is a repudiation of the declaratory theory of
precedent.
We must, at this point, make a reference to the views of Cardozo, a celebrated jurist
judge, although he does not belong to the realist school. Cardozo made a comprehensive
analysis of the judicial process. Under the great influence of sociological jurisprudence
and driven by an ethical idealism, he emphasised the necessity of judicial alertness to
social realities, because the judicial process involves an element of creation, and an
element of discovery. Cardozo asserted that considerations of social policy loom large in
the art of adjudication, and choice is inherent and inevitable in judicial decisions. He then
raised the crucial question: how does a judge make the choice? In a highly readable
book,3 which is a compilation of series of lectures he delivered at the Yale University,
Cardozo explains the process elaborately. The essence of his thesis is the acceptance that
judicial choice is influenced by inherited instincts, traditional beliefs, acquired
convictions, and conceptions of social need. He said that the rule of adherence to
precedent must be relaxed in situations when it would clearly be inconsistent with the
sense of justice or social welfare. The need for certainty must be reconciled with the need
for progress. The writings of Cardozo as well as the influence of the realist movement
brought the role of the judge, or more specifically the personality of the judge, into sharp
focus.
Karl Llewellyn, a jurist who belongs to the realist school, through his writings shifted
the focus of inquiry from the study of rules to the observanct of the real behaviour of the
lawmen, particularly the judge. This is known as the behavioural approach. Llewellyn's
contribution is also important it bringing law into close contact with other social
sciences.
Critics have found fault with most of the tenets of American realism. In response to
Holmes' definition of law 'as the prophecies of what the courts will do in fact', the critics
point out that judicial decision is not a prediction, but a judgment as to what the law now
is. A piece of legislation is also not a prediction of judicial behaviour, but it lays down
what should be done. We find considerable truth in the criticism that decisions creating
new la*
3 The Nature of the Judicial Process, 1921.
142
I
j represent only a fraction of the total of law suits and the majority of cases i involve no
point of law; a still greater number never reach the courts. 1 Majority of human
situations governed by law produce no litigation. The
concentration of the realists on court practice alone was, therefore, considered
as legalistic rather than realistic.
/ Another criticism against the realists has been that they overstress the uncertainty and
'open texture' of language. However, we must remember that this was done by the
realists to highlight the creative nature of the judicial role, and to reject the 'slot
machine' theory which considered the judicial process as mechanical. The realist
movement asserted that judicial decisions often involved value judgments on questions
of policy. They justified reliance of judges on expert evidence and data drawn from
social sciences, as it would enable them to adapt law to changing social needs. ( Inspite
of the criticism, the realist movement produced a significant J impact on legal theory.
Because of its close affinity to the sociological | approach, many people consider it as a
radical wing of the sociological school. Realism means a conception of law in flux and
as a means to social ends, so that any part of it is to be examined for its purpose and
effect. It implies a concept of society which changes faster than the law. It recognises
that law is both a result of social forces, and an instrument of social control. However,
the realists were more concerned with a scientific observation of the law in its making,
working and effect, whereas the sociological school had other concerns too, as we have
already seen in the previous lecture.
The realist movement must also be seen as an attempt to rationalise and modernise
the laws by utilising scientific methods and the results reached in those fields of social
life, with which law is inevitably linked. It thus introduced a scientific approach and
empirical methods into the study of law.
American realism is also seen as a counterpart of the continental movement of the
'living law', the principal exponent of which is Ehrlich. However, there is a difference
in emphasis. While the realists place the decisions of court at the centre of the law,
Ehrlich devotes his attention to the 'living law', the body of rules of conduct, and habits
most of which never come before the courts.
The question is how is realist jurisprudence related to other schools of jurisprudence
and approaches? We may say that it forms part of a sociological approach to law. It is
not a substitute for, but a supplement to analytical, historical, and ethical
jurisprudence. The meeting point of ethical jurisprudence and realist jurisprudence is
the admission that the search for justice is a paramount concern of law.
143
Scandinavian Realism
Most of the discussions on legal realism focus on American realism, but there is another
school of realism, known as Scandinavian realism, which also deserves our attention
because of its contribution to legal theory. American realism is the product of a
pragmatic and behavioural approach to social institutions. By contrast, Scandinavian
realism is essentially a philosophical critique of the metaphysical foundation of law.
Hagerstrom is considered as the founder of the Scandinavian realist movement. His
doctrines were further elaborated by his disciple Lundstedt. Two other leading
representatives of the movement are Karl Olivecrona, and Alf Ross.
What we find in Scandinavian realism is a total rejection of natural law philosophy,
and of any absolute idea of justice as controlling and directing any positive system of
law. Scandinavian realists are relativists in the sense that they deny that rules of legal
conduct can be completely derived from immutable principles of justice.
The most important contribution of this school is its criticism of a 'collective' or
'general' will or of a 'will of the state', as a mystical concept that tends to legitimise the
omnipotence of those in command of the machinery of the state. Scandinavian realists do
not deny the validity or the reality of law as a body of'rules about force, rules which
contain patterns of conduct for the exercise of force.' In their view, positive rights are no
more real then natural rights, except that they have a 'corollary' in an actual security, and
an actual power in consequence of the regular functioning of the legal machinery.
Olivecrona did not agree with the idea of rules as commands of the state. He
substituted the concept of 'independent imperatives' for commands. Law is infact a body
of rules about the use of organised force, without which community life is unthinkable. It
is obeyed by the fear of force rather than by the direct use of it because the rules of law
are a body of 'independent imperatives' respecting the organised force in the community
as long as they are effectively obeyed. \
According to Alf Ross, another leading exponent of Scandinavian realism, the concept
of the validity of law combined behaviourist and psychological aspects. He said; 'In the
concept of validity two parts are involved: partially the outward, observable and regular
compliance with the patterns of action and partly the experience of these patterns of
action as being a socially binding norm'.
Lundstedt defined law as 'the very life of mankind in organised groups and conditions
which make possible peaceful coexistence of masses of individual and social groups and
the co-operation for other ends than mere
144
T
existence and propagation'. The feelings of justice are guided

and directed by the laws as enforced, ie, as maintained. Law at
any particular time, and
nt in any particular society is determined by 'social welfare'.
;h An overall evaluation of Scandinavian realism reveals that its critical
y. aspects are more significant than its positive achievements. It demonstrated
:h that any legal order must be conditioned upon a certain scale of values,
a which can be assessed not in absolute terms, but with regard to the needs
>m changing with times, nations, and circumstances. Irrespective of whether
lis law is described as a fact, as a machinery of action, or in any other manner,
ier it is directed to certain ends.
iss. Finally, to the credit of the Scandinavian realists, it is pertinent to note
aw that they drew our attention towards the need to take into account the
ing possibility that psychological influences may be at work in the operation
nse of the law.
Dm
fa ept the < or ;rns

no
an ling
the
for >rce, ir of )ody
the
lism, ,gical tially ction cially
roups ;es of mere
145
I
Lecture 13
Modern Trends and Theories
We have already discussed how various theories attempt to define law, and explain its
functioning. It was also our endeavour to understand how the approaches of other
disciplines, especially history, economics and sociology, can enrich our vision of law. It is
important to remember that these approaches and theories are constantly being re-
examined and re-interpreted by scholars. New critiques emerge, provoking new
responses. New dimensions are added to old theories. Changes in economic, social and
political relations, advancement in various fields of knowledge, and development in
science and technology produce their impact on law. In short, legal theory like any other
branch of knowledge never remains static. It is, therefore, necessary that a student of law
keeps himself abreast with the current developments in his field of study. This lecture is
just an introduction to some of the modern trends and theories, which are considered
significant from a jurisprudential perspective.
Critical Legal Studies
Critical Legal Studies (CLS) movement emerged in the 1970s. The driving force behind
this movement was a dissatisfaction with the existing legal theories. It was an attempt to
offer a radical alternative to established legal theories. We find that jurists who are
identified with the CLS movement constitute a diverse group. Despite differences of
opinion, commitment to a more egalitarian society binds them together.
Some people consider CLS as a continuation of legal realism. However, the objectives
of CLS are much wider, and we can see a greater concern with the politics of law'.
Realism saw legal reasoning as autonomous and distinct. However, CLS does not accept
the distinction between legal reasoning, and political debate. CLS also rejects the
enterprise of presenting
a value-free model of law. According to CLS, law is politics; law does not have an
existence outside the ideological battles within society.
CLS is highly critical of liberal legal theory in which they include the theories of
positivism propounded by Hart and Kelsen, and also the rights \ based theories of
Dworkin, Rawls, and Finnis. Liberal legal theory claims to be a politically neutral and
objective way to resolve conflicts. CLS denies this claim and states that the liberal legal
theory is a conflict-ridden structure beneath its purportedly objective exterior, which
conceals the political judgment and power structures within the law.
The similarities between CLS and the ideas developed by Marxists, | especially modern
Marxist writers like Gramsci and Collins, cannot escape * our attention. However, CLS
rejects the theory of instrumentalism, and of law as superstructure. Duncan Kennedy, a
leading exponent of CLS, is of .. the view that law cannot be usefully understood as a
superstructure. He observes:
Legal rules that the state enforces and legal concepts that permeate all aspects of
social thought constitute capitalism as well as responding to the interests that
operate within it. Law is an aspect of the social totality, not just the tail of the
dog.1 j
Liberal legal theory portrays law as rational, coherent, necessary, and just. CLS rejects
all these, and asserts that law is arbitrary, contingent, unnecessary, and profoundly
unjust. According to CLS, the basic civil and political rights whick are purportedly based
on the concept of the freedom of the individual, actually serve the political and economic
requirements of liberalism. Freedom of contract, for instance, is not a liberating concept,
but one that ties individuals to the market place, and serves the basic aims of capitalism.
All the laws in liberal society serve political ends and are 'politics in disguise'. We find
close similarity between the idea that people accept liberal philosophy, because they
think it is true, put forward by CLS, and the Marxist idea of class consciousness where
the victims of capitalism embrace the ideology that is responsible for their situation.
Roberto Unger, another leading exponent of CLS, is noted for his attack on legal
formalism, and his analysis of law and society. Unger argues that legal adjudication is
purely arbitrary, and used for political purposes to further the needs of the powerful and
the persuasive in the society. The legal process with its surface of neutrality and fairness
serves to slowdown any process of change. The legal system simply reinforces the status
quo and blocks any type of revolution, irrespective of whether it is violent, within
society. He rejects the concepts of fixity in society, embodied in the
1 The Politics of Law: A Progressive Critique, (ed D Kairys), 1990, p 47.
148
s s :s e al
:s, pe of of He
|USt.
ent, and dom its of cept, aims d are leople rd by ms of on.
attack es that oses to ty. The wdown tus quo violent, d in the
legal system by the concept of the stare decisis as contrary to fundamental human needs.
Unger argues for the need to establish a super liberal society within the terms of the
'programme of empowered democracy'. This programme has three main elements, viz,
(i) a new and radically different system of legal rights; (ii) a reorganisation of the
constitution and government; and (iii) a reconstruction of the economy. He proposes to
replace a system of civil and political rights found in western liberal democracies with
the following four types of super liberal rights:
(i) Market rights:

These are rights employed for economic exchange in the trading sector of the
society.
(ii) Immunity rights:

These are rights which protect the individual against oppression by the
concentration of public or private power, against exclusion from the important
collective decisions that influence their lives, and against the extremes of economic
and cultural deprivation.
(iii)Destabilisation rights:
These are rights which protect the citizen's interest in breaking open the large scale
organisations and the extended areas of social practice that remain closed to the
destabilising effects of ordinary conflict, and thereby sustain insulated hierarchies of
power and advantage.
(iv) Solidarity rights:

These are rights which give legal form to relations of reliance and sense, and form
part of a set of social relations enabling people to enact a more defensible version of
the communal ideal than any version currently available to them.
Unfortunately, we do not get a clear picture of the nature, extent and protection of these
rights in Lingers writings. Unger sees the present constitutional structure as too rigid and
promoting confrontation and alienation. He suggests remodelling it with a 'multiplication
of overlapping powers and functions'. This will lead to the diffusion of power to all
individuals instead of a class of powerful individuals at the top of the existing hierarchies
within the society. As a consequence of this, individuals will get more opportunities to
engage in transformative activity, and to change society from being based on
individuality to being based on community. Unger's programme of remodelling would
involve the abolition of the traditional doctrine of separation of powers.
1
149
The reconstruction of the economy, according to Unger, begins with the rejection of the
current private rights set up of advanced western countries. Inequalities are inherent in
such a system based on the concept j of consolidated property rights. Unger proposes a
perpetual innovation ' machine, the primary example of which is a rotating capital fund.
What is remarkable about Unger is that he makes us think of a different society which
will overcome the contradictions and unfairness of current western society. He offers an
alternative to current structures in society and philosophy. I
Another important aspect of CLS which deserves our attention is its critique of legal
reasoning. The attention of both American realism and CLS converge on the existence of
external factors that operate on a judge. However, the importance of these external
factors was perceived differently by realism and CLS. The realists recognised that legal
reasoning and rules played a part, though minor, in a judge's decision. CLS, on the other
hand, holds that these external factors are the sole operative factors in the judgment. This
is not explained as reflecting the economic relations within society in Marxist
terminology. CLS explains this in terms of judicial values, and choice of a political
nature. D Kairys, who explains this proposition with reference to some decisions of the
American Supreme Court on freedom of speech concludes that 'none of these cases was
or could be decided without ultimate reference to values and choices of a political
nature'. He states that these cases also demonstrate a central deception of traditional
jurisprudence that the judgment is 'the product of distinctly legal reasoning, of a neutral
objective application of legal expertise'. CLS does not provide us an accurate description
or assessment of external factors which are responsible for a judicial decision. They
assert that judges share social and political assumptions or ideologies which, because of
their background, lead them to make consistent decisions that reinforce the liberal order
in which they operate.
The writings of jurists belonging to the CLS movement reveal the underlying
contradictions in law and deep-rooted hierarchies of power that are hidden beneath the
neutral exterior of law. Believing that law operates to facilitate discrimination and
exploitation, their attempt is to deconstruct law and legal language. De-construction
takes three forms: (i) trashing; (ii) de-legitimation; and (iii) de-reification. Trashing is
essentially aimed at revealing the illegitimate hierarchy or power structures that exist
within the law, and society in general. The hierarchy of power, CLS explains, is not so
simple as we find in the Marxist analysis in terms of classes. It is much more complex,
and is found at every level. De-legitimation is aimed at exposing one of the most
important functions of law in a liberal society,
150
r, begins with need western m the concept lal innovation fund. What is fferent society
urrent western n society and
ittention is its in realism and ue on a judge, ived differently ning and rules , on the other :
factors in the elations within judicial values, ais proposition urt on freedom lecided
without ure'. He states of traditional legal reasoning, >es not provide tors which are hare
social and ir background, liberal order in
ent reveal the :hies of power eving that law r attempt is to Jiree forms: (i) ig is essentially
tures that exist CLS explains, of classes. It is lation is aimed liberal society,
viz, the legitimation of the socio-economic systems of that society. CLS attempts to strip
away the veneer of legitimacy to reveal the ideological underpinnings of the legal system.
In order to understand de-reification we must first understand the meaning of reification.
P Gabel explains that reification involves a gradual process whereby abstractions
originally tied to concrete situations are used to operate instead of the concrete situations.
The abstraction or concept takes on the form of a thing. This process is clouded in legal
mystification, making people mistake the abstraction for the concrete. Concepts like
mortgage, consideration, trust, will, etc, take on a life of their own, and become totally
divorced from their original conception. According to JS Russell, legal reification 'is
more than just distortion: it is also a form of coercion in the guise of passive acceptance
of the existing world within the framework of capitalism'. De-reification is the
recognition and exposition of such fallacies, to reveal the law as it really is.
Is CLS then a movement to attack, criticise and deconstruct all the existing theories of
law? Does it have anything positive to offer? From the writings of CLS scholars a theory
of law emerges which we may call the 'constitutive theory' in tune with the wider post-
modernist perspective that ideas, and not the economic base, constitute society. CLS
projects the idea that law plays an important role in shaping society. This approach
radically differs from the Marxist approach. According to Kairys, ' law is not simply an
armed receptacle for values and priorities determined elsewhere; it is a part of a complex
social totality in which it constitutes as well as is constituted, shapes as well as is shaped'.
Once we accept the perspective that ideas constitute society, it follows that there must be
a convergence of ideas including ideas and beliefs about law, if there is to be some sort of
order in society. This we may call a shared world view. The aim of CLS is to attack the
shared world view embedded in legal consciousness, to reveal its link to domination in
capitalist legal society, and to change that consciousness. A well-known CLS scholar, D
Trubeck, draws our attention to the difficulties involved in changing that consciousness
because the constitutive power of the dominant shared world view is grounded on its
claim to be the truth. Its constitutive force can be undermined only if this claim can be
refuted. The only method to refute the shared world view that the liberal order is the true
and natural system is to show that there are other alternative ways which would not result
in exploitation and injustice.
Finally, it is also pertinent to note the concern of CLS with critical legal education.
Alan Thomson provides a useful introduction with reference to the teaching of contract
law. A traditional course on law of contracts in law
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151
Lectures i n Jurisprudence
schools, based on standard textbooks, statutes and case law, serves the ideological
function of reinforcing the conception that law is neutral, self- contained, that it cannot be
challenged, and that it is a product of reasoned analysis. The inevitable acceptance of the
legitimacy of this conception of law by law students assures the continuity of the
dominant, liberal, legal ideology. The students upon becoming lawyers, judges, or
academicians will perpetuate the ideology. If this is to be avoided, Thomson suggests that
a critical course in contract law should diverge as much as possible from the standard
texts and authoritative materials, and students should examine the primary materials
themselves. Not only the decisions of appellate courts, but cases at first instance and
formation of contracts in practice should also form part of the course. This will reveal the
power relationships to be found in every contract, and the uncertainties of contract law.
The student will begin to realise how the imagery of law, as found in the freedom of
contract, serves to deny the oppressive character of the market place and the lack of real
personal liberty, experienced by people. Critical legal education, in Thomson's words,
must bring into sight 'exactly what the textbooks suppress'.
Post-modern Legal Theory ,
Post-modernism challenges the liberal orthodoxy that society has a natural structure, and
history is a process of evolution towards that truth. The assertion of Fukuyama that
history has come to an end since the entire world had converted to free market capitalism
and liberal democracy, is rejected by post-modernists. Liberalism and capitalism are seen
as major components of modernity. Post-modernists characterise modernity as 'an iron
cage of bureaucratisation, centralisation and the infinite manipulation of psyche by the
culture industry and the disciplinary machines of power and knowledge'. They believe
that modernity's structures, its laws, its literature, its architecture, its arts or any of its
products are subject to deconstruction, a process which reveals a number of alternatives.
They do not believe that society contains any objective truth or natural laws upon which
it can be grounded.
We may trace the origins of post-modernism in law in the fundamental tenet of legal
realism that law is an instrument of policy, and the CLS view that all law is politics. The
main plank of post-modern legal theory is its rejection of the structured, logical and
internally consistent picture of society, and law which we find in Hart's theory of law as a
union of primary and secondary rules, and in Kelsen's pyramid of norms. Now, we will
try to find out through a brief analysis of some important post-modernist writings
152
I
1
v, serves the neutral, selft of reasoned onception of liberal, legal icademicians son
suggests h as possible dents should decisions of
contracts in al the power es of contract , as found in racter of the :d by people.
sight exactly
has a natural it truth. The ice the entire democracy, is ;een as major iernity as 'an
manipulation ,nes of power , its laws, its re subject to ives. They do ral laws upon
: fundamental the CLS view 1 theory is its :ure of society, f primary and we will try
to :rnist writings
whether it can offer an alternative to the rigid, arbitrary normative structure of the
liberal legal system.
The writings of Michael Foucault and Jacques Derrida deserve our attention,
although they are not academic lawyers, because of their tremendous impact on
legal theory. Foucault's neo-Marxism shares with post-modernism an emphasis on
the 'shifting relationships between self and other'. The 'other' appears to be the
individual who is outside the system, who is disadvantaged by it. The 'others' cannot
assert that the law is on their side within the current situations since the system
alienates them. Post-modernism recognises that they have an equal claim to
consideration since their assertions are no less valid than those who are advantaged
by the system or no less valid than even the views of lawyers, judges, or politicians.
The post-modernist concern with the 'other' has definitely helped to give an impetus
to the claims of disadvantaged groups like women, blacks, and tribals within law.
However, to what extent and in what manner the law should seek to accommodate
their claims is not clearly brought out in post-modernist writings.
Derridas deconstruction, though originally applied to language, had a profound
influence on legal theory. Language is a complex web of signs and Derrida said, is
metaphorical. Modernism sees the function of language as mainly representational
it depicts the way things are. In other words, language discloses the relationship
between the words and the world. In language, some statements are statements of
truth or statements of fact (eg, this is a chair) and some statements are statements of
opinion (eg, this chair is beautiful). The post-modernists do not accept the division of
language into fact and opinion, but hold that all statements are opinions. This is
because language is inherently indeterminate. Even a statement like 'this is a chair',
which is apparently a statement of fact, the postmodernists would argue, is a
statement of opinion, because there is no true meaning to the concept of chair. Even
what appears to be a factual statement is, thus, open to debate and deconstruction.
The question now is as to what is the relevance of the above discussion to our
understanding of law? As we know, in law the language is an abstraction from
reality. Take, for instance, the concepts of family and property. In law they are
removed from the reality, and all debates revolve around them. Post-modernists see
all statements in law as assertions. In choosing between competing assertions, an
individual will favour those which clash least with everything else that he takes to be
true. Individuals agree with the right legal propositions because they fit into the
legal system which is presumed to be right. The whole system is based on dominant
153
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J
assertions which must ultimately be built on pure ideology or power. Tl law and the legal
system thus become self-perpetuating hierarchies.
A major criticism against post-modernism in general and deconstruct! in particular is
that it focuses on the negative, 'the uncertainties a ambiguities of existence'. As a
response to this criticism, there has develoj within post-modernism what is called
'affirmative post-modernism. Balkin, who belongs to this stream, states that
deconstruction of l< concepts is not nihilistic. He continues:
Deconstruction is not a denial of the legitimacy of rules and principles; it is an

affirmation of human possibilities that have been overlooked or forgotten in th<
privileging of particular legal ideas...By recalling the elements of human lift
relegated to a margin in a given social theory, deconstructive readings challengi us
to remake the dominant conceptions of our society. 2
Balkin also poses the question as to why do we want to deconstruct h legal doctrine?
He answers that this has mainly to do with the pursi justice. We might want to
demonstrate that the law or some part ol unjust. The failure of law to adequately deal
with some aspect of soci: may lead to injustice. A critical use of deconstruction involves
pointini that something is wrong, and arguing that it could and should be i better. Balkin
asserts that law is always to some extent and to some d unjust. The only way of
articulating a person's conception of just through imperfect laws. Such laws lead to
deconstruction and a ma law. This is a continuous process.
It is interesting to examine how post-modernists view the deconstr technique to de-
justify or de-legitimate the liberal Constitution. Mod legal theories are built on the idea
of constitutionalism, the idea of a s governed by the rule of law with the supremacy of
law or the Consti at the top of the pyramid of laws. The recognition of law as the key
exercise of power facilitates the legitimation of the exercise of such fx power. P Schlag
who calls the practice of liberal justification, a pi constitutional mythology, explains it
thus:
The popular narrative recounts the story of a sovereign people who ir foundational
moment established their own state by setting forth in a writt constitution the
powers and limitations of their government. The very identi content, and character
of this government is established by the Constituti itself. In turn, the authority of
this Constitution stems from the consent of i governed-their acquiescence in a
limited surrender of their sovereign powei return for the benefits of a limited,
representative government.3
2 'Deconstructive Practice and Legal Theory' (1987) 96 Yale Law Journal 743, p
3 'The Empty Circles of Liberal Justification' (1997) 96(1) Michigan Law
Review
154
Schlag questions the concept of the consent of people as the basis of the legitimacy of
the Constitution. Once this concept is accepted, nobody asks the question, as to what
gave the generation of 1787 (the year in which the American Constitution was adopted)
the authority to delimit freedom for all subsequent generations. Everyone tends to forget
that in reality people had not been consulted despite the mythology of consent. Another
weakness of the consent theory is that the individual has to either choose the whole
system or nothing. Once consent to the paramount norm is established, this necessarily
entails consent to a whole series of institutions and practices that are authorised by the
paramount norm. Schlag concludes that liberalism is not a rational choice, but only an
emotional choice and, therefore, does not have any superior claim to acceptance by
deconstructing the language of liberal constitutionalism. Schlag reveals it as a
legitimating of a political choice that has been made by certain individuals centuries
ago.
The importance of moving away from mere deconstruction towards reconstruction is
visible in the writings of Santos, who realises that merely to criticise the dominant
paradigm, though crucial, is not enough'. We must also define the emergent paradigm
an important and difficult task. Santos recognises that 'modern men and women are
configuration or networks of different subjectivities'. He depicts six prevalent structural
subjectivities arising out of six dominant structural places found in contemporary
capitalist society. They are the household place, workplace, citizen place, world place,
market place, and community place. These structural places are the loci of major power
forms circulating
Iin our society. In the household place, the contradiction or competition is between the
dominant paradigm of patriarchal family, and the ; emergent paradigm of the co-operative
domestic community. In the workplace the competition is between the dominant
paradigm of capitalist expansionism, and the emergent paradigm of eco-socialist
sustainability which involves free associations of producers geared towards the
democratic production of use-values without degrading nature. In the citizen place, j
competition is between authoritarian and radical democracy. In radical democracy, the
democratic process is furthered by the transformation of j the relations of power into
relations of shared authority, despotic law into democratic law, and regulatory
commonsense into emancipatory common sense. The contradiction in the market place is
between the paradigm of individualistic consumerism, and the paradigm of human needs.
In the community place, the competition is between fortress communities and amoeba
community. In the world place, the competition is between the paradigm of unequal
development and exclusive sovereignty, and the
155
1
paradigm of democratically sustainable development and reciprocally'

permeable sovereignty. Santos is optimistic that the emergent paradigm | will
result in the emergence of a new system of international and I transnational
relations guided by the principles of cosmopolitanism and 1 common heritage
of mankind. The influence of Mahatma Gandhi and Noam Chomsky is
evidently visible in the writings of Santos. The question whether Santos has
been able to give post-modernism the element of reconstruction it so badly
needed, remains debatable. However, it must be admitted to his credit that his
use of opposing paradigms, of the structures of modernity and their post-
modernists counterparts drawn from the : margins of society, gives an insight
into a possible, fairer alternative.
Feminist Jurisprudence
Feminist jurisprudence has been inspired and influenced by the ideas,

approaches, and methods of both CLS and post-modernist legal theory, which
we have already discussed. While some scholars doubt whether there exists a
school of legal thought deserving the title feminist jurisprudence, there are
others who consider feminist jurisprudence as representing the most important
modern development in the analysis of law. I
The question is what is feminist jurisprudence? Instead of defining it, we will begin
with its main concernthe treatment of women by the legal system, and the perception
or lack of perception of women's experiences and needs in law. In other words, it is the
extension of the feminist perspective to an analysis and critique of law. Feminism views
patriarchy as the main V reason for the subordination of women. Patriarchy is the
ordering of society
under which standardspolitical, economic, legal, socialare set by and fixed
in the interests of men. In such a society men are more highly valued : than
women. Naturally, the political structure of that society also values | men more
than women. i
In a patriarchal society, experiences and perspectives of males are the
reference points in relation to which the law is fixed. Even when laws are,
enacted for women, it is men's understanding of women, their nature, I
capacities, arid experiences that has informed the law. In short, law sees
women through the male eye. An example from criminal law will illustrate this
point. In the definition of rape given in the Indian Penal Code, an essential
ingredient is the penetration of the vagina by the penis. This is the men's
definition of sex, rather than the women's experience of sexual violation. In
Sakshi v Union of India,4 the petitioners argued that according
4 air 2004 sc 3566.

156
1
Modem Trends and Theories
:iprocally paradigm anal and nism and ndhi and ; question ement of t must be
structures from the tive.
the ide-as, ;al theory, :ther there sprudence, enting the
lefining it, >y the legal :xperiences perspective s the main y of society set by and jhly
valued also values
ties are the en laws are leir nature, rt, law sees ill illustrate d Code, an nis. This is ce
of sexual it according
to modern feminist legal theory and jurisprudence, rape is looked at as an
experience of humiliation, degradation and violation, rather than an outdated
notion of penile/vaginal penetration. It was, therefore, contented that the meaning of
rape should be broadly construed to include all forms of nonconsensual penetration.
The Supreme Court took the view that the definition of rape cannot be altered by
judicial interpretation to include all forms of penetration. The court observed that
an exercise to alter the definition of rape by the process of judicial interpretation,
when there is no ambiguity in the provisions of the enactment, 'is bound to result in
good deal of chaos and confusion, and will not be in the interest of society at large.'
Again, when the law accepts consent of woman as a defence in rape, what is
actually accepted is the male view of whether the woman consented. The
controversial decision of the Supreme Court of India in Mathura case is a typical
example of such a view.5 Here, a poor illiterate dalit girl was raped by some police
constables. The rape took place in the police station. The Supreme Court accepted
the contention of the accused that the girl has consented to sexual intercourse,
because there were no clear signs of resistance and external injuries on her body.
The accused were acquitted. The court obviously failed to look at the situation from
the victim's perspectivea poor illiterate dalit girl in police custody, unable both
psychologically and physically to resist the sexual assault on her. Silent submission
due to helplessness, in an atmosphere of domination and fear, was interpreted by the
court as consent.
The norm of family in a patriarchal society as a household headed by a man, with
his wife and children wholly dependent on him, is accepted by law also. Other forms
of family, especially those without a man, are seen as abnormal. Feminist
jurisprudence challenges the claim by those in power that the law is neutral,
detached, objective, and disinterested. Enumerating instances of disadvantages and
discriminations that women had to fight againstas in the case of inheritance and
property rights, access to education and employment, right to vote etcfeminist
jurisprudence believes that the system will not be free from gender bias until
women's lives are taken by law as seriously as men's. Feminist jurisprudence may,
therefore, be described as an approach which challenges the male-centric approach
of legal theory and practice, and which seeks to incorporate feminist reasoning into
law, and legal scholarship.
We find many similarities between the approaches of feminist jurisprudence and
CLS. They include condemnation of injustice, scepticism as to the alleged neutrality
of law, the purported separation of law from
5 Tukaram v State of Maharashtra (1979) 2 SEE 143.
157
politics, and the role that law had played in conferring legitimacy on a society's existing
institutions and social ordering. Both feminist jurisprudence and CLS share a common
intention to challenge the existing distribution of power, but feminist jurisprudence does
not travel the whole way along CLS, because feminists allege that CLS presents
oppression and discrimination in the abstract mostly from a male perspective, and it looks
down upon those problems from an academic tower. Feminism, on the other hand, looks
upwards from the position of the oppressed women, and is more concrete and specific in
its approach. 1
The different strands of feminism have influenced feminist jurisprudence. Liberal
feminism considers liberalism as the appropriate weapon to fight for improvements in
the position of women. In support of their argument they cite the examples of social
legislation passed by the British Parliament, and conclude that liberalism had claimed
and secured rights for women. Radical feminism does not share this faith in liberalism,
and considers liberalism as inadequate to meet women's needs. While the main concern
of liberal feminism is rights, radical feminism is not concerned with rights in the abstract
sense, but with the fact of domination of women by men. The basic difference between
these two kinds of feminism makes their approach to law different. Liberal feminism, by
and large, accepts the law and its reasoning process, but radical feminism rejects this
approach, since the reasoning structure of law corresponds with the patterns of
socialisation, experience and values of a particular group of privileged, educated men.
The language of neutrality of law is seen by radical feminism as a device to silence
women, and submerge a critical awareness of institutional power and domination.
Radical feminism seeks to demystify the neutrality of law, and to make the law
comprehend that women's definitions have been excluded and marginalised.
The focus of radical feminism is more on issues that affect women's private lives.
Thus, they have raised such issues as marital rape, failure of the legal system to
recognise the economic value of the contribution of women in child rearing and
housework, harassment, and pornography. According to radical feminists, abortion is not
infanticide, but an act of self-defence by a woman against the invasion of the 'other' in
the shape of the foetus. They recognise the differences between men and women, and ask
as to what justification exists for any such differences being treated as a reason for
women to be disadvantaged and discriminated?
Although there are differences, liberal feminism and radical feminism cannot be
treated as two mutually exclusive compartments. There are some areas where their views
converge. For instance, radical feminism recognises
158
y on a minist existing e whole ion and it looks , on the len, and
rudence. to fight irgument rliament, women, considers i concern rith rights i by

men. akes their ts the law >ach, since cialisation, :ated men. a device to )nal
power :utrality of ; have been
ct women's e, failure of tribution of tonography, ut an act of the shape of women,

and 5 treated as a
cal feminism lere are some sin recognises
the importance of rights-oriented strategies advocated by liberal feminism as

empowering women in some contexts.
Another influential school of feminism is known as cultural feminism. Its basic
assumptions are different from those of liberal and radical feminism. While liberal
feminism seeks women as mainly confined to the private sphere and radical feminism
sees her as man's sexual object, cultural feminism sees her as caring and connected to
others. According to radical feminists, pregnancy and intercourse imply a violation of
women's privacy, integrity and life. However, cultural feminists see pregnancy, child
birth and child rearing as matters of celebration, not matters of dread and despair. In other
words, women have a sense of connectedness to others, and to life. This attitude is
explained with an illustrative reference to dispute resolution. If males are asked to resolve
a dispute, they treat individuals as autonomous units and in any dispute they look for a
rule that covers an issue, to see what right each side possesses. In other words, they
follow an ethics of rights. Females, on the other hand, seek solution not in terms of rights,
but in terms of seeking to safeguard relationships. They do not look for rigid rules, but
are willing to adapt a different solution for each problem seeking to safeguard
relationships, revealing a concern for both sides. This is what cultural feminists call the
ethics of care. Extending this approach to law, cultural feminists argue that the refusal of
the legal system to protect these values has weakened the community as it has
impoverished women's life. What is needed, they continue, is a restructuring of law and
society to accommodate the values of nurturing, caring and loving that are traditionally
associated with women.
Post-modernism, to which we have already made a reference, also had its influence on
feminism. Post-modern feminism rejects equality, and views it as 'a construct that must
be reconstructed'. The idea of a woman's point of view, which appears in feminist
literature, is not acceptable to postmodern feminists because they consider it as a fiction,
which, in practice, merely serves to bind the individual to her identity. Practical
solutions to concrete legal situations involving women are required, rather than abstract
notions of the nature of law. Post-modern feminism believes that arguments with the
upholders of a male dominated jurisprudence on terms of its own choosing can never be
to the advantage of women as a group.
Feminism, under whatever label, shares a common aimthe betterment of women.
The question is how to achieve this. All feminists continue to raise questions which are
designed to identify the gender implications of rules and practices which might
otherwise appear to be neutral or objective. Feminist jurisprudence, in particular,
examines how the law fails to take into account the experiences and values that seem
more typical of women
159
than men, or how existing legal standards and concepts might disadvantagt women. It
also tries to expose those features of the legal system whid discriminate against or are
disadvantageous to women, the manner in which they operate, and to suggest corrective
measures. What seems to emergjis an approach which integrates the ethics of rights with
the ethics of care, '-Change must occur not only in the content of laws, but also in the
institutions of society. The demand for more representation to women in I the judiciary
and law enforcement machinery and for reservation of seats in 1 democratic institutions,
including legislatures, must be seen and understood in this perspective.
Katherine T Bartlett identifies the following three basic elements which characterise
feminist legal theory: j
(i) asking the 'women question', ie, the extent of the presence and i recognition of
women's experience in law; I (ii) feminist practical reasoning, which means a
reasoning which I proceeds from context and value difference, and the experience of I
the unempowered; and (iii) consciousness raising, meaning an exploration of the
collective experience of women through a sharing of individual experiences.
Upon these basic elements feminist legal theory seeks to articulate women's perspective,
and thereby empower women in the future development of law. I
Science, Technology, and Law
To say that advancements in science and technology produce their impact on law is to
state the obvious. We find new laws being enacted, existing laws being amended, old and
new laws being re-interpreted in response to scientific and technological advancements.
What is not so obvious is the impact of all these on basic legal concepts and doctrines, or
on legal theory itself. This impact is not direct and immediate, but indirect and
incremental.
The question whether, and if so to what extent, law must play a regulatory rule vis-a-
vis science has been raised umpteen times. Those who are against such a role being
played by law want uninhibited development in the field of science, and want the legal
system to leave the scientists free. Those who want law to play a regulatory role in
relation to science raise a number of arguments founded on ethics, public policy, and
societal interests. Too much control, will undoubtedly stifle research and development in
science. It is equally true that the absence of any control will make science a
160
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Frankenstein monster threatening the very survival of society. The real question,
therefore, is not whether law must play a regulatory role vis-a-vis science, but to what
extent and in furtherance of what interests should law regulate science?
It is also important to remember that the intervention of law is not always as a
regulatory mechanism. Law also plays the role of a facilitator, promoter, or protector of
scientific research and development. When law recognises intellectual property rights as
worthy of legal protection, it protects a new scientific invention through patent law, or
extends the protection of copyright law to computer programmes.
The inter-relationship between science and law is too complicated and elaborate a
subject, and is beyond the scope of our present discussion. What is intended is only a
quick glance at some recent developments in the field of science and technology, and
their implications for law in order to reveal the complexities as well as potentialities of
this relationship.
What comes to our mind at once are the advancements in communication and
information technology, and the challenges which they pose to the law. What can the law
do when a computer virus corrupts or destroys the data stored in your computer? Is our
conventional criminal law capable of dealing with a situation when pornographic
material is put on a website which is easily accessible to children? If someone's nude
photograph is displayed on a website, can that person bring it under any existing criminal
offence? Even if we succeed in making such acts legally punishable as crimes by
expanding the definition of some offences or creating new ones, questions of
enforcement and jurisdiction loom large. On one hand, we find the inability of legislation
to keep pace with the fast moving technological advancements, and on the other hand,
the incapability of traditional methods of law enforcement and adjudication to cope with
the problems thrown up by such advancements.
Advancements in medical science also raise several complicated questions for law. For
instance, new assisted reproductive techniques which include surrogacy, in-vitro
fertilisation, assisted insemination etc, give a jolt to conventional notions employed by
law, such as legitimacy, inheritance, and even adultery. When medical science makes
transplantation of human organs possible, law intervenes to prevent its
commercialisation. Thus, the Transplantation of Human Organs Act 1994, imposes
several restrictions on donating human organs. However, you may very well ask: 'I am
an autonomous person and have full rights over my body. Then why should law interfere
with my right to donate or even sell my kidney?'
Genetic engineering is another field, where rapid advancements are taking place. The
Human Genome Project is considered as the most ambitious
I
161
and expensive research project ever to be undertaken by man. Animals have been
successfully cloned, and human cloning is already a reality if we are to believe some
scientists, or is soon going to be a reality. The manner in which (i) existing legal concepts
and doctrines are going to be affected by these changes; and (ii) law will respond to the
new challenges, remains to be seen.
Advancements in the field of biotechnology present another potential area of challenge
to law. For instance, it is now possible by the use of recombinant DNA technique to break
through natural species barriers systematically by moving genes from one species to
another that do not combine in nature. By using such techniques, Genetically Modified
(GM) crops have been developed, which have greater resistance to pests and diseases,
and better output traits. On the positive side, GM crops are credited with better quality,
and greater productivity. Viewed from another angle, if the law protects the monopoly
rights of the inventor or breeder of the GM variety, then the farmers will have to depend
on the breeders for seeds. Such a situation may pose a threat to food security, because the
cost of cultivation may be pushed up. If the law does not afford any protection to the
breeders of GM seeds, there will be no incentive for research and production of improved
GM varieties using genetic engineering techniques. Law must also protect the rights of
farmers who develop seeds through natural selection and breeding. You may analyse the
provisions of the Protection of Plant Varieties and Farmers' Rights Act, enacted by Indian
Parliament in the year 2001, to find out how the law attempts to balance these conflicting
claims.
Another recent phenomenon is to bring under the protective umbrella of law what was
traditionally considered to be not in need of such protection. I One reason for this is the
emergence of a strong intellectual property rights ' regime, which makes it possible to
obtain exclusive right over knowledge, ' and practices already existing. It is now possible
to claim patent rights on micro-organisms, plant varieties, and bio-resources. India has a
vast reservoir of traditional knowledge of medicinal plants and indigenous methods of
treatment. It is also one of the 12 mega biodiversity regions in the world. Legislative
measures aimed to protect traditional knowledge and biodiversity have been adopted
recently. Geographical indications, which are attached to goods and services, and which
are generally associated with a certain quality, are now also protected by law. Instances of
geographical indications are Basmati rice, Darjeeling tea, Kashmiri carpet, Kanchipuram
sari, or Scotch whisky. What the law protects in all these instances is not rights in the
conventional legal sense, but interests which belong to the community.
162
Animals ty if we manner affected remains
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the cost otectioh irch and hniques. through is of the y Indian ) balance
Globalisation and Law
This is the era of globalisation' is a phrase we hear frequently in diverse contexts. Some
people even go to the extent of saying that 'there is no alternative to globalisation.' We
know that globalisation is a pervasive phenomenon, embracing every conceivable human
activity. When we think of globalisation, what immediately comes to our mind is the
dominating position of multi-national corporationsdistributing production facilities
atound the world, and catering to markets around the world. Another important aspect of
globalisation, which deserves our attention, is the fact that ecological events in one
nation unavoidably influence other nations or sometimes the entire world. De Souza de
Santos, whose views we had considered earlier in our discussion on post-modernism,
speaks about globalised localism to denote local phenomena like western music or dance
becoming global, and localised globalism to denote local conditions like the environment
being affected by trans-national influences.
The question is what, if any, is the impact of globalisation on law. Before answering
this question it would be worthwhile to turn to Anthony Giddens who has identified four
institutional dimensions of globalisation." They are: (i) the global political order
dominated by nation states separated along territorial lines (though competing with
various non-state political entities above and below the nation state), each with an
internal monopoly over the means of violence; (ii) capitalist world economy including
commodity and money market dominated by the activities of transnational corporations
and banks; (iii) world military order; and (iv) global spread of industrial development
including the transfer of technology, a shift in the distribution of production, and the
development of an international division of labour. Giddens also adds that a fundamental
aspect underlying each of these dimensions is cultural globalisation based upon
developments in communications, especially those related to mass media. Although
Giddens does not specifically mention law, we can see that law, like culture, also lies
behind each of these dimensions. Just as culture has provided the ideational infrastructure
for the different dimensions of globalisation, law has provided a part of the formal
infrastructure.
Martin Shapiro speaks about globalisation of law as 'the degree to which the whole
world lives under a single set of rules'. The increasing influence of human rights norms
on state laws, greater influence of WTO and GATT on international trade, increasing
number of internationally binding treaties, the establishment of the International Criminal
Court, and the creation of
6 The Consequences of Modernity, 1990.
163
entities with overarching supra-state structures may be seen as moves towards

globalisation of law. An inevitable effect of this is the shrinking of sovereignty, and
autonomy of the nation state. Large spheres of human interactions art being progressively
detached from purely internal regulation. A framework of transnational legal institutions
and regulations increasingly restricting the state's power to control affairs within its
borders is emerging. The result is a loss of sovereignty, both in its internal and external
aspects. 1
Autonomy denotes the actual power of a nation state to articulate and achieve policy
goals independently. An instance of the manner in which the globalisation affects the
autonomy of a nation state could be seen in the conditions attached to the loans by World
Bank, International Monetary Fund, or Asian Development Bank on the implementation
of structural adjustment and good governance programs. This includes, I inter alia,
cutting government spending, especially on social services and social security,
privatisation, elimination of fixed exchanged rates for currency, and instituting a free
market. All these are matters of policy, which have extraordinary internal social, political,
economic and legal implications. |
Martin Albrow, a leading theorist of globalisation and its effects, argues that the key
event that marks the end of the modern epoch and the beginning of the global age is
precisely the loss of the state's ability to control the new forms of social organisation,
including those related to the economic, political, cultural, and legal realms. 7
Circumstances have overcome the nation state's ability to independently determine its
own course. Is the state disappearing then? Anne Marie Slaughter, an International and
Comparative Law scholar, replies that the state is not disappearing, but is disaggregating
into its separate, functionally distinct parts. These partscourts, regulatory agencies,
executives and even legislaturesare networking with their counterparts abroad,
creating a dense web of relations that constitutes a new trans-governmental order.
According to her, international problems such as terrorism, organised crime,
environmental degradation, corruption, money laundering, bank failures and securities
frauds, created and sustain these relations.
The crucial question is whether a global legal culture is emerging as a result of
globalisation. We use the term 'legal culture' to denote law related ideas, knowledge,
beliefs, and attitudes of legal specialists. There is undoubtedly greater interaction
between legal professionals and legal academics around the world. The number of law
students studying law at law schools abroad has also been steadily increasing. The
growth of
7 The Global Age: State and Society Beyond Modernity, ] 996.
164
I
1
international law firms and inclusion of foreign lawyers in

domestic firms is another notable trend. All signatories to GATT,
including India, will have to permit the entry of foreign lawyers
in the field of legal services soon. Courts are increasingly citing
foreign decisions and borrowing legal doctrines from other legal
systems. These are clear indications of the emergence of a global
legal culture. The philosophy and value judgments underlying
such culture deserve to be deeply analysed from a jurisprudential
perspective.
We must also briefly examine the impact of globalisation on
law and society paradigm. With a greater degree of globalisation
and growth of global legal culture, a great deal of law applicable
wkhin a society will be born elsewhere and applied for external
reasons. Rules come from outside, generated by factors not
accountable to that society. They are based on and determined by
external market-based economic interests and concerns. Along
with economic and political reforms, legal reforms are also forced
upon countries seeking economic aid from international lenders
and relief agencies. Local conditions, customs and values have a
minimal influence on the creation of law, though they will
experience the consequences of its implementation.
In traditional legal theory, law is considered as a crucial
element that serves to both constitute the state, and to integrate
society. Legal positivists treat law and state as inseparable, and
society delimited by territorial boundaries of the state. State
possesses a monopoly on the legitimate use of force, and
determines the legal rules operative within the society. Pursuant
to globalisation, state law no longer exclusively regulates
relations within the society. Instead, different bodies of official
law are in operation, many of which are generated from outside.
According to Roger Cotterrell, a legal sociologist, formerly
society was significantly delimited by the jurisdictional reach or
legal systems, and law and society were almost mutually defined.
As law's.claim to exclusivity within society becomes
problematic, it no longer provides a secure means of locating
societal boundaries. As William Twining sums up: 'The
longstanding comfortable, self contained, law- society paradigm
has been rendered obsolete by globalisation.'
165
PART III
Law And Justice

The ultima however, lit the method of justice n also varies \ There an the subject, charity
etc. also possibl domination, Aristotle corrective ju all things, go justice begin all things,
gc designed to i instance, the guide to dist in this initiall imbalance is The aim of cc prior
to distu with this font To the abo retributive jus justice, the ha also. The reti punishment
oi while punishn
Lecture 14
Justice
The ultimate object of every legal system is to secure justice. The difficulty, however, lies
in giving a meaning to the concept of justice, and in devising the methods to achieve it.
Everyone wants justice, but each one's concept of justice may be different from that of
another. The meaning of justice also varies with time and place.
There are probably as many definitions of justice as there are writers on the subject.
Some people equate justice with moral values like truth, mercy, charity etc. Others may
emphasise equality as the essence of justice. It is also possible to define justice negatively
as absence of discrimination, domination, exploitation, and tyranny.
Aristotle tried to explain justice by categorising it as distributive and corrective justice.
Distributive justice addresses the basic organisation of all things, good and bad, in setting
up a society. The inquiry into distributive justice begins on the assumption that a central
authority has control over all things, good and bad, that can be possessed. The act of
distribution is designed to realise a just relationship among two or more claimants. For
instance, the principle that everyone should get an equal share is a common guide to
distributive justice. Corrective justice responds to a disturbance in this initially just
distribution on the basis of the equality principle. The imbalance is revealed by a victim
suffering harm at the hands of another. The aim of corrective justice is to recreate the just
distribution that existed prior to disturbance. We find that a major part of the law is
concerned with this form of justice.
To the above two categories we may also add two more categories, viz, retributive
justice, and communicative justice. As in the case of corrective justice, the harm caused
by another lies at the core of retributive justice also. The retributive response is to inflict
a form of suffering called punishment on the offender. Compensation is a form of
corrective justice, while punishment is a form of retributive justice. Communicative
justice
addresses the inequality that might result from exchanging goods. The just exchange
maintains the equality of the parties.
All the four forms of justice we have discussed are concerned with the result and are,
therefore, substantive in nature. It is equally important from the perspective of justice to
ensure that the process by which the result is achieved is also just. This is what we may
call 'procedural justice', The core idea in procedural justice is fairness. Even in a game
the rules of procedure must ensure that both sides have an equal chance of winning. A
fair procedure must be able to generate a just result. This is what we are trying to do by
making procedures as fair as possible, not only in judicial proceedings, but also in quasi-
judicial and administrative proceedings, where decisions affecting the rights of
individuals are taken.
A modern jurist who attempted to develop a theory of distributive justice linking it to
fairness, is John Rawls. Rawls explains his concept of justice as fairness. 1 A society
satisfying the principle of justice as fairness comes as close as a society can to being a
voluntary scheme, for it meets the principles, which free and equal persons would assent
to, under circumstances that are fair. Rawls formulates the following two general
principles:
Principle of Reciprocity
No one would acquiesce in a system that entailed an enduring loss for himself in order to
bring about a greater net balance of satisfaction for society as a whole. Rawls does not
accept Bentham's theory of greatest good of the greatest number as a measure of justice.
Suppose 49 percent of the population were slaves, and 51 percent were slave owners,
does it mean that justice will be on the side of the slave owners exploiting the slaves?
Just Savings Principle
A level of conservation and savings is to be adopted which is sufficient to promote the

best interest of the worst off members of future generations to the greatest degree
acceptable to the worst off class of people of the existing generation. Rawls believes that
justice and fairness must operate not only between individuals in any given society, but
also between members of one generation, and those of generations that succeed it.
1 A Theory of Justice, 1972.
170
Justice
;ing goods. The just
concerned with the

equally important ocess by which the
'procedural justice'.
a game the rules of lance of winning. A This is what we are
not only in judicial : proceedings, where
if distributive justice concept of justice as is fairness comes as meets the principles,

circumstances that rinciples:
n enduring loss for e of satisfaction for s theory of greatest ippose 49 percent of iwners,
does it mean iloiting the slaves?
mich is sufficient to Mure generations to eople of the existing list operate not only
een members of one
To these two general principles, Rawls adds the following two fundamental principles
of justice:2
(a) Each person has the same indefeasible claim to a fully adequate scheme of equal
basic liberties, which scheme is compatible with the same scheme of liberties for
all.
(b) Social and economic inequalities are to satisfy two conditions: first, they are to be
attached to offices and positions open to all, under conditions of fair equality of
opportunity; and second, they are to be to the greatest benefit of the least
advantaged members of society. This, he calls, 'the difference principle'.
Rawls observes that a free market system must be set within a framework of political and
legal institutions that adjust the long- run trend of economic forces so as to prevent
excessive concentration of property and wealth, especially those likely to lead to political
domination. Society must establish, among other things, equal opportunities of education
for all regardless of family income.
The first principle covers the constitutional essentials. The second principle requires
fair equality of opportunity, and that social and economic inequalities be governed by the
difference principle.
In order to resolve any possible conflict between these principles, Rawls laid down the
priority rule, which says that the first fundamental principle takes precedence over the
second. The only restrictions that Rawls will allow on the basic liberties are: (i) when the
curtailment of one liberty will result in greater liberty overall; and (ii) where a 'less than
equal liberty' is acceptable to citizens with the lesser liberties. Rawls gives the special
privileges granted to members of the legislatures to protect and strengthen the political
institutions, and thus the overall liberties of all as an example. However, Rawls states that
a departure from the institutions of equal liberty required by the first principle cannot be
justified by, or compensated for, greater social and economic advantages.
Rawls believes that his theory establishes the principles of justice that will define the
basic structure of society. The procedures for choosing these principles will be fair if
those voting on them have no conception whether they will personally benefit from the
particular principles. They must vote regardless of their personal interest. They must
proceed under the veil of ignorance about the characteristics that would lead them to
prosper or suffer under one principle or another. Rawls calls this state of ignorance the
'original position', separated from reality by a 'veil of ignorance'. In such a situation,
Rawls argues, rational individuals would choose two
1
2 John Rawls, Justice as Fairness: A Restatement, 2001.
171
principles of justice. The first is that each person is to have an equal right to the most
extensive basic liberty compatible with a similar liberty for others. This principle
expresses a commitment about the just foundations of society. It is a principle for a just
and egalitarian social organisation, but it is not distributive in nature. The distribution of
social and economic goodsthe kinds of goods that can be quantified and transferred
from one person to anotheris considered in his second principle, which states 'social
and economic equalities are to be arranged so that they are both (a) reasonably expected
to be to everyone's advantages; and (b) attached to possession and offices open to all.
Rawls's theory of justice has found its admirers as well as critics. The individualistic
emphasis of his analysis and the 'original position' and 'veil of ignorance' as the starting
points of analysis have been the main targets of criticism. One of the prominent critics is
Robert Nozick, whose theory of justice is based on two planks, viz, (i) the idea of the
minimal state; and (ii) the concept of just entitlements.
Nozick presents his idea of a just society as one in which the rights of the individual
are accorded the respect that is due to them.3 According to him, natural rights consist of
(i) a right to enjoy ones life, health, liberty, and possessions without interference by
others in the shape of violence, threat or frauds (including breaches of contract); and (ii) a
right to be compensated by any person who causes injury by violating one's natural
rights. The second right was intended to act as a restraint on future violators. In a state of
nature it is for each individual to protect his rights, but after the emergence of the state
the protection of the natural rights has become the function of the state. In Nozick's
concept of the minimal state, a state has two functions. It must obtain compensation for a
person whose rights have been infringed from the person who has done the damage.
Secondly, in order to prevent possible future damage, the state may prohibit certain forms
of potentially dangerous conduct.
The concept of just entitlement is central to Nozick's concept of justice. His view is
that an individual has a natural right to whatever he holds, provided that the way he came
to hold each part of his property was justified. A person is entitled to hold property if,
either (i) the property when acquired was not the property of anyone else, ie, it was
'unheld'; or (ii) the properry was transferred to the present holder by a valid means such
as gift or sale, and not as a result of fraud or theft. The first, Nozick calls justice in
acquisition and the second, justice in transfer. Justice in holdings is the result of either
justice in acquisition, or justice in transfer. According to
3 Anarchy, State and Utopia, \97A.
172
Justice
rty for dations Dn, but anomic om one :s 'social ioth (a) ched to
ics. The and 'veil targets of theory of ;; and (ii)
: rights of ;ording to h, liberty, ' violence, ight to be es natural e violators, s, but after ias
become tate, a state fhose rights e. Secondly, libit certain
pt of justice, er he holds, was justified, hen acquired the property s gift or sale, .lis justice
in )ldings is the According to
Nozick, the present distribution of property is just if it came about in a just manner, ie, in
accordance with the principles of justice in holdings. When property is held not in
accordance with those principles, the injustice ought to be rectified. This he called justice
in rectification, the third aspect of justice in holdings. Nozick believes that any measure
that had the effect of re-distributing wealth would infringe the natural rights of those who
held property to retain it.
Critics have drawn attention to some of the weaknesses in Nozick's theory. For
instance, although Nozick recognises a persons natural right to life and health, he does
not include a right to the things needed for the realization of these rights, such as food or
medicine. Nozick's concept of the right to life is very narrow, as it does not include the
right to the means necessary to live, but only a right not to be killed or injured by others.
We may contrast this with the expansive meaning placed by the Supreme Court of India
on the right to life guaranteed in art 21 of the Constitution. Nozick's idea of justice, which
does not recognise the right to equal opportunities, also seems to be highly objectionable.
Regarding justice in holdings, which is extremely central to Nozick's theory, some
questions arise. Suppose the injustice occurred at an earlier stage before the present
holder acquired the property. In such a case the question arises whether the present
holder who has acquired possession by legitimate means is under a duty to restore the
property to the person, or the descendants of the person who was wrongfully deprived.
Further, what will be the position if the person originally wronged had himself acquired
the property wrongfully? There are no coherent answers to these questions in Nozick's
writings.
Nozick's theory represents an individualistic analysis based on free market model of
just entitlements. To what extent it will help in striking the right balance between
individual interest and collective interest, seems to be doubtful. Justice ultimately is
about a concept of right relations in society, and the choice is not between individualism
and co-operation, but a choice in favour of the expression of the individualism of human
beings as social creatures. As Aristotle observed long back, human beings are social
animals.
Justice: Indian Perspective

Is there an Indian perspective of justice? This is a very difficult question to answer,
because the ancient Indian concept of justice has been influenced by the principles of
Islam, Christianity, and liberal ideas of the West. The ancient Indian concept of Dharma
is the concept of righteousness, which includes justice. Victory of good over evil, justice
over injustice, was accepted
173
I
Lectures in Jurisprudence ^
as an immutable universal rule. Even though the concept of equality, and respect for
human dignity are recognised in the Vedic texts, Hindu society was marked for its
unequal and class character, which resulted in discrimination. The Manusmriti (Code
of Manu), which provided a sociolegal framework for Hindu society may appear to be
non-egalitarian and undemocratic by modern standards especially because of its anti-
women and umi-Shudras outlook, but it truly reflected the social realities of the day.
The modern concepts of rule of law and equality before law were introduced along
with a secularisation of administration of justice during British period. The legal values
and ideals concerning human liberty, equality and justice introduced by British inspired
our national leaders. They fought for freedom from British domination, but not against
these British values. The Constitution, which was framed after independence, embodies
a concept of justice deeply influenced by the ideals of Western liberal democratic
thought.
The Preamble of the Constitution speaks about justicesocial, economic, and political.
The Fundamental Rights, which guarantee basic rights, and the Directive Principles,
which guide law-making and executive policies, spell out how the three-dimensional
concept of justice must be attained in Indian context. The emphasis has been on social
justice because a large segment of Indian population has been deprived of equality of
opportunity for generations. The way in which the concept of equality is balanced with
the claims of these disadvantaged sections of Indian society through the concept of
compensatory discrimination, is a unique feature of the modern Indian concept of justice.
|
174
ality, and lu society suited in d a sociotarian and ui-women ties of the
: law were tice during ian liberty, nal leaders, gainst these lependence, of Western
tl, economic, c rights, and tive policies, ie attained in cause a large f opportunity
balanced with ' through the >f the modern
Lecture 15
Administration of Justice
In any society, there are people driven by conflicting interests who are willing to use
all methods possible, whether fair or unfair, in furtherance of their interests. If
everyone resorts to the use of private force, there will be chaos, and the powerful
will dominate the weak. Civilised societies prevent such a situation by laying down
norms of human conduct, and also by establishing the machinery for the
enforcement of rights and peaceful settlement of disputes. The administration of
justice may be described as the modern and civilised substitute for private
vengeance and self-help in primitive communities. The force of the organised
community replaces the force of the individuals as the instrument of redressal and
punishment of injuries. The state protects the weak against the powerful.
The administration of justice started in the early days as a choice of peaceful
arbitration or mediation offered for the voluntary acceptance of parties, rather than
a compulsory substitute for self-help and private war. Later with the gradual
growth of the power of government, the state suppressed the ancient and barbarous
system, and laid down the principle that all quarrels shall be brought for settlement
to the courts of law. This transition was a gradual process finally resulting in the
tribunals of the state assuming exclusive responsibility for the administration of
justice.
Civil and Criminal Justice
Administration of justice, which is one of the primary functions

of the state, is generally divided into two, viz, administration of
civil justice, and administration of criminal justice. In applying
the sanction of physical force to the rules of right, the courts and
tribunals of the state may either enforce rights, or punish
wrongs.
Both in civil and criminal proceedings there is a wrong. The
law will enforce a right only against a person who has already
violated it, or who has
shown an intention to do so. Justice is administered only against wrongdoers. A wrong

regarded as a subject matter of civil proceedings is called a civil wrong, and a wrong
regarded as the subject matter of criminal proceedings is termed as a criminal wrong or
a crime.
The distinction between civil and criminal justice is based on the distinction between
crimes and civil wrongs. Crimes are public wrongs harmful to society in general. Civil
wrongs, on the other hand, are privitt wrongs. According to Blackstone, civil wrongs are
an infringement of the private or civil rights belonging to individuals considered as
individuals and are, therefore, frequently termed as civil injuries. Crimes are a bread and
violation of public rights and duties, which affect the whole community considered as a
community. The immediate victim of crime may be an individual, but still it is deemed by
law to be harmful to society in general. When we consider crimes and civil wrongs in
terms of their legal consequences, we find that a crime is considered to be beyond a
matter of mere compensation between the offender and the victim. The law, therefore,
imposes punishment on the wrongdoer. The purpose of criminal justice, we may say, is
punishment. Civil wrongs, such as breach of contracts of trespass, infringe only the rights
of individuals and, therefore, the law provides for compensation. Civil proceedings
normally result in a judgment for damages. Apart from damages, civil actions lie for
payment of a debt, for injunctions, for specific performance, for delivery of possession,
for a decree of divorce, etc. We find that civil justice is administered in a set of courts,
and criminal justice in another set of courts.
Some eminent jurists have identified the distinction between criminal and civil wrongs
with that between public wrongs and private wrongs. A public wrong is a wrong
committed against the community at large, and dealt with in proceedings to which the
state itself is a party, and prosecutes the accused. A private wrong is a wrong committed
against an individual or individuals, and it is generally remedied in a civil suit at the
initiative of the injured individual. However, all public wrongs are not crimes, eg, a
refusal to pay taxes to the state is not treated as a criminal wrong, though it is a public
wrong. It is taken to the civil court for the enforcement of the state's right to collect taxes.
Conversely, we can also say that all crimes are not public wrongs, as for instance
criminal trespass. Offences that do not concern the general public are left to be
prosecuted by the affected individuals. Thus, a division between public and private
wrongs is not coincident, but only a cross division. Public wrongs are sometimes
remedied through civil proceedings, and private wrongs are some times punished through
criminal courts. In the words of Salmond: 'Public rights are often enforced and private
wrongs are often punished.'
176
tngdoers. ;d a civil Dceedings
d on the c wrongs re private :nt of the idividuals : a breach immunity lay be an n general,
leir legal matter of therefore, lal justice, intracts or e, the law judgment of a debt, sion, for
a in a set of
n criminal wrongs. A large, and prosecutes individual initiative of imes, eg, a ng, though
Tient of the i crimes are that do not ie affected >ngs is not ;s remedied s punished ts are
often
The state takes direct interest in criminal justice, and conducts the prosecution in all
criminal cases. The government as prosecutor can pardon the offender either before or
after the trial. The injured party has little say in such proceedings; hence, criminal law is
generally regarded as a branch of public law.
Criminal Justice
We have already seen that the purpose of criminal justice is punishment. Punishment
may be described as the infliction by the state authority, of a consequence normally
regarded as an evil (eg, imprisonment or death) on an individual found to be legally
guilty of a crime. If somebody poses a question to you, as to why should we punish a
criminal, your answer probably will be that we punish a criminal so that he does not
commit any crime in future. Others may say that by punishing a criminal we are
reassuring the victim that society is concerned about what has happened to him/her.
Punishment discourages people from doing the same thing again. Looking at punishment
from another perspective, some people may say that punishment is necessary to protect
society from dangerous or dishonest people. It allows offenders to make amends for the
harm they have caused. A broader approach to punishment justifies it, saying that it
makes people realize that laws must be obeyed. As there are different answers to the
question why should we punish a criminal, there are infact different approaches to the
problem of punishment.
One prominent approach views punishment as deterrent. Offences are committed
because of a conflict between the interests of the wrongdoer, and those of the society at
large. Punishment has a deterrent effect as it destroys this conflict of interests by making
all deals which are injurious to others, injurious also to the wrongdoer. Deterrent
punishment deters someone who has committed an offence from committing an offence
again. It also deters potential offenders from committing any offence at all. This effect,
however, will be produced only if potential offenders know about the consequence of
their act. We cannot expect such deterrent effect in a society where knowledge of law
and its sentencing practices remains low.
Another approach considers punishment as preventive. Its aim is to prevent a repetition
of the offence by rendering the offender incapable of its commission. Imprisonment
serves as a preventive measure because it temporarily disables a person from committing
a crime. Suspension or cancellation of a driving license has a similar effect. The
preventive approach justifies death penalty as the most effective and permanent method
of disablement.
ill
177
1
i lie deterrent approach Has its emphasis on the motives of the offendti,| while the
preventive approach believes in physical restraint. A third approaa, j which stands in
stark contrast with the first two, is the reformative approach, f This approach considers
punishment mainly as reformation, which seeta ; to bring about a change in the
offender's character so as to reclaim him as f a useful member of society. In other words,
the objective of the reformative | method, which is also called rehabilitative method, is
to reintegrate tit f offender into society after a period of punishment, and to design the
content J of punishment so as to achieve this.
Today we find increasing importance being attached to the reformativt aspect of
punishment. The influence of this approach is visible in the; establishment of open
prisons, introduction of vocational training for J prisoners, greater use of probation and
parole, etc. Crime is considered as a \ social disease, which can be cured only by
eliminating its causes.
You must have noticed the conflict between the different approaches punishment. The
methods of punishment are necessarily related to the f objects of punishment. The
reformative theory accepts only such forms of punishments as are aimed at the education
and discipline of the criminal, | and rejects those forms of punishment, which produce
only a deterrent 01 disabling effect. In this view, death penalty cannot be accepted.
Reformativt j approach believes in the principle, 'we must cure our criminals, and not t
kill them'. It is pertinent to note that the International Human Rights | documents, which
we will discuss later, contain provisions against the death f penalty and also against cruel,
degrading, and inhuman punishment. The deterrent theory has a totally different approach
to punishment and rejects all methods of punishment, which are inadequate to dissuade
offenders j from committing further offences. If prisons are converted to training centers
to reform the prisoners, they will become too comfortable to serve as any deterrent. The
supporters of the deterrent theory also raise questions about habitual offenders, and
incorrigible criminals. They argue that such offenders are beyond the correctional
influences and unless such persons are restrained from harmful activity by some method
of disablement, they will continue to be a threat to society. The reformative approach
might, they fear, instead of deterring criminals, encourage them. The main problem with
the deterrent approach appears to be that while it may deter potential offenders, it may
turn actual offenders into hardened criminals.
The question which arises is whether it is possible to find a compromise between these
competing views of punishment. No legal system accepts any one of these approaches to
the exclusion of others, in its criminal justice system. Advancements in criminology,
which is the scientific study of crime and criminals, has brought to light the nature of
crime as mainly a product
178
of physical and mental abnormality and degeneracy. An effective system of criminal

justice administration must take this fact into account while devising the methods of
punishments. It has not been empirically proved that extremely harsh punishments really
produce a great deterrent effect and actually reduce the crime rate in society. A proper
approach will be to strike a balance between the deterrent and reformative approaches,
rather than following one of these approaches. As Salmond observes:
Although the general substitution of the reformative for the deterrent principle
would lead to disaster, it may be argued that the substitution is possible and
desirable in the special case of the abnormal and degenerate.1
There is another theory of punishment known as the retributive theory, which treats
punishment as an end in itself. It believes that the wrongdoer must pay for his crime. An
eye for an eye and a tooth for a tooth' (lex tilionis) is a primitive concept that has
survived up to the present. The retributive theory says that every crime disturbs the
balance of society. The balance is restored only by the suffering and pain inflicted on the
wrongdoer. Retribution is an extension of the idea of revenge; here the society or the state
takes up the responsibility to seek vengeance on behalf of the victim. The two theories we
have earlier discussed regard punishment as a means to some further end. This provides a
justification for the punishment, but when punishment is inflicted for its own sake, it
lacks a convincing justification. As a justification for retributive punishment, a theory
known is expiation has been advanced. According to this theory, crime is done away
with, cancelled, blotted out, or expiated by the suffering of its appointed penalty.
Punishment is considered as a debt, which the offender owes to his victim and when the
punishment has been endured, the debt is paid, the liability is extinguished, and
innocence is substituted for guilt. Salmond uses the formula 'guilt plus punishment is
equal to innocence' to convey the essence of the theory of expiation.
The retributive and expiative theories may not appear to be satisfactory theories
providing rational explanation to punishment. Nevertheless, they contain some
important principles, which cannot be ignored. The retributive theory, which regards
punishment as balance against an offence icts as an important limiting principles that a
punishment should not be j inflicted, unless there has been an offence. It is also possible
to derive a j further principle that the punishment should be proportionate to the offence.
The principle of expiation may also be extended to hold that once i person has suffered
the punishment for his crime, no stigma should be
' J9
Almond on Jurisprudence, twelfth edn, 1966,.p 97.
179
attached to him. He must be accepted by society as if he had not committed any

crime. In other words, a person's previous conviction and crime record must be
considered irrelevant, and the slate should be wiped clean.
Before ending the discussion, it is necessary to add that there are penologists
who question the necessity or desirability of punishment. They argue that two wrongs
cannot make a right, and ask: why add the pain of punishment to the pain already
caused by the offence? The victim has already suffered from the crime; then why
make the offender suffer too? Those who oppose the very idea of punishment as well
as other penologists, consider compensating the victims of crime as the most
important task of criminal justice.
Civil Justice
The right enforced in civil proceedings is either a primary, or a sanctioning j right. A

sanctioning right is one which arises out of the violation of another j right. For
instance, when A publishes a defamatory statement about B, | there is a violation of 5s
right to reputation. A right to damages arises out j of this violation. The right to
damages comes into existence as a result ofot i by way of sanction for a wrong done by
another. It is, therefore, called a | sanctioning right. Any other right is a primary right.
In our example, the j right to reputation is a primary right.
Table 1 LEGAL PROCEEDINGS
CIVIL CRIMINAL (Enforcement of Rights) (Punishment of

Wrongs)
Specific Enforcement Sanctional Enforcement

(Enforcement of a Primary Right) (Enforcement of a Sanctioning Right)
Compensation Penalty
(Recoupment of Loss) (Not really related to damage or
loss; I More in the Nature of Punishment)
Restitution peilal Reddress

(Surrender of Profit) (Payment for Loss Inflicted Unlawfully)
180
-Peru!
Enforcement of a primary right is called specific enforcement. The policy of law is to

encourage specific enforcement wherever possible and expedient, but in many situations
it is either impossible or inexpedient. It is impossible to order specific enforcement of the
right to reputation. It is inexpedient to order specific enforcement in the case of breach of
a promise to marry. In such cases, law creates sanctioning rights, the enforcement of
which is called sanctional enforcement. In both these cases, sanctional enforcement takes
the form of damages. Compensation is generally awarded when the plaintiff suffers a
loss on account of the defendant's wrong. However, even in cases where the defendant's
wrong has not entailed any loss to the plaintiff, the plaintiff may be given a right to
realise a pecuniary penalty from the defendant. In Ashby v White,2 the plaintiff was not
allowed to vote at the election. The candidate for whom he intended to vote was
successful in the election, and he did not sustain any loss. Still the defendant was held
liable in damages for the mere infringement of the plaintiff's right to vote.
Compensation may be divided into two: (i) restitution; and (ii) penal redress. In
restitution, the wrongdoer gained to the extent to which the plaintiff has suffered loss,
and he is liable to compensate the plaintiff to that extent. In penal redress, the defendant
has not made any gain to himself, though his wrongful act has caused loss to the
plaintiff. Criminal prosecution and civil actions for penal redress involve directly or
indirectly a punishment to the wrongdoer and are, therefore, called penal proceedings.
Action for restitution or specific enforcement are remedial in nature, and are called
remedial proceedings.
The difference between criminal prosecution and actions for penal redress must be
clearly understood. The former is criminal proceedings, while the latter is civil. The
object of criminal prosecution is punishment of the wrongdoer for his wrong. In an
action for penal redress, it is not punishment as such, but the enforcement of a
sanctioning right in the plaintiff, and a correlative duty on the wrongdoer, that is
involved. The immediate purpose of the proceedings is to enforce the sanctioning right,
and not to inflict punishment as such on the wrongdoer.
1
Secondary Functions of Courts
| The courts as we have seen are primarily designed for the administration of | justice.
However, their special constitution, authority, knowledge, and procedure make them
useful instrument for the fulfillment of some other analogous functions as well. These
are called the secondary functions of
2 (1703) 2 LdRaym938.
181
courts. In a wider sense we may say that administration of justice connotes all functions
of the courts of justice, including their secondary functions. The secondary functions of
courts are: i
(i) Adjudication of claims of citizens against the state 1

Administration of justice is the application of force to the rule of justice by the
courts. The force applied is the force of the state. How is it logically possible to
conceive of the force of the state being applied against the state itself? We know
that the laws provide remedies fot individuals against the state, and permits
aggrieved persons to institute legal proceedings in the state, in courts of law. The
writ jurisdiction conferred on the high courts and the Supreme Court by the
Constitution of India is an important example of judicial remedies against the
state. Adjudication against the state does not strictly come within the definition of
administration of justice and is, therefore, considered as a secondary function of
the court.
(ii) Declaration of right

In this case, the court merely makes a declaration that a certain person possesses a
particular right. This declaration sets at rest any uncertainty as to the existence or
extent of the right. Here, no enforcement as such is involved. Declarations of
legitimacy or paternity, and declaration as to the validity or otherwise of a
marriage are the typical examples. Such declarations may become matters for
enforcement in subsequent proceedings. However, declaratory decrees as such
cannot be characterised as the enforcement of a right. ?
(iii) Administration of property

It includes cases in which courts undertake the management and distribution of
property. The administration of a trust, liquidation of a company by a court, and
the realisation and distribution of an insolvent estate are examples.
(iv) Titles of right

This includes all cases in which judicial decrees are employed as the means of
creating, transferring or extinguishing right. Here judgment or decree operates not
as a remedy for a wrong, but as the title of a right. Examples are a decree of
divorce or judicial separation, an adjudication of bankruptcy, a decree of
foreclosure against a mortgager, an order appointing or removing a trustee, and a
grant of letters of administration.
All the above forms of judicial actions, which we have characterised ,
182
as secondary functions of courts, are included under the civil administration of

justice.
(v) Administration of Justice according to Law: Legal Justice and Natural Justice
A distinction is sometimes made between legal justice and natural justice. This
follows the division of law into positive, and natural law. Justice viewed in the light
of positive law, or law of the state is called legal justice. Justice according to the
natural law or the unwritten law of moral conscience is natural justice. This must be
differentiated from the current use of the phrase 'natural justice' to denote the
principles of fairness, viz the rule against bias and the requirement of fair hearing,
which occupy an important position in administrative law. Natural justice gets
incorporated into legal justice when its principles are included in positive law.
Administration of justice in courts is done according to legal justice, because of the
following advantages:
(a) Uniformity and Certainty: Natural justice does not consist of a

body of settled principles. Its content varies and, therefore, cannot be accepted as
the basis of administration of justice in courts. What we need is certainty. Law
provides fixed principles thereby ensuring uniformity, certainty, and
predictability. The rules are known in advance enabling citizens to fashion their
conduct accordingly. Legal rules may or may not embody an element of morality;
but they must possess the qualities of certainty, uniformity, and expediency. For
instance, the rule that vehicles shall move on the left side of the road is morally
neutral. However, it has the advantage of uniformity and certainty, and can be
used for the efficient regulation of traffic. The same result could be achieved
even with a rule prescribing that vehicles shall move on the right side of the road.
Infact some countries follow this rule.
(b)Security against bias: The existence of known and fixed rules is a

protection against arbitrary and biased decisions. It reduces the scope of
subjective elements in the administration of justice. It is easy to find out whether
there has been any deviation from the rule. This is not possible if judges are
permitted to decide cases according to their own notions of natural justice.
Arbitrary and perverse judgments may then go undetected and unchallenged.
183
(c) Impartiality: Equality before law is one of the cardinal principles ' of rule of law.
The credibility of law depends on impartiality in \ its application. Only such rules
which are certain and known in i advance facilitate impartial administration of
justice.
(d) Freedom from errors: It is said that 'to err is human'. But law J attempts to minimise
the errors of individual judgment. Law | represents the consensus of community as to
what is just and j reasonable. A decision according to law rather than one according >
to individual notions of justice will, therefore, be accepted as correct by the
community. The existence of fixed and certain rules also keeps the judge away from
errors. Too much discretion in individual judges would erode the credibility of the
system.
The administration of justice according to law thus secures uniformity and certainty,
security from bias, impartiality, and also infallibility to a large extent. These are
undoubtedly great advantages; but legal justice suffers from several disadvantages too.
As Salmond has observed: 'The law is without doubt a remedy for greater evils, yet it
brings with it, evils of its own.' The following are those evils or disadvantages of legal
justice over natural justice:
(a) Rigidity: Administration of justice strictly according to law does | not permit the
judge to mould the relief according to circumstances. A rule of law is fixed, and has
to be applied irrespective of the circumstances of a particular case. Law is designed
to operate generally over a wide field. It is common knowledge that situations in real
life show great diversity, which makes it impossible for any legal system to lay down
precise rules for all occasions. A rule which is just in one situation, may produce
unjust results in another. Of course, every law contains exceptions. Yet many
exceptions will lead to confusion and uncertainty. When difficulties are experienced
in a particular situation, and the need for introducing an exception is realised, it
cannot be introduced at once, but takes time. A general rule, pushed to its extreme
application, may work out injustice in particular cases. This is expressed by the
maxim 'summum jus est summa injuria'.
(b) Conservatism: It is said that law often lags behind changes in social conditions.
Social conditions shape the idea of justice. Therefore, a law which does not keep
pace with changing social conditions may reflect an outdated concept of justice.
History is replete with instances of what was considered just yesterday,
184
ges in ustice. ; social -fistory terclay,

becoming unjust today, or what was considered utter folly yesterday, becoming
the prevailing norm today. There is always a gap between law and social change.
In some legal systems it may not be easy to change the law. Conservatism, which
is a hallmark of law, acts as a constraint on the judge who has to follow the fixed
rules which belong to the past.
(c) Formalism: When law is reduced to written instruments, the words of the statute
assume importance. Giving importance to the words of the statute without due
regard to the spirit of law, is called the vice of formalism. The form becomes more
important than the content. There is the further difficulty created by ambiguity or
inconsistency in the wording of the statute. All this will affect the quality of
justice.
(d) Facility of evasion: It is possible, when the law is known in advance, to devise
methods to evade or defeat the provisions of law, and to escape from the liabilities
imposed by law. Some jurists also point out that once the maximum limit of the
sanction of law is fixed and announced, the awe and respect shown to the law in
its unwritten stage is likely to be lost.
(e) Undue and needless complexity: As the activities of society become increasingly
complex, so will the law. Law is becoming increasingly voluminous, complex,
and technical. Codification of law has not actually improved the situation, but
made it worse. Interpretations and subtle distinctions that lawyers and judges
make assume more importance than the provisions. You will easily understand
this if you peruse the commentary on any statute. For instance, the actual
provisions may run to 25 pages, but the commentaries will extend to ten times
that number. All this renders the law complex and the certainty of law, which we
have earlier listed as one of the advantages, greatly suffers.
The above comparison between legal and natural justice, drawing one's attention to the
advantages and disadvantages of legal justice, is not intended to convey the idea that one
excludes the other. That will really be a distortion of reality. In any civilised legal system,
administration of justice according to law is the basic rule which is supported and
supplemented by natural justice. It is impossible to exclude judicial discretion. Law is
meant to lid, guide, and inform judicial discretion. This is explicitly recognised in many
legal systems. For instance, art 142 of the Constitution of India empowers the Supreme
Court to 'pass such decree or make such order as is
185
necessary for doing complete justice in any cause or matter pending before J
it'. Article 226 empowers the high courts to issue writs for the enforcementj
of Fundamental Rights and 'for any other purpose'. These provisions reveal | the
constitutional recognition of judicial discretion in India.
Alternative Methods of Dispute Resolution
'Private vengeance' and self-help as methods of resolving conflicts gradually gave way
to institutionalisation of administration of justice through courts. However, the delay,
expenditure, formalities and technicalities involved in pursuing judicial remedies cause
a sense of resentment in society. In countries like India, a vast section of the community
finds the courts inaccessible because of high costs involved in litigation. Another
limitation of the courts is that judges may not have the expertise to decide very complex
technical issues that may be involved in adjudication. In every society, therefore, a
number of adjudicative bodies continue to exist outside the judicial system.
The tribunals occupy the most prominent position among such bodies. They enjoy
statutory powers to adjudicate specific matters. You must have heard of industrial
tribunals, income tax tribunals, customs tribunals etc. There are also domestic tribunals,
such as the disciplinary committee of the Bar Council, to maintain discipline in a
profession, or an organisation. These tribunals are vested with the judicial power of state;
but are not a part of the judiciary. Very often tribunals will have experts in the particular
area of adjudication as members. They are not required to follow the rigid procedure
followed by the courts. Even though a tribunal may be a part of a government
department, it is allowed to function independently as an adjudicative body. The main
advantages of tribunals are cheapness, expediency, expertise, and informality. In India,
all tribunals are subject to the jurisdiction of the high courts, and the Supreme Court.
Voluntary methods of dispute settlement are also important. Arbitration, conciliation,
and mediation are some such methods. Arbitration is becoming increasingly popular,
especially in disputes relating to international trade agreements, because the parties can
expect an expeditious and fair decision from an arbitrator who had been chosen with their
consent. Settlement of disputes through conciliation, which is legally recognised in
labour law, was being used as an informal method in settlement of other types of
disputes. Later on this method gathered momentum as a part of the legal aid movement in
India. Lok adalats, which literally means people's courts, were organised in all parts of
the country with the active involvement of judges and lawyers for the settlement of
disputes through conciliation. Lok
186
;nding before : enforcement (visions reveal
licts gradually irough courts, es involved in in society. In ds the courts :her limitation :
very complex every society, st outside the
g such bodies, ibu must have ; tribunals etc. committee of n organisation. ; but are not a 1
the particular ollow the rigid lay be a part of endently as an ire cheapness, s are subject to
adalats were granted statutory recognition by an amendment to the Legal Services
Authorities Act in the year 2002, and now their decisions have binding force. Mediation
as a method of dispute settlement is still a part of our social ethos mainly due to the
intervention of religious and political groups, social organisations, professional bodies,
local bodies, and elders of the community.
Another important mechanism for redressal of grievances against the administration,
which has a long history of effective functioning in the Scandinavian countries, is the
ombudsman. In India, a proposal to establish an ombudsman - type institution called
Lokpal is under active consideration. Several states already have similar institutions
called Lokayuktas, which are mainly concerned with allegations of corruption and mal-
administration. The main advantage of the system is that a complainant is not required to
pay any court fee, or incur any other expense. There are also ombudsmen for particular
sectors such as banking and local bodies.
Thus, we find that although courts continue to be the most important agencies of
administration of justice, they cannot claim to be the only agency. Other mechanisms of
dispute settlement also have an effective presence in every country. They serve a very
useful purpose of not only reducing conflicts in society, but also relieving the pressure on
courts to a great extent. From the individual's point of view, what makes methods of
alternative dispute resolution attractive is the efficiency, flexibility, and informality in
their functioning.
The jurisprudential question that arises for consideration is whether natural justice
scores a point over legal justice through these institutions.
int. Arbitration, ion is becoming ;rnational trade nd fair decision t. Settlement of 1 in

labour law, r other types of part of the legal people's courts, involvement of :onciliation.
Lok
187
PART IV
Elements of Law
11
Lecture 16
Rights and Duties
The structure of law is built with a number of component concepts, which are sometimes
called the elements of law. The most important elements of law have been identified as
following:
(i) Legal rights and duties;

(ii) Ownership;
(iii) Possession;
(iv) Persons;
(v) Titles;
(vi) Property;
(vii)Obligation;
(viii) Liability;
(ix) Procedure.
We will discuss legal rights and duties in this lecture, and the other elements of law in
the subsequent lectures.
The idea of rights and duties is central to the functioning of any legal system. People
recognise the need for law primarily as a means to protect their rights. When we think of
one person's rights, the idea of duty also is necessarily implied because a right cannot
exist unless the duty to respect that right in others is also recognised.
Rights
We hear the word 'right' used in a variety of contexts. We speak of fundamental rights,
human rights, legal rights, and moral rights. We also speak of rights of specific groups,
such as rights of children, rights of women, rights of minorities, rights of refugees or
even rights of unborn children, or rights of animals. Sometimes, our discussion of rights
may assume the form of a right to something, as right to education, right to food, or right
r
I
to health. It also happens that the same right may mean different things to different
people as in the case of the right to equality. The conceptualisation of rights is, therefore,
one of the most difficult problems, not only for jurisprudence, but also for individual
legal systems.
The English word 'right' literally has two meanings. In one sense, it means what is
correct or just to do. That is the meaning when we say 'I am right' or 'he is right'.
However, we use the word in a different sense when we say that 'I have a right to speak'
or you have a right to get admission'. The fact that many languages including English,
German, and French have the same word to denote right, both in the sense of being right
and having a right, shows that the human mind considers these two meanings as the same
or at least interrelated. We may, therefore, say that a person has a right only when others
consider it right to allow such a right. The 'rightness' of the right must be accepted by
others, by the society, and formally by the state and the legal system.
A legal right is commonly defined as an interest recognised and protected by law.
Individuals will have several interests. For instance, left to myself, my interest may be
purely selfish. They may extend to taking over my neighbour's property, or his car;
playing loud music and dancing at midnight; driving the car at prohibitive speed on a
busy highway, etc. It is obvious that law cannot recognise and protect all these interests.
It, therefore, becomes necessary to select those interests which are worthy of legal
protection. On what basis such interests are selected depends on the policies and
priorities of each individual legal system. One legal system may not recognize the right
of women to be treated equally with men. Another legal system may not recognize the
right of an accused person to a fair trial.
The interests of men conflict with one another. Law, being the rule of justice appraises
such interests and selects only some for protection. Ihering regards as legal rights such of
these interests as have obtained legal protection. According to him, one can be said to a
have a right only when there exists some advantage for that person, which is protected
by the state. In every case, the existence of a legal right is dependent upon the
circumstance that some human interest has secured the protection of the state.
Salmond defines a legal right as an interest recognised and protected by a rule of
justice. The word 'interest' implies any interest, respect for which^ is a duty, and disregard
of which is a wrong. This definition contains two essential elements, viz, legal
recognition, and legal protection. Both these elements should simultaneously and
concurrently be present in an interest for its transformation as a legal right. A legal
recognition of an interesT without legal protection does not make it enforceable in a court
of law, as for example, time barred debts. Similarly, legal protection of an interest
192
Rights and Duties
things to ualisation only for
sense, it say 'I am nse when Imission'. d French right and meanings lerson has ght.
The iety, and
protected :o myself, over my ncing at , etc. It is therefore, ' of legal policies may
not Another fair trial, le rule of \. Ihering led legal only when d by the upon the an of
the
tected by or which tains two oth these ti interest 1 interest sf law, as 1 interest
without its legal recognition cannot make it a legal right. When law prescribes
punishment for cruelty to animals, it protects the interests of animals. However, the
interest recognised by the law is that of the society at large which desires the welfare
of its animals. Salmond maintains that animals have no rights of their own.
The second part of Salmond's definition that a legal right is any interest, respect of
which is a duty and disregard of which is a wrong, needs some elaboration. The
question whether a person's interest amounts to a right depends on whether there
exists with respect to it a corresponding duty imposed upon any other person.
Further, right is an interest, the violation of which would be a wrong. Rights like
wrongs and duties are either moral, or legal. A moral or natural right is an interest
recognised and protected by moral or natural justice, violation of which would be a
moral or natural wrong, and respect for which is a moral duty. A legal right, on the
other hand, is an interest recognised and protected by a rule of legal justice. It is an
interest, a violation of which would be a legal wrong, and respect for which is a legal
duty.
Salmond further states that rights and duties are necessarily correlatives. He also
states that, 'there can be no right without a corresponding duty and duty without a
corresponding right any more than there can be a husband without a wife and a
father without a child'. It is because every duty must be a duty towards some person
or persons in whom a correlative right is vested. Conversely, every right must be a
right against some person or persons upon whom a correlative duty is imposed.
Gray does not accept Salmond's definition of a legal right as an interest. He
defines a legal right as that power which a man has, to make a person or persons do
or refrain from doing a certain act or acts, so far as the power arises from society
imposing a legal duty upon a person or persons. Holland's definition of a legal right
as a capacity residing in one man of controlling, with the assent and the assistance
of the state, the actions of the others' also is in agreement with Gray's approach.
Every right involves a vinculum juris, or bond of legal obligation, which connects
the right to a corresponding duty. Looking at the situation from a different
perspective, we can say that every duty must be towards some person or persons in
whom a correlative right is vested. Rights and duties are thus correlatives.
Duties
Just now we have said that rights and duties are correlatives. In common parlance
also, we think of duties as corresponding to rights. However, is it possible to think of
duties to which no corresponding rights are attached?
193
Austin, who takes strong objection to Salmonds assertion that rights and duties are
necessarily correlative classified duties into two, viz, relative duties, and absolute
duties. According to Austin, all rights have correlative duties but not vice versa, ie, all
duties do not have correlative rights. Duties which do not have correlative rights are
termed by Austin as absolute duties. He enumerates four kinds of absolute duties. They
are:
(i) Duties not regarding persons

These comprise duties towards God and the lesser beings. Duties to God are not
infact legal duties at all. Duties towards lesser beings are also generally not
considered as legal duties towards them. If the law prohibits cruelty to animals,
then it is a duty to the state. In some other cases, the duty may be to the owner of
the animal.
(ii) Duties owed to persons indefinitely
For instance, duties towards the community. Salmond does not accept Austin's view
that rights can be vested only with determinate individuals, and that an
indeterminate body like the community at large is incapable of holding rights. He
asserts that there can be no convincing reason for confining rights to determinate
individuals only. The community at large can and does possess interests which it |
enforces through its representative, the government, much as specific j individuals
do. Salmond says, 'all duties towards the public correspond , to rights vested in the
public and every public wrong is necessarily j the violation of a public right'.
Commenting on these kinds of duties, \ Paton says that they are correlative of the
right inhering in each } member of the community. The general duty towards the
community I breaks up into a mass of duties towards each particular individual. I
(iii) Self-regarding duties

In this case also, jurists have questioned Austin's classification saying that there
cannot be a legal duty owed to oneself. The duty not to , commit suicide is not a
duty one owes to oneself, but is a part of the criminal law, and subject to the same
analysis as any other duty of the criminal law. J
(iv) Duties owed to the sovereign

Austin believes that a right-duty relationship can exist between two j pt-vyatv-,
ot\V? \^ \s aJooNe tWm a potaucai supenoi who will
enforce the obligation. The sovereign has no superior, and hence may change the
law whenever he desires. In taking this view, Austin does not take into account the
fact that the state is bound by law |
194
Austin, who takes strong objection to Salmond's assertion that rights and duties are
necessarily correlative classified duties into two, viz, relative duties, and absolute duties.
According to Austin, all rights have correlative duties but not vice versa, ie, all duties do
not have correlative rights. Duties which do not have correlative rights are termed by
Austin as absolute duties. He enumerates four kinds of absolute duties. They are:
(i) Duties not regarding persons

These comprise duties towards God and the lesser beings. Duties to God are not
infact legal duties at all. Duties towards lesser beings are also generally not
considered as legal duties towards them. If the law prohibits cruelty to animals,
then it is a duty to the state. In some other cases, the duty may be to the owner of
the animal.
]
(ii) Duties owed to persons indefinitely
For instance, duties towards the community. Salmond does not accept Austin's
view that rights can be vested only with determinate individuals, and that an
indeterminate body like the community at large is incapable of holding rights. He
asserts that there can be no convincing reason for confining rights to determinate
individuals only. The community at large can and does possess interests which it
enforces through its representative, the government, much as specific individuals
do. Salmond says, 'all duties towards the public correspond to rights vested in the
public and every public wrong is necessarily the violation of a public right'.
Commenting on these kinds of duties, Paton says that they are correlative of the
right inhering in each member of the community. The general duty towards the
community breaks up into a mass of duties towards each particular individual.
(iii) Self-regarding duties
In this case also, jurists have questioned Austin's classification saying that there
cannot be a legal duty owed to oneself. The duty not to commit suicide is not a
duty one owes to oneself, but is a part of the criminal law, and subject to the same
analysis as any other duty of the criminal law.
(iv) Duties owed to the sovereign

Austin believes that a right-duty relationship can exist between two | persons only
if there is above them a political superior who < enforce the obligation. The
sovereign has no superior, and hence | may change the law whenever he desires. In
taking this view, Austin does not take into account the fact that the state is bound
bylaw!
194
Rights and Duties
rights and z, relative correlative its. Duties ute duties.
Duties to beings are If the law e. In some
not accept terminate nmunity at can be no individuals its which it i as specific

correspond necessarily Is of duties, ng in each community individual.
tion saying lury not to part of the her duty of
etween two ir who will and hence 'iew, Austin und by law
I
I
until the law is changed. There are also several limitations on the power to change
the law. We do not find many supporters of Austin's classification in modern times.
It also goes against the well accepted principle in all modern legal systems that the
state is bound by statute, unless specifically exempted.
Treating all the above four absolute duties as public duties, Salmond asserts that there
can be no duty without a correlative right. Certain duties correspond to public rights, ie,
rights vested in the community at large or the state as representative of the community. It
is, therefore, incorrect to say that these so-called absolute duties have no corresponding
rights.
Duties may be either moral or legal, though these two classes sometimes overlap. A
duty not to steal is legal as well as moral, but a duty to help a person in need is only a
moral duty. A duty to speak the truth may be legal or moral depending on the context. A
duty becomes legal when the law recognises it as a duty, and enforces the performance of
it. However, sanction is not always a necessary ingredient of a legal duty, and it may be
absent in exceptional cases.
Elements of a Legal Right
For a clear understanding of the concept of a legal right, we will follow Salmond's
method of analysis which splits a legal right into the following five essential elements:
(i) The owner or the subject of the right
A person in whom the right is vested may be called the owner or the subject of a
right. He is the person entitled or the person of inherence. The owner of a right need
not necessarily be certain or determinate. Where the owner is an unborn person, the
person entitled is uncertain. Where a right is owned by society at large, the owner is
indeterminate.
(ii) The person of incidence

He is the person bound by duty, and may be called the subject of the duty. He is the
person against whom the right avails.
(iii) Content
The act or forbearance, which the person in whom the right resides can exact, is
called the content of the right. It is an act or omission, which is obligatory on the
person of incidence to the person of inherence.
1
195
(iv) The object

Something to which the act or omission relates is the object of the right. Holland
points out the possibility of rights, which have no object. As an illustration, he
narrates the following situation. B is As servant. Here A is the person of inherence,
and B is the person of incidence. Reasonable service is the content of the right.
Holland says that the object of the right should be some material thing, which is
lacking here. Replying to Holland, Salmond observes that the term 'object' need not
be so narrowly defined. The object of a right is as essential an element in the idea of
right as the subject of the right itself. In the illustration, the object of the right is the
skill, knowledge, strength, time etc, of the person bound by the duty.
(v) Title
Title denotes certain facts or events by virtue of which the right has become vested
in its owner.
Now let us analyse how these five elements are present in a situation where A buys a
piece of land from B. Here A is the subject or owner of the right so acquired. The persons
bound are the public at large, for it is a right available against persons generally. The
content of the right consists in non-interference with A's exclusive use of the land. The
land itself is the object of the right. The title is the conveyance by which the land was
acquired by A from B.
When we try to understand a right from the owner's perspective, we find that every
right involves one of the three relationships, viz,
(i) It is a right against some person or persons;

(ii) It is a right to some act or omission of such person or persons; or
(iii) It is a right over something or to something to which the act or omission relates.
A subject in whom the right inheres, and an object in respect of which it exists are the
essential elements in the right. It is impossible to think of a right without an owner,
though the owner may be uncertain or indeterminate. Similarly there cannot be'any right
without an object. The following classification of rights is based on the objects:
(a)Rights over material things: Here the object is land, house, furniture, car, watch
etc.
(b)Rights in respect of one's own person: For instance,
(i) I have a right not to be killed. The object is my life, (ii) I have a right not to be
physically injured or assaulted. The object is my body, health, and integrity.
196
Rights and Duties
iject of the :h have no m. B is As

person of t. Holland ing, which :s that the
of a right ject of the
the skill, le duty.
: right has
ion where the right is a right insists in ;elf is the land was
(iii) I have a right not to be imprisoned. The object is my personal liberty.

(iv) I have a right not to be coerced, or deceived into acting contrary to my
desires or interests. The object is my ability to fulfill my desires and protect and
promote my interests by my own free will.
(c) Rights of reputation: The object is the good name of a person, which constitutes
an asset as valuable as any material thing.
(d) Rights in respect of domestic relation: Examples are, rights of companionship of
husband and wife, parent's right to society, affection and the security of their
children.
(e) Rights in respect of other rights: If A enters into an agreement with B to sell his
land within one year, B acquires a right against A to have the land transferred to him
within the stipulated time. B's present right is a right to have the ownership of land
transferred to him at the stipulated time. When the sale deed is executed, A acquires
the ownership right itself.
(f) Rights over abstract property: Examples are, copyright, patent, goodwill etc.
(g) Right to services: Examples are right of a master over his servants. Different
Meanings of Right
ctive, we
:rsons; or le act or
which it ink of a tain or ect. The
irniture,
id. The
We can identify four different meanings of the word 'right'. The first is right in the strict
sense, ie, I have a right when the law limits the liberty of others on my behalf. The second
is liberty; when the law allows to my will a sphere of unrestrained activity. The third class
of rights is power, when the law actively assists me in making my will effective, and the
last is immunity, when the law denies to others a particular power over me. We will now
examine these four classes of rights in detail.
Right in the Strict Sense or Stricto Senso
These rights may be defined as the interests, which the law protects by imposing duties
with respect to them upon other persons. In that sense, it is a claim or demand on another
person. Gray and Holland lay emphasis upon an affirmative control over another as the
most important aspect of rights in the strict sense. If I have the capacity to control your
acts, I have a right over you, and you are commanded by law to behave towards me in a
particular manner. Thus, you are under a duty or obligation towards me. in this way,
rights and duties
are correlative. For instance, if A has a right
197
against B that B shall not enter A's land, then B is under a duty to keep away from A's
land. It is also called a claim because I have a claim or demand on another person for a
particular act or forbearance.
Liberty or Privilege
Liberty denotes benefits, which derive from the absence of legal duty. It is also called a
privilege. My liberty consists in my freedom to do or not to do a thing as I please. There
is no duty cast upon me by law to do or not to do a particular act. When I have the liberty
to do something, I may do that without being prevented by the law. For instance, I have a
right to do as I please with my own things; but I have no right and no liberty to interfere
with what belongs to any other person. I have a right to express my opinion, but should
not defame the reputation of another. I have got the freedom to do certain things so long
as I do not infringe the rights of others. The freedom thus allowed by law constitutes a
class of legal rights different from rights stricto senso. A has the liberty to enter on his
own land and do anything which he pleases. The correlative of As liberty is B's 'no right'
to prevent A from doing whatever he chooses to do on his own land. In the case of rights
stricto senso, we are concerned with things, which other persons ought to do for us. In the
case of liberties, we are concerned with those things that we may do for ourselves.
In Hohfeld's analysis of rights, which we will discuss shortly, the word 'privilege' is
used in the same sense as liberty. Even though there are striking similarities between
these two concepts, it is possible to make a subtle distinction between privilege and
liberty. While liberty covers jhose acts tjjajâr^jjrjmarily lawful for all, privilege
coverFtKose that are prima facie unlawful but allowable in certain circumstances to all,
or else to a limited number of persons. For instance, it is unlawful for a person to make
defamatory statement about another person. A member of Parliament can make a
defamatory statement on the floor of the House, without any fear of being made liable,
because he enjoys a privilege as a member of Parliament.
Power
'Power' may be defined as the ability conferred upon a person to determine, by his own
will directed to that end, the rights, duties and liabilities, or other legal relations either of
himself or of other persons. If this definition does not give you a clear picture of a
power, some examples will make its meaning clear. The right of a person to make a will
with regard to his properties, his right to alienate his property, the power of sale vested
in a
198
Rights and Duties
mortgagee, a landlord's right of re-entry upon his land, a right of action, ie, a right of
obtaining a judgment of court of law in one's favour, the right to rescind a contract for
fraud, the right of taking out execution in judgments, powers vested in judges and other
officials for the due fulfillment of their functions etc, are all examples of powers. The
main point of difference between powers and rights stricto senso is that powers have no
duties corresponding to them. My right to make a will corresponds to no duty in anyone
else. A debt and a right of action for its recovery are not one and the same. The former is
a right in the strict sense corresponding to the duty of a debtor to pay; the latter is a legal
power corresponding to the liability of a debtor to be sued.
Powers are divided into public, and private. Public powers are those vested in a person
as an agent of the state. The powers vested in judges or executive officers by law are
public powers. Private powers are those possessed and exercised by individuals in their
private transactions.
Power may be either ability to determine the legal relations of other persons, or to
determine one's own legal relations. The former is a power over other persons, and is
called authority. An officer of the administration has authority to cancel a licence. A
judge has authority to declare a contract void. Power to determine ones' own legal
relation is usually called capacity. I have a capacity to enter into a contract, of make a
will with regard to my property.
Immunity
It is immunity from the legal power of some other persons. The correlative of immunity
is disability. The exemption given to diplomats of a sovereign state from being tried
before the courts of the state where they work is an example of immunity. The ordinary
courts, which have jurisdiction over all other persons in the states, have no jurisdiction
over them. The diplomats thus enjoy an immunity from the jurisdiction of the courts of
the state where they work as diplomats. Looking at it from another perspective, we can
say that the courts are under a disability so far as foreign diplomats are concerned.
The points of distinction between the different kinds of rights we have explained now
are clearly brought out by Hohfeld in the following words: 'A right is one's affirmative
claim against another; a liberty or privilege is one's freedom from a right or claim of
another. A power is one's affirmative control over a given 'lega'i reWion as against
anotVier, whereas an immunity is one's freedom from that legal power or control of
anothet as regards some legal relations.' Putting the distinction in a slightly different way,
199
Lectures in Jurisprudence s
Salmond says: lA right in the narrow sense is that which other persons ought to do in
my behalf. A liberty is that which I may do innocenny. X power is that which I can do
effectively and an immunity is that which other persons cannot do effectively in respect
of me.' Thus, we may conclude that I enjoy my rights in the strict sense through the
control exercised by the \aw over the acts of others in my behalf. I use my liberties with
the acquiescence of the law. I use my power with the active assistance of law in making
itself the instrument of my v/\\\. 1 use my immunities through its refusal to accord the
active assistance to others as against me.
Hohfeld's Analysis of Rights
Hohfeld has developed a method of analysing the various kinds of rights with great
logical refinement. He identified the main reason for misunderstanding and confusion in
seeking to understand the nature of a right as the failure to appreciate the fact that the
word 'right' is used with reference to four distinct legal concepts, namely a claim, a
privilege, a power, and an immunity. Though this categorisation is in agreement with the
different meanings of 'right' which we have already discussed, the contribution of
Hohfeld mainly lies in analysing the jural correlatives and opposites of these legal
concepts. First of all, we will turn to the way in which Hohfeld has defined the four
basic concepts.
(a)The first category of rights is a right to claim something. Hohfeld gives the right
of a landowner to recover his land or to obtain an order rejecting a trespasser, as
example.
(b) Privilege (or liberty) is a right to the enjoyment of something, as where a
landowner enjoys the right to go on to his own land.
(c)A power is a right to effect a legal transaction, as where X has a right to sell his
land to Y.
(d) An immunity is a right not being subject to some disadvantage, as where X, a
bankrupt, has the right not to have his clothes and certain other possessions seized
and sold by an officer of the court in execution proceedings.
Hohfeld thus uses the word 'right' in a narrow sense to refer to the first of the four
categories, viz, a claim, and also in a larger sense, to cover all the categories, viz, claims,
privileges, powers, and immunities.
Next, Hohfeld introduces the idea of a correlative for each of the four categories of
right. By a correlative, what he means is the other side to a legal relationship. In the case
of X's right to recover his land from Y, the correlative is Y's duty to give up the land to
X. The correlative of a right is, therefore, a duty.
200
Rights and Duties
Hohfeld btain an
thing, as nd.
is a right
ntage, as d certain xecution
s first of r all the
the four ide to a i Y, the right is,

The correlative of a privilege, according to Hohfeld, is a no right. If X as landowner,
has the privilege of going on to his own land and is, therefore, the only person entitled to
go on to the land, the other side of the matter must be that every one else has no right to
stop A entering his land. So any other person has a 'no right' that X shall not enter his own
land.
The correlative of power is liability. Hohfeld explained this with the following
example. A makes an offer to B. B has the power to bring a contract into being between
them by accepting A's offer. Thus, during the period that it is open to B to accept A's
terms, ie, during the period that B has power to bind A, A is liable to become bound by
the contract. In this respect, A is under a liability.
The correlative of immunity is disability. Thus, where X, a bankrupt, is immune from
having his clothes seized by an officer of a court in execution proceedings, the officer is
disabled from seizing them.
The next step in Hohfeld's analysis is the introduction of jural opposites. A right and its
jural opposites cannot be there at the same time, as a piece of white paper cannot at the
same time be black. If A has a right to exclude B from his land, A cannot at the same time
have a 'no right' to do so. The opposite of a right, Hohfeld says, is a 'no right'. Now what
is the jural opposite of a privilege? If A has the privilege of going on to his own land, it is
obvious that he cannot at the same time be under a duty in the same regard. So, the
opposite of a privilege is a duty.
The opposite of a power is a disability. If A has a power to transfer the title of his land
to B, he cannot at the same time be under a disability that prevents him from doing so.
The opposite of immunity is liability, because an immunity and a liability in respect of
the same thing cannot be there in the same person at the same time. If A is immune from
having his property seized by a court officer, he cannot be liable to have them seized at
the same time.
We can understand Hohfeld's scheme at a glance by placing the correlatives and
opposites of each form of right.
Correlative
Opposite
Table 1: Hohfeld's Table of Correlatives and Opposites

Duty No right
Liability Disability
No right Duty
Disability Liability
Form of right
Right
Privilege/Liberty
Power Immunity
201
The relations between these various categories of rights, their jural correlatives and their
jural opposites, is clearly brought out by the following two diagrams:
Diagram 1
Liability
Power
Diagram 2
In these rwo diagrams, the vertical arrows connect jural correlatives. A vertical arrow
may be interpreted either way as 'is the presence ofin another.' Thus, we get the
following propositions:
(a) Right is the presence of duty in another, or duty is the presence of right in another.
(b)Liberty is the presence of no-right in another, and vice versa.
(c) Power is rhe presence of liability in another, and vice versa.
(d)Immunity is the presence of disability in another, and vice versa.
202
Rights and Duties
The diagonal arrows in the diagrams connect jural opposites. They may be
interpreted either way as 'is the absence ofin oneself. From this, we get the
following propositions:
(a) Right is the absence of no-right in oneself, or no-right is the absence of

right in oneself.
(b) Liberty is the absence of duty in oneself, and vice versa.
(c) Power is the absence of disability in oneself, and vice versa.
(d) Immunity is the absence of liability in oneself, and vice versa.
Now what do the horizontal arrows indicate? They connect the opposites of
correlatives. We can interpret a horizontal arrow either way as 'is the absence of
in another'. This leads us to the following four propositions:
(a) Right is the absence of liberty in another or liberty is the absence of right
in another.
(b) Duty is the absence of no-right in another, and vice versa.
(c) Power is the absence of immunity in another, and vice versa.
(d) Liability is the absence of disability in another, and vice versa.
These diagrams provide us a method of defining all the eight expressions in the
diagrams in terms of three others in the same diagram. The first diagram broadly
relates to static legal relationships, while the second relates to the changing of
relationships.
Hohfeld's analysis of legal rights in terms of jural correlatives and opposites has
influenced and shaped contemporary discussions on rights. Some commentators
have drawn attention to the limitations of Hohfeld's (scheme, which we will
examine briefly now:
(a) Some critics point out that the terms which Hohfeld employs are
misleading. For instance, they suggest the term 'liberty' would convey the
meaning of the term 'privilege' better. Is it not better, they ask, to say that A is
at liberty to go on to his own land than saying that A has a privilege?
(b) Critics who accept Hohfeld's scheme in its application to civil law A I
point out to its inadequacies to meet various situations in criminal m \_ law and
public law, where duties exist, but no Hohfeldian correlative
can be found.
of [ (c) Another criticism is directed to Hohfeld's failure to define a right in a general
sense. He does not explain the common features shared by right (in the sense of
claim), privilege, power, and immunity, (d) Those who accept the logical
coherence of Hohfeldian scheme point out that it does not provide the
categories necessary to accommodate, the kind of relationships that exists in
practice. The innumerable
203
square pegs that exist in practice cannot be fitted into Hohfelffsj eight round holes.
These criticisms do not dilute the significance of his contribution to jurisprudence. The
fact that eighty two years after Hohfeld published his work, 1 explaining his analysis of
legal rights, his analysis still continues! influence judges and jurists, is sufficient to prove
the strength of his analysis, j
Classification of Legal Rights
The following classification of rights is mainly based on their nature and legal incidents.
This classification is intended to give us a better understanding of the operation of the
concept in the legal process. We will examine the different ways in which rights are
classified.
Perfect and Imperfect Rights
A right is considered perfect when it is enforceable through a court of law. There is a

corresponding duty for the breach of which a civil or criminal action will lie. Judgment
will be executed if necessary with the physical force of the state.
There are certain other rights, which are not so enforceable. They art called imperfect
rights. Claims barred by lapse of time, claims unenforceable on account of some
technical defect such as insufficient stamp or nonregistration, belong to the category of
imperfect rights. Lapse of time does not destroy the right, but reduces a perfect right into
an imperfect right, Though unenforceable as such, an imperfect right may serve a useful
purpose in the following situations:
(a)As a ground of defence though not as a ground of action, for example right of set-
off.
(b) To support any security that has been given for it. A mortgage w pledge remains
perfectly valid, although the debt secured by it has ceased to be recoverable by
action.
(c)When it is converted to a perfect right. The right of action may not be non-existent,
but may be merely dormant. An informal verbal contract may become enforceable
if some written evidence of it conies into existence, as for instance, an
acknowledgement of liability.
Rights against the state were earlier considered as imperfect because a subject can have
no right against the state. However, this is no more correct. It is now well accepted that
the subject may have a legal right against the state, which can be enforced.
1 Fundamental Legal Conceptions as Applied in Judicial Reasoning, 1923.
204
Rights and Duties
Positive and Negative Rights
When a duty, which corresponds to a right, is a positive duty, that right is called a positive
right. The person on whom the duty lies shall do some positive act on behalf of the
person entitled. A negative right corresponds to a negative duty, ie, a person bound shall
refrain from some act, which would operate to the prejudice of the person entitled.
Positive right is a right to be positively benefited; negative right is merely a right not to
be harmed.
This distinction is considered to be of great practical importance. The law is more
concerned with prevention of harm than enforcement of positive benefit. Liability for
harmful acts of commission is the general rule, but liability for acts of omission is the
exemption. We can say that generally, all men are bound to refrain from all kinds of
positive harm, while only some are bound in some ways actively to confer benefits on
others. I have a right against everyone not to be pushed into the river, but no right to be
saved from drowning.
Real and Personal Rights or Rights in Rem and Rights in Personam
A real right or right in rem is a right over a res or thing. It corresponds to a duty imposed
upon persons in general. The right in personam or personal right corresponds to a duty
imposed upon determinate individuals. It is said that a right in rem is available against the
whole world, while a right in personam is available only against particular persons. It is
an interest protected solely against determinate individuals. For instance, my right to the
money in my purse is a real right or right in rem, but my right to get money from another
person who owes it to me is a right in personam. It was mentioned earlier that a right in
rem is a right over a res or thing. It must not be taken to mean that it must always relate
to a tangible res. A right of reputation is a right in rem, because it is a right available
against persons generally. However, my right to compensation from a person who has
infringed my right of reputation is a right in personam, because it is available only against
a particular person. In a sense, a right in rem is a right to be left alone by other persons,
ie, a right to their passive noninterference. Law does not confer a legal right on any
person with the active assistance of all in the world. The duties of others as against the
owner of the rights are negative in character in so far as they need to remain only passive.
205
Jus ad rem or a Right to a Right ^
Jus ad rem is a right to a right. I have a ^'uf <z</ rem when I have a right chat some
other right shall be transferred to me, or otherwise vested in me. It is a right in personam.
Examples of jus ad rem are a contract to assign property in future, a promise of marriage
etc. Here, two rights are involved. The right, which is to be transferred, may be either a
right in rem or a right in personam, but the other right, ie, a right to a right will always be
a right in, personam only. J
Proprietary and Personal Rights
The aggregate of a man's proprietary rights constitute his estate, his assets, and his
property. This is called vermogen in German jurisprudence, and patromoine or avoir in
French jurisprudence. The sum total of man's personal rights constitutes his status, or
personal condition as opposed to his estate. The main distinction between these two
kinds of rights lies in the fact that proprietary rights are quantifiable, while personal
rights are not. We may say that proprietary rights are elements of a man's wealth, while
personal rights are merely elements of his well-being. A person may own land or
chattels, patent rights, goodwill of a business, shares in a company, or debts due to him.
All these are proprietary rights. Whatever rights a person has as a free man, a citizen, a
husband, a wife, a father or a mother, are personal rights. A man's right to personal
liberty and to reputation are rights related to his status and welfare, not his wealth. These
are not quantifiable because they are not estimable in money value. What can be
measured in terms of money fall under estate. Thus, we may say that tie distinction
between estate and status is really the difference between wealth and welfare.
The word 'status' is used differently in different contexts. It may denoc the full legal
position of a man, including both his personal and proprietary capacity. People speak of
the status of a landowner, that of a trustee, or of an executor. Here the word 'status' is
used in its widest sense. Sometime! the word 'status' is used to refer only to the strictly
personal rights and liabilities of a person with the exclusion of his proprietary rights.
While discussing proprietary and personal rights, the word 'status' is used in this sense. In
another sense, the word 'status' is used to denote personal capacitia and incapacities, as
the incapacity of a minor to enter into a valid contratt Fourthly, status may denote the
compulsory position of a person fixed by law to which certain rights and duties may be
attached. This is different from a contract, which is a product of agreement between the
parties. |
i
206
Rights in re propria and Rights in re aliena
In order to understand what is a right in re propria, we have to understand a right in re

aliena first. A right in re aliena, which is also called an encumbrance, is one which limits
or derogates from some more general rights belonging to some other person in respect of
the same subject matter. All other rights are rights in re propria. The right of a landowner
may be subject to that of a tenant to the temporary use of the property, or to the right of a
neighbouring landowner to the use of a way over his land, or to some other easement. A
right subject to an encumbrance is called a servient right, while the encumbrance which
derogates from it, is called the dominant right. An encumbrance always runs with the
right encumbered by it. This is what we mean when we say that the dominant and the
servient rights are necessarily concurrent. It follows that the encumbrance goes with the
encumbered right into the hands of new owners. Change of ownership will not free the
right from the burden imposed upon it. If a sub-mortgage is created by a mortgagee, then
the original mortgage will be servient to the sub-mortgage.
The important kinds of encumbrances are:
(i) Leases
It is the encumbrance of property vested in one person by a right to be in possession

and use of it vested in another. Here, we find a separation of ownership and
possession. The lessee rightfully possesses, but does not own the property. The
lessor is not the owner, but the person who transferred the possession to another.
(ii) Servitudes
A servitude is a right to the limited use of a piece of land unaccompanied either by
the ownership, or possession. The most common examples are a right of way over
another man's property, or a right to sunlight over one's property. It is rightful use of
property without either ownership, or possession. If A and B agreed that A shall have
exclusive possession of a defined strip of B's land, it is a lease. If A and B agree that
A shall use a defined strip of land for the sole purpose of passage without any
exclusive possession or occupation of it, then it is a servitude. This must be
distinguished from a mere license, which is a grant of power to cross another man's
land once or twice.
(iii) Securities
A security is an encumbrance vested in a creditor over the property of his debtor for
the purpose of securing the recovery of the debt. The
207
right to retain the possession of an article until the particular debt is paid is a typical
example of a security. When one person guarantees the debt of another, it is called a
surety. It is a personal guarantee. In the case of securities, there is a property
guarantee.
(iv) Trusts
A trust is an encumbrance in which the ownership of property is limited by an
equitable obligation to deal with it for the benefit of someone else. There is a
division between responsibility and benefit. When a guardian is a trustee for the
minor, the guardian is responsible for the property, but the benefit of it should go to
the minor. Here the guardian is the trustee, and the minor is the beneficiary.
Principal and Accessory Rights
A right may be affected either adversely or beneficially by the existence of other rights. A
right is adversely affected when it is limited or qualified by another right vested in a
different person. It is beneficial when a supplementary right vested in the same person is
added to it. The right so augmented is called a principal right, while the right appurtenant
to it is the accessory right. A security is accessory to the right secured. A servitude is
accessory to the ownership of the land for whose benefit it exists. Similarly, the rent and
covenants of a lease are accessory to the landlord's ownership of the property.
Primary and Sanctioning Rights
A sanctioning right is one, which arises out of the violation of another right. All other
rights which have some other source than wrongs, are primary rights. A primary right
may either be a right in rem, or a right In personam. My right not to be assaulted is a
primary right in rem. My right that you perform your contract with me is a primary right
in personam, but the sanctioning right, which arises from the violation of primary right,
will be in all cases a right in personam. When you assault me I have a sanctioning right in
personam to damages. If you break your contract with me, I have a sanctioning right in
personam to damages. It is obvious that sanctioning rights in their very nature can be
available only against specific persons and they must, therefore, be rights in personam.
Legal and Equitable Rights
Legal rights are those rights recognised by Common Law courts, and
208
Rights and Duties
equitable rights are those rights recognised only in the Court of Chancery. Principles of
equity were evolved in English law in order to mitigate the rigours of ordinary law.
Inspite of the fusion of law and equity by the Judicature Act 1873, the historical
distinction still survives, and is relevant in some situations. Ordinarily, certain formalities
are necessary for the creation of legal rights. For the creation of a legal mortgage, the
execution of a document duly registered is necessary; but an equitable mortgage may be
created by mere deposit of title deeds.
When two legal rights are found inconsistent, the first in time generally prevails. This is
expressed by the maxim 'qui prior est tempore potior est jure'. A similar principle is
applied when there is inconsistency between two equitable rights. When a legal right and
an equitable right are in conflict, the legal right will prevail over the equitable right, even
though subsequent in origin, provided that the owner of the legal right acquired it for
value, and without notice of prior equity. As between a prior equitable mortgage and a
subsequent legal mortgage, the legal mortgage will prevail.
Vested and Contingent Rights
When all the facts, which must by law occur in order for the person in question to have
the right, have occurred, the right becomes vested. A right remains contingent when some
but not all of the vestitive facts have occurred. For instance, if a piece of land is gifted to
A for life and then to B, if B survives A, A gets a vested right and B, a contingent right.
B's right is contingent because some of the vestitive facts have not yet taken place. It is
also possible that the vestitive facts may never take place if B does not survive A.
However, if B survives A, his contingent right becomes vested. A contingent right is also
called an incomplete right.
It is necessary to distinguish a contingent right from a mere hope or ipes. If A gives
some property in his will to B, then B has no right to the property during A's lifetime. He
has no more than a hope that he will obtain the property. This is not considered a
contingent or incomplete right, since it is open to A at any time to alter his will.
Theories on the Nature of Rights Will or Choice Theory
There are two competing theories as to the nature of rights. The first, which is known as
the will or choice theory, views the purpose of the law as being to grant the widest
possible means of self-expression to the individual,
209
the maximum degree of individual self-assertion. The theory identifies the right-bearer
by virtue of the power that he has over the duty in question. He can waive it, extinguish
it, enforce it, or leave it unenforceable; what he does is his choice. As Hart, the main
contemporary exponent of this theory, says: 'Individual discretion is the single most
distinctive feature of the concept of rights'.
This theory has several inadequacies, both moral and conceptual. Wt have a duty not
to kill or torture anybody, and there is undoubtedly i corresponding right. Is it
permissible for a potential victim to release others from this duty even if that is his
choice? A terminally ill patient may waive his right to life and ask for removal of the life
supporting equipments, and thus put an end to his life. It is a question of great legal and
moral complexity, whether a person has the right to waive his right to life.
Mac Cormick attacks the will theory using children's rights. Children do not have the
right to sue, but they may sue through a next friend, usually their parent or guardian. If
that person refuses to sue, that does not in any way affect the existence of the right. The
will theory has been accused of causing confusion between the substantive right, and the
right to claim it. Another problem relates to emerging rights such as the rights of
animals, environmental rights etc, which cannot be adequately explained using the will
theory. The defenders of the theory, however, dismiss this criticism saying that to use the
word 'right' in these contexts is no more than inflated rhetorics. The fact that humans
have some duty towards animals, eg, under the Prevention of Cruelty to Animals Act,
does not confer any rights on them. Similarly, one may speak about good and bad
policies towards the environment, but not about environmental rights. '
Interest or Benefit Theory
Another theory of rights places the emphasis on interests or benefits. What a right
protects is not choice, but some interest or benefits of the person who holds the right. The
theory concentrates attention on what is infact protected. Its supporters claim that the
interest or benefit theory meets all situations, regardless of whether the right holder is or
is not the person who has a choice as to whether steps should be taken to enforce the
right. This theory first found in the writings of Bentham was later adopted by Ihering.
The modern exponents include Mac Cormick, and Raz. The main; advantage of the
interest theory is that it enables us to talk of rights in advance of determining exactly who
has the duty or needing to spell out in detail what is comprised in the duty. This theory
covers all types of rights; and all types of right bearers, and, therefore, appears to be more
convincing*
210
Rights and Duties
Dworkin's Theory of Rights as Trumps
The most significant contribution to the jurisprudential theory of rights in recent times
has come from the writings of Ronald Dworkin. 2 He develops a very sophisticated view
of democracy arguing strongly for individual and minority rights, rights which cannot be
overridden by the legislature on simple policy grounds. This theory of democracy is
linked to his view of the judicial process that judges act as the protectors of individual
rights against the state, as well as between individuals.
Dworkin's theory involves more than simply judicial protection of established rights,
but has also the wider dimension of entrenching certain tights, whether they be against
the government, such as the right to free speech, or between individuals, such as the right
to recover damages for negligence. He gives a special place to rights calling them
'trumps' over general utilitarian justifications. In order to make Dworkin's theory
applicable to legal systems, it is necessary to identify not only the rights an individual
has got against the government and against other individual, but also the degree to which
each right is entrenched within a given legal system. The more entrenched or
institutionalised a right is, the less the government is able to enact legislations, which
undermine that right. Dworkin provides a general distinction between abstract and
background rights, and institutional or concrete rights. Background rights provide a
justification for political decisions by society in the abstract. Institutional rights provide a
justification for a decision by some particular and specified political institution. With
reference to British context, Dworkin says that aright to free speech is not a concrete
right contained in any constitutional provisions. It is overridden on collective policy
grounds such as, preventing terrorist organisations from having publicity by way of
prohibiting media report of their statements. Concrete or institutional rights are more
precisely defined aims and at their most concrete, grant individual rights before
institutions such as the courts. It is possible that an abstract right may gradually get
concretized.
Fundamental Rights
Dworkin's concept of entrenched rights find expression in the Bill of Rights in the
Constitution of USA, and the Fundamental Rights in the Constitution of India. The most
important feature of these rights are that they cannot be taken away or abridged by
ordinary legislation. Thus, these
2 Taking Rights Seriously, 1977.
211
rights are placed in a higher pedestal beyond the reach of legislatures. Even if the
legislature makes a law, which contravenes a Fundamental Right, such law will be
invalid. The higher judiciary in exercise of the power of judicial review can decide
whether a law contravenes a Fundamental Right, and then declare the law
unconstitutional. Constitutions with entrenched rights contain the power of judicial
review either expressly, or implicitly.
Even in UK, which has no written Constitution with entrenched rights, the enactment
of the Human Rights Act 1998, has virtually created i category of specially protected
rights by incorporating the provisions of European Convention on Human Rights 1950.
Inspite of the doctrine of parliamentary sovereignty, British courts can make a
declaration of incompatibility, if the provisions of any law are found to be inconsistent
with the provisions of the said Convention.
In India, the Constitution permits the suspension of Fundamental Rights, except the
right to life and personal liberty, during national emergencies. It is also possible to
amend, abridge, or take awayi Fundamental Right by amending the Constitution. Thus,
the right to acquire, hold and dispose of property, which was a Fundamental Right, was
deleted by the Constitution (Forty fourth Amendment) Act 1978. However, the Supreme
Court has imposed a limitation on the amending power of Parliament by laying down
that the basic structure of the Constitution cannot be amended or abridged. Fundamental
Rights, which can be treared as an integral part of the basic structure of the Constitution,
are, therefore, beyond the amending power of Parliament.
It is also interesting to note that the content of many Fundamental Rights enumerated
in the Constitution undergoes a change in course of time as a result of judicial creativity
in interpretation. To give a prominent example, we can take the case of Fundamental
Right to life and personal liberty in art 21 of the Constitution. This right has been
interpreted to include the right to livelihood, right to live with human dignity, right to
unpolluted environment, right to shelter, right to health, right to education etc. This
clearly shows the role of the judiciary not merely in thrj enforcement, but also in the
conceptualisation of rights. 1
Fundamental Duties I
The Constitutions of socialist countries generally include Fundamental | Duties in them,

but other Constitutions like the Constitution of Sri Lanka j also include Fundamental
Duties. The Constitution of India did not ( originally contain any Fundamental Duties,
but they were subsequently] inserted by the forty-second amendment of the Constitution
in the year;
212
Rights and Duties
II
1976. The Fundamental Duties in the Constitution are not considered as enforceable
through courts of law; but they are considered important because the perspective of the
Constitution, which lays emphasis not only on Fundamental Rights but also on
Fundamental Duties, is clearly revealed. The enumeration of duties also performs an
educative role. In the interpretation of constitutional provisions and statutes, the courts
have made use of Fundamental Duties for guidance and inspiration. These duties cannot
be considered as the correlatives of any rights in anyone. If we accept Austin's
classification, we may bring them under absolute duties.
Natural Rights and Human Rights
We find that the contemporary 'rights talk' very often revolves around the idea of human
rights. The increasing importance that the concept of human rights has attained globally,
is indeed impressive. So our discussion of rights must include human rights also.
The idea of human rights is very akin to natural rights. First, let us try to understand
what natural rights are. In an earlier lecture, we have discussed natural law in detail.
When we say that natural rights are those rights recognised by natural law, the meaning,
hopefully, is clear to you.
The idea of natural rights has a very ancient origin. In every society, we find an
acceptance and recognition of the idea. Greek philosophers asserted the 'natural' equality
of men, and their consequent right to freedom. French and American revolutions were
inspired by the idea of rights of man. The Communist manifesto became an influential
document mainly because of its denouncement of wage slavery which was degrading to
human nature, and its appeal to all workers to assert their equal brotherhood.
Natural rights may be described as our rights as human beings. They exist
independently of laws and governments of every existing society. If the law condemns a
human being to be a slave, he or another on his behalf, may yet hold that he has a natural
right to be free. Now you may ask, what is the nature of that right? By what status is that
right available to him? Which law protects that right? The only answer is that his natural
status as a man entitles him to the right to be free. If that right is not guaranteed by the
law of the state, positive law falls short of the ideal set by natural law. Positivists
generally deny the existence of natural rights. Yet even a positivist like Hart accepts the
existence of the right to be free, when he says, 'if there are any moral rights at all, it
follows that there is a least one natural right, the equal right of all men to be free'.
Natural rights may be moral rights, but that does not mean that all natural rights are
moral rights. Many natural rights have a political character, and are not based on
morality.
213
The phrase 'natural rights' fell into disfavour due to the decline of natural law. What
has emerged in its place with greater force is human rights. Although we cannot say that
there is complete agreement about the nature of human rights or their substantive scope,
there is widespread acceptance of the principle of human rights at the domestic as well as
international level. The idea of human rights is used to affirm that individuals, solely by
nature of being human, have moral rights which no society or state should deny. This
idea has its source in the theory of natural rights.
Abstract notions of human rights assumed a more concrete and universally accepted
form with the adoption of the Universal Declaration of Human Rights (UDHR) in the
year 1948. It begins with a proclamation in the Preamble that 'recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world'. The provisions of UDHR
enumerating specific rights also clearly reveal the strong influence of natural law. UDHR
was followed by many international covenants and conventions containing more specific
elaboration and enumeration of human rights.
The most important among such international documents are the International
Covenant on Civil and Political Rights; International Covenant on Economic, Social and
Cultural Rights; Convention on the Elimination of All Forms of Discrimination against
Women; Convention on the Rights of the Child; and Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. These and many other
similar documents now constitute a body of international human rights jurisprudence.
Human rights get transformed into legal rights when they are recognised and
incorporated in the law of the state. Therefore, practically all the civil and political rights
have been incorporated in the Constitution of India as Fundamental Rights. Economic,
social and cultural rights which can be realised only by collective action have been
included as Directive Principles of State Policy. Further, a number of laws have been
enacted in order to fulfill India's obligations under the international human rights
documents. Even when a law has not been enacted, the Supreme Court underlined the
importance of human rights and an obligation under the international conventions to lay
down legal norms to prevent sexual harassment at work place.3
Another significant step was the enactment of the Protection of Human Rights Act in
the year 1993, which defines human rights as: 'the right
3 See Vishaka v State ofRajasthan AIR1997SC3011.
214
Rights and Duties
relating to life, liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and enforceable by Courts in
India'.
This definition is legalistic because it recognises as human rights only those rights
which are guaranteed by the Constitution or embodied in the international covenants, and
enforceable by courts in India. The mere embodiment of a right in a covenant is not
sufficient. Infact, the idea of human rights is much wider, and provides an ideal towards
which legal systems should strive to reach through appropriate laws and policies.
In UK, in order to fulfill the obligations of the state under the European Convention on
Human Rights, the Parliament enacted the Human Rights I Act in 1998. A peculiar
feature of the Act is that it empowers the judiciary I to make a declaration of
incompatibility if any law enacted by the Parliament | is found to be inconsistent with the
provisions of the Convention. This places human rights above the ordinary law.
215
Lecture 17
Ownership
Ownership and possession are two words, which we commonly use in our daily life
without thinking about their legal incidents or consequences. However, even when we
use these words in our ordinary conversation, we generally associate certain rights and
obligations with these words. It is surprising that a child who has not learned these two
words is capable of understanding the meaning of these words, and also the difference
between the concepts of ownership and possession. For instance, if you give a toy as a
birthday gift to a child, he/she immediately understands that the toy belongs to him/her.
He/she considers himself/herself as the owner of the toy, and does not permit others to
touch it. If he/she permits another child to play with the toy, he/she expects that it will be
returned to him/her after some time. In his/her mind, there is a clear knowledge that
he/she is parting with the possession of the toy, but has no intention of giving up
ownership. On the other hand, he/she may voluntarily give the toy as a gift to her sibling
or a dear friend. Now he/she has no expectation of getting it back, and knows that he/she
has relinquished not only the possession of the toy, but also its ownership. Law converts
these simple ideas to legal concepts by defining their meaning with precision and
refinement. We will examine the legal concept of ownership in this lecture, and consider
the concept of possession in the next lecture.
Ownership as a legal concept denotes a legal relation between a person who is called
the owner of the right, and a thing over which he can exercise certain rights. The right of
ownership is the most complete or supreme right that can be exercised over anything. It
consists of four rights, namely:
(i) using the thing;

(ii) excluding others from using it;
(iii)disposing of the thing; and
(iv) destroying it.
There are jurists who do not consider ownership as an aggregate of rights,

II! 1
but as a single comprehensive right. Consider, for instance, the following observations of
the well-known jurist W Markby: \
i
If all the rights over a thing were centred in one person, the person would be the
owner of the thing and ownership would express the condition of such a person in
regard to that thing. But the innumerable rights over a thing thus centred in the
owner are not conceived as separately existing. The owner of land has not one
right to walk upon it, and another right to till it. All the various rights, which an
owner has over a thing, are conceived as merged in one general right of
ownership...To use a homely illustration it is no more conceived as an aggregate of
distinct rights than a bucket of water is conceived as an aggregate of separate
drops.1
Whether we consider ownership as an aggregate of several rights or as a single

comprehensive right, the idea of ownership would be understood better if we examine
the incidents of ownership. The following five incidents of ownership give us a clear
picture of ownership as a legal concept:
(a)The owner has a right to possess a thing, which he owns. This does not mean that
he is always in possession, but only indicates his right to possess. A person may be
wrongfully deprived of possession as in the case of As watch stolen by B. Here B
has possession, but A remains the owner with an immediate right to possession. A
may also voluntarily give possession of the watch to somebody else. He may lend
it to C for a day or give it to D fot repairs. A is still the owner of the watch, and he
retains a right to repossess it aftet the permitted period, or after repairs.
(b) The owner normally has the right to use and enjoy the thing owned, the right to
manage it, the right to decide how it shall be used, and the right to income from it.
These rights are sometimes called liberties, because the owner has a liberty to use
the thing, ie, he is under no duty not to use it in contrast to others who are under a
duty not to use or interfere with it.
(c)The owner has the right to consume, destroy, or alienate the thing. The rights to
consume and destroy are also liberties. The right to alienate, ie, the right to transfer
his right to another person, involves the existence of a power. The owner can sell or
mortgage property during his lifetime or dispose of the property after his death by
will after complying with the legal requirements. A non-owner, even though he has
possession, cannot normally transfer the right of ownership over a thing to another.
The principle applied here is nemo dat quod non- habat, ie, no man can give a
better title than that which he himself has.
Elements of Law, 1905.
218
Ownership
w foil
owing
id be the a person entred in d has not is rights, d right of iggregate separate
hts or as a understood we incidents icept:
s. This does idicates his f possession ision, but A ion. A may dy else. He I is still the it
after the
ing owned, e used, and mes called ig, ie, he is ire under a
: the thing, he right to n, involves ;e property ath by will vner, even ie right of ed here is
title than
I
(d) Ownership is indeterminate in duration. The interest of a non-owner in possession

is subject to be determined at some future set point. The interest of a bailee or
lessee comes to an end, when the period of hire or the lease determines. The
interest of the owner remains forever. It is not determined by any set point or even
by his death.
(e)Ownership is residuary in nature. An owner may give a lease of his property to A,
an easement to B, a right of profit to C. Now he retains whatever rights remain after
the above rights have been specifically given to others.
Definitions
Another way of understanding the concept of ownership is with the help of definitions
given by eminent jurists. A widely accepted definition is that of Austin, who defined
ownership as a right indefinite in point of user, unrestricted in point of disposition, and
unlimited in point of duration over a determinate thing. Let us now analyse each of these
components.
Indefinite in Point of User
It is practically impossible to enumerate the wide variety of ways in which the thing
owned may be used by the owner. However, when Austin describes ownership as
indefinite in point of user, it may not be taken to mean that the owner has an absolute
right to use his property in whatever way he likes. All legal systems impose conditions on
the user of property. It is well accepted that every owner must use the object of ownership
so as not to injure the rights of other persons. For instance, a landowner cannot remove
earth from his land so as to deprive the neighbour's land of lateral support. Similarly, the
owner cannot use his property in such a way as to cause nuisance to his neighbours. The
ancient maxim, which embodies [this idea is sic utere tuo at alienum non leadas, ie, so
use your own property as not to injure your neighbour's. Similarly, an owner cannot
prevent the entry of officers of the state into his property, when such entry is authorised
by law as in the case of an officer of justice entering the premises of anyone in pursuance
of a warrant issued by a court. Ownership is also subject to encumbrances in favour of
others, in which case the power of user enjoyed by the owner is curtailed by the rights of
encumbrances.
Unrestricted in Point of Disposition
This denotes the absolute rights of alienation enjoyed by an owner as a
219
necessary incidence of ownership. However, here again limitations exist. The law
governing transfer of property may seriously interfere with the owner's power of
disposition. For instance, a transfer of property made with an intent to defeat or delay
creditors is not permissible under the law. The rights of encumbrances also constitute a
limitation on the power of disposition.
Hindu jurisprudence considers fitness for free disposal as a significant feature of the
concept of ownership. The Viramitrodaya1 gives the simile of a seed, which contains
within it the capacity to germinate, and be convened into a sprout. Various causes may
impede this capacity, but it cannot be said that the capacity to germinate and take the
shape of a young plant is not possessed by the seed. Similarly, though an owners power
of dealing with his property may be restrained by various considerations, it cannot be said
that ownership does not connote 'fitness for free disposal'.
Unlimited in Point of Duration
When we describe ownership as unlimited in point of duration, it means that a right is

capable of existing so long as the thing owned exists. The right is not extinguished even
on the death of the owner, because ownership devolves upon his heirs who are the
persons appointed by law to succeed the property remaining undisposed at the time of his
death. This quality of ownership also cannot be taken as absolute. There are situations,
which limit the duration of ownership. For instance, a testator may settle his property on
his widow with a condition that on her remarriage, the property shall devolve upon his
children. Here the widow remains the vested ownet of the property until her remarriage,
but her ownership is limited in point of duration. The rule against perpetuity is another
limitation upon the unlimited duration, and power of disposition of the owner.
Some other definitions of the concept of ownership also deserve our attention. GW
Keeton defines ownership as 'the ultimate right to the enjoyment of a thing, as fully as the
State permits, when all prior rights in that thing vested in persons other than the one
entitled to the ultimate use, by way of encumbrance, have exhausted'. According to
Salmond, ownership in a material thing is the general, permanent, and inheritable right to
the users of that thing. Placing emphasis on the powers of use and disposal, Pollock
defines ownership as the entirety of the powers of use and disposal allowed by law.
Finally, it is to be stated that although we speak of ownership as a right, it would be
preferable to speak of it as a collection of rights, liberties,
2 Quoted in Mahajan VD, Jurisprudence and Legal Theory, fifth edn, 1987, p 331.
220
Oumership
powers and immunities, following Hohfeld's analysis. We must also recognise that
some of these rights, liberties, powers and immunities are frequently found to reside
either for a limited period, or perpetually in persons other than the owner.
Kinds of Ownership
Corporeal and Non-corporeal Ownership
Ordinarily, the subject matter of ownership is a physical and material object. However,
ownership is not limited to material objects. Anything which is the subject matter of a
right, whether material or immaterial, can be the subject matter of ownership.
When the subject matter of ownership is a material object or a corporeal thing, it is
called corporeal ownership. Ownership of land, building, motor vehicle etc, is corporeal
ownership. When an incorporeal thing is the subject matter of ownership, it is called
incorporeal ownership. It may be a right of way, or right to sunlight. Intellectual
property rights like patent or copyright are also incorporeal in nature. The owner of a
material object is he who owns a right to the general and residuary uses of it, after the
deduction of all special and limited rights of use vested by way of encumbrance in other
persons.
Corporeal ownership is defined by Pollock as the ownership of a right to the entirety
of the lawful uses of a corporeal thing. Pollock says: 'If I own a rupee in my pocket and
a right to receive another from my debtor, the first rupee is a thing corporeal, and the
right to receive the second is a thing incorporeal. The latter is a chose in action whereas
the former is a chose or thing in possession.'
Corporeal ownership is a right in re propria. A right in re aliena is always
incorporeal, though every incorporeal ownership is not necessarily a right in re aliena.
Sole Ownership and Duplicate Ownership
When the ownership is vested in a single person, it is called sole ownership. When it is
vested in two or more persons at the same time, it is called duplicate ownership. There
are four types of duplicate ownership. They are:
(a)co-ownership;
(b)trust and beneficial ownership;.
(c)legal and equitable ownership; and
(d)vested and contingent ownership.
^ 221
We will now examine the different types of duplicate ownership in more detail. j
Co-ownership
A partnership is the most familiar example of co-ownership. In coownership, the

property owned by co-owners is not divided between them, each owning a separate part.
It is an undivided unit, which is vested at the same time in more than one person. If two
partners have a credit balance of Rs 10,000 in the bank and Rs 5,000 is due from the bank
as a debt to both of them at once, each partner is entitled to the whole amount. If the 1
firm has an overdraft of Rs 5,000, each partner would owe to the bank the whole of the
overdraft. When each of the two co-owners begins to own a part of the thing instead of
the whole of it, the co-ownership becomes sole; ownership, and the process is known as
partition. j
The joint family system is another example of co-ownership. It is important to
remember that co-ownership is possible only to the extent permitted by law. When the
joint family system is abolished by law, coownership in properties owned by the joint
family comes to an end. Partition; and sole ownership follow. j
The English law makes a distinction between two types of co-ownership] namely
ownership in common, and joint ownership. The most important, difference between
these two relates to the effect of the death of one of the co-owners. In common
ownership, the right of the deceased is inherited by his successors; but in the case of joint
ownership, when one of the joint owners dies, his right also dies with him, and the
surviving joint owner becomes the sole owner.
Trust and Beneficial Ownership
The trust property is owned by two persons at the same time. One of them is under an
obligation to use his ownership for the benefit of the other. He is called the trustee, and
his ownership is trust ownership. The person for whose benefit the property is used is
called the beneficiary, and his ownership is beneficial ownership. The trustee has no right
to the beneficial enjoyment of the trust property. Therefore, it is said that his ownership is
a matter of form than of substance, and nominal rather than real.
A trust is different from a contractual obligation to deal with one's property on behalf
of someone else. A trust is more than an obligation to use one's property for the benefit of
another. The beneficiary has more than a mere personal right against the trustee to the
performance of the obligations of the trust. He is himself an owner of the property.
Whatever the trustee owns is owned by the beneficiary also. I
222
Ownership
p. It is : extent aw, coartition
nership, portant e of the lherited he joint ; owner
of them :her. He rson for mership ioyment latter of
:h one's ition to is more ; of the Whatever

The trustee-beneficiary relationship is also different from a principal- agent
relationship. In agency, the property is vested solely in the principal on whose behalf the
agent acts. It is, therefore, not an instance of coownership. However, in the matter of a
trust, both the trustee and the beneficiaries are the owners of the trust property.
Generally, a trust is created to protect the rights and interests of persons who, for any
reason, are unable to effectively protect them for themselves. The main classes of persons
for whose benefit trusts are created are:
(i) persons who are not born to whom property may belong;
(ii) persons who are under some incapacity in respect of the administration of the
property such as infancy, lunacy, or absence;
(iii) large numbers of persons who are co-owners of the property; and
(iv) persons who have conflicting interests over the same property.
A trust is created by any act or event, which separates the trust ownership of any property
from the beneficial ownership of it, and vests them in different persons. A trust is
destroyed by any act or event, which reunites in the same hands the two forms of
ownership, which have been separated on the creation of the trust.
Legal and Equitable Ownership
This distinction is based on the origin of ownership. Legal ownership has its origin in the
rules of Common Law, while equitable ownership proceeds from the rules of equity. One
person may be the legal owner, and another the equitable owner of the same thing or
right at the same time. For instance, when a debt is orally assigned by A to B, A remains
the legal owner of it, but B becomes the equitable owner. There is only one debt as
before, though it has two owners now. It is important to understand the distinction
between equitable ownership of a legal right, and ownership of an equitable right. Thus,
the ownership of an equitable mortgage is different from the equitable ownership of a
legal mortgage. In the first case, the mortgage has its origin in the rules of equity,
whereas in the latter, the mortgage is legal, but its ownership alone is equitable.
Vested and Contingent Ownership
This distinction is based on the distinction between vested and contingent interest. It is,
therefore, necessary to understand what is a vested interest, and what is a contingent
interest. A vested interest is an immediate right, which may be either a right of present
enjoyment, or a right of future enjoyment. In other words, there is an immediate right of
present enjoyment, or a present right of future enjoyment. A contingent interest,
223
on the other hand, is the right of enjoyment, which depends upon some event or
condition, which may or may not happen.
Ownership is said to be vested when the owner's title is already perfect. It is
contingent, when his title is imperfect, but is capable of becoming perfect on the
fulfillment of some conditions.
Vested ownership is absolute, while contingent ownership is merely conditional.
Consider the following example. A testator leaves his property to his wife for her life
and on her death to A, if he is then alive, but if A is then dead, to B. Now the widow's
ownership is vested, but that of A and B is contingent. The ownership of A is
conditional on his surviving the testator's widow, while that of B is conditional on
the death of A during the widow's lifetime.
Contingent ownership of a thing is something more than a simple chance or
possibility of becoming the owner. It is based upon the present existence of an
incomplete title. The conditions on which contingent ownership depend are termed
conditions precedent. It is a condition by the fulfillment of which an incomplete title
is completed. A condition subsequent, on the other hand, is a condition on the
fulfillment of which a title already completed is extinguished. An ownership subject
to a condition subsequent is vested ownership. It is ownership already vested, but
liable to premature determination by the completion of a divestitive fact.
From the above discussion, it is obvious that two persons may be contingent
owners of the same right at the same time. It is also possible that the vested
ownership of one person may co-exist with the contingent ownership of another. For
instance, a testator may leave property to his wife, with a provision that if she
marries again, she shall forfeit it in favour of his children. Here, his widow has
vested ownership, and his children have contingent ownership at the same time. Her
marriage is a condition subsequent in respect of her vested ownership, and a
condition precedent in respect of the contingent ownership of the children.
Ownership as a Social Concept
Ownership is a socially significant concept because it is an index of wealth, and

social position. Ownership of land was a means of controlling government. In a
feudal system based on land ownership, the feudal lords wielded tremendous
influence, and even the qualification to vote was based on ownership of land. The
social aspect of ownership also highlights the important principle that an owner
shall enjoy his interest in a manner compatible with the interest of others. As Lord
Evershed said: 'Property
224
Ownership
like other interests has a social obligation to perform'. The extent of this social obligation
reflects the social policy of the legal system.
It is important to remember that ownership is not merely a bundle of rights, liberties,
and powers. It also carries with it corresponding burdens in the nature of duties,
liabilities, and disabilities which prescribe and regulate how an owner should utilise his
property for the benefit of other individuals or society. Property owned by a person is
liable to execution for the debts incurred by him. The liability to pay property tax, wealth
tax etc, is also imposed in the social interest. Rent control legislation imposes restriction
on the way in which one may use his property.
The typical individualist approach to ownership is reflected in the definition of Austin,
which we have analysed earlier. However, gradually the emphasis began to shift from the
individual to societyfrom ownership as a fundamental right of property to the wants of
people and one's duty towards others. It came to be recognised that limitations are
integral to the concept of property, and not exceptions to an otherwise unlimited right.
The Marxist theory of ownership draws attention to the evil role it has played. It begins
with the individual working with his own tools and raw materials. Later, the profit
accumulated through trading manufactured products elevates him to a position to provide
the tools and raw materials, and get other people to provide the labour. The manufactured
products, however, remain in his ownership, not in that of the labourer, and he continues
to trade it as his own property. It is the concept of ownership that enables the exploitation
of workers. Ownership of the means of productiontools and raw materialsbecame a
source of power over persons for private profit. This promoted inequality, because by
using the power of dismissal and threat of unemployment and consequent starvation, the
employer was able to dictate unfair terms of service. The owners of the means of
production became industrial commanders wielding enormous powers that strike at the
foundations of society.
Karl Renner, following the Marxist analysis, expressed the view that law should take
account of the increasingly public character of ownership of property by investing it with
the characteristics of public law. Two concepts of ownership, a public and a private have
to be recognised. Ownership of the means of production should be public, ie,
nationalised, and only ownership of consumer goods should be open to private
individuals. The distinction lies not in the nature of ownership, but in the things capable
of being owned.
225
Lecture 18
Possession
It is no exaggeration to say that possession is the most basic relationship between men
and things. A person needs food to eat, clothes to wear, and tools to use in order to earn
his livelihood. First, he must possess the food, clothes or tools, before he can use them.
Since human life would be impossible without possession and usel of material things,
even primitive communities followed certain rules for the protection of possession. It is
not merely the acquisition of possession, but some measure of uninterrupted enjoyment
that is required. If a person is to derive any benefit or value from material objects, it is
necessary that possession must be respected by and protected from others. Every legal
system must have rules for protecting possession because in any society, there are people
who are motivated by their own selfish and immediate interests, rather than the wide and
long term interests of society in general.
The word 'possession' appears to be a simple word, and is frequently used in common
parlance, but possession as a legal concept is not so simple, and an accurate definition or
description of possession is not easy. The term 'possession' is used in civil and criminal
law. Some examples are trespass which is a wrong to possessors of land or goods,
conversion which is a wrong affecting possessory rights in goods only, theft which is
dishonestly taking any movable property out of the possession of any person without that
person's consent.
Possession is considered as the prima facie evidence of ownership. Anyone who
interferes with the possession of another must show either title, or better possessory right.
Acting on this principle, law may have to protect even wrongful possession upto a certain
point. For instance, if a thief steals someone's watch, he has possession, which the law
will protest against everyone except the owner, or some person lawfully acting on the
owner's behalf. The law of torts gives right of action in respect of the immediate and
present violation of possession. In the case of property, there may be
situations when proof of title is difficult, and transfers of property requite intricate
formalities. In such situations, it would be unjust to disturb possession or to impose
an obligation to prove a flawless title. The most practical approach would be to
protect possession until somebody proves a superior title. Thus, it may be said that
possession confers on the possessor all the rights of the owner except against the
true owner and earlier possessor, Possession also entitles a person to seek certain
remedies called possessory remedies. Possession is also recognised as one of the
methods of acquiring ownership.
I
Definitions
Salmond defines the possession of a material object as the^continuing exercise

oF^dainVto the exclusive use of it. This definition consists of two elements, which
are^slelinaTtoTie^concept of possession. One is physical control over the thing or
the physical element, which is called the corpus possessionis. The second is the
determination to exercise physical control, the mental) element, which is called the
animus possidendi. In normal situations, when' an owner is in actual physical control
of an article, there is no difficulty in understanding the concept of possession. j For
instance, when I send my watch for repair through my servant, I cease to have
actual physical custody of the watch. The servant is in custody of the watch, or we
may say that he is in possession of the watch. This is de facto possession. This must
be distinguished from possession in law or de jure possession. For possession in law,
there must be a manifest intent not merely to exclude the world at large from
interfering with the thing in question, but to do so on one's account, and in one's
own name. When I send my watch for repair through my servant, he has got de
facto possession, while I have de jure possession. When somebody tries to forcibly
take the watch from him, he may resist the aggressor. He does it not on his behalf,
but on my behalf. He has the feeling in his mind that he resists the thief not for
himself, but for his master. If I myself take the watch to the watch repair shop and a
stranger forcibly tries to take it from me, I resist him with the feeling that the watch
is my own, and I possess the right to exclude all others in the world. In other words,
I resist the aggressor on my account, and in my own name. This is de jure
possession.
Animus Possidendi
The mental element or the intent necessary to constitute possession is known as

animus possidendi. It is the intent to exclude others from interfering
228
Possession
with a material object. The following aspects of animus possidendi are important:
(i) Animus possidendi is not necessarily a claim of right. It may be consciously

wrong. Wrongful possession of a material object by a thief is no less real than that
of the true owner.
(ii) The possessor must intend to exclude others from the use of the thing possessed. In
other words, a claim of the possessor must be exclusive, but the exclusion need not
be absolute. One may possess his land over which some other person, or the public
at large may possess a right of way. Subject to this right of way, the animus
possidendi is still a claim to the exclusive use or control of the land.
(iii) Claim or intent to use the thing as owner need not necessarily be there. A tenant or
borrower may have possession. The intended use or control may be limited in
extent or duration. However, if it is exclusive for the time being, it is sufficient to
constitute possession. Animus possidendi need not be a claim to use the thing at all,
as in the case of a pledge or a bailee with a lien.
(iv) Animus possidendi need not be a claim on one's own behalf. A servant, agent or a
trustee who claims the exclusive use or control of the thing on beKalFljf another
may have true possession.
(v) , Animus possidendi need not be specific, but may be general. A general intent
with respect to a class of things coupled with the necessary physical relation is
sufficient to confer possession of the individual objects belonging to that class,
even though its individual existence is unknown to the possessor. For instance, I
possess all jthe books in my library even though the existence of a particular jbook
is unknown to me. Similarly, a fisherman possesses all the fish in his net, though he
does not know the number or the types of fish.
When a person has possession of a box, a cabinet or envelope, such possession gives
him possession of its contents as well. However, this general rule is not applied in some
cases. The following English decisions are illustrative.
In Merry v Green, a man purchased a bureau at an auction and subsequently,
appropriated the money belonging to the vendor, which he discovered hidden in its
secret drawer. He was held to have committed larceny or theft when he fraudulently
appropriated it. Here the view taken the court was that as the purchaser was ignorant of
the existence of the secret drawer, he could not intend to possess the contents of the
secret drawer until he found them. This is also the ratio decidendi of an earlier
( (1841) 7 M&W623.
229
case Cartwright v Green} where a carpenter, to whom a bureau had been sent for repair,
misappropriated the money which he discovered in its secret drawer. It was held that he
committed larceny at the time when he found it and took it for his own use.
In R v Ashwell (A? Ashwell requested K to lend him a shilling, and in the dark K
handed over to him a coin, which he intended to be a shilling, but which was really a
sovereign. Ashwell appropriated it to himself. The lower court convicted him for theft. In
the appellate court, seven of the fourteen judges were in favour of setting aside the
conviction, but the other seven were in favour of upholding it. The practice in England
was to uphold the decision of the lower court when judges in the appellate court were
equally divided. Thus, Ashwell was convicted. However, the division of appellate judges
equally on this question reveals the complex nature of the issue.
In R v Hudson? a person named Hudson had supplied pigs to the Ministry of Food. A
cheque for the price of the pigs supplied, sent by the Ministry, was received by another
Hudson, who had encashed the cheque and utilised the money. He was convicted for
theft.
Savigny explains animus possidendi with reference to animus domini. A person in
valid possession of a thing 'must contemplate dealing with it practically, just as an owner
is accustomed to do by virtue of his right and consequently, not as one recognising
anybody better entitled than himself. Nothing more, however, than this animus domini is
comprised in the notion of possession, undoubtedly not a moral conviction of being
owner.' Savigny's view that the intention requisite for juridical possession is the intention
of dealing with it as the owner, is based on the principles of Roman Law, which did not
recognise possession by an agent or a bailee. However, Roman Law recognises a tenant
under perpetual lease as having possession, although he did not claim as owner. Savigny
explained this by the doctrine of derivative possession by assuming that though the
owner retains the animus domini, he was permitted by the law to transfer his civil
possession to the tenant.
Ihering considers the nature of animus possidendi immaterial, as it cannot serve as a
test of civil possession. According to him, civil possession depends entirely on the
character in which possession is held. Once the physical element of possession is
established, civil possession follows, unless there is a causa possessionis, ie, character in
which the possession is made, that can exclude it. Civil possession, therefore, does not
depend on the nature of the intention, but on the character in which the claim to
possession is
2 (1803) 8 Ves Jun 406.

3 (1885) LRQBD 120.
4 [1943] 1 KB 458.
230
Possession
au had been I in its secret en he found
ling, and in >e a shilling, limself. The ;even of the on, but the ;land was to tellate court
the division x nature of
pigs to the sent by the the cheque
domini. A ing with it s right and m himself, the notion .' Savigny's itention of .aw, which
oman Law though he derivative iomini, he lant.
; it cannot ii depends : physical ss there is , that can nature of session is
made. Ihering finds in positive legal rules the test of legal possession. However, his
method does not advance a general theory of possession, which has to explain why a
person in a particular character is allowed the right of possession, but not in another. To
the question as to why a thief can claim possession, while a servant cannot, Ihering's
theory fails to provide a satisfactory answer.
The mental element in possession need not go to the height of an intent to appropriate
as owner or animus domini. It is an intention to exclude foreign interference. According
to Salmond, the exercise of control and the exclusion of alien control need not be
absolute, and may be subject to the special rights of others. This test of legal possession
which has the support of eminent jurists including Holmes, Pollock, and Salmond cannot
adequately explain why in English law, the servant is not regarded as having possession
although he has as much the intent to exclude the world at large as a bailee. This anomaly
is explained by Holmes as arising from the incidence of the servant's status, which has
many things in common with the status of a slave. A slave's possession was his master's
possession, because the slave has no standing before the law. As Holmes says, 'the notion
that his personality was merged in that of his master had survived the era of
emancipation'.
Corpus Possessionis
Animus possidendi alone is not sufficient to constitute possession. There must be

effective realisation in fact of the animus. Whether the animus has been effectively
realised infact depends upon two things, namely: (i) the relation of the possessor to other
persons; and (ii) the relation of the possessor to the thing possessed.
Relation of the Possessor to other Persons
A person in possession of a thing must have some security for non-interference by other
persons. The security may vary from a mere chance to moral certainty. The measure of
security is that which normally and reasonably satisfies the animus domini. The main
sources of such security are:
(a) Physical power of the possessor to exclude all alien interference: This is a very
important aspect of possession, as the very definition of possession contains two
elements, namely the intention, and the physical power of excluding all other
persons from the use of a material object. However, giving too much importance to
the physical capacity of an individual to exclude others is equivalent to saying that
might is right. Law must protect the weak from the strong. Any theory of
231
possession must, therefore, recognise the right of the weak to possess a thing even
against interference by the strong. For instance, a bedridden person in a paralytic
condition may not have the physical capacity to exclude others from taking away
his watch, which is kept on a table in his room. Similarly, a child who is in
possession of a book may not have the physical capacity to prevent a strong man
from snatching away that book. However, inspire of the lack of physical capacity,
we must concede that the bedridden person or the child in these cases were having
possession. Corpus, therefore, depends more upon the general expectation that
others will not interfere with an individual's control over a thing than upon the
actual physical capacity of an individual to exclude others.
(b) Personal presence of the possessor: Physical capacity and personal presence
generally coincide; but it need not necessarily be true in all cases.
(c)Secrecy: A person may ensure non-interference by keeping away the things
possessed from the view or knowledge of others.
(d) Custom: There is a tendency to acquiesce in established usage, which constitutes
an important source of de facto security and possession.
(e)Respect for rightful claims: Rightfulness of the claim, or more importantly a
public conviction of its rightfulness, is an important element for de facto security.
Here, the two forms of security, de facto and de jure, coincide.
(f) Manifestation of the animus domini: The visibility of the claim is another
element in the de facto security. A manifested intent, or open use of a thing is more
likely to obtain the security of general acquiescence than one which has never
assumed a visible form.
(g) Protection afforded by the possession of other things: The possession of a thing
tends to confer possession of any other thing that is connected with it, or accessory
to it. The possession of land confers possession of chattels situated upon it.
Similarly, the possession of a house may confer possession of chattels inside it.
The proposition that the possession of land necessarily confers possession of all chattels
that are on, or under it is not true in all circumstances. After analysing English law on the
subject, Pollock and Wright arrive at the following conclusions:
(i) The possession of land carries with it, in general, possession of everything that is
attached to or under that land. This is illustrated by the following cases:
232
Possession
1
to possess istance, a ie physical , which is ssession of :rong man tie lack of person or
therefore, s will not
upon the rs.
the
1 personal be true in
; away
age, which possession. , or more important :curity, de
ie claim is intent, or of general form.

ession of a connected possession house may
possession nces. After rive at the
ssession of illustrated
(a) In South Staffordshire Waterworks Co v Sharman' the defendant who

was employed by the company to clean a pond on their land found certain gold
rings at the bottom. It was held that the company and not the de5endant had
the first possession of it.
(b) In Elwes v Briggy Gas Co6 the defendant lessee company discovered a
pre-historic boat, six feet below the surface of the land, while excavating it for
the purpose of erecting gas works. It was held that the lessor and not the lessee
had first possession of the boat.
(ii) Another question that arises is whether a person may be regarded as possessing in
law a thing that is lying unattached to the surface of his land or in his house,
where the thing is not possessed by someone else. There are some English
decisions holding that a person who first finds it, and not the owner of the land or
building, has the possession in law. For instance in Bridges v Hawkesworth,7 a
parcel of banknotes dropped by another on the floor of the defendant's shop was
found by the plaintiff, a customer. It was held that the plaintiff had a good title to
it, and not the defendant. In Hannah v Peel,8 A purchased a house in 1938. He
never occupied it, but it was requisitioned in 1940. B, a soldier stationed in the
house, found a brooch on the top of a window frame covered in dust. A claimed
the brooch and sold it. The court awarded damages to B, holding that B was the
prior possessor of the brooch as A was ignorant of its existence.
However, in a more recent case of London Corp v Appleyard & Anor^ money found on
land was held to be in the possession of the occupier, and not the finder. The decisions in
Bridges v Hawkesworth case and Hannah v Peel case have been criticised by Goodhart
on the ground that it is difficult to support those decisions on general principles. The
eminent jurist considers these cases as wrongly decided.
Salmond tries to summarise the legal position with an example. If A momentarily
hands his wallet to B, from whom it is stolen by C, who then loses it on D's property,
where it is then found by E, the question of legal possession will depend on who brings
action against whom. Against all subsequent parties, E's title would prevail, for finding
confers a good title.
5 [1896] 2QB44.
6 (1886) 33 Ch D 562.
7 [1851] 21 LJ QB75.
8 [1945] KB 509.
9 (1963) 1 WLR982.
I
233
In an action between D and E, D has the better right, if he could show that the article
was found on property from which he had a general intention to exclude others. As
against C, neither D nor E can claim possession m law. In an action by C against D and
E, the latter would not be able to plead jus tertii, ie, to argue that the object belongs to
some one other than C and that, therefore, C should not succeed against D or E. As
against A or B, however, C would have no defence. B could recover the wallet, because
he had actual possession of it. A could recover it from C, because although it was in B's
hand, he had an immediate right to possess. As between A and B, there is no doubt that in
law A, the true owner, would succeed. j
Relation of the Possessor to the Thing Possessed
The objective element of possession, which is called the corpus, consists in an exclusive
physical control over the thing. What is important is the physical power to exclude
foreign interference, and not actual physical contact. A person may be in possession of a
piece of land, although he may live elsewhere far away from the property. A person
bound by chains though in physical contact with the chains, cannot be said to be in
possession of them. Possession begins when the animus domini has been effectively
realised in fact. A fisherman who desires to catch fish, and puts a net into the sea does
not have possession of the fish till he has the fish securely in his net. The possession
once gained may be lost by the loss of power in using the thing. The net may be broken,
and the fish may escape.
Savigny's view that corpus possessionis consists in the existence of physical power to
exclude foreign interference, and secure the enjoyment of the thing to oneself, is not
totally accepted by Salmond. According to Salmond, actual physical power to exclude
others is not necessary either for the commencement of possession, or its continuance.
The physical element in possession consists of a positive, and a negative aspect.
Positively, it consists in the exercise of control by the possessor and negatively, in the
exclusion of others. The control of the possessor may be secure by many means.
Presence near the thing, exclusive knowledge of the situation of the thing, or control of
the means of access to it, as where it is locked up in a safe of which one has the key, may
give rise to the possibility of dealing with the thing as one likes. The exercise of acts of
ownership is an unmistakable indicator that a person has a control over the thing. In its
negative aspect, the corpus possessionis indicates the relation between the possessor,
and other persons. It is the assurance of non-interference by others with the enjoyment of
the thing that is of the essence of possession. Two persons cannot be in possession of the
same thing at the same time adversely to one another. It
234
how tion n in le to than A or ;ause ough I and
Possession
is of course possible for two persons such as co-owners to be jointly in

possession. In such cases, there is in truth only one person and the persons j in
possession enjoy the rights which arise from it. If two persons are in
possession, each claiming independently of and adversely to the other, ? neither
can acquire possession in law without .excluding the other. In this
sense, the right of possession represents a claim to the exclusive use of the thing.
The corpus possessionis may, therefore, be described as the present I exclusion of
others from the use of thing with the reasonable probability t that it will continue.
;ts in ysical ict. A .vhere ysical hem. ;ed in i does :. The thing.
lysical of the mond, or the lent in onsists :lusion means, thing, safe of ith the takable
aspect, d other oyment )t be in )ther. It
Kinds of Possession
Corporeal and Incorporeal Possession
i We have earlier seen that things are divided into corporeal and incorporeal, and
ownership is also similarly divided. It is possible to divide possession also into
corporeal and incorporeal. Corporeal possession (possessio corporis) is the
possession of a material object, eg, house, land, car, watch etc.
| Incorporeal possession (possessio juris) is the possession of anything other than a
material object, eg, a right of way, goodwill, copyright, patent, conjugal rights
etc. Now we will analyse these two types of possession in more detail. Corporeal
possession is the de facto relation between a person and a material object as
distinct from the de jure relation of ownership. According to Salmond, 'the
possession of a material object is the continuing exercise of a claim to the
exclusive use of it.' Paton substitutes the word 'control' for the word 'use', and
defines possession as the continuing exercise of a claim to the exclusive control of
a thing.
Neither actual physical control, nor actual use is necessary to vest the corpus in a
person. It is a claim, which depends upon the nature of the thing itself, and the
probability that others will refrain from interfering with the enjoyment of it. For
instance, you have possession not only of the clothes you wear, but also of the
clothes in your house, or those in the laundry. Similarly, a large estate of five
hundred acres cannot be under your complete physical control; but still, it may
be in your possession even though you are living hundreds of miles away from the
estate.
As stated earlier, incorporeal possession is possession of an intangible thing,
such as the right of way or the right of sunlight. Intellectual property rights such
as, patent, and copyrights also fall under incorporeal possession. An important
difference between corporeal and incorporeal possession is that actual use of the
thing possessed is not essential in corporeal possession, whereas actual continuous
use and enjoyment is essential in the case of
incorporeal possession. The possession of the right of way is only throu^k actual and
repeated use of it. This is clearly brought out by Keeton in the following words:
For incorporeal possession, both corpus and animus are again necessary, whilst
the conception of animus requires no modification, corpus must be understood to
mean nothing more than the actual exercise or power over the use of the
intangible thing. Incorporeal possession only exists so long as this power or use is
enjoyed. As soon as it ceases incorporeal possession ceases.10
Mediate and Immediate Possession
As in the case of ownership, possession may also be mediate, or immediate. \ One person
may possess a thing for and on account on someone else. The possession thus held by
one person through another is called mediate possession, while that which is acquired or
retained directly or personally is called immediate possession. Immediate possession is
direct, and mediate possession is indirect. When I directly purchase a book I get
immediate possession, and when I send my clerk to purchase, I get mediate possession of
the book through my clerk.
There are three main types of mediate possession:
(i) Possession through agents or servants: In this case, the agent or servant ' has no
interest of his own in the thing possessed. The agent or the servant possesses the
thing on behalf of the principal or the master.
(ii) Possession of a borrower, hirer or tenant at will: These persons have an interest
in the thing possessed, but they recognise the superior right of the owner to
resume possession at his will.
(iii) Possession of a bailee or a creditor for a fixed term: In this case, the owner has
possession as far as third persons are concerned. The animus and corpus required
to constitute possession are both present. The owner has not ceased to claim the
exclusive use of the thing for himself, although it is subject to the temporary
right of another person. Thus, the animus is present through the instrumentality
of the bailee or pledgee who is keeping the thing safe for him. The owner is
effectively excluding all other persons from it, and has thereby obtained a
sufficient security for its enjoyment. This satisfies the requirement of corpus.
In all the above cases, mediate possession exists as against thitd persons only, and not
against the immediate possessor. If I deposit goods with a warehouseman, I retain
possession as against all other persons, because as
10 The Elementary Principles of'Jurisprudence, 1949.
236
Possession
ssession
servant : or the master, is have uperior
se, the d. The : both of the ight of ;h the thing ersons for its
ersons with a use as

against them, I have the benefit of the warehouseman's custody; but as between the
warehouseman and myself, he is in possession, not me. In the case of a pledge, the debtor
continues to possess as against the world at large, but as between debtor and the creditor,
possession is in the latter. The debtor's possession is mediate, and the creditor's
immediate.
Duplicate or Concurrent Possession
We have earlier seen that exclusiveness is the essence of possession. How is it then
possible for two persons to be in possession of the same thing at the same time? Two
adverse claims of exclusive use cannot be effectively realised at the same time. However,
claims which are not adverse, and which are not, therefore, mutually destructive admit of
concurrent realisation. A maxim of civil law, which recognizes this principle is 'plure
eandem rem in solidum possidure non possunt.' The instances of duplicate and
concurrent possession are as follows:
(i) Mediate and immediate possession co-exist in respect of the same thing as we
have seen earlier.
(ii) Two or more persons may possess the same thing in common just as they may
own it in common. This is termed 'compossessio'.
(iii) Corporeal and incorporeal possession may co-exist in respect of the same material
object as in the case of corporeal and incorporeal ownership. One person may
possess the land, and another a right of way or a right to sunlight over it.
Adverse Possession
The possession of property by a person is adverse to every other person having, or

claiming to have a right to the possession of that property by virtue of a different title.
Possession to be adverse must be an invasion of the ownership of another. Further, it
should be actual, exclusive, and adequate in continuity and publicity. Acts of possession
must be exercised nec vi, nec clam, nec precario, ie, without violence, without stealth
and without permission. When these conditions are present, possession is regarded as
continuous. The conception of adverse possession has great importance in law; because
adverse possession for the period required by the law extinguishes the title of the true
owner, and creates a title in the adverse possessor.
Acquisition of Possession
Possession is acquired whenever the two elements of possession, namely
237
Lectures in Jurisprudence ]
animus and corpus, come into co-existence. The loss of either of the two will tend to
destroy it. A person may intend to abandon something in his possession. Although he may
continue to have the corpus, the animus is lost. When a person misplaces a book, he does
not have it in his custody. Still, he will be deemed to have possession, for he has got the
animus, j
Modes of Acquisition
Possession is acquired by taking, and delivery. Taking is the acquisition of possession

without the consent of the previous possessor. This may be either rightful, or wrongful.
Delivery, on the other hand, is the acquisition of possession with the consent and co-
operation of the previous possessor.
Delivery may be actual or constructive. Actual delivery is the transfer of immediate
possession. Mediate possession may or may not be reserved. The delivery of an article by
way of sale is an example of actual delivery, without any reservation of mediate
possession. The delivery of a chattel or article by way of loan or deposit is an instance of
actual delivery and transfer of immediate possession, while reserving the mediate
possession with the transferor.
In constructive delivery, there is no change in the position of immediate possession.
There is only transfer of mediate possession. There are three types of constructive
delivery:
(i) Traditio brevi manu: This is surrender of the mediate possession of a thing to one
who already has immediate possession of it, eg, if I lend my car to A and later sell
it to him or give it as a gift to him, I surrender my mediate possession to A who
has immediate possession.
(ii) Constitutum possessorium: Here mediate possession is transferred, while
immediate possession remains in the transferor for example:
(a) if I purchase a car from a person who habitually hires out cars and then
allows him to continue to use the car for hire, I get constructive delivery of
the car although there is no transfer of immediate possession;
(b) a warehouseman is in control of goods belonging to him. I purchase those
goods from him and allow him to continue in possession on my behalf. The
goods are effectively delivered to me as soon as he has agreed with me that
he will hold them as warehouseman on my account. Here also there is no
transfer of immediate possession.
(iii) Attornment: In this type of constructive delivery, there is transfer of mediate
possession, while the immediate possession remains
238
Possession
with some third person, eg, I have a car in the immediate possession of A to whom
I have lent it. Then I sell the car to B. I have effectively delivered the car to B as
soon as A has agreed with B to hold it for him, and no longer for me.
Commencement and Continuance of Possession
The reasonable expectation of non-interference is an essential constituent of possession.

The question is whether it is essential at the commencement of possession, and also for
its continuance. Consider the following examples:
(i) A has purchased a jewel, but soon he finds himself surrounded by a group of
robbers. A feels helpless because the robbers can easily overpower him and take
the jewel from him. Even at that moment, A is in possession of the jewel although
there is no reasonable expectation of non-interference.
(ii)A gold coin is thrown in the midst of a crowd of persons and all of them try to get
it. One member of the crowd momentarily grasps the coin. However, he will not
be regarded as obtaining possession of it because there is no reasonable
expectation of non-interference.
From the above two examples, the conclusion that emerges is that the reasonable
expectation of non-interference is an essential condition only at the commencement of
possession, and not for its continuance.
Then, what about the corpus of possession? Is it essential only at the commencement of
possession, or also for its continuance? Let us take an example. When a person goes for a
journey leaving his things in his house, he has no actual power over them until he returns.
When he is away, he gets reliable reports that large-scale violence and looting have taken
place in the locality where the house is situated. In such a situation, the reasonable
expectation of non-interference is also lost. During the journey, the said person may meet
with an accident and lay unconscious for a while losing his sense of animus possidendi.
Inspite of all these events, he will be deemed to be in possession of the things in his
house. It is, therefore, clear that both animus and corpus are absolutely essential only at
the commencement of possession, and not for its continuance.
Relation Between Possession and Ownership
Possession and ownership are inter-related. According to Ihering, possession is the

objective realisation of ownership. Salmond considers possession basically as a
relationship between a person and an object within the context
239
of the society in which he lives. It is, therefore, primarily a matter of fact. Ownership, on
the other hand, consists not of a factual relationship, but of certain legal rights, and is a
matter not of fact, but of law. It is sometimes necessary to distinguish between the de
facto possessor of an object, and its de jure owner. One person's rights may be ultimate,
permanent and residual in comparison with the other whose rights are only of a
temporary nature.
Ownership and possession have the same subject matter. It is often said that whatever
may be owned may be possessed, and whatever may be possessed may be owned. While
this observation is generally true, there are exceptional situations when there is
possession without ownership, or ownership without possession. There are claims which
may be realised and exercised infact without receiving any recognition or protection from
the law. Here, we have possession without ownership. Similarly, there are rights which
can be owned, but which cannot be possessed. They are termed transitory because they
do not allow of continuing exercise. A creditor, for example, does not possess the debt
that is due to him. This is a transitory right, which cannot survive its exercise. Generally
speaking, rights in personam do not admit of possession.
Ownership and possession usually co-exist and concur. Even if they do not concur in
the same person, they do invariably tend to coincide. Ownership always tries to realise in
possession and conversely, possession tries to justify itself as ownership. As Salmond
observes, 'the law of prescription determines the process by which through the efflux of
time possession without title ripens into ownership and ownership without possession
withers away and dies.'
Possession is the visible expression, and prima facie evidence of ownership. The
possessor of a thing is presumed to be the owner until another person proves a clear title
in himself. It is said that possession is nine points' in law, which means that mere
possession is nine-tenth of an absolute ownership. A possessor can keep a thing against
the entire world except the real owner.
Constructive Possession
It is a symbolic act in which a transfer of possession takes place by handing over the
keys of a building or a warehouse. This is equivalent to transferring the possession of a
building or a warehouse. The key is a symbol as well as an instrument, using which
control of the building or warehouse is received.
240
Possession
:er of iship, It is of an mate, ts are

Possessory Remedies
Legal remedies for the protection of possession are called possessory remedies, and
those available for the protection of ownership are called proprietary. The English law
considers protection as a good title of right against anyone who cannot show a better
title. Continental systems go further, and treat possession as a provisional and temporary
title even against the true owner.
Provisional protection of possession has its origin in Roman Law. It was received and
considerably extended by Canon Law. Even the true owner who deprives the immediate
possessor of immovable property will be compelled to restore it to the immediate
possessor, and the owner is not permitted to set up his own superior title. The intention of
the law is that every possessor shall be entitled to retain and recover his possession until
deprived of it in due course of law. Indian law on this point is contained in s 9 of the
Specific Relief Act 1963, and s 145 of the Code of Criminal Procedure 1973.
Provisional protection afforded to possession is justified on the following grounds:
(a) Violent self-help will have serious consequences, and must be discouraged. Even
the true owner must seek the help of law to deprive a person of possession even
though the possession may be unlawful.
(b) Historically, there were serious imperfections in the early proprietary remedies.
They were cumbrous, dilatory and inefficient, making the position of the plaintiff
very disadvantageous. In a proprietary action, no person was allowed to take the
place of the defendant by depriving another of his possession. However, this ground
has lost its relevance now.
(c) Proof of ownership is difficult, whereas proof of possession is easy. After the
introduction of a system of registration of titles, this ground has also lost much of
his relevance.
(d) Without a division of remedies into two types, namely possessory and proprietary,
a more satisfactory way of attaining just results is possible by following some
simple rules regarding the burden of proof of ownership. These are:
(i) prior possession is prima facie proof of title;

(ii) a defendant is always at liberty to rebut this presumption by proving that he has
a better title;
(iii) a defendant who has violated the possession of the plaintiff is not allowed
to set up the defence oi jus tertii, ie, the title of a third person.
241
Lecture 19
Persons
Private law is generally divided into three parts, viz, (i) the law of persons; (ii) the law of
obligations; and (iii) the law of property. In this lecture we will examine the various
aspects of the law of persons. It is desirable to begin the discussion with the nature of
legal personality.
Nature of Legal Personality
The word person is derived from the Latin per, ie, through, and sonare, ie, to sound. In
ancient times, persona signified an actor's mask through which his voice reached the
audience. Used in the context of law, persona came to signify the subject of legal rights
and duties. It came to denote not an individual litigant as a human being, but anybody or
anything permitted to assert legal claims or subjected to legal duties. From the legal
perspective, the mask of personality does not, therefore, necessarily have to be worn by
human beings.
We may describe legal persons as all entities recognised by law as capable of being
parties to a legal relationship. In the words of Salmond:
.. .so far as legal theory is concerned a person is any being whom the law
regards as capable of rights and duties. Any being that is so capable is a
person, whether a human being or not, and no being that is not so capable is
a person even though he be a man.1
Salmond further explains that the extension of the conception of personality beyond the
class of human beings is one of the most noteworthy achievements of the legal
imagination.
From this it must be clear that in its legal sense the word 'person' has come to mean
something wider than simply a human being. It means any
1 Salmond on Jurisprudence, twelfth edn, 1966, p 299.

individual, group or even anything, which the law will recognise as a bearer of legal
rights and duties.
Kelsen pointed out that the first essential to any clear understanding of the nature of
legal personality is to distinguish it clearly from personality in the sense which refers to
the rational individuality of a human being. For different reasons at different times,
different systems of law have accorded legal personality to many other things besides
people. This is called 'artificial personality' as distinct from 'ordinary personality'. Law
has sometimes denied personality to human beings. In early Roman law, slaves were not
treated as legal persons because they had no rights which the law would enforce.
Undoubtedly, they were human beings like their masters. There are also examples of non-
human entities being recognised as legal persons. In the Middle Ages, animals were tried
for crimes. Indian law recognises that rights could be accorded to an idol, and it could
thus be regarded as a legal person. Modern law recognises corporations or companies as
legal persons. This is referred to as corporate personality.
Legal personality may be said to refer to the particular device by which law creates, or
recognises units to which it ascribes certain powers and capacities. Persons are the
substances of which the rights and duties are the attributes. It is in this respect that
persons possess juridical significance.
A distinction can be made between natural, and legal persons. A natural person is a
human being. Legal persons are real or imaginary beings who for the purpose of legal
reasoning are treated in greater or lesser degree in the same way as human beings.
Infants and persons of mental infirmity are subject to considerable incapacity, and
therefore, not considered as having full legal personality. They are said to be semi juris
(half persons), while normal persons are called sui juris (full persons) in legal parlance.
Legal personality is a fictitious attribution of personality by law, a sort of
personification of law. Legal persons being artificial creations of law can be of as many
kinds as the law devises. Continental jurisprudence recognises three kinds of legal
persons, namely: (i) groups or series of men, usually called corporations; (ii) institutions
like hospitals, libraries etc; and (iii) funds or estates like the estates of deceased persons.
In Roman Law, heriditas jacens, ie, the estate of a deceased person between the date of
his death and the date of taking charge by his successor, was deemed to have legal
personality. English jurisprudence recognises only one kind of legal personality, namely
corporations. English law prefers the process of incorporation of human beings to that of
personification of institutions, or objects. Indian law recognises incorporation of human
beings as in the case of companies, and personification as in the case of idols. As far as
legal incidents are concerned it is not of much importance whether the juristic
244
Persons
1
earer
lg of lality eing. )rded ificial times t not /ould There rsons. jnises d as a legal
which s and re the mce. latural s who ;ree in ity are having while
a sort iw can Dgnises usually id (iii) eriditas tth and e legal f legal cess of ions, or the
case as legal
juristic
personality is attributed to an institution, or to the group of men attached to the
institution.
Corporations
A corporation may be defined as a group or series of men, which by a legal conception is

regarded and treated as a person. It is an interesting conception of unity in plurality.
Corporations are of two kinds, namely, corporation aggregate, and corporation sole. A
corporation aggregate is an incorporated group of co-existing persons. A corporation
sole, on the other hand, is an incorporated series of successive persons. In the former,
there will be several members at a time, while in the latter there will be only one member
at a time. Examples of corporation aggregate are registered companies, co-operative
societies, municipal councils etc. Examples of corporation sole are successive holders of
some public office, which are incorporated to constitute a single continuous and
permanent legal person in the office, such as the King, Post Master General,
Administrator General etc. An idol in a Hindu temple is also conceived as a corporation
sole.
There is some similarity in the concept of corporation sole in English Law, and the
recognition of legal personality in institutions, and funds in the Continental Law. The
legal person in a corporation sole is recognised only for the purpose of transmission of
property from one officer to the succeeding officer, without necessity of a conveyance.
The legal person in a corporation aggregate has an existence of its own and may even be
convicted and punished for a crime, while the members of a corporation are left
untouched.
Persons in a Corporation
Generally a corporation involves or concerns three classes of natural persons, viz:

Members: The individuals who form the group or series personified by the law, and who
constitute the corpus or body of the legal person thus created, are the members of a
corporation. Membership of a corporation does not in itself affect in any way the rights or
liabilities of the members as individuals, for it is nothing more than a matter of form. It is
important to understand that some or all of the members of a corporation may be
corporations themselves. There is nothing to prevent the shares of a company from being
held by other companies, ie, one company as a legal person becoming a member of
another company. In this case, the idea of incorporation is duplicated, and law creates a
legal person by the
245
I
il
personification of a group of persons, who themselves possess merely a legal personality.
Agents or representatives: It is said that a corporation has neither soul, nor body, and
cannot act except through the agency of actual human beings. Whatever a company is
entitled to do in law is done infact by the directors or the members of the company as its
agents or representatives. Whatever interests, rights or property it possesses in law are
infact those of its members, and are held by it for their benefit. Legal persons can act only
through the instrumentality of natural persons.
Beneficiaries: Beneficiaries are the persons for whose benefit the corporation exists and
acts. The members or shareholders of a company may also be the beneficiaries, but they
may not be the only persons for whose benefit it exists. In the case of a corporation
established for charitable purposes, the beneficiaries may have no share in it.
The above three classes are often found to overlap. The members of a corporation may
also be its agents and beneficiaries. However, the rights, duties and liabilities of these
classes of persons are distinct, and must be understood separately.
Acts and Liabilities of a Corporation
We have already seen that a corporation by itself is incapable of an act, and it must
necessarily act through some human agencies. This necessitates appointment of agents
for the corporation. The question is if the corporation cannot act by itself, who will
appoint agents for it? The agents of a corporation are usually constituted, and their
authority determined by the law of its incorporation. If any act done by the agent is
beyond the authority conferred on him by the law, such act cannot normally be imputed
to the corporation. Such acts are called ultra wires acts. Generally, a corporation can do
only such acts as are necessary or incidental to the fulfillment of the purposes for which
it has been incorporated. These purposes are specified in its memorandum of association.
If a contract is made by the agents outside the scope of the objects specified in the
memorandum of association, it will be ultra wires, and cannot bind the company. Even
the unanimous consent of the members cannot authorise a company to act beyond the
limits set by the law. i
However, an agent ih the course of doing an act, which the corporation might have
done lawfully, may be guilty of misconduct. Here the corporation becomes liable for tort
on the principle of vicarious liability, ie, liability of the employer for the acts of the
employees in the course of employment. Similarly, a corporation may be held liable in
criminal law
246
Persons
for the wrongful acts of its members or agents in the course of business of the
corporation. Even for offences, which require particular mens rea such as fraud, malice,
or other wrongful intent, a corporation may be held liable, and punished with fine or
forfeiture.
Unincorporated Associations
Incorporation is the process by which law accords recognition of a juristic personality to

a group or series of persons. It may be made by an express statutory declaration that a
body be a corporation, eg, municipal councils, state financial corporations, Reserve Bank
of India etc. Incorporation is also possible by the fulfillment of legal formalities
prescribed by a general statute. Companies are incorporated by following the formalities
prescribed under the provisions of Companies Act 1956. Co-operative societies are
formed by complying with the formalities prescribed under the Co-operative Societies
Act 1912. Other societies may be registered under the Societies Registration Act 1860. A
body or series of persons may also get tacit recognition as a corporation. This is the case
of the King of England, a Hindu joint family, or an idol. In none of these cases a formal
incorporation takes place.
Generally, an unincorporated association cannot sue as an association, but law
considers certain unincorporated associations such as trade unions as of a quasi-corporate
type. Their power to sue and recover compensation for torts has been recognised. They
are also liable for torts committed by their servants. They enjoy powers in regard to the
treatment of their members.
A partnership is an association of persons, but is never considered as a corporation and
granted legal personality, but a partnership firm can sue and be sued in its own name, and
its property is considered distinct from the property of its members.
Uses and Purposes of Incorporation
The main purpose of incorporation of a corporation sole, as we have already seen, is to

avoid the necessity for periodic conveyance of property to persons who succeed to the
office. Incorporation of corporation aggregate was a legal response to the challenge of
great risks involved in business enterprise. Incorporation provided a convenient legal
device which facilitated mobilisation of funds from a large number of persons restricting
the liability of each person to a specified amount. The difficulties involved in the
management of business, and property were also solved satisfactorily. The death,
insolvency, or absence of individual members does not affect the
247
1
corporation. Members may change, but the corporation remains the same as a legal
person. The advantages of permanency, uniformity, and unity in the personality are
regarded as the main reasons for deciding in favour of incorporations. Therefore, the
incorporated company, that is also called a joint-stock company, has replaced earlier
forms of collective ownership in the industrial world, and has produced admirable results.
Theories of Legal Personality
When law attributes legal personality to a group of persons, it is always related tb some
purpose, and legal consequences. It also confers certain advantages to the corporation,
which attains the legal personality. Apart from its practical consequences and uses, legal
personality also raises a question of more fundamental importance, ie, what is the
theoretical foundation on which the concept of legal personality is built? Several jurists
have attempted to answer this question from their own perspective. As a result, we have
several theories which try to explain the jurisprudential foundations of legal personality.
We will now examine some of these theories.
Purpose Theory
This theory, originally propounded by Britz and developed by Baker, is based on the
assumption that 'person is applicable only to human beings, and they alone can be the
subject of jural relations. The so-called juristic persons are not persons at all. Since
juristic persons are treated as distinct from their human substratum, if any, and since jural
relations commonly vest in human beings, they should be regarded simply as subject less
properties designed for certain purposes. The theory was designed mainly to explain the
foundation, the stifrung, of German Law and it would also explain the vacant
inheritance, heriditas jacens, of Roman Law. This theory has not found favour with
English judges who have repeatedly asserted that corporations are persons.
Duguit gave a different meaning to purpose. According to him, the endeavour of law is
the achievement of social solidarity. In deciding whether the activities of a group must be
given legal protection, it is relevant to find out whether the group is pursuing a purpose,
that conforms with social solidarity. Only those activities falling within such a purpose
deserve legal protection.
Theory of Enterprise Entity
According to this theory, the corporate entity is based on the reality of the
248
I
Persons
underlying enterprise. Approval of the corporate form by law establishes a prima facie
case that the assets, activities, and responsibilities are part of the enterprise. Where there
is no formal approval by law, the existence, extent of responsibility etc, are determined
by the underlying enterprise. This theory provides an explanation for the attitude of law
towards unincorporated associations, and also leaves room for the miscellaneous
situations in which corporate unity is ignored. The theory reveals a utilitarian approach.
Symbolist or Bracket Theory
Ihering is the main exponent of this theory, which considers the members of a
corporation and the beneficiaries only as persons. Legal personality is a symbol to help
the group in achieving a certain purpose. It amounts to putting a bracket around the
members in order to treat them as a unit. This theory assumes that the use of the word
person' is confined to human beings. It has been pointed out that this theory does not
purport to do more than to say the facts that lie beneath propositions such as X & Co
owes Y 5 pounds. It takes no account of the policy of the courts in the varying ways in
which they use the phrase X & Co.
Hohfelds Theory
This theory also begins with a distinction between human beings and juristic persons, and
then explains that juristic persons are the creations of arbitrary rules of procedure. Only
human beings have claims, duties, powers, and liabilities. Transactions are conducted by
them, and it is they who ultimately become entitled and responsible. The corporate person
is merely a procedural form, which is used to work out in a convenient way for
immediate purposes a mass of jural relations of a large number of individuals. Hohfeld
tries to reduce the corporate concept to ultimate realities. When Hohfeld says that
corporate personality is a procedural form, what is meant is that the unity of a corporation
is a convenient way of deciding cases in courts.
Kelsen's Theory
The distinctive feature of Kelsen's theory is that it rejects for purposes of law any contrast
between human beings as natural persons, and juristic persons. The law is concerned with
human beings only insofar as their conduct is the subject of rules, duties, and claims. The
concept of person is always a matter of law; the biological character of human beings is
outside
249
i
its province. Kelsen also rejected the definition of person as an entity which' has
claims, and duties. The totality of claims and duties is a person in law, \ and there is
no entity distinct from them. What constitutes the corporation, j according to
Kelsen, is a special set of rules, which regulates the actions of a member in relation
to other members of the corporation. Kelsen's theory is purely analytical, and omits
the policy factors that bring about variations in the attitude of the courts. It fails to
explain why a special set of rules is invoked in the case of corporations, but not in
the case of partnerships.
Fiction Theory I
This theory was originally advanced by Savigny. It presupposes that only human
beings are 'properly' called persons. Juristic persons are only treated as if they are
persons, ie, human beings. It is a fiction of law. Salmond and Holland are also
supporters of this theory. According to Salmond, the legal person in a corporation
is a thing of mere fiction or imagination. Rights and duties of legal persons are
what the law attributes to them. In other words, legal persons exist and possess
rights and duties because and so far as the law recognises them in that way. Apart
from such fictitious recognition, they have no existence at all.
Parker raises some serious objections to this theory. If corporations ate creatures of law
and have only a fictitious will attributed to it by law, no corporation can ever be accused
of a wrongful act. However, in actual practice corporations are held liable for torts and
crimes. The fiction theory, therefore, / cannot adequately explain the practices
followed in courts.
Concession Theory
This theory considers the personality of a corporation as a concession by the state

law. A company is a legal person because the state has ordained by law to treat it as
a person in law. A firm of partners is not regarded as a legal person, because it did
not secure the sovereign's concession to that effect. Thus, according to the
concession theory, the legal personality of a corporation is a mere concession of the
law, and it extends only so far as the law continues to recognise it as such. A logical
consequence of this theory would be that a company incorporated in USA could not
be recognised as a legal person in India, unless it is specifically granted such a
concession by Indian law. When Indian law recognises an American company as a
legal person, strictly speaking, the company would be two I legal persons, one
governed by American law, and the other governed by Indian law.
250
Persons
The concession theory propounded by Savigny identifies law with the state. The theory
has been used for political purposes to strengthen the state, and to suppress autonomous
bodies within it. No such body has any claim to recognition as a person, but it is a matter
of discretion for the state. In all liberal democracies, several associations and groups,
which are not legally incorporated, exist, and it is impossible to disregard their group
existence merely because they are not officially incorporated. Thus, associations and
groups have been recognised by the courts, independent of any incorporation or
concession by the state. Parker, criticising the concession theory, says that it is the actual
existence of rights and liabilities in the groups that necessitates recognition of a legal
person in the group, and not vice versa.
Realist Theory
This theory asserts that the personality in a corporation is not a fictitious assumption or a
concession of law, but a reality. According to Gierke, a German jurist, a combination of
persons does create a collective will and a collective power of action, which are realities.
An individual is reckoned as a person because he possesses a distinct consciousness, and
an independent will of his own. When several persons unite for a definite purpose and
form a corporation, they merge their individual wills to form a collective will of that
corporation. A corporation is treated as a legal person because it possesses a distinct
consciousness and an independent will, which is distinct from the will of any of its
members. Thus, the corporation possesses a corporate consciousness and a corporate will,
and therefore, a real corporate personality of its own.
The realist theory extends the idea of a collective will to any collection of individuals,
incorporated or not. It can, therefore, provide a satisfactory explanation for treating
unincorporated associations also as possessing legal rights and duties.
The realist theory attained popularity in England because of the support rendered by
influential jurists like Maitiand and Pollock. Using this theory, Pollock argued that
British Parliament had a will of its own.
An Evaluation
The above discussion explaining various theories of legal personality may cause some
confusion in your mind, because conflicting views have been expressed by eminent
jurists. Each theory must be taken to represent a particular point of view, and to reveal a
different dimension of the concept of legal personality. However, any theory must be able
to promote the
251
main purposes of the law. In the case of human beings, one of the main purposes of law
is to regulate behaviour. Summing up his evaluation of various theories, Friedmann
observes:
While each of these theories contains elements of truth, none can by itself
adequately interpret the phenomenon of juristic personality. The reason is that
corporate personality is a technical legal device, applied for a very diverse
aggregation, institutions and transactions which have no common political or
social denominator whereas each of the many theories has been conceived for a
particular type of juristic personality. None of them saw the extent to which the
device of incorporation would be used in modern business, or, we may add, to
cloak the activities of some branch of government.2
In the new era of globalisation and liberalisation, with multinational corporations

spreading their activities far and wide and wielding enormous economic and political
power, law must be able to regulate their behaviour in the interests of society. A theory
of legal personality, which will ensure corporate responsibility, must be evolved from the
juristic perspectives offered by the various theories.
Problems of Corporate Personality
As we have already seen, a corporation is quite distinct and separate from the members
who constitute it. Its rights and duties are entirely different from those of the members. A
shareholder of a company can legally enter into a contract with the company. The
shareholders might entirely be changed or their number may be increased or reduced
drastically; still the company will not lose its identity. The company might go bankrupt,
but its shareholders would retain their millions safe. The real position of the company
can be understood clearly when we make a comparison of it with an unincorporated firm.
In an unincorporated firm, there is not much difference between the rights and
obligations of the firm, and its partners. Even the personal property of the partners is
liable for the debts of the firm. As Salmond has pointed out, a company can survive all its
members. This special position of the company is due to the fact that the company is a
juristic person and, therefore, it is distinct and separate from its shareholders.
The essential character of the corporation is that it has a distinct personality of its own
from that of its members. The leading case on this point is Salomon v Salomon & Co.3
Salomon formed a company consisting
2 Legal Theory, 1967, p 513.

3 [1897] AC 22.
252
Persons
of himself, his wife, and five children, to which he sold his business at an exorbitant
price. In payment of the purchase money, the said company issued debentures to the
vendor. Subsequently, the company went into liquidation. The trial judge and the Court
of Appeal held that the creditors had the prior claim to the assets since the company was
a mere sham. Salomon was the company. However, the House of Lords unanimously
reversed this, holding that the company was in law a person distinct from Salomon and
that, therefore, Salomon was preferentially entitled to the assets as the secured creditor.
An important American case in which this principle was laid down is Peoples Pleasure
Park Co v Rohleder.4 In this case, the question was as to whether a restrictive covenant
that title to land should never pass to a coloured person operated to prevent transfer to a
corporation of which all the members were Afro-Americans. It was held that the transfer
to the corporation was valid, because a corporation is distinct from its members.
Lifting the Veil of Corporate Personality
The law is considerably complicated by the fact that courts do not always adhere to the
doctrine of separate existence. As Friedmann has pointed out, 'Greater familiarity with
the problems implicit in the incorporation of groups has compelled the courts to retract
from the simplicity of the doctrine and in some cases to "pierce the veil" of legal
personality in order to lay bare the realities behind it'. This has made the law of corporate
personality considerably complicated. There are several cases in UK, USA, India, and
other countries where the courts have lifted the veil of legal personality, and examined
the reality behind it. The veil can be lifted when it becomes necessary to know the
character of corporate person or to avoid some legal obligation; or when the device of
corporate personality is used to evade taxes; or when it is used to evade a statute, or to
delay repayments to creditors and similar situations.
In Daimler Co v Continental Tyre and Rubber Co'' the House of Lords first applied the
doctrine of lifting the veil of corporate personality. In this case, the Continental Tyre
Company was a German company as the bulk of its shareholders were Germans. After
the outbreak of war between. England and Germany, an action was commenced in the
name of this company against the Daimler Company for recovery of a trade debt. This
action was resisted on the ground that the plaintiff was an alien enemy, at war with
4[1909] 61 SER794.
5[1916] 2 AC 307.
253
Lectures in Jurisprudence |
England, and hence, the suit was not maintainable. The contention of the plaintiff was
that the nationality of the company was distinct from that of the shareholders, and that it
was a company registered in England and, therefore, it did not lose the status of a
company registered in England although war had broken out. This contention found
favour with the Court of Appeal, but was not accepted by the House of Lords. The
House of Lords held that the enemy character of individual shareholders, and their
conduct could be material on the question whether the company's agents and persons in
de facto control of the company were adhering to the enemy. If the persons in control of
the company, wherever resident, are adhering to the enemy, then the company would
assume an enemy character.
In this case, House of Lords preferred to pierce the veil of corporate personality for
the purpose of ascertaining who are the corporators behind the company. This decision,
unlike Salomon decision, supports the theory of realists that the group will is a reality,
and is not to be ignored in considering the actions of corporations.
Importance of Incorporation
The difference between incorporated and unincorporated associations in regard to legal

consequences was brought out with telling effect in Wurzel v Houghton Main House
Delivery Service Ltd.6
Under the Road and Rail Traffic Act 1933, the holder of a private carrier license (called
'O licence) was forbidden from using the vehicle for carriage of goods for hire or reward.
One group of miners created an incorporated company to secure cheap delivery of coal at
the house of its members from the colliery at which they worked, and for that purpose a
motor, goods vehicle, was purchased by the company, the charges for the delivery being
deducted from the wages of the members. Another group of workers of the same colliery
also formed an association without incorporating it, and used a motor vehicle for the
same purpose. A case was registered against both groups. In one case it was held that as
the society was incorporated, it was a legal entity distinct from its members and
consequently in the circumstances there was a breach of the conditions under which the
'C licence was held, as the vehicle was used for the carriage of goods for 'hire or reward'.
In the second case, it was held that each member was a part- owner of the vehicle and co-
owners could not be said to be carrying their own goods for hire or reward by
contributing to the running expenses, and thus there was no question of a breach of
condition of the 'C license. This brings put a clear-cut distinction between company and it
members.
6 [1937] 1 kb 380.
254
Persons
This distinction between an incorporated and an unincorporated association has been

blurred by the decision of the House of Lords in Tall Vale Railway Co v Amalgamated
Society of Railway Servants.7 Ordinarily, only an incorporated body can sue or be sued,
while unincorporated bodies cannot sue, or be sued in their own name. This rule was
very useful to trade unions.
They were usually unincorporated associations, and so their assets were not liable for
the activities of the representatives of the unions. Though such representatives would of
course be personally liable for such activities. This immunity was a source of strength to
the trade unions. In Tall Vale case, the House of Lords held that a trade union in the
absence of incorporation and registration, under the Trade Union Act, could be sued | in
action of tort for the wrongful acts of its officials. This decision was a great
disappointment to the working class, resulting in massive protests from the trade unions.
The Parliament had to intervene and pass the Trade Disputes Act 1906, restoring the
immunity of trade unions from liability for the torts of their servants. This Act was
modified in the year 1927 curtailing that immunity in the event of certain strikes and
lockouts.
From the foregoing review of some of the cases it would appear that any consistent
theory of legal personality has not been uniformly adhered to by the courts.
State as a Legal Person
Undoubtedly, the state is endowed with enormous powers, rights, immunities, privileges,
and even duties. The state can sue, and be sued. The state may enter into negotiations
with other states, and signs agreements I and treaties. Thus, all the attributes of legal
personality are present. Can ' we, therefore, consider the state as a legal person? Some
jurists regard the state as the greatest corporation known to law. Gierke, who supports
this view, considers the will of the state as the collective will of the entire people ; of the
country. This collective will is supreme, there being nobody to control 1 it. International
law also recognises the state as a legal person.
English legal system was reluctant to recognise the state as a legal person. When it
became necessary to find a legal theory for the state, the notion of the corporation sole
was borrowed from ecclesiastical law, and the King was personified. All the rights and
duties that.belong to the state are vested in the King. English Law has found it
convenient to apply the doctrine of the corporation sole to the state.
7 [1901] ac 426.
255
When we apply the analogy of a legal person to the state, the organisation of the state
and the distribution of powers and functions can be compared to those of the members
and directors of corporations. The fundamental pre-supposition of a legal order
(expressed in a written Constitution as in India, or unwritten as in England) may be
compared to the memorandum and articles of associations of a corporation.
Many modern Constitutions contain provisions treating the state as a legal person. In
federal states, the Federal or Union Government and each state or unit will have a
separate legal personality. For instance, Constitution of Australia treats Commonwealth
of Australia and its states as separate juristic entities even though it has not incorporated
them. The Constitution of India contains several provisions recognising the Union
Government and each state government as separate legal entities.
If the state is a legal person, a question of great practical significance, which arises for
consideration, is how far is the state, and how far it should be, liable to actions brought by
citizens? The concept of sovereignty was considered to be a bar to any such action. In
England, this was embodied in the maxim, the King can do no wrong. Gradually, these
notions, which are anachronistic in a democratic state and the concept of sovereign
immunity, have been considerably diluted. In England, the Crown Proceedings Act 1947
makes the state liable in tort, subject to some exceptions. The US Federal To"t Claims Act
1946 also imposes tortious liability on the state. France has developed a definite theory of
state responsibility. In India, art 300 of the Constitution provides that the state may sue,
and be sued. However, the precise nature and the extent of tortious liability remain vague,
because there is no legislation on this subject. The Constitution provides for the liability,
which existed before the Constitution came into force, to continue. The law on tortious
liability of the state in India is still governed by judicial decisions.
Legal Status of Animals
Legal systems do not generally consider animals as persons, either natural, or legal.
However, it would of course be possible for a legal system to regard an animal as a
person, and endow it with rights and duties. At present they are considered merely as
things, as the objects of legal rights and duties, but never the subjects of them. Even
though animals are capable of acts and possess interests, their acts are neither lawful, nor
unlawful. There may be some cases, as in the case of a trespassing animal, where the law
permits the animal to be detained until its owner pays compensation, but it cannot be said
that this involves any legal recognition of the personality of the animal.
256
Persons
;ation pared lentaJ as in ndum
e as a 1 each tution parate tution iment
cance, should ty was bodied which rereign Crown ) some ortious of state he state tortious
:ct. The ti tution state in
Animal lovers have accused the law to be anthropocentric, ie, concerned only with the
interests of human beings. The law is made for men, and allows no fellowships or bonds
of obligation between them and the lower animals. No animal can be the owner of any
property even through the medium of a human trustee.
The law seems to recognise at least indirectly the legal rights of animals when it makes
cruelty to animals a criminal offence. The law may also impose duties towards animals.
For instance, one of the Fundamental Duties enumerated in art 51 (A) of the Constitution
of India is 'to have compassion for living creatures'. The traditional approach of law in
situations of conflict between the interests of animals with those of human beings is to
give priority to the latter. However, the emergence of activist animal rights groups and
their campaign for a radical change in the anthropocentric approach of the law seem to
have produced some impact. For instance, under the Prevention of Cruelty to Animals
Act 1960, the Animal Birth Control (Dogs) Rules 2001 have been framed which impose
severe restrictions on killing street dogs. These rules prescribe that street dogs must be
captured using humane methods, and released in the same area after sterilisation and
immunisation. Euthanasia is permitted only in the case of incurably ill, and mortally
wounded dogs as diagnosed by a qualified veterinarian. The change in the judicial
attitude is visible in some recent decisions. In NRNair v Union cflndias a notification
prohibiting exhibition and training of performing animals in circus issued under the
Prevention of Cruelty to Animals Act I960 was upheld. In a similar case, the Kerala High
Court observed that legal rights shall not be the exclusive preserve of the humans, and
must be extended beyond people. The court added that the law, which denies rights to
animals, is an anachronism, which must necessarily change.9 The traditional view that
animals are only the objects of legal rights, but never the subjects of them, thus appears to
be debatable.10
natural, 'stem to ities. At ;al rights : capable inlawful. /here the ensation, :rsonality
Legal Status of the Deceased
Personality of a human being commences on birth, and comes to an end at death. Law
also generally accepted this layman's point of view. Deceased men are no longer persons
in the eye of law. They have neither rights, nor liabilities. The concept of heriditas jacens
in Roman Law conferred personality in the estate of a deceased person during the interval
between
8(2001) 6 SEE 84.

9Jumbo Circus v Union of India (2000) 2 Ker it 625.
10 See the debate in Animal Rights, (eds Cass R Sunstein and Martha Nussbaum),
2004.
257
J
his death, and taking of the estate by the legal heirs. In a way, it amounted to continuing
the personality of a deceased person; but it was only for a limited purpose.
Even though law does not confer rights upon the dead, it recognises and takes account
of a person's desires and interests even after his death. There are three things in respect of
which the anxieties of a living man extend beyond his death. These are his body, his
reputation, and his estate.
Every living person is concerned with the treatment to be awarded to his dead body.
The law secures a decent burial for all deceased men, and the violation of a grave is
considered as a criminal offence. It was originally thought that a corpse is the property of
no one, and it cannot be disposed of by will or by any other instrument, but this appears
to be no more correct. There are provisions of law permitting the donation of one's organs
after death. A person may, by will, provide that his body be given to medical college after
death to be used by the students of anatomy or surgery.
The reputation of a dead man also may receive protection from the law. However, here
the right protected is in reality not that of the dead, but that of his living descendants who
bring an action for defamation. The maxim de mortuis nil wist bonum gets legal
recognition to this extent.
The most important matter in which the desires of a dead man are honoured by the law
is in the case of testamentary succession. The law gives great importance to the principle
that a will must be given effect. Thus, even after a man is dead, his desires expressed
through a will continue to regulate and determine the disposition and enjoyment of the
property which he owned when he was alive.
Legal Status of Unborn Persons
Unlike dead persons, unborn persons may possess legal personality. Thus, a person may
own property even before he may be born. His ownership is contingent because he may
never be born at all; but it is a real and present ownership. A man may settle property
upon his wife and children to be born. If a man dies intestate, his unborn child will inherit
his property. However, law does not permit property to be withdrawn from the use of
living men in favour of generations yet to come. Restrictive rules like the rule against
perpetuity have been established for this purpose. In the law of property, there is a fiction
that a child en ventre sa mere is a person in being for two purposes, namely: (i) the
acquisition of property by the child itself; and (ii) being a life chosen to form part of the
period in the rule against perpetuity.
258
Lecture 20
Titles
Every right arises from a title. Here we are using the word 'right' in a wide sense to
include privileges, powers, and immunities as well. A title may be described as the source
from which a right is derived. The title is the de facto antecedent of which the right is the
de jure consequent. In the words of Holme-, 'every right is a consequence attached by the
law to one or more facts which the law defines and wherever the law gives anyone
special rights not shared by the body of the people, it does so on the ground that certain
special facts not true of the rest of the world are true of him.' It follows that a person
claims a right because of some particular title or fact.
Some rights are directly conferred by law, ie, ex lege, but in practice it is impossible for
the law to confer every right directly. Therefore, the law specifies certain facts as giving
rise to certain rights and duties. For instance, when a child is born there is no need for a
statute to be passed defining the rights and duties of this child in relation to his parents,
because the reciprocal rights and duties of parents and children are generally laid down
by the law. Similarly, the duties of a user of the highway towards others are also laid
down by the general law. If negligent driving by one person causes damage to another,
the law of torts entitles the victim to receive compensation. The fact of negligent driving
is a title creating a right of compensation.
The juristic use of the word 'title' is wider than its common use. The word is
generalised to cover any fact (or combination of facts) which creates rights and duties.
Bentham is in favour of further widening the term 'title' to include not only facts by
.which a right or duty is created, but also those facts by which the right or duty is
destroyed. The same set of facts may give rise to rights in one person, and may destroy
rights in another. For example, a river may by changing its course add to As land, and
subtract from B's land.
Titles may be original, or derivative. A title, which creates a right de
novo, is an original title. A title which transfers an already existing right to a new owner,
is called a derivative title, eg, the catching of fish is an original title of the right of
ownership. The right acquired by the fisherman is newly created since it did not formerly
exist in anyone. The purchase of fish is a derivative title because the right is acquired by
the purchaser From the vendor. It is the transfer of an existing right; not the creation of a
new right. The right which is acquired by the purchaser is identical with that which is lost
by the vendor. The essence of a title is not that it determines the creation of a right de
novo, but that it determines the acquisition of rights, new or old.
Table 1
Vestitive Facts
Investitive Facts or Titles

Divestitive Facts
Original Titles Derivative Titles Alienative Facts Extinctive Facts
Creation of Rights
Extinction of Rights
Transfer of Rights
Vestitive Facts
Facts may confer or take away rights. The expression 'vestitive facts' includes both
investitive, and divestitive facts. The facts which confer rights are called investitive facts,
and the facts which cause the loss of rights are called divestitive facts. Divestitive facts
may be extinctive or alienative. Extinctive facts divest a right by destroying it. Alienative
facts are those which divest a right by transferring it to some other owner, eg the receipt
of payment is divestitive of the right of the creditor to receive payment. Here it is
extinctive in nature. If the creditor sells the debt to a third person it is also divestitive of
the right of the creditor, but because it transfers a right to a third person, it is alienative in
nature. The transfer of a right may be looked at from two different perspectives. From
the transferee's perspective, it is the acquisition of a right. The vestitive facts, if
considered with reference to the transferee, are a derivative title. The same transaction,
when considered with reference to the transferor, is the loss of a right and is, therefore,
an alienative fact. Purchase is a derivative title, but the same is also an alienative fact.
262
I
Titles
Acts in Law
The creation, transfer, and extinction of rights are either voluntary, or involuntary, ie, they
operate in pursuance of the will of the persons concerned or independent of it. In some
cases, the law allows a man to acquire or use his rights by a manifestation or declaration
of his will, and intent directed to that end. Thus, if a man leaves a duly executed will in
which he expresses his desires regarding the disposal of his property, the law will act
accordingly. If he sells his property, it passes from him in accordance with his declared
intent, which the law adopts as of its own. However, there are other cases where the law
confers rights upon a person, or takes them away without any regard to his consent or
will. If a person dies intestate, the law will dispose of his property as it thinks fit. If a
person's goods are taken in execution by a creditor, the transfer is an involuntary one
effected in pursuance of the law's purposes.
Based on the above distinction, vestititive facts are divided into two distinct classes,
namely, act of the party, and act of the law. Some writers prefer the expression 'act in the
law', which are also referred to as juristic acts. Germans refer to them as 'Rechtsgeshafie.
An act in law is the exercise of a legal power and, conversely, exercise of any legal power
is an act in law.
Acts in law may be either unilateral, or bilateral. A unilateral act is one in which there
is only one party whose will is operative, eg, testamentary disposition, the exercise of a
power of appointment, revocation of a settlement, avoidance nf a jgudabje_contractt
forfeiture of a lease etc.
A bilateral act involves the consenting wills of two or more distinct parties. They are
also called agreements in a wide sense, as distinct from the narrow and specific use of the
term 'agreement' to denote a contract or creation of rights in personam. In a wide sense,
agreements include all bilateral acts in law, regardless of whether they are directed to the
creation, transfer, or extinction of rights. In this sense, conveyances, mortgages, leases,
and releases are all agreements.
Unilateral acts in law are divided into two, depending on whether they take effect with
or without the consent of the other concerned party. In some cases, acts in law take effect
not only without the consent of the party, but notwithstanding his dissent. His will is
wholly inoperative and powerless in the matter, eg, re-entry by a landlord upon a tenant
for breach of covenant, avoidance of a voidable contract, exercise by a mortgagee of his
power of sale etc.
In other cases, the operation of the unilateral act is subject to the dissent of the party
affected by it, though it does not require his consent. Pending
263
the expression of his will, the act has merely a provisional and contingent operation. For
instance, a will involves nothing except the unilateral intent and assent of the testator.
The beneficiaries need not know anything about it. They may not even be in existence at
the time of the will. However, if they subsequently dissent and reject the rights
transferred to them by the will, the testament will fail to take effect. On the other hand, if
they accept the provisions made on their behalf, operation of the will ceases to be
provisional, and becomes absolute.
Where there are more than two parties concerned in any act in law, it may be bilateral
in respect of some of them, and unilateral in respect of others. A conveyance of property
by A to B in trust for C may be bilateral as to A and B inter se; while it may at the same
time be unilateral as between A and B on one side, and C on the other, C having no
knowledge of the transaction. Similarly, the exercise of a mortgagees power of sale is
bilateral as between the mortgagee and the purchaser, but unilateral as far as the
mortgager is concerned.
Agreements
Agreements occupy the most important place in law. It is no exaggeration to say that the
great majority of rights and duties possessed by a member of a civilised community have
their origin in agreements. Why does law allow the mere consent of parties to stand for a
title of right? Why does the law give so much importance to agreements? The
justification comes from an acceptance of the fact that men are commonly good judges of
their own interests. There is no better evidence of the justice of an arrangement, than the
fact that all persons whose interests are affected by it have freely and with full knowledge
consented to it. Agreement is not only evidential of right, but also constitutive of it.
Consent as the basis of justice assumes that the parties are in equal economic
positions; but this is not always the case. When the economically powerful are able to
impose their will upon the economically weak, the resulting agreement may be unjust,
but law does not accept the plea that the contract was entered into through economic
necessity as a defence to an action on the contract. Consent in many cases is constitutive
of right, not merely evidential of it. In the words of Aquinas, the human will is able by
way of consent to make a thing just; provided the thing in itself is not repugnant to
natural justice.
When we attempt a comparison between agreement and legislation, the first obvious
difference is that the former is the private, and the latter is the public declaration, and
establishment of rights and duties. The basic
264
Titles
principle is modus et conventio vincunt legem, ie, save when the interest of the public at
large demands a rule, the autonomy of consenting parties prevails over what would
otherwise be the legislative will of a state. It follows that Common Law may in great
measure be excluded by Conventional Law. Agreement is a source of law between the
parties.
Classes of Agreements
Agreements are generally divided into three classes: (i) those which create rights; (ii)
those which transfer rights; and (iii) those which extinguish rights. Agreements which
create rights are again divided into two, namely, contracts, and grants.
A contract is an agreement, which creates an obligation or right in personam between
the parties to it. A grant is an agreement which creates a right of any other description,
such as the grant of a lease, easement, patent, franchise, licence etc. An agreement
which transfers a right is generally called an assignment. An agreement which
extinguishes a right is called a release, discharge, or surrender, depending upon the
nature of the
transaction..
No agreement is a contract, unless its effect is to bind the parties to each other by the
vinculum juris of newly created personal rights. It takes the form of a promise or set of
promises that is a declaration of the consenting wills of two persons that one of them
shall henceforth be under an obligation to the other. It assumes the form of an
undertaking by one with the other to fulfill the obligation so created.
It is important to note that every promise does not amount to a contract. For instance,
when a person accepts an invitation to have dinner with a friend, the former makes a
promise to the latter, but does not enter into a contract with him. In this case, the wills of
the parties are not directed to the creation of any legal right, or to any alteration of legal
relations with each other. In order to constitute a contract, there must be not merely a
promise to do certain act, but a promise, express or implied, to do this act as a legal duty.
We can identify four distinct kinds of agreements:
(i) contracts creating rights in personam;

(ii) grants creating rights of any other kind;
(iii) assignments transferring rights; and
(iv) releases extinguishing rights.
An agreement may be of a mixed nature, and fall within two or more of the above
classes at the same time. The sale of a specific chattel is a contract, because it creates an
obligation to pay the price. It is also an assignment
265
because it transfers the right of ownership. A lease is both a grant, and a contract, for it
creates real and personal rights at the same time.
The same agreement may have one effect in law, and another in equity. Thus, a written
agreement for the sale of land is in law nothing more than a contract imposing upon the
seller a personal obligation to execute a conveyance under seal, but not in itself
amounting to a transfer of the ownership of the land. In equity, such an agreement
amounts to an assignment because equitable ownership passes under it to the purchaser
forthwith, and the vendor holds a legal ownership in trust for him. Similarly, a contract to
grant a legal lease, or mortgage, or servitude is itself the actual grant of an equitable
lease, mortgage, or servitude. Equity regards that as already done which ought to be done.
There are also cases in which although infact there is no agreement, the law regards an
agreement as existing. Such instances mostly occur in contracts. The following
illustration makes this clear: A makes an offer to B and then writes a letter to B
purporting to revoke the offer. B accepts As offer before As revocation has come to his
notice. Here, the law treats it as a valid contract even though there has never been a
consensus ad idem, ie, an identity of minds, at a single point of time. A consensus ad
idem, is generally considered to be an essential pre-requisite of a valid contract.
Examples of this nature have led to the formulation of an objective theory of contract,
as distinct from the traditional subjective theory. The objective theory does not consider a
contract as a subjective meeting of the minds, but as a series of external acts giving the
objective a semblance of agreement. The purely subjective theory goes to the other
extreme insisting on a subjective meeting of the minds. The law takes a subjective view
in some cases, and an objective view in others, according to the policy of the particular
case. Usually, the word 'agreement' is used to cover not only a genuine agreement in a
subjective sense, but also a contract, which, in law, is regarded as the equivalent of an
agreement.
Valid, Void, and Voidable Agreements
Agreements are of three kinds on account of their legal efficacy. They can be either valid,
void, or voidable.
A valid agreement is one which is fully operative as per the intent of the parties. A void
agreement, on the other, hand, is one which totally fails to receive legal recognition, or
sanction. It is unenforceable, as the declared will of the parties is wholly destitute of legal
efficacy. A voidable agreement stands midway between valid and void agreements. A
voidable agreement is not a nullity, but its operation is conditional, and not absolute. It is
266
Tttles
liable to be cancelled, or disregarded, or destroyed at the option of one of the parties to it,
but is operative otherwise.
Void and voidable agreements may be classed together as invalid. The invalidity of
agreements may arise from various sources. The most important causes of invalidity are:
(i) Incapacity ofparties: As in the cases of minors and lunatics.

(ii) Informality: Agreements may be distinguished as simple or formal. A simple
agreement is one in which nothing is required for the effective operation beyond
the manifestation of the consenting wills of the parties. A formal agreement, on the
other hand, is one in which the law requires not merely the consent, but also
manifestation in some particular form. If those legal formalities are not followed,
then such agreement will be invalid. For instance, if the consent of the parties is
not expressed in writing, signed by them or if it is not acknowledged in the
presence of witnesses, or if it is not recorded by some form of public registration,
then such informal agreement shall not be enforceable.
(iii) Want of Free Consent: If an agreement is the product of any form of coercion,
undue influence, fraud, misrepresentation, error or mistake, the consent cannot be
treated as free and hence, the agreement based on such a consent shall be invalid.
(iv) Want of Consideration: Another condition commonly required by English law for
the existence of fully effective consent is that of consideration. This requirement
is, however, almost wholly confined to the law of contract, the other forms of
agreement being generally exempt from it. When all the benefits of a contract go
to one party and the other party gets nothing, such agreement will be invalid for
want of consideration.
267
Lecture 21
Property
EANING
e term 'property' has a variety of meanings, and uses. In some contexts neans ownership
or title, and in some other contexts it is used to mean thing over which ownership is
exercised.
In its widest sense, property includes all legal rights possessed by a son. A man's
property is all that is his in law. This approach is found in ier writings. Blackstone
speaks of the property, which a master has in person of his servant, and a father in the
person of his child. Hobbes siders all those that are dearest to a man including his life
and limbs, jugal affection, riches and means of living as things held in property, ording
to Locke, every man has a property in his own person, and a i has the right to preserve
his property, ie, his life, liberty,' and estate, ay such wide use of the term 'property' is not
followed, he narrower sense in which the word 'property' is generally used today
not include all of a person's rights, but only his proprietary, as opposed is personal
rights. Proprietary rights constitute his estate or property, s a man's land, chattels,
shares, and the debts due to him are considered
>roperty, but personal rights concerned with his status or personal
lition such as his life, liberty, or reputation are not considered as
erty.
operty is also used in a still narrower sense to mean only proprietary s in rem.
Proprietary rights in personam are distinguished from it as Rations, which will be
discussed in our next lecture. In this sense a old or leasehold estate in land or a patent or
a copyright is property, i debt or the benefit of a contract is not. Perhaps the narrowest
sense in h the term 'property' is used includes only corporeal property, ie, the of
ownership in a material object, or that material object itself. Bentham
who was in favour of using property in this narrowest possible meaning considered the
extension of the term to include other rights as improper.
Kinds of Property
Property is commonly divided into corporeal and incorporeal. Corporeal property is the
right of ownership in a material thing. Incorporeal property is any other proprietary right
in rem. It is further divided into (i) jura in re aliena or encumbrance, whether over
material or immaterial things, eg, leases, mortgages, servitudes etc; and (ii) jura in re
propria, over immaterial things, eg, patents, copyrights, and trademarks.
Ownership of Material Things
We have already seen that corporeal property is the right of ownership in a material thing.
We have to distinguish ownership from limited rights to the use of property, such as the
right of way, which is merely an encumbrance. The owner of a material object is the
person who owns a right to the aggregate of its uses. Ownership is the right of general
use. When we speak of ownership as the right of general use, it must be clearly
understood that this general use need not be absolute or unlimited. All lawful use of
property may be either general, ie, residuary, or specific in nature. General use is
ownership, and specific use is encumbrance. The general law may impose various limits
on ownership so that no one uses his own property in such a way as to injure his
neighbour. Some restrictions imposed by the general law may be in the interest of the
public. The second type of restriction on an owners right of use consists of encumbrances
vested in other persons. The existence of encumbrances does not destroy the right of
ownership. Legally, a right of ownership subject to a number of encumbrances is as good
as a right of ownership without any encumbrance.
Ownership is necessarily permanent and inheritable. It is permanent because it is
capable of lasting as long as the thing itself, which is its subject matter, lasts. It is
inheritable because it is capable of surviving its owner. After the death of the owner,
property passes on to his legal heirs. Salmond defines the right of ownership in a material
thing as the general, permanent, and inheritable right to use of that thing.
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Property
Table 1
Property i
Jura in re propria
Jura in re aliena
Material Things
Immaterial Things Leases Security Servitude etc
Land
Chattels
Patents, Trademarks, Copyright etc
Corporeal Property
Incorporeal Property
Movable and Immovable Property
Corporeal property is classified into movable property, and immovable property. English
law uses the word 'chattels' for movable property, and 'land' for immovable property.
Legal systems lay down different rules for these two classes of property.
Immovable property that is land in its legal sense includes:
(i) A determinate portion of the earth's surface;

(ii) The ground beneath the surface down to the centre of the earth;
(iii) Possibly the column of space above the surface ad infinitum. The question
whether ownership of land includes the column of space above the surface ad
infinitum is debatable. Even if such a right is admitted in theory, law imposes
restrictions on the right. In England, the Air Navigation Act of 1920 provides that
the flight of aircrafts at a reasonable height above the ground is not actionable in
the suit of the owner or occupier of the land. According to German Civil Code, the
owner of the land owns the space above it, but has no right to prohibit acts so
removed from the surface that they do not affect his interests in any way. The
maxim cujus est solum ejus est usque ad coclum, ie, whose is the soil, his is also
that which is above it, means only that if one owns a portion of the earth's surface,
one also owns anything below or above that portion which is capable of being
reduced into private ownership. In other words, a reasonable space above the
surface of the land necessary and sufficient for the use and beneficial enjoyment
of the land and all things attached thereto is included in the concept of immovable
property, which a person can own.
271
(iv) All objects, which are on or under the surface in its natural state. They form part of
the land, eg, minerals, natural vegetation, or stones lying loose upon the surface.
Here again law may impose, limitation on ownership or use. The state may, by law,
create a monopoly in favour of any minerals, metals or precious stones, which lie
beneath the surface of even private property.
The question whether the owner of land enjoys an absolute right to the ground
water beneath the surface of his land was raised in Perumatty Grama Panchayat v
State of Kerala} A multinational company manufacturing bottled drinks established
a factory in Kerala. Where the company started extracting a huge quantity of water
from their property, the neighboring areas experienced an acute scarcity of water.
The grama panchayat, in exercise of powers under the Kerala Panchayat Raj Act,
directed the company to either make alternate arrangements for water required for
their industry, or to close down the factory. The company challenged the validity of
the order in Kerala High Court. The court observed that the underground water
belongs to the public, and the state and its instrumentalities should act as trustees of
this great wealth. The court, deviating from the conventional view, pointed out that
the ground water under the land of the respondent did not belong to it. The Division
Bench of the high court, on appeal, set aside the order of the single judge, and
upheld the right of the owner of the land to 'extract water from his property, unless
it is prohibited by a statute.'2 According to the court, the permissible restrictions in
public interest can only be to compel him to ensure that by his conduct he does not
bring about a drought or any imbalance in the water table. Even though we find a
difference in the approach of the single judge and the Division Bench on the scope
of the right of the landowner, it is important to note that in both judgments the court
accepts the permissibility of restrictions on the right.
(v) The last element is any object placed by human agency on or under the surface of
the land with the intention of permanent annexation. These objects become part of
the land, and lose their identity as separate movables, eg, buildings, walls, fences
etc. The intent of permanent annexation is an essential ingredient, but physical
attachment to the surface is not so essential. Physical
1(2004) 1 KLT 731.

2Hindustan Coca Cola Beverages (P) Ltd v Perumatty Grama Panchayat (2005) 2
KLT 554.
272
I
Property
attachment without the intent of permanent annexation, is not sufficient to include

an object in the category of immovable property.
Movable property or chattel cannot be precisely defined. It may be described as any

corporeal property, which is not immovable property or land.
Situs of Right
Generally a right has its situs or seat at the place where it is to be exercised or enjoyed.
Thus, rights over material things, such as land or buildings have the same situation as the
things themselves. The question is where is the situs of the goodwill of a business
situated? The answer is obviously, in the place where the business is carried on. The situs
of a debt is generally the place where the debtor resides because it is to that place that the
creditor must go if he wants to get his money back.
English Common Law also makes a distinction between real and personal property. Real
property comprises all rights over land with such additions or exceptions recognised by
Common Law. All other proprietary rights are included in the law of personal property,
which is identical to the law of movable property. Leasehold rights are, however,
treated in English Law as personal property.
Now we will examine the meaning of the word 'chattel', which is frequently used in
English Law. Chattel refers to any movable physical object such as a horse, a book, a
watch, a coin, a chair etc. It also refers to incorporeal proprietary rights such as debts,
shares, contracts, patents, copyrights, and other rights in rem, which are not rights over
land. Chattel refers to personal property, whether movable or immovable, as opposed to
real property. English law considers leaseholds as chattel, though it may appear to be
illogical.
Rights in Re Propria in Immaterial Things
Earlier the emphasis was on proprietary rights over material things. With the
advancements in science and technology the importance of the products of human
intellect is being increasingly recognised. The shift in emphasis to proprietary rights over
immaterial things is a result of this recognition. What we now call intellectual property
rights are jurisprudentially rights in re propria in immaterial things. These rights include
patents, and copyrights. The subject matter of a patent is an invention. The law
recognises the right of a person whose skill or labour produces the idea of a new
273
process, instrument, or manufacture. Copyrights exist in literary works, artistic works,

including musical and dramatic works. It has been extended to include computer
programmes also.
Another class of rights in re propria in immaterial things consists of commercial
goodwill, trademarks, and trade names. A person who establishes a business and acquires
goodwill has exclusive right to the goodwill. Trade names and trademarks are also
similarly protected by law. These rights cannot only be owned and possessed, but can
also be leased, mortgaged, or sold or otherwise dealt with.
Rights in re aliena or Encumbrances
Rights in re aliena may be described as encumbrances, or rights in rem over a thing

owned by another. The right must run with the thing encumbered. In other words, it must
bind the thing, no matter into whose hands it may come. For instance, an easement binds
the servient tenement, and a purchaser will be bound irrespective of whether he was
aware of the easement. Encumbrances are not confined to real property, but may extend
to personal property also.
There are many types of encumbrances. We will discuss only the three types of
encumbrances, which are considered the most important.
Lease
A lease is an encumbrance, which consists in a right to the possession and use of property
owned by some other person. There is a separation of possession from ownership. The
person who possesses the property, but does not own it is called the lessee. The person
who owns it, but who has transferred his possession to the lessee, is the lessor. A person
who is not the full owner of the property may also lease the property. Hence, a mortgagee
can lease the mortgaged property, and the lessee can sub-lease it. Any right that can be
possessed can be leased. A patent, copyright, trademark, or the right to receive interest
may be the subject of a lease.
A bailment is similar to a lease. However, the term 'bailment' is never used in relation
to land. A bailment is the transfer of possession, and enjoyment of the chattel by the
owner for a limited period for limited purposes.
Servitude
Servitude is a right to the limited use for a piece of land without the possession of it, eg, a
right of way or right to sunlight over anothet's land, a right to support etc. The distinction
between a servitude and a lease, as
274
Property
you must have noticed, is that there is no possession in servitude. A lease involves
possession and use without ownership, while servitude involves use without possession,
and ownership. For eg, when A obtains a piece of land belonging to E for exclusive
possession and enjoyment for a definite period, it is a lease. When A obtains a mere right
of way over B's land to go to As land, it is an easement.
Servitude may be private, or public. A private servitude is one vested in a determinate
individual, as in the case of a right of way, or sunlight, or support vested in the owner of
one piece of land over an adjoining piece of land. The right of fishing granted to one
person in a pond belonging to another is also a private servitude. A public servitude is one
vested in the public at large, or in some class of indeterminate individual, eg, a right of
the public to use private land as a pathway, the right of the inhabitants of a locality to use
a piece of private land as a playground etc.
English law divides servitudes into two categories, viz, appurtenant, and in gross. A
servitude appurtenant is not merely an encumbrance of one piece of land, but is also
accessory to another piece. It is a right of using one piece of land for the benefit of
another, eg, a right of way, or right to support by an adjacent owner. The land, which is
burdened with the servitude, is called the servient land or tenement and the land, which
has the benefit, is called the dominant land or tenement. In this case, the servitude runs
with each of the tenement into the hands of successive owners or occupiers. Servitude in
gross, on the other hand, is not attached or accessory to any dominant tenement, eg,
public right of way, or navigation, or a private right of fishing, mining etc.
Easement
The term 'servitude' is peculiar to Roman Law. English Law and Indian Law generally
use the term 'easement'. In the strict sense, easement is only one class of servitude. It may
be positive, or negative.
A positive easement enables the owner of the dominant tenement to do something upon
the servient tenement. A right of way is a positive easement. A negative easement confers
a right to restrain the commission of some acts on the servient tenement. The easement of
sunlight is a negative easement, for it enables its owner to restrain the servient owner
from erecting any construction that would materially obstruct the passage of sunlight
coming to the building of the owner or the easement.
Distinction between Easement and Licence
A licence is a right, not being an easement to do or continue to do upon
275
the immovable property of another, with the permission of its owner, something that
would be an unlawful act, but for such permission. The following are the distinctions:
(i) A licence is invariably a right to do or continue to do some positive act on the

immovable property of another. It is not, unlike an easement, a right to prevent an
owner of immovable property from doing something on his land. Thus, while an
easement is both positive and negative in character, a licence is always positive.
(ii) A licence is a personal right and creates no more than a personal obligation
between the licensor and the licencee. An easement, on the other hand, is a right,
in rem available against the entire world.
(iii) A licence is not appurtenant to any land, while an easement is always attached to
dominant tenement for the beneficial enjoyment of which it is intended.
(iv) Being a personal right, a licence is not assignable except in certain
circumstances, but an easement passes with the dominant heritage.
(v) While a licence is generally revocable at the will of the grantor, an easement
cannot be revoked at the will of the servient owner.
Security
A security is an encumbrance the purpose of which is to ensure or facilitate the

fulfillment or enjoyment of some other right vested in the same person. It is usually,
though not necessarily, connected with a debt.
Two kinds of securities, viz, mortgages and liens, are generally distinguished. A lien is
a right, which in its own nature forms a security for debt, and nothing more. In contrast,
a mortgage is a right in its own nature. It is an independent or principal right, and not a
mere security for another right. However, what we often find is that a mortgage is
artificially limited to serve as security. A lien cannot survive the debt secured. It ceases
and determines ipso jure on the extinction of the debt. It is, therefore, called merely the
shadow cast by the debt upon the property of the debtor. However, if the lienor has in
pursuance of the lien taken possession of the property, the discharge of the debt will not
ipso facto destroy the possession, but merely his right to retain it against the debtor. The
right vested in a mortgagee has an independent existence, and may remain outstanding
even after the extinction of the debt. Thus, when left outstanding, it must be re-
transferred or surrendered to the mortgager. The right of the mortgager to such re-
transfer or surrender is called his right of equity of redemption.
A security must satisfy two requisites. First of all, it must afford sufficient protection
to the creditor. Equally important is that it must interfere with the rights of the debtor to
the least. In this respect, lien appears to be a
276
Property
better form of security. It leaves the full legal and equitable ownership in the debtor, but
vests in the creditor such rights and powers as are required according to the nature of the
subject matter. A lien gives sufficient protection to the creditor, and looks after the
interests of the debtor by its lapse ipso jure with the discharge of the debt.
We can identify the following five kinds of lien:
(i) Possessory liens: Consisting in the right to take possession of the property of the
debtor.
(ii) Right of distress or seizure: Consisting in the right to take possession of the
property of the debtor with or without the power of sale.
(iii) Powers of sale: It is usually incidental to the right of possession conferred by the
first or second form of lien.
(iv) Powers of forfeiture: Consisting in a power of a creditor destroying some adverse
right vested in the debtor, eg landlord's right of reentry on his land.
(v) Charges: Consisting in the right of the creditor to receive payments out of some
specific fund. A charge was considered to be always of specific property. Modern
commercial practice has developed a form of charge, which does not attach itself
to any specific property. This is called a floating charge. The charge becomes
fixed to any specific property only when the money secured becomes payable,
and the creditor has taken some steps to enforce his security. Until then the debtor
is free to deal with his property in any manner he likes.
Modes of Acquisition
Among the many modes of acquiring property the most important modes, which deserve
our attention, are possession, prescription, agreement, and inheritance. We will now
discuss each one of them in some detail.
Possession
When the property belongs to no one (res nullius), the first possessor acquires a valid
title against the whole world. In Roman Law, this mode of acquisition was known as
occupatio. The property may belong to someone. Still, possession confers a right in the
possessor as against the entire world, except the true owner, or the' previous possessor.
Even as against the true owner, the possessor is entitled to maintain his possession until
evicted in due course of law. A thing owned by one person and possessed adversely by
another has in truth two owners. The ownership of one is absolute and
277
perfect; while that of the other is relative and imperfect. The ownership of the possessor
is called possessory ownership, and will be protected against all except the true owner. A
plea of jus tertii (title of a third party) is not valid as against the possessory owner. Law
for the purpose of preserving order and peace protects the rights of the possessor, for
otherwise force and fraud will prevail.
Prescription
Prescription may be defined as the effect of lapse of time in the creation, and extinction
of legal rights. It is the operation of time as a vestitive fact. The creation of a right by the
lapse of time is called acquisitive, or positive prescription. The destruction of a right by
the lapse of time is termed as extinctive, or negative prescription. The question whether
prescription shall operate as acquisitive or extinctive depends on whether it is
accompanied by possession. Positive prescription is the vestitive operation of lapse of
time with possession. Thus, the enjoyment of a right of way over another's land for 20
years confers a prescriptive right of way on the person who has enjoyed the right for the
prescriptive period. This is an illustration of acquisitive, or positive prescription. Long
possession creates rights, and long want of possession destroys them. Thus, a person who
is in adverse possession of land for a period of 12 years acquires ownership of the land,
and the owner loses his ownership for want of possession. There is a coincidence of the
divestitive as well as vestitive operation of lapse of time upon rights. This kind of
prescription is called translative, acquisitive, or positive prescription, for the right of the
late owner is thereby transferred to the adverse possessor. In both forms of prescription,
fact and right, possession and ownership, tend to coincide.
The rational basis of prescription lies in the presumption of the coincidence of
possession and ownership, of fact and of right. Owners are usually possessors, and
possessors are usually owners. As Salmond observes, 'the tooth of time may eat away all
other fruits of title. Documents are lost, memory fails, witnesses die, but as these
becomes of no avail an efficient substitute is in the same measure provided by a probative
force of long possession'.
The longer the possession or absence of possession has continued, the greater is its
evidential value. Law has established the evidence of a conclusive possession in favour
of the rightfulness of long possession, and against the validity of claims which are
vitiated by long want of possession. Some commentators had gone to the extent of stating
that prescription has been advanced from the law of evidence to a place in the substantive
law. Law
278
Property
of follows the principle vigilantibus non dormientibus jura subveniunt, ie, the
ist laws give help to those who are watchful, and not to those who sleep. It is
of on this principle that the law of prescription is based, ng Negative
prescription is further divided into perfect, and imperfect,
id Perfect negative prescription is the destruction of the principal right
itself.
Imperfect negative prescription is the destruction of the accessory right
of action alone, while the principal right remains. It is commonly called
the limitation of actions. In one case the right is wholly destroyed, while
in the other it is merely reduced from a perfect and enforceable one to
an imperfect
,n' and unenforceable one, eg, a creditor loses his right of action for the debt
ct> after a period of six years, which is the period of limitation, but the debt
we itself is not extinguished, although it becomes imperfect and
unenforceable, as
^ Agreement ed
of Agreement as a title of proprietary rights in rem may be of two kinds,
viz,
;r's (i) assignment; and (ii) grants. By assignments, existing rights are
transferred
las from one owner to another. By grant, new rights are created by way of
of encumbrance upon the existing rights of the grantor. Sale is an
assignment,
nd while lease is a grant.
rse A well accepted general principle of law is that an assignee or grantee
id, cannot get a better title than that of his assignor or grantor. Another way
of
sa stating the same principle is that no man can transfer or encumber a
right,
me which is not his. However, this is not an absolute rule. Exceptions arise
or under two groups: (i) those due to the separation of legal from equitable
red ownership; and (ii) those due to the separation of ownership from
ht, possession.
Where the legal ownership is in one man, and the equitable ownership
the in another, the former is a trustee for the latter, and the trustee holds the
are property on behalf of the other. Yet he may give an unencumbered title to
res, a purchaser for value without notice of trust. To this extent the legal
owner
jst, can transfer to another a better title than he has, notwithstanding the
ent maxim, nemo dat qui non habet, ie, no man can give a better title than
that
mg which he himself has.
I When possession of a thing is in one person and ownership in another,
the the possessor is, in certain cases, allowed to give a good title to one who
sive deals with him in good faith believing him to be the owner. A transferee
for
the value from the person in possession without notice of any defect in the
title
ime of the possessor gets a valid title to the thing transferred, eg, in the case
of
een a negotiable instrument, even a stolen instrument can be transferred so
as
âw to give a good title to the purchaser for value without notice.
279
Inheritance
A right may be inheritable, or uninheritable. It is inheritable if it survives its owner,

uninheritable if it dies with him. This division is to a large extent coincident with that
between proprietary and personal rights. Personal rights are, in almost all cases, so
intimately connected with the personality of the person in whom they are vested that they
are incapable of separate and continued existence. They are not merely divested by the
death of the person, but are wholly extinguished. In some rare cases, personal rights are
inheritable as, for instance, the status of hereditary nobility, and the political and other
privileges accessory thereto. The rights, which a dead man leaves behind him, vest in
some person whom the dead man or the law on his behalf has appointed to represent him.
All the rights and liabilities of the deceased, which are capable of surviving him, pass to
his legal representatives, but the liability of the legal representative is limited to the
amount of the property that he has inherited from the deceased. Thus, inheritance may be
said to be a legal and fictitious continuation on the personality of the deceased.
The representative of the dead man is not necessarily the beneficial owner of the
property of the deceased vested in him. He holds the property on behalf of two classes of
persons, namely, the creditors and the beneficiaries of the estate, among whom he himself
may or may not be numbered.
The beneficiaries who are entitled to the residue after satisfaction of the creditors are of
two classes: those nominated by the last will of the deceased, and those appointed by the
law in default of any such nomination. The succession of the former is testamentary, and
that of the latter is intestate. Regarding intestate succession, the law is guided by the
presumed intention of the deceased, and confers the estate upon his relatives in the order
of proximity. In default of any non-relatives, property of an intestate is claimed by the
state itself, and goes bona vacantia to the state.
Generally, a person's will duly declared in the document, which is significantly called a
will, is held inviolable by the law. This power of the dead hand to determine the rights
and responsibilities of living men is a familiar feature of the law. Nevertheless, some
limitations are imposed by the law upon the testamentary power. They are:
(i) Limitation of time: It is only during a limited period after his death that the
directions of the testator as to the disposition of his property are held valid. Any
violation of this restriction makes the testamentary disposition wholly void under
English Law, but void only for the excessive period under Indian Law.
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Property
(ii) Limitation of amount: Most legal systems limit the testamentary power by
providing that the testator can deal with only a certain portion of his estate, and the
residue may be allotted by the law to those to whom he owes a duty to support,
namely, his wife and children.
(iii) Limitation of purpose: It is not permissible in exercise of the power of testamentary

disposition to withdraw property from the use of the living. Thus, no man can direct
that his property shall lie waste after his death, or his valuable belongings be buried
with him.
281
Lecture 22
Obligations
All of us use the word 'obligation' in our daily conversations. We generally use the word
as a synonym for duty. As a legal term, 'obligation' has a meaning different from duty.
Roman Law made a distinction between dominium, which creates rights in rem, and
obligatio, which gives rights in personam. HLA Hart observes that obligation exists by
virtue of a rule. Obligations may be moral as well as legal. Hart identifies the following
differences between moral and legal obligations:
(i) Every moral rule is treated as being important, but this is not so with every legal
rule.
(ii) Moral rules are not changed by deliberate single acts, while legal rules can be so
changed.
(iii) Breach of moral rules requires voluntary and blameworthy conduct, but many
legal rules can be broken without fault.
(iv) Moral pressure is applied mainly to appeal to the morality of the conduct, whereas
legal rules are applied mainly by coercion.
The distinction between moral and legal obligations follows from the above distinction
between moral and legal rules.
Dias considers duty as a species of obligation. It is possible to differentiate between a
duty and an obligation in three main respects, viz:
(i) Obligation is a duty in personam. Examples include the duties to pay a debt, to
perform a contract, or to pay damages for tort. Duties in rem, such as the duty to
refrain from interference with the person, property, or reputation of others is not
considered as an obligation in the legal sense.
(ii) Obligation denotes the legal bond or vinculum juris in its entirety, including both
the right of one party, and the liability of the other in the same transaction. When
we look at the transaction from the point of view of the person entitled, an
obligation is a
right. From the point of view of the person bound, it is a duty. Thus, we may say that
the creditor acquires, owns or transfers an obligation. Correspondingly, the debtor has
incurred or has been released from an obligation, (iii) Obligation denotes the
proprietary rights in personam of an individual. In this sense, an obligation is defined
as a duty, which corresponds to a proprietary right in personam. Rights which relate to
a person's status are not obligations even though they are rights in personam. A clear
example is the rights created by marriage.
An obligation is also called a chose in action, or a thing in action. It means a proprietary

right in personam. A debt, a share in a company, money in the public funds, or a claim for
damages for a tort are all choses in action. On the other hand, non-proprietary rights in
personam, such as those which arise from a contract to marry, are not considered as
choses in action.
The distinction between dominium and obligatio in Roman Law, which we have
mentioned at the beginning of this lecture, is reflected in the distinction between choses
in action, and choses in possession. A chose in action, as we have seen, is a proprietary
right in personam. All other proprietary rights, including such objects of rights as are
identified with the rights themselves, are choses in possession.
Historically, these two terms were used in a different sense. A chose in possession was
any thing or right which was accompanied by possession, while a chose in action was any
thing or right of which the claimant had no possession, but which he must obtain, if need
be, by way of an action at law. Money in your pocket or purse is a thing in possession.
Money which a debtor owes you is a thing in action.
This distinction is largely coincident of the distinction between real and personal rights.
Real rights are commonly possessed as well as owned, while personal rights are
commonly owned, but not possessed. However, it must be remembered that this
coincidence is not complete. For instance, a chattel stolen from its owner was reduced, so
far as he was concerned, to a thing in action, but his right of ownership was not thereby
reduced to a mere obligatio.
In the early period, the law attributed extraordinary importance to the fact of
possession. Gradually, this importance diminished and the distinction, between things in
possession and things in action also lost the original significance, and these two terms
acquired a new meaning. Originally, shares and annuities were considered as things in
possession, but now they are considered as things in action. Lands and chattels are now
considered as things in possession, irrespective of whether the owner
284
Obligations
retains possession. Obligations, which were treated as the most important species of
things in action, are now the only species. Some jurists have suggested that immaterial
property such as patents, copyrights, and trademarks should be treated as choses in
action, but this suggestion has not been accepted both by the old law and the new.
Paton is of the view that the only logical division is into the rights created directly by
law, and rights created by the consent of another. In terms of duties, the classification
will be into duties imposed on a person against his will, and duties which he freely
accepts. Paton considers this division as a logical basis for understanding the nature of
obligations as well.
Solidary Obligations
Ordinarily in an obligation, there will be one creditor, and one debtor. However, there
may be transactions in which there are two or more creditors, or two or more debtors. An
obligation in which two or more debtors owe the same debt to the same creditor is called
a solidary obligation. For instance, A and B, two partners of a firm, owe Rs 5,000 to C. It
is a single debt of Rs 5,000 owed by each of them, and not several debts of Rs 2,500
each by A and B separately. The creditor C can compel each of the debtors to pay the
whole debt of Rs 5,000. In the language of Roman Law, we can say each of the debtors
is bound in solidum instead of pro-parte, ie, for the whole, and not for a proportionate
part. When the debt is paid by either A or B, both are discharged from it.
Solidary obligations may be classified into (i) several; (ii) joint; and (iii) joint and
several. We will briefly examine these three kinds of solidary obligations.
Several
In this case, although the thing owed is the same in each case there are as many distinct
obligations and causes of action as there are debtors. Each debtor is bound to the creditor
by a distinct and independent vinculum juris (legal bond), since in each case, the subject
matter of the obligation is the same. Performance Jby one of the debtors necessarily
discharges all the others also. For instance:
(i) the liability of a principal debtor and that of his surety, provided that the contract
of suretyship is subsequent to, or independent of, the creation of the debt;
(ii) the liability of two or more co-sureties who guarantee the same debt
independently of each other;
285
(iii) separate judgments obtained in distinct action against two or more persons liable
for the same debt; and
(iv) the liability of independent wrongdoers whose acts cause the same damage.
In Thomson v The London County Council} the plaintiff's house was damaged as a result
of excavation negligently made by A, and also as a result of the negligence of B, a water
company, in leaving a pipeline insufficiently stopped. Here, the acts of A and B caused
the same damage, but since their acts were quite independent of each other, the liability
of the parties was held to be several.
Joint
When there is only one single legal bond or vinculum juris binding all the debtors, the
obligations is called joint. There is only one cause of action as against all, whereas in
several solidary obligations, there will be as many causes of actions as there are debtors.
As a consequence of the unity of obligations, all the debtors are discharged by anything
which discharges any of them, eg:
(i) the debts of the partners of a partnership firm;

(ii) the liability of a principal debtor and that of his surety where the principal debtor
and the surety sign a joint bond; and
(iii) the liability of two or more co-sureties when they join in a single contract of
guarantee.
Joint and Several
When the creditor has the option to treat the liability either as joint or as several, it is
called joint and several solidary obligation. For some purposes, the law treats them as
joint and for some other purposes, as several. Under s 43 of the Indian Contract Act 1872,
liability is joint and several unless there is an agreement to the contrary. A promisee can
sue anyone or some of the joint promisors, and all the promisors need not be made parties
to the suit. A suit for contribution would lie between the debtors. For instance, if A and B
owe Rs 100 to C, the common creditor, and A has been compelled to pay the whole debt
of Rs 100 to C, then A can sue B for contribution.
A few more illustrations would make the difference between the above three types of
obligations clear. When A has received a loan from C under a promissory note executed
by him on a particular date and at a subsequent date, B guarantees the same debt of A by
executing a surety bond, the
1 [1899] 1 QB 840.
286
Obligations
liability of both A and B is several. On the other hand, if A and B executed the same debt
bond on the same date, the liability of both A and B is joint. Two or more persons may
have joint and several obligations under the same contract. When they are separately
sued and judgment is obtained against each of them, they are no longer jointly liable, but
severally liable for the same obligation.
Sources of Obligation
Based on their origin, the obligations recognised by English law are divided into four
classes, viz:
(i) Contractual: Obligationes ex contractu;

(ii) Delictal: Obligationes ex delicto;
(iii) Quasi-contractual: Obligationes quasi ex contractu; and
(iv) Innominate.
Let us examine each one of the above sources of obligations in some detail. Contractual
The most important class of obligations consists of those, which are created by the
consent of parties, ie, by contract. They create rights in personam between the parties. We
have already seen that obligations are the most numerous and important kind of rights in
personam. It may be said that the law of contract is almost wholly embraced within the
law of obligations. There may be a few exceptions like a promise of marriage, which fall
within the law of status, and not within that of obligation. As Salmond says, neglecting
the small class of personal contract, the general theory of contract is simply a
combination of the general theory of agreement with that of obligations.
Most of the obligations, which are enforced by law, are created by contract. Why
should such obligations be enforced? In justification, we can mention the following four
grounds:
(i) Honour principle: Pacta sunt servanda is regarded as a principle of natural law.
Thus, a promise should be honoured by the promisor
"as derived from natural law. It is associated with the honour and self-esteem of the
individual.
(ii) Will principle: According to this principle, law should not frustrate the reasonable
expectations of people, and it should give effect to the will of parties as manifested
in legal transactions.
287
(iii) Bargain principle: Where there is a quid pro quo, the receiver is bound to
reciprocate in the terms on which the quid was given. When one party has
performed his part, the other party must be held to the performance of his
undertaking.
(iv)Injurious reliance principle: When a person has altered his possession to his
detriment by relying on another's undertaking that other person should make good
his undertaking, or pay compensation for the detriment he has caused.
Delictal
Obligations, which are termed delictal, are those, which arise from torts. An obligation of
this kind denotes the duty of making the pecuniary satisfaction for that species of wrong,
which is known as tort.
The word 'tort' has its origin in French, and it literally means twisted, crooked or
wrong. In a legal sense, 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 obligations. Tortious liability is defined by Winfield in the
following words: 'Tortious liability arises from the breach of a duty primarily fixed by
law; this duty is towards persons generally and its breach is redressible by an action for
un-liquidated damages'.
When we compare the nature of a duty in torts with that of a duty in contract, the
difference is at once obvious. In the case of torts, the duties are fixed by the general law
of the land, whereas in contract, the duties are fixed by the consent of parties. Another
significant difference is that the damages claimed in tort are always elastic and
unliquidated, whereas it is always fixed and inelastic in contractual obligations. As an
illustration, let us consider a person who drives a car on a public road. He is under a
general duty towards the public to drive the car carefully. If as a result of his rash and
negligent driving, he has caused injury to an individual on the road, he is liable to pay
damages to the injured person. The duty violated is a general duty, which a driver owes to
the public. Here the quantum of damages he has to pay is not fixed in advance, but is
related to the injuries suffered by the person. That is why we call it elastic and
unliquidated.
Quasi-contractual
There are certain obligations which are not truly contractual in the sense of based on
agreements, but the law treats them as contractual. We may say that these obligations are
contractual in law, but not in fact. It is a kind
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Obligations
of fictitious extension of contractual obligations to cover obligations,

which do not really fall within it. Roman Law called them obligationes
quasi ex contractu. English Law uses the term 'quasi-contract' or
'implied contract'.
According to Winfield, it signifies liability not exclusively referable
to any other head of law, imposed upon a particular person to pay
money to another person on the ground of unjust benefit. Obligation
to pay money received by a person under mistake is an example of
quasi-contractual liability. Salmond is of the view that a rational
system of law is free to get rid of the conception of quasi-contractual
obligation altogether.
sted, I for
the able irds: law;
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Innominate
This is a residuary class, to which all obligations, which do not come under any of
the above classes of obligations, belong. Such a residuary category is necessary
because the classifications of obligations are not based on any logical scheme of
division, but proceed by simple enumeration. In this residuary class, we can include
obligations of trustees towards the beneficiaries. We are not attempting an
elaboration of this obligation here because it has received detailed considerations in
another lecture, viz, on property.
' in ties are the t is let r a of he ed of es
se
d
1
289
Lecture 23
Liability
Liability arises from the wrongful acts of an individual. We have already seen that any
person who disobeys the directions of law faces consequences. Such consequences which
are attached to rules of law in order to compel obedience to them, are called sanctions.
Liability or responsibility is the chance of a wrongdoer to incur the sanction for his
wrong. It is the juristic relation of a wrongdoer with the sanction of his wrong. It is the
legal bond or vinculum juris that exists between the wrongdoer, and the evil
consequences of his wrong. According to Salmond, a man's liability consists in those
things which he must do or suffer because he has already failed in doing what he ought.
Earlier in our analysis of legal rights, we have seen that liability is the jural co-relative
of power, which means that liability is the presence of power in another. It is also the
jural contradictory of immunity, which means that liability is the absence of immunity in
one self. When we say that a person is under a liability, it means that somebody else has
the power to enforce that liability. It also means that the individual who is under a
liability has no immunity, because immunity denotes the absence of liability.
Law recognises two kinds of liabilities viz, civil, and criminal. Civil liability, which is
mostly remedial in nature, is concerned with the enforcement of a right. The liability of a
debtor to pay back the borrowed amount is civil, and remedial. The object of criminal or
penal liability is the punishment of the wrongdoer. The liability of a publisher of a libel to
be imprisoned, or to pay damages to the person injured by him, is penal in nature.
Remedial Liability
It is a general principle of law that whenever law creates a duty, it would

provide for its enforcement as well. The liability to be compelled by law to fulfill legal
duties is called remedial liability. The purpose of such liability is to remedy the injury
caused by non-observance of a duty. Generally, whenever a legal duty exists, a remedial
liability must also exist, but in some circumstances a specific enforcement of a legal duty
may not be possible. Law, therefore, recognises some exceptions to the general rule of
remedial liability. They are as follows:
Imperfect Duties
Imperfect duties correspond to imperfect rights. The breach of an imperfect duty gives no
cause of action and, therefore, creates no liability. An example is a debt barred by
limitation. Though it is a legal debt, the payment of it cannot be compelled by any legal
proceedings. Specific enforcement is not possible in these cases.
Irrevocable Wrongs
When a libel is published or a criminal assault is made, what has already been done
cannot be revoked. To that extent, specific enforcement becomes impossible. However, if
it is a continuing wrong or a threatened injury, it may be stopped or prevented by issuing
an injunction.
Other Remedies
The third category of exceptional cases arises when the law does not resort to specific
enforcement, but uses other remedies. Thus, even in cases where specific enforcement is
possible, law may consider damages as an adequate remedy.
Penal Liability
Two essential conditions must be fulfilled before penal liability can be imposed upon a
person. They are: (i) actus reus, ie, the doing of some act by the person to be held liable.
It is the physical element of a crime, (ii) mens rea, ie, the mental element of a crime or
the guilty mind with which the act is done. These two requirements are embodied in the
maxim, actus non-facit reum, nisi mens sit rea, ie, the act alone does not amount to
guilt; it must be accompanied by a guilty mind.
Penal liability can be imposed on a person when these two elements, actus reus and
mens rea, are present, and proved beyond doubt. A person
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Liability
who is charged with the offence of murder cannot be convicted merely on

proving that he has killed another person. It should further be proved that
he did the act intentionally, willfully, and deliberately. Only when actus is
accompanied by mens rea, the two conditions of liability, the material and
the formal, co-exist. It is, therefore, recognised that inevitable accident or
mistake in which wrongful intention and culpable negligence are absent,
is a sufficient ground for exemption from penal liability.
Acts
An act constitutes the basis of liability. It is, therefore, necessary to

understand the nature and types of acts for a clear understanding of the
nature of liability. An act is any event, which is subject to the control of
the human will. For the purposes of analysis, acts may be classified into:
:ments, person
Positive and Negative Acts
They are usually called acts of commission (positive), and acts of omission (negative).
Liability may arise when a person does something which he ought not to do, and also
when he leaves something undone which he ought to do. The term 'act', therefore,
includes not merely positive acts, but also negative acts or omissions.
Internal and External Acts
Internal acts take place in the mind, while external acts are acts of the body. When we
think of something it is an internal act, but when we speak it is an external act. We add
two figures in our minds. Here the act is internal. If we write the two numbers on a piece
of paper and work out the total, it is an external act. Before an external act is done, there
is always an internal act preceding it, but every internal act is not necessarily followed by
an external act.
Internal and external acts may be positive, or negative. When a man decides to rush
forward and help a drowning person, he is said to have committed an internal positive
act. If he actually rushes to help, his physical act is an external positive act. If he sits
quiet without moving to help the drowning man, the act of sitting quiet is an external
negative act.
Intentional and Unintentional Acts
Doing an act with the desire that a particular consequence should happen is an intentional
act. When an act is not the result of any conscious desire
293
on the part of the person who does it, it is an unintentional act. Intentional and
unintentional acts may also be positive or negative. When a man deliberately abstains
from doing an act, it is an intentional negative act, but when a man who has to do
something forgot to do it, it is an unintentional negative act.
Constituents of an Act
We can identify three distinct constituent parts of an act. They are: (i) its origin in some
mental or bodily activity or passivity of the doer; (ii) its circumstances; and (iii) its
consequences. Let us consider the example of an accidental shooting of a person, and
analyse its constituent elements. It begins with a mental element, and then the physical
act consisting of a series of muscular contractions by which the rifle is raised and the
trigger is pulled. Secondly, the circumstances are that the rifle is loaded and in working
order, and that the person killed is in the line of fire. Thirdly, let us consider the
consequences. They are the fall of the trigger, the explosion of the powder, the discharge
of the bullet, its passage through the body of the man, and his death. Every act can be
similarly analysed to find out its constituent factors.
When we analyse the circumstances and consequences of an act, we find that they are
endless. In order to fix liability, only some circumstances and consequences are
considered material and relevant. A person will be held liable only for those
consequences, which are the natural and probable consequences of his acts. It may so
happen that the damage sustained by a person is too remote a consequence of the acts
committed by another person. In such a situation, law will not award damages because
every man is presumed to intend only the reasonable and probable consequences of his
acts. A person cannot be held liable for the endless consequences of his acts.
Two Classes of Wrongful Acts
In some cases the law considers the mere doing of an act as wrongful because of its
inherently dangerous and mischievous tendencies. In other cases, liability is imposed on
the wrongdoer only if actual damage is caused as a result of the wrongful act.
Generally, criminal liability arises from the mere doing of a prohibited act. The
question whether any damage has been caused by the act is not relevant. Criminal law
usually assumes the form, 'If you do this, you will be held liable.' The liability in tort, on
the other hand, arises only when
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Liability
the act results in some harm or injury. The formula is, 'If you do this you will
be held liable, if any harm ensues'. A person who drives negligently will not be
held liable in tort, unless his negligent driving has caused some injury to an
individual or to his property. If the criminal law prohibits dangerous and rash
driving on a public road, a person who drives dangerously and rashly will be
prosecuted, irrespective of whether anyone has suffered any injury.
Damnum Sine Injuria
All harmful acts are not wrongful. A harmful act, which is not wrongful,
does not give any right of action to a person who has suffered from its
effects. Damage without breach of a legal right does not give rise to a cause
of action. This is called damnum sine injuria. For instance, the owner of a
shop may suffer a loss as a result of the opening of a new shop by a rival
near his shop. The owner of the former shop has no legal cause of action,
because there is no breach of any legal right. Competition in trade is fully
permitted by law because it is considered to be beneficial to society.
Similarly, a landowner may do many things on his own land, which may
be harmful to his neighbours. The neighbours do not have any cause of
^ action merely on account of the harm. However, when their legally
^ recognised rights, such as easements, are infringed they have a cause of
^ action, and can prevent the adjoining landowner from doing certain things.
The conventional approach of law has been to grant large freedom to
owners of properties to do whatever they like on their own properties.
Thus, Salmond says that a landowner may drain away the water, which
supplies his neighbour's well. When new rights gain recognition by the
law, the rights of property owners to do whatever they please on their own
properties have to be restricted in order to protect the new rights. When
right to drinking water is recognised as an integral part of right to life,
exploitation of groundwater to an unreasonable extent by a landowner,
resulting in denial of drinking water to neighbouring landowners, may
give rise to a cause of action. The difficulty involved in reconciling the
conflicting rights of the landowner and those of the neighboring landowners,
e or of the community in general, is revealed in two decisions of the Kerala
s' High Court, which we had considered earlier in our discussion on property.1 a
, Mens Rea d
at Mens rea, as we have explained earlier, refers to the state of mind of a
ill
;n 1 See Lecture 21, p 272.
295
I
person committing a wrongful act. The mental attitude of the wrongdoer is relevant in
determining whether he is guilty. An act is considered punishable only when it is done
intentionally or negligently. We may, therefore, say that intention and negligence are the
two forms in which mens rea may exist. According to Austin, intention or negligence is
an essentially component part of injury or wrong, guilt, or imputability of breach, or
violation of duty or obligation. Intention or negligence is a necessary condition precedent
to the existence of that plight or predicament which is styled guilt or imputability.
Intention and negligence are, thus, regarded as the two alternative formal conditions of
liability. In addition to these two formal conditions of liability, sometimes we find that the
law considers another state of mind called motive also as relevant in imposing liability.
It is also important to remember that in certain exceptional class of cases a person will
be held liable even in the absence of wrongful intention or culpable negligence. These
exceptional cases are generally called cases of strict liability. We may classify legal
wrongs into three viz, (i) intentional or willful wrongs in which the mens rea amounts to
intention, purpose, or design; (ii) wrongs of negligence; and (iii) wrongs of strict liability.
It has been made clear in our earlier discussion that the question of mens rea is of no
relevance to the third category of wrongs.
Malice and Mens Rea
The word 'malice' has different meanings. Sometimes, it is used in the sense of an
intention to inflict harm. In this sense, malice is a necessary ingredient in all crimes
requiring mens rea. Malice may also be used to mean spite, ill will, or other improper
motive. Malice in the sense of improper motive is generally used in the tort of malicious
prosecution.
Generally, motives are not considered relevant for determining the existence of
liability. The law does not treat an act as unlawful because of its blameworthy motive;
nor does it regard an act as lawful merely because its motive is laudable. However, there
are some exceptional cases in which malice or improper motive becomes an essential
factor in establishing criminal liability. Criminal attempt is one such exceptional case. A
criminal attempt is an act done with the ulterior intent of committing a crime. The act in
itself may be innocent, but it may become punishable because of the criminal motive by
which it is actuated.
Every crime punishable under Indian Penal Code 1860 (IPC) passes through four
stages. The first stage is when an intention to commit the crime is conceived. Second
comes preparation for the commission of the
2%
i
Liability
crime. Attempr to comma chc crime is the third stage. If the attempt is successful, then
the fourth stage, namely, the completion of the offence is reached. The mere formation of
the intention is not punishable. Intention followed by preparation is also not punishable.
However, if an act is done towards the commission and that act constitutes a criminal
attempt, then it becomes punishable, although the attempt has not succeeded, and the
offence has not infact materialised. It is difficult to draw a sharp line of distinction
between preparation and attempt. The question whether an act is only a preparation, or
amounts to an attempt depends on the circumstances of each case. A few illustrations will
make this point clear.
In Narayanaswamy v Emperor1 the accused was found travelling in a bus with a certain
quantity of opium for illegal delivery to a person in French territory, which was about
seven miles from the place where he was taken into custody. The court held that the act of
the accused amounted only to preparation because he had a locus penitentiae, and he
could have changed his mind before reaching French territory. Let us consider another
situation. A person is found to be in possession of a few bottles of liquor in a state where
the sale of liquor is permitted. It is alleged that the person is carrying the liquor with the
intention of selling it in the neighbouring state where the sale of liquor is prohibited by
law. Here again, it cannot be considered as amounting to an attempt to commit a crime
because of the
possibility of the potential offender changing his mind before reaching the
neighbouring state. In another case, Queen Empress v Ramakka" a woman ran towards a
well with the intention of committing suicide, but was stopped before she reached the
well. It was held that she could not be convicted of an attempt to commit suicide because
she could have changed her mind before reaching the well.
The following illustration, which appears in s 511 of IPC, makes the distinction
between preparation and attempt very clear. A makes an attempt to pick the pocket of Z
by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z's having
nothing in his pocket. A is guilty of criminal attempt.' This illustration makes it clear that
criminal intent is absolutely essential for an act to amount to attempt. However, even if it
does not finally result in an offence being committed, because of circumstances
independent of the will of the party, it may still amount to an attempt to commit an
offence.
When law expressly makes ulterior intention, an ingredient of a particular crime, the
motive of the person necessarily becomes a relevant consideration
2 AIR 1932 Mad 507.

3 (1885) ILR8 Mad 5.
297
in determining his criminal liability. For instance, the offence of criminal trespass under
the IPC is committed when a person enters upon property in the possession of another
with a specific ulterior intent of committing an offence or intimidating or annoying any
person in possession of the property. In the absence of such ulterior intent, he cannot be
held liable for criminal trespass.
Exemptions from Liability
Necessitas non habet legem, ie, necessity knows no law. There are situations when a
person may be compelled to do an unlawful act under coercive pressure with such an
intensity that he cannot be regarded as a free agent. Here, in one sense the act is done
intentionally, but it is difficult to attribute mens rea to the person because he had to act
under compulsion. The great philosopher Bacon gives the example of two shipwrecked
sailors who catch hold of a plank not large enough to hold both of them. If one of them,
for self-preservation, pushes the other into the sea, he cannot be held guilty of a crime.
In order to accept the plea oi jus necessitatis to exempt a person from liability, it must
be proved that the situation was so compelling as to deny the freedom of choice
altogether. It may not secure complete immunity from penal liability. R v Dudley* is a
famous case, which explains the scope and limitations of the doctrine of jus necessitatis.
The facts of the case show that two sailors and a boy were floating on the open sea on a
small boat, and after starving for nine days, the sailors killed and ate the boy for their
own self-preservation. They were subsequently rescued, and prosecuted for homicide.
They raised jus necessitatis as a defence. Rejecting the defence and holding them guilty
of murder, Lord Coleridge observed: 'To preserve one's life is, generally speaking, a duty,
but it may be the plainest and the highest duty to sacrifice.' In this case, even though the
sailors were found guilty, the Crown took a lenient view and commuted the punishment
to imprisonment for six months considering the extreme temptations to which the
unfortunate sailors were exposed.
Analysing the grounds of the various exemptions from liability, Austin says that they
are reducible to one principle, ie, the party is clear of liability because he is clear of
intention or negligence. Law may, in some cases, presume that there can be no will at all
and, therefore, no penal liability can be imposed. Thus, children under seven years and
insane persons are presumed to be incapable of having mens rea.
4 (1884) 14QBD273.
298
Liability
Mistake is also considered as a ground of exemption from liability because the act is
not intentional. If the party's intent was lawful, mistake is a valid ground of defence to
criminal liability. For instance, if A intending to kill B kills C in mistake for B, A cannot
raise mistake as a defence because his intent to kill B was not lawful. We are familiar
with the story of King Dasaratha in Ramayana shooting a man to death, thinking that it
was an animal drinking water from the river that he was aiming to shoot. Here, since the
King's intent was lawful, defence of mistake will be a valid defence. In R v Prince1 a
person who abducted a girl under the legal age of consent raised the plea of mistake as to
her age. Rejecting the plea, the court held him criminally liable because the act of taking
the girl away was itself wrongful.
Two further conditions for admitting mistake as a defence are that the mistake should
be reasonable, and that the mistake should relate to a matter of fact, and not of law.
Negligence
The question whether negligence is a state of mind, or a type of conduct has been
controversial. The subjective theory of negligence supported by jurists like John Salmond
considers negligence as a state, or condition of the mind. Negligence essentially consists
in the mental attitude of undue indifference with respect to one's conduct, and its
consequences. This theory distinguishes negligence from intention. The willful
wrongdoer foresees and desires the harmful consequences of the act and, therefore, does
the act in order that those consequences ensue. The negligent wrongdoer, on the other
hand, is careless as to whether the consequences ensue and, therefore, does the act
notwithstanding the risk that may ensue.
Another theory called the objective theory advanced by jurists like Fredrick Pollock
considers negligence as not a subjective, but an objective fact. It is not a particular state
of mind or form of mens rea at all, but a particular kind of conduct. It is the breach of a
duty to take care and to take precautions against the harmful results of one's actions, and
to refrain from unreasonably dangerous kinds of conduct. The law of torts accepts this
view of negligence, and applies the standard of the reasonable man. Winfield explains
negligence as the breach of a legal duty to take care, which results in damage undesired
by the defendant to the plaintiff. Its ingredients are: (i) a legal duty on the part of A
towards B to exercise care in such conduct of A as falls within a scope of the duty; (ii)
breach of that legal duty; and (iii) consequential damage to B.
5 (1875) lr2 cc 154.
299
Salmond, criticising the objective theory, has pointed out that it loses sight of the
essential distinction between intention and negligence. According to him, negligence is
purely mental inadvertence. It is nothing more than carelessness. In this sense, intention
and negligence are two contrasted and mutually inconsistent mental attitudes of a person
towards his acts and their consequences. In other words, the careless man is he who does
not care, who is not anxious and not sufficiently anxious that his activities shall not be
the cause of loss to others; the willful wrongdoer is he who desires to do harm; and the
negligent wrongdoer is he who does not sufficiently desire to avoid doing it. Thus,
negligence and wrongful intent are inconsistent and mutually exclusive states of mind.
What appears to be negligence may upon closer examination of the party's state of
mind turn out to be wrongful intention. For instance, a trap door may be left unbolted in
order that one's enemy may fall through it and die. Poison may be left unlabelled with
intent that someone may drink it by mistake. In these and similar cases, can we
distinguish intentional and negligent wrongdoer, except by reference to his mental
attitude towards the act and its consequences? Externally and objectively the two classes
of offences are indistinguishable.
It may be more appropriate to say that the term 'negligence' has two meanings, and
each theory represents one of these meanings. Wrongful intention is a state of mind, and
its contrast negligence is also the same. The law takes no heed of a man's mind, except in
so far as it expresses itself in material acts. In other words, it is only when negligence
considered from the subjective standpoint has resulted in the acts that the law takes notice
of it.
Glanville Williams has attempted to reconcile the two conflicting theories of
negligence. When it is stated that negligence means negligent conduct, one contrasts
negligence with absence of fault, ie, diligence, inevitable accident, or misadventure. The
standard is an external one, and there is no inquiry into the mind of the parry alleged to
be negligent. However, if the issue lies between negligence and intention, one must look
into his mind in order to ascertain whether the consequence was desired. Thus, the
meaning of negligence turns on the contrast that is being pointed out. Glanville Williams,
therefore, concludes that negligence means a non- intentional failure to conform to the
conduct of a reasonable man in respect of the consequence in question and it, therefore,
involves both a subjective and an objective inquiry.
Duty to Take Care
Carelessness as such is not a ground of legal liability, except in those cases in which the
law has imposed a duty of care. No general principle can be
300
Liability
laid down with regard to the existence of this duty. This is a matter pertaining to the
details of particular legal systems. Generally, we can say that criminal law does not
impose liability for negligence. Crimes are mostly willful or intentional wrongs.
Negligence as a form of mens rea is deemed as an insufficient ground for the rigour of
criminal justice. However, this is not an invariable rule. In some instances, like negligent
homicide and rash driving, the law imposes criminal liability even for negligent acts. The
civil law, on the other hand, generally observes no such distinction between intentional
wrongdoing, and negligent wrongdoing. If an act would be a civil wrong when done
negligently, it would be so even when not done negligently, but intention becomes
relevant in some instances like suit for damages, malicious prosecutions etc.
Standard of Care
Obviously, carelessness or negligence may exist in any degree. The degree .of
carelessness varies directly with the risk to which other persons are exposed by the act in
question. The risk depends first on the magnitude of the threatened evil, and then on the
probability of it. The greater the evil is and the greater is the probability, greater is the
carelessness or indifference of the persons who create the danger.
If carelessness varies in degree, then what is the standard of care required by law,
where a duty to take care exists? The law does not demand the highest degree of care of
which human nature is capable. The law demands a reasonable degree of care in view of
the magnitude and possibility of the risk. In other words, the law prohibits unreasonable
carelessness, but does not demand unreasonable care. Is it sufficient that a person acted in
good faith to the best of his judgment and belief, and took all precautions he honestly
thought were required under the circumstances of the case? The question is really not
whether he thought his conduct sufficiently careful, but whether infact it attained the
standard of due care established by law.
The standard of care established by law is that of a reasonable man in identical
circumstances. Negligence, we may say, is the omission to do something which a
reasonable man would do, or doing of something which a reasonable man would not do.
The standard of care required is not that of the average man, but that of the reasonable
man. This is a question of fact depending on the circumstances of each case. In
determining the standard of care, two relevant matters which arise for considerations are:
(i) the magnitude of the risk to which other persons are exposed; and (ii) the importance
of the object to be attained by the activity. The reasonableness of any conduct will depend
upon the proportion between these two
301
elements. To expose others to danger for a disproportionate object is unreasonable,

whereas an equal risk for a better cause may be considered reasonable. For instance,
running trains at a speed of 50 kilometres per hour may increase the chance of accidents,
which may be avoided by reducing the speed to 10 kilometres per hour. However,
reducing the speed to such level would be disproportionate to the great convenience of
the general public by running trains at 50 kilometres per hour. So, when the trains are run
at a higher speed, we do not consider it as below the standard of reasonable care, or as a
conduct guilty of negligence.
Absolute Liability
The general principle is that a person is held liable for his wrongful acts when such acts
are committed either intentionally, or out of culpable negligence. However, there is a
class of wrongs for which a man is held responsible irrespective of the existence of either
wrongful intent, or negligence. This kind of liability is called absolute liability, or strict
liability.
While there is general agreement that mens rea must be the basis of penal liability,
there are many jurists who think that the absolute liability must be the rule in civil law.
They ask: if the defendant did harm to the plaintiff, why should he not be made to
compensate for it? What does it matter to the plaintiff whether the defendant did the harm
willfully, or negligently, or by accident? They find no justification to let an innocent
person suffer on account of an accident or misfortune on the part of the defendant.
Salmond, who does not agree with this view, observes that the supporters of this view
confine their observation to the plaintiff's rights and losses, but do not think of the
defendant at all. He asks, 'what justification can there be in punishing a defendant if he is
not at fault?' It is better to consider the situation as an accident on the part of the
defendant, and a misfortune on the part of the plaintiff. Salmond suggests that in such
cases the loss should lie where it has already fallen.
The rule of absolute liability, or strict liability, is an attempt to reconcile these
conflicting positions on grounds of practical expediency in the administration of justice.
The chief instances of absolute liability may be divided into three classes viz, (i) mistake
of law; (ii) mistake of fact; and (iii) accident.
Mistake of Law
No one will be permitted to escape liability for his acts by pleading ignorance of law.
Ignorantia juris non excusat is a maxim which has been^
302
Liability
accepted by all legal systems. Even if a man had actually no knowledge of the law inspite
of his best efforts to acquaint himself with it, he will be made liable for a breach of that
law.
The rigorous application of this principle may seem to be unjust and unrealistic, but
there are three important reasons for the application of this principle. First of all, the law
is considered to be definite and knowable. It is the duty of every man to know that part of
the law, which concerns him. Secondly, if ignorance of law is accepted as an excuse, the
evidential difficulties for administration of justice will be insuperable. Every
unscrupulous man would raise the plea to escape liability, and who can say with certainty
as to what was the exact condition of his mind. The third reason is that in most cases the
law is derived from, and is in harmony with the rules of natural justice. The law is the
public declaration by the state of its intention to maintain those principles of right and
wrong which have already secured a place in the moral consciousness of men. Therefore,
although a man may be ignorant of the fact that he is breaking the law, he knows very
well in most cases that he is breaking the rule of right.
The decision of the Supreme Court of India in State of Maharashtra v George6
illustrates the application of this rule. In this case, a person was charged with bringing
gold to India in contravention of a notification amending the relevant rules published in
the Gazette of India on 24 November 1962. He reached India on 28 November from
Switzerland, and pleaded ignorance of the notification. Infact, he had no reasonable
means to know the contents of the notification. Still, the court held that since the
notification was published in India, its ignorance by the accused was irrelevant, and
cannot be accepted as a defence.
Mistake of Fact
It is generally said that mistake of fact is a good defence, but this is not true in the case of
civil liability. Even if a person causes loss to another person innocently and under an
inevitable mistake of fact, he will be held liable for the loss. However, in criminal law,
mistake of fact is generally a good defence, and absolute criminal liability for mistake of
fact is an exception. This is consistent with the essential condition of penal liability that
there should be a mind at fault before a man would be convicted of a crime. The question,
however, is how can we find a mind at fault, when the mind was under a genuine mistake
of fact? Consider the following situation. A man before going to church fired a few shots
from his gun, and left it empty.
6 AIR 1965 SC 722.
303
During his absence, another person took the gun, went out for shooting, and negligently
left it loaded. The owner, on his return, took the gun and touched the trigger. The gun
went off, and killed his wife who was in the same room. The court allowed mistake of
fact as a defence because the man had reasonable ground to believe that the gun was not
loaded. He was thus acquitted.7 However, mistake of law is not accepted as a defence if
the act is wrong, irrespective of the fact that it is mistaken. The abduction of a girl under
the legal age of consent is an example. Here the accused was not permitted to plead that
he believed her to have attained the age of consent, because the act itself was wrong in
law.8
Accident
An act, which is not done intentionally, may be done either accidentally, or by mistake.
When an act is unintentional in respect of its consequences, it is said to be done
accidentally. When an act is unintentional in respect of its circumstances, it is said to be
done by mistake. For instance, if the driver of a vehicle drives over a man because of a
sudden mechanical problem in the vehicle, his act is accidental, because the consequence
is not intended. If a policeman arrests a person mistaking him for another, the arrest is not
accidental, but by mistake. Here the consequences are intended, but the circumstance of
mistaken identity is not intentional.
Accidents may be classified into two: (i) culpable; and (ii) inevitable. An accident is
culpable when it is due to negligence. When an accident could not have been avoided by
reasonable care, it is called an inevitable accident. In culpable accident, mens rea in the
form of negligence is involved, and it is not a valid defence to liability, but inevitable
accident is generally accepted as a good defence. Strict liability is an exception to this
rule. In Rylands v Fletcher9 the rule of strict liability was laid down. In this case, a mill-
owner employed independent contractors to construct a reservoir on his land to provide
water for his mill. When the reservoir was filled, the water from it escaped and flooded
the mines of a neighbour. The mill-owner was not negligent, but he was held liable. The
court said: 'A person who keeps on his land anything which is known to be dangerous if it
escapes shall be liable for all the natural and probable consequences of its escape even
though its escape was an inevitable accident.' The absence of mens rea and the taking of
all reasonable care will not absolve a person from liability in such a situation. The
liability in such a case is an instance of absolute liability.
7 Foster 265 KGC 27.

8 R v Prince (1875) LR 2CC 154.
9 (1868) LR3 HL 330.
304
Liability
Vicarious Liability in Civil Law
Vicarious liability means the liability of one person for the wrongful act of t
another. A master is vicariously liable for the acts of his servants done in the
5 discharge of their duties.
s The principle of vicarious liability is based on expediency, and public
j policy. It is well accepted that every person who commits a wrong while
t carrying on his own activities would be answerable to the injured parties
for such wrong. It is only a logical extension of this principle that if anyone, for any
reason, desires that his business should be done by other persons, such delegation
should be on condition that he must continue to be answerable for the conduct of those
persons to whom he has delegated his business. This rule is based on the maxim qui
fa*, it per alium facit per se, ie, f> he who does a thing by the instrumentality of
another is considered as if
s> had acted in his own person.
Servants may not be financially sound persons and, therefore, cannot IC
afford to pay compensation to the injured party. The master having placed
,Tl the servants in a position where they can do injury to others is obliged by
of
^" law to assume the liability to pay for the injury. This is the doctrine of
le nt
respondeat superior, ie, let the master answer. The law in this way preserves a
just correspondence between ability to pay for wrongs, and opportunities for
committing them.
The question arises whether an injured party can claim damages from je
the master for the injury done by the servant only if he can show that the
is is his
wrongful act was actually authorised by the master. Considering the evidential
difficulties involved in proving such authorisation by the master, the law lays down that
if the act was done in the course of the servant's duties, the master will incur vicarious
liability. 0jr A second form of vicarious liability is the liability of legal representatives
^ after the death of the wrongdoer. The Common Law accepted the maxim
ne actio personalis moritur cum persona, ie, a personal action dies with the
person.
'A This Common Law rule was abrogated in England by the Law
s if (Miscellaneous Provisions) Act 1934, which provided that the causes of
" its action subsisting against or vesting in a person, subject to some exceptions
: of and restrictions, survive against, or for the benefit of his estate. Thus, legal
son representatives are liable in contract, and tort.
nee
The main justification for imposing vicarious liability on the legal
representatives of the wrongdoer is its deterrent effect. If the death of the
wrongdoer would result in extinction of liability in respect of the wrong, a
person in anticipation of his death may enter into contracts or launch
defamatory attacks with impunity. The knowledge that his estate and his
305
w
legal representatives would be answerable for such wrong, would certainly act as a
check against such mischievous propensities. A positive aspect of such vicarious liability
is that the injured party is not made to suffer on account of the accidental circumstance
of the death of the wrongdoer.
Vicarious Liability in Criminal Law
The general principle of criminal law is that one person is not punished for a crime
committed by another. A person may be punished as abettor of a crime committed by
another. However, in such a case he is punished for his own act of abetment, and not for
the criminal act committed by another. Thus, we may say that criminal law does not
follow the liability, which is generally accepted in civil law. However, there are some
situations in which one person may be held liable for a crime committed by another.
Section 155 of IPC is an example. Under this section, a person is held liable for a riot
committed on his land, 'if it was for his benefit, and his , agent or manager, having reason
to believe that such a riot was likely to be committed, takes no steps to prevent or to
suppress it'. Another instance of vicarious criminal liability is the liability imposed on the
directors of a company for corporate crimes even though they may not be directly and
personally involved in the commission of the crime.
306
Lecture 24
Law of Procedure
Scope of Law
Law will not serve any useful purpose, if it merely enumerates some rights
when it prescribes the manner in which the remedies are made available, and the
wrongdoers are punished. As CP Harvey observes:
The substantive law, which defines our rights and duties is, of course, important
to all of us, but unless the adjective law of procedure is a working machine,
constantly translating these obligations in terms of court orders and actual
execution, substantive law might just as well not exist.1
The broad division of law into substantive law and law of procedure is only for analytical
purposes, because we often find that both of them overlap. So what is the basis of
distinction between substantive law and procedural law? Some people say that
substantive law defines rights, while the law of procedure determines remedies. This is
not totally correct. There are many rights, which are procedural in nature, like, a right of
appeal, a right to give evidence on one's own behalf, a right to interrogate the opposite
party etc. Rules defining remedy or punishments may also be a part of substantive law.
A more accurate way of defining the law of procedure is by describing it as that branch
of the law, which governs the process of litigation. Here the wotd 'litigation' includes all
legal proceedingscivil or criminal. It is easier to describe substantive law as the residue
which relates to the purposes, and subject matter of litigation. According to Salmond,
substantive law is concerned with the ends, which the administration of justice seeks, and
procedural law deals with the means and instruments by which those ends are to be
attained.
1 (1944) 7 Modern Law Review 42, pp 49-50.

Normally, the process of litigation involves the following five elements:
(i) Summons: It is issued by the court calling upon the defendant to answer the
plaintiff's statement. It secures an opportunity to the defendant to be heard before
the matter is adjudicated.
(ii) Pleadings: The statement put before the court as to the questions of fact or law,
which are in issue.
(iii) Proof: The process by which the parties supplied the court with the data necessary
for the decision of those questions.
(iv) Judgment: The decision of the court on the questions of fact or law in issue.
(v) Execution: The process by which the court enforces compliance with the
judgment.
Of the above five elements, only the third, viz, proof, deserves our detailed attention. It is
the subject matter of a separate branch of law called the law of evidence.
SUBSTANTIVE LAW PROCEDURAL LAW Defines

rights and remedies Deals with modes in which
and relations of people Regulates affairs inside court
inter se Regulates
Concerns the of
the contents Provides the way for
judicial decisions arriving at those
decisions
Evidence
When fact A tends in any degree to render the existence of fact B probable, we may say
that A is evidence of B. The quality by virtue of which it has such an effect is called its
probative force. Any fact, which possesses probative force, is evidence. The degree of
intensity of probative force may differ when it is sufficient to form a rational basis for the
inference that the fact so evidenced really exists. The evidence possessing it is said to
constitute proof.
308
Law of Procedure
The fact, which is evidenced, is called the evidential fact. The fact of which it is
evidenced is called the principal fact. Evidence may be judicial or extra-judicial. Judicial
evidence is that which is actually produced in the court. Extra-judicial evidence is that
which does not come directly under judicial cognisance, but nevertheless constitutes an
intermediate link between judicial evidence, and the fact requiring proof. All testimony
given by witnesses in court, and all documents, produced in court are judicial evidence. If
a document is known to the court only through a copy or through the report of a witness,
it is extra-judicial evidence. A confession of guilt is judicial evidence if made to the court
itself, but it is extra-judicial if made elsewhere, and proved to the court by some form of
judicial evidence. Judicial evidence requires only production, while extra-judicial
evidence needs proof.
Evidence may be personal or real. Personal evidence is also called testimony. It
includes all kinds of statements regarded as possessing probative force in respect of the
facts stated. Testimony may be oral or written, judicial or extra-judicial. Real evidence
includes all the residue of evidential facts.
Evidence is also classified as primary, and secondary. Primary evidence is evidence
viewed in comparison with any available, and less immediate instrument of proof.
Secondary evidence is that which is compared with any available, and more immediate
instrument of proof. The primary evidence of the contents of a written document is the
production in court of the document itself. Secondary evidence is the production of the
copy or oral testimony as to the content of the original. Primary evidence that A assaulted
B is the judicial testimony of C that he saw the assault. Secondary evidence is the judicial
testimony of D that C told him that he saw the assault.
Evidence may be direct or circumstantial. Direct evidence is testimony relating
immediately to the principal fact. All other evidence is circumstantial. If ^4 is charged
with the offence of assaulting B, the testimony of C, that he saw A commit the offence,
constitutes direct evidence. The confession of A that he is guilty, is also direct evidence,
but the testimony of C that he saw A leaving the place where the offence was committed
or having the instrument of the offence in his possession, is circumstantial evidence.
Direct evidence is generally considered stronger in probative force, but circumstantial
evidence is also considered very important because it is more difficult to fabricate a
convincing chain of circumstantial evidence than to utter a direct lie. That is why it is
said, a hundred witnesses may lie, but circumstances never lie'. Salmond observes that
circumstantial evidence of innocence may well prevail over direct evidence of guilt, and
circumstantial evidence of guilt may be indefinitely stronger than direct evidence of
innocence.
309
Valuation of Evidence
The law of evidence comprises: (i) rules for the measurement or determination of the
probative force of evidence; and (ii) rules determining the modes and conditions of the
production of evidence. The first deals with the effect of evidence when produced, the
second with the manner in which it is to be produced. While the first is concerned with
all forms of evidence, judicial and extra-judicial, the second is concerned with judicial
evidence alone.
Judicial proceedings are aimed at the discovery of truth. In this process the accurate
measurement of the evidential value of facts is of paramount importance. Judicial
discretion in this area is guided by the following rules.
Conclusive Proof or Conclusive Presumptions
Conclusive proof means a fact possessing probative force of such strength as not to
admit of effective contradiction. Such fact amounts to proof, irrespective of the existence
or non-existence of any other facts, which may possess probative force in the contrary
direction.
Conclusive presumptions played an important part in the administration of justice
during the early days, but their importance is diminishing. One of the surviving maxims
is res judicata pro veritate accipitur. It means a judgment is conclusive evidence as
between the parties, and sometimes as against the entire world, of the matters
adjudicated upon. This is a conclusive presumption, because the decisions of the court
must be accepted as final and beyond question, even though there is a possibility of the
court making mistakes.
Conditional or Rebuttable Presumptions
This is also known as presumptive or conditional proof. It is a fact which amounts to

proof only so long as there exists no other fact amounting to disproof. For instance, a
person, who has not been heard of for seven years by those who would naturally have
heard of him if he had been alive, is presumed to be dead. A negotiable instrument is
presumed to have been given for value. A person accused of any offence is presumed to
be innocent. All these presumptions are rebuttable because it is possible to disprove them.
They are not based on any real estimate of probabilities. The purpose of conditional
presumption is to place the burden of proof upon the party. who is best able to bear it.
Thus, a person accused of an offence >s presumed to be innocent; but the prosecution
may rebut this presumption with sufficient evidence to prove his guilt.
310
Law of Procedure
Insufficient Evidence
Insufficient evidence means evidence which do not amount to proof, and raise no
presumption. The probative force of such evidence falls short of the required proof. It is,
therefore, not permissible for the court to act upon it. For instance, there is a rule of
evidence that a 'will' must be attested by at least two witnesses. If there is only one
witness, law will not accept it as valid because of insufficient evidence, even if the will
may actually be genuine.
Exclusive Evidence
Exclusive evidence denotes only the facts, which possess any probative force in respect
of the matter in issue. In this case, no other evidence is admissible. For instance, a written
contract can generally be proved only by the production of the document whenever its
production is possible. In the case of some special contracts such as a contract of
guarantee, they can be proved only by written evidence, and no verbal testimony is
enough to establish their existence.
No Evidence
There are rules declaring that certain facts are not evidence, ie, they are destitute of any
probative force at all. No purpose will be served by producing such facts in court. For
instance, hearsay is generally not acceptable as evidence. Similarly, the bad character of
an accused is not evidence that he is guilty of any particular offence.
Production of Evidence
The second part of the law of evidence deals with the process of adducing evidence. It
consists of rules regulating the production of evidence, as for example, the manner in
which witnesses are examined and cross-examined. It also includes several important
rules of exclusion. Such rules of exclusion are not based on any estimate of the probative
force of the evidence, but on considerations of expense, delay, vexation, and public
interest. Thus, a public official cannot be compelled to give evidence as to affairs of state,
according to s 123 of the Indian Evidence Act 1872. A lawyer cannot be compelled to
disclose communications made to him by his client, which is considered as privileged
communication. In both these cases, the evidence may be relevant and may have great
probative force, but they are excluded on the basis of other independent grounds.
311
The rule that no person shall be compelled to be a witness against himself is embodied
in the maxim, nemo tenetur se ipsum accusare, ie, no man is to be his own accuser. This
is known as the rule against self-incrimination, and is embodied in art 20(3) of the
Constitution of India, which reads, 'No person accused of any offence shall be compelled
to be a witness against himself. Sections 132 and 148 of the Indian Evidence Act 1872,
confer limited protection against self-incrimination to witnesses in civil and criminal
cases. Even a confession in order to be admissible must be voluntary. Any confession
obtained by physical or moral compulsion will be rejected. This rule, which was accepted
by English Law, has been criticised as extremely favourable to the guilty, and going
against the very objective of criminal procedure, which is to convict the guilty. The
continental system of criminal trial, which is known as inquisitorial, permits compulsory
examination of the accused. Bentham, who is highly critical of English Law which
recognises the right to silence of the accused, is of the view that compulsory examination
of the accused must be an essential feature of sound criminal procedure.
The question as to whether a witness is giving false testimony, has been posing
difficulties to the judges and juries right from the beginning of the trial process.
Historically, the methods of judicial combat, the ordeal, and the oath, were employed to
prevent false testimony. The first two have been abandoned, but the third still survives in
our courtrooms. Before giving testimony, a man is asked to swear in the name of God or
solemnly affirm that he will speak only the truth, but whether the requirement of oath
serves any useful purpose is doubtful. Salmond considers oath to be ineffective as a
check on false witnesses, and opines that its retention is not likely to increase respect
either for religion, or for the administration of justice. He rightly suggests that the true
preventive measure for false testimony is an efficient law for its punishment as a crime.
In India, power is conferred on all courts and persons, having the authority, by law or
consent of parties, to receive evidence, to administer oaths under the Oaths Act 1969.
The Act also requires a witness or interpreter to make either an oath, or an affirmation.
Further, Indian Penal Code I860, makes giving false evidence an offence called perjury
in s 191.
312
;ainst himself no man is to icrimination, which reads, itness against 1872, confer in civil
and be voluntary. 1 be rejected, criticised as ' objective of lental system compulsory J of
English Jie view that al feature of
ny, has been nning of the ordeal, and st two have oms. Before or solemnly uirement of >
oath to be ntion is not listration of re for false
having the 1 administer witness or ndian Penal ry in s 191.
Bibliography
Albrow, Martin, The Global Age: State and Society Beyond Modernity, 1996.
Allen, CK, Law in the Making, seventh edn, 1964. Baxi, Upendra, Marx, Law
and Justice, 1993. Blackstone, Commentaries I.
Bodenheimer, Edgar, Jurisprudence, revised edn, 1974.
Cardozo, The Nature of the Judicial Process, 1921.
Cotterrell, Roger, The Sociology of Law: An Introduction, second edn, 1992.
David, Rene and Brierley, John EC, Major Legal Systems of the World Today,
1985. Davies, Howard and Holscroft, David, Jurisprudence: Texts and
Commentary, 1991. Dhyani, SN, Fundamentals of Jurisprudence, second edn,
1997. Dias, RWM, Jurisprudence, fifth edn, 1985.
Dicey, Law and Public Opinion in England During The Nineteenth Century, 1914.
Dworkin, Ronald, Taking Rights Seriously 1977.
Frank, Jerome, Law and the Modern Mind, 1930.
Friedmann, W, Legal Theory, 1967.
Fuller, Lon, The Morality of Law, 1963.
Giddens, Anthony, The Consequences of Modernity, 1990.
Griffith, JAG, The Politics of the Judiciary, 1991.
Gurvitch, G, Sociology of Law, 1947.
Hale, Mathew, History of the Common Law, 1820.
Hart, HLA, The Concept of Law, 1961.
Hirsch, WZ, Law and Economics, 1979.
Hohfeld, WN, Fundamental Legal Conceptions as applied in Judicial Reasoning, 1923.
Ihering, Law as a Means to an End, 1924.
Kairys.D, The Politics of Law: A Progressive Critique, 1990.
Keeton, The Elementary Principles of Jurisprudence, 1949.
Lakshminath, A, Precedent in the Indian Legal System, second edn, 2005.
Lloyds'Introduction on Jurisprudence, (ed Freeman, MDA), sixth edn, 1994.
Mahajan, VD, Jurisprudence and Legal Theory, fifth edn, 1987.
Markby, W, Elements of Law, 1905.
Me Coubrey, Hilarie and White, Nigel D, Textbook on Jurisprudence, second edn, 1999.
Nozick, Robert, Anarchy, State and Utopia, 1974. <^y%&<^' Paton GW, A Textbook of
Jurisprudence, fourth edn, 1972.
Bibliography
Pillai PS, Atchuthen, Jurisprudence and LegalTheory, third edn, 1985.

Posner, Richard, Economic Analysis of Law, third edn, 1986.
Rawls, John, A Theory of Justice, 1972.
Rawls, John, Justice as Fairness: A Restatement, 2001.
Renner, Kail, Institutions of Private Law and their Social Functions, 1949.
Riddall, JG, Jurisprudence, second edn, 1999.
Salmondon Jurisprudence, (ed Fitzgerald, PJ), twelfth edn, 1966.
Stone, Julius, Precedent and LawDynamics of Common Law Growth, 1985.
Sumner, C, Reading Idelogies, 1979.
Sunstein, Rand Nussbaum, Martha, Animal Rights, 2004.
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Ramkumar p.

IP LexisNexis Butterworths Wadhwa

This book is a publication of LexisNexis (A

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NK Jayakumar, Lectures in Jurisprudence.

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Preface to The First Edition

PART I LAW: NATURE AND SOURCES

Lecture 1 Law: Its Nature and Functions 3

Lecture 2 Importance of Jurisprudence 19

Meaning and Scope of Jurisprudence 19

Lecture 3 Sources of Law I: Legislation 33

Legislation: Nature and Meaning 35

Lecture 4 Sources of Law II: Precedent 47

Lecture 5 Sources of Law III: Custom

Origin and Importance of Custom

Conformity with Statute Law 66

PART II LAW: THEORIES AND APPROACHES

Lecture 6 Approaches to Law I: Historical Approach 71

Lecture 7 Approaches to Law II: Economic Approach 81

Lecture 8 Approaches to Law III: Sociological Approach 93

Social Origins of Law and Legal Institutions 93

Lecture 9 Theories of Law I: Natural Law 105

Influence of Natural Law Ill

United States of America... Ill

Lecture 10 Theories of Law II: Legal Positivism 117

Lecture 11 Theories of Law III: Pure Theory of Law 133

Lecture 12 Theories of Law IV: Legal Realism 139

American Realism 139

Lecture 13 Modern Trends and Theories 147

Critical Legal Studies 147

PART III LAW AND JUSTICE

Lecture 14 Justice 169

Principle of Reciprocity 170

Lecture 15 Administration of Justice 175

Civil and Criminal Justice 175

PART IV ELEMENTS OF LAW

Lecture 16 Rights and Duties 191

Lecture 17 Ownership 217

Lecture 18 Possession 227 Legal

Lecture 19 Persons 243 Moi

Legal Status of Unborn Persons 258

Lecture 20 Titles 261

Vestitive Facts 262

Lecture 21 Property 269

Solidary Obligations 285

Lecture 23 Liability 291

Remedial Liability 291