What is jurisprudence? Definition by Austin and Salmond?

Ans- Jurisprudence– Latin word ‘Jurisprudentia’– Knowledge of Law or Skill in Law.

Salmond
Salmond defines Jurisprudence as the "Science of the first principles of civil law".
In Salmond's point of view, Jurisprudence thus deals with civil law or the law of the state. This kind of law
consists of rules applied by courts in the administration of justice.
There are three kinds of laws that govern the conduct of human in a society.
 Theologian Laws - derive their authority from a divine or superhuman source intended to regulate
human conduct as well as beliefs and are enforced by spiritual rewards or penalties in the other world (ultra-
mundane sanctions)
 Moralist Laws - Man-made that exist in all societies, both primitive and most civilized. There is no
definite authority to enforce the laws, but the public.
 Jurist Laws - Regulates external human conduct only and not inner beliefs. They can exist in politically
organized societies, which have a Government. They are enforced by courts or judicial tribunals of the society
which applies a variety of sanctions ranging from fines to capital punishments.
According to Salmond, Jurisprudence is the science of first principles of jurist law or in Salmond's words civil
law.
Austin
Austin defines Jurisprudence as the "Philosophy of Positive Law".
Positive Law means the law laid down by political superior to regulate the conduct of those subjects in his
authority. The positive law is identical to civil law. However, the term Philosophy is misleading. Philosophy is
the theory of things, man and divine, while Jurisprudence only deals with man-made law.

What is the utility and nature of Jurisprudence?

Ans- Significance and Utility of the Study of Jurisprudence

1. This subject has its own intrinsic interest and value because this is a subject of serious scholarship and
research; researchers in Jurisprudence contribute to the development of society by having repercussions in
the whole legal, political and social school of thoughts. One of the tasks of this subject is to construct and
elucidate concepts serving to render the complexities of law more manageable and more rational. It is the
belief of this subject that the theory can help to improve practice.

2. Jurisprudence also has an educational value. It helps in the logical analysis of the legal concepts and it
sharpens the logical techniques of the lawyer. The study of jurisprudence helps to combat the lawyer’s
occupational view of formalism which leads to excessive concentration on legal rules for their own sake and
disregard of the social function of the law.

3. The study of jurisprudence helps to put law in its proper context by considering the needs of the society
and by taking note of the advances in related and relevant disciplines.

4. Jurisprudence can teach the people to look if not forward, at least sideways and around them and realize
that answers to a new legal problem must be found by a consideration of present social needs and not in the
wisdom of the past.

5. Jurisprudence is the eye of law and the grammar of law because it throws light on basic ideas and
fundamental principles of law. Therefore, by understanding the nature of law, its concepts and distinctions, a
lawyer can find out the actual rule of law. It also helps in knowing the language, grammar, the basis of
treatment and assumptions upon which the subject rests. Therefore, some logical training is necessary for a
lawyer which he can find from the study of Jurisprudence.
6. It trains the critical faculties of the mind of the students so that they can dictate fallacies and use accurate
legal terminology and expression.

7. It helps a lawyer in his practical work. A lawyer always has to tackle new problems every day. This he can
handle through his knowledge of Jurisprudence which trains his mind to find alternative legal channels of
thought.

8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws passed by the
legislators by providing the rules of interpretation. Therefore, the study of jurisprudence should not be
confined to the study of positive laws but also must include normative study i.e. that study should deal with
the improvement of law in the context of prevailing socio-economic and political philosophies of time, place
and circumstances.

9. Professor Dias said that ‘the study of jurisprudence is an opportunity for the lawyer to bring theory and life
into focus, for it concerns human thought in relation to social existence’.

Meaning and kinds of Legal rights

Ans- Legal rights are those which are conferred by the state on certain individuals and impose corresponding
duties on others. It is enforced by the physical force of the state. It is been classified into different kinds
according to their scope by various authors.

Legal Rights may be classified under following heads:

1) Right in Rem and Right in Persona -

'Rem' means world and 'Persona' means persons. The Right in Rem is the right available against the whole
world while right in Persona is the right against a particular person. Right in Persona generally arises out of
contractual obligations for example - breach of contract. Whereas right in rem is generally outcome of law.
For example- Tort, Crime.

Right in Persona is generally transitory in nature, which can be transferred in right in rem. Right in rem is
a final thing, whereas right in Persona is transitory in nature.

2) Personal and Proprietary Right -

Personal right is in respect of person of owner of right whereas Proprietary right is in respect of
property of which the person is an owner. Proprietary Rights are those, which constitute a man's property or
wealth. These are the rights, which possess some economic or monetary value and constitute the estate of the
Person. Right to land, debts and Goodwill or patent rights are all Proprietary right.
Personal right includes right to safety, to repetition Personal rights are also important like Proprietary right.
For example - right to reputation. Personal Rights is having no economic value. They relate to Person's well-
being or status.

3) Positive and Negative Rights -

Positive rights have corresponding Positive duty. Positive right are therefore the right when some
positive act is required to be done by the person who has the corresponding duty. Thus the person on whom
such duty lies must do some positive act.

While on the other hand negative rights are those rights when some negative act by way of omission is
required. Negative rights correspond to negative duty, and the person on whom such negative duty lies shall
omit (not to do) such act.
4) Principal and Accessory rights -
The principal right is a basic or main right vested in Persona under law. They are Vital and important
Rights. While accessory right is incidental or consequential right. They are not essential but are apparent to
the more basic general right.

5) Perfect and Imperfect Rights -

Perfect right corresponds with perfect duty. Perfect rights are recognized and also enforced by law and an
action can be taken against the wrongdoer by filing a suit in Court of Law for the breach of it.
While Imperfect right corresponds with Imperfect duty, which are not recognized by law and hence cannot
be enforced by law.

For example 'A' advanced loan to 'B'. 'B' is bound to repay that Loan. 'A' has perfect right to recover loan
from 'B' and 'B' has perfect duty to pay the amount of loan to 'A'.
If 'B' failed, then 'A' can file Suit against him in court of law for recovery of loan. But if it is time-barred loan,
for example no suit filed within the limitation period (within 3 years) and 'A' was sleeping over his right for a
pretty long time. 'A' can claim for the same as it becomes imperfect right which cannot be enforced by law.

6) Right in Re-proporia and Right in Re-aliena -

Right in Re-proporia is a right in respect of one's own property. Right in Re-proporia contemplates
absolute ownership. Thus it is the outcome of jurisprudence aspect of ownership.

Whereas right in Re-aliena, is the right in respect of property of another person. Right in Re-aliena is
the outcome of jurisprudence aspect of dominant heritage and servient heritage.

7) Vested and Contingent Right -

Vested and Contingent rights are depending on the relationship as to owner of right and right itself.
Vested right means which is already vested in person, the person already has such right through it depends
upon the happening of certain events, that event is going to happen.

Whereas is in Contingent interest the right is dependent upon happening or non-happening of certain
events which may or may not happen.

8) Legal and Equitable Right -

Legal rights are the rights given by common law Courts of England. Common law was based on
statute by way of custom, usage. Equitable rights are the outcome of law of equity given by the court of
chancellor, or equity Court based on principle of natural justice and conscience of Lord Chancellor.

After the unification of the both these systems English law came into existence. But still there are
certain principles and rights, which are classified as equitable right and legal right.

9) Corporeal and Incorporeal Right -

Here a fine distinction is made of the subject matter of the right. Corporeal rights are having physical
existence. For example - I owned a book, the book has physical existence, so my right in respect of the book,
is Corporeal in nature.

Whereas incorporeal rights are those right in respect of such subject matter having no physical
existence. For example - copyright of the book or trademark. Both Corporeal Incorporeal rights are legally
protected rights.

10) Primary and Sanctioning Right -

Primary right is basic right. It is independent Right. These are the right ipso facto. For example - right
in rem; right to reputation, Right to satisfy is the primary right. If right of reputation is violated then there is
legal remedy. in Tort or in Crime. There is force behind it. Sanctioning rights are the consequential rights.
They are not right ipso facto. They are right in Persona, which originate from some wrong. For example -
from violation of another right. Thus Sanctioning Right is supporting right to primary right.

11) Public and Private Rights -

 Public Rights are those Vested in by state. For example - right to use High-way, right to vote etc. A
private Right is one which is exercised by an individual to protect his benefit.

12) Servient and Dominant Rights:

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

What is the contribution of Fuller in the growth of Natural Law School?

Ans- Natural Law is a broad and often misapplied term tossed around various schools of philosophy, science,
history, theology, and law. Indeed, Immanuel Kant reminded us, 'What is law?' may be said to be about as
embarrassing to the jurist as the well-know question ‘What is Truth?’ is to the logician.

 Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority,
and having binding legal force. That which must be obeyed and followed by citizens subject to
sanctions or legal consequences is a law (Black’s Law Dictionary, Sixth Edition, p. 884).
 Jurisprudence is the philosophy of law and how the law developed.

Natural Law – A Moral Theory of Jurisprudence

Natural Law is a moral theory of jurisprudence, which maintains that law should be based on morality and
ethics. Natural Law holds that the law is based on what’s “correct.” Natural Law is “discovered” by humans
through the use of reason and choosing between good and evil. Therefore, Natural Law finds its power in
discovering certain universal standards in morality and ethics.

Fuller
Lon Luvois Fuller (1902-1978) is also considered as one of the leading supporters of the modern natural law
philosophy. He emphasised on the role of reason’ in legal learning and believed that law and morality are
necessarily co-related. He said that good order is law which corresponds to justice or morality. Thus, he
denied any rigid separation between “is” and “ought’ aspect of law. He brought out an excellent exposition of
legal positivism and natural law which according to him, were two divergent legal philosophies competing at
that time. Fuller pointed out that the essence of legal positivism is sharp distinction between law ‘as it is’ and
‘as it ought to be” whereas natural law theory denies this rigid separation of is and ought which has been a
cause of great confusion in the existing legal system.

Lon Fuller analysed the concept of morality and its relation with law in great detail. He distinguishes
‘morality as it is’ from ‘morality as it: ought to be’ and calls the former as ‘morality of duty’ and the latter as
‘morality of aspiration’. He further sub-divides moral duties’ in to affirmative actions or duties and
forbearances which he called ‘negative duties’.

According to him, morality of duty includes basic requirements of social living whereas morality of aspiration
means good life of excellence, e.g., forbearing from indulging into extra-marital sex activities. Morality of duty
can be generally enforced by law but not the morality of aspiration.

Lon Fuller believes that law is a purposive system, the purpose being ‘to subject human conduct to the
control and guidance of legal rules’. He thinks that every workable legal system must comply with eight
requirements in order to make the law really effective. These requirements are:

1. There should be definite rules,

2. These rules must be well publicised,
3. There should be no abuse of retrospective legislation,
4. The rules must be easily understandable,
5. The rules must be practicable and must not require a person to do something which is beyond his power
of capacity,
6. The rules must not be contradictory or inconsistent with any other existing law,
7. The rules should not be subjected to frequent changes, and
8. There must be congruence between the rules promulgated and their actual administration.

Different kinds of ownership

Ans- Ownership may be classified under the following heads:

I. Corporeal and incorporeal ownership;

2. Sole ownership and co-ownership;
3. Legal and equitable ownership;
4. Trust and beneficial ownership; .
5. Vested and contingent ownership; and .
6. Absolute and limited ownership;

1. Corporeal and incorporeal ownerships—The object of owner-ship may be a material thing such as land or
lands or goods, or an immaterial thing or right such as a patent trade mark, copyright, reputation or domestic
relation. Ownership when it refers to a material object is called corporeal ownership; and where it refers to
any other thing or rights, it is called incorporeal ownership. Thus, ownership of land is corporeal. But
ownership of an encumbrance is incorporeal.

2. Sole ownership and co-ownership—Ownership may be either sole or duplicate. When it is vested in one
person it is called sole ownership ; when it is invested in two or more persons at the same time, it is called
duplicate ownership.

The chief instances of duplicate ownership are ;

(i) Co-ownership;
(ii) Trust and beneficial ownership;
(iii) Legal and equitable ownership;
(iv) Vested and contingent ownership.

Co-ownership that is to say, ownership shared by several persons with equal or co-ordinate results may be of
two kinds, namely:—

(a) Joint ownership, and

(b) Ownership-in-common.

(a) ‘Joint ownership’ is that where on death of one of the co-owners the whole right ensures for the benefit of
surviving co-owner or co-owners, until at last when the last survivor of the joint owners, dies, it would devolve
on his heirs. The heirs of a predeceased co-owner will not get any share at all in the property of the joint
owner.

(b) “Ownership-in-common” is that where, on the death of one of the co-owners, his heirs step into his shoes.

3. Legal and equitable ownership.—English law recognises two forms of ownership—legal and equitable. In
England before the passage of Judicature Acts of 1873, and 1875 there existed two kinds of Courts with two
quite distinct jurisdictions. These two Courts were known as the Common Law Courts and the Equity
Courts.
The rights recognised and protected by the Common Law Courts were called legal or Common Law Rights
and the rights enforced by Equity Courts were known as equitable rights.

Legal ownership is, therefore, that ownership which was or recognised by the rules of Common Law, while
equitable ownership is that which originated from the rules of equity.

Equitable ownership was thus not recognised by the Common Law Courts. The Chancery or Equity Courts
recognised legal ownership as well as the equitable ownership.

Keeton says, “This quality of legal and equitable ownership arises, whenever one person holds the legal title
to property, the beneficial en-joyment of which is vested in another. Thus the legal owner is he whom the
Common law could designate as the owner ; the Equitable owner is that person whom the Court of
Chancery would formerly have protected in the enjoyment of a thing.”

4. Trust and beneficial ownership—these two forms of owner-ship are related to the institution of a trust. A
trust is an instance of duplicate ownership namely, trust ownership and beneficial ownership. In a trust
certain property is given in trust or confidence to a person or a definite group of persons to be held under an
obligation for the benefit of some other persons or group of persons.

Trust is defined as an obligation annexed to the ownership of property, and arising out of a confidence
reposed in and accepted by the owner, or (b) declared and accepted by him for the benefit of the other.

5. Vested and contingent ownership—Ownership is either vested contingent. It is vested when the owner’s
title is already perfect; it is litigant when his title is as vet imperfect, but is capable of becoming perfect on the
fulfilment of some condition or contingency. Vested ownership is absolute, contingent ownership is
conditional. It is subject to conditions and it may be made to commence or cease upon the ascertainment
that a certain fact does not exist.

Thus, I may be the owner of a piece of land on condition of paying a certain fixed sum of money annually to
the State. My ownership is thus conditional on the annual payment of the money.

Contingent ownership is not spes acquisitions—Simple chance or mere possibility of becoming owners—but
more than that. It is more than a mere future possibility but the existence of an inchoate or incomplete title
in the present, capable of achieving completion and perfection on the happening of a given contingency in
future.

The conditions on which ownership depends may be either ‘condition precedent’ or ‘condition subsequent’.
A condition precedent is one by the fulfilment of which a title is completed; a condition subsequent is one
on the fulfilment of which a title already completed is extinguished. In the former case ownership which was
formerly conditional becomes ab-solute. In the later case the ownership which is already lost conditionally, is
lost absolutely. In case of a condition subsequent ownership is not contingent but vested. For the condition
attached to the ownership it is not with regard to commencement of ownership but with regard to
contingence of it.

6. Absolute and limited ownerships—When a person has got all the rights in relation to any property we say
that absolute ownership vests in him but when some right in relation to property has been restricted then the
ownership is called limited, one. In Hindu law, before Hindu Succession Act, woman’s estate was a limited
ownership. If a Hindu woman inherited property from a male or a female it was called woman’s estate. Such
property was held only for her life and she had only a limited power of disposal. When she died the property
went to the heirs of the last holder of the property.
Discuss Kelson’s pure theory of Law or Grundnorm?
Ans. Kelson did not favour widening the scope of jurisprudence by co-relating it with all social sciences and
rigorously insisted on separation of law from politics, sociology, metaphysics and all other extra-legal
disciplines. It is quite often said that Kelson’s pure theory of law tried to rescue jurisprudence from vague
mysticism and thus it was in a way revival of John Austin’s 19th century analytical jurisprudence. Like
Austin, Kelson divested moral, ideal or ethical elements from law and wished to create a ‘pure’ science of law
devoid of all moral and sociological considerations. He rejected Austin’s definition of law as a command
because it introduces subjective considerations whereas he wanted legal theory to be objective. Likewise, he
also discards the, notion of justice as an essential element of law because many laws, though not just, may
still continue as law. He defines ‘science’ as a system of knowledge or a ‘totality of cognitions.’ systematically
arranged according to logical principles.

Law as Normative Science— Kelson described law as a “normative science’ as distinguished from natural
sciences which are based on cause and effect, such as law of gravitation. The laws of natural science are
capable of being accurately described, determined and discovered in the form of’is’ (das sain) which is an
essential characteristic of all natural sciences. But the science of law is knowledge of what law ought to be
(das-sollen). It is the ‘ought to character which provides normative character to law. For instance, if ‘A’
commits a theft he ought to be punished. Like Austin, Kelson also considers sanction as an essential element
of law but he prefers to call it ‘norm’. Thus according to Kelson, ‘law is a primary norm which stipulates
sanction’. It is called positive law because it is concerned only with actual and not with ideal law.

According to Kelson, ‘norm (sanction) is rules forbidding or prescribing a certain behaviour’. For him, legal
order is the hierarchy of having sanction and jurisprudence is the studies of these norms whk comprise legal
order. He distinguishes moral norm with legal no. For example, moral norm says that ‘one shall not steal’ but
since it has no punitive consequence, it lacks coercive force but if it is to be reduced I in form of legal norm,
it would say, “if a person steals, he ought ‘to be punished by the competent organ or State”. This ‘ought’ in
the legal norm refers to the sanction to be applied for violation of law.

The ‘Grundnorm’— Kelon’s pure theory of law is based on pyramidical structure of hierarchy of norms which
derive their validity from the basic norm which he termed as ‘Grundnorm”. Thus, Grundnorm or basic
norm determines the content and gives validity to other norms derived from it. Kelson has no answer to the
question as to wherefrom the Grundnorm or basic nonn derives its validity. He considers it to be a meta-legal
question in which jurist need not intrude. Commenting on this point, Julius Stone rightly comments that
just as Austin’s sovereign in a particular society is a mere starting point for his legal theory, so also basic norm
has to be accepted as a hypothetical starting point or fiction which gives a. legal system coherence and a
systematic form.

Pyramid of Norms—Kelson considers legal science as a pyramid of norms with Grundnorm (basic norm) at
the apex. The subordinate norms are controlled by norms superior to them in hierarchical order. The basic
norm which is otherwise called Grundnorm is however, independent of any other norm being at the apex.
The process of one norm deriving its power from the norm immediately superior to it, until it reafches the
Grundnorm has been termed by Kelson as ‘concretisation’ of the legal system. Thus, the system of norms
proceeds from downwards to upwards and finally it closes at the Grundnorm at the top. The Grundnorm is
taken for granted as a norm creating organ and the creation of it cannot be demonstrated scientifically nor is
it required to be validated by any other norm. For example, a statue or law is valid because it derives its legal
authority from the legislative body, the legislative body in its own turn derives its authority from a norm i.e.,
the Constitution. As to the question from where does the Constitution derive its validity there is no answer
and, therefore, it is the Grundnorm, according to Kelsonite conception of pure theory of law. In his view the
basic norm is the result of social, economic, political and other conditions and it is supposed to be valid by
itself.

The legal order as conceived by Kelson receives its unity from the fact that all manifold norms of which the
legal system is composed can be traced back to a final source. This final source is the basic norm or the
Grundnorm which he defined as “the postulated ultimate rule according to which the norms of this order
are established and annulled, receive or lose their validity.

Salient Features of Kelson’s Pure Theory of Law- The Pure Theory; Law as propounded by Kelson is
founded on certain basic assumptions which may be summarised as follows:

1. The theory is aimed at reducing chaos and confusion created by the supporters of natural law philosophy.
2. Pure Theory of law deals with the knowledge of what law is, and it is not concerned about: what law ought
to be.
3. The theory considers law as a normative science and not a natural science.
4. Kelson’s Pure Theory of Law is a theory of norms not so much concerned with the effectiveness of the
legal norm.
5. It is formal theory confined to a particular system of positive law as actually in operation.

Implications of Kelson’s Pure Theory of Law- Kelson’s Pure Theory of Law covers a wide spectrum of legal
concepts such as State, sovereignty private and public law, legal personality, rights and duty etc.

According to Kelson law and State are not different but they are infact one and the same. Likewise, there is
no difference between public and private law. Kelson also denies any legal difference between natural and
juristic personality. For him, all legal personality is artificial and derives its validity from grundnorm. He does
not believe in the existence of individual rights and asserts that “legal duties” are the essence of law.

In his view legal right is merely the duty as viewed by the person entitled to require its fulfilment.

What is Obiter Dicta?

Ans- When a written judicial opinion is made, it contains two elements: (1) ratio decidendi, and (2) obiter
dicta. Ratio decidendi is the Latin term meaning “the reason for the decision,” and refers to statements of
the critical facts and law of the case. These are vital to the court’s decision itself. Obiter dicta are additional
observations, remarks, and opinions on other issues made by the judge. These often explain the court’s
rationale in coming to its decision and, while they may offer guidance in similar matters in the future, they
are not binding.

In reading a court’s decision, obiter dicta may be recognized by such words as “introduced by way of
analogy,” or “by way of illustration.” Obiter dicta may be as short as a brief aside or a hypothetical example,
or as long as a thorough discussion of relevant law. In either case, the additional information is given to
provide context for the judicial opinion.