Jurisprudence New

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S.Y.LLB SEM III TEAM ABVP BY: - KARAN RAJPUT

JAY GRIGLANI
JURISPRUDENCE
NOTES
INDEX
Sr. No. Particulars Pg. No.
1. Course content/ Syllabus 2
2. Unit – 1 Introduction 3
3. Unit – 2 Schools of Jurisprudence 5
4. Unit – 3 Theories and Schools of Jurisprudence 10
5. Unit – 4 Administration of Justice 19
6. Unit – 5 Sources of Law 22
7. Unit – 6 Judicial Concepts and Jural Analysis 37
Note: For revision purpose only. This material covers past year questions with solution.
Students are advised to refer complete syllabus.
SYLLB SEM III JURISPRUDENCE NOTES BY: - KARAN RAJPUT

JAY GRIGLANI
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Course content/ Syllabus

Unit Content
I  Nature, Scope, Content and Utility of Jurisprudence
Introduction  Purpose of Law
 Indian Concept of Dharma
II Analytical School
Schools of  Bentham’s view on ‘Law’ and Legal Positivism
Jurisprudence  Austin’s Analytical Positivism
 Hart’s views on Law and morality
 Kelson’s theory of Pure Science of Law
 Analytical Positivism – Indian perspective
Historical School
 Savigny’s theory
 Sir Henry Maine’s theory
 Indian Perspective
III Natural Law Theory
Theories and  Characteristics of Natural Law Theory
Schools of  Historical Evolution
Jurisprudence  Critical Appraisal of Natural Law Theory
Sociological School
 Developmental stages of Sociological Jurisprudence
 Exponents of Sociological Jurisprudence
 Roscoe Pound’s theory of Social Engineering
 Social Justice – Indian perspective
Realist School
 Basic features of Realist School
 Scandinavian Legal Realism
 Realism in the Indian Context
IV  Concept of Justice
Administration Civil and Criminal Justice
of Justice Advantages and Disadvantages of Administration of Justice
 Theories of Punishment
 Forms of Punishment
 Administration of Social Justice
V Custom as a source of law
Sources of Law  Meaning, kinds of custom
 Requisites of a valid custom
Legislation as a source of law
 Meaning, kinds of legislation
 Interpretation, kinds of Intrepretations
 General rules of interpretation
Precedent as a source of law
 Nature, kinds of precedent
 Ratio decidendi, Obiter dicta, Doctrine of stare decisis, overruling
Other sources of law
 Religion, Digests, Equity
VI Legal Rights and Duties
Judicial Concepts  Classification of Rights and Duties
and Jural  Theories of Legal rights, essential elements of legal rights
Analysis  Legal rights and other related concepts
Possession
 Nature, meaning and elements of possession
 Kinds, mode of acquisition of possession
Ownership
 Legal incidents of ownership, kinds of ownership
 Subject matter of ownership, ownership and ancient Indian law
 Mode of acquisition of ownership
Legal personality
 Definition of legal person, status of unborn person
 Status of dead man, animals, corporate personality
Liability
 Kinds of Liability
 Liability
BY: - KARAN RAJPUT

SYLLB SEM III JURISPRUDENCE NOTES JAY GRIGLANI
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UNIT – 1
Q -1. Define Jurisprudence. Discuss nature and scope of Jurisprudence. (April 2017, Dec 2016,
March 2016, Dec 2015, May 2015, Dec 2014, May 2014, Dec 2013, Apr 2013)
The word “jurisprudence” is derived from a latin word jurisprudential, which in its widest sense, means
‘knowledge of law’ or skill in law. The latin word ‘juris’ means skill or knowledge. So Jurisprudence
signifies knowledge of law and its application.
 The history of the concept of law reveals that jurisprudence has assumed different meanings at
different times. It is therefore, difficult to attempt a singular definition of the term.
 Jurisprudence, in its limited sense, means proper interpretation of the general principles upon
which actual rules of law are based. Therefore, historically jurisprudence is that science which
imparts to us knowledge about “law”.
Definition of Jurisprudence:
The term ‘jurisprudence’ has meant different things at different times. The variation is due to different
methods of inquiry and approach to the study of the subject.
 Julias Stone has described jurisprudence as “the lawyer’s extraversion” meaning thereby that
jurisprudence involves examination of precepts, ideals and techniques of the law by lawyers in
the light of disciplines other than the law.
 Ulpian – the celebrated Roman jurist defined jurisprudence as “the observation of things human
and divine, the knowledge of the just and the unjust”.
 Gray – Professor Gray opined that “jurisprudence is the science of law, the statement and
systematic arrangement of the rules followed by the courts and the principles involved in those
rules.”
 Salmond – Salmond defines jurisprudence as the “science of the first principles of the civil
law”.
 John Austin – Austin calls jurisprudence as the “philosophy of positive law”. By the term
“positive law” he meant ‘jus positivum’, that is law laid down by a political superior for
commanding obedience from his subjects.
 Holland – Sir Thomas Erskine Holland defines jurisprudence as ‘the formal science of positive
law’. Holland defines positive law as a general rule of external human action enforced by a
sovereign political authority.
 Dr. Allen – The noted English jurist Dr. Allen has defined jurisprudence as ‘the scientific
synthesis of the essential principles of law’.
 Keeton – According to Keeton “jurisprudence is the study and scientific synthesis of the
general principles of law”. The definition seeks to explain the distinction between public and
private laws.
 H.L.A. Hart – Hart believed that union of primary and secondary rules explains the nature of
law and provides ‘Key’ to science of jurisprudence.
By primary rules he meant rules which impose duty while secondary rules confer powers which provide
for creation or variation of duties by removing defects of the primary rules.
 Roscoe Pound – According to Pound, jurisprudence is “the science of law using the term ‘law’
in the judicial sense, as denoting the body of principles recognized or enforced by public and
regular tribunals in the administration of justice”.
 According to Radcliff, “jurisprudence is a part of history, a part of economics and sociology, a
part of ethics and a philosophy of life”.
 E.W.Patterson defined jurisprudence as a body of ordered knowledge which deals with a
particular species of law.
 Dr. M.J. Sethna has defined jurisprudence as the study of fundamental legal principles
including their philosophical, historical and sociological bases and an analysis of legal
concepts.
Nature of Jurisprudence:
 Jurisprudence in its nature is entirely a different subject from other social sciences. The reason
for this is that it is not codified but a growing and dynamic subject having no limitation of itself.
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 Every jurist does not base his study on the rules made but tries to understand their utility after
due deliberation.
 So it can be said that Jurisprudence has no limited scope being a growing subject. There is a
difference of opinion about the nature of jurisprudence.
 It is called both Art and Science. But to call it science would be more proper and useful. The
reason for this is that just as in science we draw conclusions after making a systematic study by
inventing new methods, Jurisprudence is concerned with the fundamental principles of law and
systematic and scientific study of their methods.
Scope of Jurisprudence:
 Jurisprudence includes all concepts of human order and conduct in State and Society.
 According to Justice P.B. Mukherjee, "Jurisprudence is both an intellectual and idealistic
abstraction as well as behavioral study of man in society. It includes political, social, economic
and cultural ideas. It covers the study of man in relation to State and Society."
 Salmond has also opined that "In jurisprudence we are not concerned to derive rules from
authority and apply them to problem; we are concerned rather to reflect on the nature of legal
rules, on the underlying meaning of legal concepts and on the essential features of legal
system."
 This makes the distinction between law and Jurisprudence amply clear. Thus, whereas in law
we look for the rules relevant to the given situation, in jurisprudence we ask what is for a rule
to be a legal rule, and what distinguishes law from morality, etiquette and other related
phenomenon.
 Therefore, it follows that jurisprudence comprises philosophy of law and its object is not to
discover new rules but to reflect on the rules already known.
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UNIT – 2
Q -1. Discuss in detail Austin’s theory of law.

Discuss Austin’s theory of Analytical Positivism. (March 2016, May 2015, Dec 2014, April 2017,
Dec 2016, May 2014, Dec 2013, Apr 2013)
Austin is considered as to be the ‘Father of English Jurisprudence’. He confined his study only to the
positive law and applied analytical method for this purpose.
 By positive law, Austin meant
(a) ‘’laws properly so called” which are laws distinguished from morals and other laws and
(b) “Laws improperly so called” which are laws that lack force or sanction of the state (laws
which haven’t been passed by parliament.)
 Austin treated jurisprudence as a science of law concerned with analysis of legal concepts –
their exposition, examination and comparison in a scientific manner in order to determine their
scope and extent in a given politically organized society.
 Austin distinguishes positive law from positive morality which is devoid of any legal sanction.
He identifies law with command, duty and sanction. In his positive law there is no place or
justness in law.
 Further it shall be convenient to discuss Austin's theory under two main heads:
(A) Austin's conception of law and (B) His method.
(A) Austin's Conception Law:
 Austin defined law as 'a rule laid down for the guidance of an intelligent being by an intelligent
being having power over him.'
 There are two kinds of law:
(i) Law of God, and
(ii) Human Laws.
Further, Human Laws may be divided into two classes:
(a) Positive Law:
 These are the laws set by political superiors (Parliamentarins) or by men not acting as political
superiors but acting in pursuance of legal rights conferred by political superiors. Only these
laws are the proper subject-matter of jurisprudence.
(b) Other Laws:
 Those laws which are not set by political superiors (set by persons who are not acting in the
capacity or character of political superiors or by men in pursuance of legal rights)
 Criticism against Austin's Theory:
Austin's theory has been criticized by a number of jurists and by some of them very bitterly and went
to the extent of saying that 'his contributions to juristic science are so scanty (meaningless) and so much
entangled (confused) in error that his book ought no longer to find a place among those prescribed for
students.
However, this is an extreme view. The main points of criticism against Austin's are as follows:
(a) Customs Ignored:
 'Law is the command of sovereign', as Austin says, is not warranted by historical facts. In the
early times, not the command but customs used to regulate the conducts of the people. Even
after coming of state into existence customs continued to regulate the conduct. Therefore,
customs should also be included in the study of jurisprudence, but Austin ignored them.
(b) Law Conferring Privileges :
 The law which is purely of a permissive character and confers only privileges, as the Wills Act,
which lays down the method of drawing a testamentary document so that it may have legal
effect, is not covered by Austin's definition of law.
(c) Judge-made Law:
 In Austin's theory there is no place for judge-made law. In the course of their duty judges (in
applying precedents and in interpreting the law) makes law. Though an Austinian would say
that judges act under the powers delegated to them by the sovereign, therefore, their acts are
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the commands of the sovereign. Nobody, in modern times, will deny that judges perform a
creative function and Austin's definition of law does not include it.
(d) Conventions:
 Conventions of the constitution, which operate imperatively, though not enforceable by court,
shall not be called law, according to Austin's definition, although they are law and are a subject-
matter of a study in jurisprudence.
(e) Rules Set by Private Persons:
 Austin's view is that 'positive law' includes law within itself set by private persons in pursuance
of legal rights is an unnecessary extension because their nature is very vague and indefinite.
(f) International Law:
 Austin put International Law under positive morality along with the law of honor and the law
of fashion. "The so called law of nations consists of opinions or sentiments current among
nations generally. Therefore, it is not law properly so called."
 The main ingredient of law lacking in International law is sanction but this alone will not
deprive it from being so called law. Now nobody will accept that International law is not law.
 Therefore, according to Austin's definition, a very important branch of law shall be excluded
from the study.
(g) Command Theory Untenable:
 A modern theorist, Prof. Olivecrona from Sweden has denied the applicability of the idea of
command to law. He says that a command is not identical with a declaration of will. There is a
difference between a command had the statement or declaration of a will.
 A command is always an act through which one person seeks to influence the will of another.
Command presupposes some determinate person who commands and another to whom the
command is addressed.
 In modern times, the machinery of state remains always changing and it is run by a multitude
of persons. Therefore, the idea of command does not apply in such systems.
(h) It is Artificial:
 The view that law is 'command of the sovereign' suggests as if the sovereign is standing just
above and not as part of the community giving his arbitrary commands. This view treats law as
artificial and ignores its character of spontaneous growth.
 The sovereign is an integral part of the community or state and his commands are the commands
of the organized community.
 Most of the theories regarding state, in modern times, say that the sovereignty does not remain
in the shape in which it was conceived by the writers of past ages. They say that state itself is
sovereign and law is nothing but the general will of the people. Therefore, the law cannot be
said to be a command.
(i) Sanction is not the Only Means to Induce Obedience:
 According to Austin's view, it is the sanction alone which induces (compel) man to obey law.
It is submitted that it is not a correct view.
 Lord Bryce has summed up the motives as indolence, deference, sympathy, fear, and reason
that induce a man to obey law. The power of the state is the ultimate force which resorts to
secure obedience.
(j) Relation of Law and Morals Overlooked:
 According to Austin, the science of jurisprudence is concerned with positive law, or with laws
strictly so called, as considered without regard to their goodness or badness. In other words,
Law is not concerned with morals.
 But this is not a correct proposition. The origin of the words 'right', 'wrong', and 'duty' etc. owe
their origin to certain ethical notions. Austin overlooked this aspect of the law.
Q -2. Discuss in detail Kelson’s pure theory of law. (Dec 2015, May 2015, Dec 2014, May 2014,
Dec 2013, Apr 2013)
Law is a Normative Science; Law Norms are 'Ought' Norms:
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 According to Kelsen, law is a 'normative science.' But law norms have a distinctive feature.
They may be distinguished from science norms on the ground that norms of science are norms
of being or IS' (Sein), while the law norms are 'Ought' (Sollen) norms.
 Law does not attempt to describe what actually occurs but only prescribes certain rules. It says,
'if one breaks the law, then he ought to be punished.'
 These legal 'Ought' norms differ from 'morality' norms in this respect that the former are backed
by physical compulsion which the latter back, but Kelsen does not admit the command theory
of Austin as it itroduces a psychological element into the definition of law which Kelsen avoids.
Hierarchy of Normative Relations:
 The science of law to Kelsen is the knowledge of hierarchy of normative relations. He builds
on Kant's theory of knowledge and extends this theoretical knowledge to law also. He does not
want to include in his theory 'what the law ought to be and speaks of his theory of law as a
structural analysis, as exact as possible, of the positive law, an analysis free of all ethical or
political judgements of value.'
 The task of legal theory is to clarify the relations between the fundamental and all lower norms,
but not to say whether this fundamental norm itself is good or bad. That is the task of political
science, or of ethics, or of religion.
 It represents within the realm of legal theory the quest for pure knowledge in its most
uncompromising sense, for knowledge free from instinct, volition, desire. Thus the 'Pure
Theory' on the one hand, avoids any discussion of ethics or natural law, and, on the other hand,
it reacts against the modern sociological approaches which go to widen the boundaries of
jurisprudence to a very large extent. Kelsen attempts to establish universal principles in his
legal theory, and, therefore, he may be said to be in favour of general jurisprudence.
Validity of Legal Norm; 'Grundnorm'; Dynamics Process:
 Now coming back to the 'norm', we should understand its practical working in a legal system.
Every legal act relates to a norm which gives legal validity to it. The legal norm derives its
validity from an external source, that is, from a particular 'ought norm' or sanction.
 Here, Kelsen comes near Austin (that is, from a particular 'ought norm' or sanction. Here,
Kelsen comes near Austin (that the sanction is the necessary element of law), but he differs
from him about the conception of the sanction.
 Austin's idea of sanction implies as if it is something standing outside the rule of law, but
Kelsen's sanction is itself another norm not different in nature from the norm which it supports.
 In this way every legal norm gains its force from more general norm which backs it,
'Grundnorm', and it is from this norm that all inferior norms derive their force.
 The 'Grundnorm' is the starting point in a legal system. From this base a legal system broadens
down in gradation, becoming more and more detailed and specific as it progresses. Kelsen calls
this process 'gradual concretization' of 'Grundnorm' or the basic norm-thus focusing the law to
specific situations. This is a dynamic process.
The Test of 'Grundnorm' - 'Minimum Effectiveness'; Jurist not Concerned with the
Nature and Origin of 'Grundnorm' :
 In every legal system there is always a 'Grund norm' although its forms are different in different
legal systems. For example, in Britain the 'Grund norm' is Crown in Parliament' and in U.S.A.
it is the 'Constitution'.
 The 'Grundnorm' can be recognised by the minimum effectiveness which it possesses. But any
discussion about the nature and origin of the 'Grund norm' is not within the province of the
'Pure Theory of Law'. These are pre-legal questions in relations between 'Grundnorm' and all
other inferior norms and not to enter into other questions as goodness or badness of
'Grundnorm'.
 Any discussion of such questions may involve the study of things and subjects which may
adulterate the theory. But before applying Kelsen's theory to any legal system one must discover
the 'Grundnorm'.
Essential Foundations of Kelsen's Theory:
 To summarise, the essential foundations of Kelsen's system have been enumerated as follows-
(1) The aim of a theory of law, as of any science, is to reduce chaos and multiplicity to unity.
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(2) Legal theory is science, not volition. It is knowledge of what the law is, not of what the law
ought to be.
(3) Legal theory as a theory of norms is nor concerned with the effectiveness of legal norms.
(4) A theory of law is formal, a theory of way of ordering, changing contents in a specific way.
(5) The relation of legal theory to a particular system of positive law is that of possible to actual
law.
Criticism against Kelsen's Theory:
His Grundnorm' Vague and Confusing:
 The first point in Kelsen's theory which is greatly criticized is his conception of 'Grundnorm'.
Though Kelsen has given its characteristic as possessing 'minimum effectiveness', it is very
vague and confusing and it is difficult to trace it out in every legal system. But its discovery is
a condition precedent for a successful application of Kelsen's theory to a legal system.
 Kelsen seems to have given his thesis on the basis of the written constitutions as Austin created
his 'Sovereign' on the basis of the English system of government but even in written
constitutions, 'Grund norm' is made up of many elements and anyone of these elements alone
cannot have the title of 'Grundnorm'.
 Another criticism against the conception of 'Grundnorm' is from the point of view of the
Historical school. It says that the origin of law is in customs and 'Volkgeist' and not in any other
source, such as 'Grund norm'.
The Purity of Norms cannot be Maintained:
 Kelsen is criticized, again, for his theory about the purity of norms. The purity of norms cannot
be maintained due to two reasons. First, for a proper analysis of legal norms one will have to
go to the 'Grundnorm'.
 In tracing the 'Grundnorm' by applying the test laid down by Kelsen himself-" minimum
effectiveness", one will have to look into political and social facts. It will cause adulteration in
the 'Pure Theory' because the impurity of 'Grundnorm' would infect the legal norms also which
emerge out of it.
 Prof. Stone observes: The social effects and questions of justice excluded, though from all the
side-doors and backdoors of his pyramid of norms, the front-door is wide open to both'. Second,
the task of deriving legal norm from'.
No Practical Significance:
 Sociological jurists criticize it on the ground that it lacks practical significance.
 Prof. Laski says" 'Granted its postulates, I believe the pure theory to be unanswerable but I
believe also that its substance is an exercise in logic and not in life.'
 Some see Kelsen as 'beating his luminous wings in vain within his ivory tower."
Criticism not Well Directed:
 So far as the criticism against Kelsen's view about the purity of legal norms is concerned, it has
some truth but in no way it impairs the initial thesis of the theory, namely, the hierarchy of
norms.
 The factors on which the 'Grundnorm' is founded are pre-legal and hence they are outside the
study of law. Even if we recognize the fact that the purity of legal norms cannot be maintained,
the theory is not materially affected.
 Kelsen develops his theory from the philosophical premises of Kant and aims at establishing a
universal theory of law.
'Natural Law' Ignored:
 Some criticize Kelsen's theory for its excluding 'natural law' from law. 'Natural law'
considerably affects legal concepts and operates in the society, and is incorporated in positive
law also.
 But, as said earlier, Kelsen presents a very scientific analysis of legal order, therefore, he could
not take these extra-legal norms into consideration. It does not mean that the he denies the
existence of 'natural law'. If 'natural law' is incorporated in the positive law, it stands in the
hierarchy of norms and is validly within the field of study.
International Law-Weakest Point of the Theory:
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 A more potent and substantial criticism is put forward against Kelsen's view of International
law. Kelsen in his attempt to apply his theory on International law runs into a number of
inconsistencies and artificiality of the approach is exposed.
 His comparison of International law with primitive law is artificiality and no juristic
conclusions can be based upon it. He attempts to prove the existence of 'Grund norm' in
International law also. He says that one legal system, in practice, recognizes the equality of
other legal systems and it implies the recognition of a 'Grundnorm'. This equality is not possible
without the 'Grundnorm'.
 He finds this 'Grundnorm' in the principle 'pacta sunt servanda'. On the question whether this
'Grundnorm' comes into existence on the formation of an association of states or states derive
their validity and force from the 'Grundnorm'.
 Kelsen leaves both the possibilities open as it is not within the province of the 'Pure Theory' to
investigate into it, but his line of approach seems to be favouring the latter view. In his zeal for
establishing the primacy of International law, Kelsen goes on forwarding arguments, but on the
point of 'Grund norm' his arguments explode and he is thrown on the horns of a dilemma.
 Prof. SJone remarks: "It is difficult to see what pure theory of law contributes to a system
which it assumes to be law, but which it derives from a basic norm which it cannot find."
 Secondly, Kelsen says that sanctions of International law are war and reprisal.
 The whole difficulty is that the International law does not fit in his 'Pure Theory' and it should
be taken as a limitation of the theory. His arguments are based on 'Natural law' principles on
which Prof. Lauterpacht observes that 'by a backdoor, as it were, crept into the cast iron logic
of the system, the ghost of natural law'.
 In present times, a greater appreciation and understanding of Kelsen's theory has appeared. The
great jurists like Stone and Friedmann have very stoutly defended Kelsen's theory. The 'Pure
Theory' is mainly concerned with a theoretical analysis of legal norms within a state and there
it is very easily applicable. The application of the theory on International law (as the founder
of the theory claims it to be of universal application) exposes the limitations of the theory or a
causual leakage in it. In his effort to establish the primacy of International law, Kelsen applies
the theory on it also, but it gives only ridiculous results. He represents a picture of International
law as what it ought to be and not what it is.
 Though his theory is called pure, once it is associated with Extra Legal Consideration with the
Grundnorm-his theory ceases to be pure. His conception of Grundnorm is vague and confusing.
It is difficult to trace it out in every legal system. No criterion has been given by him through
which the minimum effectiveness of Grundnorm is to be measured. His Grundnorm seems to
be little more than Austin's in a new guise.
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UNIT – 3
Q -1. Discuss Natural Law theory in detail. (April 2017, Dec 2016, Dec 2014, Dec 2013, Apr 2013)
The natural law being co-existent with mankind and emanating from God Himself, is superior to all
other laws. It is binding over all the countries at all the times and no man-made law will be valid if it is
contrary to the law of nature.
 Dr. Freedmann has stated that the history of natural law is a tale of the search of mankind for
absolute justice and its failure. Therefore, with the changes in social and political conditions,
the notions about natural law have also been changing.
 The natural law philosophy dominated in Greece during 5th B.C. when it was believed that it
is something external to man. Sophists called it as an order of things which embodies reason.
Socrates, Plato and Aristotle also accepted that postulates of reason have a universal force and
men and endowed with reason irrespective of race or nationality.
 In the ancient societies, natural law was believed to have a divine origin. During the medieval
period it had a religious and super natural basis but in modern times it has a strong political and
legal mooring.
 It has found expression in modern legal systems in the form of socio-economic justice. The
natural law theory acts as a catalyst to social transformation thus saving the society from
stagnation.
Definition of Natural Law:
 There is no unanimity about the definition and exact meaning of natural law and the term
'natural law theory' has been interpreted differently at different times depending on the needs
of the developing legal thought.
 From the jurisprudential point of view, natural law means those rules and principles which are
supposed to have originated from some supreme source other than any political or wordly
authority. Some thinkers believe that these rules have a divine origin, some find their source in
nature while others hold that they are the product of reason.
 The natural law denies the possibility of any rigid separation of the 'is' and ought' aspect of law
and believes that such a separation is unnecessarily causing confusion in the field of law. The
supporters of natural theory argue that the notions of 'justice', 'right' or 'reason' have been drawn
from the nature of man and the law of nature and, therefore, this aspect cannot be completely
eliminated from the purview of law.
 Some attributes of Natural law are as follow:
(1) Natural law is eternal and unalterable.
(2) Natural law is not made by man, it is only discovered by him.
(3) Natural law is not enforced by any external agency.
(4) Natural law is not promulgated by legislation, it is an outcome of preaching of philosophers,
Prophets, saints etc., and thus in a sense, it is a higher form of law to which all forms of
manmade laws should pay due obedience.
(5) Natural law has no formal written code. Also there is no precise penalty for its violation nor
any specific reward for abiding by its rules.
(6) Natural law has an eternal lasting value which is immutable.
The Evolution and Development of Natural Law Theory:
 From the point of view of convenience, the evolution and development of natural law theory
may be studied under the following broad heads:
Ancient Period:
 Heraclitus was the first Greek philosopher who pointed at the main characteristic features of
law of nature, namely, (i) destiny (ii) order and (iii) reason. He stated that nature is not a
scattered heap of things but there is a definite relation between the things and a definite order
and rhythm of events. According to him' reason' is one of the essential elements of natural law.
 Socrates (470-399 B.C.): Socrates argued that like natural physical law, there is a natural
moral law. It is because of the 'human insight' that a man has the capacity to distinguish between
good and bad and he is able to appreciate the moral values. thus according to Socrates, 'virtue
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is knowledge' and 'whatever is not virtuous is sin'. To him, justice may be of two kinds, namely,
(i) natural justice; and (ii) legal justice. The rules of natural justice are uniformly applicable to
all the places but the notion of legal justice may differ from place to place depending on the
existing statutory law and social conditions of the place. It is a variable content which changes
with time and place.
 Thus natural law is a specie of law which is universal and immutable and uniformly applicable
to all the persons at all the places and times.
 Plato (427-347 B.C.): 'Socrates' disciple, Plato carried further the natural law philosophy
through his concept of ideal State which he termed as Republic. In his Republic, Plato
emphasised the need for perfect division of labour and held "each man ought to do his work to
which he is called upon by his capacities.
 Aristotle (384-322 B.C.): Aristotle came out with a more logical interpretation of the natural
law theory According to him, a man is a part of nature in two ways. Firstly, he is a creation of
God, and secondly, he possesses insight and reason to which enable him to articulate his actions.
He defined natural law as 'reason unaffected by desires.
 He said, "Positive law should try to incorporate within it, the fine principles of natural law but
it should be obeyed even if it is devoid of the standard principles of natural law. He pleaded
that the correct approach is to reform or amend the law and not to break it."
 Truly speaking, it was Aristotle and not Plato, who relieved natural law from oracular mess and
founded it on reason.
 Cicero: According to Cicero, "True law is right reason in agreement with nature; it is of
universal application, unchanging and everlasting and there would not be different laws at
Rome and at Athens, but one eternal and unchangeable law which will be valid for all nations
at all times."
 Thus Cicero supported natural law because it was a creation of 'reason' of the intelligent man
who stands highest in the creation by virtue of his faculty of reasoning. He believed in the
universal applicability of natural law based on general morality of the human society.
 St. Thomas Aquinas (1225-1274): Among the logicians of the medieval period, the name of
Thomas Aquinas deserves a special mention. St. Thomas Aquinas is considered to be the
representative of the natural law theory of me medieval period, in his view, social organisation
and State are natural phenomenon.
 He defined law as "an ordinance of reason for the common good made by him who has the care
of the community and promulgated through reason". He maintained that, "the primary precept
of law is that good should be done and pursued and an evil be avoided.
 St. Thomas Aquinas gave a fourfold classification of laws, namely, (1) Law of God or external
law; (2) Natural law which is revealed through "reason"; (3) Divine law or the law of Scriptures;
(4) Human laws which we now called 'Positive Law'.
 St. Aquinas agreed that natural law emanates from 'reason' and is applied by human beings to
govern their affairs and relations. He regarded Church as the authority to interpret divine law.
He considered 'reason' as the sole repository of social life of man.
 Hugo Grotius (1583-1645): Hugo Grotius propounded the theory of functional natural law in
his Law of War and Peace (1625) and formulated the principles of international law which were
equally applicable to all States both, during war and peace. He referred these principles of law
of nations as natural law. He held that natural law was not just based on 'reason' but on 'right
reason', i.e., 'self-supporting reason' of man.
 Grotius is rightly considered as the founder of the modern international law as he deduced a
number of principles which paved way for further growth of international law. He propagated
equality of States and their freedom to regulate internal as well as external relations.
 Grotius believed that man, by nature is peace loving and desires to live according to dictates of
reason. He, therefore, treated "natural law as so immutable that it cannot be changed by God
himself." He considered divine law as the grandmother, natural law the parent and positive law
as the child. Thus he placed natural law at a higher footing as compared with the positive law.
SOCIAL CONTRACT THEORY (HEGEL, KANT):-
Thomas Hobbes (1588-1679):
BY: - KARAN RAJPUT

12
 Hobbes theory of natural law was based on natural right of sulfa-preservation of person and
property. He used natural law to justify the absolute authority of the ruler by endowing him
power to protect his subjects. Hobbes based his theory on social contract.
 According to Hobbes, prior to 'social contract', man lived in chaotic condition of constant fear.
The life in the State of nature was "solitary poor, nasty, brutish and short". In order to secure
self-protection and avoid misery and pain, men voluntarily entered into a contract and
surrendered their freedom to some mightiest authority who could protect their lives and
property. This led to the emergence of the institution of the 'ruler' which later assumed the form
of the State. Thus Hobbes was a supporter of absolute power of the ruler and subjects had no
rights against the sovereign who had to be obeyed howsoever bad or unworthy he might be.
Obviously, Church also had no power or authority over the sovereign.
 It would thus be evident that Hobbes used natural law theory to support absolute-authority of
the ruler. Hobbes observed that law is dependent upon the sanction of the sovereign. In his
opinion, "Governments without sword are but words, and of no strength to secure a man at all.
John Locke (1632-1704):
 In order to support the rights of individual against the absolute power of the sovereign, a new
interpretation of the natural law and social contract theories became more or less necessary.
John Locke the Glories Revolution of 1688 and the wave of individualism in England which
had permeated the political and legal theories in Britain at that time. He, therefore, came out
with a new interpretation of the social contract rejecting Hobbes' earlier concept of state of
nature.
 He stated that the life in state of nature was not as miserable and brutish as stated by Hobbes,
instead it was reasonably good and enjoyable except that the property was insecure. In order to
ensure proper protection of property, man entered into the 'social contract' surrendering only a
part of his rights, and not all the rights as contemplated by Hobbesian theory.
 The purpose of the state and law was to uphold and protect the natural rights of men. So long
as the State fulfils this purpose, its laws were valid and binding but when it ceases to do so, the
people have a right to revolt against the government and overthrow it.
 Locke pleaded for a constitutionally limited government. Unlike Hobbes who supported State
authority, Locke pleaded for the individual liberty.
Jean Rousseau (1712-1778):
 Rousseau gave a new interpretation to 'social contract' and 'natural law' to suit the new
situations. He pointed out that 'social contract' is not a historical fact as contemplated by Hobbes
and Locke, but it is merely a hypothetical conception.
 Prior to this so called 'social contract', the life was happy and there was equality among men.
People united to preserve their rights of freedom and equality and for this purpose they
surrendered their rights not to a single individual, i.e., sovereign, but to the community as a
whole which Rousseau named as 'general will'. Therefore, State and law are the product of
General Will, of the people.
 The essence of Rousseau's theory of General Will was that while the individual parts with the
natural rights, in return he gets civil liberties such as freedom of speech equality, assembly etc.
 It would thus be seen that while Locke laid emphasis on the individual, Rousseau favored
people's sovereignty.
Immanuel Kant (1724-1804):
 The natural law philosophy and doctrine of social contract was further supported by Kant and
Fichte in 18th Century. They emphasised that the basis of social contract was 'reason' and it
was not a historical fact. He favored separation of powers and pointed out that the function of
State should be to protect the law.
 Kant's theory of categorical Imperative was derived from Rousseau's theory of General will. It
embodies two principles:
(1) The categorical imperative expects a man to act in such a way that he is guided by dictates of
his own conscience. Thus it is nothing more than a human right of self-determination.
(2) The second principle expounded by Kant was the doctrine of 'autonomy of the will' which
means an action emanating from reason and does not mean the freedom to do as one pleases.
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 In essence, Kant held that "an action is right only if it co-exists with each and every man's free
will according to the universal law". This he called as "the principle of Innate Right". The sole
function of the State, according to him, is to ensure observations etc.
Q -2. Discuss Sociological School in detail. (Dec 2015, May 2014)
Sociological thought of law connotes not one approach but several whose common feature is that these
are, in one way or the other, study of law in relation to society. The main and the common field of study
of the jurists who made such approach is the effect of law and society on each other. This approach
takes law as an instrument of social progress.
Pioneers of the Sociological Thought:
August Comte (1786-1857):
 He is considered to be the founder of the science of sociology. Comte's method may be called
'Scientific Positivism'. He pleads for the application of scientific method to the science of
sociology. Society is like an organism and it can progress when it is guided by scientific
principles. These principles should be formulated by observation and experience of facts
excluding all metaphysical and other like considerations.
 The implications of Comte's theory are many. He greatly influenced the philosophical and
scientific thoughts of his time. In the field of legal theory Comte's ideas inspired Durkheim,
and who, in his turn, inspired Dugut, a great sociological jurist.
Herbet Spencer (1820-1903):
 Organic Theory of the Society: He gave a scientific exposition of the organic theory of
society. He applied this evolutionary trend of society to sociology. The organic theory has been
very beautifully summarized by Prof. Allen. The inter-dependence of organisms, in its
sociological aspect means the mutual relation of all members of civilized society and the
distribution of a sense of responsibility far wider than can be comprised within the formula
'Sovereign and Subject'. It directed attention to the necessity of considering law in relation to
other social phenomena."
Jurisprudence Now a Social Science: Now the study of law in relation to society is the
opening of a new era in legal thought and this enabled jurisprudence to be called a 'social
science.
Duguit (1859-1928): Inspired by Durkheim, It has been earlier that Duguit was inspired by
Durkheim who himself had taken inspiration from Comte. Durkheim's main point, which
Duguit built upon, was that he made a distinction between two kinds of needs of men in society.
Firstly, there are common needs of individuals which are satisfied by mutual assistance, and,
secondly, there are diverse needs of individuals which are satisfied by the exchange of services.
Therefore, the division of labour is the most important fact of social cohesion. He named it
'social solidarity. With development of free individual activities 'social solidarity' develops.
This 'social solidarity' is a fact and it is necessary for social life.
Interdependence of Men in the Society: Duguit built his theory on 'social solidarity'. He
insisted on the necessity of viewing social life as it is actually lived. The most important fact of
the society is the interdependence of men. In the present day society man exists by his
membership of the society. Each man cannot manufacture and procure the necessities of life
himself. Functions are so specialized that each in his turn depends on others for his necessities.
The end of all human activities and organizations should be to ensure the interdependence of
men. This is Duguit's theory of 'social solidarity'.
Law Also Serves This End: Law also is to serve this end. Duguit says:-"Law is rule which
men possess not by virtue of any higher principle whatever good, interest, or happiness but by
virtue and perforce of facts, because they live in society and can live in society."
Implications of Degut's Theory:
Duguit's Attack on Sovereignty; His minimization of State Functions:
 He launched a vigorous attack on the myth of state sovereignty. The 'social solidarity' is the
touch-stone of judging the activities of individuals and all organizations. State is also a human
organization and it is in no way different from other organizations. It is simply the expression
of the will of individuals who govern. They too are under a duty to ensure 'second solidarity'.
BY: - KARAN RAJPUT

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 Therefore, the state stands in no special position or privilege and it can be justified only so long
as it fulfils its duty. Duguit has no faith in an all-powerful illimitable authority-sovereign.'
 He strongly pleads for the check on the State power. His plea is for the decentralization and
ultimately he develops an idea of 'syndicalism'. Duguit's theory of minimization of State
function leads him to deny any arbitrary power to legislator. Legislator does not create law 'but
merely gives expression to judicial norm formed by the consciousness to the social group.'
No Distinction Between Public and Private Law:
 Duguit's view on state and its function led him to deny the distinction between private and
public law. Both are to serve the same end, i.e., 'social solidarity'. Therefore, there is no
difference in their nature. Such a division will elevate the State above the rest of the society
which Duguit's theory never accepts. On this point Duguit' views are similar to that of Kelsen,
the propounder of the 'Pure Theory of Law.'
No Private Rights:
 Another important point in Duguit's theory is that he denies the existence of private rights. With
Comte he says-
"The only right which any man can possess is the right always to do his duty." Individuals working in
any capacity are the parts of the same social organization and each is to play his part in furtherance of
the same end social solidarity, 'though the latter proceeds from different premises.
Criticism Against Duguit's Theory: Duguit's theory has been criticized on various grounds-
'Social Solidarity' a Natural Principle: The first weakness of the theory is that though Duguit
is a positivist and excludes all metaphysical considerations from law his principle of 'social
Solidarity' itself is a natural law ideal. His special emphasis is on the valuation of law on a
social plan. The facts of social life to which he confines his study, in practice, tend to become
a theory of 'justice'. He wants to establish an absolute and uncontestable rule of law. Like
'natural law' theories he establishes a standard ('social solidarity') to which all 'positive law'
must confirm. It is nothing but natural law in a different form. Therefore, it has been rightly
observed that Duguit 'pushed natural law out through the door and let it come by window.'
'Social Solidarity' to be Decided by Judges: 'Social Solidarity' a vague expression; Social
Solidarity' is interpreted to serve divergent purposes. Again, a question may arise as to who is
to decide whether a particular Act or Rule is furthering the 'social solidarity' or not. Naturally,
the judiciary will have the power to decide it. But the judges too have their weaknesses and
limitations, and this process may lead to a judicial despotism. The idea of social 'solidarity' is
very vague and an analysis would reveal that it is not free from metaphysical notion. 'Social
Solidarity' may be subjected to different interpretations which may be pushed to serve divergent
purposes and actually they have been so used. Soviet jurists used Duguit's theory to establish
that individuals have no rights. His denial of the distinction between private and public law, his
idea of minimising the state intervention (which resembles the Marxist view of 'withering away
of state') were other points of great attraction to Soviet Jurists.
He Confuses 'is' with 'Ought' : While defining law, Duguit confused it with what the law
ought to be. According to his view, if law does not further the 'social solidarity' it is not law at
all. He laid down certain fundamentals to which the law must conform. His definition of law
instead of giving a clear cut picture of law confuses it as was done by natural law theories.
He Overlooked the Growing State Activity: Duguit advocated for the minimization of State
intervention at a time when State was growing all-important. Though he propounded his main
thesis from the observable facts of social life, i.e. growing complexity and interdependence in
society, he overlooked the fact that the social problems of modern community can be solved
better by state activity is much more widened and has grown very strong.
Inconsistencies in the Theory: Another weakness of Duguit's theory is its inconsistency at
several places. On the one hand, he expresses faith in the biological evolution of society, and
on the other hand, he vigorously attacks the idea of collective personality. He denied any
personality to state or group distinct from the individuals who constitute it.
Duguit's Influence is Great: His idea of justice is in social terms. Later jurists took inspiration
from him. Despite defects and weaknesses in Duguit's theory, his contribution and influence
were great. His approach is very comprehensive and sincere. Though his theory ultimately
becomes a theory of natural law, or a theory of justice, which as we find in him is perfectly in

JAY GRIGLANI
15
social terms and derived from social facts. He shaped a theory of justice out of the doctrines of
sociology. Many later jurists, though proceeding from different premises, reached similar
conclusions as Duguit had reached (especially about the state, rights, and public and private
law). National socialists and Soviet jurists both adopted many of the principles from such part
of the theory, which supported their activities. Inspired by Duguit's emphasis on the importance
of 'group' were many later jurists such as Hauriou and Renard. He is credited for his original
and comprehensive approach, which inspired many jurists to propound new theories.
Ihering’s theory:
Ihering (1818-1892) He was a social utilitarian. He rejected the view of the Historical school. His
'system develops aspects of Austinian positivism, combines them with principles of utilitarianism as
established by Bentham and developed by Mill."
Law is the Result of Constant Struggle: According to him, the development of law like its
origin is neither spontaneous nor peaceful. "It is the result of constant struggle or conflict with
a view to attain peace and order." Ihering says, "law is the guarantee of the condition of life of
society, assured by the state's power of constraint."
Law is to Serve Social Purpose: He takes law as a means to an end. The end of law is to serve
purpose. This purpose is not individual but social purpose. When individual purpose comes in
conflict with social purpose, the duty of the state is to protect and further social purpose and to
suppress those individual purposes which clash with it. This end may be served either by regard
or by coercion and it is the latter, which is used by the state. Therefore, "law is coercion
organized in a set form by the state."
Law is not the Only Means to Control Social Organism: But it should not be gathered that
law is the only means to control the social organism, or it alone can protect and further all the
social purposes. Law is the only one factor among many others. There are some conditions of
social life, such as climate etc, for which no intervention by law is needed. There are some
conditions of social life, such as climate etc for which no law is made. Lastly, there are some
conditions of social life, which are secured exclusively by law, such as the raising of revenue.
In short, according to Ihering, law means those rules, which secure the conditions of social life
by state through coercion. Law always has a purpose. The purpose is to further and protect
social pursuit of pleasure and avoidance of pain. On this ground this theory is termed as social
utilitarian. From these premises, Ihering laid down his theory of punishment and gave his
analysis of many legal concepts. His theory regarding punishment, in brief, is that punishment
is a means to a social end. It should not be based on retributive or compensatory ground.
Criticism Against Ihering's Theory:
He Points Out Only the Problems, not the Solution: The main criticism against Ihering
theory is that though he says that the task of law is to reconcile the conflicting interest, he does
not say in what direction it should be done. He draws our attention to the complicated problems
of modern life but gives no solution to it. His supporter answer this criticism by saying that it
is enough that he drew our attention to problems, and one should not expect more than that
from a theoriecian of his times.
Law Protects 'Will' and not 'Purpose': Another criticism is against his theory of purpose.
According to him the law protects will and not purpose. Korkunov has very stoutly defended
Ihering's theory of purpose by presenting a number of illustrations to show that law protects
'purpose and not 'will'.
Ihering's Contribution:
Comparative Study of Legal Systems: Ihering rendered valuable services to the science of
jurisprudence. He was an investigator of ancient law, philogist and an anthropologist and made
study of various legal systems and said that law develops by conscious efforts. He launched a
vigorous attack on Savigny's historical theory and natural law theories. His juristic use of
interests, as motive of social activity is also very significant. In the fulfillment of social purposes
he found the fruition of individual purposes, which, later on, became the motto of socialist
states.
Founder of Sociological Jurisprudence: By pointing out the coercive character of law, by
indicating that law has only a relative value, by evaluating it in the social context and by
speaking of it as an instrument and source of social purpose, Ihering lays in embryonic form,
BY: - KARAN RAJPUT

SYLLB SEM III JURISPRUDENCE NOTES
JAY GRIGLANI
16
all the chief traits of 'sociological jurisprudence', which the later jurists elaborated. Roscoe
Pound has given an account of the influence which Ihering had on later jurists especially in
Germany. Friedman calls him the 'father of modern sociological jurisprudence.
 "He prepared" Friedman states, "the more elastic legal technique required to meet new and
changing legal problems by his fight against the 'jurisprudence of concepts'. Moreover, his
insistence that law is realized through struggle and self-assertion has effectively opposed the
romantic conception of an unconscious manifestation of the Volksgeist through the law."
 By insisting at the same time on coercion as the characteristic of law and making the power of
the state the instrument of law, Ihering has created the essential foundations of modern
jurisprudence suitable to the practical lawyer, because it was in much closer contact with the
social realisties of the nineteenth and twentieth centuries than Kant's idealism or Savigny's
romanticism.
Eugene Ehrlich’s theory:
Law is to be Found in Social Fact: The central point in Ehrlich's (1882-1992) thesis is that the
law of community is to be found in social facts and not in formal sources of law. He says: "At
present as well as at any other time the center of gravity of legal development lies not in
legislation, nor in juristic science, nor in judicial decision, but in society itself."
'Living Law' is the Facts that Govern Social Life: The norms which, in fact, govern social
life are only partly reflected in the formal law (i.e. statute of judge-made law) of that society.
The essential body of legal rules is always based upon the social 'facts of law'. The facts of law'
which underlie all law are usage, domination, possession and declaration of will. These facts
and the social relations make the 'living law of the people', state made laws (statutes and
decisions) are only a part of this great body of law. Generally, these legal norms tag behind the
'living law.' Ehrlich gives examples of it from English commercial and many other branches of
law where the relations, in practice, are regulated more by usages than by statutes. One may
find some similarity between Savigny's Volkasgeist and Ehrlich's 'living law', but the latter's
approach is more realistic and is concentrated on facts of law and avoids the former's mystical
notions. Ehrlich's plea is to enlarge the scope of jurisprudence. A proper study of law requires
the study of all the social conditions in which the law operates.
No Substantial Difference Between the Formal Legal Norm and Customs, etc.: According
to Ehrlich, there is no substantial differences between formal legal norms and the norms of
customs or usages, because the sanction behind both of them is the same (that is social
pressure). If a statute is not observed in practice, it is not a part of 'living law'. Hence he stands
with Duguit on the point that the state is the source of law. But he differs from Duguit on the
point that whereas the latter puts his absolute un-contestable principle of 'social solidarity', the
former gives no such absolute principles and pleads for study of law in social context.
Law according to the requirements of the society: His use of the term 'sociological
jurisprudence' means that law in a society should be made and administered with the utmost
regard to its requirements. To achieve this end a very close study of the social condition of the
society in which the law is to function is indispensable.
Criticism Against Ehrlich's Theory:
Makes no Distinction Between Legal and Other Social Norms: Theory outmoded: A very
potent criticism against Ehrlich's theory is that he makes no distinction between legal norm and
other social norms and confuses the whole matter. For proper study of jurisprudence, Friedman
rightly says that 'Ehrlich's sociology of law is always on the point of becoming a necessarily
sketchy, general sociology. He expands the scope of the subject and its relation to other social
sciences to absurd limits. He established a seminar of 'living law' for the 'cartography' of all
possible phases of social activity. Prof. Allen rebukes this approach by calling it as
'Megalomaniac Jurisprudence. Ehrlich overlooked the fact that sometime formal law influences
and changes the practice of the society. Again, his views on custom create type of law, which
he did not point out clearly. In modern times, custom is treated as but less and less important in
the second role. Modern society overwhelmingly demands articulate law made by a definite
law giver. Such law will always, in varying degree, depend on these facts of law, but it does
not derive its validity as law from this factual observance. His view of the minimization of state
function has become outmoded in modern times.

JAY GRIGLANI
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Roscoe Pound (1870-1964): Roscoe Pound of Harvard Law School can be called the father of
the sociological jurisprudence. Pound is considered to be the 'American Leader' in the field of
Sociological Jurisprudence. He also shared the view that interests are the chief subject matter
of law. For Pound, the law is an ordering of conduct so as to make the goods of existence and
the means of satisfying claims go round as far as possible with the least friction and waste.
According to him, the end of law should be to satisfy a maximum of wants with a minimum of
friction.
The Task of Law is 'Social Engineering': Pound's main thesis that the task of law is 'social
engineering'. He says-
"For the purpose of understanding the law of today, I am content with a picture of satisfying as much
of the whole body of human wants as we may with the least sacrifice. I am content to think of law as
social institution to satisfy social wants, the claims and demands involved in the existence of civilized
society by giving effect to as much as we may with least sacrifice, so far as such wants may be satisfied
or such claims or desires through social control; a more embracing and more effective securing of social
interests; a continually more complete an defective elimination of waste and precluding of friction in
human enjoyment of the goods of existence in short, a continually more officious social engineering."
Social Engineering Means a Balance Between the Competing Interests in Society: The
jurists must work with a plan. By 'social engineering' Pound means a balance between the
competing interests in society. He entrusts the jurist with a commission. He lays down a
method, which a jurist should follow for 'social engineering'. He should 'study the actual social
effects of legal institution and legal doctrines, study the means of making legal rules effective,
sociological legal history and the importance of reasonable, and expatiate upon the interests to
be protected by law. He himself enumerates the various interests, which are to be protected by
the law. He classifies them under three heads: Private interests, public interests and Social
interests.
Private, Public and social Interests. The Private Interests to be Protected by the Law are:
(1) The Individual's Interests of Personality: These include his physical integrity, reputation,
freedom of volition and freedom of conscience. They are safeguarded by Government against
interference in the matter of belief and opinion;
(2) Individual’s interests in children, and claims to maintenance.
(3) Interests of substance: These include proprietary rights, inheritance and testamentary
succession, and occupational freedom. The principal public interests are- (i) interests in the
preservation of the State as such; and (ii) interests of the state as the guardian of social interests.
The Social interests deserving legal protection are-
(1) Interests in the preservation of peace and order and maintaining general security;
(2) Interest in preserving social institution like marriage and religious institution;
(3) interest in preserving general morals by counteracting corruption, discouraging gambling and
invalidating transactions repugnant to current morality;
(4) interest in conserving social resources,
(5) interest in general progress which is to be achieved by freedom of education, freedom of speech
and expression, freedom of property, trade, and of commerce; and
(6) interest in the promotion of human personality.
Interest as the Main Subject Matter of Law: In short Pound's theory is that the "interests are
the main subject matter of law and the task of law is the satisfaction of human wants and desires.
It is the duty of law to make a 'valuation of interests.' In other words to make a selection of
socially most valuable objectives and to secure them. At the same time the function of law is to
strike a balance between stability and change. There is no any hard and fast rule for the
valuation of interests. They are relative. It is responsibility of the jurists to make study of the
interests by a 'sociological technique' and to evaluate them. This all is nothing more than an
experiment.
Criticism against Pound's Theory
'Engineering' Not a Happy Word; 'Engineering' Ignores an Important Part of Law:
 Danger to individual freedom. A general criticism against Pound's theory is regarding his use
of the word 'engineering' because it suggests a mechanical application of the principles to social
needs.
BY: - KARAN RAJPUT

18
 But, really speaking, the word "engineering" is used by Pound metaphorically to indicate the
problems which the law has to face, the objectives which it has to fulfill and the method which
it will have to adopt for this purposes.
 Pound has admitted that philosophy has failed to provide and ideal scale of value with reference
to interests. In fact, Pound himself has admitted that philosophy has failed to provide an ideal
scale of values and that the best that jurist can do is to proceed with the task of adapting law to
the needs of his generation the choice between conflicting ideologies is one for the community
at large.
 Another criticism against his theory is that emphasis on 'engineering' ignores an important part
of law, which develops and evolves in the society according to social needs and the law simply
recognizes or approves it. This dynamic feature of law is undermined. But, as in modern time,
law is generally made consciously and deliberately, this criticism does not hold much water.
 Secondly, Pound's suggestion for maintaining a balance, covers that aspect also. Prof. Allen has
pointed out a danger in the utilitarian trend of pound's theory that if we confine the interpretation
of 'wants and desires' (used by Pound) only to material welfare it may make serious inroads on
personal freedom and other things which contribute greatly for happy and rich life.
What is the Value of Such Classification?: In the first place, it pursues a line of thought
originated by Inhering and Bentham, which is the approach to law as a means to a social end
and as an instrument in social development. In the second place, such a classification greatly
helps to make inarticulate premises articulate, to make the legislator as well as the teacher and
practioner of law conscious of the principles and values involved in any particular issue. It is
thus an important aid in the linking of principles values involved in any particular issue. It is
thus an important aid in the linking of principle and practice.
 It is, however, equally essential to realise that any classification is in the nature of catalogues,
to which additions and changes have constantly to be made, and which is neutral as regards the
relative value and priority of the interests enumerated.
 As soon as the interests ranked in a specific order or given any appearance of exclusiveness or
permanence, they lose their character as instruments of social engineering and become a
political manifesto. Pound himself has inserted a certain evaluation by describing the interest
in individual life as the most important of all.
 There is, however, as Pound himself recognises, the danger of an implicit evaluation in the
grading of interest is itself a matter of changing political or social conditions. What is an
individual and what is a social interest is itself a matter of changing political conception.
 Many interests come under different individual interest of personality as well as social interest
in economic progress. It is not only the numeration of interest as such but also their respective
weight which is a matter of changing political and social philosophies. The very conception of
neutrality in the catalogue of interests, the evaluation of which depends on changing political
and social system is characteristic of liberal approach."
Pound's Contribution: Pound's theory is free from dogmas. He points out the responsibilities
of the judge and the lawyer. Pound's contribution to jurisprudence is great. His takes a middle
way avoiding all exaggerations. He speaks of values but says that they are relative. He approach
is experimental. Pound's theory stands on a practical and firm ground and it has inspired great
practical fieldwork. His emphasis on studying the actual working of legal rules in the society,
the importance of social research for good law making and pointing out the great constructive
function which the law is to perform are very valuable contributions to jurisprudence. He points
out the responsibility of the lawyer the judge and the jurist and gives a comprehensive picture
of the scope and field of the subject. Pound's influence on modern legal thought is great and the
study of the subject is being undertaken under the light of this theory.
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UNIT – 4
Q -1. Discuss in detail the concept of Justice. (April 2017)
The concept of justice is as old as origin and growth of human society itself. The social nature of man
demands that he must live peacefully in society. While living so, he experiences a conflict of interests
and expects rightfully conduct on the part of others. This is the reason why Salmond and Roscoe Pound
have emphasized the importance of justice in their definitions of law.
 According to Blackstone, justice is a reservoir (Store) from where the concept of right, duty
and equity evolves.
 Salmond is of the opinion that every man wants others to be righteous and just towards him,
but he himself is of selfish nature and may not behave in righteous and just manner. This is why
some kind of external force is necessary for maintaining an orderly society. For Salmond,
without justice, an orderly society is unthinkable.
 The concept of justice became more conspicuous with the growth of the state which ensures
justice to its people through the instrumentality of law. As the law grew and developed, the
concept of justice also expanded and developed on different facets of human activities.
 For example, today we have civil justice, criminal justice, economic and social justice,
distributive justice and so on.
 The essence of legal justice lies in ensuring uniformity and certainty of law and at the same
time ensuring that rights and duties are duly respected by the people. In other words, citizens
shall behave in a manner that do not violate the rights of the others and at the same time abide
by the fundamental duties imposed on them by law.
 One has to be just and fair not only to himself but towards all the members of the society. The
violation of justice which is enforced by the law invites state sanction which in general terms
known as punishment.
Q -2. Explain origin of administration of Justice. Discuss Purpose of criminal justice and
theories of punishment. (Dec 2016)
Discuss:
(a) Theories of punishment, (April 2017, Dec 2016)
(b) Forms of punishment. (April 2017)
Origin of the administration of Justice:
 The administration of justice in modern civilized societies has evolved through stages. In the
early stage when society was primitive and private vengeance and self-help were the only
remedies available to the wronged person against the wrongdoer, he could get his wrongs
redressed with the help of his friends or relatives.
 The second stage of development of society was characterized by the state coming into
existence in its rudimentary (undeveloped) form when its functions were only persuasive in
nature. It did not had enforcing power by which it could punish the wrongdoer.
 In the third stage of development of society, wrongs could be redressed by payment of
compensation by the wrongdoer to the victim who was affected by the wrongful act. Thus up
to this time justice remained private in nature without compulsive force of the state.
 In course of the time, the state exerted its authority and took upon itself the responsibility if
administering justice and punishing the wrongdoer using its force whenever necessary. This
stage of development shows that there was a transformation from private justice to public
justice through the agency of the state.
 In other words, a wrong done to an individual was no longer treated as a private wrong but it
was considered as an offense against the state and made punishable under the law.
 Thus it is evident that the modern administration of justice owes its origin and growth to the
gradual evolution of the state and its political power.
 In course of time, with the growth of state power, private vengeance and violent self-help were
substituted by the administration of criminal and civil justice through law courts.
Purpose of Criminal Justice:
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 The main purpose of administration of criminal justice has always been to punish the offender.
It is the state which punishes the criminals. Whatever be the end of criminal justice, the fact
remains that the importance of punishment has been recognized even under the ancient legal
systems of the world for the protection and welfare of the state and its people. Even in ancient
India the King was duty-bound to punish the offender.
 According to Manu, danda (Punishment) was the essential characteristic of law. He argued that
“punishment keeps the people under control, protects them and it remains awake when people
are asleep. So the wise have recognized punishment itself as a form of “Dharma”.
Theories and forms of Punishment:
Various theories are advanced in justification for punishing the offenders. The views regarding
punishment also kept on changing with the changes in societal norms. They have been reflected in
the form of different theories of punishment.
(1) Deterrent Theory:
The main object of punishment is to make commission of an offence an ill-bargain for the offender
and deter others from committing crimes. Punishment is a means of attaining social security as it
seeks to protect the society by deterring potential offenders.
 According to Salmond, “Punishment is before all things deterrent and the chief aim of law of
crime is to make the evil-doer an example and a warning to all that are like minded with him”.
 Salmond asserted that offences are committed by reason of conflict of interests of the offender
and society. Punishment prevents such offences by destroying the conflict of interests by
making acts which are injurious to others as injurious to the doer himself.
 This end of criminal justice is achieved by inflicting severe punishment on the offender. The
deterrent theory, therefore, justifies exemplary punishment because it not only dissuades the
offender from repeating the crime but also deters others from indulging into such criminal
activities.
 G.W.Paton also supported this view and observed that deterrent theory emphasizes the
necessity of protecting society by treating offenders in a manner so that others are deterred
from law-breaking.
 It is significant to note that deterrent theory of punishment was supported by Manu, the great
law-commentator of ancient India. Most penal systems made use of deterrent theory as the
basis of their sentencing mechanism till early nineteenth century.
 Particularly in case of England, punishments were more severe and barbaric in nature. In India
also inhuman punishments such as mutilation, beheading, flogging, branding etc. were in
vogue till the end of eighteenth century.
 The advocates of deterrent punishment hold that ‘fear’ in the mind of perpetrator of crime and
the consequences that could befall on him dissuades from committing the crime.
 The critics of deterrent theory argue that it has proved to be ineffective in restricting crimes.
Undoubtedly, the rigor of deterrent punishment acts as a sufficient warning to the offenders
and also to others but it invariably fails in further evinced (demonstrated) by the fact that quite
a large number of hardened criminals return to prison soon after their release. They seem so
much used to prison life that they have lost all interest in leading a normal life in society. Thus
the object underlying deterrent is unquestionably defeated.
 It must however, be added that despite being harsh and cruel in nature, deterrence as an end of
punishment has not been completely eliminated from the modern sentencing models.
 It may be justifiable when the offence is deliberate, pre-planned and barbaric and a menace to
the safety and security of the society. Particularly, in cases of anti-national conspiracies,
communal violence and multiple murders, deterrent punishment would meet the needs of
justice.
(2) Retributive Theory:
In primitive societies punishment was mainly retributive. It was regarded as an end in itself.
According to this theory, evil should be returned for evil without any regard to consequence. The
theory is based on the rule of natural justice which is expressed by the maxim “an eye for an eye
and a tooth for a tooth”. Thus, the retributive theory suggests that punishment is an expression of
society’s disapprobation for the offender’s criminal act.

JAY GRIGLANI
21
 It is however, questionable whether retribution can be justified on the ground of social policy.
Those who support retributive theory claim that punishment is the appropriate moral response
to criminal acts because the perpetrators (Offender) of the crime deserve to be punished.
 This theory shares a common view with deterrence theory which also defends punishment as
morally just and that the severity of the punishment inflicted (imposed) upon the offender
should be in proposition to the gravity of the crime for which he has been found guilty.
 The supporters of retributive punishment therefore harp upon infliction of bodily pain and
suffering, imprisonment, deportation and even the death sentence which renders the theory
irrational, revengeful and unjustifiably barbaric.
(3)Preventive Theory:
The preventive theory is founded on the idea preventing repetition of crime by disabling the
offender through measures such as imprisonment, forfeiture, death punishment, suspension of
licenses etc.
 G.W.Paton suggests that preventive theory seeks to prevent the prisoner from committing
crime by disabling him.
 This theory does not lay much emphasis on the motive of the wrongdoer but seeks to take
away his physical power to commit the offence.
 It pre-supposes that need if punishment for crime arises simply out of social necessities. In
punishing a criminal, the community protects itself against anti-social acts which endanger
social order in general.
 Fichte observes that, “the end of all penal laws is that they are not to be applied. Thus when
a land owner puts a notice “trespassers will be prosecuted”, he does not want an actual
trespasser and to have the trouble and expense of setting the law in motion unnecessary, his
aim is not to punish for trespass but to prevent it. However, if trespass still takes place, he
shall undertake prosecution in that regard. Thus the real object of the penal law is to make
the threat generally known rather than putting it occasionally into execution. This indeed
makes the preventive theory realistic and humane. It is effective for discouraging anti-social
conduct and a better alternative to deterrence or retribution which now stand more or less
discarded as methods of dealing with crime and criminals.”
 In England, the preventive theory was supported by utilitarian law reformers because of its
humanizing influence on penal law. In their view, it is the certainty of law and its severity
which has a real effect on offenders. The development of the institution of prison is
essentially an outcome of the preventive theory of crime.
 It pre-supposes some kind of physical restraint on the offenders. According to this theory,
murderers are hanged not merely to deter others from meeting similar end but to eliminate
such dreadful offenders from the society.
(4) Reformative Theory:
The reformative theory of punishment emphasis on reformation of offenders through the method of
individualization. It is based on the humanistic principle that even if an offender commits a crime,
he does not cease to be a human being. Therefore, an effort should be made to reform him during
the period of his incarceration.
 While awarding the punishment, the judge must take into consideration the age and character
of the offender, his antecedents (Earlier) and also the circumstances under which he committed
the criminal act.
 Thus as opposed to deterrent theory, the reformative theory aims at socialization of the offender
so that the factors which motivated him to commit the crime are eliminated and he gets a chance
of leading a normal life in the society.
 It must be noted that reformative theory shows a radical development from the earlier theories
and seeks to bring about a positive change in the attitude of the offender so as to rehabilitate
him as a law-abiding member of society. Thus punishment is used as a measure to reclaim the
offender and not to torture him. The theory therefore, condemns all kinds of corporal
punishments.
 The major thrust of the reformist theory is rehabilitation of inmates in penal institutions so that
they are transformed into law-abiding citizens. It focuses greater attention on humanly
treatment of prisoners inside the prison.
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 This theory suggests that instead of prisoners being allowed to idle in jail, they should be
properly taught, educated and trained so as to adjust themselves to normal life in the community
after their release from the penal institution.
 This purpose may be achieved through the agencies of parole and probation which have been
accepted as modern techniques of reforming the offenders all around the world.
 The advocates of this theory justify prisonisation not solely for the purpose of isolating
criminals and eliminating them from the society, but to bring about a change in their mental
attitude through effective measures of reformation during the term of their sentence.
 Undoubtedly, the modern trend is in favor of reformative justice but there is a strong feeling
that the method should not be stretched too far. This methods have proved useful in cases of
juvenile delinquents, first offenders and women.
UNIT – 5
Q -1. Discuss custom as a source of Law. (April 2017, March 2016, Dec 2014, May 2014, Apr
2013)
Custom occupies an important place in regulation of human conduct in almost all the societies. In fact,
it is one of the oldest source of law-making.
 A custom may be defined as a continuing course of conduct which by the acquiescence (Assent)
or express approval of the community observing it, has come to be regarded as fixing the norm
of conduct for members of society.
 However, the importance of custom as a source of law continuously diminishes as the legal
system grows. In other words, with the emergence and growing power of the state, custom is
largely superseded by legislation as a source of law.
 According to Manu, the roots of custom as a source of law in ancient India may be enumerated
under four distinct stages, namely,
(i) Revelation, or the utterance and thoughts of inspired seers (Rishi Munis);
(ii) The utterances of revered sages, handed down by words of mouth from generation to
generation (shruti);
(iii) The approved and immemorial usages of the people; and
(iv) That which satisfies sense of equity and good conscience and acceptable to reason.
 It has been generally said that custom is to society what law is to the state. Each one of them
is the expression and realization, to the measure of men’s insight and ability, of the principle
of rights and justice. The influence of custom on society is similar to that of law on the state.
 Salmond opines that custom embodies those principles as are acknowledged and approved, not
by the power of the state, but by public opinion of the society at large.
 The Judicial Committee of the Privy Council, in Harprasad V. Shivdayal observed that custom
is rule which has obtained the force of law in a particular family or origin due to long usage.
Reasons for Recognition of Custom:
 Custom exists as a law in every country, though it tends to lose its important because of other
sources of law with the change in society.
 The law that originated in England on the basis of prevailing customs is known as the ‘common
law’, which is adopted in the form of Acts of Parliament ever since the sixteenth century.
 Customs are not laws when they arise or practiced by people at large but they becomes law
when the state acknowledges it.
 It is not always necessary that court should recognize all the practices which are prevalent in a
community as a custom. For Example, there is practice among Hindus that the male relatives
of the deceased shave off their heads as a mark of condolence, but if a man does not follow this
BY: - KARAN RAJPUT

JAY GRIGLANI
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custom, the court is certainly not going to punish him. In other words, such customs are not
obligatory.
 On the other hand, there are certain customs which are binding and are enforceable by a court
of law since they have recognition of the state. For Example, Laws on Hindu Marriage,
Succession etc. were originally customs in Hindu society but later on the Govt. of India gave
recognition to these customs in form of Acts or say law. So the courts of law in India can punish
the person for violation of these acts as they have been backed by state in form of law.
 In earlier stages of the development of society before the state came into existence, people were
being governed by the customary laws. The customary law of a particular class or place is that
which is universally followed, without interruption from time immemorial.
 Thus prior to 1850 when civil and criminal laws were not codified, the topics, such as
succession, marriage, adoption, contract, transfer of property and crimes like arson, hurt,
murder, theft, treason were regulated by customary laws in the absence of legislation on these
subjects.
 Custom necessarily involves two conceptions, namely, (i) the conviction or faith; and (ii)
Constant use.
 As Gautama rightly pointed out, “customs of castes and families which are not opposed to the
sacred records have also authority”.
 Manu regarded custom as direct evidence of law. By custom he meant practice of good men
which necessarily involves an element of reasonableness and which is not opposed to public
policy. He emphasized that one should follow the righteous path that has been followed by
one’s ancestors. By following that path, one does not suffer.
 According to Narada, usage is indeed powerful as it overrides the law. Yagnavalkya also stated
that when a country is conquered, its usages, customs and family traditions should be followed
as they were followed before.
 Similar views have been expressed by Brihaspati who said that the laws of place, caste or
family, which have existed from time immemorial, should be followed otherwise people get
agitated.
 Thus the importance of custom as a source of law has been recognized by different
commentators of the ancient Hindu scriptures.
 It must be stated that custom has played a very important role in building up the system of
International law. Art. 38 of the Statute of International Court of Justice provides for the
application of international customs as evidence of a general practices accepted as law.
 In case of West Rand Central Gold Mining Co. V. R., the Court laid down that for a custom to
be recognized as a rule of International law, it must be established beyond doubt that “the
alleged custom is of such nature, and has been so widely and generally accepted that it can
hardly be supposed that any civilized state would repudiate it.
 The diplomatic relations between states under International law are generally regulated by
customary usages and practices which are recognized as a law of nations.
Q -2. Discuss: (a) Kinds of Subordinate Legislation, (April 2017, Dec 2015,
(b) Ratio decidendi. (April 2017, Dec 2014, Dec 2013, Apr 2013)
(c) Obiter Dicta. (Dec 2016, Dec 2014, Dec 2013, Apr 2013)
(a) Kinds of Subordinate Legislation:

Legislation may either be supreme or subordinate. Legislation is supreme when it proceeds from the
sovereign power in the state and is capable of being repealed, annulled or controlled by any other
legislative authority.
On the other hand, subordinate legislation proceeds from any authority other than the sovereign power.
The chief forms of subordinate legislations are as follow: -
1. Colonial Legislation:-
 The British colonies and other dependencies were conferred limited power of self-government
in varying degrees by the Imperial legislature. The colonies in exercise of this power, enjoyed
limited power of law-making. But the laws so made by colonial governments could be repealed,
altered or superseded by the Imperial legislature, namely, the British Parliament. However, after
BY: - KARAN RAJPUT

JAY GRIGLANI
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the passing of the Statute of Westminster of 1931, the self-governing Dominions under the
Crown have been given power to make law independently subject to nominal supremacy of the
British Crown.
2. Executive Legislation:-
 The legislature, i.e. the Parliament quite often delegates its rule-making power to certain
departments of the executive organ of Government. The rules made in pursuance of this
delegated power have the force of law. They may, however, be repealed or superseded by the
legislature as and when deemed necessary to do so.
 Keeton suggests that this species of subordinate legislation has given rise to a vast body of rules
known as administrative law which is commonly called ‘public law’ because it describes the
nature of the activity of the executive department of the government in action.
 In France, it is known as droit administratif.
 Sir Ivor Jennings has defined administrative law as “the law relating to administration which
determines the organization, powers and duties of administrative authorities in the state”.
 Executive legislation in India includes power to make rules, regulations and bye-laws for
administrative matters such as fixing of price, or deciding suitable place for market, taxation,
setting up incorporated bodies etc.
3. Judicial Legislation:-
 In certain cases, legislative power of rule-making is delegated to the judiciary and the superior
courts are authorized to make rules for regulation of their own procedure in exercise of this
power. This is also known as judicial legislation which should not be confused with judicial
precedents where the court formulates a new principle of law through its judicial decision.
 The Constitution of India has conferred the power of rule-making to the Supreme Court under
Article 145. Similar power is conferred on the High Courts under Article 227 of the
Constitution.
 The Supreme Court and the High Court may frame rules and regulations for the conduct of its
business and exercising its supervisory power over the subordinate courts.
 Article 145 empowers the Supreme Court to make rules relating to the following matters:-
(1) For setting up norms for practising lawyers;
(2) For the procedure of appeals and time-limit for such appeals;
(3) For proceedings relating to enforcement of fundamental rights;
(4) For transfer of cases to different High Courts;
(5) For disposal of criminal appeals coming from High Courts;
(6) For laying down conditions for review petitions;
(7) For making rules relating to costs and fees etc.;
(8) For making rules for granting bail, bonds, security etc.;
(9) For making rules relating to stay of proceedings;
(10) For laying down the procedure for the removal of the chairman or a member of the
Public Service Commission on the charges of misconduct.
 The rules framed by the Supreme Court under Article 145 are subject to two limitations,
namely,: (1) They should be under the law enacted by the Parliament, and (2) the approval of
the President is necessary for such rules.
4. Municipal Legislation:-
 The municipal authorities are allowed within their areas to make bye-laws for limited
purposes such as water-tax, land urban cess, property-tax, town planning, public health,
sanitation etc.
5. Autonomous Legislation:-
 The state may occasionally allow private entities or bodies, such as universities, companies,
corporation etc. to make bye-laws for regulating the conduct of their business.
 These bye-laws are framed in exercise of the rule-making power conferred on these bodies
by the state.
(b) Ratio Decidendi:-
 The term ‘ratio decidendi’ literally means reason of the decision which is a general principle
deduced in a case. In other words, ratio decidendi is the rule of law upon which the decision is
founded.
BY: - KARAN RAJPUT
JAY GRIGLANI
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 It differs from the term res judicata which means decision given in a particular case and which
is conclusive between the parties to the case.
 It is well established that doctrine of precedent pre-supposes existence of the hierarchy of
courts. The general rule is that a court is bound by the decisions of all the courts higher than
itself.
 In India, all High Courts of the States are bound by the decisions of the Supreme Court and all
sub-ordinate courts to a High Court are bound by the decisions of High Court. However, the
decision of one High Court is not binding on another High Court and it’s only a persuasive
authority.
 A decision generally has two aspects, namely:-
1. What principle it lays down on the rule of law for which it becomes an authority. This is
generally called the ratio decidendi of the case.
2. What the case decides between the parties. Such matters become res judicata between the
parties and cannot be the subject of further dispute.
 According to Rupert & Cross, ratio decidendi is a rule of law expressly or impliedly treated by
the judge as a necessary step in reaching his conclusion.
 In the opinion of Salmond, ratio decidendi roughly denotes the law applied by and acted upon
by the Court or the rule which the Court regards as governing the case.
 Professor Goodhart has criticized Salmond’s views on ratio decidendi and pointed out that
reason for the decision is not necessarily the proposition of law. According to him, ratio
decidendi is nothing more than the decision based on the material facts of the case.
 The House of Lords by the Judicial Practice Statement, 1966 ultimately held that “the use of
precedent is an indispensable foundation upon which to decide what is the law in its application
to individual cases. It provides at least some degree of certainty upon which individuals can
rely in the conduct of their affair, as well as a basis for orderly development of legal rules. Their
Lordship further ruled that too rigid adherence to precedent may lead to injustice in a particular
case and may also unduly restrict the proper development of law. They therefore, modified the
existing practice and while treating former decision of the House as normally binding, depart
from a previous decision when it appears right to do so.”
 It must, however, be pointed out that even before the Judicial Practice Statement of 1966, The
House of Lords was not bound by its earlier decision in certain cases, namely, decisions given
in ignorance of some statute are not binding on it. Again, the decision given in appeals from
Scotland do not bind the House in deciding appeals from England. Such decisions are also not
binding on English Courts.
 The ratio decidendi of Donoghue V. Stevenson case was that it exploded the doctrine of ‘privity
of contract and held that manufacturer is liable to consumer for his negligence in manufacturing
the goods which is of such a nature that it is incapable of intermediate inspection by the retailer.
The plaintiff was therefore, held entitled for damages caused to her due to decomposed snail
inside the ginger-beer which was being sold in opaque bottle. (A case in Law of torts)
 Keeton holds a view that ratio decidendi is a principle of law which forms basis of decision in
a particular case. The Court can compel the legislature by the modality of stare decisis to change
the law by making the case harder.
(c) Obiter Dicta:-
 Pronouncements of law, which are not part of the ratio decidendi are called as obiter dicta and
they are not authoritative or binding on subordinate Courts. Obiter dicta may be defined as
casual expressions by the Court which carry no weight.
 Obiter dicta literally means something said by the Judge by the way, which does not have any
binding authority.
 Goodhart defines obiter dictum as “a conclusion based on a fact the existence of which has not
been determined by the court”.
 In the course of judgment, a judge may make various observations which may not be relevant
to the case but may be necessary for Judge to explain his observation or conclusion, such
commentaries by Judge are called obiter dicta. For Example, use of hypothetical situation to
explain conclusion of the case.
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Q -3. Discuss: (a) Control of Delegated Legislation, (April 2017, Dec 2015)
(b) Merits and demerits of Codification. (April 2017)
(a) Control of Delegated Legislation:-

In order to ensure that delegated legislation is not misused, it has been subjected to ensure that delegated
legislation is not misused, it has been subjected to three-fold controls, namely, (1) Procedural control,
(2) Parliamentary control, and (3) Judicial control.
(1) Procedural Control:-
 It is not always possible for the parliament to exercise effective control over delegated
legislation. Certain procedural safeguards are therefore, Necessary to keep a constant watch
over the exercise of power by the executive or administrative authorities.
 The methods of procedural control may include:-
(a) Prior consultation of interests which are likely to be affected by the proposed delegated
legislation;
(b) Publication of delegated legislation being made mandatory.
 In United States, prior consultation with the concerned associations, such as Medical
Association or Country Councils Association or Board of Trade etc. is common and interested
parties are given opportunity to express their views on the proposed legislation.
 In India, however, there is no express provision of law for prior consultation but “prior
publication” is essential under section 23 of the General Clauses Act, 1897. Likewise, Section
2 of the Statutory Instruments Act, 1946 makes it mandatory that a statute must be published
as soon as it is laid before the House of Parliament.
 The Supreme Court in Raza Buland Sugar Co. V. Rampur Municipality held that the statutory
provision requiring publication of rules before imposition of tax was mandatory but the manner
in which the rules were required to be published was directory, and as there was sufficient
compliance with the requirement of publication, the rules were held to be valid.
(2) Parliamentary Control:-
 Another method of controlling delegated legislation is to lay it before the Parliament so that
members get an opportunity to discuss and at times amend it.
 In United States, the executive is not responsible to the legislature and therefore, congressional
control of delegated legislation is mostly indirect through requiring the administrative agencies
to submit periodical and special reports etc.
 India also follows more or less the same method. This control is exercised through the
committee on subordinate legislation of both the Houses of Parliament which maintains
vigilance on Government’s rule-making power and scrutinises the rules framed by the
executive.
 The principle underlying Parliamentary control is to keep watch over the rule-making
authorities and provide an opportunity to criticize them if there is abuse of such power on their
part.
 The control so exercised may be in the form of-(i) proceedings in Parliament, or (ii) requiring
the offending provision in the delegating statute to be laid on the table of the legislature, or (iii)
exercise of control by Parliament through Scrutiny Committees.
(3) Judicial Control:-
 Judiciary also exercises effective control on delegated legislation. Whenever a law made by the
executive is found to be inconsistent with the Constitution or ultra vires the parent Act from
which the law-making power has been derived, it is declared null and void by the court. The
Power of examining the validity of delegated legislation is vested in the Supreme Court and the
High Courts.
 In re Delhi Laws Act case, the Supreme Court by majority held that the exercise of delegated
law-making power was invalid because the enabling Act exceeded the Constitutional limits in
permitting the executive to repeal a law existing in the area. In this case the Supreme Court laid
down the grounds on which the judicial control is exercised. The Court ruled that in India the
Legislature cannot delegate its essential functions or power like determination of legislative
policy and enacting that policy into a binding rule of conduct to the executive. However, once
the policy having been laid down by the Legislature and a standard is set by the statute, the
BY: - KARAN RAJPUT

27
executive may be given the power to make subordinate rules within that limit and such
delegation will not be unconstitutional. Thus once the principles affording guidance to the
subordinate law-making body are laid down by the law, the details may be left to be filled up
by the executive or by other authorities with quasi-legislative power.
(b) Merits and demerits of Codification:-
 Writers have expressed different views about codification of laws. Some of them have
commended while others have denied its important.
 The greatest merit of codified law is its simplicity, certainty, uniformity, intelligibility and
logical coherence. It eliminates the chances of personal discretion in deciding cases.
 The main object of codification is to acquaint people with a particular law so that they can
regulate their conduct accordingly and avoid law-violation.
 Pointing out the importance of codification of laws, Sir James Stephen observed, “Well-
designed legislation is the only possible remedy against quibbles (complain) and chicanery
(fraud) and all evils which are created from legal practitioners can be averted by this method.”
 Salmond and Austin have asserted that codification is necessary and useful for the
development of socity.
 Although, Jurists like Pollock, Paton and Savigny have opposed codification of laws.
 Savigny holds that codification not only obstructs natural growth of law but gives rise to several
defects in it such as rigidity etc. He further points out that historically also the absence of
codification was never felt when laws were not codified in early societies.
 According to Paton, codification putrifies the law at the stage at which it is codified and there
is little scope for applying it to new situations unless it is amended or modified.
 Justice Cardozo observed, “The law like the traveller must be ready for tomorrow. It must
have principle of growth”.
 Lord Mansfield opines that codified law cannot be as useful to develop society as uncodified
law is.
 Cockburn observed that as against codified law, uncodified law has at least one advantage that
is its elasticity which enables the administrator to adapt it in to varying conditions of society.
 Despite the shortcomings of codification of laws, it must be accepted that its contribution to the
development of laws has been commendable. In modern time, codification of law has become
one of the essential attributes of an ideal judicial system. Most of the countries have already
codified their laws and they’re constantly revising or amending them to meet the exigencies
(Demand) of time.
 In India, most of the laws have been codified and they have been quite successful in meeting
the needs of the Indian society so far administration of justice is concerned.
Q -4. Discuss concept of Ownership in detail. Discuss significance of ownership in modern social
context. Also discuss characteristic and various modes of acquisition of Ownership. (April 2017,
Dec 2016, March 2016, Dec 2015, May 2015, Dec 2014, May 2014, Dec 2013, Apr 2013)
Ownership is an akin (similar) conception of possession. The conception of ownership seems to have
come into being when the society changed from nomadic to agricultural. This course of development
illustrates the principle that development of law and society are interconnected and therefore one cannot
be understood without the other.
Before entering into the analysis of ownership it is necessary that we should distinguish it from other
similar conceptions. The relation of person with an object can be of following kinds:-
(a) Custody:
 It is a relation of a person to an object in which he has no full control over the thing; in
other words, he has no required animus (instinct) to exclude others.
 For example, when a customer examines a cloth in a shop before the shopkeeper, the
customer is said to have custody of that cloth only.
(b) Detention:
 It is a relation where a person has in fact possession over the thing but due to certain
reasons, law does not recognize it as possession.
BY: - KARAN RAJPUT

JAY GRIGLANI
28
 For example, a servant has the detention over things of his master with him not legal
ownership.
(c) Possession:
 It is relation of a person to an object which law recognizes as possession. This is a relation
of a person to an object which is exclusive or absolute or ultimate. The person who stands
in this relation is called "owner" and he has a right of complete control and enjoyment of
the object.
Definition of Ownership:-
 Hindu Law - Ownership and Property: Correlated Terms:-
 According to ancient Indian Jurists, ownership is a peculiar kind of relation between a
person and a thing. This relation can be looked at from two different angles.
 One can look at it from the angle of the person in whom the bundle of rights over the thing
vests which constitute ownership or he can look at it from the angle of the thing and can
study it as subject to a special kind of control, exercised by a particular person.
 The bundle of rights of a person over a thing gives him the ownership of the thing and
control exercised by the person over the thing makes the thing a property of that person.
Ownership and property are the two aspects of the same relation. These concepts are
mutually interdependent and cannot be fully and clearly understood without the other.
 The view given by Austin and Salmond is very close to Indian view. According to this view
ownership is a relation which subsists of ownership as "a right over a determinate thing
indefinite in the point of user, unrestricted in point of disposition and unlimited point of
duration."
 According to this definition there are three elements of ownership:-
(a) Indefiniteness in Point of User: It is one of the incidents which can be used in a variety of
ways which cannot be defined. There are certain limitations on the owner's power. Law obliges
that an owner should not use his property in such a way as to injure the rights of other persons.
(b) Power of Disposal: The owner has power to dispose of the property. There are no limitations
upon this power. This is considered to be very important incident of ownership.
(c) Unlimited in Point of Duration: It means that right of ownership exists as long as the thing
owned exists. After the death of owner the thing goes to his successors.
 Holland’s Definition:-
 Holland defines ownership as a plenary control over an object. According to him, an owner has
three rights on the object owned, namely:-
(a) Possession, (b) Enjoyment, and (c) Disposition.
Rights of Ownership:
 The main rights of ownership are:
(1) The right of possession of the property owned,
(2) The right of enjoyment of the property. It includes the power to deal with the property as the
owner pleases.
(3) The power to dispose of the property.
Classification of Ownership:-
(1) Corporeal and Incorporeal Ownership:
 The ownership may be of a physical object or of a right. It the subject matter of the ownership
is a physical object, it is corporeal ownership.
 If the subject matter of ownership is a right of copyright or patent, it is incorporeal ownership.
(2) Sole and Co-Ownership:
 The general principle of ownership is that it should vest in one person only. But sometimes two
or more persons have the right of ownership of the same property vested in them at the same
time. When the ownership is vested in one person only it is sole ownership and when it is vested
in more ownership and when it is vested in more than one it is called co-ownership.
(3) Trust and Beneficial ownership:
 Trust ownership is an instance of duplicate ownership. Trust property is that which is owned
by two persons at the same time, the relation between the two owners being such that one of
them is under obligation to use his ownership for the benefit of the other.
(4) Legal and Equitable Ownership:
BY: - KARAN RAJPUT

29
 The distinction between legal and equitable ownership is closely connected with the distinction
between trust and beneficiary ownership but they are not identical. This division of ownership
is recognized in English Law but in India there is no such division. In England two sets of
courts existed-Common Law Courts and Chancery Court or Equity Courts. They have had
separate jurisdictions.
(5) Vested and Contingent Ownership:
 Ownership is either vested or contingent.
 When the title of the owner is perfect, then it is vested ownership. If it is vested ownership the
property is owned absolutely. It implies that the fact is complete in all its parts.
 Contingent ownership is the ownership when the owner's title is yet imperfect, but is capable
of becoming perfect in future on the fulfillment of some condition. In contingent ownership the
property is owned conditionally.
(6) Absolute and Limited Ownership:
 When all the rights of ownership (Le. possession, enjoyment and disposal) are vested in a
person without any restriction (except that imposed by law in the interest of society) his
ownership is absolute ownership. When there are limitations on user or duration or disposal,
the ownership is limited ownership.
Modes of Acquisition of Ownership:
 Hindu Law:
The modes of acquisition of ownership of property are as follows:
(1) Inheritance,
(2) Gain,
(3) Purchase,
(4) Conquest,
(5) Application of Wealth,
(6) Employment and
(7) Acceptance of gift.
Q -5. Discuss Legislation as a source of Law. (Dec 2016, March 2016, May 2015, Dec 2014, May
2014, Apr 2013)
(Read this question with questions on delegated legislation and control)
The term "legislation" is derived from two latin words, "Legis" which means 'Law' and 'Latum' which
means to make. The common meaning of legislation is the making of law. It may be defined as the
promulgation of legal rules by an authority duly empowered in that behalf.
 According to Bentham and Austin, Legislation signifies any form of law making. The term
legislation, should, however, be restricted to that process of legal evaluation which consists in
the formulation of rules of law by the authority appointed by the Constitution for the purpose.
 Gray defined legislation as the formal utterances of the legislative organs of the society.
 According to Salmond, Legislation is that source of law, which consists in the declaration of
legal rule by a competent authority.
Classification of Legislation:
(1) Supreme Legislation.
(2) Subordinate Legislation/Delegated Legislation.
 At present in all democratic countries only a relative small part of the total legislative output
emanates directly from the Legislature and much more extensive in bulk is what is known as
delegated legislation.
Supreme and Subordinate Legislation:
 Usually the legislature enacts a law covering only general principles and policies relating to the
subject matter in question and confer rule making powers on the Government or on
Administrative Agencies.
 In other words, the Legislature makes a Skelton of an Act by providing aims, object and
policies, and the flush and blood is provided by the subordinate authorities by making rules etc.
thereof. For example- Import and Export Control Act, 1947 and Essentials Commodities Act,
1948 are the supreme legislations.
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30
 The Import and Export Control Act contains only 8 sections. The Central Government has built
a vast mechanism of Import and Export licensing through Delegated Legislation promulgated
under the statutes. Similarly the Essential Commodities Act, 1953 contains 16 sections and
Central and State Government promulgated rules and regulations to control the whole operation
of controlling and regulating production, movement, supply, sales and price of a number of
commodities.
Delegated Legislation:
 Delegated legislation means the law made by the executive under the powers delegated to it by
the supreme legislative authority.
 The term 'Delegated Legislation' is used in two senses. It may mean-
(1) Exercise (by a subordinate agency) of the legislative power delegated to it by Legislature, or
(2) The subsidiary rules themselves which are made by the subordinate authority in pursuance of
the power conferred on it by the Legislature.
 In India Subordinate Legislation conveys the idea that the authority who makes legislation is
subordinate to the Legislature.
 The subordinate legislation may be divided into following classes-
(1) Autonomous Law: When the Supreme authority confers powers upon a group of individuals
to legislate on the matters entrusted to them as a group, the law made by the latter is called
autonomic law and the body is an autonomous body.
(2) Judicial Roles: In judicial rules, powers are given to the judicature to make rules for the
regulation of its procedure.
(3) Local Law: In this the local bodies are given powers to make byelaws concerning their local
matters. Local laws are also known as Municipal Laws.
(4) Colonial Law: Colonial laws are the law for the countries, which are not independent and are
under the control of some other state. The laws made by them are subject to the supreme
legislation of the state under whose control they are; thus it is subordinate legislation.
(5) Executive Made Law: A government consists of three organs: Legislative executive and
judiciary. The function of legislative organ is to make laws, that of judiciary to administer
justice and of the executive to execute laws or to run administration. The executive organ in
addition to its usual function does some law making also. This is subordinate legislation. This
power to the executive is delegated by the legislature. This kind of subordinate legislation is
called "delegated legislation."
Reason for Delegated Legislation: Delegated legislation has become imperative due to following
reasons-
(1) Want of Time: Parliament frames only the broad rules, principles and the departments are left
to make rules and to fill in the details due to lack of time.
(2) Technicality of the Matter: With the progress of society things have become more
complicated and technical. All the legislators may not know them fully and hence they cannot
make any useful discussions on it. Therefore, after framing of the general policy by the
parliament the govt. dept. or other bodies who know its technicalities are given the power to
lay down details.
(3) Emergency: During the time of emergency quick and decisive action is very necessary.
Therefore, delegated legislation is necessary in emergency.
(4) Flexibility: To adapt the law according to future contingencies or adjustments which are to be
made in future can be done efficiently and effectively only when a small body is given power
to do so. Therefore, delegation to the departments becomes necessary.
(5) Local Matter: There are matters, which concern only a particular group or locality. Any
legislation on this matter needs the consultation of these groups. Therefore, delegation is
necessary.
(6) Experimentation: Some acts of parliament provide for their coming into operation in different
localities at different periods according to suitability. Therefore, delegation is necessary.
Danger of Delegated Legislation:
 The danger of delegated legislation is that the legislation may be passed in too skeleton a form
and wide powers of action to make new laws may be given.
Safeguards against Delegated Legislation:
BY: - KARAN RAJPUT
JAY GRIGLANI
31
 The following safeguards have been suggested by jurists against delegated legislation-
(1) Parliament Control: The act containing provision for making rules shall be laid on the table
of legislature and these rules shall be laid down on the table before a period of 30 days before
the date of their publication. These rules shall be subject to modifications by the house.
(2) Judicial Control: Judicial control exercises effective control. Delegated legislation will be
ultra-vires if it goes beyond the basic policy.
Advantages of Legislation over Precedent:
(1) Legislation has abrogative power also. It does not create only new law but it can abrogate an
existing law.
(2) For the most part, the operation of legislation is prospective, though it may be retrospective
also, if it is so chooses.
(3) A statute law can lay down law beforehand (In advance).
(4) Coherency and consistency. Statute law is coherent.
(5) Statute law is definite, brief, clear and easily understandable.
 Cardoze says "It is the output of a multitude of minds and must be expected to contain its
proportion of vagaries". The law made by judges has re-developed from precedent. It is every
time restricted to the particular case which gives occasion for its formulation and application.
 According to Salmond, a case law is gold in the mine, a few grains of the precious metal to the
ton of useless matter- while statute law is a coin of the realm ready for immediate use.
Advantage of Precedent over Legislation:

(1) Better Ethical Content:
 Diecy says "the morality of the court is higher than the morality of politicians". It is because
the legislation is generally the product of the will of the politicians who are liable to be affected
by popular passions of the hour. Judiciary law, on the other hand is made in the serene
atmosphere of Courts of justice by persons trained to hold the scales of justice evenly.
(2) Flexibility:
 Sir John Salmond points out that one of the advantages of a system of case-law over enacted
law consists in the greater flexibility of the former. Rigidity is the capital defect of statute law.
 In the case of statute law the letter of the law governs and so the true spirit of the law has
sometimes to be sacrificed. The phraseology employed by a statute may fail adequately to
express its true intent.
 The courts, however, are bound by the lateral expression and it not infrequently happens that
the reason of the law is defeated by strict adherence to the letter. This cannot happen in the case
of precedent for the duty of the Court is to reach the spirit of the decision, the underlying ratio
decident.
 Since it is not the lateral expression but the reason of the rule that matters, analogical extension
is permissible in the case of precedents. The system thus assumes a flexible character and
broadens from precedent to precedent.
Q -6. Discuss:
(a) Kinds of custom. (Dec 2016, Dec 2015, Dec 2013,
(b) Advantages and disadvantages of precedent. (Dec 2016,
(c) Requisites of valid custom. (Dec 2015, Dec 2013, Apr 2013)
(a) Kinds of custom:-

The customs in the wider sense can be classified as follows-
Customs without Sanction: Customs without sanction are those customs, which are non-
obligatory. They are observed due to the pressure of public opinion.
Customs having Sanction: Customs having sanction are those customs, which are enforced
by the state. These are the customs with which we are concerned. These can be divided into
two parts-
(i) Legal Customs.
(ii) Conventional Customs.
BY: - KARAN RAJPUT

32
Legal Customs: Legal Customs operate as a binding rule of law and have been recognized by
the courts and have become a part of the law of land. These customs are enforced by courts and
can further be classified as follows-
General Customs: General customs are those customs which prevail throughout the territory
of the state, though the customs which are treated to be part of law of the land are general legal
customs.
Local Customs: Local customs are those customs which apply to a defined locality i.e. to a
particular district or town. These can be classified as follows -
(b) Advantages and disadvantages of precedent:-
Merits and Demerits of the Doctrine: The doctrine of precedent has assumed a very important
place in modern times. A number of jurists have expressed their views for and against the
doctrine. The supporters of the doctrine put forward the following arguments in support of the
doctrine-
Merits:
(1) It shows respect for the opinion of one's ancestors. Eminent jurists like Coke and Blackstone
have supported the doctrine on this ground. They say that there are always some reasons behind
these opinions, we may or may not understand them.
(2) Precedents are based on customs, and, therefore, they should be followed. Courts follow them
because "these judicial decisions are the principal and most authoritative evidence that can be
given of the existence of such a custom as shall form a part of the common law". Therefore, in
following precedents we follow customs which in their turn have been a general practice or
conduct of the people for a long time, and not only the opinion of a judge.
(3) As a matter of great convenience it is necessary that a question once decided should be settled
and should not be subject to re-argument in every case in which it arises. It will save the labour
of the judges and the lawyers. If the precedents are not followed, every case would go from the
court of the first instance to the highest tribunal causing a lot of delay, expense and
inconvenience to the public. At the same time, it will cause a great impediment in the way of
the administration of justice.
(4) Precedents bring certainty in law. If courts do not follow precedents and the judges start
deciding and determining issues every time afresh without having regard to the previous
decisions on the point, the law would become most uncertain. A good law should always be
certain. This certainty can be brought about only by conferring authority on precedents.
(5) Precedents bring flexibility in the law. Judges in giving their decisions are influenced by social,
economic and many other values of their age. They mould and shape the law according to the
changed conditions and thus bring flexibility in the law.
(6) Precedents are Judge-made law. Therefore, they are more practical. They are based on actual
cases. It is not like statute law which is based on a priori theories. The law develops through
precedents according to actual needs. This development is based on experience. Thus, it is better
suited to fulfill the ends of law.
(7) Precedents bring about a scientific development in law. In a case Baron Parke observed-"lt
appears to me to be of great importance to keep the principle of decision steadily in view, not
merely for the determination of the particular case, but for the interest of law as a science." In
other words, precedents bring logical perfection in law and put the law in the form of principles.
(8) Precedents guide judges and, consequently, they are prevented from committing errors which
they would have committed in the absence of precedents. The law, in precedents, is laid down
after thrashing of the points and argument in great detail. Therefore, it is of great value to the
judges. By following precedents, judges are prevented from any prejudice and partiality
because precedents are binding on them. By deciding cases on established principles, the
confidence of the people in the judiciary is strengthened.
(9) As a matter of policy, decisions, once made on principle should not be departed from in the
ordinary course. When reliance has been placed on a decision and the people have adjusted
their rights and liabilities according to it, they should not be disappointed by an overruling of
such decision. Jessel, M.R., in a case, observed: "Where a series of decisions of inferior courts
have put a construction on an Act of Parliament, and thus, made a law which men follow in
their daily dealings, it has been held, even by the House of Lords, that it is better to adhere to
BY: - KARAN RAJPUT

33
the course of the decision than to reverse them because of the mischief which would result from
such a proceeding. Of course, that requires two things, antiquity of decision, and the practice
of mankind in conducting their affairs."
DEMERITS OF THE DOCTRINE:
(1) There is always a possibility of overlooking authorities. The vastly increasing number of the
cases has an overwhelming effect on the judge and the lawyer. It is very difficult to trace out
all the relevant authorities on every point. There are instances where a decision might have been
different if some precedent would not have been overlooked.
(2) Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court on
the horns of a dilemma. The courts are faced with what an English judge called "complete fog
of authorities". Though there are rules for such contingencies, they are not of much help. The
provision is that the lower court should choose between the two conflicting decisions of a
superior court. But this makes law uncertain, depending on the individual interpretation and
discretion.
(3) A great demerit of the doctrine of precedent is that the development of law depends on the
incidents of litigation. Sometimes, most important points may remain unadjudicated because
nobody brought action upon them.
(4) A very grave demerit, or, rather an anomaly, of the doctrine of precedent is that, sometimes, an
extremely erroneous decision is established as law due to not being brought before a superior
court. This is followed in later cases because courts do not allow the reopening of a question.
Thus, it becomes a settled practice, and if, later on a point is brought before a superior court in
a case, it is obliged to approve it on the principle "that it is not necessary or advisable to disturb
a fixed practice which has been long observed in regard to the disposition of property, even
though it may have been disapproved at times by individual judges, where no real point of
principle has been related".
(C) Requisites of valid custom:-
Essentials of a Valid Custom: Certain essentials have been laid down which must be satisfied
by a custom for its judicial recognition. The essentials which were laid down by the jurists for
the recognition of custom are given below-
Antiquity: A custom to be recognized as law must be proved to be in existence from time
immemorial. Time immemorial means time so remote that no living person can give its origin
or can give incidence concerning it.
Continuance: The other essential for the validity of custom is continuance. If must have been
practiced continuously. It means that custom must have been enjoyed continuously without
interruption. If a custom has been disturbed for a considerable time, a presumption arises
against it.
Peaceable Enjoyment: The custom must have been enjoyed peaceably. If a custom is in
dispute for a long time, in a law court or otherwise, it negatives the presumption that it
'originated by consent as the most of the customs naturally might have originated.
Obligatory Force: For a valid custom it must have an obligatory force, which means that it
must have been supported by the general public opinion and enjoyed as a matter of right.
Certainty: A custom must be certain a custom A which is vague or indefinite, cannot be
recognized. It is more a rule of evidence than anything else.
Consistency: Custom must not come into conflict with other established customs. There must
be consistency among the customs. It is, therefore, axiomatic that one custom cannot be set in
opposition to other customs.
Reasonableness: A custom must be reasonable. Custom gives a good deal of discretion to the
court in the matter of recognition of customs. The degree of reasonableness cannot be judged.
The custom should not be immoral and further the custom should not be contrary to the justice.
Conformity with Statute Law: A custom, to be valid must be in conformity with the statute
law.
 If a custom is having all the essentials given above then it is law otherwise it is not a valid
custom.
Q -7. Discuss Precedent as a source of Law. (Dec 2015, May 2015, May 2014, Dec 2013)
BY: - KARAN RAJPUT
JAY GRIGLANI
34
Precedent is a fundamental principle of judicial practice in the British Common wealth and in the
United States the decision of a Court (quite apart from its intrinsic merit) should have binding force
on judicial tribunals.
Salmond : Precedents 'are' judicial decisions followed in subsequent cases.
Gray: A precedent covers everything said or done which furnishes a rule for sub sequent
practice.
Keeton: A Precedent is a judicial decision to which authority has (in some measure) been
attached.
(1) Civil Law System: Civil law system which is followed in U.S.S.R., Germany, Japan, France
and Latin American countries.
(2) Common Law System: Common law system which is followed in British Commonwealth,
India and U.S.A.
 The Civil law system does not follow the Precedent System. The Doctrine of Precedent was
taken from the British System. Art. 141 of the Constitution of India declares that the law
declared by the Supreme Court of India shall be binding on all Indian Courts.
 Some jurists consider Precedent is not law. Some say that judges do not make law. The role of
judges is to explain and interpret the legislation and not to explain it. Look at the common law
for example, which is exclusively created by judges.
 The whole law of Torts in India is judge-made law. John Austin condemned the practice of
judges making law. Salmond and Gray maintained that law amounting to nothing but the
decisions of the Courts. However, all three agree that precedent is an important source of law.
What is basis of Precedent:
 The judges create the Precedent on the basis of the existing law applicable to the case, if any,
and if there is none, then out of natural justice, equity and good-conscience.
What exactly is a Precedent?
We have in theory accepted the view of John Salmond. However the latest view that Ratio of any case
is a productive and dynamic process's, in fact, applied by our courts.
(1) Original Precedent: Original precedents are those which create or establish original or new.
(2) Declaratory Precedent: Declaratory precedents are those which merely reiterate and apply an
already existing rule or law.
Precedents are further divisible in two classes-
(1) Authoritative Precedent: An authoritative precedent is one which judges must follow whether
they approve of it or not. This is also called a Binding Precedent. Generally, a lower court is
bound by the decision of higher court.
(2) Persuasive Precedent: A persuasive precedent is one which the Judges are under no obligation
to follow, but which they will take into 'consideration' and to which they attach such weight as
it seems to them to deserve. Decisions of a court of co-ordinate jurisdiction are only persuasive.
The Doctrine of Precedent in India: All ancient texts suggest that "That path is the right one
which has been followed by virtuous men. On the basis of this there was the theory of precedent
in India.
British Rule:
 In the beginning there were two types of Courts functioning in British India i.e. Crown Courts
and Company Courts. The Crown Courts were the Supreme Courts and they were established
under the provisions of Regulating Act, 1773 and were functioning in three presidency towns
i.e. Calcutta, Bombay and Madras and these Courts were established under the authority of
Parliament of England the other hand, the Company Courts i.e. Sadar Diwani Adalat, Mofussil
Diwani Adalat and the court head farmer purgana were functioning in mofussil areas of Bengal,
Bihar and Orissa. Both Crown courts and Company Courts were amalgamated under the
provisions of Indian High Court Act, 1861 which established High Courts at Calcutta, Bombay,
Madras and then North West Provinces and so on.
 When the Judicial Committee of Privy Council / King-in-Council became the final Appellate
Tribunal, a new chapter was added in the Indian Legal history and a clear hierarchy of the courts
was established.
BY: - KARAN RAJPUT

35
 There were Presidency Courts (in Presidency towns) and mofussils court (in districts) and
above these Courts was the High Court. The Privy Councilor the King-in-Council was the final
Appellate Court Tribunal for Indians in England.
 Every court was bound by the decision of the superior court. This helped bringing uniformity
and certainty in law because the decisions of Privy Council were binding on all the Courts in
British India.
 Later on, on 1st October, 1937 a Federal Court was established in India under the provisions of
government of India Act, 1935. The hierarchy of the Courts before independence of India was
as under-
(1) Privy Council/Kind-in-council,
(2) Federal Court,
(3) High Courts, and
(4) District Courts.
 Thus, the decisions of the Federal Court were binding on all the courts below. The decisions of
the Privy Council were binding on the Federal Court and the Court below. The Privy Council
was not bound by its n decisions. During British time the Obiter Dicta (things said by the way)
was binding on all the courts British India.
 After independence the Supreme Court of India was established as the highest court of India.
The Article 141 the Constitution enacts that the decision of the Supreme Court is binding on all
the Indian Courts.
 The Supreme Court, sometimes overrules its earlier decisions or in other words, the Supreme
Court is not bound by its earlier decision (Art. 143 of the Constitution). The overruling is not a
good law but if anything is detrimental to the general welfare of the public, the Supreme Court
overrules the same as it has been done by the Supreme Court in Sajjan Singh vs. State of
Rajasthan and Shankari Prasad case. The question before the court was whether the
parliament has the power to abridge or to take away the fundamental rights of the citizens. The
Supreme Court held that yes, the parliament has the power to abridge or to take away the
fundamental rights of the citizens.
 But in Golak Nath case Supreme Court reversed/ overruled its earlier decision and held that
the parliament has no power to take away the fundamental rights of the citizens. The Supreme
Court evolved the Doctrine of prospective overruling and declared that the decision of Golak
Nath case will only be applicable to the future cases. This decision was not given retrospective
operation so that there will be no chaos and confusion among the masses and the whole progress
of the country shall be dashed to ground.
 So the Obiter Dicta declared by the Supreme Court along with the ratio in a particular case is
not binding on all the tribunals/subordinate courts in India as it was being done during British
period (that the Obiter Dicta declared by the Privy Council was binding on all the Courts,
subordinate to Privy Council, in India)
 Hierarchy of Courts under Indian Constitution:
(1) Supreme Court,
(2) High Courts (in each of the States),
(3) District and Sessions Judges Courts (in each of the Districts),
(4) Civil (Civil Judge/Court of Munsif),
(a) Small Cause Court,
(b) Nayaya Panchayats,
(5) CJM (Criminal),
(a) Judicial Magistrate,
(b) Executive Magistrate.
The Application of the Doctrine: The authority of a decision as a precedent lies in its ratio
decidendi. It is, therefore, necessary to know what this ratio decidendi is and how it is
determined.
Ratio decidendi and obiter dictum.
 There are cases which involve questions which admit of being answered on principles. Such
principles are deduced by way of abstraction of the material facts of the case eliminating the
immaterial elements. And as the result the principle that comes out, is not applicable only to
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that case, but to other cases also which are similar to the decided case in their essential features.
This principle is known as ratio decidendi.
 The issues which need determination of no general principles are answered on the basis of the
circumstances of the particular case and lay down no principles of general application. These
are called obiter dictum. It is the ratio decidendi or the general principle, and not the obiter
dictum that has the binding effect as a precedent. But the determination of ratio decidendi and
obiter dictum is not as easy in practice as it appears to be in theory.
 Many eminent jurists have laid down principles and methods to determine the ratio decidendi
of a decision. But the task is full of difficulties.
 Prof. Goodhart has made an elaborate discussion about the structure of a case and has
suggested methods for the determination of the ratio decidendi, but he too has failed in laying
down infallible test. In cases in which the reasons for the decision are not given, or where judges
have come to the same conclusion, but have given different, and, sometimes, contrary reasons,
or where a reason, is only a hypothesis it is very difficult to find out the ratio decidendi. But
this difficulty serves useful purpose also.
 It is for the judge to determine ratio decidendi and to apply it on the case which he is going to
decide. This gives an opportunity to him to mould the law according to the changed conditions
by laying emphasis on one or the other point.
 When an appeal is heard by an even number of the judges and they are equally divided, the
practice is that the appeal is deemed to have failed, and it is the resultant negative which is
regarded as the precedent for the future.
 Precedents are cited not only in those courts, or tribunals where they have obligatory force, but
also where the precedent cited is in any way relevant in answering the question involved. And
relevant decision of a court is a strong argument and it is given a respectful consideration. A
precedent may be cited from any source which is reliable. Generally, the reports are used, and
some reports are considered more authoritative than the other.
 A precedent is not abrogated by lapse of time. With the passing of the time the authority of a
precedent goes on strengthening if the law on that point is not altered by some statute. But very
ancient precedents are, sometimes, inapplicable due to the changed circumstances, and then the
courts resort to 'distinguishing' and get rid of the binding authority of such precedents.
Precedents have been compared with wine, which 'improves with age up to a certain point and
then begins to go off."
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UNIT – 6
Q -1. Define Legal Rights. Discuss concept of Legal Right in detail.

Define ‘Right’ and ‘Duty’ and discuss legal rights with other related concepts. Discuss
classification of Legal Rights and Legal Duties. (Dec 2016, March 2016, April 2017, Dec 2015,
May 2015, Dec 2014, May 2014, Dec 2013, Apr 2013)
Duties:-
 A duty is an obligatory act, i.e., it is an act the opposite of which would be wrong. The duties
and wrongs are generally co-related. The commission of wrong is the breach of duty and the
performance of a duty is avoidance of wrong.
 Duties are of two kinds, namely, (1) Moral, and (2) Legal.
 A duty may be moral but not legal or it may be legal but not moral or it may be both moral and
legal at the same time.
 The duties which are recognized by law are called legal duties.
Classification of Legal Duties:-
Positive and Negative Duties:-
 A duty may either be positive or negative. When law obliges a person to do an act, the duty is
called positive. When the law obliges him/her to refrain from doing an act, it is a negative duty.
 If a person owes a debt to another, he is under a duty to pay-off the amount of debt. This is his
positive duty. The performance of positive duty extinguishes both duty and right.
 The illustration of a negative duty is that if a person has a right to land, others are under
corresponding duty not to interfere with that person’s exclusive use of land. Thus a negative
duty is not capable of being extinguished by fulfilment.
Primary and Secondary Duties:-
 A duty may be primary or secondary. A primary duty is one which exists per se and is
independent of any other duty. For instance, to forbear from causing personal injury to another
is a primary duty.
 A secondary duty, on the other side, is one which has no independent existence but exists only
for the enforcement of other duties. For instance, a duty to pay damages for injury done to a
person, is a secondary duty. A secondary duty is also called a sanctioning or remedial duty.
Absolute and Relative Duties:-
 According to Keeton, a duty is an act or forbearance compelled by the state in respect of a right
vested in another and the breach of which is a wrong.
 Hibbert refers to absolute and relative duties. According to him, absolute duties are owed only
to the state, breach of which is generally called a crime and the remedy for it is punishment.
 Relative duties are owed to any person other than the one who is imposing them, the breach of
which is called civil injury which can be redressed by compensation or restitution to the injured
party.
 Austin also supports the view that certain duties are absolute, that is, they do not have a
corresponding right. For instance, duty towards God or State or a duty not to commit suicide is
absolute. A duty of kindness towards animals is also an absolute duty.
 Dr. Allen also supports Austin’s view that a duty owed to state is absolute and there are no co-
operative rights in the state.
 Salmond, however, rejects Austin’s concept of absolute duty. He says that Rights and Duties
are always correlated and therefore, there is no scope for an absolute duty.
 Gray also denies the existence of an absolute duty.
Legal Rights:-
 Sir John Salmond defines right as an interest recognized and protected by a rule or justice.
 Defining a legal right John Austin observed, “A party has a right when another or others are
bound or obliged by law to do or forbear towards or in regard of him”.
 Holland defines a legal right as “a capacity residing in one man of controlling with the assent
and assistance of the state the actions of others”.
 Ihring also defines right as a ‘legally protected interest’.
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 Some jurists, notably Buckland, Ihring and Salmond suggest that a legal right is an interest or
an expectation guaranteed by law.
 According to Federick Pollok, “right is a freedom allowed and power conferred by law”.
 T.H.Green holds, “rights are powers which it is for general well-being that the individual
should possess”.
 Emanual Kant believes that “right is the authority to compel”.
Legal Right and other related concepts:
According to Salmond, the term ‘legal right and duty’ when used in their wider sense may also mean
liberty, power and immunity. It is therefore, necessary to discuss these concepts in relation to legal
rights.
(1) The concept of duty:-
 Duty is a specie (kind) of obligation.
 Duties are prescriptions of conduct towards the achievement of some end-moral, social or other.
The ends may also determine the form of the prescription.
 According to Professor Fuller, the main attributes of duty may briefly be stated as follow:
(1) It should be general, though limited exceptions are permissible.
(2) It should be promulgated (Declared).
(3) It should be prospective and intelligible (Capable of understanding).
(4) It must be consistent in itself.
(5) It should be capable of fulfilment and associated with inner morality.
 Since duties are only prescribed behavior, it follows that they express patterns of conduct to
which people are expected to conform.
(2) Right and Liberty:-
 Right in another sense may mean that benefit which a person derives from the absence of legal
duty. In this sense it may be called liberty.
 Liberty or privilege denotes the absence of restraint. Liberty of a person consists in his freedom
to do or not to do an act he pleases.
 Liberty or privilege is freedom a person to act or refrain from acting in a manner he likes without
being prevented by law, but he has no right to and he is not at liberty to interfere with the rights
of others.
 Thus a person is at liberty to express his opinion freely on public affairs but he is not at liberty
to defame others.
 According to Austin, liberty and rights are synonymous. He says that, “the liberty of acting
according to one’s wish would be illusory if it were not protected from obstruction”.
 According to Salmond, “rights are what others are to do for me; liberties are what I may do for
myself”. For instance, a person is at liberty to carry on business under his trade-mark but others
should refrain from carrying on business with that person’s trade mark because in that case that
person’s right would be infringed (violated).
 There is no suitable co-relative of liberty as it would be contradictory of right. Hohfeld,
however, suggests that co-relative of liberty is “no right”.
(3) Power and Subjection:-
 Power may be defined as, “an ability conferred upon a person by the law to alter, by his own
will directed to that end, the rights, duties, liabilities or other legal relations, either of himself
or of other persons.”
 Examples are: Right to make a will; power of sale vested in a mortgage; power to sue and to
prosecute; landlord’s right to re-entry etc.
 Salmond holds that powers are of two kinds, namely, public and private.
 Public powers are those which are vested in a person as an agent or instrument of the State.
They include various forms of legislative, judicial and executive authorities.
 Private Powers, on the other hand, are those which are vested in persons to be exercised for
their own purpose, and not as agent of the state.
 The co-relative of power is liability or subjection. For example, the state has power to punish
the offenders, that means the offenders are subject to exercise of that power by the state.
(4) Immunity and Disability:-
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 Exemption from the power of another is called “immunity”. The co-relative of immunity is
disability. The concept of immunity is based on the Latin maxim nemo dat quod non habet
which means disability is based on the part of persons in general to transfer property which they
do not themselves own.
 Just as a power is a legal ability to change legal relations, an immunity is an exemption from
having a given legal relation changed by another. For Example, the President of India is
exempted from legal proceedings till the time he remains on the post of President is an
immunity.
 Immunity arises from the absence of a power in another and in absence of liability in one-self.
On the basis of the analysis of the conceptions of right, liberty, power and immunity, Salmond suggests
that:-
(1) Right is that which other persons ought to do in my behalf;
(2) Liberty is that which I may do without the interference of law;
(3) Power is that which I can do effectively against others;
(4) Immunity is that which other persons cannot do effectively in respect of me.
Classification of Legal Rights:-
Legal rights have been classified by various jurists in different ways. Rights may generally be classified
under the following heads:-
(1) Perfect and Imperfect Rights:-
 According to Salmond, a perfect right is one which corresponds to a perfect duty. It is not
only recognized by law but also enforced by it.
 An imperfect right, on the other hand, is one which though recognized, is not enforceable
by law. A time barred debt is an example of imperfect right.
 The rights of the subjects against the State are also sometimes classified as imperfect rights
because of their unenforceability. It is, however, submitted that this view seems to be
against the accepted legal notions, the reason being that an ordinary imperfect right is
unenforceable because some rule of law declares it to be so whereas rights against the State
are unenforceable not in this legal sense, but in sense that the strength of the law is none
other than the strength of the State itself.
 An imperfect right can sometimes be converted in to perfect right. Thus, where a bond is
unstamped, it creates an imperfect right which is not enforceable by law. But on payment
of prescribed penalty, it becomes a perfect right enforceable by law.
(2) Positive and Negative Rights:-
 A right is distinguished as positive or negative according to the nature of the co-relative duty it
carries with it. In case of a positive right, the person subject to the duty is bound to do something
whereas in case of negative right, others are restrained from doing something.
 The positive right is a right to be positively benefitted but a negative right is a merely right, not
to be harmed.
 A right to receive compensation or damages is an example of positive right. As against this,
right of ownership is a negative right for it imposes on others a negative duty of non-
interference with one’s right of ownership.
 The distinction between positive and negative right can be summarized as follows:-
(1) A positive right corresponds to a positive duty whereas a negative right corresponds to a
negative duty.
(2) A positive right involves a positive act while a negative right involves some kind of
forbearance or not doing.
(3) A positive right entitles the owner of it to an alteration of the present position to his
advantage whereas a negative right seeks to maintain the present position of things.
(4) A positive right aims at some positive benefit but a negative right aims at not to be harmed.
(5) A positive right requires an active involvement of others but a negative right requires only
passive acquiescence of other persons.
(6) A positive right receives something more than what one already has whereas a negative
right seeks to retain what one already has.
(7) A positive right has a mediate and indirect relation to the object while negative right is
immediately related to the object.
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(8) Right to the money in one’s debtor’s pocket is an illustration of a positive right while the
money in one’s own pocket is an example of a negative right.
(3) Antecedent and Remedial Rights:-
 The rights dealt with by substantive law may either be antecedent or remedial. An antecedent
right is one which exists irrespective of any wrong having been committed.
 It is an exceptional advantage granted to the person who is clothed with this right.
 For instance, purchaser of certain goods has an antecedent right over the goods so purchased.
 On the other hand, a right which accrues when an antecedent right is violated is called a
remedial right. Generally, it involves compensation by way of relief for the violent of an
antecedent right.
 Antecedent right may either be right in rem or a right in persona.
(4) Rights in rem or in personam:-
 A real right (right in rem) corresponds to a duty imposed upon persons in general whereas a
personal right (right in personam) corresponds to a duty imposed upon determinate
individuals.
 In other words, a real right is available against the world at large while a personal right is
available against a particular person or persons.
 For example, a person’s right to the peaceable occupation and use of his land is a right in rem
because all the world is under a duty towards him not to interfere with it. But if a person grants
a lease of land to a tenant, his right to receive rent from tenant is a right in personam, for it is
available exclusively against the tenant and none else.
 It is significant to note that almost all real rights are negative and most of the personal rights
are positive though in few exceptional cases a personal right may also be negative.
 The exercise of antecedent rights in rem may be related to:
(1) Right to personal safety and freedom;
(2) Right to control one’s family and dependents or martial right;
(3) Right to reputation;
(4) Right to free exercise of one’s profession, calling etc.;
(5) Right to possession and ownership;
(6) Right to immunity from damage by fraud.
(5) Proprietary and Personal Rights:-
 The aggregate of man’s proprietary rights constitutes his estate, his assets and his property.
They have some economic or monetary significance and are elements of wealth.
 For instance, money in one’s pocket or in bank, right to debt, land, houses etc., are proprietary
rights.
 The personal rights, on the other hand, are elements in one’s well-being. They have no monetary
value whatsoever. For example, right of reputation, personal liberty, freedom from bodily harm
etc.
(6) Rights in re propria and right in re aliena:-
 Right in re propria means right over one’s own property and right in re aliena means right over
the property of someone else.
 The most absolute power which the law gives over a thing is called the right of dominium. This
is real right in a thing which is one’s own, and is called right in re propria. But a man have
rights in property less than full ownership, the dominium being, in fact, vested in another. Such
rights are called rights in re aliena.
 According to Salmond, “a right in re aliena is one which limits or derogates from some more
general right belonging to some other person in respect of same subject-matter. All other rights
which are not thus limited are juria in re propria.”
 For instance, if a person mortgages his house, he has created an encumbrance (interest) by
dividing his proprietary right in the house. The mortgagee is temporary owner of his house. The
mortgagor has right to redeem the mortgage. This right which is now completely detached and
separated from the mortgagor’s complete ownership is encumbered due to mortgage.
(7) Principal and Accessory Rights:-
 The existence of principal rights is independent of any other rights but accessory rights are
anciliary to principal rights and have beneficial effect on the principal right.
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 For example, if a debt is secured by a mortgage, the recovery of debt is principal right while
security is accessory right.
(8) Primary and Sanctioning Rights (Antecedent and Remedial Rights:-
 Primary rights are also called the antecedent or substantive rights. Similarly, sanctioning rights
are also called the remedial or adjectival rights. It may be reiterated that sanctioning rights
originated from some wrong, i.e., from violation of another’s right whereas primary rights have
some source other than wrongs.
 Primary rights can be right in rem. Sanctioning rights are in personam because they result from
violations by specific persons.
 Violation of sanctioning rights may result in penal action. The term “penal action” used in the
context of sanctioning rights does not mean criminal prosecution, it implies civil action in
which the defendant is made to pay compensation by way of penalty.
(9) Legal and Equitable Right:-
 The distinction between legal and equitable right originates from the distinction between law
and equity.
 Prior to the passing of Judicature Act, 1873, there were two distinct co-ordinate systems of law
in England which were called the common law and the equity law. At that time, legal rights
were recognized by the common law courts whereas the equitable rights were recognized by
Court of chancery which was a Court of Equity. This distinction was, however, abolished by
the fusion of the two courts by the Judicature Act, 1873 but the existence of common law and
equity as two distinct branches of law still persists in England. The methods of their creation
and disposition are, however, different.
 The general principle regarding equitable rights is that when there are two consistent equitable
rights claimed by different persons over the same thing, the first in time shall prevail. But where
there is a conflict between a legal right and an equitable right, the legal right shall take
precedence over equitable right even if it is subsequent to the equitable right in origin, but the
owner of the legal right must have acquired it for value and without notice of the prior equity.
This principle finds expression in the maxim, “where there are equal equities, the law shall
prevail”.
(10) Vested and Contingent Rights:-
 A vested right accrues when all the facts have occurred which must by law occur in order that
a person in question would have the right.
 In case of contingent right, only some of the events necessary to vest the right in the contingent
owner have happened.
 A vested right creates an immediate interest. It is transferable and heritable. A contingent right
does not create an immediate interest and it can be defeated when the required facts have not
occurred.
 Paton has commented that when all the investitive facts which are necessary to create the right
have occurred, the right is vested; when part of the investitive facts have occurred, the right is
contingent until the happening of all the facts on which the title depends.
 For example, if a transfer of certain property is acquired by a valid deed of transfer, the
transferee acquires vested right in the property. However, if a property is transferred to a person
upon a condition that he shall be entitled to possession thereof when he attains the age of 21,
the right so acquired is a contingent right. This contingent right shall be converted in to vested
right as soon as the transferee attains the age of 21. A right to share of an unborn child in a
partition suit is a contingent right which shall converted in to a vested right on his being born
alive.
(11) Public and Private Rights:-
 A very radical division of Rights is based upon the broad distinction between the public or
private character of the person or persons with whom the right is connected.
 By ‘public person’ is meant either the ‘State’, or the sovereign part of it, or a body or individual
holding delegated authority under it.
 The term ‘Private Person’ denotes an individual, or collection of individuals however large,
who or each of one of whom, is of course, a unit of the sale, but in no sense, represents it, even
for a special purpose.
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JAY GRIGLANI
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 From aforesaid definition, it follows that a right vested on the state is called a ‘public right’. A
public right is possessed by every member of the public. A private right, on the other hand, is
concerned with only private individuals, that is, both the parties connected with it are private
persons.
 For instance, an assault is a breach of private right of the person assaulted but avoiding military
service (where it is mandatory) is an injury to the state which is a violation of public right.
 There are public and private wrongs in corollary to public and private rights. The public wrongs
are violation of public rights which affects the community as a whole, namely, the state which
are called ‘crimes’. Private wrongs are violation of private rights belonging to individuals and
they are called civil injuries or torts.
 Salmond, however, pointed out that all public wrongs are not crime. For e.g., the breach of a
public trust is a public wrong but is redressible like a civil injury or a private wrong.
(12) Servient and Dominant Rights:-
 A servient right is one which is subject to an encumbrance while the encumbrance which
derogates from it, may be called dominant.
 The land or immovable property for the beneficial enjoyment of which the right exists is called
the dominant heritage and the owner or occupant thereof is called the dominant owner.
 The land or immovable property on which the liability is imposed is called the servient heritage
and the owner or occupier thereof is called the servient owner.
 For example, if ‘A’ as the owner of a certain house has a right of way over B’s land, A’s house
is the dominant heritage and A is the dominant owner and B’s land is the servient heritage and
B is the servient owner.
 Correspondingly, A’s right is dominant right whereas B’s right is servient right.
(13) Jus ad rem:-
 A right which originated from another right is called jus ad rem. That is to say, the person of
heritance has a right to have some other right transferred to him.
 For example, if A contracts to sell his land to B, then B acquires a right against A to have the
land transferred to himself. Here right of B is called the right ad rem. A right ad rem is always
a right in personam in nature.
Q -2. Elaborately discuss the concept of Possession. (Dec 2015, May 2014, Apr 2013)
Discuss:
(a) Elements of possession, (April 2017, Dec 2016, Apr 2013)
(b) Kinds of possession. (April 2017, Dec 2016, March 2016
(c) Modes of acquisition of possession. (Dec 2016,
(d) Adverse possession. (March 2016, Dec 2014, Apr 2013)
(e) Constructive possession. (Apr 2013)
(f) Corpus possessionis. (March 2016, Dec 2014)
(g) Animus possidendi. (March 2016, Dec 2014)
"Possession" is a polymorphous (multiform) term, which may have different meanings in different
contexts. It is impossible to work out a completely logical and precise definition of "possession"
uniformly applicable to all situations in the context of all statutes.
 It is the most difficult conception of the legal theory. Since very early times attempts have been
made to analyze and theorize it and various theories have been given about it. The courts in
their decision on 'possession' have not followed any preconceived theory. This has made the
conception a very complicated one. Therefore, 'possession' is a subject of great academic
interest. At the same time it is of utmost practical importance.
 Possession is an evidence of ownership. Its transfer is one of the chief methods of transferring
owner-ship. The possession of a thing (even if it is wrongful) is a good title against the whole
world except the real owner. That is why it is said that 'possession is nine points of the law'.
Long possession creates ownership by prescription. Possession is the basis or ground of
obtaining certain legal remedies, for example, the possessory remedy. In certain cases the
possessor of a thing can confer a good title on a transferee of it though he himself has none.
Possession plays a very important role in criminal law. In a number of offences against property,
possession becomes the main issue to be determined.
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Why Law Protects Possession?

 A general conclusion can be drawn from the above discussion about the importance of
possession that law protects possession, even if it has been acquired unlawfully.
Rousseau, Kant and Hegel:
 Rousseau, the French philosopher, was of the view that men are born free and equal. Freedom
includes the freedom of will also. In possession individual's will is reflected, therefore, it must
be protected. The Massachusetts Bill of Rights also states to the same effect.
 Kant also held similar view. He says that "the freedom of the will is the essence of man. It is
an end in itself; it is that which needs no further explanation, which is absolutely to be respected
and which it is the very end and object of all governments to realize and affirm. Possession is
to be protected because a man by taking possession of an object has brought it within the sphere
of his will. He has extended his personality into or over that object.
 Hegel is also of the same view. According to him, in possession there is manifestation of
individual's will. Therefore, it is entitled to absolute respect.
 Savigny: The jurists of Historical school have given a different theory of the protection of
possession.
 According to Savigny, possession is protected because every act of violence is unlawful. It
seems that Savigny considers the protection of possession as a branch of the protection of the
person.
 It is submitted that the reason given by Savigny is not very sound, because possession is
protected not only against force but against fraud and other kinds of disturbances also. Certain
other jurists have given their views on similar lines.
Windshield, Ihering:
 The view of Windshield is that the 'protection to possession stands on the same grounds as
protection against injury, and every one is the equal of every other in the state, and no one shall
raise himself over the other;'
 Inhering the great sociological jurist, makes a new approach. According to him, possession is
ownership in defensive. One who exercises ownership in fact (that is possession) is freed from
the necessity of proving title against one who is in an unlawful position.
Holland:
 Holland's approach is still more realistic. He says that the prominent motive in the protection
of possession is probably a regard for the preservation of peace.
 In modern times, following reasons are given for the protection of possession:
(a) Possession is protected for the Preservation of Peace:-
 It is a natural human instinct that he does not want easily to part with what he possessions.
Therefore an interference with possession leads to violence. Thus the protection given to
possession comes to aid criminal law and it prevents a breach of peace.
(b) Possession is protected as a Part of Law of Tort:-
 It was observed in Rogers v. Sphence that 'these rights of action are given in respect of the
immediate and present violation of the possession of the bankrupt independently of his right
of property. They are an extension of that protection which the law throws around the person.
(c) Possession is protected as Part of the Law of Property:
 Sometimes, proof of title is difficult, and sometimes, there are other difficulties of this nature.
In these cases to throw the burden of proving a good title on the person who is in possession
and whose possession is disturbed shall be very unjust. Therefore, law protects possession.
 The law of property makes various provisions to protect possession. For example, any person
acquiring any immovable property or any share or interest in any such property shall be deemed
to have notice of the title, if any, of any person who is for the time being in actual possession
thereof. Section 53-A of the Transfer of Property Act, 1882 also protects possession.
Possessory Remedies:
 As observed earlier possession is a god title against all except the person who has better title.
Therefore, the possession is protected till someone else proves a better title in himself. The law
protects possession or in other words, helps the person in retaining his possession. It helps also
in recovering the possession if it is taken by anybody else from the person in possession
BY: - KARAN RAJPUT

44
unlawfully although the former might be the real owner himself. This remedy (to recover
possession) is called 'possession remedy'. This possessory remedy is provided by statutes.
Possession in Fact and Possession in Law:
 The conception of possession has evolved through a long course of time. In the beginning, it
was only a fact; it meant physical control over a thing. Later on, this fact started receiving
recognition and protection by law. Now, certain consequences came to be attached to this fact
(possession).
 Thus possession included a physical relation with the object as well as its recognition by law.
These aspects are, sometimes, termed as possession in fact, and 'possession in law'.
 In Roman law they called it 'possession civil.' A relationship with an object to be recognized
by law as possession should exist in fact as such in other words, there must be a physical relation
with the object and the person.
 But in certain cases, Due to special reasons, law recognized possession, though it did not exist
as such in act, and in some cases it did not recognize possession though it existed in fact. There
are cases of constructive possession where one person is in possession of the object in fact on
behalf of another; the law recognizes the latter as in possession. The cases in which the law
does not recognize the latter as in possession. The cases, in which the law does not recognize
possession, though it exists in fact, are the cases of detention and custody.
Whether possession is fact or right?
 In this connection one more question arises. 'Whether possession is a fact or a right? Right
means a legally protected interest. The right is a consequence attached by law o a fact or a set
of facts or a state of thing defined by law. When a person is so situated that fact or facts so
defined are complete, that person is said to have the right or rights that are attached to those
facts. Thus the right and fact are closely related to each other. When we speak of possession,
we mean that a defined set of facts exists with a defined relationship between an object and a
person, and therefore, the consequences are attached to such fact or facts. It implies the rights
attached to them, and when we mention rights it implies the existence of certain facts.
Therefore, possession is neither a fact nor a right alone, but it consists of both.
Analysis of Possession:
Roman law:
 The Roman law had its main aim to protect ownership and it was in this connection that the
law regarding possession developed. The Roman law was mainly concerned with developing
a theory to distinguish detention and possession from each other.
 A possessor had two advantages:
(1) First, he had a right to protection by the praetor's interdicts called possessory interdicts.
(2) Second, after the expiry of a prescribed period the possessor could acquire ownership.
 A great amount of discussion has been made about the nature of the distinction between
detention and possession, and various theories have been given as to why law protected only
certain forms of physical control. It is submitted that the law of possession did not develop in
the liens direct by any theory or principle, but it developed on the basis of convenience and
policy. Instances shall be presented later on from the Roman law to show that the laws of
possession are based more on convenience than on anything else.
Savingny's Theory of Possession:
 Savigny said that there are two elements of possession:
(1) Corpus possessionis (popularly known as 'corpus')
(2) Animus domini (known as animus')
 Corpus: by Corpus is meant an effective physical control of the object.
 Savigny explaining it says: The physical power of dealing with the subject immediately and of
excluding any foreign agency over it. .. is the factum which must exist in every acquisition of
possession, as we required to give rise to it; and continuing possession depends rather on the
constant power of reproducing the original relationship at will.
 Animus: by animus is meant the mental element or the intention to hold the object as owner
against all others. In order words, it is a conscious intention to exclude others from the object.
Without this mental state there can be no possession. Savigny's theory explains as to why the
tenant, the borrower, and the agent had not possession of the object let, lent or entrusted to deal
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45
with to them in Roman law. They had an animus domini as they did not intend to hold the object
in their own right.
Savigny's Analysis is Wrong:
 This analysis of possession in Roman law given by Savigny is wrong and it has a number of
weaknesses. He based his theory on the text of a single jurist and interpreted it without putting
it in its proper context. He wrongly assumed that 'corpus' and 'animus', which were required for
acquisition constituted possession itself. He did not mark the change in the conception of
possession, which had taken place in later times. According to his theory, the possession was
lost when either of the elements of possession ('corpus and animus) was lost but in actual parties'
possession continued although one of the elements was lost and, sometimes, it continues even
though both were lost. A number of instances can be produced from Roman law to show this
development.
Ihering's Theory:
 Ihering's theory of possession is more objective and it presents a sociological approach to
possession. He takes up the question as to why Roman law protected possession by means of
'interdicts'. The answer, according to him is that the persons holding property in majority of the
cases would be owners and the possession was attributed to such persons so that the interdicts
might be made available to them.
 Therefore, Ihering says "whenever a person looked like an owner in relation to a thing, he had
possession of it, unless possession was denied to him by rules of law based on practical
convenience." The 'animus' element was merely an intelligent consciousness of the fact. This
theory is more in consonance with the practice in Roman law than Savigny's theory. At the
same time, this theory is flexible. It explains those cases which Savigny's theory found difficult
to explain.
Weakness of Ihering's Theory:
 Though Ihering's theory is greatly superior to Savigny's theory, this too has certain weaknesses.
It looks at possession from the point of view interdicts; it is incapable of explaining the cases
where law refused 'possessory right' to the persons who were in effective physical control.
 The cases in which the persons did not look like owners (in relation to a thing) but for certain
purposes law recognized them to be in possession cannot be explained by Ihering's theory.
Ihering says that such cases are exception but it is submitted that they point out the narrowness
of the theory.
Possession in Common Law:
Possession a Fact:
 As observed earlier, in the first instance possession is a fact to be established like any other
fact. Whether it exists in a particular case or not depends upon the degree of the control
exercised by the person who claims to be in possession. The control must be such a degree as
the person having the control might effectively exclude interference by others. The law has laid
down certain tests to judge whether a particular control is possession or not. When the control
falls short of the standards so established, it is called only custody or detention.
Possession Defined: Various writers, who have analysed and discussed English law, have
defined possession (as its conception is in English Law). Some of the definitions given by them
shall be presented here so that one may understand it clearly.
Holmes:
 Holmes writes 'To gain possession a man must stand in a certain physical relation to the object
and to the rest of the world and must have a certain intent.
Salmond:
 Salmond divides possession into 'incorporeal' and 'corporeal' and defines corporeal possession
as "the continuing exercise of a claim to the exclusive use of it." In this claim, there are two
elements the 'corpus' and 'animus'.
 Pollock, a distinguished writer on the subject says- In common speech a man is said to possess
or to be in possession of anything of which he had the apparent control or from the use of which
he has the apparent power of excluding others.
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46
 Corpus: "Corpus" means that 'there exists such physical contact of a person with a thing as to
give rise to a reasonable assumption that others will not interfere with it. This contact or relation
has two aspects:
(a) The Relation of the Possessor to the other Persons:
 Salmond Says: I am in possession of a thing when the facts of the case are such as to create a
reasonable expectation that I will not be interfered with in the use of it.. .what measure of
security is required for possession. We can only answer: any measure which normally and
reasonably satisfies the 'animus domini'. A thing is possessed when it stands with respect to
other persons in such a position that the possessor, having a reasonable confidence that his
claim to it will be respected, is content to leave where it is." The sources through which such
measure of security can be derived are the physical power of the possessor, his personal
presence, secrecy, custom, respect for rightful claims, the manifestation of 'animus domini' and
the protection offered by the possession of other things (things connected with it) etc.
(b) The Relation of the Possessor to the Thing Possessed:
 About it Salmond says that 'the necessary relation between the possessor and thing possessed
is such as to admit of his making such use of it as accords with the nature of the thing and of
his claim to it."
 Both these are necessary to constitute possession. Paton is also of the same view. He says that,
"in the 'corpus' there are two elements-
(a) The Possessor's Physical Relation to The res:
 Some kind of physical relation with the object is necessary. What should be the measure of the
control as to be considered possession, there are no precise rules about it. The important test is
whether the possessor can make the use of the object as its nature admits. If he can make such
use, he is considered to be in possession.
 Corpus depends upon the nature of the thing- thus whether in a particular case the necessary
physical relation exists or not depends among other things upon the nature of the thing also. By
possession is meant possession of that character of which the thing is capable. Any domestic
animal that is in the habit returning home shall be considered in the possession of the master
although he is wandering during the day.
(b) The Relation of the Possessor to the Rest of the World:
 In addition to the physical control over the res the possessor must have the ability also to
exclude others. This is the possessor's relation to the rest of the world. There are no hard and
fast rules regarding the amount of power required to exclude others. The test is "what is
normally regarded as sufficient, provided that no one else is exercising control to an equal or a
greater degree. The power to exclude others is relative. The main consideration in determining
it is as to how far a society is civilized and legally advanced. In a law abiding society it is an
ability to exclude others.
Animus:
 The corpus (the physical control) alone cannot constitute the possession. "Animus" is also
necessary. It means that there must be an intent, a mental consciousness on the part of possessor
to exclude any interference by others. Some principles about animus are as follows.
 It is not necessary that the animus should be specific; it may be general animus. It means that
the possessor need not have the continuous and present knowledge (animus) of every specific
or particular object forming part of a group or store. If the person has the required animus
towards the group or the store, it extends to the specific or particular part also; for example, if
a person has got a library he might have forgotten the existence of many books but still they
are in possession.
 It is not necessary that the animus should be based on legal claim to the object. The object might
have been taken unlawfully but if such taker has required animus he has the possession of the
object. For example, a thief has possession of the stolen property as real as the owner himself
has.
Some Important Cases on Possession: The following decided English cases on possession will
help in understanding the principle and the concept on possession-
(a) Cartright v. Green: In this case a bureau was delivered to a carpenter for repairs. There was
some money in a secret drawer of the bureau. The carpenter found the money and he
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47
appropriated it. He was convicted for larceny. It was held that the money was not in his
possession until he found it. Here animus was lacking in the carpenter.
(b) Merry v. Green: In this case a person purchased a bureau. He found some money in a drawer,
which he appropriated. He was convicted for larceny on the same principle as laid down in the
above case.
(c) R V. Ashwell: in this case X gave and Y received a guinea in a dark night. Both of them
believed it to be a shilling. Y subsequently discovered that it was a guinea and he appropriated
it. He was convicted for larceny. In appeal to the Court for Crown Cases Reserved the court
was equally divided so the conviction was allowed to stand. The observation of Cave, j., in that
case contains force:' A man has not possession of that, of the existence of which he is unaware."
This view found favor in the following case-
(d) R v. Hudson: In this case the accused received an envelope that was intended for another man
of the same name (as that of the accused). The accused kept it with him for some days and then
opened it. He found inside a cheque, which he appropriated. He was convicted for larceny. It
was held that the cheque did not pass into his possession till he opened the envelope and found
it. The animus was lacking in him before he opened the envelope.
(e) Elwas V. Brigg Gas Co.: In this case the defendant company had taken a lease of some land
belonging to the plaintiff landlord for the purpose of erecting gas works on it. While the land
was being excavated they (defendant) found a pre-historic boat six feet below the surface. It
was held that the boat belonged to the landlord and not to the defendant company. The landlord
being entitled to the land and in lawful possession of the same, "was in possession of ground,
not merely of the surface, but of everything that lay beneath the surface down to the center of
the earth."
So far as the possession of the things lying unattached on the surface of the land is concerned,
the following cases are relevant (law is not still perfectly settled on the point).
(a) Bridges v. Hawkesworth: In this case a pocket book was left on the floor of the shop of the
defendant shopkeeper by a customer. The plaintiff (who also was a customer) found it. He gave
it to the defendant for the purpose of returning it to the real owner when he was discovered. It
was held that the plaintiff, and not the defendant, first acquired possession of the book (and so
it belonged to him in default of the real owner). The defendant did not know of the existence of
the book before the plaintiff found it, therefore the former had no animus and consequently, he
was not in possession of it.
(b) R V. Moor: This case was also decided on the same principle on which the above-mentioned
case was decided. In this case a bank note was dropped in the shop of the accused. The accused
found it and appropriated it knowing full well that the owner could be discovered. He was
convicted of larceny. It means that the accused was not in possession until he actually found
the note because the animus was lacking.
(c) Hannah v. Peel: In this case the decision given in Bridges v. Hawkesworth was followed. A
solider was stationed in a house. The house belonged to a person who had purchased it from
somebody else but he had never occupied it. The solider found a brooch on the top of a window
frame covered with dust. The person who owned the house took it from the solider and sold it.
It was held that the solider was entitled to receive damages from him because he (the solider)
had the prior possession. The owner of the house had no knowledge of the brooch and hence
he was not in possession of it. Therefore, the soldier had a better title. This decision too is
criticized by many on the grounds given in the preceding paragraph.
Rights of the Possessor:
 We have described the importance of possession in the first paragraph of this Chapter and in
that connection we have mentioned some of the rights of the possession also. Now again, the
rights shall be discussed in some detail to give a full idea of it.
Possession has Better Claim Against All Except the Real Owner:
 "Possession" is said to be 'the nine points of the law.' It means that the person in possession of
an object has better claim over it against the whole world except the real owner. This principle
has been very well illustrated in Armorie v. Dalamirire. In this case a chimney boy found a
jewel and took it to the shop of the defendant to know its value. The defendant refused to return
it to the boy on the ground that the boy was not the owner. The boy was allowed by the court

JAY GRIGLANI
48
to recover it from the shopkeeper. The boy being the prior possessor had a better claim to it
against the whole world except the real owner, and as the shopkeeper's claim was not on behalf
of the owner, the claim of the boy prevailed against him.
Possession is a root of life:
 After a prescribed period it ripens into a complete and legal title. Possession is substantive
rights and as such it is transferable and inheritable. The period of the possession of all the
persons claiming under the same possessor is added together to make up the prescribed period
of limitation. The person in possession can sue and get restrained the persons who interfere
with their possession without proving title as owner of the property.
Possession is an Evidence of Ownership: Possession is an evidence of ownership. The
possessor is presumed to be the owner until one proves a better title to it than him. All these
rules and the principles have been recognized in almost all the legal systems.
Kinds of Possession:
Mediate and Immediate Possession:
 Possession is mediate or immediate. Salmond says: "One person may possess a thing for or on
account of someone else. In such a case the latter is in possession by the agency of him who so
holds the thing on his behalf. The possession thus held by one man through another may be
termed mediate, while that which is acquired or retained directly or personally may be
distinguished as immediate or direct."
 He speaks of the three types of mediate possession:
(1) The first mediate possession is that which is acquired through an agent or a servant. The agent
or the servant acquires or retains the possession solely on behalf of his principal or the master
without claiming any interest of his own in the object. In such cases though the immediate
possession is with the agent or the servant, the mediate possession is with the principal or the
master.
(2) The second mediate possession is where an object is held by a person who holds it on his own
account as well as on another account but recognizes the superior right of the latter who can
obtain it whenever he choose to demand. The person having this superior right is in the mediate
possession of the object. For example, if someone has borrowed a book from me I am in the
mediate possession of the book.
(3) The third type of mediate possession exists where the immediate possession of the object is
with a person who has a claim over the object until sometime has elapsed or some condition
has been fulfilled. He acknowledges the title of another for whom he holds the object and is to
deliver the object to him after his claim has come to an end (by lapse of the time or the
(fulfillment of the condition).
Corporeal and Incorporeal Possession: Again, a distinction is made between corporeal and
incorporeal possession. Corporeal possession is some form of continuing relation between a
person and a material object. It is a relation of fact and not of right. It is only a title or right and
is not itself a right "Incorporeal possession" is the continuing exercise of a claim to anything
else (than the material object). The thing so claimed may be either the non-exclusive use of a
material object (for example, a way or other servitude over a piece of land) or some interest or
advantage unconnected with the use of material object; for example, a trade mark, a patent, or
an office of profit. In short the corporeal possession is the possession of an object, and the
incorporeal possession is the possession of a right
 It is submitted that this distinction is not of much practical importance, nor it is very sound. The
possession of an object (corporeal possession) implies certain rights over the object and the
possession of a right (incorporeal possession) brings into picture some object over which or
where the right is exercised. Therefore, really speaking the difference between the corporeal
and the incorporeal possession is only that of the degree and not of the substance. It is on this
ground that Ihering observes that 'both forms of possession consist in the exercise of a right'.
 There are three modes of acquisition of possession-
(a) Taking:
 It implies an act exclusively on the part of the person who takes the possession. Taking is
"original" or "derivative". The original taking place when the object has no previous owner as
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49
res nullius (when a man catches a wild animal). When the possession of a thing is taken which
has already a previous owner it is 'derivative' taking. Here taking means acquiring possession
without the consent of that previous owner or possession.
(b) Delivery:
 Delivery means voluntary relinquishment of possession by a person in favor of another.
Delivery may be actual or constructive. Actual delivery means the transfer of immediate
possession. A delivers a watch to B. This is actual delivery of possession to B. All that is not
actual delivery is constructive delivery. The delivery of the key of house with the intention of
delivering the possession of the house is the constructive delivery of the house.
(c) By operation of law:
 A third mode of the acquisition of possession is by operation of law. It takes place when by the
operation of law goods are removed from the possession of one person to the other.
 For example, when a person dies the things in his possession pass to his personal representative.
Q -3. Discuss:
(a) Legal Person and theories of Corporate Personalities. (May 2015, April 2017)
(b) Difference between Ownership and possession. (March 2016, Dec 2014)
(a) Legal Person:-

 The word 'person' is derived from the Latin word 'persona' . This term has a long history. To
begin with, it simply meant a mask. Later on, it was used to denote the part played by a man in
life. After that, it was used in the sense of the man who played the part. In later Roman law, the
term became synonymous with caput. A slave had an imperfect persona. Last of all, the term is
used in the sense of a being who is capable of sustaining rights and duties.
The Nature of Legal Personality:
 'Personality' in the philosophic sense means 'the rational substratum of a human being.' In law
means a 'right and duty bearing unit.'
 Personality should be distinguished from humanity. Humanity means only the natural human
beings but personality has a technical meaning and it includes inanimate objects also. Thus
personality is wider than humanity.
 Sometimes, humanity and personality coincide and, sometimes, they do not. There are human
beings who are not persons in the legal sense, such as slaves (in early times). In the same way
there are legal persons who are not human beings, such as an idol or a corporation.
Persons of Two Kinds, Natural and Legal:
 Persons are of two kinds: natural and legal.
 Natural persons means human beings.
 Legal persons mean beings and things which are treated as persons by law. Thus 'legal person'
includes those things which are treated in the same way as human beings for the legal purposes.
Natural Persons:
All Human Beings not Legal Persons:
 All human beings are not legal persons.
 In olden days the slaves were not considered legal persons. They were treated as chattel of their
masters.
 In ancient Hindu Law, persons having certain physical disabilities were considered as
disqualified to inherit property. Manu said-(Impotent persons and outcastes are excluded from
a share of the heritage; and so are persons born blind and deaf: as well as mad men, idiots, the
dumb and those who have lost a sense or a limb). Lunatics and infants have only a restricted
legal personality.
 In modern times, with very few exceptions legal personality is granted to all the human beings.
The legal personality granted to a human begins at birth and ends with the death.
Personality Starts with Birth:
 When a child is born alive, he is considered to be a person in the eye of law. Such child (in the
womb) is considered as a life chosen to form part of the period in the rule against perpetuities.
In Hindu law, a child in womb is considered in existence (in case of partition) and he inherits
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50
the property if he is born alive. If a partition takes place among the co-parceners (while the
child is in womb), a share is to be reserved for him.
 If the share is not reserved then the partition would reopen and the new born boy would take
the same share which he would have taken if he was born before the partition.
 Apart from these rights, he is considered to be capable owning personal rights also. If a pregnant
woman is awarded death sentence, the execution of the sentence shall be postponed till she is
delivered of the child.
 Abortion and child destruction are crimes.
Personality Ends with Death:
 Certain Rights Protected after Death:
 The rights are generally created at birth and they extinguish at death. But the law, in certain
matters, recognizes and protects the desires and interests of the deceased.
 There are three rights in this respect, i.e. about the deceased's body, his reputation and his estate,
Law secures decent burial for all dead men and the violation of a grave is criminal offence. In
certain societies law permits the creation of trusts for worship at the tomb of the deceased and
it enforces such trust.
Animals:
 Animals have no Legal Personality:
 Animals are not persons in the eye of law and, therefore, they are not subjects of legal rights
and duties.
 In ancient times, animals for some purposes, were treated as persons. There are a number of
instances of this kind in ancient Indian stories where animals were sued in courts. But in modern
times, no legal system recognizes animals as persons. Therefore they have no rights and
liabilities.
 The human acts which are considered by law as wrongs against animals are, really speaking
not wrongs against the animals, but are wrongs either against the person who owns that animal
or against the society. In India, cruelty against animals (as defined in various statutes) is an
offence, but at the same time this duty is not a duty towards the animals; it is a duty towards
the society or the state. In our country a trust for the benefit of animals can be legally created.
 Legal Person:
 Salmond says, "A legal person is any subject-matter other than a human being to which law
attributes personality." It includes an object, a mass of property, an institution, a group of human
beings etc.
 Law treats them as right and duty bearing units or entities likes a natural person. It is a fiction
of law that they are treated as persons.
 The law in creating legal persons personifies some real thing or object and then confers upon it
a fictitious personality. The former can be called the corpus and the latter the animus of the
legal personality.
 Though legal personality, first of all, requires personification, (the use of) a personification in
common speech does not mean that the legal personality has been conferred upon it. We speak
of a bench (of judges) or a cabinet of (ministers) as a person but they have no legal personality.
 Legal personality is attained when law recognizes a single entity over and above the group of
the individuals or the thing which represents the group of the individuals or the thing is district
from them.
 There is a clear distinction between the individuals who compose the group (corporation) and
the group or corporation as a legal person. A company (it is a legal person) might go bankrupt
but the shareholders would retain their millions.
Evolution of Corporate Personality:
 Roman Laws:
 The idea of legal personality can be traced in Roman and ancient Hindu laws. The ancient
Roman society was undeveloped and its organization was not very complex; therefore the
problem of legal personality did not bother them much.
 The family was the unit of the society. Though family consisted of a number of individuals, all
the powers were centered in 'peter familias. He represented the whole family; therefore, there
was no theoretical difficulty about his position.
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51
 English Law:
 In England there are two main types of juristic persons: (1) Corporation Sole; and (2)
Corporation Aggregate. The origin and the course of evolution of the two are quite different;
therefore, it necessitates their discussion separately.
 Corporation Sole:
 Corporation sole is defined as an "incorporated series of successive persons". The concept of
'corporation sole' seems to have come into existence somewhat accidentally, and comparatively
late.
 It came into being to solve the problem of the devolution of land held by ecclesiastics in right
of their ecclesiastical office. Later on, the same theory was applied on certain public offices. In
some cases this was done through special statutes.
 A very popular example of 'corporation sole', in England, is the King. He is so by common law.
There is a distinction between the king as an individual and the king as the head of the state. In
the later capacity he is a corporation sole.
 The King never dies' and 'the King is dead, long live the King' are based upon the King's
position as 'corporation sole'. The distinction between the two capacities of the king is drawn
in the Crown Proceedings Act, 1947. Commonwealth has created another peculiarity in the
personality of the King. The Crown is considered as the symbol of the unity of the
Commonwealth nations. It means that for some purposes the Crown is regarded not as one
person, but as a unity or combination of many personalities, each representing one part of the
Commonwealth (except the countries which are republics).
 Other examples of Corporation sole are the Post Master General of England, the Solicitor of
the Treasury etc. They have been made Corporation Soles by special statutes. In Continental
law there is no such concept as 'Corporation Sole'.
 Corporation Aggregate:
 'Corporation Aggregate' means "an incorporated group of coexisting persons". The personality
is conferred upon groups by law.
 In the thirteenth and the fourteenth centuries, in England, there were various kinds of groups
such as 'boroughs' and 'merchant guides'. Though they possessed corporate characteristics, they
had no legal personality.
 Even in the time of Bracton the concept of corporate personality had not occurred to jurists. It
was in the sixteenth century that the idea of incorporation took birth and it developed very fast.
 By the time of Coke it was established that the corporations cannot arise at their own initiative.
There must be some constitutive act or authority to create a corporation. They could be created
either under common law, or by a Royal Charter, or by a statute, or by prescription.Thus, in
every case there must be some lawful authority for their incorporation.
 Apart from the corporations ('corporation sole' and 'corporation aggregate') the legal personality
has been conferred upon certain objects and things also. A fund dedicated for a special purpose,
such as a trust, or a charitable fund is a legal person. Certain objects or institutions, such as a
church or a university are also legal, persons.
Indian Law:
 Coparcenaries:
 In ancient India, like Roman law, the concept of legal personality was not clearly understood
nor was there any necessity for it.
 The coparcenary system of Hindu law may be considered to be more or less a corporation. The
head or the karta of the family acted in a representative capacity and in this capacity he sued
and could be sued.
 There were many kinds of groups also where some members of it acted in a representative
capacity. But they cannot be said to be legal persons in the modern sense of the term.
 Corporations:
 However, in ancient Hindu system some form of corporation was recognized. We find its
evidence in certain texts, as:
 Among heretical sects, trading corporations, trade guilds, unions, troops, tribes and other
associations the King should maintain the conventions, as also in regard to fortified towns and
the open country Narada.
BY: - KARAN RAJPUT
JAY GRIGLANI
52
 Whatever is obtained by a member of the corporation shall belong to all in common-

Brihaspati.
Idols and Funds:
 Idol was considered to be juristic person. It owned property. It could sue and could be sued.
 A fund dedicated for a religious purpose was also of the nature of a legal person. It had certain
rights and received certain protection from law, such as the property dedicated to a math.
State:
 State is a juristic person. It can sue and can be sued. Article 300 of the Indian Constitution
provides that the government of India may sue or be sued by the name of the Union of India
and the Government of State may sue or be sued by the name of the State.
 In Civil Procedure Code, 1908, provision has been made for making parties in suits by and
against the State.
 Idol:
 Idol is a juristic person and as such it can hold property. But it is treated as a minor and Pujari
or somebody else acts on its behalf as its guardian.
 Mosque is not a juristic person. In a Lahore judgment, it was held that a mosque was a juristic
person and could sue and be sued, but in the Masjid Shahid Ganj Case it was decided by the
Privy Council that suits cannot be brought by or against mosques, for they are not 'artificial'
persons in the eye of the law. However, they left the question open whether a mosque could for
any purpose be regarded as juristic person'.
Mosque:
 A mosque is not a juristic person.
 In Maula Buksh v. Hafiz-ud-din, it was held by the Lahore High Court that a mosque was a
juristic person and could sue and be sued.
 In the Masjid Shahid Ganj case, it was decided by the Privy Council that suits could be
brought by or against mosque as they were not artificial persons in the eye of law.
Companies, Associations and Groups:
 Companies, associations and many other kinds of groups are legal persons. They have been
expressly so recognized in a number of statutes. Theories of Corporate Personality
Theories of Corporate Personality:
Divergence between Theory and Practice:
 There are various theories of corporate personality which have attempted to theorise the nature
of authority of it. This might make one to gather that theoretically all the legal problems
regarding juristic persons have been fully explored but this is not true.
 There is a great divergence between theory and practice. Anyone theory alone is not capable of
solving the problems fully.
 Therefore, the courts have not followed anyone theory consistently.
Following are the principal theories of corporate personality:
(1) Fiction Theory:
 This theory says that only human beings can property be called 'persons'. Same kinds of groups
etc. are regarded as persons for certain purposes only by a fiction of law and they have no real
personality.
 Main supporters of this theory are Savigny, Salmond and Dicey. This theory is most applicable
to English Law where the courts have not proceeded on any hard and fast principle in their
recognition of juristic persons. There is much flexibility in the theory and it can accommodate
the various decisions (which are sometimes divergent also) on legal personality.
 This theory is very popular because it is not based on any metaphysical notion or argument. It
is argued on the basis of this theory that as a juristic person has only a fictitious will, it cannot
commit crimes.
(2) Concession Theory:
 This theory is allied to the 'fiction theory'. The supporters of both theories are almost the same
jurists.
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53
 This theory says that corporate bodies have legal personality only to the extent granted by law.
Here law means the state. In other words, the law is the exclusive source or authority which can
confer juristic personality.
 Though this theory states a truism, by leaving the creation of juristic personality absolutely at
the discretion of state, it leaves room for mischief.
 This theory has been used in many cases to suppress autonomous institutions. It differs from
the fiction theory in one important respect. It is this that the former identifies law with the state
which the latter does not.
(3) Realist Theory:
 This theory has another name also, i.e., 'organic theory'. The main exponent of this theory is
Gierke; Maitland also supports it.
 This theory says that a group has a real will, real mind, and a real power of action. A corporation
has all characteristics which a natural person has. Therefore, juristic persons are real in the same
sense in which human beings are. Legal personality is not fictitious, nor it depends upon state's
recognition.
(4) Bracket Theory or Symbolist Theory:
 This theory says the members of the corporation are the only persons who have rights and
duties. The granting of juristic personality means putting a bracket round the members in order
to treat them as a unit. This is done for the purposes of convenience.
 In order words, juristic personality is only a symbol which helps in effectuating the interest or
the purpose of the group. The theory speaks great truth when it says that the groups are only to
effectuate the interest of its members, but it has certain weakness also.
 The contention of the theory that only human beings have personality and not the group is far
from the truth.
 In modern times, it is agreed on all heads and is fully established that corporation has a legal
personality which is separate and distinct from its members and it has entirely different rights
and duties. It is the separate personality that enters into contract and other legal transactions
with others.
Problems of Corporate Personality:
 A corporation is, in law, quite distinct and separate from the members who compose it. Its rights
and liabilities are different from those of the members. A shareholder of a company can legally
enter into a contract with the company as such. Shareholders might be entirely changed, or their
number might greatly reduce, but it would make, in no way, any change in the identity of the
company. The company might go bankrupt but the shareholders would retain millions.
 The real positions of a company can be understood only if 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 separate property of the partners is liable
for the debts of the firm.
 Change of anyone partner causes the reconstitution of the firm. There can be firm of only one
partner, whereas a company may be of only one member. This special position of the company
is due to the fact that a company is a juristic person; therefore, it is distinct and separate from
its shareholders but the unincorporated firm is not a juristic person; therefore, it does not have
the above mentioned advantages.
Salomon v. Salomon; Farrar v. Farrar:
 In short, the essential character of the corporation is that it has a distinct personality from its
members.
 In Salmon v. Salomon and Co. Ltd.' (a leading case on the point) the House of Lords refused
to identify the company with its shareholder. It was held that 'he could claim the preferential
rights of a bondholder against the company which was in reality he himself, to the detriment of
genuine creditors'.
 Again, in Farrar v. Farrar Ltd. it was held: "A sale by a person to corporation of which he is
member not either in form, or in substance is a sale by a person to himself, the idea is that the
corporate body is distinct from the persons composing it. A sale by a member of a corporation
to the corporation itself is in every sense, valid in equity as well as in law."
Principle not Consistently Followed; Lifting the Veil:
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54
 The principle given above has, however, not been consistently followed. "Greater familiarity
with the problems implicit in the incorporations of groups has compelled the courts to retract
from the simplicity of the doctrine of lifting the veil 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 about legal
personality considerably complicated. There have been cases in U.S.A., England and other
countries where courts 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 a corporate person;
or when a corporation has been created to avoid some legal obligation; or when the device of
corporate personality is used to perpetual fraud, as to evade tax; or when it is used to evade a
statue or to delay creditors; or when it is necessary to promote juristic or to obviate inequitable
results.
 In Daimler Co. v. Continental Tyre Co. the House of Lords lifted the veil of legal personality
of a company to discover its nature. The House held the company to be an enemy company as
all its share-holders (with an insignificant exception) and directors were enemies (Germans,
during the World War 1).
Convenience and Policy is the Basis:
 It is thus clear that courts have not followed any theory consistently and have proceeded mostly
according to convenience and on the basis of policy. They have disregarded legal personality
in a number of cases, where law had conferred one, and on occasions they attributed legal
personality to groups where it was not so provided by law (statute).
 In modern times, the law is very lenient (flexible) in conferring legal personality upon groups,
but at the same time it does not hesitate in lifting the veil if it is necessary in the interest of
justice or as a matter of policy.
Reasons for Divergence between Theory and Practice:
 It has been pointed out earlier that there is divergence between the theory and the practice about
legal personality and we have given also the reasons for it. A discussion of the theories and
practical problems has made it very clear.
 The theorizing spirit of the jurists ignoring the practical problems, has also been one of the
reasons for this gulf between theory and practice.
(1) Liability of Corporations in Contract:-
 Limited Power to Enter into a Contract; New Comprehensive Memorandum: For entering into
a contract two things are of vital importance, i.e. the form of the contract and the capacity of
the parties. A corporation has no material existence therefore, it always acts through its agents.
It signifies its assent through its seal. Therefore, the presence of the seal is considered as the
evidence of the assent of the body corporate. Subject to certain exceptions this is general rule.
The form of the contract is same in every case whether the parties are the natural persons or
one or both parties are corporations. So far as the capacity of a corporation to enter into contract
is concerned, in England, it depends upon the source of the creation of the corporation. They
are created either by a charter or by a statute. In common law a corporation created by a Royal
Charter can itself deal with its property in the same manner as a natural person. The power of
a corporation, created by a statute to enter into a contract is limited to what the statute grants.
"Thus a company incorporated under the companies Act is limited in its capacity to the objects
set out in its memorandum of association. Any contract made beyond memorandum is ultra
vires and void, although it is agreed upon by all the members unanimously. Such act (contact)
is incapable of ratification." Such a limitation upon a corporation's power to contract has been
criticized by jurists. However, in modern times, the rule is not working as a great impediment
upon corporation's power because memorandum is drafted very comprehensively. In India,
there is no common law, therefore, the power of corporation to enter into a contract depends
upon the statute.
(2) Liability of Corporations for Torts:-
 As observed earlier, a corporation acts always through its agents. Therefore, liability of a
corporation for the torts is based on the principle of vicarious liability. A corporation is liable
for the acts of its servants done in course of employment. But this rule applies only for those
acts which are intra vires the corporation. The difficulty arises in determining the liability for
the acts which are ultra vires. "The strict view of English law is that if a tram company has no
BY: - KARAN RAJPUT

55
power to run buses, then any bus drivers engaged are not in law the servants of the Company,
and therefore the company is not liable for their torts". Such acts (ultra vires acts) are divided
into two classes-the acts done under the express authority of the corporation and acts done
without any authority.
(3) Liability of Corporation for Criminal Acts:-
 Impossibility of mens rea; Made criminally liable. The earlier view was that a corporation
cannot be made liable for a crime. There are theoretical as well as procedural difficulties. How
mens rea can be attributed to a body corporate? And how it can be punished? were the questions
which created difficulties in holding a corporation liable for criminal acts.
 In England, the procedural difficulties have been removed by statutes and theoretical
difficulties have been overcome partly by statutes and partly by court decisions on the point.
 In D.P.P. v. Kent and Sussex Contractors Ltd., the manager of the company had sent in false
returns for the purpose of obtaining petrol coupons. The Court held the company liable and said
that through its manager the company committed the offence.
 In R. v. C.R. Haulage Ltd. A company was held liable for conspiracy to defraud. Its managing
directors and some others had conspired to practise fraud upon another company.
 In Moor v. Bresler Ltd. The company was held guilty for the criminal act of its secretary.
Offences by Companies:
(1) If the person committing an offence under this Chapter is a company, every person who, at the
time the offence was committed was in charge of and was responsible to the company for the
conduct of business of the company, as well as the company shall be deemed to be guilty of the
offence and shall be liable to be proceeded against and punished accordingly.
(2) Notwithstanding anything contained in sub-section (1) where an offence under this Chapter has
been committed by a company and it is proved that the offence has been committed with the
consent or connivance of, attributable to any negligence on the part of, any director, manager,
secretary or other officer of the company, such director, manager, secretary or other officer
shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and
punished accordingly.
 Explanation for the purposes of this section-
(a) “company” means a body corporate and includes a firm or other association of individuals; and
(b) "Director", in relation to firm, means a partner in the firm. Thus, though some of the problems
regarding the criminal liability of corporation have been solved and some principles have been
established, how far this evolution will go is still uncertain.
(b) Difference between Ownership and possession:-
Possession Fact, Ownership Right:
 This distinction is misleading. Ownership is a kindred (similar) conception of possession;
therefore it will not be out of place to say a few words on the relationship between the two.
 Salmond makes a distinction between the two on the basis of fact and right. "Possession is in
fact what ownership is in right. Possession is the de facto exercise of a claim. It is maintained
by the will of the State as expressed in the law. It is possessed by me, when my claim to it is
maintained by my own self-assertive will.
 Ownership is the guarantee of the law; possession is the guarantee of the facts. It is well to have
both forms of security if possible, and indeed they normally co-exist. It is submitted that a
distinction on the basis of fact and right is not tenable.
 It has been observed earlier that fact and right are not quite separate and independent ideas; one
cannot exist without the other. Therefore, to say that one is fact and the other is right is
misleading. Though there may be difference of degree, both the things, (fact and right) are
present in both the concepts. However, we shall mention the relation and the points of
distinction between the two.
Rights of Ownership Superior:
One changes into the other:
 There are two sets of facts. The right of ownership is superior comprehensive and it includes
the right of possession.
 Generally, ownership and possession coincide and their separation is due to special reasons.
They are very akin to each other and are of the same species.
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56
 Ownership tends to realize itself into possession and possession tends to become ownership.
The one cannot remain divorced from the other for a very long time. Possession for a long time
ripens into ownership and ownership without possession for a long time is destroyed. Rights
called possession and ownership are attached to two different sets of facts.
 The facts to which the right called possession is attached are corpus and animus. The facts to
which the right called ownership is attached are possession of (res nullius), or prescription
(possession of the object for a prescribed period without the consent of the previous owner), or
conveyance from the previous owner of the object.
 Sometimes rights analogous to those of ownership may be given by the legislature to persons
of whom a defined set of facts is true, such as a patentee.
Q -4. Discuss: Distinction between civil and criminal liability. (Dec 2016),
(a) Distinction between civil and criminal liability:-

Kinds of Liability: Liability is either "civil" or "criminal", either "remedial" or "penal". Whilst
criminal liability is always penal, civil liability may be either remedial or penal.
Difference between Civil and Criminal Liability:
(1) Crime is a wrong against the society but a civil wrong is a wrong against a private individual
or individuals.
(2) The remedy against a crime is punishment but the remedy against the civil wrongs is damages.
(3) A third difference between the two is that of the procedure. The proceedings in case of crime
are criminal proceedings, but the proceedings in case of a civil have two different sets of court.
(4) The liability in a crime is measured by the intention of the wrongdoer, but in a civil wrong the
liability is measured by the wrongful act and the liability depends upon the act and not upon
the intention.
Remedial and Penal Liability:
 The liability can again be classified as "penal' and 'remedial'. This distinction has been made
on the basis of the legal consequences of the action against the wrong.
 If after a successful proceeding the defendant is ordered to pay damages or to pay a debt or to
make a specific performance etc., the liability is called 'remedial liability'.
 When after a successful proceeding the wrongdoer is awarded punishment, which may be fine,
imprisonment etc., it is called penal liability.
 The civil liability is generally remedial and the criminal liability in some cases is penal.
Therefore civil liability is remedial and penal both. So far as criminal liability is concerned with
the very few exceptions, it is always penal.
Remedial Liability: This liability is based on the maxim 'ubi jus ibi remedium' (when there is
a right there must be some remedy). When law creates a duty it ensures its fulfillment also. For
the breach of a duty there is some remedy prescribed by law and law enforces it. The exceptions
are the following:
(1) The Duties of Imperfect Obligation: This is the first exception to the rule that a duty is
enforceable by law. A time barred debt is an example of it. Though the debt exists in law, it is
not enforceable. Therefore, there can be no proceedings to compel its payment.
(2) There are some duties that are of such a nature that once broken they cannot be specifically
enforced (in respect of the act done).
 For example, in a completed ingredient in the light of the definition, intention to take the
property is a mental activity where the act originates. The circumstances are: the property must
be movable; it should be taken without the consent of that person; there must be some moving
of the property in order to accomplish the taking of it. The consequence is that the property is
taken out of the possession of another person. A theft would take place when all the ingredients
are complete. When we use the word 'act' as condition of penal liability, it is used in its wider
sense, and not in its limited sense as the movement of the body only.
Penal Liability: The maxim 'actus non facit reum, nisi mens sit rea' (the act alone does not
amount to guilt, it must be accompanied by a guilty mind) is considered to be the condition of
penal liability. Thus there are two conditions of penal liability -
(1) Act, and
BY: - KARAN RAJPUT

57
(2) Guilty mind, or mens rea.

(1) Act: Austin defines act as a 'movement of the will'. It is the bodily movement caused by
violation; a violation being a desire for a bodily movement is immediately followed by such
movement provided the bodily member is in a normal condition.
 The view of Holmes is that an act is always a voluntary muscular contraction and nothing else.
Thus according to both the jurists an act is a willed movement of the body.
 Salmond takes 'act' in a wider sense. He says: we mean by it (act) any event, which is subject
to the control of human will. ' Salmond's use of the word 'event' is of great significance. 'Event'
is not an act in the strict sense nor is movement but Salmond by act means those events which
are subject to the control of human will.
 Act consists of three stages-
(a) Its origin in some mental or bodily: activity or passivity of the doer.
(b) Its circumstances, and
(c) Its consequences
 For example, if we take theft, it has five ingredients-
(1) Dishonest intention to take property,
(2) The property must be moveable property,
(3) It should be taken out of the possession of another person,
(4) It should be taken without the consent of the person, and
(5) There must be some moving of the property in order to accomplish the taking of it.
KINDS OF ACT:
Positive and Negative Acts: When the wrongdoer does an act which he should not do or in
other words, he is prohibited by law not to do it, it is a positive act. When the wrongdoer does
not do an act, which he should do, in other words which he is directed by law to do, it is negative
act. 'Act' includes positive as well as negative act.
Voluntary and Involuntary Acts: If the act is a willed act, it is called a voluntary act but if
the act is not a willed act it an involuntary act. The penal liability is only for voluntary acts.
Internal and External Acts: Internal act means the act of mind and external act means the act
of body. An external act, generally, implies an internal act also but an internal act is not always
translated into an external act. The term 'act' is commonly used for external act, but it should
not be taken to be penal liability.
Intentional and Unintentional Acts: Intentional acts mean an act, which is foreseen and is
desired by the doer of the act. Unintentional act is that act which is not so foreseen or desired,
or in other words, it is not a result of any determination. Generally, by act we mean intentional
act, but intention is not always necessary condition of penal liability and therefore it is not an
essential element in those acts where there is not a condition of liability.
Mens Rea:
Salmond's View: 'Mens Rea' means guilty mind. It is the second condition of penal liability.
Mens Rea is defined 'the mental element necessary to continue criminal liability. In making a
person criminally liable an enquiry into his mental attitude is made. Criminal intention, malice,
negligence, heedlessness, rashness etc. all are included in mens rea. Salmond says that mens
rea included only two distinct mental attitudes of the doer towards the deed- (a) Intention, and
(b) recklessness.
 It means that a man is liable only for those wrongful acts, which he does either willfully or
recklessly.
 Sometimes, inadvertent negligence is also punishable. Therefore, unless an act is done with
anyone of these three mental attitudes the doer is not liable.
External Conduct as the Basis of the Liability:
 Different legal systems have recognized, in different ways this mens rea as the condition of
penal liability. There are degrees of mens rea.
 In German Law, theoretically, various forms of mens rea are recognized and they are
distinguished from each other.
 Historically, mens rea had its origin in the idea of blameworthiness of the wrongdoer for the
wrongful act. But as the aim of the law is to serve more an external purpose than to enquire into
the blameworthiness the mens rea is determined, more or less, on the basis of external conduct.
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58
Therefore, the act is judged not from the mind of the wrongdoer but the mind of the wrongdoer
is judged from the act.
 The law presumes that every man is of the average understanding and judges his act from that
standard. What is an average or reasonable man, more or less, depends upon the idea of the
judge of on him. Therefore, in modern times, mens rea does not mean enquiry into the mental
attitude of the wrongdoer from a subjective point of view, but it simply means that the mens
rea is judged from the conduct by applying an objective standard. Holmes makes out the same
point when he says: "it is not intended to deny that criminal the moral sense of any civilized
community; or to put it in another way, a law of the community would be too severe for that
community to bear.
 It is only intended to point out that, when we are dealing with that part of the law which aims
more directly than any other at establishing standards of conduct, we should expect there more
than elsewhere to find that the tests of the liability are external, and independent of the degree
of evil in the particular person's motives or intentions.
Mens Rea under Eclipse:
 The mens rea has no longer remained the condition of penal liability in its original sense and it
has been replaced by standards, which the law has established. Apart from this change there are
other factors also which have contributed in relegating the importance of mens rea as a
condition of a penal liability.
 Mens Rea or the degree of subjective guilt varies in different classes of offences. For example,
against a charge of kidnapping a girl under the age of 18 an honest and reasonable belief of the
accused that the girl was over 18 is no defence.
 In modern times the law has tended to establish absolute liability. A number of new offences
have been created, and are being created every year by the law in every society to ensure the
smooth running of the community life under the growing complicated social organization. The
rules governing and regulating traffic, electricity and water supply, etc., are the rules of this
kind. In the offences of these kinds for holding a person liable no mens rea is required. But for
these offences there is slight fine and they involve no moral stigma.
From the point of view of the mens rea applied in matters of interpretation -
(1) Where mens rea amounts to intention or knowledge: the wrongs in which the mens rea of
this degree are intentional wrongs, or wrongs committed recklessly or there is culpable
negligence.
(2) Negligence in these wrongs carelessness amounts to mens rea.
(3) Absolute or strict liability in cases of absolute or strict liability mens rea is not a necessary
Condition of liability:
(1) Intention:
 Intention is defined as the purpose or design with which an act is done. It is the "foreknowledge
of the act, coupled with the desire of it, such foreknowledge and desire being the cause of the
act, inasmuch as they fulfill themselves through the operation of the will. An act is intentional
if, and so far as it exists in idea before it exists in fact, the idea realizing itself in the fact because
of the desire by which it is accompanied.
 Holmes says that there are two elements of intention (1) foresight that certain consequence
working as a motive, which includes the act. A criminal intention means an intent to do an act
whose natural and probable ultimate consequences are criminal. Thus when we speak that a
wrong is intentional, it means that the intention is extended to all the three elements of the
wrong (origin, circumstances and consequence). Intention must be distinguished from the other
similar terms.
Meaning of Intention: It means either desire or the consequence of one's conduct, or foresight
of the certainty of such consequence. But the intention does not extend to cover the knowledge
of probable events. A manufacturer who employs workmen has knowledge that some accident
might take place which might kill a workman, but this knowledge would not be taken as an
intention of the employer if any workman is a victim of an accident. Sometimes, the intention
is imputed from the act or the consequence. If a particular act has been done, the law will
presume that the person doing it had the intention to do it without the enquiry as to whether
actually he had the intention or not. This is called constructive intention.
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59
Intention and Motive: Though intention and motive are very close to each other, they are not
the same. Motive is called the ulterior intent. It is seldom that a man commits a wrongful act
for its own sake. The wrongdoer has some end in his mind, which he tries to achieve through
his wrongful act. For example if A fires upon B, his intention is to kill B. A intended to kill him
due to reason that B was contestant against A in an election, and he is likely to win it. A intended
to kill him for ensuring his success by removing B from the election field. This idea of removing
B from the election field is motive of A for doing the wrongful act. Thus generally in
committing a wrong the intent of the wrongdoer is two fold: one is the wrongful act itself, and
the other is that on which the wrongful act proceeds and it is beyond the wrongful act. If we
take the intent in a comprehensive sense, it may be divided into immediate and ulterior. The
immediate intent is coincident with the wrongful act itself. This is intention. The ulterior intent
is beyond the wrongful act. It is motive. Intention is related to the immediate and motive to the
distant object of the act. Motive is the feeling, which prompts the operation of the will directing
an overt act. An act may have more than one motive behind it. For example, if A kills, B his
one motive may be be remove him from election field where he had a stronger support than A,
and second motive may be to take away his (B's) property also.
Malice: Sometimes, malice is also used in law to indicate a similar meaning. It denotes various
things. Sometimes, it is used to indicate a wrongful intention, and sometimes, it means motive-
(1) In murder, it merely means that there is present one of the various forms of mens rea necessary
to constitute the crime;
(2) In certain statutory offences it means that there must be either an intention to cause results of
the particular kind prohibited by the statute, or at least a recklessness which cares not whether
the prohibited consequences occur or not;
(3) Sometimes the word is otiose, a pleading relic, as in the allegation that the defendant
maliciously defamed the plaintiff, since even the proof that there was not malice is not a
defense.
(4) Sometimes, the word Malice means spite or actual ill-will or other improper motive; for
example, malice in this sense may be proved to rebut a defense of qualified privilege in
defamation;
Relevancy of Motive: Motive Generally Irrelevant: Though most of the wrongful acts are
done with a motive, it is not very relevant in determining the liability. It is the immediate intent
(intention or negligence) that is material in the determination of the liability. With some
exceptions, man's motives are irrelevant in determining his liability. An act which is not
unlawful otherwise will not become so because it was done with a bad motive. In the same way
an act which is unlawful would remain the same although it might have been done with a good
and laudable motive. If a person has stolen a single paisa from the pocket of a man, the law will
not exonerate him from the liability although he stole it to purchase milk for his newly born
baby whose mother is dead and who is dying in the house for want of food. Motive is relevant
only in the following cases-
Where motive is the evidence of the evil intent:
 Though the proof of the existence of the motive is not necessary for a conviction, where it is
proved it is an evidence of the evil intent, and it is relevant in the showing that the person who
had a motive to commit the offence actually committed it. Thus any fact is relevant which
shows or constitutes a motive or preparation for any fact in issue or relevant fact.
 Motive is relevant in case of the criminal attempts also. Attempt is an act done with the intent
to commit the offence so attempted. A person is liable for his criminal attempts, as they show
the existence and the nature of motive or ulterior intent and thus motive becomes relevant.
 The ulterior intent or motive is seldom relevant in determining the civil liability. The law looks
to the act alone and not to the motives from which it proceeds. But there are certain exceptions
to his principle. These are cases where it is thought expedient in the public interest to allow
certain specified kinds of harm to be done to individuals, so long as they are done for some
good and sufficient reason, but the ground of this privilege falls away as soon as it is abused,
for bad ends. Therefore in such cases motive or malice is a very essential element in the cause
of the action. Defamation and malicious prosecution are the wrong of this nature.
BY: - KARAN RAJPUT


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1

S.Y.LLB SEM III TEAM ABVP BY: - KARAN RAJPUT

SYLLB SEM III JURISPRUDENCE NOTES BY: - KARAN RAJPUT

Course content/ Syllabus

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Q -1. Discuss in detail Austin’s theory of law.

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Law is a Normative Science; Law Norms are 'Ought' Norms:

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Q -2. Discuss Sociological School in detail. (Dec 2015, May 2014)

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SYLLB SEM III JURISPRUDENCE NOTES BY: - KARAN RAJPUT

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SYLLB SEM III JURISPRUDENCE NOTES BY: - KARAN RAJPUT

BY: - KARAN RAJPUT

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Q -1. Discuss in detail the concept of Justice. (April 2017)

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SYLLB SEM III JURISPRUDENCE NOTES BY: - KARAN RAJPUT

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(a) Kinds of Subordinate Legislation:

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(a) Control of Delegated Legislation:-

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Advantage of Precedent over Legislation:

(a) Kinds of custom:-

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Q -1. Define Legal Rights. Discuss concept of Legal Right in detail.

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Why Law Protects Possession?

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SYLLB SEM III JURISPRUDENCE NOTES BY: - KARAN RAJPUT

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(a) Legal Person:-

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