Jurisprudence notes

1. Function, Nature and Scope of Jurispudence.

Introduction

 Jurisprudence is the study of the philosophy of law or the knowledge of the law and its
applications.

 Bentham is known as Father of Jurisprudence.

 Jurisprudence can cover the law as a whole. so it is not static in nature, it changes with
the change in development of society. 

 The word ‘Jurisprudence’ is orginated from a Latin word ‘jurisprudentia’, which

means ‘science of law’

 ‘Juris’ means law and ‘prudentia’ means ‘knowledge or skills’ .

 It has a long history of evolution from the beginning of the Greek period to Modern
times; it covers all sorts of legal principles of the world.

 However, this concept was known to the ancient Indian legal philosophers as ‘Dharma’.
Through which the law was being practiced in ancient times.

 It contains principles and moral precepts aiming at ensuring the welfare of the society,
especially by the regulation of human conduct.

 The British gradually introduced their well-developed system of law in India.

Meaning

 it is the study of the theories and principles on which a legal system is founded. ‘Juris’
means law and ‘prudentia’ means ‘knowledge or skills’ .

Function

 The core function of jurisprudence is to study the origin of law; From where a particular
law has developed and traces back its origin as to how that law has contributed towards
society.
 The matters related to birth, marriages, death, succession, etc., are equally controlled
through laws. As a result, jurisprudence has a lot of applications in civil life.

Nature of Jurisprudence

 Jurisprudence in its nature, is a different subject. It is neither a procedural subject nor a

substantive subject.
 It is the mainstream of whole law, from where the different laws originate.
  It is not a codified law like the Indian Penal Code, Criminal Procedure Code, or the
Constitution.
 Jurisprudence being an ever-growing and dynamic subject has no limitation on itself.

Scope of Jurisprudence

 According to Justice P.B Mukherjee, “Jurisprudence is both an intellectual and idealistic

abstraction as well as a behavioral study of a man in society.

 It includes political social economic and cultural ideas it covers the study of man
concerning to state and society.

 Every jurist or thinker does not construct his research study on the rules already made but
tries to understand their utility after due consideration. This is the reason jurisprudence
has no limited scope and is a developing subject.

Value of Jurisprudence

 Many times it is said that jurisprudence being an abstract and theoretical

subject, has no use in the day-to-day world. It only contains theories to
study and adopt with no practical implications. But it is not correct or
appropriate to make such a statement. Its utilities are as under:

 Salmond attracted everyone's attention to the fact that tourist students has
its inherent interests like other subjects of law. For so long, the research
work done on jurisprudence may have their effect on contemporary socio-
political thought or idea.

 Jurisprudence also has its practical applicability in one way or the other in
the field of law. It helps advocates in practice to apply and adopt different
legal theories whenever required.

 It is considered as a secondary or subsidiary subject but has a high value

in educational institutions. Jurisprudence is an essential subject for the
study of law. The logical analysis by jurists of legal concepts and
theories broadens the outlook of advocates and sharpens their sensible
technique to look a case effectively. It helps lawyers overlook their
rigidness and formal nature and trains them to work and focus on social
realities.

 The study of jurisprudence helps students, interns, and all practicing

advocates in developing the correct thinking and prepares them for an
honest life ahead. The knowledge of law also helps them to face every
necessity related to human affairs boldly and courageously.
  The study of jurisprudence is not only limited to the development and
evolution of law. The academics who study jurisprudence also make great
contributions to the fields of other social sciences like the political and
social fields. This leads to the overall development of society.

 The study of jurisprudence also helps uncomplicate some of the concepts

and complexities of the legal world. It makes them more manageable and
rational and thus easier to understand. This can also lead to a more
effective practice of law.

 We often call jurisprudence the grammar of the law. It will help a lawyer
the basic ideas and reasoning behind the written law. It helps them better
understand the fundamentals of the law and help them figure out the
actual rule of the law.

 The lawyer and judges can use jurisprudence as a guide to correctly

interpret certain laws that require interpretation. The study of
jurisprudence does not serve only academic purposes. It will help lawyers
and other practitioners in the practical world as well.

 It sharpens their legal knowledge. Also, it trains the mind to find alternate
routes and channels of thought in case of difficulty. The law can mean
more than one thing, and this exploration is a direct effect of the study of
jurisprudence.

2.Explain law as Command of Sovereign.

Law is Command :
 According to Austin, the law is the command of the sovereign to its & the
command implies duty ( Ex:- duties of a good citizen)and sanction
( Punishment)

 The study and analysis of positive law are based upon the law, which is
strictly applied by political superiors to political inferiors or fot its people

 According to Austin The Law is The command of Sovereign towards the

people or political inferiors which imposes the Duties & Sanction on the
people.

 Law = Command +Sovereign + Duty + Saction.

 Law as a "rule laid down for the guidance of an intelligent being having
power over him. This can only be accomplished by a determinate person or
body, since an indeterminate body cannot express wishes in the form of
commands.

E
The basic features of Command theory are:

• Sovereign
 Command
• Duty (imposing duty on political inferiors).
• Sanction.

As per Austin The command from a sovereign can be of 2kind

Command

General Particular

General Command – It is for all the people

Particular command is for particular class of people

The General command is the Law.

According to Imperative Theory of Law, there are three major conditions
to be considered as Sovereign. :
1. The power which the Sovereign holds must be unlimited and should be
undividable.
2. The sovereign must be located and should be identifiable.
3. The Sovereign must provide for commands which be considered as Law.
The Sovereign must be cautious in making their laws as they must do so and
these laws should be made in such a way that the people obey them and follow
them. Sovereign as an entity or body carries both judicial and legislature.
Sovereign does not have any physical appearance. It cannot be touched but can
be felt when people obey the rules and follow them. Thus, the Sovereign is one
of the required concepts for the performance of the legal system in every state
and country.
Nature of Imperative Theory of Law
John Austin divided law into two major parts which are:

 Divine Law
• Human Law

He explains that divine laws are laws given by gods to human and human laws
are laws made by humans for humans.

Devine Laws
Devine Laws do not have any source about their inheritance and are stated to be
beyond the range for a human to reach which makes them above man-made
laws.

Human Laws

Human law is of two types:

 Command of the Sovereign

 Formations through voluntary cooperation or society
According to Austin, law should be a combination of what to do, as well as
what not to do. His idea of law should be specific such that people who obey it
will have clarity in the commands.

Austin follows the Hobbesian idea of law which is straight forward that
acknowledges when you are good and kills when you are bad. According to
Austin law gives no option and everyone is obliged to follow it. This statement
may be harsh and arbitrary but the meaning is true.

Austin prefers to be strict in law because he feels when people are given options
to discuss what law is it leads to chaos and loss of inner peace. This is one of
the reasons which makes Austin oppose morality.
Austin feels that for the formation of a successful legal system there should be
an authority that would act as the supreme force of the nation and are accepted
to be supreme by the people. When the law comes from such a supreme force
people feel connected and will come forward to obey the law. They feel the
person who acts as the supreme as their representatives and a linking pin.
Though Austin opposes morality we cannot completely avoid it. Both society
and law are not only towards removing the bad but also to bring
in good. Therefore many feel that Imperative Theory of Law is incomplete due
to its rigidity.

Exceptions to the Theory of Command,

There are exceptions to Theory of commands, those exceptions are as follows.

• Declaratory or Explanatory Law:Austin said that it is not proper to consider

them as commands because they are just made in order to explain those laws which
are at present in force.
• Laws of Repeal: laws made in order to revoke the existing laws.
• Law of imperfect obligation:The laws do not have active sanction; they could
be law of morality or international laws.

Criticism to Austin Theory

Austin’s theory has been criticized by a number of jurist points of the criticism
against Austin theory of law which are as follows:

1. Custom ignored :-
Austin mainly focuses on the commands that are given by the sovereign are
the laws. But in the earlier times, not the command of any superior but
custom regulates the conduct of the people. Continue to regulate the conduct
of the people, even after coming of the state into existence. Some jurists are
in favour of the customs as laws and they say that laws are not the command
of the sovereign but the custom followed by the people for a long time.

2. Judge Made Law :-

Austin in his theory has not provided any place for judge-made law. In the
course of their duty judges make law by applying precedents and
interpreting the law. Though an Austinan would say that judges act under
the powers delegated to them by the sovereign, therefore, their acts are the
commands of the sovereign body

3. As against the command:-

     Austin believes that the determination of human superiority is the only law-
maker and its commands are laws. But with other historic jurists, Sir Henry Main
criticized Austen’s theory of sovereignty and condemned it. Sir Henry Men
believes that sovereignty does not exist in the determination of human superiority.
According to him, “a large population of influences, which we can call for a lesser
ethic, which permanently shapes, limits or prohibits the real direction of forces by
its sovereign”.

4. This theory makes the sovereign completely absolute:-

     This theory makes the sovereign completely absolute, but in practice, it is not
possible to be completely absolute. In the ancient and medieval era, there were
absolute monarchs. But the monarchs could not remain completely absolute in his
actions and behavior. They were subject to ethics theory, code of conduct, and
investigation of religion. If he tried to violate established moral, ethical, and
religious canons, he was in danger of facing rebellion.

5. This theory is not even applicable to Europe:-

 Austin has claimed that the King-in-Parliament is sovereign in England. But
legally, this claim is not right because neither the king nor the parliament can go to
the extent of becoming completely absolute. Always have to pay attention to the
wishes of the public. The reality is that the public is the ultimate source of power.
It is public which empowers Parliament. This is the reason why elections are held
every five years after the House of Commons. And in the absence of the House of
Lords, the House of Lords is quite ineffective.

6. Power conferring Laws : - Austin didn’t talk about any thing on the power
conferring law like Will, Contract, Marriage contract like laws gives power

7. Conventions & International Law: - International Law & conventions has

been ignored

8. Sovereign :- is not only the source of Law.

9. Sanction , Not the only means to induce obedience

10. Sovereign has unlimited Power:- But it is impossible in the practicality

Discuss the natural law theory? State the criticism the against?

Introduction:

Jurisprudence refers to the study of Law. The word ‘jurisprudence’ is a Latin

phrase “juris prudential” which means ‘knowledge of the law‘. Moreover, it refers
to the law that helps us in understanding, creating, application and enforcement of
the law.

In other words, jurisprudence refers to the theories and philosophies of law. Upon a
clear understanding of the theories and philosophies, it becomes easier to
understand our law.

There are 2 broad sub-categories of jurisprudence. However, the first sub-category

is analytic jurisprudence. This area emphasizes the meanings, uses and application
of legal concepts, such as, ‘what is law?’.

Moreover, the 5 basic schools of jurisprudence are as follows:

1. Historical School

2. Natural School or Philosophical School

3. Sociological School

4. Realist School

5. Analytical School

Natural law is the moral theory of jurisprudence and often states that laws should
be on the basis of ethics and morals. This law also states that law should focus on
what is ‘correct’.

In addition, natural law was found by humans on their disposition of reasoning and
choosing between good and bad. Hence, it is said that this law plays a significant
role in establishing moral and ethical standards.

Natural law is a philosophy of law that focuses on the laws of nature.

Moreover, this school of jurisprudence represents the belief that there are laws
common to all societies. This is irrespective of whether they are written down or
can officially enact.

This school of thought tells us that law is both – rational and reasonable.
Moreover, natural law proposes that laws are more of a logical progression from
morals. Therefore, actions that are morally wrong will be against the law. But also,
actions that are morally right can’t truly and justly be against the law. Natural law
exists regardless of what laws are enacted.

Evolution, Growth, and Decline of the Natural Law

The content and purpose of this law have constant variation from time to time
depending on its usage and functions. The functions and purpose of its usage along
with the needs of the time and circumstances play a crucial role. Therefore, the
evolution and growth of natural law have been through variation over a period of
time.

• Ancient Period (Stage 1)

• Medieval Period (Stage 2)

• Renaissance Period (Stage 3)

• Modern Period (Stage 4)

Criticism:

In 18th century the social contract theory saw its decline. Natural law theory was
reflected by the economic and political changes which had taken place in Europe.
These new changes and developments required concrete and political solutions.
The stupendous growth of natural science and new political theories gave strength
to empirical methods and rejected deductive methods. There were many historians
and philosophers who rejected natural theory by saying that it was just a myth.

Hume showed that the reason understood in the system of natural law was based
on confusion. And neither values nor justice are inherent in nature. According to
Bentham natural law is nothing but a phrase.
He criticised natural law and called it “simple and rhetorical nonsense”. His view
regarding the principle of equality was negative as he said that “Absolute
inequality is absolutely impossible” and absolute liberty is directly repugnant in
any kind of government.

Austin was also against natural law theory and according to him it was ambiguous
and misleading. He says that all the natural rights of the

individuals were created and regulated.

28.Discuss the legal realism? How it is differing from Austin theory of law.

Introduction
Legal realism is theories of Law that,

(1) define what law is and how it works in human cultures without sentimental or moralizing
delusions (descriptive adequacy takes precedence over moralizing sermons).
(2) accept that law is rarely sufficient to justify how courts adjudicate all proceedings before them

(3) compensate for justice and adjudication within the limits of the statute. By ‘legal positivism,’
I mean the interpretation of the essence of the law that H.L.A. Hart formulated most strongly in
196.

(4) Joseph Raz evolved further in the 1970s and 1980s, pursuant to which,    
a) where there is a legal structure, there is a ‘rule of recognition’ which defines
the conditions by which norms are true law.

b) a rule of law is nothing more than a complicated delusion.

This ensures rules and regulatory frameworks are essentially based on officials’ traditional

Legal realism is a naturalist philosophy to law. It is of the perspective that

jurisprudence should imitate the natural science methodologies, that is, relying on
empirical evidence. Assumptions must be put to the test by global findings.

Legal realists conclude that legal science can analyze law exclusively through
natural science’s value-free tools, rather than by metaphysical inquiry into the
essence and purpose of the law, which is different and distinct from the law.

Legal realism, in fact, states that the law can not be isolated from its
implementation, and cannot be easily interpreted. This illustrates the importance of
recognizing the considerations present in judicial decision-making by identifying
the essence of law in fields such as legal decisions issued by judges and their
deference or rejection to the previous precedent and the doctrine to final judgment.

Legal realism is characterized as a type of jurisprudence by its emphasis on the law

as it currently appears in reality, rather than the way it works in the books. To this
end, it addressed mainly the conduct of the judges and the conditions that
behaviour affect judicial decision-making processes.

As Karl Llewellyn states, “Judges stand behind judgements; judges are men; they
have human histories as men.” Therefore, the law did not reside in an abstract
domain with universal laws or values, but rather inseparable from human
behaviour and from the ability with judges to decide the law.

To understand legal actors’ decisions and actions, legal realists turned to the ideas
of the social sciences to understand the human relationships and behaviour that
culminated in a given legal result.
Criticism on Realist theory

The Realist theory had witnessed its heyday from the 1920s to the 1940s. Legal
realism was completely replaced in the 1950s by the movement of legal processes,
which considered law as a process of “reasoned elaboration” and asserted that
appeals to “legislative purpose” and some other well-established legal standards
and norms can provide an accurate response to the most-awaited legal questions.

British law thinker HLA Hart, in his 1961 book The Concept of Law, began with
what other academics viewed as a “decisive blow” to legal rationality, challenging
the statistical philosophy of law that OW Holmes has taken on from other realists.
Hart points out that if a statute is simply a predictor about what courts are about to
do, a judge who is evaluating the legal facts of a dispute before him is actually
thinking, “Why am I supposed to resolve this matter?”

As Hart explains in his theory, that entirely ignores the idea that judges use
legislations/laws to direct their rulings, and not as evidence to determine their final
judgments. Many critics have argued that the realists overstated the
extent to which statute is “riddled” with gaps, ambiguities, and so on. The fact that
most legal issues have simple, clear-cut responses that no lawyer or judge would
dispute is difficult to reconcile with the bold arguments of the realists of
omnipresent legal “indeterminacy.” Many writers, including Ronald Dworkin and
Lon Fuller, disappointed legal realists for their harsh effort to distinguish law and
morality.

Diffent Schools of Jurisprudence.

Introduction
The Latin phrase jurisprudentia, which means “Knowledge of law,” is the source of the English
word “jurisprudence.” Jurisprudence, which refers to the study of law and how it is applied,
encompasses all of the world’s legal norms. In this article, we will study different schools of law
with a few eminent scholars from every school.

Schools of Jurisprudence
Jurisprudence is the theory and study of the law. It examines the origins and principles of law.
Legislation has an implausible notion. Its perception varies from person to person. Everyone has
a different understanding of the law. The five major schools of jurisprudence are:

 Philosophical or natural school

 Historical school
  Analytical school
 Sociological school
 Realist school

Philosophical or Natural School of Law

Since ancient times, it has held a significant position in the fields of politics, legislation, religion,
and morals. It is also referred to as the rule of nature or higher law. According to Dr. Friedman,
the evolution of natural law is indeed a saga about humanity’s inability to achieve ultimate
justice; as a result, as ideas concerning natural law have changed along with society, so have
natural law theories. Natural law once had a divine origin and used to have a religious and
supernatural foundation in the Middle Ages, however today it is firmly rooted in politics and the
law.

The notion of a universal system controlling all men and inherent rights for individuals is the
biggest contributor to the theory of natural law towards the legal system.

Thomas Hobbes (1588-1679) :- The foundation of Thomas Hobbe’s conception of

natural law was the inherent right to the protection of one’s person and property. He presented his
social contract theory about the development of the state. Prior to the “social contract,” man, in
Hobbes’ opinion, lived in perpetual terror and anarchy. Life was “poor solitary, terrible brief” in
the domain of nature. Men voluntarily engaged in a contract and gave up their rights to the
greatest authorities who will defend their lives and property to guarantee their protection.
As a result, the organization of the ruler emerged, subsequently taking the shape of the state. He
defended the ultimate power of the monarch using the doctrine of natural law. He noted that law
depends on the sovereign’s punishments in his well-known book Leviathan. The real law, in his
view, is civil law because the sovereign commands and upholds it. Accordingly, based on the
claims made by the Hobbes theory, it is accurate to state that King is infallible and “Rex is Lex”
as per Hobbes.

John Locke (1632-1704) :- John Locke supported the state’s total supremacy, which
diminished the value of the person. As a result of having seen the Glorious Revolution of 1688,
he revised Hobbes’ prior theory of the state of nature and proposed a new view of the said social
contract. Life in a natural condition, in contrast to Hobbes’ assertion, was joyful and pleasant,
despite the property’s lack of security, as per Locke.
Man has made a social compact in which he gives up some of his rights but not all of them, as is
suggested by Hobbesian philosophy, to ensure the effective safeguarding of wealth.
Consequently, only the right to uphold order and execute the laws of nature was given up by him;
all other natural rights of mankind, such as freedom and existence belonged to him. The goal of
the government and the legislation would have been to uphold and “guard the natural right” of
every person.

Therefore, the state’s laws were lawful and enforceable as long as they served this purpose;
however, if they stopped serving this intent, the people would have every right to revolt & destroy
the state.
Locke argued in favour of individual freedom and a legally constrained authority. Additionally,
Locke’s theory provided support for the laissez-faire philosophy.

Historical School of Law

Friedrich Karl von Savigny established the historical school of law (1779-1861). This
School explains how the law came into existence. This college contends that the legal
system was ruled to have not been created. Based on the School, individuals create
laws based on their evolving requirements. It holds it because the law derives from
societal norms, traditions, religious beliefs, and social and economic necessities, it is a
product of social growth.
Custom is the primary historical education resource. The custom seems to be a tried-
and-true, universally accepted style of acting or carrying out an action that is unique to
a certain society, area, or time. In this school, customs are deemed to be more
important than laws.

These factors led to the establishment of this school:

• It emerges as a response to the natural school of law.

• It rejects the jurisprudential analytical school’s viewpoint.

Friedrich Karl von Savigny (1779-1861) :- A creation of its period, which

has its origins in people as being formed for society, much like the State’s germ does,
and which assumes various forms according to its surroundings and the influences it is
subject to. According to Savigny, law develops naturally and unconsciously. Law is
therefore discovered and created. Law is not inherently universal. It evolves with
individuals and age, much like languages. Legislation is not only inferior to custom; it
also predates it. Law must therefore reflect the general mindset.
As laws become more complex, lawyers who create legal regulations represent the
public will. However, lawyers still only serve as the public’s voice, and their job is to
mould the law to suit. Lawmakers are less important than lawyers or judges because
legislation is the final step in the creation of laws.

George Friedrich Puchta :- Puchta was an excellent jurist and Savigny’s

disciple; as a result, his thoughts are better and more rational. In place of “law,” he
substitutes the word “right.” As per him, men have always lived in harmony, but
people behave differently and aren’t treated equally. The concept of law is highlighted
by this. State then manifests itself. But the law does not come from either the people
or the state on its own.
The Volksgeist is the source of all laws. Like shared language and religion, popular
consciousness binds members of a community together. He believed that because
customary law seems to be the highest manifestation of the national spirit or
Volksgeist, it is greater than law.

Analytical School of Law :- Law is the subject of this school, which is still in
existence. Its objective is to examine fundamental legal concepts as they are applied in
a particular legal system. It holds that the relationship between the law and the state is
what matters most. They view the law as a directive coming from the state, which is
the sovereign. Imperative School is another name for this institution. The theorist
avoids both the past and the future of the law, focusing just on the analysis of law like
it is in the present, or positus.
This is the only rationale for referring to this group as the Positive School of
Jurisprudence. Since Austin, Bentham is thought to have founded this school in
England, it is also known as the Austinian School of Jurisprudence.

Jeremy Bentham (1748-1832) :- In England’s history of legal philosophy,

Bentham inaugurated a new era. In the contemporary sense of the word, he is regarded
as the father of positivism. Dicey drew out Bentham’s views on individualism, the
rule of law, and reforms towards the legal system in his well-known book, “Law and
Public Opinion.” Expositorial jurisprudence is associated with the law without
reference to its moral or immoral character. Censorial jurisprudence is associated with
the law relating to its moral or immoral character. While censorship is concerned with
the “science of legislation,” or what the law should be, censorship is concerned with
the opposite.
According to Bentham, the law is “a compilation of signs declaring an infringement
conceived or embraced by the Supreme authority in a nation, regarding the actions to
be recognised in a specific case by a specific person or a particular class of person.”
Bentham was a proponent of codified law; he denied the theory of natural law and
associated law with supremacy and utility in Austin’s view. Bentham believed that
natural law subordinated mankind to two sovereign superiors, i.e. pain and pleasure,
who alone determine what a person should do or not do.

Bentham believed that only laws can be preserved that supported the four objectives
of protection, abundance, equality, & survival. As an individualist, Bentham thought
that the goal of the law is to liberate people from slavery and other restrictions on their
freedom. He established utilitarianism as a philosophy. This idea contends that the
realisation of the utility principle is the proper goal of the legislation. He defined
“Utility” as a thing’s ability or propensity to stop bad things from happening or bring
about good things.

John Austin (1790-1859)

The “father of English Jurisprudence” is regarded as Austin. He was an army officer,
and his writings exhibit the rigour of army regulations. He was inspired to apply the
same methodology to the formal explanation within the law in England after
becoming fascinated by the scientific study of Roman law. He only focused on
positive law in his research and used analytical techniques.
Positive law was defined by Austin as “laws properly so-called” as opposed to
morality and other laws, which he referred to as “laws improperly so-called” because
they lack the authority and support of the state. Austin identifies the following four
crucial characteristics of positive law: 1. Command, 2. Sanction, 3. Duty, and 4.
Sovereignty.

He was the first to classify jurisprudence as a branch of law that was related to the
evaluation of legal ideas. Austin was the one who made the distinction between
positive law and positive morality, which has no legal standing. Ideals and justice
have no place in the law under Austin’s positive system. His positive law has been
founded on the division of morality and the law. Command, in his opinion, is “the key
to the science of jurisprudence”.
Command, duty, and sanctions are said to be the three main components of positive
law in his work “The Province of Jurisprudence”. Austin also acknowledges the
existence of three categories of laws that, while not commands, can still be regarded
as falling under the purview of the law. These categories are as follows:
1. Declaration of laws
2. Revocation laws
3. Imperfect obligation laws.

Sociological School of Law

This institution promotes the idea that society and the law are intertwined. Law is the
social landscape. This school contends that because of the law’s significant influence
on society, it is a social phenomenon. The legal aspect of each issue and social
transformation was given more weight at this university.
Law is a societal phenomenon, and it is connected to society either directly or
indirectly. It emphasises striking a balance between the interests of the individual and
the state. This school holds that the current laws cannot be used to address the socio-
economic issues of the day. This institution is founded on reason, not on gods or other
metaphysical beings.

Roscoe Pound
Roscoe Pound focuses more on the practical side of the law. Thus, the term
“functional approach” may also apply to his method. He asserted that “the goal of
legislation should be to fulfill the greatest number of desires with the least amount of
friction.” He demands the greatest amount of harmony with the fewest conflicts.
He presented a notion of “Social engineering,” which refers to striking a balance
among conflicting social objectives. Social refers to a collection of people creating a
society. Engineering is the application of science to create finished products by
engineers, and it is built on ongoing research and expertise to create the end product
using an instrument or equipment. He believes that lawyers should have a strategy and
that various social interests should be safeguarded by the law following that strategy.

Three categories have been established for the interest:

Personality interests include integrity of the body, reputation, freedom from infraction,
and conscience freedom. For instance, criminal law, contract law, and tort law.
domestic relations’ best interests maintenance, parent-child relationships, and
marriage. genuine substance interest inheritance, professional flexibility, and property.
Public interests include those related to state preservation, trust administration,
charitable endowments, territorial seas, the environment, and other things.
Social Interests are the claim, demand, or want knowing as social interests are
generalised as a claim of social groupings and are considered about social life.
Dugit
Social solidarity is the tenet of Duguit’s sociological school of thought. The strength
of society is reflected in social solidarity. According to Duguit, there are primarily two
categories of societal needs:
• Common Needs that are met by cooperation.
• Negative needs which the trade of services satisfies. Everyone needs the
assistance of others to survive. Without the assistance of other states, still not a state
can exist. One cannot produce, so he must rely on others for all of his needs. The
reliance is referred to as social solidarity. The division of work is required for this
goal. The division of labour will meet all of society’s needs. This way of thinking is
referred to as social solidarity.
•
Realistic School of Law
Law, according to realists, is just what courts are doing and say since judges are the
ones who created it. They view judges as legitimate legislators. Realists hold that
court decisions weren’t solely based on formal, abstract law but also take the
personalities of the justices and attorneys into consideration. Realists hold that
“certainty of law is a myth,” and only judge-made laws are legitimate.
They place no value on laws passed by legislative bodies. The formalistic stance of
analytical jurists like Austin, Bentham, Stuart Mill, and others who were ardent
advocates of the British Empirical School has protested against realism. Realists
disagree with the significance of legal language because they see it as a tool used to
stifle legal doubt.

Karl Llewellyn (1893-1962)

Faculty of law at Columbia University, Karl Llewellyn. In his statement, he suggests
evaluating the law in words of its real effects rather than placing much weight on
formal conceptual rules. He views the law as a tool for achieving social goals. Law, in
his words, is “what officials do about conflicts.” He stated that because society
develops more quickly than the law, it is necessary to continually assess how the law
responds to current social issues.
Several factors affect court decisions, Karl thought it ludicrous to define law simply
on the basis of legal principles and conventional legal theory. He was the only one to
emphasize ongoing, systematic study and analysis of the law through the judicial
process in light of evolving conditions.
Oliver Windell Holmes
Oliver Windell Holmes analysed the law from the perspective of “the bad man,” that
is, a person who was appearing in the courtroom as an accused or delinquent. As per
him, the judge’s job is to administer justice in the subject at hand, and if doing so
called for an innovative interpretation already in place, he should use it. The US Court
judge Justice Holmes served for a considerable amount of time. He underlined that
“the law’s life has not been based on reasoning, but rather, experience. In his own
words, he noted:
Because that rule only contains the axioms & corollaries of textbook mathematics, it
can’t be treated even though it represents the tale of a nation’s growth over several
centuries.

Judges and attorneys, in Justice Holmes’ opinion, are in a good situation to

comprehend the practical issues affecting cases that are brought prior to them for
adjudication because they are familiar with the historic, sociological, and financial
components of the law. He claimed that judges must consider precedent in cases when
the law is unclear.

Conclusion
Law is the subject of the science of jurisprudence. It is a branch of science that looks
into how laws are made, used, and enforced. The study of legal doctrines and
analytical techniques is known as jurisprudence. It is useful and illuminating.
There are five legal schools. There needs to be research and analysis to support the
assertion of the goal and logic of the legislation, despite the fact that schools of law
have attempted to address some of the flaws in the legislative process and enactment
processes. Furthermore, rather than taking a theoretical stance, it is preferable to
consider how laws are implemented.

Unit-2

Syllabus
 Functions and purpose of Law, questions of Law, Fact& Discretion
 Justice and its Kinds
 civil and Criminal Admistration of Justice
 Theories of Punishment & Secondary functions of court

1 . Discuss the questions of law and fact.

 
Introduction: It is commonly said that all questions which arise for consideration in a
Court of justice are of two kinds. They are either question of law or of fact. It has been
found to be very difficult to define the exact difference between law and
fact. Law consists of the abstract rules and facts are the raw materials on the basis of
which the law creates certain rights and duties.
 
Question Of Law: According to Salmond, the term question of law is used in three
distinct, thought related senses. I. Questions Authoritatively Answered By Law:
 
In first sense, it means a question, which the Court is bound to answer in accordance
with a rule of law. All other questions are questions of fact. It excludes the right of the
Court to answer the question as he thinks fit. Illustration: Whether the holder of a
cheque has been guilty of unreasonable delay in giving notice of dishonor is a
question of law to be determined in accordance with certain fixed principles (sec. 138)
laid down in the Negotiable Instruments Act,1881.
 
II. Interpretation Of Statutory Provision: In the second sense, it means a question
as to what the law is on a particular point. This arises in cases where a rule of law is
ambiguous and requires determination. Once the provision has been authoritatively
interpreted by the judge, it becomes a judicial precedent and a settled question of law.
 
III. Questions To Be Answered By Judges: In the third sense, all question whose
answers given by the judges and not the jury are questions of law.
Question Of Fact: The term question of fact is used also two different senses: I.
Wider sense II. Narrow sense
 
I. Wider Sense: In a Wider or general sense, all questions which are not questions of
law are questions of fact.
According to Salmond: A question of fact means any question (i) Which is not
previously determined by a rule of law. (ii) Other than question as to what the law is.
(iii) Which is to be answered by the jury and not by the judge.
II. Narrow Sense: In a narrow sense, question of fact means only those questions
which are not subject to judicial discretion. [Judicial Discretion is the power or right
to make official decisions using reason and judgment to choose from among
acceptable alternatives. It is the Power of a court to act or not to act, as it deems fair
under the circumstances, and as provided under the rules of law. It refers to the
inherent powers of the judge to pass a judgment without interference of the rules laid
in the statues or law books.]
 
Illustration: The question as to whether the accused has committed the criminal act
with which he is charged is a question of fact.
 
Difference Between Question Of Law And Fact in a nutshell: (i) Relation:
Question of law is purely related with the law. Question of fact is not related with the
law.
 
(ii)As to Proof: There is no need to prove question of law. Question of fact is needed
to prove.
 
(iii)As to conversion: Question of law cannot be converted into question of fact.
Question of fact may be converted into question of law.
 
(iv)Duty of Judge: In a question of law, is the duty of the Court to ascertain the law
and decide to case accordingly. In a question of fact, it is the duty of the Court to
weigh the evidence and then come to its conclusion.
 
(v) As to Authoritatively Answered: Every question which has been authoritatively
answered by the law is a question of law. Every question which has not been
determined before and authoritatively answered by the law is a question of fact.
 
(vi) Example:
In case of filing an appeal, delay explained is question of fact. On the other hand,
whether such a fact is entertainable or not is a question of law.
 
Conclusion: The sum up, I can say, that all matters and questions which come before
a Court of justice are either of law or fact or judicial discretion. As the legal system
grows, there is a tendency to transform question of fact, into those of questions of law.

2. Theories of Punishment

Introduction

Punishments are imposed on the wrong doers with the object to deter them to repeat the same
wrong doing and reform them into law- abiding citizens. A Punishment is a consequence of
an offense. Punishment generally is provided in Criminal Law. It is a social control.

 According to Salmond’s: Crime is an act deemed by law to be harmful for the society as a
whole though its immediate victim may be an individual.
 Sutherland and Cressey have mentioned two essential ideas while defining the concept of
punishment:

a) It is inflicted by the group in its corporate capacity upon one who is regarded as a
member of the same group. War is not punishment for in war the action is directed
against foreigners.

b) It involves pain or suffering produced by design and justified by some value that the
suffering is assumed to have.

Types of Punishment

1. Deterrent Theory
2. Retributive Theory
3. Preventive Theory
4. Reformative Theory
5. Expiatory Theory
6. Theory of Compensation

1. Deterrent Theory :- The term “Deter” means to abstain from doing an act. The main
purpose of this theory is to deter (prevent) the criminals from doing the crime or
repeating the same crime in future. Under this theory, severe punishments are inflicted
upon the offender so that he abstains from committing a crime in future and it would
also be a lesson to the other members of the society, as to what can be the
consequences of committing a crime. This theory has proved effective, even though it
has certain defects. The basic idea of deterrence is to deter both offenders and others
from committing a similar offence.

Criticism: There is a lot of criticism of the deterrent theory of punishment in modern times.
It has been criticized on the grounds that it has proved ineffective in checking crimes and also
that excessive harshness of punishment tends to defeat its own purpose by arousing the
sympathy of the public towards those who are given cruel and inhuman punishment.
Hardened criminals are not afraid of punishment. Punishment losses its horror once the
criminal is punished.
B) Retributive Theory :- This theory of punishment is based on the principle- “An eye for
an eye, a tooth for a tooth”. Retribute means to give in turn. The object of this theory is to
make the criminal realize the suffering of the pain by subjecting him to the same kind of pain
as he had inflicted on the victim.

This theory aims at taking a revenge rather than social welfare and transformation. This
theory has not been supported by the Criminologists, Penologists and Sociologists as they
feel that this theory is brutal and barbaric. "Kant argues that retribution is not just a necessary
condition for punishment but also a sufficient one.

Punishment is an end in itself. Retribution could also be said to be the 'natural' justification”,
According to Justice Holmes 'It is commonly known that the early forms of legal procedure
were grounded in vengeance.' According to Salmond the retributive purpose of punishment
consist in avenging the wrong done by the criminal to society.

Criticism
The main criticism of this theory is that punishment per se is not a remedy for the mischief
committed by the offender. It merely aggravates the mischief. Punishment in itself evil and
can be justified only on the ground that it yields better result. Revenge is wild justice.
Retribution is only a subsidiary purpose served by punishment.

C) Preventive Theory – This theory too aims to prevent the crime rather than avenging it.
As per this theory, the idea is to keep the offender away from the society. The criminal under
this theory is punished with death, life imprisonment etc. while sending the criminals to the
prisons the society is in turn trying to prevent the offender from doing any other crime and
thus protecting the society from any anti-social elements.

According to Justice Holmes " There can be no case in which the law-maker makes certain
conduct criminal without his thereby showing a wish and purpose to prevent that conduct.
Prevention would accordingly seem to be the chief and only universal purpose of punishment.
The law threatens certain pains if you do certain things, intending thereby to give you a new
motive for not doing them. If you persist in doing them, it has to inflict the pains in order that
its threats may continue to be believed.

" According to Paton " The Preventive theory concentrates on the prisoner and seeks to
prevent him from offending again in the future. The death penalty and exile serve the same
purpose. Criticism The main criticism of this theory is that Preventative Punishment has the
undesirable effect of hardening first offenders, or juvenile offenders, when imprisonment is
the punishment, by putting them in the association of Harden Criminals. D) Reformative
Theory – This theory is the most humane of all the theories which aims to reform the legal
offenders by individual treatment. Gandhi ji said that “Hate the sin not sinner “. The idea
behind this theory is that no one is a born Criminal and criminals are also humans. The main
purpose of this theory, to treated a criminal like a diseased person. it is believed that if the
criminals are trained and educated, they can be transformed into law abiding citizens. This
theory has been proved to be successful and accepted by many jurists.

Criticism

The main criticism of this theory state that if Criminals are sent to prison to be transformed
into good citizens, a prison will no longer be a 'prison' but a dwelling house. This theory has
been proved to be successful in case of young offenders.

E) Expiatory Theory –

Under this theory, it is believed that if the offender expiates or repents and realizes his
mistake, he must be forgiven. This theory was prevalent in the ancient era in India. Manu
smriti declared that ‘when an offender is found guilty of a crime and is sentenced to
imprisonment by king, he becomes pure and goes to heaven like a good virtuous man.’ It
implies that his crime is expiated. this theory is no longer prevalent in the modern era. F)
Theory of Compensation According to Theory of Compensation the object of punishment
must not be merely to prevent further crimes but also to compensate the victim of the Crime.

Criticism: The main criticism of this theory is that it tends to oversimplify the motive to
crime.
 2. What Are The Purposes And Functions Of Law?

PURPOSES OF LAW:

Through law, the information is passed regarding the system to the citizens of the
country in several ways. It is reflected also in various branches of law. For instance,
contract law quotes that the agreements are supposed to exchange services, goods, or
something which is of value in the eyes of law. Therefore, it involves everything i.e.
from purchasing a ticket to the trading plans in the market.

In furtherance to that, property law explains the rights and duties of each individual
towards the property. This may involve real estate along with their respective
possessions. Additionally, it involves intangible property like stock shares and bank
accounts. Several offences against state, federal, or any local community appeared as
to be a subject matter of criminal law.
Henceforth, it gives the government a significant system in which offenders can be
punished. There are numerous kinds of purposes which are served by law. Out of
many, there are four main which is as follows:
1. Maintaining Order:
The law is said to be an offshoot for the establishment of the standards. The
resembling nature is necessary for a civilized kind of society. Thus, a similar thing is
reflected upon the law. Further, the law when being enforced provides a diligent
consistency with the guidelines of the society. In addition to that, wildlife
management laws were passed in lieu of the game to be conserved and so that it gets
protected for future generations in the years to come.

2. Establishing Standards:
The law is a manner in which it shows a way to the minimum accepted behaviour in
society. There are few activities which are a crime for the society to determine
whether it will tolerate behaviours that may damage or injure the person or their
respective properties. For instance, it is a crime to injure an individual without the
justification factor being met. Therefore, committing the same can lead to the
constitution of the crime i.e. assault.

3. Resolving Disputes:
Disputes are not supposed to be ignored in a society at large that consists of people
with several kinds of wants, needs, values, etc. Additionally, the law gives a formal
means to resolve the disputes which are under the court system.

4. Protecting Liberties and Rights:

The constitutions and the statutes of India give various rights and liberties in their
states. In addition to that, one of the functions of law is to protect numerous rights and
liberties from unreasonable kind of violations or intrusions by organizations, persons
or government. Henceforth, if an individual believes that the freedom of speech has
been forbidden by the government then the respective individual can pursue the
remedy through the platform of bringing the case in the courts.

FUNCTIONS OF LAW:

[The idea of the elements of law is critical. It is expected to clarify the idea of law, to
clarify disciplines related to law, to effectively decipher and apply law, to pinpoint the
cooperation of law with accepted practices and establishments, to figure out which
general standards to which the law ought to adjust or go amiss, and to clarify the law
inside the setting of regularizing reasoning. This part plans to add to the elaboration of
the thorough contemplated plan of the elements of the law. In it, the inquiries of the
social elements of law are recognized from the topic of grouping lawful standards into
particular standardizing types.
The four essential elements of law – forestalling unfortunate conduct and making sure
about attractive conduct which is acted in criminal law and torts; giving offices to
private courses of action between people, which is found in private law, criminal, and
tort law; arrangements of administrations and the redistribution of merchandise found
in legitimate frameworks; and settling unregulated questions found in courts and
councils – are talked about in the section. It likewise handles the auxiliary and
aberrant elements of the law. The auxiliary elements of the law incorporate the
assurance of methods for changing the law and the guideline of the activity of law-
applying organs.

Salmond’s supposition with respect to the capacity of law gives off an impression of
being sound and coherent. The expression “law’ indicates various types of rules and
standards. Law is an instrument that manages human direct/conduct. Law implies
Justice, Morality, Reason, Order, and Righteousness from the view purpose of the
general public. Law implies Statutes, Acts, Rules, Regulations, Orders, and
Ordinances from the perspective of the council.

Law implies Rules of court, Decrees, Judgments, Orders of courts, and Injunctions
from the perspective of Judges. In this manner, Law is a more extensive term which
incorporates Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality,
Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions,
Tort, Jurisprudence, Legal hypothesis, and so on. Since the time the down of human
development, humankind has had a type of decide or that they used to govern itself in
the public arena laws set the standard wherein we should live in the event that we need
to be a piece of society.

Law set up rules and guidelines for society with the goal that we can opportunity,
offers Justice to the individuals who were wronged, and it set up that it shields us from
our own government. In particular, the law likewise gives a system to determine
debates emerging from those obligations and rights and permits gatherings to uphold
guarantees in a courtroom. As indicated by Corley and Reed (1986), the law is a group
of rules of the activity or direct prescribed by controlling position and having lawful
restricting powers. Laws are made on the grounds that it keeps bedlam from occurring
inside the business condition and just as society. In business, the law sets rules with
respect to work administrative, consistency, even official guidelines.
 4. Question of Law

An issue that is within the province of the judge, as opposed to the jury, because it 
involves the application or interpretation of legal principles or statutes.

At any stage in a proceeding, before or during trial, a judge may have to determine wh
ether to let a jury decide a particular issue. In making this determination, the judge con
siders whether the issue is a question of law or a question of Fact. If the question is on
e of fact, it should be decided by the jury at trial. If the question is one of law, the judg
e may decide it without affording the parties the opportunity to present evidence and 
witnesses to the jury.

A question of law involves the interpretation of principles that are potentially applicab
le to other cases. In contrast, a question of fact requires an interpretation of circumstan
ces surrounding the case at hand. Resolving questions of fact is the chief function of th
e jury. Resolving questions of law is a chief function of the judge.

If the pleadings and initial evidence in a case show that there are no factual disputes b
etween the parties, a court may grant Summary Judgment to a party. 

Summary judgment is a final judgment in the case made by the court before trial. A co
urt may grant summary judgment in a case that contains no factual disputes because su
ch a case presents only a question, or questions, of law, so the fact-finding function of 
the jury is not needed.

On appeal, the trial court's ruling on a question of law generally receives closer scrutin
y than a jury's findings of fact. Being present at the trial, the fact finder is in a better p
osition than the appeals court to evaluate evidence and testimony.

An issue may be characterized on appeal as a mixed question of law and fact. A mixed 
question occurs when the facts surrounding the case are admitted and the rule of the a
pplicable law is undisputed; the issue then is whether the Rule of
Law was correctly applied to the established facts. 

In a criminal case, for example, assume that a trial court, over the objection of the defe
ndant, allows the prosecution to present evidence that the defendant was identified as t
he perpetrator. If the defendant is found guilty and challenges the identification proced
ure on appeal, the question is one of both law and fact. 
The appeals court must decide whether the trial court correctly applied the law on due 
process in identification procedures to the particular identification procedure used in t
he case. In such a case, the appeals court will scrutinize both the facts and the trial jud
ge's rulings on questions of law.

5. Question of Fact

1. For question of law, the court actually finds the answer with help of rules
available under different laws and legislations. When the court fails to do so, it
seeks help from the higher courts. Sometimes, after judgment, the victim goes to
higher courts for better judgment. But not all the problems can have answered in
the law itself. In that time, the court uses facts or evidence as help. It is called the
question of facts. One important aspect of question of fact is that it is only
bothering about the evidence of proof available. It doesn’t consider on what kinds
of opinion is available. There is only opportunity for the matter of facts.

2. Questions other than particular law is question of fact.

3. It is answered by the parties.

4. It is called Point of fact.

5. It can be converted into a question of law.

6. Primary & Secondary Rights.

 Primary Rights:
Primary rights are also called antecedent, sanctioned or enjoyment
rights. These are those rights which are independent of a wrong having
been committed. They exist for own sake. They are antecedent to be
wrongful act or omission.
Example:
Right of reputation, Right to life etc.

 Secondary Rights:
Secondary rights are also called sanctioning, restitutory or remedial
rights. Secondary rights are a part of the machinery provided by the
state of the redress of injury done to the primary rights. Their necessity
arises on account of the fact that primary rights are very often violated
by the persons.
Example:
Rights to obtain compensation for defamation to person.
 7. Secondary Functions of Court of Law.

Secondary Functions:

Courts are primarily established to perform the essential or primary functions, but
once they established, they are also to perform secondary functions.

These are miscellaneous and indeterminate in character and number and tend to
increase with the advancing complexity of modern civilization. They fall chiefly into
four groups.

I. Actions Against The State:

The Courts of law can exercise adjudication, upon claims made by citizens against the
state itself. A suit can be brought against the state for contractual liability etc. in
England the crown Proceedings Act, 1947 provides that where a person has a claim
against the crown, that claim can be enforced.

II. Declaration Of Rights:

Another function of the Courts is the declaration of the rights of individuals. This is
done where the rights of the parties are uncertain. A litigant may claim the assistance
of a Court of law because his rights have been violated, but because they are
uncertain.

Examples:
Examples of declaratory proceedings are the declaration of legitimacy and
authoritative interpretation of wills.

III. Administrations:

In certain cases, Courts of justice undertake the management and distribution of the
property of a deceased person and also of minors whose property is put under the
Court of wards.
Other examples are the administration of a trust, liquidation of a company by the
Court etc.

IV. Titles Of Right:

In certain cases, judicial decrees are employed as the means of creating, extinguishing
and transferring rights. Example of such functions are decree of divorce appointment
of removal of trustees etc. in such cases, the judgments of the Courts operate not as
the remedy of a wrong but as a title of right.
Conclusion:

To conclude, I can say, that as the Lord Bryce writs “There is no better test of the
test if the excellence of a Gov t then the efficiency of its judicial system “and
judicial system is run through the Court of law. They have to perform primary and
secondary functions, but the object of both these functions is the welfare of the
citizen.

8. xplain the
necessity of
administration of
9. justice.
Distinguish
between criminal
and civil
10. administration
of justice.
11. Ans: Justice and
Administration of Justice:
Without administration of
justice, it is possible keep
12. the poplin fear of
punishment or compensation
for violation of law and in the
process, people are
13. kept disciplined and made
to obey the law. Force in
all orderly societies in the
form of
14. administration of justice has
now become latent by
declaring the rights and duties
of its subjects. !
15. Justice is precisely
treating like cases alike and
 giving fair and equal
treatment to all persons,
16. irrespective of status,
religion, caste, sex, race, place
of origin, etc., In other words,
in rendering
17. justice, there should not
be singling out persons for
special treatment, unless
there are special
18. circumstances for doing so.
!
19. !
20. Justice is thus an ideal
concept. It is like truth.Law
helps judges to pursue justice.
Justice is also
21. the conscience of the while
of society. Justice includes
individual liberty for
achieving individual
22. and social welfare. At the
same time, justice confines
such liberty within limits,
consistent with the
23. general welfare of mankind.
!
24. !
25. Salmond defines the
administration of justice as
‘the maintenance of right
within a political
26. community by means of the
physical force of the State’. It
 includes all the aspects
connected with
27. the administration of justice,
not merely with the filing of
cases in a Court but
pronouncement of
28. judgements and their
execution. "
29. One of the essential
functions of the State is the
administration of Justice.
Law being the
30. instrument of justice, Courts
of Justice are also Courts of
law, because justice has to be
rendered
31. according to law.!
32. !
33. Necessity of Administration
of Justice: In primitive days,
man redressed his grievances
by taking
34. revenge on is enemies by
his own hands. To quote
Hobbes, “Kill whom you can
and take what
35. you can was the slogan of
those days.” In order to live a
decent and orderly life in
society, the
36. State should have powers of
force against wrong doers and
law violators. The
administration of
37. justice is the modern and
civilised substitute for the
 primitive practices of private
vengeance and
38. self-help. !
39. Meaning: Administration of
justice means justice according
to law. According to Salmond,
it is the
40. maintenance of rights
within a political community
by means of the physical
force of the State.
41. Physical force of the state
is the sole or exclusive
factor for a sound
administration which also
42. helps obedience to law.
These factors are social
 sanctions habits, convenience
etc. Necessity of
43. Administration of Justice
are as follows: !
44. 1. In determining a
nations’s rank in a political
organisation, the test is how
effective is its
45. administration of justice. !
46. 2. A State may not be
called a state, if it has
failed to discharge its
functions concerning the
47. administration of justice. !
48. 3. Life becomes risky in a
society in which there is no
preservation of the rights of
men and no
 49. prevention of injustice. !
50. 4. There may not be any
necessity of the administration
of justice in a utopian form of
society,
51. but in the present
materialistic world, it is
impossible to live without the
machinery of justice. !
52. 5. Administration of Justice,
thus, must be regarded as a
permanent and necessary
element of
53. civilisation and as a device
that admits of no substitute. !

7. Explain the necessity of administration of justice.

Distinguish between criminal and civil administration of
justice.
 Justice and Administration of Justice: Without administration of justice, it is
possible keep the poplin fear of punishment or compensation for violation of law and
in the process, people are kept disciplined and made to obey the law. Force in
all orderly societies in the form of administration of justice has now become latent
by declaring the rights and duties of its subjects.

Justice is precisely treating like cases alike and giving fair and equal treatment
to all persons, irrespective of status, religion, caste, sex, race, place of origin, etc., In
other words, in rendering justice, there should not be singling out persons for
special treatment, unless there are special circumstances for doing so. !

Justice is thus an ideal concept. It is like truth.Law helps judges to pursue justice.
Justice is also the conscience of the while of society. Justice includes individual
liberty for achieving individual and social welfare. At the same time, justice confines
such liberty within limits, consistent with the general welfare of mankind.

Salmond defines the administration of justice as ‘the maintenance of right

within a political community by means of the physical force of the State’. It includes
all the aspects connected with the administration of justice, not merely with the filing
of cases in a Court but pronouncement of judgements and their execution. "
One of the essential functions of the State is the administration of Justice. Law
being the instrument of justice, Courts of Justice are also Courts of law, because
justice has to be rendered
according to law.

Necessity of Administration of Justice:

In primitive days, man redressed his grievances by taking
revenge on is enemies by his own hands. To quote Hobbes, “Kill whom you can and
take what you can was the slogan of those days.” In order to live a decent and
orderly life in society, the State should have powers of force against wrong doers and
law violators. The administration of justice is the modern and civilised substitute for
the primitive practices of private vengeance and self-help. !
Meaning: Administration of justice means justice according to law. According to
Salmond, it is the maintenance of rights within a political community by means of
the physical force of the State. Physical force of the state is the sole or
exclusive factor for a sound administration which also
helps obedience to law. These factors are social sanctions habits, convenience etc.

Necessity of Administration of Justice are as follows:

1. In determining a nations’s rank in a political organisation, the test is how

effective is its administration of justice.
2. A State may not be called a state, if it has failed to discharge its functions
concerning the administration of justice.

3. Life becomes risky in a society in which there is no preservation of the rights of

men and no prevention of injustice.

4. There may not be any necessity of the administration of justice in a utopian form
of society, but in the present materialistic world, it is impossible to live without the
machinery of justice.

5. Administration of Justice, thus, must be regarded as a permanent and necessary

element of
civilisation and as a device that admits of no substitute.

Legal Justice: Civil Justice and Criminal Justice!

Both civil wrongs and crimes are administered by legal justice. Based on the
civil wrong / civil liability and crime/penal liability, legal justice is divided into two
types:"

1. Civil Justice - Civil Wrongs / Civil Suits : Civil wrong is an infringement of the
private or civil rights belonging to individuals and cause civil injuries. For e.g, a
breach of contract, o trespass to land infringe the rights of the individual wronged, but
does not injure society in general. So, under civil justice the victim can sue for
compensation in Civil Courts. !

The civil wrongs and civil suits are dealt under civil proceedings in Civil
Courts. If a civil proceeding is successful, then it results in judgement and decree for
enforcement of the rights of the plaintiff.

The object of civil proceedings is thus encorcement of rights. Both in civil and
criminal proceedings, realisation of money is involved and for disobedience of
civil decrees, civil imprisonment is imposed. Civil disputes are mostly private in
nature and they are not committed against the community at large and the goal of
civil procedure is non-private.

2. Criminal Justice - Criminal Wrongs: Crimes are breach and violation of

public rights and duties. They affect the whole community. Law considers crimes as
harmful for the society in general, even if the victim is only an individual. !
!
For e.g, murder is an offence against individual, but it is considered as a harm to the
society and so mere compensation to the victim’s family from the murderer is
not sufficient punishment to the murderer. The State further proceed against the
accused and on proof, convict him with imprisonment/fine, etc.
Crimes and offences come under the purview of criminal proceedings. Criminal
proceedings are conducted in criminal Courts. The criminal proceedings result in
punishments like death sentence, life imprisonment and fine. It also includes
executing bonds for keeping peace and tranquility and also keeping good behaviour.

The object of criminal proceedings is to punish wrongs and crimes of more harmful to
society and people than civil disputes. Sometimes, the civil wrongs and criminal
crimes overlap each other .

The following are the instances:

1. Certain wrongs are committed against the State and therefore they are called public
wrongs, but law regards them as civil wrongs. For e.g., refusal to pay taxes is an
offence against the State, but it is a civil wrong only.Similarly, an action by the State
for the recovery of a debt is purely civil, though it may be a public wrong.!

2. Some civil wrongs cause more harm than criminal offences. For e.g., the gross
negligence of a contractor in construction of a building may result in collapse of the
building, thereby causing great loss to property and life. This is more harmful
than a petty theft or assault or criminal trespass. !
3. Sometimes, the same acts simultaneously amount to both a crime and a civil wrong.
For e.g, defamation, negligence etc., "

Differences between Criminal Justice and Civil Justice: - Criminal Justice: "

1. All Criminal Wrongs are administered by Criminal Justice. For e.g, Theft, murder,
rape, forgery, etc. !

2. All crimes are public wrongs. !

3. Most of the Criminal proceedings are instituted by the State

A crime is treated as a harmful act to the entire society. !

5. The object of the criminal justice is to ‘punish’ the wrong-doer, ranging from death
to fine. !

6. Criminal justice is administered according to the law of Criminal Procedure!

7. The doctrine of estoppel does not apply to criminal justice. !

8. The principle of criminal justice is that thousand guilty men can escape, but
one innocent should not be punished. !

9. The guilt must be proved beyond reasonable doubts. !

10. The benefit of doubt always goes in favour of the accused. !

11. The rules of evidence cannot be relaxed by consent of the parties. !

12. The cases once instituted cannot be compounded withdrawn in criminal justice
except when permitted by law.!

13. The burden of proof always lies on the prosecution. !

14. In criminal cases, the obligation lies on the Court to bring all relevant evidence on
record so that justice is done to the accused. !

15. The criminal justice deals with remedial and breaches of duties. So it is a
corrective justice. !

16. Criminal courts administer the Criminal Justice. !

Civil Justice:

1. All civil wrongs are administered by Civil Justice. For eg, Breach of contract,
trespass to land etc. !

2. All civil wrongs are private wrongs. !

3. Generally, the affected person institutes the civil proceedings. !

4. Civil wrongs are deemed only to violate the rights of individuals. !

5. The object of the civil justice is to provide ‘compensation’ to the affected

person by the wrongdoer. !

6. Civil justice is administered according to the law of Civil Procedure. !

7. The doctrine of estoppel apples only civil justice. !

8. The principle that thousand guilty men can escape rather than one innocent
should be punished does not apply to civil proceedings. !

9. The rules of evidence may be relaxed by the consent of parties. !

10. The proceedings may be withdrawn by the parties with their own consent. !

11. The burden of proof lies on both the plaintiff and the defendant.!

12. in civi proceedings, it is the duty of the parties to the dispute to prove their case. !
13. ‘Benefit of doubt’ principle does not arise in civil justice.
4. The civil justice deals with the distribution of property, wealth and honour. So it is
a distributive justice. !

15. Civil courts administer the civil justice

PURPOSES OF LAW:
Through law, the information is passed regarding the system to the citizens of the
country in several ways. It is reflected also in various branches of law. For instance,
contract law quotes that the agreements are supposed to exchange services, goods, or
something which is of value in the eyes of law. Therefore, it involves everything i.e.
from purchasing a ticket to the trading plans in the market.

In furtherance to that, property law explains the rights and duties of each individual
towards the property. This may involve real estate along with their respective
possessions. Additionally, it involves intangible property like stock shares and bank
accounts. Several offences against state, federal, or any local community appeared as
to be a subject matter of criminal law.
Henceforth, it gives the government a significant system in which offenders can be
punished. There are numerous kinds of purposes which are served by law. Out of
many, there are four main which is as follows:

1. Maintaining Order:
The law is said to be an offshoot for the establishment of the standards. The
resembling nature is necessary for a civilized kind of society. Thus, a similar thing is
reflected upon the law. Further, the law when being enforced provides a diligent
consistency with the guidelines of the society. In addition to that, wildlife
management laws were passed in lieu of the game to be conserved and so that it gets
protected for future generations in the years to come.

2. Establishing Standards:
The law is a manner in which it shows a way to the minimum accepted behaviour in
society. There are few activities which are a crime for the society to determine
whether it will tolerate behaviours that may damage or injure the person or their
respective properties. For instance, it is a crime to injure an individual without the
justification factor being met. Therefore, committing the same can lead to the
constitution of the crime i.e. assault.

3. Resolving Disputes:
Disputes are not supposed to be ignored in a society at large that consists of people
with several kinds of wants, needs, values, etc. Additionally, the law gives a formal
means to resolve the disputes which are under the court system.
4. Protecting Liberties and Rights:
The constitutions and the statutes of India give various rights and liberties in their
states. In addition to that, one of the functions of law is to protect numerous rights and
liberties from unreasonable kind of violations or intrusions by organizations, persons
or government. Henceforth, if an individual believes that the freedom of speech has
been forbidden by the government then the respective individual can pursue the
remedy through the platform of bringing the case in the courts.

9. Discuss the functions and purposes of law.

FUNCTIONS OF LAW:

The idea of the elements of law is critical. It is expected to clarify the idea of law, to
clarify disciplines related to law, to effectively decipher and apply law, to pinpoint the
cooperation of law with accepted practices and establishments, to figure out which
general standards to which the law ought to adjust or go amiss, and to clarify the law
inside the setting of regularizing reasoning. This part plans to add to the elaboration of
the thorough contemplated plan of the elements of the law. In it, the inquiries of the
social elements of law are recognized from the topic of grouping lawful standards into
particular standardizing types.

The four essential elements of law – forestalling unfortunate conduct and making sure
about attractive conduct which is acted in criminal law and torts; giving offices to
private courses of action between people, which is found in private law, criminal, and
tort law; arrangements of administrations and the redistribution of merchandise found
in legitimate frameworks; and settling unregulated questions found in courts and
councils – are talked about in the section. It likewise handles the auxiliary and
aberrant elements of the law. The auxiliary elements of the law incorporate the
assurance of methods for changing the law and the guideline of the activity of law-
applying organs.

Salmond’s supposition with respect to the capacity of law gives off an impression of
being sound and coherent. The expression “law’ indicates various types of rules and
standards. Law is an instrument that manages human direct/conduct. Law implies
Justice, Morality, Reason, Order, and Righteousness from the view purpose of the
general public. Law implies Statutes, Acts, Rules, Regulations, Orders, and
Ordinances from the perspective of the council.
Law implies Rules of court, Decrees, Judgments, Orders of courts, and Injunctions
from the perspective of Judges. In this manner, Law is a more extensive term which
incorporates Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality,
Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions,
Tort, Jurisprudence, Legal hypothesis, and so on. Since the time the down of human
development, humankind has had a type of decide or that they used to govern itself in
the public arena laws set the standard wherein we should live in the event that we need
to be a piece of society.

Law set up rules and guidelines for society with the goal that we can opportunity,
offers Justice to the individuals who were wronged, and it set up that it shields us from
our own government. In particular, the law likewise gives a system to determine
debates emerging from those obligations and rights and permits gatherings to uphold
guarantees in a courtroom. As indicated by Corley and Reed (1986), the law is a group
of rules of the activity or direct prescribed by controlling position and having lawful
restricting powers. Laws are made on the grounds that it keeps bedlam from occurring
inside the business condition and just as society. In business, the law sets rules with
respect to work administrative, consistency, even official guidelines.
Unit-3 Syllabus - Sources of Law
 Legislation
 Precedent
 Custom

1. Explain in brief the different sources of law.

Introduction 
The word ‘Jurisprudence’ is derived from the Latin word jurisprudentia, which means
science or knowledge of law. It is a very vast area of study and it consists of several
ideologies and theories on how law has been made. It also includes the relationship of
law with individuals and other social institutions within the scope of its study. There
are various sources from which we derive law. Several jurists and scholars have
attempted to classify the sources of law. However, the most common sources in all
these classifications are legislations, judicial precedents, and customs. 

Law and sources of law

According to John Chipman Grey, who was a Harvard Law School professor,  “the
Law of the State or of any organised body of men is composed of the rules which the
courts, that is the judicial organ of the body, lays down for the determination of legal
rights and duties”. Though Gray’s definition has been criticised for being narrow, he
distinguished law from the sources of law. According to him, law has evolved through
case laws and sources of law are where we get the content and validity of law from.
Essentially, law refers to the rules or code of conduct and its sources refer to the
materials from which it gets its content. 

Types of sources of law

John Salmond, a legal scholar renowned for his ideologies on law in the field of
jurisprudence, classified the sources of law into mainly two categories,i.e., material
sources and formal sources. 

Material sources
Material sources of law are those sources from which the law gets its content or
matter, but not its validity. There are two types of material sources which are legal
sources and historical sources. 

Legal sources 
Legal sources are the instruments used by the state which create legal rules. They are
authoritative in nature and followed by courts of law. These are the sources or
instruments that permit newer legal principles to be created. According to Salmond,
legal sources of English law can be further classified into four categories- 
• Legislation, 
• Precedent, 
• Customary law, and
• Conventional law. 
•
Historical sources
Historical sources are sources that influence the development of law without giving
effect to its validity or authority. These sources influence legal rules indirectly. The
difference between legal and historical sources is that all laws have a historical source
but they may or may not have a legal source. Decisions given by foreign courts serve
as an example for this kind of source.  

Formal sources 
Formal sources of law are the instruments through which the state manifests its will.
In general, statutes and judicial precedents are the modern formal sources of law. Law
derives its force, authority, and validity from its formal sources. 
According to Keeton, the classification given by Salmond was flawed. Keeton
classified sources of law into the following: 

Binding sources 
Judges are bound to apply such sources of law in cases. Examples of such sources are
statutes or legislation, judicial precedents, and customs. 

Persuasive sources
Persuasive sources are not binding but are taken into consideration when binding
sources are not available for deciding on a particular subject. Examples of such
sources are foreign judgements, principles of morality, equity, justice, professional
opinions, etc. 

Precedent as a source of law

Judicial precedents refer to the decisions given by courts in different cases. A judicial
decision has a legal principle that is binding on the subordinate courts. Once a court
has delivered a judgement on a particular case, the courts subordinate to it must abide
by the precedent while deciding on similar cases with similar facts. Some of the most
influential judicial precedents in India are the following: 
• Kesavananda Bharati v. the State of Kerala (1973): This case is what
introduced the concept of the basic structure doctrine in India, protecting the
fundamental features of the Indian Constitution from being removed. 
• Gian Kaur v. the State of Punjab (1996): This judgement affirmed that the
right to die does not come within the scope of Article 21 of the Indian Constitution.
The court affirmed that every person has the right to die with dignity. The court also
stated that the right to die in a dignified manner is not the same as the right to die in an
unnatural way. 
• Maneka Gandhi v. the Union of India (1978): The court held Section 10(3)
(c) of the Passports Act, 1967 as void since it violated Article 14 and 21 of the Indian
Constitution. 
• Indra Sawhney v. the Union of India (1992): This judgement set a ceiling of
50% for reservation of backward classes. It also held that the criteria of classifying
groups as backward classes cannot be limited to economic backwardness. 
•
The doctrine of Stare Decisis 
The authority of judicial precedents is based on the doctrine of stare decisis. The term
stare decisis means to not disturb the undisturbed. In other words, precedents that have
been valid for a long time must not be disturbed. 
In India, subordinate courts are bound by the precedents of higher courts, and higher
courts are bound by their own precedents. But when it comes to High Courts, the
decision of one High Court is not binding on the other High Courts. Their decisions
are binding on the subordinate courts. In cases where there are conflicts between
decisions of court with the same authority, the latest decision is to be followed. As
per Article 141 of the Constitution of India, the Supreme Court’s decisions are binding
on all the courts across the country. However, the Supreme Court’s decisions are not
binding on itself. In subsequent cases where there are sufficient reasons to deviate
from the earlier decision, the Supreme Court can do so. 
Doctrine of Res Judicata 
The term res judicata means subject matter adjudged. As per this doctrine, once a
lawsuit has been decided upon, the parties are barred from raising the same issue in
courts again, unless new material facts have been discovered. They can’t raise another
issue arising from the same claim either since they could have raised the same in the
previous suit. 

Ratio Decidendi 
As per Salmond, a precedent is a judicial decision that contains a legal principle with
an authoritative element called ratio decidendi. Ratio decidendi means reason for the
decision. Whenever a judge gets a case to decide on, he has to adjudicate it even when
there is no statute or precedent concerning it. The principle that governs such a
decision is the reason for the decision which is also called ratio decidendi. 

Obiter Dicta 
The term obiter dictum means mere say by the way. This term is used to refer to
statements of law that are not required for the case at hand. A judge may in the
judgement of a case declare some legal principles to be applied in a hypothetical
situation. It does not have much impact or authority. However, the subordinate courts
are bound to apply the principles. 
Types of precedents 

Authoritative and Persuasive

Authoritative precedents are those precedents that must be followed by subordinate
courts whether they approve of it or not. They create direct and definite rules of law.
They fall into the category of legal sources of law. Persuasive precedents on the other
hand do not create a binding obligation on the judges. Persuasive precedents can be
applied as per the discretion of the judge. 
Authoritative precedents can be classified into the following two types: 

Absolute authoritative
An absolutely authoritative precedent is binding on subordinate courts in an absolute
manner and it cannot be disobeyed even if it is wrong. 

Conditional authoritative
A conditionally authoritative precedent is binding on other judges but it can be
disregarded in certain special circumstances as long as the judge shows the reason for
doing so. 

Original and Declaratory 

According to Salmond, a declaratory precedent is a precedent that simply declares an
already existing law in a judgement. It is a mere application of law. An original
precedent creates and applies a new law. 

Factors increasing the authority of a precedent 

The number of judges constituting the bench that makes the decision. 
A unanimous decision has more weight. 
Approval by other courts, especially the higher courts. 
The enactment of a statute that carries the same law subsequently. 

Factors decreasing the authority of a precedent 

• Abrogation of judgement by reversal or overrule of a higher court. 
• Abrogation of judgement by a statutory rule enacted subsequently. 
• Affirmation or reversal of decision on a different ground. 
• Inconsistency with the previous decision of a higher court. 
• Inconsistency with previous decisions of the court of the same rank. 
• Inconsistency with already existing statutory rules. 
• Erroneous decision. 

Legislation as a source of law

Legislation refers to the rules or laws enacted by the legislative organ of the
government. It is one of the most important sources of law in jurisprudence. The word
legislation is derived from the words legis and latum, where legis means law
and latum means making. 

Types of legislation 

According to Salmond, legislation can be classified into two types- Supreme and
Subordinate. 
1. Supreme legislation 
Legislation is said to be supreme when it is enacted by a supreme or sovereign law-
making body. The body must be powerful to the extent that the rules or laws enacted
by it cannot be annulled or modified by another body. Indian Parliament cannot be
said to be a sovereign law-making body as the laws passed by the parliament can be
challenged in the courts. The British Parliament, on the other hand, can be said to be a
sovereign law-making body since the validity of laws passed by it cannot be
challenged in any court. 

2. Subordinate legislation 
Legislation enacted by a subordinate law-making body is said to be subordinate
legislation. The subordinate body must have derived its law-making authority from a
sovereign law-making body. It is subject to the control of the supreme legislative
body. The following are the different kinds of subordinate legislation: 
• Executive legislation: This is a form of subordinate legislation where the
executive is granted or conferred certain rule-making powers in order to carry out the
intentions of the legislature. 
• Colonial legislation: Many territories across the globe were colonised by
Britain and such territories were called colonies. The legislation passed by the
legislature of such colonies was subject to the control of the British Parliament. 
• Judicial legislation: Courts also have a role in enacting laws that aid in
regulating the internal affairs and functioning of courts. 
• Municipal legislation: Municipal authorities also possess the law-making
power as they enact bye-laws. 
• Autonomous legislation: Another kind of legislation is autonomous
legislation, which is concerned with bodies like universities, corporations, clubs, etc. 
• Delegated legislation: Sometimes legislative powers may be delegated to
certain bodies by the parliament through principal legislation. A principal act may
create subsidiary legislation that can make laws as provided in the principal
legislation. 
•
Custom as a source of law
Custom refers to the code of conduct that has the express approval of the community
that observes it. In primitive societies, there were no institutions that acted as authority
over the people. This led to people organising themselves to form cohesive groups in
order to maintain fairness, equality, and liberty. They started developing rules with
coordinated efforts to make decisions. They eventually started recognising the
traditions and rituals practised by the community routinely and formed a systematised
form of social regulation. In India, laws relating to marriage and divorce are mostly
developed from customs followed by different religious communities. Additionally,
several communities belonging to the Scheduled Tribes category have their own
customs related to marriage. As a result of that Section 2(2) of the Hindu Marriage
Act, 1955 has exempted Scheduled Tribes from the application of this Act. 

Requisites of a valid custom

1. Reasonability: The custom must be reasonable or practical and must conform
with the basic morality prevailing in the modern-day society. 
2. Antiquity: It must have been practised for time immemorial. 
3. Certainty: The custom must be clear and unambiguous on how it should be
practised.  
4. Conformity with statutes: No custom must go against the law of the land. 
5. Continuity in practice: Not only the custom must be practised for time
immemorial, but it should also be practised without interruption. 
6. Must not be in opposition to public policy: The custom must adhere to the
public policy of the state. 
7. Must be general or universal: There must be unanimity in the opinion of the
community or place in which it is practised. Hence, it should be universal or general
in its application. 
8.
Sir Henry Maine’s views on customs
According to Sir Henry Maine, “Custom is conception posterior to that of Themistes
or judgments”. Themistes refers to the judicial awards dictated to the King by the
Greek goddess of justice. The following are the different stages of development of law
according to Henry Maine: 
1. At the first step, law is made by rulers who are inspired by the divine. Rulers
were believed to be messengers of God. 
2. At the second stage, following rules becomes a habit of the people and it
becomes customary law. 
3. At the third stage, knowledge of customs lies in the hands of a minority group
of people called the priestly class. They recognise and formalise customs. 
4. The final stage is the codification of customs. 
5.
Types of customs 
1. Customs without a binding obligation 
There are customs that are followed in society that do not have a legal binding force.
Such customs are related to clothing, marriage, etc. Not abiding by such customs can
only result in a social boycott and not legal consequences. 
2. Customs with a binding obligation
Customs that are meant to be followed by law are called customs with a binding
obligation. They are not related to social conventions or traditions. There are mainly
two types of customs with binding obligations- Legal customs and Conventional
customs. 
1. Legal customs: Legal customs are absolute in sanction. They are obligatory in
nature and attract legal consequences if not followed. Two types of legal customs are
general customs and local customs. General customs are enforced throughout the
territory of a state. Local customs on the other hand operate only in particular
localities. 
2. Conventional customs: Conventional customs are those customs that are
enforceable only on their acceptance through an agreement. Such a custom is only
enforceable on the people who are parties to the agreement incorporating it. Two types
of conventional customs are general conventional customs and local conventional
customs. General Conventional Customs are practised throughout a territory. Local
Conventional Customs on the other hand is restricted to a particular place or to a
particular trade or transaction.
3.  
Difference between custom and prescription 
The main difference between the two is that custom gives rise to law and prescription
gives rise to a right. Custom is generally observed as a course of conduct and is
legally enforceable. Prescription refers to the acquisition of a right or title. When local
custom applies to society, the prescription is applicable only to a particular person.
For example, when a person X’s forefathers have been grazing their cattle on a
particular land for years without restriction, X acquires the same right to graze his
cattle on the land. The right acquired by X is called a prescription. For a prescription
to be valid, it must be practised from time immemorial. In India, uninterrupted
enjoyment for 20 years is essential to acquire a right to light and air as per the Indian
Easements Act, 1882. 

Conclusion 
To conclude, sources of law in jurisprudence can be classified on the basis of several
grounds. But the most notable or common classification divides it into legislation,
precedent, and custom. Precedent refers to the previous judicial decisions. The
legislation refers to the statutory rules enacted by the legislature. Custom refers to the
age-old practises of a community that has solidified its presence so much that it
becomes the law. Though legislation seems to be the agency through which we get
laws, it is just the primary source. Many laws that we have are a reflection of what we
as a society have followed for generations. Also, many cases show how sometimes the
law of the land is inadequate or incapable of predicting what issues could arise in
subsequent disputes. This calls for the judiciary to elaborate or interpret the law of the
land, setting judicial precedents for several issues. 

2.

Precedent as a source of law

Judicial precedents refer to the decisions given by courts in different cases. A judicial
decision has a legal principle that is binding on the subordinate courts. Once a court
has delivered a judgement on a particular case, the courts subordinate to it must abide
by the precedent while deciding on similar cases with similar facts. Some of the most
influential judicial precedents in India are the following: 
• Kesavananda Bharati v. the State of Kerala (1973): This case is what
introduced the concept of the basic structure doctrine in India, protecting the
fundamental features of the Indian Constitution from being removed. 
• Gian Kaur v. the State of Punjab (1996): This judgement affirmed that the
right to die does not come within the scope of Article 21 of the Indian Constitution.
The court affirmed that every person has the right to die with dignity. The court also
stated that the right to die in a dignified manner is not the same as the right to die in an
unnatural way. 
• Maneka Gandhi v. the Union of India (1978): The court held Section 10(3)
(c) of the Passports Act, 1967 as void since it violated Article 14 and 21 of the Indian
Constitution. 
• Indra Sawhney v. the Union of India (1992): This judgement set a ceiling of
50% for reservation of backward classes. It also held that the criteria of classifying
groups as backward classes cannot be limited to economic backwardness. 
•
The doctrine of Stare Decisis 
The authority of judicial precedents is based on the doctrine of stare decisis. The term
stare decisis means to not disturb the undisturbed. In other words, precedents that have
been valid for a long time must not be disturbed. 
In India, subordinate courts are bound by the precedents of higher courts, and higher
courts are bound by their own precedents. But when it comes to High Courts, the
decision of one High Court is not binding on the other High Courts. Their decisions
are binding on the subordinate courts. In cases where there are conflicts between
decisions of court with the same authority, the latest decision is to be followed. As
per Article 141 of the Constitution of India, the Supreme Court’s decisions are binding
on all the courts across the country. However, the Supreme Court’s decisions are not
binding on itself. In subsequent cases where there are sufficient reasons to deviate
from the earlier decision, the Supreme Court can do so. 
Doctrine of Res Judicata 
The term res judicata means subject matter adjudged. As per this doctrine, once a
lawsuit has been decided upon, the parties are barred from raising the same issue in
courts again, unless new material facts have been discovered. They can’t raise another
issue arising from the same claim either since they could have raised the same in the
previous suit. 

Ratio Decidendi 
As per Salmond, a precedent is a judicial decision that contains a legal principle with
an authoritative element called ratio decidendi. Ratio decidendi means reason for the
decision. Whenever a judge gets a case to decide on, he has to adjudicate it even when
there is no statute or precedent concerning it. The principle that governs such a
decision is the reason for the decision which is also called ratio decidendi. 

Obiter Dicta 
The term obiter dictum means mere say by the way. This term is used to refer to
statements of law that are not required for the case at hand. A judge may in the
judgement of a case declare some legal principles to be applied in a hypothetical
situation. It does not have much impact or authority. However, the subordinate courts
are bound to apply the principles. 

3. Define Precedent. Explain the circumstances destroying or

weakening the binding force of precedent

Precedents are refer to the decisions given by courts in different cases. A judicial
decision has a legal principle that is binding on the subordinate courts. Once a court
has delivered a judgement on a particular case, the courts subordinate to it must abide
by the precedent while deciding on similar cases with similar facts. Some of the most
influential judicial precedents in India are the following: 
• Kesavananda Bharati v. the State of Kerala (1973): This case is what
introduced the concept of the basic structure doctrine in India, protecting the
fundamental features of the Indian Constitution from being removed. 
• Gian Kaur v. the State of Punjab (1996): This judgement affirmed that the
right to die does not come within the scope of Article 21 of the Indian Constitution.
The court affirmed that every person has the right to die with dignity. The court also
stated that the right to die in a dignified manner is not the same as the right to die in an
unnatural way. 
• Maneka Gandhi v. the Union of India (1978): The court held Section 10(3)
(c) of the Passports Act, 1967 as void since it violated Article 14 and 21 of the Indian
Constitution. 
• Indra Sawhney v. the Union of India (1992): This judgement set a ceiling of
50% for reservation of backward classes. It also held that the criteria of classifying
groups as backward classes cannot be limited to economic backwardness. 

Types of precedents 

Authoritative and Persuasive

Authoritative precedents are those precedents that must be followed by subordinate
courts whether they approve of it or not. They create direct and definite rules of law.
They fall into the category of legal sources of law. Persuasive precedents on the other
hand do not create a binding obligation on the judges. Persuasive precedents can be
applied as per the discretion of the judge. 
Authoritative precedents can be classified into the following two types: 
Absolute authoritative
An absolutely authoritative precedent is binding on subordinate courts in an absolute
manner and it cannot be disobeyed even if it is wrong. 

Conditional authoritative
A conditionally authoritative precedent is binding on other judges but it can be
disregarded in certain special circumstances as long as the judge shows the reason for
doing so. 

Original and Declaratory 

According to Salmond, a declaratory precedent is a precedent that simply declares an
already existing law in a judgement. It is a mere application of law. An original
precedent creates and applies a new law. 

Factors increasing the authority of a precedent 

1. The number of judges constituting the bench that makes the decision. 
2. A unanimous decision has more weight. 
3. Approval by other courts, especially the higher courts. 
4. The enactment of a statute that carries the same law subsequently. 

Factors decreasing the authority of a precedent 

1. Abrogation of judgement by reversal or overrule of a higher court. 
2. Abrogation of judgement by a statutory rule enacted subsequently. 
3. Affirmation or reversal of decision on a different ground. 
4. Inconsistency with the previous decision of a higher court. 
5. Inconsistency with previous decisions of the court of the same rank. 
6. Inconsistency with already existing statutory rules. 
7. Erroneous decision. 

4 . What is doctrine of Stare Decisis ?

The doctrine of Stare Decisis 

The authority of judicial precedents is based on the doctrine of stare decisis. The term
stare decisis means to not disturb the undisturbed. In other words, precedents that have
been valid for a long time must not be disturbed. 
In India, subordinate courts are bound by the precedents of higher courts, and higher
courts are bound by their own precedents. But when it comes to High Courts, the
decision of one High Court is not binding on the other High Courts. Their decisions
are binding on the subordinate courts. In cases where there are conflicts between
decisions of court with the same authority, the latest decision is to be followed. As
per Article 141 of the Constitution of India, the Supreme Court’s decisions are binding
on all the courts across the country. However, the Supreme Court’s decisions are not
binding on itself. In subsequent cases where there are sufficient reasons to deviate
from the earlier decision, the Supreme Court can do so. 

5. What is doctrine of Res Judicata ?

Doctrine of Res Judicata 

The term res judicata means subject matter adjudged. As per this doctrine, once a
lawsuit has been decided upon, the parties are barred from raising the same issue in
courts again, unless new material facts have been discovered. They can’t raise another
issue arising from the same claim either since they could have raised the same in the
previous suit. 

6. What is Ratio Decidendi 

As per Salmond, a precedent is a judicial decision that contains a legal principle with
an authoritative element called ratio decidendi. Ratio decidendi means reason for the
decision. Whenever a judge gets a case to decide on, he has to adjudicate it even when
there is no statute or precedent concerning it. The principle that governs such a
decision is the reason for the decision which is also called ratio decidendi. 

7. What is Obiter Dicta 

The term obiter dictum means mere say by the way. This term is used to refer to
statements of law that are not required for the case at hand. A judge may in the
judgement of a case declare some legal principles to be applied in a hypothetical
situation. It does not have much impact or authority. However, the subordinate courts
are bound to apply the principles. 

8. Define Customs & Explain the essentials of Valid Customs.

Introduction
Customs are the earliest sources of law and form the basis of the English Common
Law system as we see it today. They can be described as cultural practises which have
become definite and backed by obligation or sanction just by virtue of widespread
practise and continue presence.

Definitions

John Salmond
“Custom is the embodiment of those principles which have commended themselves to
the national conscience as principles of justice and public utility.”
For Salmond, a valid custom has absolute legal authority which as the force of law in
itself. He divides Customs into two:

• General Custom – A general custom has the force of law throughout the
territory of a state. For example, the Common Law in England.
• Local Custom – The local custom are those which operate have the force of law
in a particular locality. The authority of a local custom is higher than that of general
custom.
C.K. Allen
C.K. Allen defines custom as “legal and social phenomenon growing up by forces
inherent in society—forces partly of reason and necessity, and partly of suggestion
and imitation.”
J.L. Austin
“Custom is a rule of conduct which the governed observe spontaneous and not in
pursuance of law settled by a political superior.”
Austin’s ideas were often seen in contravention to customary law because for him, the
political superior was the only source of law and customs were not ‘real law’. They
needed the assent and command of the Sovereign to be considered law.

Origin of Customs
In primitive societies, there was no external authority over people, yet people
organized themselves in cohesive groups with a mechanism for fairness and liberty.
People developed rules and regulations through spontaneous reaction to their
circumstances as well as a coordinated conscious decision to arrive at them.
Eventually, people started recognizing traditions, practises, rituals which were
prevalent in a certain territory or group, and saw how they formed a systematized
approach to social regulation.
In Britain, Jurists and legislators started studying these patterns, recording their
prevalence, usage and applicability. These came to be known as customs, which were
then formalized and put into legislation in the Common Law of England.

There are two philosophers with alternate views as to how customs originate.
Sir Henry Maine

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes

or judgments.” Themistes were judicial awards which were dictated to the King by the
Greek goddess of justice. He explained, “Themistes, Themises, the plural of Themis,
are the awards themselves, divinely dictated to the judges.
He described the development in distinct steps. These are:
• Law by rulers under divine inspiration
At the first stage, law was given by rulers who sought divine sanction for their
commands. They were believed to be messengers of God, laying out the law for the
people.
2. Developing of Customs
Gradually, as people get into the habit of following the dictates of their rulers, they
develop into customary law, and becomes a part of people’s daily living.
3. Knowledge of law in the hands of priests
The knowledge of customs and practises is then studied by a minority, primarily
religious people. This is possible due to the weakening of the power of the rulers over
people. Priests study customs, recognize patterns, understand their relevance and
formalize customs.
4. Codification
The last and final stage is that of codifying these laws. Priests study customs   
meticulously and put it on paper. This code is then promoted and spread to newer
areas  and territories.

T. Holland

According to Holland, “custom is a generally observed course of conduct”.

Holland says that custom originated in the conscious choice by the people of the more
convenient of the two acts. 
For Holland, customs grow through imitation. In early political societies the king or
the head of the society did not make laws but administered justice according to the
popular notions of right and wrong, whichever were enshrined in the course of
conduct pursued by people- in general. What was accepted by the generality of the
people and embodied in their customs was deemed to be right and which was
disapproved by them or not embodied in their customs was deemed to be wrong.

Types of Customs
There are two broad categories into which customs can be divided. These are customs
without binding obligation and customs with legally binding obligations.

Customs without binding obligation

These customs are not enforceable by law, but are still prevalent in society and have
societal sanctions attached to them.
For example, every society has some customs about how to dress, how to address
elders or how to conduct marriages etc. These are not legally binding but can still have
powerful sanctions attached to them. For example, if a person comes to a funeral
wearing colourful clothes, he will be ostracized and alienated by others around him.
These customs, although not binding, hold tremendous importance in society and must
be followed uniformly for efficient functioning of society. 
Every one of these customs are pursued because of the fear that non-recognition of
such customs may lead them to be socially outcasted. Such customs are non-
authoritative as in they are not mandatory to pursue. Individuals follow them due to
the social pressure of society. At the point when a custom of this sort is abused,
society typically responds by demonstrating social dismay or ostracization; however it
has no sanction in the true sense of the term. Such customs can be called as ‘Social
Customs’.

Customs with binding obligations

In this classification those customs are discussed which in an objective and stringent
sense are viewed as the particular obligations and commitments of men. Such customs
may direct the commitment of marriage and the upbringing of children,the
transmission of property etc.
Such customs don’t relate to the circle of social conventions, outward propriety, or
style; rather, they are worried about the genuine business of society, the work that
must be practiced in request to verify and ensure necessary conditions for community
living.
Customs under this category have sanctions which are more stringent than the
previous category. If these customs gain widespread acceptance, they acquire legal
character. On violation of these customs, adequate penalty is incurred by the violator
as per the statute that governs the particular custom.
These can be further divided into Legal Customs and Conventional customs.

Legal Customs

The sanction of a legal custom is certain and absolute. It is negative in its operation, in
the sense that, if the custom is not followed, certain desired consequences would not
take place. For example, if you do not follow the custom of marriage properly, that
marriage will be considered void and any children born out of that marriage will be
considered illegitimate.
Legal custom is operative per se regardless of any agreement of participant parties
contrary to the custom. They are unconditional and absolute in their function and take
up the form of law.
They are obligatory rules of conduct on not based on faith or convention.
According to Salmond, Legal Customs have legal obligation in itself or proprio
vigore. He divides legal customs further into General and Local Customs which have
been discussed earlier.

Conventional Customs
According to Salmond, ‘A conventional custom is one whose authority is conditional
on its acceptance and incorporation in agreement between the parties to be bound by
it.’
A conventional custom or usage is a practice which comes into practise due to it being
followed for a long period of time and arising out of a contract between the parties; it
does not have any legal character in itself. Thus, a usage or conventional custom is an
established norm which is legally enforceable, not because of any legal authority
independently possessed by it, but because it has been expressly or impliedly
incorporated in a contract between the parties concerned.

Conventional custom may, again, be divided into two types—General Conventional

Customs and Local Conventional Customs. General Conventional Customs are
extensively practiced throughout a particular territory; whereas Local Conventional
Customs are limited to a particular place or to a particular trade or transaction.

Requisites of a Valid Custom

Reasonability
A custom must be in conformity with basic morality, the prevailing understanding of
justice, health and public policy. If it is not reasonable in its origin or practise, it
cannot be considered a valid custom. For example, Sati was an accepted custom once,
but with the modern moral understanding, it is reprehensible, and therefore it cannot
be considered a custom today.
This, however, does not mean that every custom must be perfect in its morality or
ethical concerns, or contain eternal wisdom, it just needs to be relevant to
contemporary times, useful and capable of being legislated on.

Conformity with Statute Law

No custom can be in contravention to the existing law of the land. Any practise,
however widespread and accepted, if found in violation of any statute of a said
territory cannot be considered a custom.
Certainty
It must be clear and unambiguous as to what the custom is and how it is practised. A
custom can only hold up in a court of law when it is not indefinite or uncertain. It
needs to be absolute and objective in theory and in action.

Consistency
A custom must be consistent with the general principles of Law which form the basis
of every law or statue which exists. These principles form the basis of ideas like
Justice, fairness and liberty, and every custom must be in consonance with these.

Antiquity
It is necessary for the custom to have been followed for time immemorial. The
practise must be so ingrained in society, that legislating it seems like the only natural
step. Recent or modern practises cannot be custom until they become firmly
established in society.

Continuity
A custom must not be interrupted or its practise must not be sparse. It needs to be
continuing for time immemorial without any interruption.

Must be peaceful in its practise

Any custom advocating or calling for violence, implicitly or explicitly, `cannot be
considered a custom.
Must not be opposed to Public Policy
Whatever the public policy may be of the state the custom is operating in, has to be
conformed to.
Must be General or Universal 
According to Carter,“Custom is effectual only when it is universal or nearly so. In the
absence of unanimity of opinion, custom becomes powerless, or rather does not
exist.” 

Theories of Customs

Historical Theory
As indicated by this school, custom contains its own legitimacy, since it would not
exist at all except if some profound needs of the general population or some local
nature of societal needs offer validity to it. 
The development of law does not depend upon the subjective will of any person. It
because of the knowledge of the communities and civilizations that have existed
throughout history.
Custom is achieved from the common conscience of the general population. It springs
from an innate feeling of right. Law has its reality in the general will of the people.
Savigny calls it “Volkgeist”.

Analytical Theory
Austin was the main proponent of the Analytical theory. For him, Customs did not
have any legally binding force in themselves. Their legal character is always subject to
the assent of the Sovereign. For him, customs were merely reflection of law, and were
not ‘real law’. Customs need the modification and the approval of judges, jurists or
rulers for them to have any binding force on people. This is in consonance with his
idea that all law is the ‘Will of the Sovereign”.

Conclusion
Therefore, it can be seen that Customs are a very important source of law, which have
their historical roots in the earliest and most primitive of societies, and still hold
relevance. Society is constantly in the process of establishing newer practices which
might in due time turn into usages or customs.
 9. Examine the Legislation as a source of law.

Legislation as a source of law

Legislation refers to the rules or laws enacted by the legislative organ of the
government. It is one of the most important sources of law in jurisprudence. The word
legislation is derived from the words legis and latum, where legis means law
and latum means making. 

Types of legislation 

According to Salmond, legislation can be classified into two types- Supreme and
Subordinate. 

Supreme legislation 

Legislation is said to be supreme when it is enacted by a supreme or sovereign law-

making body. The body must be powerful to the extent that the rules or laws enacted
by it cannot be annulled or modified by another body. Indian Parliament cannot be
said to be a sovereign law-making body as the laws passed by the parliament can be
challenged in the courts. The British Parliament, on the other hand, can be said to be a
sovereign law-making body since the validity of laws passed by it cannot be
challenged in any court. 

Subordinate legislation 

Legislation enacted by a subordinate law-making body is said to be subordinate

legislation. The subordinate body must have derived its law-making authority from a
sovereign law-making body. It is subject to the control of the supreme legislative
body. The following are the different kinds of subordinate legislation: 

• Executive legislation: This is a form of subordinate legislation where the

executive is granted or conferred certain rule-making powers in order to carry out the
intentions of the legislature. 
•
• Colonial legislation: Many territories across the globe were colonised by
Britain and such territories were called colonies. The legislation passed by the
legislature of such colonies was subject to the control of the British Parliament. 
•
• Judicial legislation: Courts also have a role in enacting laws that aid in
regulating the internal affairs and functioning of courts. 
•
• Municipal legislation: Municipal authorities also possess the law-making
power as they enact bye-laws. 
•
• Autonomous legislation: Another kind of legislation is autonomous
legislation, which is concerned with bodies like universities, corporations, clubs, etc. 
•
• Delegated legislation: Sometimes legislative powers may be delegated to
certain bodies by the parliament through principal legislation. A principal act may
create subsidiary legislation that can make laws as provided in the principal
legislation. 

10. Codification of Law

Codification implies collection, compilation, methodical arrangement and reduction to
coherent form the whole body of law on any particular branch of it so as to present it in
the form of a systematic, clear and precise statement of general principles and rules.
Certain condition are necessary for the codification of law. According to Roscoe Pound,
the following important conditions lead to codification:

 The exhaustion for the time being of the possibilities of juristic development of
existing legal materials, or where the legal institutions have become completely
 nature, or where the country has no juristic past, the non-existence of such
material.
 The unwieldiness, uncertainty and archaic character of the existing law.
 The development of an efficient organ of legislation. 

The need for one uniform law in a political community whose several sub-divisions has
developed or received divergent local laws.

Types of Codification

we can divide codification process into following types:

 A creative code is that which makes a law for the first time without any reference
to any other law. It is law-making by legislation. The IPC (Indian Penal Code) or
PPC (Pakistan Penal Code) are belongs to this category.
 A consolidating code is that code which consolidates the whole law - statutory,
customary and precedents on a particular subject and declares it. This is done for
systematizing and simplifying the law. The Code of Justinian belongs to this
category. The same is the case with the Indian Transfer of Property Act, 1882.
 A code may be both creative and consolidating. It may make new law as well as
consolidate the existing law on a particular subject. The recent legislation in India
on Hindu law and in Pakistan on Shariah court are the example of this kind.

Merits of Codification of Law

 The one great merit of codification is that law can be known with certainty. The
law of contract in India as well as in Pakistan can be found by a reference to the
Contract Act. Likewise, the rules of evidence in the country can be known by a
study of the Evidence Act. Thee certainty of law avoids confusion in the public
mind.
 Another advantage of codification is that the evils of judicial legislation can be
avoided, According to Macaulay judge made law in a country where there is an
absolute government and lax morality where there is no Bar and no public is a
curse and scandal not to be endured. According to Sir James Stephen: " Well !
designed legislation is the only possible remedy against quibbles and chicanery.
All the evils which are created from legal practitioners can be averted in this way
and in no other. To try avert then by leaving the law undefined and by entrusting
judges with a wide discretion, is to try to put out the fire by pouring oil upon it.
Leave a judge with no rule or with one of those leaden rules which can be twisted
in any direction, and you at once open to the advocate every sort of topic by
which the discretion of the judge can be guided. Shut the lawyer's mouth and you
fall into the evils of arbitrary government."
 Codification is necessary to preserve the customs which are suited to the people
of a country. According to Rattigan: " To codify, on the other hand, the existing
customs would perpetuate that system or retard its break-up. We should,
therefore, not be hampering a healthy development but avoiding a disastrous
tendency to disruption. We should not be introducing any novel or distasteful
legislation but doing our best to maintain all that was healthy and good in a
system which was suited to the people."
 The codification of law is necessary to bring about a sense of unity in the country.

Demerits of Codification of law

  Codification is not an unmixed blessing. It has its demerits also. Codification bring
rigidity into the legal system. It cramps and impedes the free and natural growth
of law. The law becomes petrified at the stage at which it is codified. According to
Gardozo: The inn that shelters the traveler for the night is not the journey's end.
The law, like the traveler must be ready for tomorrow. It must have a principle of
growth.
 Codification results in the regimentation of the life of the people. A code gives a
uniform law to the whole country. It does not bother about the differences in the
sentiments,convictions, aspirations, customs and traditions of the people living in
different parts of the country. Unfortunately, the various classes in society do not
run on the same road at the same speed. The result is that liberty and
individuality are sacrificed at the alter of uniformity.
 A code is the work of many persons and no wonder the provisions of a code are
found to be incoherent. However if the work is done by competent persons, this
defect can be avoided to a great extent,
 A code is likely to disturb the existing rights and duties of the people by creating
new rights and duties in place of the old ones, It disturbs the fabric of legal order
and create confusion and uncertainty.

Concluding Remarks

It is concluded that codification is an essential process of legislation having some

advantages and also have some disadvantages, However it is the process which filter
the laws from evils sides and makes it purified for the rights of the common peoples.

11. Legislation & Its Types.

Legislation: Meaning, Definition And Kinds

Meaning Of Legislation
The term legislation has been derived from latin word lagis+latio, lagis means law and
latio means making or settling thus legislation means making and settling of law.

What Is Legislation?
According To Austin
legislation includes activities which results into law making or amending or
transforming or inserting the new provision in existing law. Thus there can be no law
without a legislative act. Austin further says when a judge stablishes new principles by
his judicial decision he is said to exercise legislative power not judicial power.

According To Salmond
Salmond observe that legislation is that source of law which consists in the declaration
of legal rules by a competent authority. According to him the legislation can be used
in three sense:
• It is that source of law from where the making of law declared by a competent
authority are framed.
• Legislation include all methods of law making it includes direct and indirect
legislation. Law declared by legislature is called direct legislation. Where as all other
action of law making by any other authority except legislature are called indirect
legislation.
• Legislation Include every expression of will of the legislature whether making
law or not.

Kinds Of Legislation
• Supreme legislation.
• Subordinate legislation.

Supreme Legislation
Legislation made by supreme authority or Sovereign authority is called supreme
legislation legislation is supreme when it proceed from sovereign power in the state
and is incapable being repeat annulled or controlled by any other legislative authority.

Subordinate Legislation
subordinate legislation is proceed from other than sovereign power.

Types Of Subordinate Legislation:

6. Colonial Legislation.
7. Executive Legislation.
8. Judicial Legislation.
9. Municipal Legislation.
10. Autonomous Legislation. 
Colonial Legislation.
The British colonies and other dependies were conferred limited power of self
government by inferior legislation. The colonies in exercise of this power enjoy
limited power of law making. But the law made by colonial government could be
repealed altered or superseded by the imperior legislation. That is british parliament.

Executive Legislation
When law making power is exercised by executive under the authority of legislature is
called executive legislation. Ex. Art. 123 and 213 of Indian Constitution.

Judicial Legislation
When law making power is exercised by judges, is called judicial legislation. Ex. Art.
145,227 of Indian Constitution. and sec. 477of The criminal procedure code.

Autonomous Legislation
When law making power is exercised. By any independent authority that is private
entities, bodies, universities.
Municipal Legislation
12. When law making power is exercised by municipal authority, municipal
authority are allowed within there area to make bye-laws for limited purpose
such as water tax, land urban cess.

Unit-4 - Legal Concepts

Syllabus
Right and Duty, Kinds, Meaning of Right in its wider sense, Possession, Idea of
Ownership, Kinds of Ownership, Difference Between Possession and
Ownership, Nature of Personality Status of Unborn, Minor, Lunatic, Drunken
and Dead Persons.

1. Explain Legal Rights & its Kind. Discuss the characteristics of

legal rights.

Legal Rights
The standard of permitted action within a certain sphere are called rights. In other
words, a right is any action of a person which law permits. Legal rights is different
from a moral or natural right in the sense that it is recognized & protected by law,
whereas the latter may/may not be recognized & protected by law. We shall now,
discuss the types of rights in detail.

Kinds of Legal Rights

In simple words, the court of law can enforce legal rights against persons and also
against the government. A legal right is an interest accepted and protected by law.
Also, any debasement of any legal right is punishable by law. Legal rights affect every
citizen. Legal rights are equally available to all the citizens without the discrimination
of caste, creed & sex.

I. Perfect & Imperfect Rights

The perfect right has the following features:

• It is recognized by law.
• It is enforceable by law. So, in the case of breach of this right, a person may go
to court for enforcing this right.
• Thus, all fundamental rights, viz. Right to equality, right to religion, etc. are
perfect rights as these are enforceable by law.
• The imperfect right has the following features:
• It is recognized by law.
• It is not enforceable by law. This means that a person cannot go to court for the
breach of imperfect right.
All the time-bound claims or debts come under the category of imperfect rights.

II. Positive & Negative Rights

The basis of distinguishing right as positive or negative is the nature of correlative

duty it carries with it.
Under Positive rights, the person has to perform some positive duty to fulfill this right.
Negative rights prevent a person to do some act, that is it corresponds to a negative
duty. Example: Right to life under article 21 of the Indian constitution is a negative
right because it prevents a person to kill another person.

III. Real & Personal Rights

Real right or right in- rem corresponds to the duty imposed upon the people in general.
It is available against the whole world in general. Example: Tort or crime is a real
right.
Personal right or right in-persona is available against a particular person & it
corresponds to duty the duty imposed upon a particular person. Therefore, the
personal right generally arises out of contractual obligation. Example: breach of
contract is a personal right.

IV. Proprietary & Personal Rights

A proprietary right is available with respect to a property that is it relates to the owner
& his assets. The assets must have some monetary value. Example: the right to
ownership of property, Right to patent, Right to goodwill, etc.
A personal right is related to a person’s life i.e. his reputation or standing in the
society. These rights promote a person’s well being in society & have no economic
value. Example: Right to life.

V. Public & Private Rights

The rights which are vested in a person by state or govt. or constitution is called
public rights. Example: Right to vote, Right to use public parks, etc.
Private rights are connected with private individuals or persons. Example: A contract
entered into by two people gives rise to private rights to them.

VI. Inheritable & Uninheritable Rights

Inheritable rights can be passed from one generation to another, i.e. this right survives
even after the death of its owner. Example: A son is a legal heir to the property of his
father after his death.
Uninheritable rights die with the death of its owner. Example: All personal rights are
uninheritable rights.

V. Right in repropria & Right in realiena

A person possesses Right in repropria with respect to his own property. He can use,
dispose of, destroy, modify or exclude others from his property. Thus, this right gives
a person, absolute ownership over the property.
Right in realiena is the right in the property of another person. Example: Right of way
over the neighbor’s field. So, it is not an absolute right.

Essentials of Legal Rights:

According to Salmond, every legal right has the following characteristics. They are
as follows,
The person of inheritance:
The first essential element of the legal right is that there must be a person who is
the owner of the right. He is the subject of the legal right and described as the
person of inheritance. The owner of a right need not be  determinant or fixed
person. If an individual owes a duty towards society at large, then an indeterminant
body is the subject of inheritance.

Example :If ‘X’ purchased a car for RS.5 lakh from ‘Y’, then ‘X’ is called the
subject of the right.

The person of incidence / subject of the duty:

A legal right occurs against another person or persons who are under a
corresponding duty to respect that right. Such person is called the person of
incidence or the subject of the duty. If X has a particular right against Y, X is the
person of inheritance and Y the subject of incidence.
Example : if ‘X’ purchased a car for Rs.5 lakh from ‘Y’, then ‘Y’ is called the
subject of the duty.

The content of the right or the act or omission which the duty-bound person ought
to do in favor of the person entitled to the right.
The object of the right or the thing which is the subject matter of the right.
Example: if ‘X’ purchased  car for Rs. 5 lakh, then the car is the object of right
The title is nothing but the name given to the legal right . the title is a process, by
which the right is vested. Examples are gift, purchase etc.

Nature &. Characteristics of a legal right

1. Legal rights exist only in society– these rights are the consequence of humans
being a social animal.

2. Spurs the development of the nation– these rights are the pillars to building a
strong and constantly developing nation.

3. Rights are recognized by the all people in a society.

4. These are rational and moral claims– These are not illogical and do not depend on
hit and trial methods.

5. Since rights are present in a society, these cannot be exercised against the society
or against social good of the society.

6. Rights are equally available to all the people without any kind of discrimination.

7. These rights are dynamic. They can be changed according to the situations and
conditions prevailing in the society.

8. Rights are not absolute. They can never be. These have certain limitations attached
to it that are deemed essential for maintaining public health, security, order and
morality.

9. Rights are correlated with duties. They have an intimate relationship between
them, they usually go hand in hand.

10. These are protected and enforced by the laws of the state. It is the inherent duty
of the government to take various measure to protect the rights of the people.

According to Salmond every legal right has the following characteristics:

 i) The person of inherence: or the person in whom the right inheres or resides. He is
the owner of the right, the subject of the right or the person entitled.

ii) The person of incidence: or the person on whom the corresponding duty is
imposed. He is the subject of the duty.

iii) The content of the right: or the act or omission which the duty-bound person
ought to do in favour of the person entitled to the right.

iv) The object of the right: or the thing which is the subject matter of the right, and

v) The title of the right: or the source of the right.

2. Discuss the legal status of lower animals, unborn person and dead persons.

Modern jurisprudence considers humanism as one of the most important principles of

law, since a civilized society is the basis for the development of a person's rights. The
man does not exist as an abstract category within law, but serves as its subject that
owns legal status. That man is the creator of law and the civil society provides a
person not only with protection and defense, but also the ability to take an active part
in public administration that involves postulating the autonomy and individuality
of each human being as a basic constitutional value.

• Legal Status Of Unborn Person

• The legal understanding of the concept of �person' or �personality' revolves
around possession of rights and capacity to discharge legal duties. Hence, natural
persons, that is, human beings are the prime claimants of legal personality. Legal
personality of natural persons begins at birth and extinguishes with death with the
result that pre-birth, post death stages are devoid of any legal persona.Understanding
absence of personality in the pre-birth stage poses problems as the unborn being
understood as incapable of exercising any legal rights and not being duty bound
towards anybody, gets a raw deal when it comes to tortious acts committed towards it.
There are crimes committed against them that are not recognised as such and hence
make punishment impossible.For law, the problem is complicated by other disciplines
like theology and medicine maintaining the unborn to be �living' entity. A natural
person must be a living human being, i.e., must not be a monster and must be born
alive to be ranked as a person in law. The exception to this rule is that of an infant en
ventresa mere (child in womb), who is supposed to be born for many purposes. A
child in its mother's womb can acquire certain rights and inherit properly, but the
rights are contingent on his being born alive. He is counted as a person for purposes of
partition. Such a child can claim damages for injury sustained while in its mother's
womb.

A pregnant woman condemned to death is respite as of right till the delivery of the
child. A child not yet conceived cannot be deemed to be a person, although provision
may be made for such beings contingently coming into existence by vesting property
in trustees for them. The creation of proprietary rights in favour of unborn persons is
governed by the rule against perpetuity.

That rule provides that you cannot postpone vesting of an estate beyond a longer
period than the lifetime of the transferee or transferees existing at the date of the
transfer and the minority of the ultimate unborn beneficiary. The contingent rights of
unborn persons become vested on birth or at the end of such period not exceeding that
prescribed by the rule against perpetuity, as may be fixed by the person granting the
rights to unborn persons.�

• Legal Status Of Dead Persons:Dead men are no longer persons in the eye of
law. They have laid down their legal personality with their lives, and are now as
destitute of rights as of liabilities. They have n rights because they have no interests.
They do not even remain the owners of their property until their successors enter upon
their inheritance. However, there are three things, more especially, in respect of which
the anxieties of living men extend beyond the period of their deaths, in such sort that
the law will take notice of them.These are man's body, his reputation and his estate.
Dead men are not legal persons. They are immune from duties as no sanction can be
enforced against them. They are not the subjects of rights either. With their death they
lay down their legal personality and as such are destitute of legal rights and duties.The
law, however, interferes with respect to a dead person in the following ways:
•
A corpse is not a property and cannot be disposed of by will. But every person dying
has a right to a decent burial and the criminal law secures it.�
The law protects the reputation of dead persons from libelous attacks. Under the
Indian Penal Code it is defamation to impute anything to a deceased person if the
same would harm the reputation of that person if living and is intended to be hurtful to
the feelings of his family or other near relations. But here also the law does not protect
a dead person from being libeled but protects the living descendants who would suffer
by an attack upon their deceased ancestor.�
A man has extensive power to regulate by will the disposition and enjoyment of the
property which he leaves, subject of course to the restriction imposed by law. But here
again the testamentary dispositions are calculated only to protect the interests of living
persons.

• Legal Status Of Lower Animal: In the present day context, the animals are
deemed incapable of possessing legal rights & duties. They are merely things, often
the objects of legal rights and duties but they are never subjects of them.

For example:
A beast has no legal personality. Anything done to the animals may be a wrong to its
owner or to the society but it is no wrong to the beast. But the animals have two rights
to be protected.

• Cruelty to animals is made a criminal offence.

• A trust for benefit for a particular class of animals as opposed to one for
individual animal is valid and enforceable as a public and charitable one.

Causation

In law, a man is held liable either for doing acts which are mischievous or for causing
actual injury to the plaintiff. Causation, therefore, is an important concept for
determining liability in law. In fact, before deciding the question of liability the
question of causation should be decided first. Thus, if A is to be held responsible for
burning B's house, he must first be shown to have caused it. Causation, therefore, is an
important factor to determine responsibility whether it is of a criminal or civil nature.

The causation broadly involves two types of occurrences, namely:

11. Abnormal factors;
12. Human acts
Thus in the above illustration where a house has been burnt down, presence of
inflammable gas, ignition, an electric short circuit, etc. may be abnormal
circumstances causing fire or it may have been caused by some person. Once either of
these factors is found present, it is easy to know the causation and attribute
responsibility. An act may have been caused due to a change of causation involving
several factors. It is the established principle of law that a man is not held liable for his
act if the chain of causation is broken or interfered with. This is contained in the
maxim - novusactusinterveniens.

SALMOND explains the maxim through an illustration. He says:

if A stabs B and B is taken to hospital where, despite the fact that he is shown to be
allergic to terramyein, is injected Math a large dose of it, then his treatment and not
the stab would be treated as a cause of B's death because the treatment which was
abnormal, broke the casual connection between the -wound by the accused and the
victim's death.

The leading case on causation is relation to civil liability is in Re Polemis wherein the
defendant's servant carelessly dropped a plank into the ship's hold; the plank struck a
spark which ignited petrol vapour whose presence in the hold was unsuspected. The
defendant's were, however, held liable for damages caused to the ship. But this
decision has been overruled by the Privy Council in Wagon Mound case and now
forcibility of consequences is the test for determining causation and liability. In
certain cases, the law will presume that a man has intended the natural and probable
consequences of his act.
 Thus in Scott v. Shepherd the defendant shepherd mischievously threw a lighted
cigarette squib into the market place. It fell where Yates sold ginger-bread. One will
is, to prevent injury to himself and Yates, picked it up and threw it across when it fell
in the shop of one Royal who took it and threw it across when it struck the plaintiffs
eye and injured it.

The court held that the injury to the plaintiff was directly and immediately caused by
the defendant, as will is and royal, the intermediate agents acted involuntarily and for
self protection. The injury was held to be not too remote. It is true that the defendant
did not intend to injure the plaintiff and much less to destroy his eye, nevertheless, he
was held liable for one must answer for the consequences which common sense would
attribute to his wrong doing.

3.The Concept of Possession- its meaning, elements, kinds

and modes of acquisition.
In the institution of property possession has a crucial relationship with mankind.
There are two important rights related to property:

Regarding possession, as Salmond says, it is the most basic relation between a man
and a thing.

Possession of material things is necessary because human life and human society
would rather be impossible without the use and consumption of material things. As
civilization began to progress, the straggle for existence was so bitter that people
began to take possession of certain objects and considered them as their own.

They began to take pride in the possession of those things and were not prepared to
allow outsiders to interfere with them. They were determined to exercise continuous
control to the exclusion of all others. And from a humble beginning, the concept
began to grow and now much progress has been made in this connection.
From the legal point of view also it is a very important concept. Innumerable legal
consequences flow from the acquisition and loss of possession and thus, it is said that
there is no concept in the field of law as difficult as that of possession. Firstly, it the
prima facie evidence of ownership, called as nine out of ten points of law, meaning
that there is a presumption that the possessor of a thing is the owner of it and the other
claimants in order to have that thing must prove their title or better possessory right.

The principle has also been incorporated under Section 110 of the Indian
evidence Act,1872 also, as follows:Burden of proof as to ownership- when the
question is whether any person is the owner of anything of which he is shown to be in
possession, the burden of proving that he is not the owner is on the persons who
affirms that he is not the owner.

As Salmond also says, Possession is the objective realization of ownership, it is in fact

what ownership is in right. It is the de facto exercise of a claim while ownership is the
de jure recognition of that claim. Explaining the relation between possession and
ownership the Supreme Court of India in the case of B. Gangadhar v. B.R. Rajalingam
stated, possession is the external form in which claims normally manifest themselves.
It is in fact, what ownership is in right enforceable at law to or over the thing. [ii]

Meaning of the term possessionSeveral jurists have defined the term ‘possession’

differently, some of the notable definitions are as follows:

• Salmond-The possession of a material object is the continuing exercise of a

claim to the exclusive use of it.Thus, possession involves two things: (1) claim of
exclusive user; and (2) conscious or actual exercise of this claim, that is, physical
control over it. The former is the mental element called as animus possessionis and the
later is the physical element called as corpus possidendi. [iii] 
•
• Federick Pollock-He pointed out that in common parlance a man is said to
possess or to be possession of anything of which he has apparent control, or from the
use of which he has the apparent power of excluding others. So, he also talks about the
two elements: corpus possidendi and animus possession is. 

Elements of possession
It becomes sufficiently clear from the above-mentioned definitions that there are two
elements of possessions, namely corpus and animus. They can be discussed as
follows:

(a) Corpus of Possession (corpus possession is)-

Corpus implies two things:

• Possessor’s physical relation to the res, that is, the object; and
• The relation of the possessor with the rest of the world

There must exist some physical contact or control of the possessor with the thing so as
to give rise to a reasonable assumption that other people will not interfere with, or
simply, with the possessor’s right of use, enjoyment of that thing.

This non-interference can be secured in the following ways:

• Physical power of the possessor- the person in possession generally uses walls,
gates, doors, etc. to prevent others from interfering in his possession. For example, a
person is in possession of the money which he locks up in a safe. 
• Personal presence of the possessor- the physical power of the possessor and his
personal presence though commonly present together, but it is not necessary that they
must coincide. For example, a coin in a child’s hand implies possession even though
he doesn’t have the physical power to exclude interference with its possession. 
• However, possession is not lost by mere temporary absence of the possessor
from it. For example, a person who goes for walk leaving his things in the house,
doesn’t lose possession over them. Another example is where a person enters a
restaurant for dinner, takes off his coat and hangs it on the stand there, is still in
possession of the coat. And someone who takes away the coat dishonestly will be
guilty of theft. Similarly, when a person gives a dinner his silver forks while in the
hands of the guests are still in his possession. 
• Secrecy- if the possessor keeps the thing in a hidden manner, it is also a way of
keeping the thing secured from interference by others. 
• Protection afforded by the possession of other things- at times possession of an
object tend to confer possession of certain other things which are connected with it or
accessory to it. Thus, possession of land confers possession of things that are on or
under it. [iv] 
• Manifestation of animus domini- the visibility of claim is another element in
the de facto security of the enjoyment of a thing. a manifested intent is much more
likely to obtain the security of general acquiescence than on which it has never
assumed a visible form. Simply, open use of a thing carries with it a prima facie right
mindedness of its possession. [v] 
• Lastly, in social context, wrongful possession is not seen with favor, therefore,
respect for rightful, legal claim prevents people from interfering with the legal
possession of others.

(b) Animus Possidendi-

Mere physical contact or control over a thing is not enough, but it must be
accompanied with a will or intention to exercise such control. This mental or
subjective element in possession is called animus possidendi. To define, it is the
conscious intention of the possessor to exclude others from interfering with his right
of possession.
In the case of N.N. Majumdar v. State [vi] it was held that corpus without animus is
ineffective. Following are a few important points in respect of animus:
13. It is not necessary that the animus must be rightful, and may be wrongful as
well, like in case of a thief who is in possession of stolen goods. 
14. The animus need not be absolute. For example, a person still has legal
possession over a land even though others possess a right of way over that land.
Similarly, it need not be specific also. It can be general like a fisherman has
possession of all the fishes I his net, although he may not know their exact number, or
that a person is said to be possession of all the books in his library even though he
might have forgotten about the existence of some of them. 
15. It is not necessary that the animus must be to hold the thing as an owner. thus,
in case of a pledge, the pledgee has possession of the thing pledged, although he
intends to retain it in custody as a security to ensure repayment of his debt. The same
applies in case of a tenant too. In other terms, the animus need not be of the possessor
himself, a servant or agent does not keep a thing for his own use but on behalf of
another person. [vii]

Kinds of Possession
Following are the various kinds of possession:

(a) Corporeal and Incorporeal Possession-

Corporeal possession is the possession of material or tangible objects both movable
like books, cattle, watch and immovable like house, land, etc. And incorporeal
possession means possession of immaterial or intangible objects like copyright, patent,
goodwill, reputation, etc. Corporeal possession consists of both the elements, corpus
and, but actual use of the thing is not necessary, for example, a person can keep his
ring locked in a safe and never use it but still he will be said to be in possession of the
ring. On the other hand, for incorporeal possession actual, continuous use is
considered is necessary because physical control or contact, with the things, in
possession is not visible as an objective fact. [xv]

Also, some jurists are of the opinion that there is no such thing as incorporeal
possession because this concept falls short of requisites of real possession. It is for this
reason that in Roman law it is called as ‘quasi-possession’.

(b) Mediate and Immediate Possession-

Mediate or indirect possession is the possession of a thing through another person. For
example, A purchases a watch through an agent or servant, he has mediate possession
of it so long as the watch remains with the agent or servant. But if A goes to the
market himself and buys the watch, he is in immediate possession of it.
Salmond has given three categories of mediate possession as
follows:

• Possession acquired through an agent or servant;

• Possession held through a borrower or hirer to tenant, where the res, that is, the
object can be demanded at will;
• Possession is held through a person who is bound to return the object after a
certain period or on the fulfillment of certain conditions, like, the pledgee is bound to
return the goods pledged when the debt is paid."

This categorization has been criticized on many grounds. Firstly, has been pointed out
that in case of an agent or servant, he does not possess the thing but merely has
custody of it as here the animus is lacking. Secondly, it is said that two persons cannot
be in possession of the same thing, at the same time as Salmond himself points out,
exclusiveness is the essence of possession. And the situation is different in case of co-
owners as none of them has the right to exclude the other. And it is worth noticing that
the first category has been called as representative possession also, while some call it
as a type of duplicate or concurrent possession and the other two as derivative
possession. Lastly, English law doesn’t recognize this distinction between mediate and
immediate possession while the German law recognizes it.

(c) Concurrent or duplicate possession-

As mentioned above, exclusiveness is the essence of possession. It is not possible that
two persons have an independent as well as adverse claim to possession of the same
thing at one time. But it is possible that two persons have concurrent claims to the
possession of the same thing at the same time, that is, their claims are not mutually
adverse. And in such cases the possession is called as concurrent or duplicate
possession.
• The most important example of concurrent possession is what Salmond calls as
mediate and immediate possession, like of landlord and tenant respectively or of
bailee and bailor, etc.
• The possession of co-owners is another example of concurrent possession and
is called as compossession in Roman Law.
• Corporeal and incorporeal possession may also co-exist in respect of the same
material object. For example, a person has corporeal possession over a piece of land
while another has a right of way over it, which is incorporeal possession of it. [xvii]

(d) Constructive Possession-

It simply means that though the person is not in actual physical contact or control over
the thing, but he has the power as well as the intention to deal with it at his will. An
illustration is of constructive possession is when goods sold by one person to another
are stored in a warehouse and the purchaser doesn’t take the actual physical control
over the goods but only the key of the warehouse is given to him by the seller. Here,
the purchaser is in constructive possession of those goods. Similarly, a tenant may be
occupying a house but the landlord has constructive possession of it. Further, Pollock
has explained that constructive possession is possession in law and not possession in
fact. However, Keeton has not recognized this type of possession at all.

(e) Adverse Possession-

It means that a person who doesn’t have legal title to a property, usually a land,
acquires ownership of it based on continuous possession or occupation of the land
without the permission of its legal owner. [xviii] If the adverse possession continues,
undisturbed, for the prescribed period (which is 12 years in India) then the title of the
real owner comes to an end and the possessor becomes the owner thereof. This effect
of the lapse of the prescribed time on titles is called as ‘prescription’ and has two
effects- positive or acquisitive for the person in whose favor the right of ownership is
created, and negative or extinctive for the person whose right is extinguished. Lastly,
the requisites of adverse possession can be mentioned as:
16. Continuity of possession for the prescribed period
17. Adequate publicity, that is, the possession must not be held in secrecy but
openly,
18. Peaceful or undisturbed possession for the prescribed period

Modes of Acquisition of Possession

There are three modes of acquiring possession as follows:

(a) By Taking-
it is the acquisition of possession without the consent of the previous owner and it
may either be rightful or wrongful.

For example, as Keeton says, where an inn-keeper seizes the goods of his guest, who
has failed to pay his bill, there is acquisition of possession by rightful taking. But
where a thief steals something, he acquires possession wrongful taking. But it is not
necessary for acquisition of possession by taking that the thing must be already in the
possession of some other person. For example, res nullis, that is, a thing belonging to
no one, like, a wild animal or bird, etc. and acquiring possession of a res nullis is also
by way of taking.

(b) By Delivery-
it is the acquisition of possession with the consent of the previous owner and is of two
types, actual and constructive.

Actual delivery is the physical or actual transfer of a thing from the hands of one
person to another. It is of two kinds, one in which the owner still has a mediate
possession like when A lends his book to B, and the other in which the owner does not
retain even the mediate possession like when A sells the book to B.
Further constructive delivery is one in which there is no direct or actual transfer of the
possession of the thing. it is of three kinds:

• Traditio Brevi Manu- it is the giving up of possession to someone who already

has the immediate possession of the thing. For example, a person sells a book to the
hirer thereof who is already in immediate possession of the book. So, in other words,
it is only the animus that is transferred as the transferee already has the corpus.

• Constitutum Possessorium- as opposed to tradition brevi manu, constitutum

possessorium means that the mediate possession is transferred and the immediate
possession remains with the transferee. For example, if A purchases a bicycle from
someone who also does the work of giving bicycles on hire. So, A allows him to keep
the bicycle and continue to use it for hiring purpose. Here, although the immediate
possession is still with the other person, A has got its possession through constructive
delivery.

Attornment- in this kind of delivery, there is transfer of mediate possession while

immediate possession is in the hands of a third person. For example, A has goods in
the warehouse of B and they are sold by A to C, then in this case A has constructively
delivered the goods to C as soon as B agrees to hold them for C and no longer for A.
[xix] 

(c) Operation of law -

Possession can be acquired by the operation of law also like in case of adverse
possession and of succession.

Conclusion

It can be safely concluded that possession is the most fundamental relation between a
man and a thing, but one of the most difficult concepts of the field of law. It is a very
vast concept consisting of various kinds and modes of acquisition which deal with the
acquisition of res nullis too. It is the prima facie evidence of ownership and is
protected by law through various possessory remedies like the doctrine of jus tertii
and statutory remedies are also available like section 5 and 6 of the Specific Relief
Act, 1963, section 145 of the Code of Criminal Procedure, 1973, section 47 and 48 of
the Sale of Goods Act, as well as section 167 and 168 of the Indian Contract Act,
1872. Also, for de jure possession both the elements of corpus and are necessary, as
opposed to de facto possession.
4. Kinds and Characteristics of Ownership

Ownership refers to the legal right of an individual, group,

corporation or government to the possession of a thing. The subject of
ownership is of two types material and immaterial things. Material
ownership is that which is tangible like property, land, car, book, etc.
Immaterial ownership is that which is intangible like patent,
copyright, trademark, etc. 

Kinds of Ownership
Ownership could be classified as follows:

1. Corporeal ownership.
2. Incorporeal ownership.
3. Sole ownership.
4. Co-ownership.
5. Legal ownership.
6. Equitable ownership.
7. Trust and beneficial ownership.
8. Vested ownership.
9. Contingent ownership.
10. Absolute ownership.
11. Limited ownership.
1.Corporeal ownership:
Corporeal ownership is of that object which is tangible in nature.
Example: Land, goods, etc.
2. Incorporeal ownership:
Incorporeal ownership is that which is intangible in nature. Example:
Copyright, reputation and etc.

3. Sole ownership:
When a property is owned by only one legal owner it is called sole
ownership. Example: A person owns a car.

4. Co-ownership:
When a property is owned by two or more legal owners it is called
co-ownership or joint ownership. Example: Partnership of business
between three partners.

5. Legal ownership:
It is the legal claim or title to an asset or property.  Therefore, a
person who has legal ownership on a property can transfer it to the
ownership to another party. Example: a lender who has lent money
for a property is the legal owner of that property.

6. Equitable ownership:
We do not consider equitable ownership as true ownership because it
is only the benefit of the property that the buyer will use and enjoy.
Example: If MR. X is the legal owner of a property and MR.Y is the
equitable owner. Then MR.X is not entitled to the use and enjoyment
of the property whereas, MR.Y doesn’t own the property but has the
right to use and enjoy it, something which MR.X cannot do.

7. Trust and beneficial ownership:

Legal and beneficial ownership belongs to an entity who has the
specific property right “use and Title” in equity. But the property
belongs to some other person. Example: If MR. John’s property is
transferred to trustees to hold it for the benefit of the beneficiaries. It
is not MR. John’s trust that owns the land or shares but the trustees of
MR. John’s who owns it. So their names would be used as the trust
and beneficiaries.

8. Vested ownership:
According to law vested ownership has the complete and full
ownership on the property. Example: Two people sharing ownership
of a property. If one dies the other gets the gain of vested ownership
of the property.

9. Contingent ownership:
In Contingent ownership, the owner does not have the full claim to
the property, but he can claim it on the fulfillment of some
conditions.  These conditions are of two types namely condition
precedent and condition subsequent. Condition Precedent is where on
the fulfillment of it the title is completed. Condition subsequent is
whenever on the fulfillment of it the title already completed is
extinguished.

10. Absolute Ownership:

Absolute ownership is a free transferable and inheritable property a
person can have as his actual right. Example: The mortgage of some
property by its owner.

11. Limited Ownership:

Limited ownership is the ownership that is not absolute or perfect.
Where the owner enjoys the right to use and enjoy the property for a
limited period of time as long as some other person is alive.

Characteristics of ownership:

1) Right to possess -
    
           Possession means "physical control over a thing or an object. To constitute
ownership the owner must be entitled to the possession of the property.
2) Right to possess the thing, which he owns: 
     
          This right in strict sense. He may not have necessarily the possession for he may
have been wrongfully deprived of it or may have voluntarily divested himself of it.

3) Right to use and enjoy:

          The owner of the property has a right to use and enjoy the property he owns
subject to certain restrictions / regulations by law/state. These are liberties. The right
to manage it for example: the right to decide how it shall be used and the right to
income from it. These are in fact liberties; the owner has liberties to use the thing. I.e.
he is under no duty not to use it in contract with other who is under duty not to use it
or interfere with it. 

4) Right to Consume, destroy (liberties) or alienate:

          It means right to dispose off or gift or Mortgage or lease etc. The right of owner
over property is absolute, which includes the right of alienation.  The right to consume
and to destroy is straightforward liberties.

5) Perpetual right / Indeterminate Duration: 

     
         The owner of the property has perpetual right or the right for unlimited period
over the property. Those who are not owners may be entitled to possess or use the
thing but the period for which they are so entitled is a limited duration.  But in case of
Ownership, it is of an indeterminate duration. Thus the interest of Bailee or
lessee comes to an end when the period of bailment or lease is over. But the owner's
interest is perpetual and does not terminate even in owner's death, because in that case
the property will go to his legal hairs.

6) Actual right: 

          The right of owner over the property is heritable. It passes to the legal hairs after
his death.

7) Ownership has a residuary character: 

            It is possible that an owner has parted or given away so many rights in respect
of the things he owned. Still he continues to be the owner of the things in view of the
residuary character of ownership. For example if and owner gives the lease of his
property to A and easement to B, his Ownership of the land is now consists of
Residual right. For example rights which remain when the lesser rights have been
taken away.
Write a note on Distinction between possession and ownership

No
Ownership Possession
.
Possession is more the physical
Ownership involves the
control of an object. The
absolute rights and legitimate
possessor has a better claim to
1 claim to an object. It means
the title of the object than
to own the object by the
anyone, except the owner
owner.
himself.
 Ownership is the right of the
owner against the
As per the definitions, it is the
world indefinite in point of the
continuous exercise of a claim to
2 user, unrestricted in point of
exclusively possess and use the
disposition or destroying and
object/thing.
unlimited in point of duration
over a thing
 Ownership itself gives the
 However, it does not indicate
3 owner the right to
the right to ownership.
possession.
 The transfer of ownership is
 Transfer of possession is fairly
4 a technical and long process
easier and less technical.
and involves conveyance
 Ownership is essentially a
 It is not a right, just a prima
5 bundle of rights, all rights in
facie evidence of ownership
rem.

Unit- 5
Liability: Conditions for imposing liability
Wrongful Act: Damnum sine Injuria, Causation, Mens Rea, Intention, Malice,
Negligence and Recklessness,
Strict Liability, Vicarious Liability, Obligation
Substantive Law & Procedural Law.

1. Explain the theory of strict liability

Strict Liability

The principle of strict liability evolved in the case of Rylands v Fletcher[1].

In the year 1868, the principle of strict liability states that any person who keeps
hazardous substances on his premises will be held responsible if such substances
escape the premises and causes any damage. Going into the facts of the case, F had a
mill on his land, and to power the mill, F built a reservoir on his land. Due to some
accident, the water from the reservoir flooded the coal mines owned by R.
Subsequently, R filed a suit against F. The Court held that the defendant built the
reservoir at his risk, and in course of it, if any accident happens then the defendant
will be liable for the accident and escape of the material.

Going by the principle laid in this case, it can be said that if a person brings on his
land and keeps some dangerous thing, and such a thing is likely to cause some damage
if it escapes then such person will be answerable for the damaged caused. The person
from whose property such substance escaped will be held accountable even when he
hasn’t been negligent in keeping the substance in his premises. The liability is
imposed on him not because there is any negligence on his part, but the substance kept
on his premises is hazardous and dangerous. Based on this judicial pronouncement,
the concept of strict liability came into being. There are some essential conditions
which should be fulfilled to categorize a liability under the head of strict liability.

Essentials of Strict Liability

Dangerous Substances: The defendant will be held strictly liable only if a
“dangerous” substances escapes from his premises.
For the purpose of imposing strict liability, a dangerous substance can be defined as
any substance which will cause some mischief or harm if it escapes. Things like
explosives, toxic gasses, electricity, etc. can be termed as dangerous things.

Escape: One more essential condition to make the defendant strictly liable is that the
material should escape from the premises and shouldn’t be within the reach of the
defendant after its escape.
For instance, the defendant has some poisonous plant on his property. Leaves from the
plant enter the property of the plaintiff and is eaten by his cattle, who as a result die.
The defendant will be liable for the loss. But on the other hand, if the cattle belonging
to the plaintiff enter the premises of the defendant and eats the poisonous leaves and
die, the defendant would not be liable. In the judicial pronouncement of Reads v.
Lyons & Co.[2] it was held that if there is no escape, the defendant cannot be held
liable.

Non-natural Use: To constitute a strict liability, there should be a non-natural use of

the land.

In the case of Rylands v. Fletcher,

The water collected in the reservoir was considered to be a non-natural use of the land.
Storage of water for domestic use is considered to be natural use. But storing water for
the purpose of energizing a mill was considered non-natural by the Court. When the
term “non-natural” is to be considered, it should be kept in mind that there must be
some special use which increases the danger to others. Supply of cooking gas through
the pipeline, electric wiring in a house, etc. is considered to be the natural use of land.
For instance, if the defendant lights up a fire in his fireplace and a spark escapes and
causes a fire, the defendant will not be held liable as it was a natural use of the land.

These three condition needs to be satisfied simultaneously to constitute a strict

liability.

Exception to the Rule of Strict Liability

There are certain exceptions to the rule of strict liability, which are-

Plaintiff’s Fault: If the plaintiff is at fault and any damage is caused, the defendant
wouldn’t be held liable, as the plaintiff himself came in contact with the dangerous
thing.
In the judicial pronouncement of Ponting v Noakes,[3] the plaintiff’s horse died after
it entered the property of the defendant and ate some poisonous leaves. The Court held
that it was a wrongful intrusion, and the defendant was not to be held strictly liable for
such loss. 

Act of God: The phrase “act of God” can be defined as an event which is beyond the
control of any human agency. Such acts happen exclusively due to natural reasons and
cannot be prevented even while exercising caution and foresight.[4] The defendant
wouldn’t be liable for the loss if the dangerous substance escaped because of some
unforeseen and natural event which couldn’t have been controlled in any manner.

Act of the Third Party: The rule also doesn’t apply when the damage is caused due
to the act of a third party. The third party means that the person is neither the servant
of the defendant, nor the defendant has any contract with them or control over their
work. But where the acts of the third party can be foreseen, the defendant must take
due care. Otherwise, he will be held responsible.

For instance, in the case of Box v Jubb,[5] where the reservoir of the defendant
overflowed because a third party emptied his drain through the defendant’s reservoir,
the Court held that the defendant wouldn’t be liable.

Consent of the Plaintiff: This exception follows the principle of violenti non fit
injuria.
For instance, if A and B are neighbors, and they share the same water source which is
situated on the land of A, and if the water escapes and causes damage to B, he can’t
claim damages, as A wouldn’t be liable for the damage.

2. Explain Vicarious Liability

Vicarious Liability
Usually, we see that a person is not liable for the acts done by the other person.
However, under the law of torts, a person can be held liable for another person. Also,
for this person to held accountable for the act of the other person, it is necessary that
there exists any form of relationship between the person who is accused and the other
person. In short, there must be some sort of connection between these people. Learn
vicarious liability here. 

Examples of Vicarious Liability

The liability of doing any wrongful act on behalf of another person is based on the
concept of respondeat superior. Also, this means that the superior should be let liable.
Some of the examples of relationship where vicarious liability may arise are principal-
agent, master-servant, etc.
1. Master and Servant
In this case, the general rule is that the master is liable for all sorts of acts that are
authorized by him. Also, it is included that the acts are done by the servant at the time
of his/her employment.
Thus, for the liability to arise, the following conditions should be satisfied. One is that
the tort is committed by the servant. And other is that the tort committed by the
servant should be at the time of employment.
Although there is a difference between an independent contractor and a servant. An
independent contractor is someone who is employed to perform a certain task. Thus,
in this, the master cannot determine the way in which the job is to be done.
While a servant is someone who is employed to do the work under the controls of the
master and his direction. So, the important thing here to note is that the master is also
not liable for the acts that are done by the independent contractor.
For example, the driver you hire is your servant. You can give me advice as to how to
drive the car and give him directions. While the taxi driver in this scenario will be the
independent contractor. Thus, you can only tell the direction to the taxi driver but you
cannot order him.

2. Two Tests
Furthermore, to test the difference between an independent contractor and a servant
there are two tests. These tests are hired and fire test and direction and control test. In
the hire and fire test, you can whether someone is your employee or not by knowing
whether that person can be fired or not.
Also, ask whether that person receive the salary in the form of remuneration? If the
answer to both the questions is yes then that person is your employee. Although this
test alone cannot be a detrimental factor to decide anything. The other test that you
have to do is direction and control test.
In this test, check whether the person that needs to do the job receives the direction
regarding the direction from his master? If the answer is yes then that person is a
servant.
So, you can see that both the test needs to satisfied to find out whether the person is an
independent contractor or a servant.

3. Principal and Agent

Principal, in this case, is a person who authorizes someone to act on his/her behalf.
While the other who is advised to act accordingly is called as the agent. It is always
stated that the principal is stated liable for any act by his agent. It is important that the
act is authorized by the principal for him to be held liable. The authority that principal
acts can be in the form of implication or expressed.

Constituents Of Vicarious Liability

So the constituents of vicarious liability are:
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.

Examples of Vicarious Liability

The liability of doing any wrongful act on behalf of another person is based on the
concept of respondeat superior. Also, this means that the superior should be let liable.
Some of the examples of relationship where vicarious liability may arise are principal-
agent, master-servant, etc.

Definition of Negligence

According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care
by the plaintiff which results in undesired damage to the plaintiff.
In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to
do something which a reasonable man would do or doing something which a prudent
or reasonable man would not do.

It can be characterized in three forms-

Nonfeasance: It means the act of failure to do something which a person should have
done. For example, failure to carry out the repairs of an old building when it should
have been done.

Misfeasance: It means the act of not doing an action properly when it should have
been done properly. For example, Doing the repairs of an old building but doing so by
using very poor quality materials creating a major probability of a collapse which
injures people.

Malfeasance: It means the act of doing something which should not have been done
in the first place itself. For example, using products that are not allowed and
combustible to carry out the repairs of an old building, therefore, converting the
building into a firetrap leading to an accident.

Essentials of negligence
To commit the tort of negligence, there are primarily 6 main essentials that are
required. An act will be categorized as negligence only if, all the conditions are
satisfied namely –

1) Duty Of Care
It is one of the essential conditions of negligence in order to make the person liable.It
means that every person owes, a duty of care, to another person while performing an
act. Although this duty exists in all acts, but in negligence, the duty is legal in nature
and cannot be illegal or unlawful and also cannot be of moral, ethical or religious
nature.

In the case of Stansbele vs Troman(1948), A decorator was engaged to carry out

decorations in a house. Soon after The decorator left the house without locking the
doors or informing anyone. During his absence, a thief entered the house and stole
some property the value of which the owner of the house claimed from the decorator.
It was held that the decorator was liable as he was negligent in leaving the house open
and failed his duty of care.

2)The Duty must be towards the plaintiff

A duty arises when the law recognizes a relationship between the defendant and the
plaintiff and requires the defendant to act in a certain manner toward the plaintiff. It is
not sufficient that the defendant owed a duty of care towards the plaintiff but it must
also be established which is usually determined by the judge.

In the case of Bourhill v. Young (1943) the plaintiff who was a fishwife got down
from a tram car and while she was being helped in putting her basket on her back, a
motor-cyclist after passing the tram collided with a motor car at a distance of 15 yards
which was on the other side of the tram. The motorcyclist died instantly and the
plaintiff could not witness the accident or the dead body since the tram was standing
between her and the place where the accident occurred. She had only heard the sound
of the collision and once the body had been removed from the place of accident, she
visited the place and saw some blood which was left on the road. As a reaction to this
incident, she suffered a nervous shock and gave birth to a still-born child of 8 months
because of which she sued the representatives of the deceased motorcyclist. It was
held that the deceased had no duty of care towards the litigant and therefore she could
not claim any damages from the deceased’s representatives.

The case of Donoghue v. Stevenson (1932) has evolved the principle that we each
have a duty of care to our neighbor or someone we could reasonably expect to be
affected by our acts or omissions. It was held that, despite no contract existed between
the manufacturer and the person suffering the damage an action for negligence could
succeed since the plaintiff was successful in her claim that hat she was entitled to a
duty of care even though the defective good i.e a bottle of ginger beer with a snail in it
was bought, not by herself, but by her friend.
3)Breach of Duty to take care
It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but
he must also establish that the defendant breached his duty to the plaintiff. A
defendant breaches such a duty by failing to exercise reasonable care in fulfilling the
duty. In other words, the breach of a duty of care means that the person whohas an
existing duty of care should act wisely and not omit or commit any act which he has to
do or not do as said

in the case of Blyth v. Birmingham Waterworks Co, (1856). In simple terms, it means
non-observance of a standard of care.

In the case of Ramesh Kumar Nayak vs Union of India(1994), The post authorities
failed to maintain the compound wall of a post office in good condition on the
collapse of which the defendant sustained injuries. It was held that postal authorities
were liable since that had a duty to maintain the post office premises and due to their
breach of duty to do so, the collapse occurred. Hence they were liable to pay
compensation.

In the case of Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)A very old
clock tower situated right in the middle of a crowded area of Chandni Chowk
suddenly collapsed thereby causing the death of many people. The clock tower was 80
years old although the normal life span of the clock tower should have been 40-45
years. The clock tower was under the control of The Municipal Corporation of Delhi
and they had a duty of care towards the citizens. By ignoring to repair the clock tower,
they had breached their duty of care toward the public and were thereby liable

4)Actual cause or cause in fact

In this scenario, the plaintiff who is suing the defendant for negligence has the liability
to prove is that the defendant’s violation of duty was the actual cause of the damages
incurred by him.

This is often called the “but-for” causation which means that, but for the defendant’s
actions, the plaintiff would not have incurred the damages.For example, When a bus
strikes a car, the bus driver’s actions are the actual cause of the accident.

5)Proximate cause

Proximate cause means “legal cause,” or the cause that the law recognizes as the
primary cause of the injury. It may not be the first event that set in motion a sequence
of events that led to an injury, and it may not be the very last event before the injury
occurs. Instead, it is an action that produced foreseeable consequences without
intervention from anyone else. A defendant in a negligence case is only responsible
for those damages that the defendant could have foreseen through his actions.In the
case of Palsgraf vs Long Island Railroad Co(1928), A man was hurrying while trying
to catch a train and was carrying a packed item with him. The employees of the
railway saw the man who was attempting to board the train and thought that he was
struggling to do so. An employee on the rail car attempted to pull him inside the train
while the other employee who was on the platform attempted to push him to board the
train. Due to the actions of the employees, the man dropped the package. Which had
contained fireworks, and exploded when it hit the rails. Due to the explosion, the
scales fell from the opposite end of the station and hit another passenger, Ms. Palsgraf,
who then sued the railway company. The court held that Ms. Palsgraf was not entitled
to damages because the relationship between the action of the employees and the
injuries caused to him were not direct enough. Any prudent person who was in the
position of the railway employee could not have been expected to know that the
package contained fireworks and that attempting to assist the man the railcar would
trigger the chain of events which lead to Ms. Palsgraf’s injuries.

6)Consequential harm to the plaintiff

Proving that the defendant failed to exercise reasonable care is not enough. It should
also be proved that the failure of the defendant to exercise reasonable care resulted in
damages to the plaintiff to whom the defendant owed a duty of care.
The harm may fall into the following classes:-a.) Bodily harmb.) Harm to the
reputationc.) Harm to propertyd.) Financial Losse.) Mental Harm.
When such damage is proved, the defendant is bound to compensate the plaintiff for
the damages occurred.

In the case of Joseph vs Dr. George Moonjely(1994) The Kerela high court awarded
damages amounting to Rs 1,60,000 against a surgeon for performing an operation on a
24-year-old girl without following proper medical procedures and not even
administering local anaesthesia.

Res ipsa loquitur

Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”It is
considered to be a type of circumstantial evidence which permits the court to
determine that the negligence of the defendant led to an unusual event that
subsequently caused injury to the plaintiff. Although generally the duty to prove that
the defendant acted negligently lies upon the plaintiff but through res ipsa loquitur, if
the plaintiff presents certain circumstantial facts, it becomes the burden of the
defendant to prove that he was not negligent.

This doctrine arose out of the case of Byrne vs Boadle(1863)The plaintiff was walking
by a warehouse on the road and suffered injuries from a falling barrel of flour which
rolled out of a window from the second floor. At the trial, the plaintiff’s attorney
argued that the facts spoke for themselves and demonstrated the warehouse’s
negligence since no other explanation could account for the cause of the plaintiff’s
injuries.

Thus the following are the three essential requirements for the application of this
maxim-

1)The thing causing the damage must be under the control of the defendant or his
servants2)The accident must be such as would not have happened in the ordinary
course of things without negligence.3)There must be no evidence of the actual cause
of the accident.

Defenses available in a suit for negligence

1)Contributory negligence by the plaintiff

Contributory negligence means that when the immediate cause of the damage is the
negligence of the plaintiff himself, the plaintiff cannot sue the defendant for damages
and the defendant can use it as a defense. This is because the plaintiff in such a case is
considered to be the author of his own wrong. It is based on the maxim volenti non fit
iniuria which states that if someone willingly places themselves in a position which
might result in harm, they are not entitled to claim for damages caused by such harm.

The plaintiff is not entitled to recover from the defendant if it is proved that-
1)The plaintiff by the exercise of ordinary care could have avoided the consequence of
the defendant’s negligence.2)The defendant could not have avoided the consequence
of the plaintiff’s negligence by an exercise of ordinary care3)There has been as much
want of reasonable care on the plaintiffs part as on the defendants part and the former
cannot sue the latter for the same.

The burden of proving contributory negligence rests on the defendant in the first
instance and in the absence of such evidence, the plaintiff is not bound to prove its
non-existence

In the case of Shelton Vs L & W Railway(1946), while the plaintiff was crossing a
railway line, a servant of the railway company who was in charge of crossing shouted
a warning to him. Due to the plaintiff being deaf, he was unable to hear the warning
and was consequently injured. The court held that this amounted to contributory
negligence by him.

2) An Act of God
An Act of God is a direct, violent and sudden act of nature which by any amount of
human foresight could have been foreseen and if foreseen could not by any amount of
human care and skill have been resisted. Thus such acts which are caused by the basic
forces of nature come under this category.For example storm,tempest,extraordinary
high tide,extraordinary rainfall etc.
If the cause of injury or death of a person is due to the happening of a natural disaster,
then the defendant will not be liable for the same provided that he proves the same in
the court of law.

This particular defence was talked in the case of Nichols v. Marsland (1876) in which
the defendant had a series of artificial lakes on his land. There had been no negligence
on the part of the defendant in the construction and maintenance of the artificial lakes.
Due to unpredictable heavy rain, some of the reservoirs burst and swept away four
country bridges. It was held by the court that the defendant could not be said to be
liable since the water escaped by the act of God.

3) Inevitable Accident

An inevitable accident can also be called as a defense of negligence and refers to an

accident that had no chance of being prevented by the exercise of ordinary care,
caution, and skill. It means a physically unavoidable accident.

In the case of Brown v. Kendal (1850) the plaintiff’s and defendant dogs were fighting
and their owners attempted to separate them. In an effort to do so, Defendant beat the
dogs with a stick and accidentally injured the Plaintiff, severely injuring him in the
eye. The Plaintiff brought suit against the Defendant for assault and battery. It was
held that the injury of the plaintiff was as a result of an inevitable accident.

Conclusion
Negligence as a tort has evolved from the English law and accepted by the Indian law
as a substantially important tort. As discussed negligence is of two types, civil and
criminal and each has various repercussions. In order to prove that an act was
negligent, it is necessary to prove all the essentials namely duty, breach of duty,
damages and actual and proximate cause. An important maxim regarding negligence
i.e Res Ipsa Loquitur is used by the courts when a negligent act cannot be explained.
Also, the defences in a suit for negligence can be used by the defendant to defend
himself from a suit issued by the plaintiff.

Obligation

DEFINITION OF OBLIGATION

The word originally derives from the Latin term “obligare” which comes from the root
“lig” which suggests being bound, as one is to God for instance in “re-ligio”.
It is merely a class of duties in the legal sense, including those that are correlatives of
rights in personam.

Salmond defines obligations as the vinculum juris, or bound of legal necessity which
binds together two or more determinate individuals.

KINDS OF OBLIGATION UNDER JURISPRUDENCE

Considered from the point of view of their sources, obligations are divisible into the
following four classes:

• Contractual obligation ( obligations ex contractu);

• Delictual obligation ( Obligationes ex delicto);
• Quasi-Contractual obligation(Obligationes quasi-ex-contractu);
• Innominate obligation

CONTRACTUAL OBLIGATION

According to Section 2(h) of the Indian Contracts Act, contracts are the agreements
enforceable by law. Contracts typically form an arrangement between the parties who
are legally bound by the terms of the agreement; such agreements must therefore be
enforceable by law and should thus be called contracts. Under a contract, the
contracting parties have the obligation to meet the obligations they have established
on each other. It creates right in personam between the parties, but carries some
exceptions like promise of marriage, which falls within the law of status. In a contract,
in return for the promise made by the other person, a party agrees to or to abstain from
doing something. So, we may assume that there are rights and duties that they have an
obligation to fulfil on both sides of the contract. In situations where a party is unable
to fulfil its duty or actively refrains from fulfilling its obligations, such a condition
results in a breach of contract and the party suffering from such a breach has the right
to physically enforce the contract. Rights arising out of contract are right in personam
as the remedy available against is the party to the contract who makes breach of such
contracts. Contracts create mutuality of obligations as both promisor and promise
perform their duty and have rights against each other in a contract.

DELICTUAL OBLIGATION
These are the obligations arising out of tort. Torts is the branch of law that is deemed
to be civil wrong, i.e. civil in nature. Under Torts, damages are unliquidated (the one
wherein the amount of compensation is not pre decided) as opposed to contracts
where damages are inherently liquidated. Tortious liability arises from the violation of
duty against another individual. Dr. Winfield has defined liability in torts as “tortious
liability arises from the breach of duty primarily fixed by law; this duty is towards
persons generally and its breach is repressible by an action for unliquidated damages”.
It means delictual obligations are the duty of making pecuniary satisfaction for the
wrong, i.e. tort committed by the defendant. Such a duty is established by law and
individuals are allowed to comply with such a duty and if they do not comply with
their duty and cause harm to other individuals, then the person against whom tort is
committed has the right to claim unliquidated damages from the one who didn’t
comply with such duty. A wrongdoer therefore has the duty to pay unliquidated
damages to the person against whom he commits wrong.  Unliquidated damages are
not predetermined.

QUASI-CONTRACTUAL OBLIGATION
These are the obligations arising out of contracts. These obligations are regarded by
law as contractual though they are not so in fact. Primordial in Roman Law such
obligations were called obligationes quasi ex contractu, whereas in English law, they
are called quasi-contractual. The contracts which are created out of the interference of
courts but not by the formal agreement and the parties’ consent are termed as quasi
contracts. These are fictional contracts. Quasi-contractual obligations are very
precisely defined with examples under chapter V of the Indian Contract Act, 1872.
The obligation of a parent towards their child is a well defined illustration of quasi-
contracts. The relationship created on trust is yet another example.

INNOMINATE OBLIGATION 
Salmond defines Innominate obligation as residuary class of obligation.
Innominate obligations are those which are not purely contractual, delictual or quasi
contractual. This means they do not have a particular designation or term. For
Instance,   trustee ‘s obligation to the beneficiary. A trustee has a fiduciary obligation
with respect to the beneficiary. A trustee is directly responsible for infringement of the
obligation he has on the beneficiary’s property.

CONCLUSION
It can be well framed from the aforesaid discussion that though the area of obligation
differs from that of liability, the two are closely interlinked. It can well be understood
that where there is obligation, then its default gives rise to liability. Thus, obligation
has the same importance in law as is of liability. Therefore, obligation, as its
etymology denotes, is a tie, whereby one person is bound to perform some act for the
benefit of another under legal duty, which may arise out of a contract.
4. Explain "Actus non facit reum, nisi mens sit trea"

The Latin expression ‘actus non facit reum nisi mens sit rea’, loosely
translated as “an act does not render a man guilty of a crime unless his mind
is equally guilty,” expresses a foundational concept in criminal law. This
means that proving criminal culpability necessitates not only the presence of
the actus reus and the  mens rea, but also the coincidence or concurrence of
the mens rea with the conduct that creates the actus reus. This article aims
to explore the concerned maxim with respect to the criminal laws in India.

Actus non facit reum nisi mens sit rea 

The Supreme Court of India while deciding on the case of C.K. Jaffer Sharief
vs State (Thr C.B.I.) (2012) had observed that an individual’s criminal
culpability would be attached if they broke the law. The norm, however, is
not absolute, and it is subject to the constraints set out in the Latin
maxim actus non facit reum nisi mens sit rea. It means that there can’t be a
crime without a criminal mind. To hold someone criminally responsible, it
must be proven that their actions resulted in an illegal act and that their
actions were accompanied by a legally blameworthy mental attitude. As a
result, every crime has two components, a physical element and a mental
aspect, i.e. actus reus and mens rea respectively.

Mens rea is the source of the Latin maxim actus non facit reum nisi mens sit
rea. Actus non facit reum nisi mens sit rea clarifies the application of mens
rea in criminal law. It asserts that a person is only guilty of committing a
crime if the conduct is done with the purpose to commit a crime. This maxim
is used to judge whether certain conduct is illegal or not. Crimes done with a
particular intent, rather than unforeseen or inadvertent acts, are subject to
harsher penalties. However, no violation of the law may go unpunished. 

The origins of this adage are yet unknown. Pollock and Maitland tracked the
earliest and most distant reference to this maxim to St. Augustine, but they
were unable to provide a sufficient context for the maxim discovered. This
principle was later acquired from contemporary theology by Lord Edward
Coke, and it is now universally used in the common law. He traced the
origins of this aphorism back to St. Augustine’s Sermon 180. In the sermon’s
body, St. Augustine discusses an instance of perjury. In one instance, he
talks of a man who was asked if it rained in a certain location. The man
believed it did not rain but had further believed it was in his best interests to
testify that it did. It did, in fact, rain there, but the man was unaware of this
and believes it did not. The man, according to Augustine, was, therefore, a
liar.
Actus non facit reum nisi mens sit rea under the
Indian Penal Code, 1860
The maxim actus non facit reum nisi mens sit rea has been integrated into
the Indian Penal Code, 1860 in two basic ways: 

1. Through express inclusion of the required state of mind (mens rea)

in the definition of an offence.
2. Through ‘General Exceptions’ enumerated in Chapter 5 of the Code,
some of which, such as mistake of fact, accident, infancy, and
insanity, deny the existence of mens rea.

Exceptions of actus non facit reum nisi mens sit

rea 
In certain situations, the law can create offences based only on the physical
act, disregarding ‘the state of mind’ of the person committing the crime.
These situations are likewise punished and are considered exceptions to the
general rule of actus non facit reum nisi mens sit rea. In basic terms, a crime
for which  mens rea  is not a necessary criterion is an exception to this rule.

While hearing the case of Ranjit D. Udeshi v. the State of

Maharashtra (1964), the Supreme Court of India observed “We do not accept
the notion that the prosecution must establish that the person who sells or
holds for sale any obscene object knows that it is obscene before he can be
declared guilty”.  As a result, mens rea is less significant than the act
committed. If obscene material is discovered in a person’s possession, he will
be prosecuted under Section 292 of the Indian Penal Code, 1860. It is not
necessary to show his purpose or awareness of the obscene material.

Ignorance of law  
Because every citizen and non-citizen is expected to know the laws of the
nation they are in or visiting, ignorance of the law cannot be used as a
justification to commit a crime. As a result, in such circumstances, the
existence or lack of purpose is not taken into account, making it an exception
to the rule. 

In the case of the State of Maharashtra v. Mayer Hans George  (1964), the

Indian Government had issued an order on November 24th, banning gold
transportation outside of India in order to save foreign exchange and combat
smuggling. The appellant, M.H George, a German national, boarded an
aircraft in Zurich on November 27th to travel to Manila. On the 28th of
November, the plane made a stopover in Bombay, where he was
apprehended by a customs official with 34 kg of gold. He was held liable
under Sections 8 and 23 of the Foreign Exchange Regulation Act, 1947.
Later, the matter went to the Bombay High Court, where he was acquitted
since he had been exposed to the law recently and, as a German national, he
was unaware of the Indian legislation and had no intention of smuggling the
gold. However, when the matter went to the Supreme Court, he was found
guilty since ignorance of the law could not be used as an excuse, even
though he had no intention of smuggling the gold.

Public nuisances 
A public nuisance is a criminal offence in which an act or omission obstructs,
harms, or causes trouble to the general public’s right. It may also be
described as conduct that jeopardises the broad public’s interest or comfort.
In such circumstances, strict responsibility is applied since the public’s
interest is jeopardised. As a result, these offences are penalised whether or
not there is a mental purpose.

Petty offences 
Petty offences are the least serious kind of offences. When it comes to minor
offences like running a red light, proving the mens rea behind such an act
might be challenging. As a result, in such instances, acts such as that of
jumping the red light may be considered criminal. As a result, it is an
exception to the general rule of actus non facit reum nisi mens sit rea.

Strict liability 
Strict liability offences are those in which the prosecution does not need to
show that the defendant behaved with a guilty mental state since the
conduct is sufficient to establish the crime. The activities that fall under these
categories are damaging to society or the State. For example, under Section
375 of the Indian Penal Code, 1860, rape is defined as an act of sexual
intercourse without consent. In this situation, even if mens rea is not
required, the physical act alone is sufficient to convict a person under this
provision.

Insanity 
A criminal purpose cannot be attributed to a person who, due to a mental
illness or immaturity, is unable to comprehend the nature of the conduct he
has performed or to discern between good and evil. As a result, the defence
of insanity is an exception to the rule of actus non facit reum nisi mens sit
rea. The essential precept of criminal law, actus non facit reum nisi mens sit
rea, is embodied in Section 84 of the Indian Penal Code, 1860. 

1. The nature of the conduct, or

2. That he is doing something that is either improper or illegal.
The accused is protected not only when, on account of insanity, he was
incapable of knowing the nature of the act, but also when he did not know
either that the act was wrong or that it was contrary to law, although he
might know the nature of the act itself. He is, however, not protected if he
knew that what he was doing was wrong, even if he did not know that it was
contrary to law, and also if he knew that what he was doing was contrary to
the law even though he did not know that it was wrong. The onus of proving
unsoundness of mind is on the accused.

Vicarious liability 
The term “vicarious liability” refers to a situation in which the master is held
liable for the actions of his servant while on the job. If the servant has
committed a criminal offence without the master’s knowledge, this general
norm becomes an exception under the maxim actus non facit reum nisi mens
sit rea. The servant’s condition of mind shall not be blamed on the master in
such a circumstance. This was the finding in the notable case of Chisholm v.
Doulton  (1889).

Conclusion 
The Latin maxim actus non facit reum nisi mens sit rea  have been playing
the role of a catalyst in criminal law. The very essence of the criminal law
system has been embodied in this maxim. This maxim has not only confined
itself in criminal statutes but also in its practical implementation has been
reflected in several judgments discussed in this article. Overall, the criminal
law system would have been paralysed if this maxim would not have come
into existence. 
 Injuria sine damno

Injuria sine damno is an infringement of a legitimate right without creating any

mischief, misfortune or harm to the offended party and at whatever point any lawful
right is encroached, the individual in whom the right is vested is qualified for bring an
activity Each individual has an outright right to his property, to the insusceptibility of
his individual, and to his freedom and encroachment of this right is significant as such.
An individual against whom the lawful right has been encroached has a reason for
activity with the end goal that even an infringement of any lawful right purposely
brings the reason for activity.

The law even gives the freedom that if an individual only has a danger of
encroachment of a lawful right even without the injury being finished, the individual
whose right has been undermined can bring a suit under the arrangements of Specific
Relief Act under Declaration and directive.

For Example: If a person is wrongfully detained against his will, he will have a claim
for substantial damages for wrongful imprisonment even if no consequential loss was
suffered upon the detention.

As was refered to on account of Ashby v/s. White (1703) wherein the offended party
was a certified elector at the parliamentary decisions which were held by then of time.
The litigant, a returning official illegitimately wouldn't take the offended party's vote.
The offended party experienced no harm since the up-and-comer which he wished to
cast a ballot previously won the decisions yet, the respondents were expected to take
responsibility. It was inferred that harm isn't simply monetary however injury imports
a harm, so when a man is impeded of his freedoms he is qualified for cures.

Bhim Singh v/s. State of Jammu & Kashmir

In the accompanying instance of Bhim Singh versus Province of Jammu and Kashmir,
Mr Bhim Singh, a MLA of Jammu and Kashmir was captured and kept in police care
and was intentionally kept from going to the meetings of the authoritative get together
to be held. There was likewise a democratic meeting which would have been held and
since he was not permitted to go. At the gathering meeting where his vote was vital.
However the individual to whom he needed to cast a ballot won yet his entitlement to
cast a ballot was encroached.

5. Explain the importance of the chain of causationin establishing

the liability.
To make the defendant liable for an offence, the Prosecution has to prove that the
defendant’s actions caused the harm. In other words, it has to be established that the
accused conduct was the “causation factor” in resulting harm. In Conduct based crime,
causation is not a relevant factor. However, in Result based crimes, causation is
relevant to be proved. Broadly, causation can be divided into two categories that are
“factual causation” and “legal causation.

”Factual Causation
It involves a layman inquiry to be made to find out the cause of death. It is often
known as ‘but for’ causation (Causa sine qua non). The question one needs to ask is
whether “but for” the accused act, the arm would have occurred. For instance, in R v
White, [1] the accused mixed potassium cyanide in his mother’s drink. The mother
died and the accused was charged with murder. But later on, it was found that the
deceased only drank a small amount and her death was of natural causes and was only
coincidental to the defendant’s act. The accused was only found guilty of attempted
murder. However, a lot of times, it is not easy to find factual causation or any direct
cause of death as the factual causation is extremely broad and sometimes the
defendant can be found guilty even if the harm is far remote from his actions. This
leads to Legal Causation which can limit the potentiality of broad liability.

Legal Causation
It is a more narrow and subjective concept as compared to factual causation. Not
every cause in fact can be said to be the cause in law. It is more of an inquiry made by
a lawman rather than a layman. The isolation of a legal cause from amongst a possible
multitude of factual causes is a process involving subjective common sense rather than
objectively measurable criteria. However, while attempting to assign criminal liability
in this manner, one must seek some form of abnormality or culpable behavior.  

There are essential conditions to be satisfied before applying this test. First, the cause
must be substantial to the extent that it is more than slight. For example in R v
Henniggan, [2] the defendant argued that he was not guilty of causing death by
dangerous driving as the other driver was more at blame than him. The court rejected
his plea and held that as long as his contribution is substantial in causing death, he
would be held liable. Second, the defendant must be blameworthy to some extent. For
instance, in R v McKechnie, [3] the defendant inflicted serious head injuries on
victim. These were not in themselves fatal, but they prevented doctors from operating
on victim’s duodenal ulcer, as a result, the victim died. The Court held the defendant
liable for the victim’s death. Lastly, the defendant’s act must be operating at the time
when the liability arose. For example the R v Pagett, [4] case. 

Novus actus interveniens

The defendant may avoid liability even if found factually caused the harm in two
circumstances known as Novus actus interveniens. First, some third party intervened
between the defendant’s act and the result i.e. voluntary intervention by 3rd party.
And second, some events occurred between the defendant’s conduct and end result i.e.
abnormal intervention or unforeseeable natural events. 
 
Voluntary intervention by Third Party
The break of the chain of causation by a third party is only when the defendant’s
actions are non-operable. So if the defendant’s act was operating and substantial on
the cause of the victim’s harm, the chain of causation is not broken. In R v. Pagett, the
defendant used his girlfriend as a human shield against police while shooting at the
police. In return fire, the girlfriend was shot dead by the police. The argument of the
defendant that the actions of the police caused the death and not his actions were
rejected by the court. The police shots did not break the chain of causation. The court
held that the defendant’s act was foreseeable and therefore did not break the chain of
causation.

Victim’s intervention
These are the circumstances where the victim itself intervened somehow in the
process of causation. For example, in R v. Royale (1991), the conduct of the defendant
caused apprehension in the mind of the victim for her safety. So the victim’s jump
from the third floor and cause of injury was held not to break the chain of causation as
her intervention was not voluntary and comes under natural consequence or forcibility
of situation. On the other hand, in R v. Kennedy, [5] the court held that the person
who provided the syringe containing heroin could not be held liable as the victim
himself was injected with no force. In other words, the injection was carried out freely
and hence broke the chain of causation from the act of providing drugs.

Eggshell Skull Rule

This rule suggests that the defendant must take his victim as they find them. In R v
Blaue, [6] the defendant stabbed the woman who was Jehovah’s Witness. As a result
of her religious belief, she refused a blood transfusion which would have saved her
life. The court held the defendant liable as the religious beliefs of the victim were
considered to be a non-voluntary part and so didn’t break the chain of causation.

Medical Intervention
In R v. Jordan, [7] the victim who had stab wounds died after eight days of stabbing.
By this time his wounds were largely healed. The court held that it was the medical
treatment that went wrong after healing that caused the death. So the wounds were not
substantial and operating cause of death rather the antibiotics administered to the
victim i.e. the medical treatment which was “palpably wrong” was held to be the
cause of death. On the other hand, in R v. Smith [8] the defendant stabbed his fellow
soldier with a bayonet during a fight. Some other soldiers took him to the medical
Centre by dropping him twice on the way. The army doctor failed to notice the
victim’s left lung which was pierced. The Court held that the poor medical treatment
did not break the chain of causation as the wounds were still operating and substantial
cause of death. 
So, it can be said that if the second cause overcomes the original cause, then the harm
does not flow from the act of accused. In Contrast, the wounds in Jordan’s case were
largely healed and so the medical treatment was the sole cause of the victim’s death.
Jordan can carve out an exception to explanation 2 of Section 299 of IPC if the
medical treatment is so palpably wrong which broke the chain, then explanation 2 of
section 299 will not apply.

In later years, the court narrowed it further and held that the chain of causation will
break where the medical treatment is so poor and independent of the defendant’s act,
that the court regards the act of the defendant as insignificant as compared to poor
treatment. For example, in R v. Cheshire [9] the defendant shot the victim who later
on died due to medical complications arising from a tracheotomy that he underwent as
part of his treatment. The gunshot was healed at the time of death but the court
convicted the defendant because complications were still a natural consequence of the
defendant’s actions as medical complications can arise at a later stage of surgery
which the court considered as normal or common occurrence. 

However, the crucial distinction between abnormal and normal conditions is that an
individual is only the moral/legal cause of those events in the world that are
accompanied by the normal range of attendant conditions. Where an abnormal
condition ensues, it becomes the cause in place of the human intervention, which in
turn becomes an antecedent condition to the abnormal element. The problem is that
the difference between ‘normal’ and ‘abnormal,’ ‘cause’ and ‘condition’, is based on
one’s judgment. According to Hart and Honore, the distinction between cause and
condition may be drawn in different ways in the same case according to the context. It
can change, amongst other things, when our perceptions of what is acceptable and not
acceptable, permissible and not permissible, in society’s provision for dealing with
particular problems change. Therefore, individual responsibility ultimately relies upon
a variable evaluation of what is ‘normal’ in social life and no definitive proposition
can be laid down.