Jurisprudence

Jurisprudence is the study of legal principles. It can be scientific, philosophical, and

historical. It lays down the foundation of law. It explains the history and rationale
behind the concept of law.

Name of Sources of law Prominent theories Important

school thinkers notable work
exponent
supporters
Analytical It takes the Bentham, Austin’s
/imperative legislation as austin, imperative
the source of salmond, HLA theory of law,
law. Hart, kelson
Natural school Socrates, Renaissance U6
plato and theory, social
Aristotle contract,
(ancient). modern
(Medieval) – theory.
Aquinas, and
Augustine
Revival
phase – fuller
and stamler
Historical Montesquieu,
burke,
savignyi,
henry maine
Sociological Hobbs, locke,
russou

Philosophical

Realist

Positive

Question of law, question of fact ad role of sanctions

Diff between hist and sociological school of law
Socio: in the beginning society was governed by customs which had only social
sanctions then came the supremacy of priests. After that secular state emerged and
dominated all institutions since individual interest was disregarded. There was a dire
need for recognizing these interests

HISTORICAL SCHOOL
It is based on the premise that it disregards all other sources of law.

12/09/23
Natural law: these are the set of universal principles and rules that properly govern
moral human conduct.
Greek philosophy
Sophists:
The Greeks were the earliest to have a conception of Keeton of natural law
principles. For the sophists natural justice was a body of permanent unchangeable
and non – negotiable rules which were never arbitrary and always applicable equally
to all human beings.
Plato’s contribution to natural law theory:
Plato believed in the idea of justice and not law as law is an abstract concept which
cannot be applied to complex situations. His ideas of law and justice revolved around
his fundamental belief in the inmate inequality of human beings. He opined that
nature has endowed human beings with varying degrees of capacity and thus he
justified the creation and continuity of class system in a society based on division of
labor.
Philosopher king – gold
Auxillary – silver
Farmers –
Trader –
Only farmers and traders were allowed to keep and buy land and property.
Aristotle's idea of natural law: His perception of law was based on a deal and
pragmatic understanding of human nature. Aristotle believed that Plato’s conception
of justice demanded exceptional nobility from individuals which was anti thesis of
average human nature. He conceived man as a part of the nature and rationality was
endowed to human beings and thus humans are best of animals when controlled by
law.

POSSESSION
Possession is the most basic relation between man & things.
Salmond: It is prima facie evidence of ownership. In fact possession is considered
as "nine-points" (out of ten) of law. The meaning is that it is an evidence of
ownership, and he who interferes, must prove his better right or title, over the person
in possession.
Legal possession should have two elements corpus (physical) & animus (or mental
element) to the exclusive use of the thing.
Possession in fact- 'It is a relationship between a person and a thing" (Salmond) To
possess means to have physical control. Such a control is relative i.e., (1) it may be
absolute e.g. a ring a person wears; (2) it may be to exclude other persons from
interfering i.e., to keep a thing is a safe.
Hence, what is required is that the person should have a general control over the
thing & should be capable of using it, excluding others. Then there is "possession in
fact”.
Possession in Law - Law given protection to possession. The person in possession
has a right in rem. When he is wrongfully dispossessed, the court first determines
whether the plaintiff was in possession, and, if so he is protected.
Possession in law or legal possession should have corpus and animus. Corpus
means effective control over the thing & to exclude others. Animus is intention to
have it as owner.
Possession under Roman Law
1. Corpus possessionis- Simply a physical control over a thing.
2. Civilis possessionis- legal possession. The property disputes mostly decided on
the basis of this possession.

Theories of Possession
(a) Savigny’s Theory
The possession consisted of two ingredients: corpus possessionis (i.e. effective
‘physical’ control) and animus domini (i.e. intention to hold as owner). Possession is
both corpus and animus, the permanent loss of one or the other element brought
possession to an end.
(b) Salmond’s Theory
He distinguished between corporeal possession of physical objects and incorporeal
possession of rights. Corporeal possession is “the continuing exercises of a claim to
the exclusive use of it”, which involves two ingredients: corpus possessionis and
animus possidendi.
Kinds of Possession
1. Corporeal and Incorporeal- Possession for material thing. Incorporeal-
Possession for inventible thing
2. Mediate and Immediate Possession- Mediate means possession through third
person. Immediate - Direct possession.
3. Adverse Possession- it implies a possession by a person initially holding the
land on behalf of some other person and subsequently setting up his own claim as
a true owner of that land.
4. Concurrent or duplicate- Two persons can be in possession of the same thing.
Mode of Acquisition of Possession 1.
By taking- Without Consent of owner.
2. By delivery- with consent of owner.
3. By operation of Law.
Cases of Possession
The cases can be broadly divided into three categories:
(I) Possession of a thing lying loosely on the land.
(II) Possession of a thing attached to/ or embedded in the land.
(III) Possession of a thing delivered to someone viz. larceny cases.
Some important cases on possession
Cartright v. Green – in this case a bureau was delivered to a carpenter for repairs.
There was some money in a secret drawer of bureau. The carpenter found the
money and he appropriated it. He was convicted for larceny. It was held that the
money was not in his possession until he found it. Here animus was lacking in
carpenter.
Merry v. Green- in this case a person purchased a bureau. He found some money
in a drawer, which he appropriated. He was convicted for larceny. R v. Hudson – in
this case accused received an envelope that was intended for another man of the
same name. The accused kept it with him for some days and then opened it. He
found inside a cheque, which he appropriated. He was convicted for larceny.
R v. moor – in this case a bank note was dropped in the shop of accused. The
accused found it and appropriated it knowing full well that the owner could be
discovered. He was convicted of larceny.
OWNERSHIP
According to Keeton: “The right of ownership is a conception clearly easy to
understand but difficult to define with exactitude.” Ownership is a relation of a person
to an object; which is exclusive or absolute and ultimate.
Austin defines ownership “as a right which avails against everyone who is subject to
the law conferring the right to put thing to user of indefinite nature”. According to
Austin’s definition, there are three elements or attributes of ownership:
(i) Indefinite use
(ii) Unrestricted disposition
(iii) Unlimited duration

Criticism against Austin Definition

It is being criticize that – it is fallacious to think that ownership is a single right, in fact
it is a bundle of rights including right of user and enjoyment. Second that ownership
is not merely a right but also a relationship between rights owned and person owning
it.
According to Salmond, “ownership, in its most comprehensive signification, denotes
the relation between a person and right that is vested in him”.
Hibbert, define ownership which includes within its four kinds of right 1. Right
to use a thing.
2. Right to exclude others from using the thing.
3. Disposing of thing.
4. Rights to destroy.
The incidence of ownership is:
(i) Right of Possession: The owner has the right to possession of his property.
(ii) Right of Use: The owner has the right to use & to enjoy the property.
(iii)Right to alienate or destroy: The owner has a right to alienate, transfer or to
destroy the thing or property as he wishes.
(iv)Duration: There is no duration for ownership. It is indeterminate. (v)Residuary:
This means, even if all the lesser right like lease, easement etc. are given away, the
residuary will remain with the owner.
Classification of ownership
Corporeal and incorporeal ownership- Corporeal ownership is the ownership
of material or tangible things or objects (movable or immovable). Incorporeal
ownership is the ownership of intangible object - object, which cannot be
perceived and felt by touch.
Sole and Co-ownership - The general principle of ownership is that it should
vest in one person only (sole ownership). But, sometimes it is ‘duplicate’ or, in
other words, two or more persons have the right of ownership of the same
property vested in them at the same time (Coownership).
Trust and beneficial ownership – Trust ownership is an instance of duplicate
ownership. Trust property is that which is owned by 2 persons at the same time,
the relation between two owners being such that one of them is under obligation
to use his ownership for the benefit of the other. Legal and equitable
ownership - Legal ownership is that which has its origin in the rules of common
law and equitable ownership is that which proceeds from the rules of equity.
Vested and contingent ownership - Ownership is either vested or contingent. It
is vested ownership when the title of the owner is already perfect. It is contingent
ownership when the title of the owner is yet imperfect but is capable of becoming
perfect on the fulfillment of some condition.
In the case of vested ownership, ownership is absolute. In the case of contingent
ownership it is conditional.
Absolute and Limited Ownership - An absolute owner is the one in whom are
vested all the rights over a thing to the exclusion of all. But when there are
restrictions as to user, duration or disposal, the ownership will be called a limited
ownership.
Characteristics of Ownership 1. It
may be absolute or restricted.
2. Subject to public safety.
3. Law does not confer ownership on an unborn child or an insane person
because both of them are incapable of conceiving the nature and
consequences of their acts.

According to Salmond there are two ways of acquiring the ownership

1. By operation of law. Such as the law of intestacy (Dying without a legal will) or
bankruptcy.
2. By reason of some event or act. Such as taking or making a thing for the first
time.

There are three generally known mode of acquisition of ownership 1.

Absolute- when there was no previous owner of that thing i.e. res nullius
(ownerless thing).
2. Extinctive- when ownership of a previous owner has been terminated by
reason of adverse possession by the acquirer. 3. Accessory- Acquired as a
result of accession.
Relationship between possession and ownership
Possession has been treated as an external evidence of ownership. A person
possession of a thing, be presumed to be the owner of it. The person in
possession may not need to prove the ownership.
 Difference between possession & ownership
Possession ownership
Possession is a primary stage of Ownership is in right. ownership which
is in fact.
Possession does not give title in the While in ownership it gives title in property
defacto exercise of a claim. the property dejure recognisation.

Possession is a fact. Ownership is a right and superior to

possession.
Possession tends to become Ownership tends to realize itself in to ownership.
possession.
Possession dominion corpus and Ownership they are not necessary animus
are necessary. because law gives full rights. Transfer of possession is
Ownership most of the cases comparatively easier. involves a technical
process i.e. conveyance deed etc.
Possession is nine points of law. Ownership always tries to realize itself
in possession i.e. complete thing.

LEGAL PERSONALITY
The word person is derived from the Latin word persona. This term has a long
history. To begin with, it simply meant a mask. Later on, it was used to denote the
part played by a man in life.
Nature of legal personality
Personality in philosophic sense means rational substratum of a human being. In law
means a right and duty bearing unit. Personality should be distinguished from
humanity. Humanity means only natural human beings but personality has a
technical meaning and it includes inanimate objects also. Thus personality is wider
than humanity. Sometimes, humanity and personality coincide and, sometimes, they
do not.
Persons are of 2 kinds: natural and legal. Natural persons mean human beings.
Legal persons mean beings and things which are treated as persons by law. Thus
legal person includes those things which are treated in same way as human beings
for the legal purposes.
Natural Persons
All human beings not legal persons all human beings are not legal persons. In
olden days the slaves were not considered legal persons. In ancient Hindu Law,
persons having certain physical disabilities were considered as disqualified to inherit
property. Lunatics and infants have only a restricted legal personality. In modern
times, with very few exceptions legal personality is granted to all human beings. The
legal personality granted to a human beings at birth and ends with death.
Personality starts with birth when a child is born alive, he is considered to be a
person in the eye of law. In Hindu law, a child in womb is considered in existence
and he inherits the property if he is born alive. If a pregnant woman is awarded death
sentence, the execution of the sentence shall be postponed till she is delivered of the
child. Abortion and child destruction are crimes.
Personality ends with death
Certain rights protected after death the rights are generally created at birth and
they extinguish at death. But the law, in certain matters, recognizes and protects the
desires and interests of the deceased. There are three rights in this respect, i.e.
about the deceased’s body, his reputation and his estate. In certain societies law
permits creation of trusts for worship at tomb of deceased and it enforces such trust.
Animals
Animals have no legal personality animals are not persons in the eye of law and,
therefore, they are not subjects of legal rights and duties. In ancient times, animals
for some purposes were treated as persons. There are a number of instances of this
kind in ancient Indian stories where animals were sued in courts. But in modern
times, no legal system recognizes animals as persons. In India, cruelty against
animals is an offence, but at the same time this duty is not a duty towards the
animals; it is a duty towards the society or the state. In our country a trust for the
benefit of animals can be legally created.
Legal person
A legal person says Salmond, is any subject-matter other than a human being to
which law attributes personality. It includes an object, a mass of property, an
institution, a group of human beings etc. Law treats them as right and duty bearing
units or entities likes a natural person.
Evolution of corporate personality
The idea of legal personality can be traced in roman and ancient Hindu laws. In
England there are two main types of juristic persons: Corporation sole; and
corporation aggregate.
Corporation sole corporation sole is defined as an incorporated series of
successive persons. The concept of corporate sole seems to have come into
existence somewhat accidentally, and comparatively late. It came into being to solve
the problem of devolution of land held by ecclesiastics in right of their ecclesiastical
office.
Corporation aggregate corporation aggregate means an incorporated group of
coexisting persons. The personality is conferred upon groups by law.
Apart from the corporations (sole and aggregate) the legal personality has been
conferred upon certain objects and things also. A fund dedicated for a special
purpose, such as a trust, or a charitable fund is a legal person. Certain objects or
institutions, such as a church or a university are also legal persons.
Indian law: coparcenaries in ancient India, like Roman law, concept of legal
personality was not clearly understood nor was there any necessity for it. The
coparcenary system of Hindu law may be considered to be more or less a
corporation.
Idols and funds idol was considered to be juristic person. It owned property. It could
sue and could be sued. A fund dedicated for a religious purpose was also of nature
of a legal person.
Idol idol is a juristic person and as such it can hold property. Mosque is not a juristic
person. In a Lahore decision it was held that a mosque was a justice person and
could sue and be sued, but in masjid shahid ganj case it was decided by Privy
Council that suits can’t be brought by or against mosques, for they are not artificial
persons in eye of law. However, they left the question open whether a mosque could
for any purpose be regarded as juristic person.
Companies, associations and groups companies, associations and many other
kinds of groups are legal persons. They have been expressly so recognized in a
number of statutes.
Theories of corporate personality
Fiction theory this theory says that only human beings can property be called
persons. Same kinds of groups etc. are regarded as persons for certain purposes
only by a fiction of law and they have no real personality. Main supporters of this
theory are Savigny, Salmond and dicey.
This theory is very popular because it is not based on any metaphysical notion or
argument.
Concession theory this theory is allied to the theory. The supporters of both
theories are almost the same jurists. This theory says that corporate bodies have
legal personality only to the extent granted by law. Here law means the state.
Realist theory this theory has another name also i.e. organic theory. The main
exponent of this theory is Gierke; Maitland also supports it. This theory says that a
group has a real will, real mind and a real power of action.
Bracket theory or symbolist theory this theory says members of corporation are
the only persons who have rights and duties.
Purpose Theory the main exponent of this theory was Brim. It says that only human
beings have personality. This theory was formulated mainly to explain the stiftung
(pious foundations) of German law and hereditas jacens of Roman law.
LIABILITY
According to Salmond: liability or responsibility is the bond of necessity that exists
between the wrongdoer and the remedy of the wrong. Liability implies the state of a
person who has violated the right or acted contrary to duty.
Liability may be divided either as civil or criminal or as remedial or penal. In the case
of civil or remedial liability, the object of the law is the enforcement of right, whereas
in case of criminal or penal liability the purpose is the punishment of the wrong-doer.
All criminal liability is penal. Civil liability on the other hand may be either penal or
remedial.
Difference between civil and criminal liability
 Crime is a wrong against the society but a civil wrong is a wrong against a
private individual or individuals.
 The remedy against a crime is punishment but the remedy against the civil
wrongs is damages.
 The proceedings in case of crime are criminal proceedings, but proceedings
in case of a civil have 2 different sets of court.
 The liability in a crime is measured by intention of wrongdoer, but in a civil
wrong the liability is measured by wrongful act.

Remedial liability this liability is based on maxim ubi jus ibi remedium. When law
creates a duty it ensures its fulfillment also.
Penal liability the maxim actus non facit reum, nisi mens sit rea is considered to be
condition of penal liability. Thus there are 2 conditions of penal liability:
1. Act - Austin defines act as a movement of the will.
Kinds of Act
Positive and Negative Acts- when wrongdoer does an act which he should not do
or in other words, he is prohibited by law not to do it, it is a positive act. When
wrongdoer does not do an act, which he should do, in other words which he is
directed by law to do, it is negative act.
Voluntary and involuntary acts- if act is willed act, it is called a voluntary act but if
the act is not a willed act it is an involuntary act. The penal liability is only for
voluntary acts.
Internal and external acts- internal act means the act of mind and external act
means the act of body.
Intentional and unintentional acts- intentional acts mean an act, which is foreseen
and is desired by the doer of the act. Unintentional act is that act which is not so
foreseen or desired, or in other words, it is not a result of any determination.
2. Mens Rea – mens rea means guilty mind. It is second condition of penal
liability. Mens rea is defined mental element necessary to continue criminal
liability. Criminal intention, malice, negligence, heedlessness, rashness etc. all
are included in mens rea.
Intention – it means either desire or the consequence of one’s conduct, or foresight
of the certainty of such consequence. But the intention does not extend to cover the
knowledge of probable events.
Intention and motive – though intention and motive are very close to each other,
they are not the same. Motive is called ulterior intent. It is seldom that a man
commits a wrongful act for its own sake. The wrongdoer has some end in his mind,
which he tries to achieve through his wrongful act.
Malice- Sometimes, malice is also used in law to indicate a similar meaning. It
denotes various things. Sometimes, it is used to indicate a wrongful intention, and
sometimes, it means motive.
Negligence – negligence is the second form of mens rea. In the offences in which
mens rea is a necessary element wrongful intention of negligence will have to be
proved on part of the person who committed the wrongful act to make him liable.
Intention and negligence both constitute mental attitude which a person has towards
the consequences of his act.
Negligence is not the doing of an act, which one is under a duty to do, and it causes
risk, danger or harm. Such negligence is wrongful and is culpable negligence; and in
many cases it is a condition for penal liability.
Negligence is of 2 kinds:
Advertent negligence it is called willful negligence or recklessness also. In this
negligence the harm done is foreseen as possible or probable, but it is not willed.
Inadvertent negligence or simple negligence the negligence which is a result of
ignorance, thoughtlessness or forgetfulness is inadvertent negligence. In such
negligence the harm caused is neither foreseen nor willful.
Theories of negligence
There are 2 theories of negligence. One theory was propounded by Salmond.
According to this theory, negligence is a state of mind a mental attitude. This theory
is called the subjective theory of negligence.
The other theory has been given by Frederick. According to him, negligence is a type
of conduct. This is called the objective theory of negligence.
Strict liability
Apart from the negligence and wrongful acts there in another class of wrongful act
for which a person is liable irrespective of mens rea. This liability is called the strict or
absolute liability.
The strict liability may be divided into following 3 headings:
Mistake of law
Mistake of fact Accident
Vicarious liability
The general principle of law is that a person is liable for his own acts and not for the
acts of others. But in certain kinds of cases a person is made liable for the act of
another on account of his standing in a particular relationship with that person. This
liability is called vicarious liability.
Criminal law in criminal law the general principle is that a person is not liable for the
act of another. A master is not criminally liable for the unauthorized acts of his
servant. However, there are certain exceptions to this rule. The legislature may
prohibit an act or enforce a duty in such terms as to make the prohibition or duty
absolute; in that case the master is liable if the act is in fact done by his servant.
Civil law vicarious liability exists mainly in civil law. It is recognized in civil law
generally in 2 kinds of cases:
A master is liable for all tortuous acts of his servants done in course of his
employment.
The representatives of the dead person are, in certain cases, liable, for the acts of
the deceased.