WHAT IS ADMINISTRATION OF JUSTICE?

EXPLAIN ITS
KINDS. DISTINGUISH BETWEEN CIVIL AND CRIMINAL
JUSTICE.
INTRODUCTION:-Administration of Justice:- According to
Salmond : -”The administration of justice implies the
maintenance of right within a political community by civilized
substitute for the primitive practice of private vengeance and
violent self-help.” This has been criticized on the ground that it
is not the force of the state alone that secures the obedience
of law. There are a number of other factors such as the social
sanctions, habit and convenience which help in the obedience
of law. In civilized societies, obedience to law becomes a
matter of habit and in very rare cases the force of the state is
used to secure it
According to Austin: ‘Law is the aggregate of rule set by men
as politically superior, or sovereign, to men as politically
subject.” It means law is command of sovereign. In his
definition Command, duty and sanction are the three elements
of law.
The fundamental difference between the definitions of the
two jurists is that whereas in the definition of Austin, the
central point of law is sovereign, in the definition of Salmond,
the central point is Court. In fact, both the definitions are not
perfect and present two aspects of law.
Salmond : Points out that men do-not have one reason in
them and each is moved by his own interest and passions.
The only alternative is one power over men. Men is by nature
a fighting animal and force is the ultima ratio of all mankind.
As Hobbes puts it “ without a common power to keep them all
in awe, it is not possible for individuals o live in society.
Without it injustice is unchecked and triumphant and the life of
the people is solitary, poor, nasty, brutish and short.” Salmond
says however orderly a society may be, the element of force is
always present and operative. It may become latent but still
exists.
KINDS OF ADMINISTRATION OF
JUSTICE
The administrative of justice may be divided into two parts:-
1) Civil.
2) Criminal.
1. Administration of Civil Justice: The wrongs which are the
subject-matter of civil proceedings are called civil wrongs.
The rights enforced by civil proceedings are of two kinds (1)
Primary and (2) Sanctioning or remedial rights. Primary right
are those rights which exists as such and do not have their
source in some wrong. Sanctioning or remedial rights are
those which come in to existence after the violation of the
primary rights. The object of the civil administration of justice
is to ascertain the rights of the parties and the party who
suffers from the breach of such rights is to be helped by way
of paying damages or getting injunction, restitution and
specific performance of contract etc.
2. Administration of Criminal Justice:- The object of the
criminal justice is to determine the crime of a person who is
charged with the doing of an offence. The criminal court after
proving that the offender is guilty of the offence charged
awards him the punishment of fine, imprisonment as
prescribed by criminal law. A convicted person is awarded
physical pain. Thus the main purpose of the criminal justice is
to punish the wrongdoer.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL
ADMINISTRATION OF JUSTICE
Civil Administration of Justice
In the civil case the suit is Filed in the civil court. Criminal
Administration of Justice
In the criminal cases the proceedings Is filed in the criminal
court.
The main remedy in civil Cases is damages. The main
remedy in criminal cases is to Punish the offender.
In the civil cases, the court Follows the procedure Prescribed
in Civil Procedure Code. In the criminal cases, the court
follows the procedure laid down in criminal Procedure Code.
In civil cases the action is taken By the injured party and the
Suit is established by himself By giving evidence. In criminal
cases the proceeding is taken by the state and the injured
party is called out as a witness by the state.

2 What is Law? Discuss. Definition given by various jurists?

INTRODUCTION: It is easier to explain than to define it. It
means that things are easy to explain than to define it.
Definition is very necessary for the study of the subject,
because the beginning and in one sense it ends is also its
definition. To give a definition of Law is comparatively a hard
task due to many reasons :
1. In Hindu :- Dharma
2. In France :- Droit
3. In Rome :- Jur.
4. In Muslim :- Hukma
All these above words conveys different meaning. And we can
say that a definition which contain all the above meaning and
all elements would be a good definition of law. Endlly
definition given by every person is always different. Because
definition given by a lawyer a philosopher, a student or a
lecturer is always different. A definition which doesn’t cover all
these elements would be an in-perfect definition.
DEFINITION OF LAW:- The word, “Law” has been taken from
the ‘latin word’ which means “The body of Rules” various
scholars has attempted to define this term according to their
own prospective. Some of them are as under:-
According to Roman Scholars:- The law is concerned with the
parameters which is right or wrong, fair and unfair.
ULPIAN:- The famous Roman scholars and a Juries, he
defined the term ,” Law as standard of what is just and unjust.”
According to Salmond:- The law is the body of principals
recognised and applied by the state in the administration of
justice.
According to Positivist Definition :- They are known as a
modern thinkers and they propounded a new school in the
Law namely, “ Analytical School.” This school is also known
as a scientific school. Benthem, Austin and Kelson define the
term of Law in the following manners:-
1. AUSTIN:- Austin is the father of English Jurisprudence
and according to him, “Law is the command of sovereign”
There are three elements of law according to Austin :
a) Command )
b) Duty ) = LAW
c) Sanction )
According to him every law have a command and due
to this command we have the duty to obey this command and
if we don’t obey this duty then there is a sanction.
2. As per Benthem:- The law is the violaion of some
declarations by the political head with utiity ensuring maximum
happiness of he maximum people in the society. Benthm
concept of law revolves around individual utilitarianism and its
concern with the theory of pain and pleasure, which means
that the purpose of Law to reduce the pain and harms and
pleasure in the society.
3. According to Kelson:- The law is depsycholigically
command. He is concern with those commands which purely
rest upon the formal expression of law.
3. Sociological Definition: The sociological approach is not a
single approach but it includes a number of thoughts, but all
these thought related to society, that is why heading is given
them to sociological. And we shall discuss some of true
definitions :-
DUGUID :- According to him the law is a set of sosme formal
norms aiming an creation of soliditary in society.
IHERING :- According to Ihering the Law is a form of
guarantees of the conditions of life in society which are
assured by the states power of constraint.
EHRLICH :- Ehrlich lays down, “that the law consists of norms
coverings social life. But only the living Law is the actual law.”
ROSCUEPOUND :- According to him Law is an instrument for
balancing, conflict or completing interest of people in the
society.
REQUIREMENTS FOR LAW
The followings are some requirements for the definitions of
law :-
i) Before the law there is a State.
ii) Before the State there must be a society.
iii) State & society develop a legal order to be followed.
iv) And finally law always has a purpose.
CONCLUSION:-
In end we can say that law is the important and necessary
part of the state and developing the human beings. Law gives
rights and duties to human beings. And law is the essential
part of a State. Law is an instrument of social control as well
as social change.
3 Define ‘Right’ and discuss the essential elements of legal
right. OR
What is a ‘Legal Right’? Discuss the characteristics of a legal
right.
INTRODUCTION: Right generally means an interest or facility
or a privilege or immunity or a freedom. In this way right for
the purpose of jurisprudence is called legal right. Austin in his
theory has separated the subject matter of jurisprudence from
morality or materiality. He gave the concept of positive law.
So here also right means positive law right only, which is term
of legal right. Legal right is recognised by law. It is different
from moral right. Moral right if violated is called moral wrong.
The violatin of natural right is called natural wrong. But these
wrongs are not remedial under law while if a legal right is
violated then it will be legal wrong which is remedial under
law. The different jurists have defined legal right in different
ways:- According to Austin : “ Right is a faculty which resides
in a determinate party or parties by virtue of a given law and
which avails against a party or parties other than the party or
parties in whom it resides.” According to Salmond :- “ Right is
an interest recognised and protected by the rule of right.” Here
rule of right means rule of law or law of country. When an
interest of a person is protected by the rule of law then it is
called right. Salmond definition involves two points, firstly that
right is an interest and secondly it is protected by rule of right.
It means that it relates to his (person) interest i.e., life liberty,
heath and reputation etc. Grey has criticised the interest
theory propounded by Salmond, Ihering and Heck and he has
supported the view that right is not an interest but that means
by which the interest is secured. According to Holland, “ right
is as a capacity residing in one man of controlling, with the
assent and assistance of the state the action of others.”
According to Paton : “ That legal right is that it should be
enforceable by the legal process of the state.” He however
says that there are three exceptions to this rule :-
1. It is not necessary that the state should always
necessarily enforce all the legal rights.
2. There are certain rights which recognised by law but
not enforced by it for example : In a time barred debt, the right
of the creditor to recover the debt is an “ imperfect right”
3. There are certain laws which do not confer right of
enforcement to the courts, for example : International Court of
Justice has no power to compel enforcement of its decrees
under International Law.
THEORIS OF RIGHT :- There are two theories of right :
1. WILL THEORY : This theory is based upon the will of
human beings. It says that a right reflects the inner will of a
human being. Austin, Holland, Halmes and Dov recognised
this theory of right. According to them a person wants o
remain in the world freely and according to his own choice
because a man is born free.
2. Interest Theory:- This theory says that interest is the
base of the right. It is only interest which is recognised by law.
This theory reflects the external nature of the human beings.
Supporter of this theory say that there are many interests in
the world. These interest which are protected and recognised
by law are called right.
ELEMENTS OF LEGAL RIGHT:- Following are the
elements of Rights :-
1. Subject: here means a person who has right. So there
must be a person for rights
2. Act of Forbearance :- Right means some standard of
action permitted by law. In a right either an act is done or an
act is forbidden. This is also called as content of right.
3. Object:- There must be a object upon which the right is
exercised. Mainly there are three essential elements of right
e.g. Lives in a house. Here : (i) A has the right to live in the
house. (ii) A is subject, house is object and (iii) His living in the
house is act content. But some writers give some more
elements of right.
4. Correlative duty: For right there must be a correlative
duty. In the above example ‘A’ has the right to live in the
house but other persons have correlative duty not to disturb
him. Almost all jurists agree on the point because one cannot
exists without the other. Here Austin is not agree to this He
says that the duty may be divided into two kinds i.e. (1)
Absolute and (ii) Relative.
5. Title: Salmond gives one more element of rights in the
form of title. He says that a right has got also a title. Title may
be in the form of the owner or co-owner or mortgager or leaser
or buyer etc.
ILLUSTRATION: If, ‘A’ buys a piece of land from ’B’. A is the
subject or owner of the right so required. The person bound by
the co-relative duty is persons in general because a right of
this kind avails against the world at large. The right consists in
non-interference with the purchaser’s exclusive use of the
land.
KINDS OF RIGHTS :- The following are the kinds of rights :-
1. Primary right and secondary right : Primary right is an
independent right while secondary right means dependent
right. They are also called as principal right and helping right
or remedial right. ILLUSTRATION:- ‘A’ has right of reputation
which is his primary and independent right. If any person
defames A then A has the right of damages against the
defamer. This right of damages is called secondary right or
remedial right.
2. Positive and Negative Right:- Positive right is linked
with negative and negative right is linked with duty. Positive
right permits to do an act while negative right prohibit doing an
act.
ILLUSTRATION:- ‘ A ‘ has the right of reputation. This is his
positive right and any person should not defame him. The
defaming his reputation called negative right.
3. Right Rem and Personam:- Right in Rem means right
against the whole world while right in persosnam means right
against a definite person.
ILLUSTRATION: ‘A’ has not to be harmed by any person. This
is right in rem. On the other hand, ‘A’ has entered into a
contract with ‘B’ and ‘B’ has broken +ve contract. ‘ A “ can
enforce this right against ‘B’. This is known as right in
personam.
1. LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):-
The division of right has its origin in England. Legal ight is
recognised by Law. While equitable right has been recognised
by natural justice. In England there were two types of courts:
(i) Legal courts (ii) Chancery courts
Chancery Courts recognised the conquerable rights on the
basis of justice, equity and good conscience.
4. Vested & Contingents Right:- These rights is of
permanent nature that depends upon the happening of an
uncertain event. Thus contingents right becomes full right only
when such uncertain events happen according to the
condition.
5. Proprietary and Personal Right:- Proprietary rights
which are concerned with property. A person possessing any
property has the proprietary right over it, and personal right
means the right related with a person or a body. Every person
has a status. He should not be injured or defamed. If any
person injures or defames another person then the wrong
doer infringes the personal right of a person.
6. Perfect or Imperfect Right:- These rights which are
enforceable by law are perfect and which law does not
enforceable are imperfect rights.
7. Right of Re-propia and Right in re-alena:- Right in re-
propia means the right in one’s own thing whereas right in re-
aliena means the right in the things of others.
4 Law is the command of sovereign comment. Critically
examine the main features of ‘Analytical School’? OR
Discuss the essential characteristics of the ‘Analytical
School’?
INTRODUCTION : The main features/essential characteristics
of Analytical School of Jurisprudence are as under:- The
jurists of analytical school consider that the most important
aspect of law is its relation to the State Law is treated as an
imperative or command emanating from the state. For this
very reason this school is known as the Imperative school.
The exponents of this school are concerned neither
with the past nor with the future of law but with law as it exists,
i.e. ‘ as it is (positus).For this reason this school is termed the
positive school. Its founder is John Austin who was the
professor of jurisprudence in the University of London.
He is also considered as the father of English jurisprudence.
He studied the Roman Law in Germany. There he was that
Roman Law is very systematic and scientific whereas English
Law is not systematic and scientific. So he tried to make
English law in well manner. For this purpose he wrote a book
‘Province of English Jurisprudence’. In this book he difined
English law and made it in a systematic way.
 Austin said that only positive law is the subject matter of
jurisprudence. He separated both the morals and the religion
from the definition of the law. Prior to Austin the law was
based upon customs and morals but Austin reduced all things
from the definition of law. He divided law into two parts :
(i) Law propriety so called (II) Law impropriety so
called.
It further divided into two parts :-
(1) Law of God (Divine Law) (II) Law of Men ( Human
Law)
Law of God is also called divine law. It is a law set by God for
human beings on earth. Men also make law of men is made
by men, so it is called human Law. This law makes a
relationship between persons and the Law. This law is
imposed upon persons and is made by persons. Human law
is further divided into two parts :-
(I) Positive Law (II) Positive Moral Law
Positive Law is main subject of jurisprudence. This
classification can be seen as under :-

LAW

(A) Law propriety so called (b) Law

impropriety so called

A.1) Law of God A.2) Law of Men

A.2.i) Positive Law A.2.ii) Positive moral Law

 Law of analogy
law by Metaphor
Law impropriety so called:- There are certain laws, which are
called impropriety laws e.g. Divine Law, Moral Law and
religious Law. But his law is not the subject of jurisprudence.
This law is concerned only with the administrations of
jurisprudence. The law is the subject matter of jurisprudence.
Analytical school of jurisprudence deals with the following
matter:-
(I) An Analysis of the conception of civil law.
(II) The study of various relations between civil law and
other forms of law.
(III) An inquiry into the scientific arrangement of law.
(IV) An account of legal sources from which the law
proceeds.
(V) The study of the theory of liability.
(VI) The study of the conception of legal rights and duties.
(VII) To investigate such legal concepts as property,
contracts, persons, acts and intention etc.
DEFINITION OF THE LAW
Austin has defined the law is hiss ‘Command Theory’. He says
that, “Law is the command of sovereign.” Sovereign here
means a politically superior body or a determinate person or
determinate body of persons like king of council. The
command of these persons shall be the law in the country.
This law must be obeyed by certain persons. If it is not
obeyed hen the order of these persons shall not be law. It
means there must be politically inferior persons. If the
command is disobeyed then the political superior should have
the power to punish, those persons who have disobeyed the
law.
CHARACTERISTICS OF COMMAND THEORY
From the above facts we find that the following characteristics
of Analytical School :-
1. Sovereign (II) Command (III) Duty (IV) Sanction
Power.
SOVEREIGN: Means the political superior person or a
determinate person or body of person or intelligent persons.
This may be compared with the kind or the head of state in
monarchy system and parliament in democracy system.
COMMAND:- There must be some order of the Sovereign.
This order may be oral or written. The Sovereign which is
followed by force, is called command.
DUTY:- This command must be followed by some persons, it
means the political inferior persons who are under the control
of Sovereign, are under a Duty to follow the order of the
Sovereign.
SANCTION:- There must be sanction or the power of force
behind the command of Sovereign and it there is no force or
sanction then such command shall not be law. The sovereign
must have power to punish those who do not obey this
command. In this way the above mentioned things are
essential then it will be the law. But Austin excluded some
commands from the concept of the law. These are :-
(I) Explanatory Law :- If there is a command for the
explanation of already existed law command shall not be the
law.
(II) The Repeal Law : I there is a command for the
repealing of already existed law then the second command
shall not be law.
AUSTIN LAW (AUSIN’S METHOD) Austin adopted analytical
method which excluded all types of morals and religion from
Law. His school is also called analytical school or imperative
school. Imperative means force behind law.
CRITICISM OF ANALYICAL SCHOOL
Various writers have criticised the command theory of Austin
on the following ground :
1. Customs ignored:- Analytical school is based upon the
law. According to Austin the law does not include customs but
we see that customs are a very important part of the society.
There were customs by which the society and later on state
came into existence. In state also customs played an
important role in the administration of justice. Even in the
modern times the customs play an important role in the
formation of law. So we cannot ignore customs from law.
2. Precedents ignored:- Precedent means the decisions
of the court, which are also called as judge made laws. Judge
made laws because these laws were not the command of the
Sovereign. These laws were not enforceable at that time, so
he excluded these laws from his concept of the law.
3. Conventions Ignored:-There are certain conventions or
methods, which are observed or followed by the coming
generation. These conventions or methods later on take the
form of law. The become law afterwards by their regular
observance. In England the base of English Law is
conventions, which is very popular in the World. So we cannot
ignore conventions. But Austin did not include conventions in
his concept of law.
4. International Law Ignored:- Austin did not include
international law in his law. According to his law there is no
Sovereign for enforcing the international law. But in modern
days we cannot exclude international law from the field of law
because it plays an important role in maintaining peace and
society at international level. In other words it is also a form of
municipal law of civil law.
5. Command Theory is not suitable:- It is not easy to
understand the ‘Commands Theory’ for common persons. It is
not necessary that all should be enforceable or all common
person should be considered as law. Only those commands
which are related with law and order, should be law. It is
difficult to separate those commands from others by the
common people or persons. So this theory is not suitable in
modern times. It is also an artificial theory haveing no sense
in the modern world.
6. Only Power Is Not Necessary:- According to the
‘Command Theory’, law can be imposed only with the help of
power, But we have the result of the tyrants or forced rules
which were thrown away by the people of French Revolution,
of Panamaeto. Law can be enforced even without power, it
they are suitable to the society.
7. Moral Ignored:- The Command Theory has also
excluded morals from the field of law. But we have observed
that morals have also an important role in the formation of law.
We cannot ignore morals from law because laws are meant
for the society and such laws must be according to the
feelings of society. The feelings of society are based upon
morals. So we can’t ignore morals from the field of law.
CONCLUSON :-In this way he theory of command has been
criticised and which is not considered as suitable in the
modern time. But we also can’t ignore the contribution of
Austin for giving he meaning of law in a systematic way. He
give the concept of law in scientific manner. This views
became the base for the coming writers, jurists and
philosophers. So we can say that Austin contributed a lot in
the field of jurisprudence.
5 Define and distinguish law and morals. Up to what extent
morals help in the development of law.
Introduction:- Play an important role in the development of
law. In the ancient society there was no difference between
law and morals. The Vedas and suteras which are the main
ancient sources of law are based upon morals. In the western
society also the position was the same. The legal system of
Greek was also based upon the doctrine of natural rights,
which was in fact founded upon morals. So the Roman law
also recognised the doctrine of natural law, which was
founded upon morals. In the middle period also morals were
the basis of law. In the 17th and 18th centuries natural law
theories become very popular which were also based upon
morals. However in modern times it was only Austin who
discarded morals from law. He said that law is a command of
sovereign. But after him there came the Historical School that
recognised morals as the part of law.
DIFFERENCE BETWEEN LAW AND MORALS
When the Austin did not give any place to morals in law then
there came a question of the difference between law and
morals. Later on the courts tried to make difference between
law and morals. In the modern times there is clear difference
between law and morals. In every developed and civilized
society the following are the differences between morals and
laws:-
MORALS LAWS
1.The morals are concerned with individual and are the laid
down rules for the moulding of his character.

2.Morals are mainly concerned with the internal conduct of the

nature of a person.
3.The morals are an end in themselves.
4. The observance of morals is a matter of individuals
conscience.
5. Morals are considered to be universal in nature and value.
1. The laws are mainly concerned with the society as a
whole and lay down the rules for relationship of individual with
each other and with the state.
2. Law is concerned with the external conduct of the
individuals.
3. Laws are meant by which the evils ends. The justice is
achieved.

4 The observance of law is concerned with duty towards the

state.
5 Law is concerned only with a particular state and society
which differ from place to place & from time to time.
RELATIONSHIP BETWEEN LAW & MORALS
In the ancient society there was no difference between laws
and morals, but in modern times various theories of law
separate morals from laws so many differences as pointed out
above came into picture. In spite of these differences there is
a clear relationship between law and morals. For this purpose
it can be noticed from the following three points :-
1. Morals as the basis of law:- In the ancient society morals
were the basis of all laws. All the rules originate from the
common sources i.e. morals. The reason behind them was in
the form of supernatural fear. The state picked up those rules
which were necessary for the society of the state.
The state put its own sanctions behind their rules and
enforced them and these rules were called laws. The rules for
which the state could not ensure their observance wee known
as morals. Thus laws and morals have common origin. We
cannot totally separate law from morals. Queen v/s Dudley: It
was held that moral are the basis of law on the ground of
morality, it was not necessary to kill the boy for saving their
lives. One cannot take the law into one’s own hands. The rule
is that none has the power/right to take another’s life to save
his own.
2. Morals as the list of law:- It has been argued that the law
must conform to morals. It means the law must be based upon
morals and it should not be against morals. The Roman law
was based upon natural law and Christian morals and
principles say that any law that is against morals is invalid.
The natural law theories were enforcing which were also
according to morals.
In the modern times the laws which are not in conformity
with morals are not good laws. However in practice to a great
extent law conforms to morals. Laws cannot depart from
morals due to many reasons. The conformity of law with
morals is a very important factor even in the modern times.
3. Morals as the end of Law:- Sometimes morals are
considered as the end f law. Justice in its popular sense is
based upon morals. The word used for law conveys an idea of
justice and morals in the same area of law. Sociological
school says that law always has a purpose. Law is a means
to get the end. This aim of law is to secure social test of law.
This can be done properly in the contest of socially recognize
values which are closely related to morals. Thus ultimately
morals become the end of law. In India the legal system is
engaged from the personal laws and local customs. In addition
to this there are certain other factors like public opinion,
political, ethical, social and economical ideas which are
directly or indirectly under the influence law. CONCUSION:-
So morals also have influence to a great extent in the
development of law. Morals also check the arbitrary powers of
the legislature. All human conduct and social relations cannot
be regulated and governed only by law. A considerable
number of them are regulated by morals. Thus we can say
that the morals are the very important factor in the
development of law. Morals are basis of law.
6 Professor Hart claims of make a ‘fresh start’ in legal theory.
Discuss.
INTRODUCTION:- Hart is one of the great jurists of that time.
He belongs to analytical school. HLA Hart was the Principal
and Professor in “ Brasenose College Oxford” His theory
about the law named as concept of Law. He talks about the
realty. His theory mainly based on primary and secondary
rules and also based on the relationship between law and
society. His theory described about two words i.e. Pre-legal
world and Legal world.
DEFINITION AND MEANING: Sir HLA Hart define Law,” that
law is the system of rules, a union of primary and secondary
rules.” He means to say that law is the system of rules and
these rules are primary which are pre-legal rules and
secondary which are legal rules and the main based of his
theory on the relationship between Law and Society.
Body : Sir HLA Hart theory talks about the two words. These
words are:-
Concept of Law

Pre-legal world
Legal world

No legislature
Rule of recognitaion
No executive
Rule of Change
No court Rule
of Adjustice

1. Pre-Legal World :- This pre legal world belongs to old

age. According to Sir, HLA Hart pre legal world there was
primitive society. And in this society there was no legislature
which can make the rules. There was no executive also which
can change the rules besides this there was no court also to
decide the disputes. In the primitive society there were three
defects which are as under :-
2 Un-certainty :- Since there was no Parliament in the
primitive society which causes the un-certainty in the law.
3 Static character:- In the primitive society there were
customs and these customs were not changed. It means there
have static character.
4 Inefficiency :- In the primitive society there were no
power of Jurisdiction. It means that there were no courts
followed by the people.
2. Legal World :- This legal world belongs to modern
age. According to Sir HLA Hart in the legal world there are
modern society. Because of modern society there are rules of
recognition which means that there is a Parliament/State
Executive. The function of the Executive to change or to
amend the rules. In modern age there are courts which
decides the disputes. Judges applies the earlier laws in
deciding the disputes. These rules/laws are the secondary
rules. Thus we can say that Law is the union of Primary and
Secondary rules. In other words it can be said that the Law is
the journey of rules.
RELEVANCY OF HLA HART’S THEORY
Sir HLA Hart’s theory “ concept of Law “ is the most important
theory of analytical school. Because this theory tells us about
the old age and for the modern age. In the old age there were
primitive society which did not have any legislature, executive
and court. Therefore only custom and usages which were not
allowed to change them by any person.
The theory of ‘concept of law’ tells us about the legal world.
In the legal world there is a legislature which makes the rules
and these rules are changed or amended by the executive
when it necessary. There are courts which apply the rules on
party. So we can say that in modern age the law is certain not
static in character. Sir HLA Hart also gives the place of
Morality in his theory because the moral have an important
role in every legal world and these morals are not changed by
passing any Act. We can say that Sir HLA Hart theory, “
Concept of Law” has the most important place in the theory of
Analytical School.
CONCLUSIION:- Sir, HLA Hart theory Concept of Law have
no conclusion because this theory talks about both the pre-
legal world and the legal world which updates and tells us that
how the law comes. So we can opined that such best and
usable theory needs no conclusion as it has its self
conclusion.

7 Define Natural Law theory. Also explain its relevancies in

the Modern times.
INTRODUCTION: The Natural Law school is not independent
school. It has deep concern with historical, analytical school.
The main contents of this theory is that it has been interpreted
differently at the different times depending on the needs of the
developing legal thought but the greatest attribute of the
Natural la w theory is its adaptability to meet new challenges
of the transient society.
According to the pro pounder of this theory says that, Law is a
product of the straight thinking of human mind. According to
Socrates, he duely assert it that the positivist authority should
be obeyed but not blindly and it ought to be subject to criticism
if deserve so. Plato: He was in the view that each individual be
given best suitable role by reason of his capacity and abilities.
Thomas Acquinas (Roman Thinker):- He means that Natural
Law is a part of Divine Law. This part is applied by human
beings to govern their affairs and relations. Thomas Hobbes
(Roman Thinker) :- According to him that there should be an
absolute authority which should govern and control the affairs
of human beings in the reciprocal transmission of concerned
with every span of life. Rousseau (Roman Thiner) : He held
that there two types of will:1. The will of individual and 2.
General will. The authority through his rule must respect the
both and in the administration of rule making process. These
will should be reflected.
Definition:- From the jurisprudence point of view Natural law is
not a body of actual enacted or interpreted law enforced by
courts. It is in fact a way of looking at things and a humanistic
approach of Judges and Jurists. It embodies within it a host of
ideals such as morality, justice, reason, good conduct,
freedom, equality, liberty, ethics and so on. The phrase
Natural Law has a flexible meaning. The chief characteristic
feature of natural law may be briefly stated as follows :-
i) It is basically a priori method which is different from
empirical method. It used to stress upon a cause and effect
relationship between the facts on the verge of logic.
ii) It symbolizes physical law of nature based on moral
ideals which has universal applicability at all places and times.
iii) It has often been used either to defend a change or to
maintain status quo according to needs of the time.
iv) The concept of Rule of law in England and India and
due process in USA are essentially based on Natural Law
philosophy.
MODEN NATURAL LAW THEORIS:- The following are the
three main thinker who contribute to the Modern Natural Law
theories:-
1. Stammler:- He was much more influence by Positive
Law. He says that” all positive law is an attempt at just law”
with regard to will and purpose of the law maker should have
the proper understanding and knowledge of actual social
world or social reality. Various a time in his concept he inter
changeable used the word will with the purpose and he
conclude that it is the will of the people which enable them to
secure their purpose under social reorganisation.
2. KOHLER:- His thoughts were influenced by Hegal.
According to him Law is standard of conduct which is
consequence of in the impulse of human being that urges him
towards a reasonable form of life. It also derives its validity
from the moral and ethical standard in society. So that he laid
down stress upon moral and cultural development of society.
3. Finnis: Finnis also is a very famous jurists of the
present century. He has given the definition and place to
natural law. According to finnis Natural Law is the set of
principles of practical reasonableness in ordinary human life
and human community. He sets up the proposition that there
are certain basic goods for human being. Fennis lists them as
under :-
i) Life:- The term life signifies every aspect of vitality in
good shape for self determination.
ii) Knowledge: Knowledge is a process of knowing of
unknown with the help of sense.
iii) Sociability of Friendship:- Doing something best for the
sake of one’s friend’s purposes, one’s well being.
iv) Role:- It is the expression of a status of human being in
practical form such role is protected and recognised by law.
v) Religion:- Question of the origins of cosmic order and
of human freedom and reason expressed thus this view is a
good that even an ethicist can value.
vi) Practical reasonableness :- This is the logic expression
of the ideas and decision in practical circumstances. This the
measurement of just or unjust in a real situation.
Despite the merits of Natural Law philosophy it has been
criticized for its weakness on the following grounds. In other
words the demerits of the Natural Law may be read as
follows :-
i) Moral proposition i.e. ought to be may not always
necessarily conform to the needs of the society.
ii) The concept of morality is a varying content changing
from place to place, therefore it would be futile to think of
universal applicability of law.
iii) The rules of morality embodied in natural law are not
amendable to changes but legal rules do need a change with
changing of the society.
iv) Legal disputes may be settled by law courts but
disputes relating to moral and law of nature cannot be
subjected to judicial scrutiny.
CONCLUSION:-The brief survey of the theories of Natural law
reveals that its concept has been changing from time to time.
8 Explain the importance of Legislation as source of Law. OR
Distinguish between supreme and subordinate legislation?
INTRODUCTION:- Legislation means the process of law
making. This law making power is vested in the legislation
body which is sovereign body. It is called Parliament at the
centre level and legislative assembly at the state level.
Legislation is the most important and modern source of Law.
This source has played an important role in the development
of modern law and also different from custom and precedent
etc.
LEGISLATION AS A SOURCE OF LAW:- The importance of
legislation starts from the beginning of analytical school. This
school ignored the importance of custom and gave the stress
on command of sovereign which can make law only through
legislation. This school also ignored the judge made law.
About custom they say that the custom are not law but they
are the source of law.
HISTORICAL SCHOOL:- It gives no importance to the
legislation rather gives more importance to custom.
According to them the function of law in only to specify and to
correct the custom into law whereas in the modern times the
importance of legislation has considerably been increased.
With the coming of existence of the State the legislation has
also been come into existence and become most important
source of law. The scope of legislation has become very wide
in the modern times.
KINDS OF LEGISLATION:- There are two kinds of the
legislation :-
1. Supreme Legislation:- It has the powers of making law and
is known as supreme legislation in each country. This power is
vested in sovereign body in India i.e. Parliament at the centre
and legislation in the State.
2. Subordinate Legislation: It is inferior from supreme
legislation and is indirect legislation. It takes power to make
law indirectly from Parliament, who gave him power to make
law that is why is called subordinate legislation authority. It is
further divided into the following parts :-
i) Autonomous Laws : A group of persons for making law is
known as autonomous law and body i.e University or Boards.
ii) Judicial Rule :- means the rules made by judicial body
under power owed from supreme authority i.e. High courts or
supreme court etc.
iii) Local Law: means law made by local bodies under the
control of SC i.e Zila Parishad, Municipal Corporation.
iv) Colonial Law: It is for those countries who are under the
control of any other country can make laws with the
permission that country.
Executive Law:- The law and the rule can be made by the
executive body in the State under the power conferred by the
Sovereign/ Parliament which is also known as delegated
legislation. It includes the following origins :
I) Legislation:- The legislation is the super power to make
law for a country.
II) Executive:-The executive body of the nation is to
imposes law in the country.
III) Judiciary:- The Judiciary is to explain and implies the
law so passed.
Parliament in India delegates its laws making power to the
executive body and this power is called legislated or delegated
legislation.
Many reform acts were handing power of making
reforms, controlling of employment, development of education.
In 20th century some important matters were given to
delegated legislation to restrict the State to interfere in the
daily life of the citizens.
CRITICISM:- Many of the writers has criticized this power
because it gives much power to the executive body and
administration body. The legislation has passed by facing the
complicated problems in the constitution. There were some
supporters also who were in the favor of this delegation of
power.
REASONS FOR DELEGATED LEGISLATION
i) Lack of Time:The parliament has the shortage of time
because of a Public welfare state. It has to pay much time
towards national problems.
ii) Technicality of Matters:- With the progress of society the
things have become more complicated and technical.
Therefore the policy is made by the Parliament and the
imposing matter is left on the masters of it.
iii) Flexibility: Law should be flexible and according to the need
& conditions of the Public along-with the local matters which
are different from area to area, So keeping in view of this
reason the power is handed over to the executive.
There are some dangers in delegations of this power:-
i) The executive body may uses the more powers than
the powers delegated by the Parliament. (ii) The Parliament
has no time to examine the rules passed by the executive
under delegated legislation.
In India there is a Parliament form of legislation and it is a
welfare state and the Parliament cannot go aside from the
constitution. Any cut against the constitution is void. The
Main power of delegated legislation & CONCLUSION is :
Power of facing an act into operation. Power to apply the Act.
Power to increase or to decrease the scope of the Act. There
is a parliamentary as well as judiciary control over delegated
legislation. This power in India has also on constitutional
basis.

9 Discuss the nature and scope of Jurisprudence. What is the

importance of this subject in the study of law? OR
“Jurisprudence is the eye of law”.
INTRODUCTION :- Jurisprudence in its nature is entirely a
difference subject from other social science. The reason for
this is that it is not codified but a growing and dynamic subject
having no limitation on itself. Its inquiry system is of different
status from other subjects. Every jurist does not base his
study on the rules made but tries to understand their utility
after due deliberation Thus the jurisprudence has no limited
scope being a growing subject. There is difference of opinion
about the nature of jurisprudence. It is called both art and
science. But to call it science would be more proper and
useful. The reasons for this is that just as in science we draw
conclusions after Making a systematic study by investing new
methods. In the same way jurisprudence is concerned with
the fundamental principles of law systematic and scientific
study their methods.
Scope of Jurisprudence:- According to justice P.B.Mukherjee:
,” Jurisprudence is both an intellectual and idealistic
abstraction as well as behavioural study of man in society. It
includes political, social, economic and cultural ideas. It
covers that study of man in relation to state and society.”
Jurisprudence involves certain types of investigations into law,
and investigation an abstract, general and theoretical nature
which seeks to lay the bare essential principles of law and
legal systems.
Salmond observed: “In jurisprudence we are not concerned to
derive rules from authority and apply them to problem, we are
concerned rather to reflect on the nature of legal rules, on the
underlying meaning of legal concepts and on the essential
features of legal system.” It therefore follows that
jurisprudence comprises philosophy of law and its object is not
to discover new rules but to reflect on the rules already known.
CONTENTS OF JURISPRUDENCE:- The following are the
contents of jurisprudence:-
i) Sources It is true that the basic features of a legal
system are mainly to be found in its authoritative sources and
the nature and working of the legal authority behind these
sources. Under this head matters such as custom, legislation,
precedent as a sources of law, pros and cons of codification of
laws, methods of judicial interpretation and reasoning, an
inquiry into the administration of justice etc., are included for
study.
ii) Legal Concepts :- Jurisprudence includes the analysis
of legal concepts such as rights, title, property, ownership,
possession, obligations, acts, negligence, legal personality
and related issues. Although all these concepts are equally
studied in the ordinary branches of law, but since each of
them functions in several different branches of law,
jurisprudence tries to build a more comprehensive picture of
each concept as a whole.
iii) LEGAL THEORY :- Legal theory is concerned with law
as it exists and functions in the society and the manner in
which law is created and enforced as also the influence of
social opinion and law on each other. It is therefore necessary
that while analysing legal concepts, and effort should be made
to present them in the background of social developments and
changing economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE
It is often said that jurisprudence being an abstract and
theoretical subject, is not of any practical use. But it is not
correct to say so. Its utility is as under :-
1. Salmond pointed out that jurisprudence has its own
intrinsic interest like and other subject of serious scholarship,
likewise the writer on jurisprudence may be impelled to his
subject by its intrinsic interest. The legal researches on
jurisprudence may well have their effect on contemporary
socio-political thought and at the same time may themselves
be influenced by these ideologies.
2. Jurisprudence also has its practical applicability. In
other words it serves to render the complexities of law more
manageable and rational and in this way theory can help to
improve practice in the seats of law.
3. Jurisprudence has great educational value. The logical
analysis of legal concepts widens the outlook of lawyers and
sharpens their logical technique. It helps them in shading
aside their rigidity and formalism and trains them to
concentrate or social realities and the functional aspects of
law. It is not the form of law but the social function of law
which has relevance in modern jurisprudence. For instance, a
proper understanding of law of contract may perhaps require
some knowledge of economic and economic theory or a
proper grasp of criminal law may need some knowledge of
criminology and psychiatry and perhaps also of sociology.
4. Commenting on the significance and utility of
jurisprudence : Holland observed, “ the ever renewed
complexity of human relations call for an increasing complexity
of legal details, till a merely empirical knowledge of law
becomes impossible.” Thus jurisprudence throws light on the
basic ideas and the fundamental principles of law in a given
society. This why it has been characterised as “The eye of
law.”
5. Jurisprudence helps the Judges and the Lawyers in
ascertaining the true meaning of the laws passed by he
legislature by providing the of interpretation.
6. The study of jurisprudence helps in rationalising the
thinking the students and prepares them for an upright civil
life. The knowledge of law and legal precepts also helps them
to face every exigency of human affairs boldly and
courageously.
7. Jurisprudence may also be helpful o legislators who
play a crucial role in the process of law-making. The study of
jurisprudence may familiarise them with technicalities of law
and legal precepts thus making their job fairly easy as also
interesting.
According to Dias the study of jurisprudence provides an
opportunity for the lawyer to bring theory and life into focus for
it concerns human thought in relation to social existence. The
law should serve the purpose of social-engineering by
preserving societal values and eliminating conflicting interests
of individuals in the society.
JURISPRUDENCE IS THE EYE OF LAW:- On account of
importance of jurisprudence in the field of law it is called, “The
eye of Law”. The eyes are one of the most important parts of
human body. Almost all human activities and the movements
of body are possible only through them. Unless man can see
anything properly, he cannot do any work. The reason of
calling jurisprudence the ‘ the eye of law’ is that jurisprudence
functions for law in the same manner as the eyes do in human
body. For example- the interpretation of law is a very difficult
task, It cannot be done without the help of jurisprudence.
‘PATON’ in this connection says that,” Jurisprudence is a
particular method of study, not the law of one particular county
but of the general notions of law itself.’ Whenever any
complicated problem regarding law like:-
1 How and when the law developed. 2 What is its object.
3 Whether the law was made by people or it was due to the
inspiration of some Divine force. 4 Whether the law is a
command of a sovereign or it is a result of gradual
development of civilization in society. The main function of
jurisprudence is to study the origin of law, its development and
its contribution towards society.
The matters to birth, marriages, death, succession etc., are
equally controlled through laws. It is the well known saying
that, “ignorance of law is no excuse,” hence it is essential to
know the correct basic principles of law which are contained
only in the jurisprudence. Law is also connected with civil life.
A person who obeys laws is known as a civilized citizen. A
person who does not obey law is punished. It is therefore
necessary that all the people should have the sound
knowledge of law which is possible only with the help of
jurisprudence. Therefore, jurisprudence, having so much
importance for the society, has rightly been called the eye of
law.

10 Judges are the makers of law not discovers of law. Do you

agree with this view?
INTRODUTION:- There are two contrary theories regarding
the question as to whether Judges declare the existing law or
make the law. There are two which are as under :-
1. Theory that judges declare the law or Declaratory
Theory.
2. Theory that judges make the law or legislative theory.
(Law making theory)
1. DECLARATORY THEORY :- The first theory is the
declaratory theory as described by Hall and Blackstone and
they supported by Dr. carten also.
According to the declaratory theory no new law is created
by the Judge, Courts of Justice do not make law, their
province is to ascertain and declare what the law is. Judges
only discover the existing laws.
Hale enunciates declaratory theory of precedents and
contends that whilst Parliament alone legislates in the strict
sense the Judges only expound the law and their decisions
are the best evidence of what law is. The result of his theory
is that the effect of the decision is retrospective for it does not
only declare what law is but what it always has been.
Nevertheless as Maine has pointed out once the Judgement
has been declared and reported we start with a new train of
thought and frequently admit that the law has been modified.
According to Lord Esher, There is in fact no such hing
as Judge-made law, for h judge do not make the law, though
they frequently have to apply the existing law to the
circumstances as to which it has not previously been
authoritatively laid down that such law is applicable.”
Declaratory theory is based on the fiction that the
English law is an existing something which is only declared by
the Judges. This theory is known as the theory of judicial
precedent.
LAW MAKING THEORY
The second theory is that the Judges do not declare law but
make the law in the sense of manufacturing of creating
entirely new law. Bentham and Austin, have opposed the
traditional view as a childish fiction and have declared that
Judges are in fact the makers and fulfill a function very similar
to that of the legislature.
Lord Becon: The new point decided by the Judges is a direct
contribution towards law-making. Professor Dicey supported
this view and gives example of English common law which
has been made by the judges which has been made by the
judges through their judicial pronouncements.
Prof. Gray : supports this law making theory and says that
judges alone are the makers of law. He discredits the
declaratory theory.
Judges are without any query law-makers but their power of
law making is not un-restricted. It is strictly limited for instance
they cannot over rule a statute where the statute clearly lays
down the law. The legislative powers are restricted to the
facts of case before them.
According to Salmond : Who is strong support of this view
says that he is evidently troubled in mind as to the true
position of precedent. He further says that both in law and in
equity declaratory theory altogether totally rejected.
Such cases which are not covered by existing laws the
judicial decisions created new notions and formulae new
principles which were never contemplated earlier. Supreme
court over-ruled the Golak Nath decision in Keshwanand
Bhari’s case and laid down a new basic structure theory and in
Golak nath case the new principle of prospective over-ruling
was evolved by Judges.
RECONCILAION OF THE TWO THEORIES
The above two views about making of law by judges are not
exclusive of each other but they are rather complementary. It
will be seen that neither the purely declaratory theory nor the
purely legislative theory represents the whole truth. Judges
develop the law but cannot be said to legislate. The common
law is not made but has grown and the more it changes the
more it remains the same thing.
The answer to the question whether the Judges
make or discover law much depends upon the nature of the
particular legal system. In common law system it may be
stated that the Judges make law while in other countries
where is law is codified the judges only supplement the law. It
is true that custom and statutes do not render the judges
some super fulvous knowledge.

11 Explain the phrase, “Law is social Engineering” as

propounded by Roscoe Pound.
INTRODUCTION:- Roscoe Pound is considered to be the,”
American Leader” in the field of Sociological jurisprudence.
He comes from Harvard Law School and had a great
academic favour. According to him,” the end of law should be
to satisfy a maximum of wants with minimum of friction.” He
defined law as containing the rules, principles, conceptions
and standards of conduct and decision as also the precepts
and doctrines of professional rules of art. He considers law as
a means of a developed technique and treats jurisprudence as
‘social engineering’.
The main propositions of Roscoe Pound theory of Social
Engineering are as under:-
i) POUND CONCENTRATES ON THE FUNCTIONAL
ASPECT OF LAW:- Pound concentrates more on the
functional aspect of law, that is why some writers name has
approach as “ functional school” the law is an ordering of
conduct so as to make the goods of existence and the means
of satisfying claims go round as far as possible with the least
friction and waste.
ii) THE TASK OF LAW IS “SOCIAL ENGINEERING”:- He
says, “for the purpose of understanding of law of today. I am
content with a picture of satisfying as much of the whole body
of human wants as we may with the least sacrifice. I am
content to think of law as a social institution to satisfy, social
wants, the claims and demands involved in the existence of
civilized society.
iii) SOCIAL ENGNEERING MEANS A BALANCE
BETWEEN HE COMPETING INTEREST IN SOCIETY :- He
lays down a method which a jurist should follow for ‘social
engineering’. He should study the actual social effects of legal
institution and legal doctrines, study the means of making
legal rules effective sociological study in preparation of law-
making, study of judicial method, a sociological legal history
and the importance of reasonable and just solutions of
individual cases.” He himself enumerates the various
interests which are to be protected by the law. He classifies
them under three heads:
i. Private Interests (ii) Public Interests (iii) Social
Interests.
PRIVATE INERESTS:- Such as interest of physical integrity,
reputation, Freedom of volition and freedom of conscience.
They Are safe-guarded by law of
crimes, contracts.
PUBLIC INTERESTS:- Main public interests are preservation
of the State, State as a guardian of social interests such as
Administ-Ration of trusts, charitable endowments, protection
of Natural environment, territorial waters, sea-shores,
Regulation of public employment and so on.
SOCIAL INTERESTS:- Preservation of peace, general health,
preserving of Social institutions such as religion, political and
Economic institutions, general morals, promotes Human
personality, cultural and economic life.
Pound tackled he problem of interests in term as of balancing
of individual and social interests. It is through the
instrumentality of law that these interest are sought to be
balanced. Justice Cardozo remarked that,” Pound attempted
to emphasize the need for judicial awareness of the social
values and interests.” Roscoe Pound regarded law as a basic
tool of social engineering. How in India the society and law are
acting and reacting upon each other can be adjudged from the
following enactments passed after India became
Independent:-
a. The special Marriage Act 1954 2. The Hindu Marriage
Act 1955 3. The Hindu succession Act 1956 4. The Hindu
Minority and guardianship Act 1956 5. The Hindu Adoptions
and Maintenance Act 1956 6. The Dowry Prohibition Act 1961
7. Child Marriage Restraint (Amendment Act) 1978 8. The
Consumer Protection Act 1986 9. The S.C & S.T.(Prevention
of Atrocities) Act 1989 10. Commission of Sati (Prevention)
Act 1987 11. Bonded labour(Abolition) Act- 1976
INTERESTS AS THE MAIN SUBJECT-MATTER OF LAW:-
Pounds theory is that interests are the main subject matter of
law and the task of law is the satisfaction of human wants and
desires. It is the duty of law to make a valuation interests in
other words to make a selection of socially most valuable
objectives and to secure them.
To concluding the theory, Pound says that the aim
of ‘Social Engineering’ is to build an efficient structure of the
society as far as possible which involves he balancing of
competing interests.
CRITICISM AGAINST POUND’S THEORY :-
i. Engineering not a happy word : It suggests a
mechanical application of the principles to social needs but
really the word engineering is used by Pound metaphorically
to indicate the problems which the law has to face.
ii. Classification of interests not useful: Freidmann doubts
the value of classification of interests and the value of such
classification.
iii. Ihering & Bentham concludes the theory of Pound’s
that, “such classifications greatly helps to make legislature as
well as the teacher and practitioner of law conscious of the
principles and values involved in any particular issue. It is an
important aid in the linking of principle and practice.”
POUND’S CONTRIBUTION
Social Engineering stands on a practical and firm ground. He
points out the responsibility of the lawyer, the judge and the
jurists and gives a comprehensive picture of the scope and
field of the subject.

12 What do you mean legal personality and its different

theories? Whether the following are legal person :-
1. President of India 2. Council of Ministers 3.
Company 4 Un-born child. 5. Animals.
INTRODUCTION:- Natural Persons are all human beings who
are capable of rights and duties in law, i.e. who have a status.
Legal persons are those to whom law is recognised as a
person. It is either a thing or a mass of property or group of
human beings to which law attributes personality the law
confers a legal status and who thus in the eye of law possess
rights and duties as a natural person. Person is of two types :-
1. Natural Person II. Legal Person
According to Gray, “A person is an entity to which rights and
duties may attributed.”
According to Salmond, “ person is, any being to whom law
regards a capable of rights and duties.”
According to Paton, “Legal personality is a medium through
which some such units are created in whom rights can be
vested.”
In the development of society, law developed and with
the development of law the concept of legal personality come
into existence. In the ancient times there was no concept of
legal personality but as the society developed the person was
recognised as the representative of the State and a separate
personality was given to him. In the due course of time
corporation and companies came into existence such
companies and corporate were given the separate personality
so in this way these bodies are now called as legal persons.
There are the following two types of persons :-
i) NATURAL PERSONS ( HUMAN PERSONS):- All
human beings are natural persons but in ancient society the
slaves were not recognised as natural persons. Similarly
outlaid persons, unsound persons were not natural persons.
In Hindu Law, Manu has mentioned some persons who were
not recognised as natural persons i.e. Born child, deaf
persons, sanyasi and those who are living dead.
1. Unborn person: Unborn person is not a natural person
because he is not in existence, but a child in the womb is
natural person because he bears the rights and duties under
law. Person in the womb can represent the position after birth.
In IPC the child in the womb is considered as a natural person
as soon as any of his organ will come out from the womb.
2. If the pregnant lady gets the punishment of death
sentence. She will be hanged only after delivery.
3. ANIMALS:- In ancient time the animals were legal
persons but in modern time animals are not the legal persons
but in law we find come cases in which some animals have
some rights and duties. Today also the protection of animals
some laws have been made which give rights to the animals.
These laws prohibit people to kill them. In this theory the
personality has also been confirmed.
4. Dead Person:- In law dead person has no existence as
the dead person has no personality. But in certain cases they
are considered as person in law. First if any person defames
the dead person and such defamation lowers the reputation of
the family members of the dead person, then a legal action be
taken against the wrongdoer who defamed the dead person.
Secondly if any person defames the dead body of deceased
person then such person is liable for damages under law.
ii) LEGAL PERSONS:- Legal person are artificial or
imaginary beings to whom law attributes personality by way of
fiction, i.e. law gives them rights and duties like of natural
persons, e.g. King of England has two personalities- first a
human being second as head of state, being head of state he
is known as a legal person. Similarly he President of India and
the Governors of the states are legal persons.
CORPORATE PERSONALITY:- Main form of legal personality
is the corporate personality. It is of two kinds :-
1. Corporate sole: means a single body representing any
state or any other object. It is called series of the successive
persons. The King of England or the President of India is the
corporate sole. They represent only one man in successive
period. The post of corporate sole remains always alive while
the human beings who sit on the post may die.
2. Corporate Aggregate :- When law confers single
personality to a group of person then it is called corporate
aggregate e.g. companies are registered according to law of
societies or according to law of land. These companies or
corporations etc., are legal persons.
3. In the ancient time the Karta represented the whole
Hindu family who was considered as legal person. It is same
as in Roman Society. It is adopted in the shape of Indian
companies Act 1956. The advantages of the corporate
personality because they represent an association of persons
as a single person which is helpful in business.

13 Lay down the essential features of the Historical school.

Discuss the views of Society in this regard. OR Discuss the
philosophy of law as given by Sovging under Historical
School? OR Write critically note on the following Soveging
(Volkgeist Theory).
INTRODUCTION:- Jurisprudence is a subject in which the
definition nature and the sources of law are studied various
writers under various schools have defined law. Austin under
Analytical school says that law is the command of sovereign.
He added only the law in the study of jurisprudence. But
under historical school Soviging says that law is the general
consciousness (Volkgeist) of the people. It means what the
common people think or behave is the base of law. Law
shows the general nature of the common people. This theory
of Volkgeist is bassed on the historical method. Soveging is
the father of it. According to Soveging, “ Law is the General
consciousness of he people.”
HISTORICAL SCHOOL
Historical School is a branch of Law, which studies law from
the past history. It says that law is based on the General
Consciousness of people. The consciousness started from
the very beginning of the society. There was no person like
sovereign for the creation of law.
The law in the ancient times was based mainly
upon simple rules, regulation, custom, usages conventions
etc. These things were later on developed by the jurists and
lawyers. These things were later on converted into set form of
law.
CAUSES OF COMMING OF THE HISTORICAL
SCHOOL
The Historical school is just opposite to the Analytical
school in 18th and 19th century, the concept of individualism
came into existence. Due to this concept the revolutions came
like French revolution, Russian revolution etc. At that time
Soveging montasque, Barke, Hngo were the writers who said
that law is the general will of the people or law is based upon
common people and the feelings of the common people.
Law develops like the language and manners of
the society. So law has a natural character. Law has no
universal application. It differs from society to society and
state to state. In the same way the languages differ from
society to society and locality to locality.
Montasoque has said, “Law is the creation of climate, local
situations and accidents.” According to Hugo hag, “ Law
develops like language and the manners of the society and it
develops according to suitable circumstances of the Society.
The necessary thing is the acceptance and observance by
society.
According to Burke, “ Law is the product of the General
process. In this sense it is dynamic organ which changes and
develops according to the suitable circumstances of society.
SOVEGING :- Soveging is considered as the main
expounder or supporter of the historical school. He has given
the Volkgeist theory. According to this theory, law is based
upon the general will or free will of common people. He says
that law grows with the growth of nations increases with it and
dies with the dissolution of the nations. In this way law is
national character. Consciousness of people. In other words,
according to this theory law is based will or free will of
common people. He says that law grows with the growth of
nation. A law which is suitable to one society may not be
suitable to other society. In this way law has no universal
application because it based upon the local conditions local
situations, local circumstances, local customs, elements etc.
Al these things effect law and make it suitable to the society.
The main features of the Soveging theory is :-
1. Law has a national character.
2. Law is based upon the national conditions, situations,
circumstances, custom etc.
3. Law is pre historic: means law is found and is not
made, the jurists and the lawyers make it into set form.
4. Law develops like language and manner of the society.
In ancient society law was not in a natural stage or no in a set
form. Later on with the development of the society the
requirements and the necessities of the society increased.
Due to this it was necessary to mould law in a set form.
IMPORTANCE OF CUSTOMS
According to Soveging customs are more important than
legislation because customs come before legislation. In other
words the customs are the base of legislation.
CRITICISM OF SOVEGING’s THEORY
Savigny’s theory has been criticised on the
following grounds:-
1. Inconsistency in the Theory :- Saveging asserted that
the origin of law is in the popular consciousness, and on the
other hand, argued that some of the principles of Roman law
were of universal application. Thus, it is a clear cut
inconsistency in his ideas.
2. ‘Volksgeist’ not the Exclusive Sources of law :- There
are many technical rules which never existed in nor has any
connection with popular consciousness.
3. Customs not Always Based on Popular
Consciousness:- Many customs are adopted due to imitation
and not on the ground of their righteousness. Sometimes
customs completely opposed to each other exist in different
parts of the same country which cannot be said to be
reflecting the spirit of the whole community.
4. Savigny Ignored Other Factors That Influence Law:-
The law relating to trade unions is an outcome of a long and
violent struggle between conflicting interests within a society.
5. Many Things Unexplained :- Legal developments in
various countries show some uniformity to which he paid no
heed. i.e.
6. What is national and what is universal.
7. Juristic Pessimism:- Soveging encouraged juristic
pessimism. Legislation must accord with popular
consciousness. Such a view will not find favour in modern
times. No legal system would like to make compromise with
abuses. People are accustomed to it.
CONCLUSION
From the facts mentioned above we have gone behind to see
the history of the society to check that what was the position of
law in the ancient time. How and in what form law was
prevailing in the society? To find the solution of the questions
the supporter of Historical school found that law is the general
consciousness of the common people or it is the free will of
common people on which law developed and converted into a
set of form of law.
14 Define Precedents? Lay down the importance of the
precedents as the source of law. In what sense they are
binding? Do the judges make law?
INRODUCTION:- Precedents literally means previous judicial
decision. The decisions of the higher courts are binding on the
lower courts. The binding force of decision is called precedent.
The precedents play an important role in the development of
law. It is the second important source of law. First source is
customs and the third source is legislation. Sometimes act
may be insufficient for the case or there may be an vacuum or
any thing missing in the act. Under these circumstances the
court can apply their own mind. These independent decisions
becomes precedents which are followed later on by the same
& Lower courts. This method of decision is also called as
Judge made law. The English and American law is mostly
based upon the precedents. In India Art.141 of Indian
Constitution says that the decision of the higher courts shall
be binding upon the lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a decision
of a court which is also called judicial decision. According to
the Oxford University, “Precedents means the previous
decision case given by a court according to rules.” Various
writers have given the definition of precedents is conduct of
court adopted by the lower court in similar facts and in similar
circumstances in a case. Particularly the precedents means
the Judge made law. When the court gives its own ideas for
creating new rules. England, America and China also follow
the previous decisions as the source of law but the continent
countries like Germany, Japan does not accept the previous
decisions as the source of law. The method of taking
precedents as source of law is called inductive method, while
the method of continental countries not following previous
decisions of the court is called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very important
source of Law. They play an important role in the development
of law, so they have certain advantages as:
1. Precedents show true respect to the ancestors means
by adopting the previous decision of the higher court to decide
the present case, it is a kind of respect to elders.
2. Precedents are suitable to the present situation means
after some times the circumstances of the society can change
with the change of time so the precedents they are more
suitable and fit for the present time and circumstances.
3. Precedents are based on customs means the law in
the form of act which based upon customs. Court interprets
the customs while interpreting any act.
4. Precedents are convenient and easy to follow because
they are available in the form of written reports.
5. Precedents bring certainty in law, once decision is
given in a case there would be no need to repeat all
precedents in any other case if it resembles to the former
case.
6. Precedents are the best guide for the Judges: They
play an important role in the judiciary because the precedents
are the guide lines for the courts.
DEMERITS OF THE PROCEDENTS:- lthough the demerits
are very few but these are as under :-
i) The decisions are given by the human beings while
performing the duties as judge, his decision may not be
suitable to all persons who have different mind and thinking.
This will be a bad effect on Judiciary.
ii) Sometimes the decisions of the higher courts
contradictory to each other. It becomes harder to another
judge to apply the same verdicts as a precedents of higher
court
iii) Sometimes the higher courts give a wrong decision
and over pass the important factors of the case due to one
reason or the others.
PRECEDENTS ARE BINDING:- The precedents is an
important source of law. It is available in the form of judicial
decisions. Now the question arises that in what sense and
when the precedents are binding o follow. For the answer of
this query different views have been given by the various
writers and jurists. No doubts the precedents is not binding
like warrant issued by a court of law. It means precedent can
be over ruled if they are not right or appropriable to the case to
be decided but warrant has to be followed by all to whom it is
applicable.
It is not necessary that in the case which is to be decided the
circumstances and the facts must be the same as in
resembling case. If the facts and the circumstances of the
cases are materially similar then the precedents or previous
judicial decision is applied in the later cases and are applied
only in the form of ‘ratio decidendi’ of previous cases. There
are two parts of it :-
i) Ratio-decidendi:- means reasons which leads the court
to reach the decision. It is the main part of the case in
judgement and the ratio decidendi of the decision is binding in
the form of precedent.
ii) Obits decidendi:-It is also a part of the decision which
is irrelevant to the facts and circumstances of the case. The
judge takes into consideration the social conditions, morality,
principal of natural justice that is why the Judges play an
important role in the development of legal system.
DIFFERENCE BETWEEN CUSTOM & PRECEDENTS
CUSTOMS PRECEDENTS
Custom is primary source of law.
Precedents are the secondary source of law.
Custom is given by people in general. Precedents are
given by courts.
Custom is conduct adopted by people of society. Precedents
is itself complete certain, reasonable given by a competent
court of the country.
Custom is based upon the reasoning of common people of the
society.
Precedents are based upon the reasoning of a
individual Judge or very few judges.
Customs have more value then precedents and cannot be
ignored. It can be ignored if it gives un-justice.

DO JUDGES MAKE LAW:-

There are two theories about this purpose one theory says
that Judgs do not make laws and other theory says that
Judges in fact are the makers of Laws. This theory is also
known as declaratory Theory. According to this the judges are
not makers of the laws which they are already n existence.
The judges while deciding the case only applies the existent
and relevant customs for deciding the cases.
Judges are not the law makers:- The supporters of this theory
(historical school) says that all the laws are based upon
customs. The judges only to explain these laws and customs.
According to Coke hate and Dr.Carter, that the law is created
by the King or by the Parliament or by the Legislature bodies.
Common Laws is based upon custom. The public through the
decision of courts come to know those customs. It means that
Judiciary is not the maker of law. A case: Rageshwar Parsad
v/s state of West Bengal. It was held that, The court does not
create Law.
 ORIGINAL LAW MAKING THEORY
This theory is opposite to the first theory. It says that the
Judges are the real makers of the law. They not only interpret
or explain but also make the law. According to Salmond: who
is the main supporters of this theory says, “ That the decisions
of the courts are a great contribution to the legal system.”
Dicay says that, “that legal system is the best part of the law
of England which is judge made law.”
CONCLUSION:- The conclusion or the correct view is that we
cannot ignored any of the above theories because both are
correct and complements to each other and both should be
taken. No doubt that a Judge can only to explain or to
interprets the existing laws but at the same time he also
creates the new ideas, thoughts and gives new touch ideas
which play an important role in the development of law.
15 Discuss the main features of the ‘Pure Theory’ of Law. How
it resembles with Austin’s command theory. Critically examine
the view of Kelson given under pure theory of Law?
Introduction:- The Pure Theory of Law is given by Kelson. This
theory is also known as “Vienna School” because Kelson is
the productor of Vienna University. This theory resembles with
Austin’s command theory because in Kelson’s theory there
must be sanction behind law. Austin gave it the name of
command theory and Kelson gave it the name of grandnorm
theory. Kelson is affected by local conditions, natural condition
and international condition. After studying all these conditions
he gave this theory of Law, which is known as pure theory of
law and grandnorm theory .
Concept of pure theory of Law:- At the time of Kelson there
are Ist world was which destricted the property of human
beings at international level. So he gave power to the
international law and avoiding the destructions of the world.
Secondly during that time many countries adopted written
constitution. So Kelson also get influenced from these written
constitutions and gave his own theory which is based on
grandnorms.
Grandnorm
Grand means great and norm means Law, So it means
a great law the superior authority from which law comes out.
He compared the grandnorm with written constitution.
According to him written constitution is the highest authority in
the country which is known as grandnorms. In England the
Parliament is a grandnorm, in USA written constitution is
grandnorms and in India too written Constitution is grandnorm.
State is not above the grandnorm. Sovereignty also liven in
grandnorm. Accoding to Kelson law is a motive nor science, it
means science of norms. In laws only those rules are taken
which are related with legal aspects. Any others like moral
rules, religious rules, ethical rules do not come under the
concepts of grandnorm. Here Kelson is equal to Austin. When
he excludes morals relation or ethics from the field of law.
System of Normative Rules:- System of normative rules was
Hierarchy. In hierarchy system there is one highest authority
and all other are lower authorities. This highest authority was
grandnorm which was in the form of written constitution and
other authorities are below the constitution. The source of
power in a state for all bodies is written constitution.
Internation Law:- Kelson says that norms have a force behind
it. This force lies in the grandnorm. If this legal norm is not
obeyed then one person will be punished for it. He also says
that at this time international law is immature. It is in primitive
stage. It is developing.
Nature of Grandnorm:- According to Kelson each country has
the formation of grandnorm according to local conditions. The
duty of jurists is to interpret the grandnorm in their own
language. They are not concerned with the goodness or
badness of the grandnorm. They are not concerned with the
origin of the grandnorm. In this way the grandnorm is the main
source of all the laws in the country.
Elements of Pure Theory:- Kelson gave his view under this
theory about State, sovereignty, public and private law, public
and private rights, international law private and juristic law.
Feature of Kelson’s theory:-
1. Grandnorm as a source of law:- Grandnorm is the
source of all laws. Grandnorm is in the form of written
constitution. Any such body, which contains rules, or any such
legal system in a country.
2. No difference between law and state:- Kelson says
that there is no difference between law and State between
because they get power from the same grandnorm. Law
comes from the grandnorm and the state also comes from the
grandnorm.
3. Sovereign is not a separate body:- Austin says
sovereign is a politically superior person which keeps controls
over the politically inferior persons. But Kelson says that the
power of sovereign lies in the people. So the Sovereign is not
separate and superior from the people of the country.
4. No difference between public law and private law:- The
public law is related with the state and the private law is
related with the individuals as Kelson says that there is no
difference between public law and private law. The law which
creates a contract between individuals is called private law.
5. Supremacy of internationally laws:- The main prupose
of Kelson was to decrease the tension at world level because
there was Ist world war which destroyed millions of persons
and property. He also said that the internaiton law is in
primitive stage or immature stage. It means it is in developing
stage. One day will come when international law will get equal
to that of municipal law. So this is also enforceable.
Criticism of Kelson’s theory:- In-spit of having good concept of
pure theory given by Kelson some of the criticism faced by
him, which are as under:
a. Grandnorm is a vague concept:- The concept of
grandnorm is not clear. It cannot be applied where there is no
written constitution. The base of grandnorm in the form of
positive norms or the rules based only on legal order is not
clear. The rules, which are not linked with morals ethics.
Customs and religion are not the norms. But we can not
ignore the role of these norms in the development of law.
b. Interantion Law is a weak law:- Kelson advocated the
supremacy of international law. But even upto now we see
that is no force behind international law.
c. No difference between state and law:- this point is also
criticised by various writers. Law as a separate thing from the
State. State is body is law in, which law is a rule that regulates
the state.
d. Difference between public law and private law:- Kelson
says that there is no different between public law and private
law. Which is also not right in the modern days.
e. Customs and Precedents ignored:- He also customs as
a source of law while we see that customs are the source of
all laws.
Conclusion:- Although Kelson has been criticised from
various angles yet he had contributed a lot in the development
of the society. Thus the concept of grandnorm gave power to
the public at large as well as at national level. His main
purpose was to stop destruction of any world war. This can
resemble to Austin also Kelson is also limited with the law.
16 Discuss the Salient features of the Sociological School of
Jurisprudence? OR Salient features of the Sociological
School of Jurisprudence?
Introduction:- The sociological school is one of he important
branches of law. It comes after the Analytical school and
Historical school. Its seeds were found in the historical
school. Duguit, Roscopound and Camta are the supporters of
this school. This school is related with society. According to
this school law is numerator of society. Law and society both
are the two sides of the same coin, one cannot exist without
the other. If there is law there should be society and if there is
society there should be law. Law is very necessary for
regulating the society. Many writers like Duguit, Roscopound
and Inhering gave these view in the sociological school.
The theory of Duguit under sociological school is a social
solidarity. Scocial solidarity means the greatness of society.
Duguit said that there are mainly two types of needs of the
society:-
1.Common Needs 2. Adverse Needs.
1. Common Needs :- Which are fulfilled by mutual assistance.
2. Adverse Needs.:- Which are fulfilled by the exchange of
services. No one can live without the help of other. Even a
state cannot exist without the help of other state. One cannot
produce all things required for him. So he has to depend upon
others. The dependency is called social solidarity. For this
purpose the division of labour is necessary. Division of labour
will fulfill all requirement for the society. This philosophy or
views is called social solidarity.
ESSENTIAL ELEMENTS OF DUGUIT THEORY
OF LAW
1.Mutual Inter dependence : In society all persons are
depending upon each other. Individual cannot fulfill his
ambitions alone.
2. No difference between state & society: State and society
are a group of persons. Main purpose of the society is to save
the people. This responsibility is also lies upon the state. So
state does not have a special status or above status from
people. State should make law for the welfare of the people.
3. Sovereign and will of people: Sovereign is a politically
superior person. Duguit says that sovereign is not superior to
people. The sovereign of a state lives in people or in the will of
people.
DIFFERENCE BETWEEN PUBLIC & PRIVATE
LAW
Duguit says that there is no difference between public law and
private law because the aim of both the law is to develop the
social solidarity. Pubic law and private law are meant for
people. Public right and private right or people have only
duties and not any right.
There is no difference between public right and private
right. According to Duguit there is only one right that is to
serve the people. It means person have only duties not rights.
CRITICISM OF DUGUIT’S THEORY
1.The theory of social solidarity is vague:- This theory is not
clear for a common person. One cannot gain anything from
this theory so this is vague theory.
2.Who will decide social solidarity :- Duguit has not given the
authority that who will explain the solidarity because Duguit
did not recognize sovereignty. We can imagine that Judge will
explain the standard of social solidarity. But there are no
guidelines for the Judgess
3.Public law and Private law are not same :- There must be an
authority which passes the law. In Duguit theory there is no
place for such authority.
4. Public right and Private right are also not same :- The right
of society is public right and the right of common people is
private right.
5. Custom ignored:- Custom is the base of any law but Duguit
ignore these customs. In this way the theory of Duguit is not
suitably in modern times.

CONCLUSION
No doubt Duguit was a sociologist because he gave a lot of
development to society. The social solidarity itself contains the
welfare of the people. Duguit said that law should be
according to the social solidarity. Here he discards natural
principal but the theory of the social solidarity itself is based
upon natural law, which demands that the people should
served properly according to their needs. In this way Duguit
put out the natural law principal from the door and accepted
through the window.
However the contribution of Duguit is accepted by many
writers and some of them also adopted this theory.

17 Define Ownership. Discuss the various kinds of ownership.

Distinguish between possession and ownership.
INTRODUCTION: Ownership is linked with possession.
Possession is the first stage of ownership. It means for
ownership possession is necessary. Possession and
ownership both are two sides of the same coin and one
cannot exist without the other.
Ownership gives the full right over the thing. Ownership is
ultimate and final right for disposing the property. It means to
transfer that property in any way. Ownership is a relation ship
between the person and the thing. For ownership there must
be a thing and the owner of thing. The concept of ownership
was absent in the ancient society. There was also no concept
of possession too. Slowly and slowly as the society
developed the concept of possession also developed. The
idea of ownership came into existence. So this way after the
progress of the concept of ownership the person became the
full owner of his property.
DEFIN ITION :- Before to define the ownership we have to
discuss the various kinds of law :-
Roman Law :- As evident from history that the Roman Law
was the first law in the world. It is considered the ancient law.
All concepts of law begin from the period of Roman society.
Under the Roman Law the concept of ownership is defined in
the form of dominion that means to have the right control of a
thing. The concept of ownership developed in the form of a
right over the thing. Dominion is distinguished from
possession. Possession means to have possession over a
thing but dominos means to have a right over the thing.
HINDU LAW :- Hindu Law is also considered as the most
ancient law in the world. In Hindu law the concept of
ownership also has been discussed. In Hindu Law ownership
is said a , “According to Hindu Law ownership means a
relationship between person and a thing. Person is called
owner and a thing is called property. Means a property which
is in the control of a person is his property.
VIEWS OF MODERN & WESTERN JURISTS
The western jurists like Austin, Holland and Salmond defined
the concept of ownership.
Austin :- According to him ownership is the relationship which
exists in between the person and the thing.” This definition
resembles with the definition under Hindu Law. Austin says
that in ownership a person has the following relations with the
thing.
1.Indefinite Use :- It means to use that thing in any way
whether to use it for agriculture or for industry, residence but
there is a restriction that one cannot use one’s property in
such a way which destructive in the living of others.
2.Un-restricted power of dispose:- Means to transfer that thing
or property according to his choice. He can sale or to
mortgage even to give on lease or gift to anybody. But under
art.19(2) of the Constitution reasonable restrictions can be
imposed by the Govt., in the interest of public policies.
3.Un-limited duration of time :- means the right of transfer of
his property will remain always in the name of owner. After his
death it will go to his heirs so there is no time limits.
4.Domination :- It means to have control over the thing. For
this purpose both elements of possession corpus and animus
should be there. If the conditions are there between person
and the thing and then the person is owner of that thing.
According to Holland: He defined the ownership as a plenary
control of a person over a thing. The definition also contains
the following conditions :-
1.Possession 2. Enjoyment 3. Disposal.
According to Salmond :- Salmond defines ownership as a
relationship between person and the right. Right means to
have a thing under possession. Thing always represents
physical objects. But right always represents a thing which is
not in physical existence like copy right and allowances are
always thing which are called property. And which are not in
physical existence.
Salmond has included all those right which are property in the
concept of ownership. In view of the above it is learnt that
Austin and Holland definitions are not complete. But salmond
is completely perfect in his definition.
KINDS OF OWNERSHIP
There are various kinds of ownership which are as under :-
1. Corporal and Incorporeal ownership: Corporeal and
incorporeal ownership also called material and immaterial
ownership. Corporeal ownership is the ownership of a material
object and incorporeal ownership is the ownership of a right.
Ownership of a house, a table or a machine is corporeal
ownership. Ownership of copyright a patent or a trade mark is
incorporeal ownership.
2. Sole and co-ownership:- The general principal of
ownership is that vested in one person only. But some times it
vested in many persons in other words two or more person
have the right of ownership. If only one person have right of
ownership that known as sole ownership and where two or
more persons have the right of ownership then know as co-
ownership.
3. 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 ownership is yet imperfect.
4. Absolute and Limited ownership:- means owner is one in
whom are vested all the rights over a thing to the exclusion of
all or when a person has an absolute right over his property
known as absolute ownership.
When there are limitations on the user duration or disposal of
rights of ownership the ownership is limited ownership.
5. Legal and Equitable ownership:- Legal ownership is that
which has its origin in the rules of common law. Equitable
ownership is that which proceeds from the rules of equity.
Legal right may be enforced in rem but equitable rights are
enforced in personam.
CONCLUSION
The ownership is a relationship between person and the right.
These rights include the right of possession enjoyment and
disposal of the property. If all conditions are there then it is
called Ownership.

DIFFERENCE BETWEEN POSSESSION &

OWNERSHIP
POSSESSION OWNERSHIP
1.Possession is a primary stage of ownership which is in fact.
1. Ownership is in right.
2.Possession does not give title in the property defacto
exercise of a claims 2. While in ownership it gives title in the
property dejure recognisation.
3.Possession is a fact. 3. Ownership is a right and
superior to possession.
4.Possession tends to become ownership. 4.Ownership tends
to realize itself in to possession.

5.Possession dominion corpus and animus are necessary.

5.Ownership they are not necessary because law gives
full rights.
6.Transfer of possession is comparatively easier.
7. Possession is nine points of law. 6.Ownership most of the
cases involves a technical process i.e. conveyance deed etc.
7.Ownership always tries to realize itself in possession i.e.
complete thing.
18 Define Custom and essentials of a valid custom. Discuss
its importance as a source of law and also compare with
precedents.
INTRODUCTION: Custom is a conduct followed by persons in
the society. Custom is considered as the most ancient and
most important source of law. Source means origin of a thing.
It is also considered that law basically comes out from
customs. In the past customs were prevailing for the control
over the society.
Austin was the first person who discarded the value of
the custom. But the historical school again gave the
importance to custom. The sociological school also gives
importance to law with relation to society.
In the modern times the precedents i.e. Judge made
law and legislation have become over powered to that of
customs. As in a case of Maduri v/s Motu Ram Linga. It was
held that even custom power over the state.
VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A
SOURCE OF LAW.
The followings are the systems which recognized custom as a
source of law :
1.Romal Law :- Roman Law is known to be the oldest one in
the world. This law is mainly based upon customs of the
society. Those customs which were reasonable continued
them as law by the Roman jurists.
2.Hindu Law :- Hindu law is also to be considered as the most
ancient law. His sources are Vedas, Sutras and Smiriies and
these were mainly based on customs. All personal laws of
Hindu are based upon custom that is why Lord Warren
Hastings and Lord Cornwallis did not attack on customs of
Indians.
Manu said One should follow the given path of their ancestors.
This was nothing but the reorganization of customs.
3.Mohammedan:- Particularly ignored customs for the purpose
of law. During th Muslim period in India their customs were
protected by State. The British rulers in India also protected
customs and personal laws which were based upon customs.
The traditions which were not opposed by the prophet
Mohammedan were recognized as law. In this way we can say
that customs in Mohammedan law also played an important
role.
4. English Law :- Which is known as common law and in the
shape of un-written and based upon customs and
conventions. Customs which were reasonable and not
against the public policies were recognized as law under
English Law.
According to Pollock, The common Law is customary
law. Black stol common includes written law and un-written
law.” The written law is based upon the general customs. In
this way English law also gave importance to the customs as
a source of law.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to the
nation and are applicable on the country’s people.
2. Local Customs :- Those customs which are related with a
particular locality.
3. Family Customs :- Those customs which are related with a
family and have application on a particular family.
4. Conventional Customs :- These customs based upon
conventions e.g. a bigger part of English Law based on
customs and conventions.
ESSENTIALS OF CUSTOMS
1. Antiquity :- It means oldness of the customs. The customs
must be ancient. There is no limit of time for the antiquity of
custom. In India there is no fixation of such time limit.
2. Reasonable :- The customs must be reasonable. It should
not be un-reasonable and against the public feelings.
3. Followed :- Customs must be followed by the society. There
should be no contradiction in observing customs.
4. Continuity :- Customs must be continuing from the time it
was recognized as law. There should not be any break or
interruption. If there is break for sometimes it does not mean
that the right thing has been lost.
5. Certainty :- Customs must be certain in its nature.
6. Consistency :- There should not any confliction for its
reorganization as a law.
7. Peaceful enjoyment :- Custom must be enjoyed peacefully
for a long time without an disturbances.
8. Immorality:- Customs should not be against the morality.
9. Public Policy:- It must not be against the public policies or
against the will of people.
10. Not against the State of Law:- Customs should not over-
ride the legislation . It should not be against the law of the
land.
WHEN DOES A CUSTOM BECOME LAW.
ANALYTICAL VIEW:- Austin and Gray are the supporters of
analytical school. They say that a custom becomes law when
it is recognized by the sovereign in the sense of positive law
only.
It means that if a custom has been accepted or adopted
or recognized by the sovereign then it will become a law
otherwise there will be no value of the custom in judicial
system of the society.
HISTORICAL SCHOOL:- Sovereign as the supporter of
Historical school says that custom is a main source or base of
law He says that “ consciousness of the volkgiest is the main
source of law.”
Custom is superior to Judge made law or legislation.
The legislation while making a law recognizes the customs of
the society. The courts also while giving the decisions
recognized the customs prevailing in the society.
CONCLUSION
Custom occupies an important place as a source of law even
to these days because most of the material contents of
developed system of law have been drawn from ancient
customs. Custom is one of most fruitful sources of law.
According to Analytical school a custom when recognized by
State or sovereign becomes law. According to Historical
school when state or courts make law they give importance to
the customs. So both of the view are combining to each other
and are correct for a custom as source of law.

19 Rights and duties are co-relative. Discuss. OR Distinguish

between claims liberties powers and immunities also explain
the correlative of each.
Introduction:- Right and duties are the very important element
of law. The term ‘ Right’ has various meanings such as
correct, opposite of left, opposite of wrong, fair, just and such
like other expression etc. But in legal sense a right is a legally
permissible and protected action and interest of a man group
or state.
Definition
According to Austin :- “Right is a standard of permitted action
within a certain sphere. He further define right is a party has a
right when others are bounds to obligesed by law to do or not
to do any act.”
According to Salmond : “ It is an interest recognized and
protected by the rule of justice / law.”
According to Gray:- “Right is not an interest itself but it is the
means by which the enjoyment of an interest in secure.”
According to Prof. Allen:- “ The essence of right not a legal
guarantee in itself but a legally guaranteed power to realized
an interest.”
ELEMENTS OF RIGHTS
1. Subject:- The subject of a right is concerned with the person
legal and artificial or a group who legally is entitled to seek the
privilege and benefit of against other. In other words the
subject is that the person whom the right is vest.
2. Content:- This is the subject matter of the right along-with
the nature and limits of that right.
3. The person of Incidence :- It means that the person upon
whom falls the corrective duty.
OBJECT:- The object of the right may be material or
immaterial determinate or indeterminate.
CHARACTERSTICS OF RIGHTS
1. RIGHT is a general o specific type of claim, interest or such
like expression of the people in a State.
2. The right is duly recognized and approved by the State
through its agencies.
3. A legal right is expressed a deep correlation with a
corresponding duty, liability or disability on the part of those
against whom such right is conferred.
4. A right may has its independent existence and type of
assemblies with other rights.
5. Basic philosophy or the fundamental concept of right
remains permanent but with the time being it is subjected to
incorporate the allied changed in it.
6. The realization and scope of a legal right depends upon the
type of society and the nature of interest.
THEORIES OF RIGHTS:- There are two main theories of legal
right:-
1. Will theory:- The will theory says that the purpose of law is
to grant the individual i.e. self expression or positive
declaration. Therefore right emerges from the human will.
The definition of right given by Austin and Holland, “ that the
will is the main elements of a right.” Pollock says, “ that right in
term of will.”
2. The Interest Theory:- Interest is the basis of right. A great
german jurists defines about the legal right as, “ A legally
protected Interest.” According to him the basis of right is
“Interest” and not “will”.
The definition of law is in term of ‘purpose’ that law has
always a purpose. In case of right the purpose of law is to
protect certain interest and not the wills or the assertions of
individuals. These interests are not created by the State but
they exist in the life of the community itself.
TYPES OF RIGHTS
1. Primary and secondary Right: They are known by
Antecedent and remedial rights names also.
2. Perfect and imperfect Right: Means which has a correlative
positive duty.
3. Negative and Positive Right:-Positive means related to duty
whereas negative means not related to duty.
4. Right in Rem & Personam:
5. Right is repropria and Right is Re-aliena.
6. Vested and contingent right.
7. Propriatory and personal Right.
8. Equitable and legal right.
Duty
Introduction:- The term duty may be used in various form as
an obligation, as responsibility and accountability. There are
some scolers who define Duty as following:-
Definitions of Duty:- According to Gray, Duty is the act of or
forbearance which an organized society used to impose on
people through state in order to protect the legal right of other.
According to Rose Duty is the Pre-dicament of person whose
act are liable to be control with the assistance of the State. As
per Hoffield The duty is the correlative of Right.
Classification of Duties:- Duty classified into two categories.
There are as follows:-
Duties
Positive And Negative Duties
Primary and Secondary Duties

1. Positive and Negative Duty:- A positive duty implies some

act on the part of person on whom it is imposed. Negative duty
implies some forbearance on the part of the person on whom
it is imposed.
2. Primary and Secondary duty:- A primary duty is that which
exists perse and independent of other duty. A secondary duty
is that duty whose purpose to enforce some other duty.
Essentials of duty:- There are following essential of duty:-
a. It may be dependent and independent.
b. It consists an obligation on the part of someone and
confirm a privilege upon other.
c. The concept of duty is affirmed and protected by the
law of the land where it exist.
d. The concept of duties is a changing process which
arises from time to time, place to place and circumstances to
circumstances.
e. Duty in most of the cases creates an absence of right
against some person.
f. Duty may be fundamental, legal or moral in character.
Relation between Right and Duties:- The following objects
describes the correlation between right and duties:-
i. A right is indispensible without any duty.
ii. A duty and right has separate and independent
existence.
iii. A right procreates duty and vice-versa.

OR Your choice

Even though right and duties are opposite points but there is a
great relation between two relations. The right and duties has
a relation of Father and Child, Husband and Wife because
there is no father without child and no wife without husband.
So right and duties cannot be separated form each other.
Right/Claim Liberty or privilege Power
Immunity
Duty No claim
Liability Disliability
(Jural opposites) (Jural
correlative)
Conclusion:- Right and duties are correlative of elements of
each other. There is no right without duty and there is no duty
without right. These are recognized by law for maintaining the
society very well.
20 Define law as an instrument of social change. What special
changes have been brought out by law?”
INTRODUCTION:- Law as a command as it introduces
subjective considerations whereas the legal theory is
objective. Notion of justice as an essential of law because
many laws though not just may still continue as law. Science
as system of knowledge or a totality of cognitions
systematically arranged according to logical principles. The
laws of natural science are capable of being accurately
described determined and discovered. A law is valid because
it derives its legal authority form the legislative body and the
legislative body its own turn drives its authority from
Constitution of India. The aim of law as of any science is to
reduce chaos and multiplicity to unity.
According to Kelson, law is normative science but law norms
may be distinguished from science.
Definition of Law:- while emphasising Volksgeist as the
essence of law, Savigny justified the adoption of Roman Law
in the texture of German Law which was more or less defused
in it. Law has unconscious organic growth, it found and not
artificially made. Law is not universal in nature. But like a
language it varies with the people time and need of the
community. With the growing complexity of law the popular
consciousness as represented by lawyers who are nothing but
the mouth peace of the Consciousness.
Law as an instrument of Social Change:- The following are the
elements which have been helping the law to be an instrument
who bring the social changes:-
1. A social Utilitarian:- The system develops aspects of
Austinian positivism and combines them with principles of
Utilitarianism as established and developed.
2. Law is the result of Constant struggle:- According to
Ihering the development of law like its origin is neither
spontaneous nor peace full. It is the result of constant struggle
with a view to attain peace and order. Law is the guarantee of
the conditions of life of society.
3. Law is to serve for social purpose:- As a result of social
changes comes through law that is social purposes comes in
conflict with the duty of the State is to protect and further
social purposes to suppress those individual purposes which
clash with it. Therefore, law is coercion organised in a set form
by the State.
4. Law protects Social Interest:- Law is a such type of
instrument which protects the social interest of the people.
According to Bentam it is the persuit the pleasure and
avoidance of pain.
5. Law is to found in social facts:- AS per Ehrlich, That the
law of community is to be found in social facts and not in
formal sources of law. He says at present as well as any other
time the centre of gravity of legal development lies not in
legislation, nor in juristic science, nor in judicial decision but it
lies in society itself. It is a social changes.
6. Living law is the fact that govern social life:- The
essential body of legal rules is always based upon the social
facts of law and the facts of law which underline all law are
usage, domination, possession and declaration of will .
7. Law according to the requirement of Society:- It means
that law in a society should be made and administered with
the utmost regard to its necessity.
8. Law also to serve this and:- Law is the rule which men
possess not by virtue of any higher principle whatever, good,
interest or happiness but by virtue and perforce of the facts
because they live in society and can live in society. This is
because of to use the law as an instrument which brought the
Social Changes.
Conclusion:- The contribution of law in the social changes is a
great and its approach is more scientific and comprehensive.
The study of law in social context and emphasizes its close
relation with the life of society.