MODULE 1

CONCEPT OF JUSTICE:
• The word ‘justice’ has been taken from the Latin word jus which means bond or tie. This means
that justice is a system in which men are tied in close relationship. A man living in society is
attached to another man in one way or the other, this relationship has few rights and duties
attached to it.
• When a man while enjoying his rights also fulfils duties and behave in an appropriate way with
others then he is said to be doing justice. The literal meaning of justice is protection of rights and
punishment for wrong doers.
• An early theory of justice was set put by Plato in his work ‘The Republic’. According to him,
Justice is a quality which individual can do by discharging his duties honestly and not to interfere
in actions of others.
• Austin and Holland has defined law with reference to sanctions without bothering for the ends of
law. They excluded the idea of morality, ethics ad justice from the definition of law. Salmond
defined law in the terms of its purpose. According to him, law exists for the promotion oof Justice
within the framework of law.
• Salmond defines law as a body of principles recognized and applied by the State in the
administration of justice. The three main elements of Salmond’s definition are meaning of the
term law, recognized and applied, administration of justice.
• The expression ‘law’ as defined by Salmon means civil law i.e., law of State or law of the
country. He emphasized that law must be recognized and applied by State i.e., courts which may
reject a custom or change a statute.
• A law is enforceable by the judicial system i.e., those responsible for breaking them can be
prosecuted in Court. On the other hand, justice is a concept that is based on equality, ethics,
morality, etc. This concept states that all individuals must be treated equal and same.
• The term ‘justice’ is a huge part of law and almost all aspects of law are based on this concept.
The term justice as a part of law suggest that law must be right and equal for everyone
irrespective of caste, religion. It is essential that everyone must have the same rights as another.
• In many countries, justice is often represented using a blind folded lady with set of scales in her
hand. In some countries, there is also a sword in her hand. The blindfold is said to depict the
irrelevance of caste, gender, etc. Scale represents equality in weighing the claim while sword
represents the court’s coercive power. Law and Court are used to implement justice by providing
punishment for law breakers.
• In ancient India, law and dharma were considered same and consisted with truth, morality and
justice. The object of law was to promote justice. The law wasn’t created or made by the King but
he himself was governed by law.
• In post-constitutional era, the concept of justice is enshrined in the constitution itself with
establishment of supremacy of constitution, the basic ad invaluable fundamental rights of the
citizens alongwith the limitation on the power of parliament, the courts have the power to do the
judicial review the acts of these bodies.
• In the Preamble, Justice-Social, economic and political is given the first place which the courts
ensure while deciding any case. In J K Iron & Steel Company v. Mazdoor Union, AIR 1956 SC
231, it has been observed that under the Constitution, the ultimate authority is given to the Courts
and has the binding force of law. It has been also held that laws are laws because the courts
enforce them so it was believed that true test of law is the enforceability in the Court of law.
• According to Salmond, the purpose of law is the administration of justice which means that law
must try to attain justice in the end. Law is merely the instrument while justice is the end purpose
for which the State exists.

THEORY OF JUSTICE- JOHN RAWLS:

A. Introduction:
• John Rawls was an American political philosopher in the liberal tradition. Rawls was born and
raised in Baltimore, Maryland. Rawls studied at Princeton, where he was influenced by
Wittgenstein's student Norman Malcolm; and at Oxford, where he worked with H. L. A. Hart,
Isaiah Berlin, and Stuart Hampshire.
• His first professorial appointments were at Cornell and MIT. In 1962 Rawls joined the faculty
at Harvard, where he taught for more than thirty years. Rawls's most discussed work is his
theory of a just liberal society, called justice as fairness.
• Rawls first set out justice as fairness in systematic detail in his 1971 book, A Theory of Justice.
Rawls continued to rework justice as fairness throughout his life, restating the theory in
Political Liberalism (1993), The Law of Peoples (1999). Rawls was dissatisfied with the
traditional philosophical arguments about what makes a social institution just and about what
justifies political or social actions and policies.
• His theory of justice as fairness describes a society of free citizens holding equal basic rights
and cooperating within an egalitarian economic system. His theory of political liberalism
delineates the legitimate use of political power in a democracy, and envisions how civic unity
might endure despite the diversity of worldviews that free institutions allow.
B. Role of Political Philosophy:
• Rawls viewed his own work as a practical contribution to resolving the long-standing tension in
democratic thought between liberty and equality, and to limning the limits of civic and of
international toleration. He offers the members of his own society a way of understanding
themselves as free and equal citizens within a fair democratic polity, and describes a hopeful
vision of a stably just constitutional democracy doing its part within a peaceful international
community.
• Rawls sees political philosophy as fulfilling at least four roles in a society's public life:
* The first role is practical: political philosophy can discover grounds for reasoned agreement
in a society where sharp divisions threaten to lead to conflict.
* A second role of political philosophy is to help citizens to orient themselves within their own
social world. Philosophy can meditate on what it is to be a member of a certain society, and
how the nature and history of that society can be understood from a broader perspective.
 * A third role is to probe the limits of practicable political possibility. Political philosophy
must describe workable political arrangements that can gain support from real people.
* A fourth role of political philosophy is reconciliation.
• The guiding idea is that the principles of justice for the basic structure of society are the object
of the original agreement. They are the principles that free and rational persons concerned to
further their own interests would accept in an initial position of equality as defining the
fundamental terms of their association.

C. Basic Structure of Society:

• Justice as fairness aims to describe a just arrangement of the major political and social
institutions of a liberal society: the political constitution, the legal system, the economy, the
family, and so on. Rawls calls the arrangement of these institutions a society's basic structure.
• The basic structure is the location of justice because these institutions distribute the main
benefits and burdens of social life: who will receive social recognition, who will have which
basic rights, who will have opportunities to get what kind of work, what the distribution of
income and wealth will be, and so on.
• The form of a society's basic structure will have profound effects on the lives of citizens. The
basic structure will influence not only their life prospects, but more deeply their goals, their
attitudes, their relationships, and their characters.
• Institutions that will have such pervasive influence on people's lives require justification. Since
leaving one's society is not a realistic option for most people, the justification cannot be that
citizens have consented to a basic structure by staying in the country.
• Since the rules of any basic structure will be coercively enforced, often with serious penalties,
the demand to justify the imposition of any particular set of rules intensifies further. In setting
out justice as fairness, Rawls assumes that the liberal society in question is marked by
reasonable pluralism as described above, and also that it is under reasonably favorable
conditions: that there are enough resources for it to be possible for everyone's basic needs to be
met. Rawls makes the simplifying assumption that the society is self-sufficient and closed, so
that citizens enter it only by birth and leave it only at death.
D. Original Position:
• In justice as fairness the original position of equality corresponds to the state of nature in the
traditional theory of the social contract. This original position is not, of course, thought, of as an
actual historical state of affairs, much less as a primitive condition of culture. The person behind
the veil at original position knows nothing about his generation.
• It is understood as a purely hypothetical situation characterized so as to lead to a certain
conception of justice. Among the essential features of this situation is that no one knows his
place in society, his class position or social status, nor does anyone know his fortune in the
distribution of natural assets and abilities, his intelligence, strength, and the like.
 • The principles of justice are chosen behind a veil of ignorance. This ensures that no one is
advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the
contingency of social circumstances.
• The original position is, one might say, the appropriate initial status quo, and thus the
fundamental agreements reached in it are fair. This explains the propriety of the name "justice
as fairness": it conveys the idea that the principles of justice are agreed to in an initial situation
that is fair.
• According to Rawls this is a special type of arrangement, a contract where people favours for a
strategy which maximizes the prospects of the least well- off. Once the veil of ignorance is
lifted and once the people leave their original position, the contract shall be maintained, out of
respect for each other.

E. Principles of Justice as Fairness:

• These guiding ideas of justice as fairness are given institutional form by its two principles of
justice:
* First Principle: Each person has the same indefeasible claim to a fully adequate scheme
of equal basic liberties, which scheme is compatible with the same scheme of liberties for
all;
* Second Principle: Social and economic inequalities are to satisfy two conditions:
o They are to be attached to offices and positions open to all under conditions of fair
equality of opportunity;
o They are to be to the greatest benefit of the least-advantaged members of society
(the difference principle).
• The first principle of equal basic liberties is to be embodied in the political constitution, while
the second principle applies primarily to economic institutions. Fulfillment of the first principle
takes priority over fulfillment of the second principle, and within the second principle fair
equality of opportunity takes priority over the difference principle.
• The first principle affirms that all citizens should have the familiar basic rights and liberties:
liberty of conscience and freedom of association, freedom of speech and liberty of the person,
the rights to vote, to hold public office, to be treated in accordance with the rule of law, and so
on. The first principle accords these rights and liberties to all citizens equally.
• Rawls's first principle confirms widespread convictions about the importance of equal basic
rights and liberties. Two further features make this principle distinctive. First is its priority: the
basic rights and liberties must not be traded off against other social goods. The first principle
disallows, for instance, a policy that would give draft exemptions to college students on the
grounds that educated civilians will increase economic productivity.
 • The second distinctive feature of Rawls's first principle is that it requires fair value of the
political liberties. The political liberties are a subset of the basic liberties, concerned with the
right to hold public office, the right to affect the outcome of national elections and so on. For
these liberties, Rawls requires that citizens should be not only formally but also substantively
equal.
• Rawls's second principle of justice has two parts. The first part, fair equality of opportunity,
requires that citizens with the same talents and willingness to use them have the same
educational and economic opportunities regardless of whether they were born rich or poor.
• The second part of the second principle is the difference principle, which regulates the
distribution of wealth and income. Allowing inequalities of wealth and income can lead to a
larger social product: higher wages can cover the costs of training and education, for example,
and can provide incentives to fill jobs that are more in demand.
F. Conclusion:
• The difference principle is partly based on the negative thesis that the distribution of natural
assets is undeserved. A citizen does not merit more of the social product simply because she
was lucky enough to be born with the potential to develop skills that are currently in high
demand. Yet this does not mean that everyone must get the same shares.
• The fact that citizens have different talents and abilities can be used to make everyone better
off. In a society governed by the difference principle, citizens regard the distribution of natural
endowments as a common asset that can benefit all.
• Those better endowed are welcome to use their gifts to make themselves better off, so long as
their doing so also contributes to the good of those less well endowed. The difference principle
thus expresses a positive ideal, an ideal of deep social unity. In a society that satisfies the
difference principle, citizens know that their economy works to everyone's benefit, and that
those who were lucky enough to be born with greater natural potential are not getting richer at
the expense of those who were less fortunate.
• One might contrast Rawls's positive ideal to Nozick's ideal of libertarian freedom, or to ideas
about economic justice that are dominant within contemporary society. “In justice as fairness,”
Rawls says, “men agree to share one another's fate.”

THE IDEA’S OF JUSTICE- AMARTYA SEN:

A. Introduction:
• Amartya Sen is Thomas W. Lamont University Professor, and Professor of Economics and
Philosophy, at Harvard University and was until 2004 the Master of Trinity College,
Cambridge. He is also Senior Fellow at the Harvard Society of Fellows.
• Earlier on he was Professor of Economics at Jadavpur University Calcutta, the Delhi School of
Economics, and the London School of Economics, and Drummond Professor of Political
Economy at Oxford University.
 • He is a Fellow of Trinity College, Cambridge and was awarded the Nobel Memorial Prize in
Economic Sciences in 1998 and India's Bharat Ratna in 1999 for his work in welfare
economics. In 2017, Sen was awarded the Johan Skytte Prize in Political Science for most
valuable contribution to Political Science.
• There are 2 basic approaches to philosophy of justice:
* transcendental institutionalism: seeking ideal just societies through institutions,
regulations, social contract. E.g. Hobbes, Rawls, Rousseau, Kant. 'perfect justice',
'arrangement focused', with implications for behavioural norms;
* realization-focused comparison: drawing on social choice theory, focusing on existing
societies and removal of injustice. e.g. Adam Smitth, Marquis de Corducot, Bentham,
John Stuart Mill, Mary Wollstonecraft, Kenneth Arrow.
• “The Idea of Justice” by Nobel Laureate, Amartya Sen is a path breaking work on theconcept of
justice. His book is not only an extension but also a critique of John Rawls work – Theory of
Justice. He talks about niti and nyaya, former relates to just rules, whereas, the latter refers to
realization.
• One of Sen's main arguments is that the project of social justice should not be evaluated in
binary terms, as either achieved or not. Rather, he claims that justice should be understood as
existing to a matter of degree, and should correspondingly be evaluated along a continuum
B. Transcendental institutionalism and Original Position:
• Sen’s chief argument against Rawls theory is that the ‘transcendental institutionalism’ is
nothing more than a moral conjecture, a hypothesis, on which he progresses his theory and
which subsequently gets infested with certain limitations.
• It is beleaguered by two central problems: the problem of feasibility and the problem of
redundancy. The first is a result of the practical difficulty, even impossibility, of arriving at a
single set of principles that can help us to select just institutions through a process of impartial
reasoning.
• The first objection which Sen raises is that the ‘original position’ which Rawls is talking about,
creates a hypothetical situation, in practicality it may never be able to incorporate multifaceted,
diverse, variegated, conflicting but very genuine and cogent demands of a large plurality.
• The second problem - the redundancy problem - is that the identification of fully just social
arrangements is neither a necessary nor sufficient guide to reasoned choice of just policies,
strategies or institutions. It is insufficient because, as Sen explains, ‘the characterization of
spotless justice, even if such a characterization were to emerge clearly, would not entail any
delineation whatsoever of how diverse departures from spotlessness would be compared
and ranked’.
C. Sen’s Theory:
• Although Sen is reluctant to endorse a list of capabilities which would serve as a minimum
standard for every society, he does identify five instrumental freedoms which he feels
contribute to the overall freedom people should have in order to live their lives as they wish.
 • These freedoms include ‘political freedoms’, which includes civil and political rights;
‘economic facilities’, which includes opportunities to utilise economic resources for the
intention of production or exchange; ‘social opportunities’, which includes both public services
as well as private facilities; ‘transparency guarantees’, which prevents corruption and financial
irresponsibility; and ‘protective security’, which provides social security.
• The human rights framework can be used to “protect and promote basic capabilities”. In
ensuring the protection and promotion of basic capabilities, Sen argues that a society should
aim at two essential goals.
• The first is that each individual right holder should be given the freedom to achieve certain
conditions. The second is that with every right there should be a correlate duty on the part of
others to assist in realizing that freedom. Hence, for Sen, it is not sufficient to say that because
all citizens have been given the right to private property, for example, that the society is socially
just.
• Another one of Sen's major contributions to a theory of social justice is the relationship makes
between the public and private spheres of society. Previously, social justice scholars ignored the
implications of private inequalities, especially gender inequalities in the establishment of social
justice.
D. Criticism:
• Despite Sen’s invaluable contributions to the theory of social justice, his approach is not
devoid of criticism. This section highlights and discusses some of the dominant critiques of
Sen's approach.
• First, it considers the problem of operationalisation. Second, discusses Sen's reluctance to
endorse a list of essential capabilities. Third, it questions whether freedom is in fact a “general
all-purpose social good”, as Sen implies. Fourth, considers his conception of public discourse
and reasoning in scrutinising capabilities. Fifth, assesses the relationship between group and
individual needs, and finally, it asks whether Sen's approach can in fact be regarded as a theory.
E. Conclusion:
In conclusion, there is no doubt that Sen’s approach has influenced the discourse on social
justice tremendously. Despite the criticisms noted above, and although his perspective is
not a theory per se, the depth and scope of the capability approach is evident in the vast
amount of research Sen’s work has inspired. Sen’s contribution looks at issues of social
justice from the perspective of both the individual and society.

LAW AND ECONOMICS:

A. Economic Analysis of Law:
• The raid increase in scope of economics have led to the emergence and growth of new subfield
of legal theory i., economic analysis of law. This deals with the legal rules whether made by
legislature or judiciary as a system of incentives intended to affect the behavior of the people of
the society.
 • The main factor behind the significant role of economics in legal education is the research if
various new theories and methods of economics. Nowadays economic analysis of law has been
widely established and recognized in American Law School.
• Though it is not so popular in Britain and India, earlier the application of economic revolution
was restricted to certain fields but the new economic analysis of law covers almost all the fields
of law such as law of torts, criminal law, family law, international law, etc.
B. Historical Development of Law and Economic Movement:
1. Ancient Development:
a. Hobbes:
• It is believed that the relation economics to law has been known since Hobbes discussion
of property in 17th century. According to Hobbes, the King should control the strong hand
in interpreting law.
• According to him, the purpose of law is to provide maximum social welfare to the
common people.
b. David Hume:
• In the 18th century, David Hume in the discussion of property said that the property law
was the result of contract that develops over time within a society. His writing was
inspired from his contemporary Adam Smith. Many jurists believed that Humes writing
became an inspiration for Adam Smith who then discussed the effect of economics in
merchantile law.
c. Bentham:
• Jeremy Bentham through his principle of utility explains the important economic points
in relation to economics of crime and punishment. He said that a person commits a crime
only if pleasure he anticipates from it includes the anticipated pain.
• To check the crime, the punishment must impose sufficient pain that in any case, it would
exceed the pleasure that he anticipated from the crime. Fine according to Bentham are
more efficient mode of punishment as compared to the imprisonment because they confer
a benefit. He also said that the less likely criminal is to be caught, the heavier the
punishment should be.
2. Modern Development:
a. Gary Becker:
• Gary Becker, the modern economist applies his theory to widen the scope of economic
analysis. Becker aims to change the goal of criminal punishments. According to him, the
best punishment is to combine a very high fine with a low probability of actually
detecting the crime as the actual detection of crime would require additional police ad
that be costly affair.
• He is the first economist who works on the employee compensation and pension laws
which increased the scope of economic analysis of law to non market activities also.
b. Ronald Coase:
 • In his article ‘social cost’ in the year 1961, he built his economic theory of law by
propounding a new principle known as coase theorem. According to this, if transaction
cost the are low then the individuals will bargain more.
• The second proposition of this theorem is that where the market transaction cost remain
high despite the law best efforts to control it, the law should stimulate the markets
allocation of resources by assigning property rights to the highest valued user.
c. Gudo Calabrasi:
• In his work, ‘the cost of accidents’ proved that there should be rethinking in the field of
law of trots. His ultimate aim was to replace the fault system of the negligence theory or
vicarious liability of law of torts with the one that is strict liability for any injury caused.
d. Posner:
• Posner in his work titled ‘economic analysis of law’ supported the law as it is i.e., the
positive law. For him was the proper goal of any law is to promote wealth maximization
which can be best done by promoting the mechanism of free market.
• He alongwith Coase and Calabrasi is known as the founder of American Law and
Economics Movement which can be treated as modern era of economic analysis of law.
C. Schools of Law and Economics:
1. Positive School/Chicago School:
• The approach of positive school is merely to study or explain the contentions or institutions
that exists. It explains the law as it is thereby restricting itself to the descriptive study of the
incentives produced by the legal system.
• This approach was first initiated by Ronald Coase and later systemized by Posner. The
efficiency is the pre-dominant factor in shaping the endless procedure of common law. The
common law is the outcome of an effort to induce efficient results.
• The common law rules at the most to allocate resources either by Pareto or Kaldor Hicks
method. Further Posner suggested that positive economic analysis is immune to abuse and
misuse as it is merely applied to explain incentives which guide individuals and the legal
rules which will govern the institution.
2. Normative School/Yale School:
• This approach is also known as Yale school of law and economics and seeks to describe how
the law and legal system should be and have legal conventions and institutions ought to be
designed.
• The approach of the school is liberal and the scholars of this school suggested that efficiency
can never be the ultimate end of the legal system. They have shown more concern for the
public justice and fairness in distribution through the legal system.
• The overall philosophy of this school is for the common people. Therefore it is also called
welfare economics. Calabrasi and Amartya Sen have eventually adopted this approach.

3. Functional/Virginia School:
 • In the decade of 1990’s, due to expansion of domain of law and economics, new approach
was developed in this field which was known functional approach. This approach criticized
both positive and normative alternatives.
• For functionalist public choice theory provides strong methodological foundation of law and
economics. Being human centered, the economic analysis of law can achieve its goals. It
clearly stated that whatever social reality we seek to explain it ought to be understood as a
result of choices and actions of individual human being. This approach further suggests that
courts and policy maker should undertake a functional analysis before making any legal rule.
D. Fundamental Criteria of Preference Aggregation:
1. Pareto Criteria/Ordinal Preference:
• This preference attributed to Pareto, an Italian economist, limits the enquiry to ordinal
preferences of the relevant individuals. For Pareto, an optimal application is one that
maximized the well being of one individuals relative to the well being of the other
individuals beings constant.
• If the social problem is that of distributing a benefit between two parties, according to
Pareto, the optimal distribution is not possible but alternative redistribution would make one
party better of without harming the other party.
2. Utilitarian Test:
• In 18th century, Bentham presented his theory by explaining the principles of utility. For
Bentham, the mankind is governed by two masters i.e., pain and pleasure which provides the
fundamental motivation of human action.
• Bentham said that not all individuals divide pleasure from the same object as they all are not
same. So the policy maker should set the rules that give the greatest happiness to greater
number.
• Later in 1939, two economists, Nicholas Kaldor and John Hicks in different way formulated
the pattern of social welfare that accounted for cardinal preferences of individuals. They
through their test of potential compensation gave an idea that State A is preferred to State B
if those who gain adequate to compensate those who lose are moved from B to A.
3. Non-Linear Social Preference:
• This preference was given by John Nash and John Rawals, This criteria ingest that wellbeing
of society is judged according to the wellbeing of the weakest members.
4. Ex Ante Welfare Criteria:
• This welfare approach have not enjoyed great popularity in law and economics movement,
only the functional school focuses on this criteria. As per this, the legal rules should be
designed to maximize the expected welfare not the actual welfare.
E. Conclusion:
• The various aspects of economic analysis of law and the merits of this movement are enjoyed
by the USA. Today the economic analysis of law is descriptive and normative in approach. In
 India, the importance of economics in the field of law is already evident as economics is one of
the main subjects being taught in 5 years law.
• Similarly time has come to introduce it in 3years law and at post graduation level. The study of
economic analysis of law will provide opportunity to both economics and legal fraternity to
understand, analyze and apply principles of economics in the field of law.

MODULE 2

STATE:
• Jurisprudence concentrates mainly on the study of law of the civilized societies or the law within
a State. In other words, the jurisprudence is concerned with that law which is enforced within a
community.
• In modern times, jurisprudence includes also the study of law which is applied between the
States. The study of this branch of law also requires some idea or study of the State. Thus for a
proper understanding of law, some knowledge or idea of the authority which makes and enforces
law is necessary.
• State has been defined by a number of jurists. Holland defines state as “an association of human
beings generally occupying a territory for the attainment of internal order and external security.”
Salmond says that “a State or a political society is an association of human beings established for
the attainment of certain ends by certain means.”
• R.G Gettell’s view is that “State is a community of persons permanently occupying a definite
territory, legally independent of external control and possessing an organized government which
creates and administers law over all persons and groups within its jurisdiction. Abstractly
considered, the State is judicial entity or person, concretely considered, it is the community the
territory which it occupies and the governmental organization through which its wills and acts.”
• In brief, it may be said that the State is community of considerable number of persons, occupying
a territory permanently, independent of external control and have an organized government to
which habitual obedience is rendered by the inhabitants within its jurisdiction.
1. Elements of the State:

The State has mainly the following four elements:
A. Population:
 Population is said to be the sine qua non o the State. There is no foxed number of
persons to constitute a State but it must be a considerable number.
B. Territory:
 Territory is the second element of the State. Nomadic people having no fixed
territory cannot constitute a State. A State without a fixed territory is possible, but
practically the existence of such a State is rare and generally by State we mean a
territorial State. There is no fixed area to constitute a State and the area may be small
or big.
 A State may have an unconnected territory such as Pakistan before the year 1971
consisted of two separate territories i.e., east Pakistan which is now known as
Bangladesh and west Pakistan.
 C. Government:
 In the State there is a human machinery as the supreme authority to make and
enforce the laws. This authority is called Government.
 It is organised on certain principles recognized by the community within the territory
of the State though the government is a single unit or entity for the purpose of the
convenience and efficiency, it works by distributing its functions and powers to its
organs.
D. Sovereignty:
 The fourth element of the State is sovereignty. The term sovereignty means supreme
power or authority. A politically organised community within a territory to be called
a State must have the sovereignty. It means that it must be free from external control
and the people within it must render obedience to it.
2. Theories of the Origin of the State:

The various theories of the origin of state have been given by the jurists. Some of the
important theories are:
A. The Force Theory:
 This theory says that the state came into being on account of the use of force. The
strong subjected the weak to their control and this relationship evolved in the form
of the state.
B. The Divine Theory:
 According to this theory, the State is created is created by God. The king was given
the power to control and govern the people by the Divine Authority. This theory
was very popular in ancient times.
 Brahman created the kind to protect the people of all Varnas and Ashramas devoted
to their duties. This theory was used to serve divergent ends. It was used to support
the people with the argument that the King has a divine mission, therefore he must
do justice and is bound to follow the law given in the Scriptures. It was used by
despots to support their absolute authority and tyranny. They argued that the kind
has the authority to do anything he likes and people cannot interfere with it because
the power to the king was given by God.
C. The Social Contract Theory:
 This theory was propounded in Europe. It has been supported by eminent jurists
and philosophers such as Grotius, Hobbes, Locke, Rosseau and Kant. According to
this theory, the State is the result of an agreement between the people to unite
together at the first instance and then an agreement between the people and the
ruler by which the authority and power was given to the ruler.
 This theory is responsible for great political upheavals in Europe. The French
Revolution was inspired by this theory. In modern times, the social contract is
considered to be only a myth and not a fact.
D. The Historical or Evolutionary Theory:
 According to this theory, the state is the result of the course of evolution and the
society passed through various stages and various factors worked in shaping and
developing it.
 The State came into being through a gradual process of development and this theory
of origin of state is most convincing and logical. It does not mean that other theories
 are of no importance and they should be rejected outright. Some of them contain
some truth and to some extent they contribute to the development of the State.
3. Functions of the State:

The main functions of the State may be divided into two classes:
A. Primary or Constituent Functions:
 The primary or constituent functions are those functions which are necessary for the
very existence of the State. The functions are those which includes the defence
against the external aggression and the administration of justice.
 The function of the State distinguishes it from other organizations and associations in
the society.
B. Secondary or Ministrant Functions:
 There are two main functions in this class- legislation and taxation. This class
includes those functions also which are necessary in the welfare of the citizens. In
modern times, the concept of the State has undergone a great change.
 Every state is becoming a welfare state. The individualistic view of the functions of
the State and the laiseez faire theory have been rejected and are considered to be
outdated views.
 The secondary functions of the state have expanded to a very large extent and the
field of state activity is widening every day. In the Indian Constitution, a number of
functions which fall under secondary function have been prescribed under the
heading ‘Directive Principles of State Policy’ which the State is to fulfill.
4. Law and State:

In earlier times, the existence of law without state is not an impossibility, but in modern
times, we think of law generally in a state. A number of definitions of law have been given
only in terms of the state.

The State manifests or expresses it through law and the law has its importance or sanctity
because it has the sanction of the State. Therefore the relation between the state and law is
very close and intimate. Three main theories have been given about this relationship as
follows:
A. State is Superior to and is the Creator of Law; Absolutist Theory:
 Aristotle wrote that the state is natural and necessary. In medieval times, we find in
Hobbes a great supporter of this theory. Hobbes’ theory stands for absolutism and
according to it, all law making power is with the ruler. He said that none can make
laws but the commonwealth. By commonwealth, he means the State.
 In modern times, we find in Austin, a elaborator of this theory who defines law as
the command of the sovereign. According to him, only the sovereign has the power
to make law and he is not bound by it. It was on this basis that he said the subject
cannot have any rights against the sovereign because the relationship of right and
duty between two parties requires some authority superior to both to enforce it and
there is no superior authority than sovereign in the state.
 Salmond said that it is in and through the State alone that law exists. The Historical
school of Germany and later on the Sociological approaches contended that the law
is anterior to state and it is not always made by the state.
 According to Nazis and Fascists, who were in power in Germany and Italy
respectively before the Second World War, law was the will of the leader of the
nation. Any attempt to bind the state was regarded by them as an act of treason.
  In the collectivist state, law is considered to be simply an instrument for the
prosecution and the fulfillment of the state policy and is not a check upon it. In
democratic countries, certain rights have been given to the citizens and in some
countries like India, they have been guaranteed in the Constitution. They are
considered binding on the State.
 In modern times, the whole life of the community has come to be regulated by the
rule made by the State. Therefore the prevalent view is that State makes law and is
superior to it.
B. Law is Anterior to State:
 Another view about the relation of law and state is that law is more fundamental than
the state and the state is bound by it. The jurists like Bracton, Ihering, Krabbe,
Duguit, Laski and many others have supported this view. Though these jurists differ
about the grounds, the conclusions reached by them are mostly similar that the law is
more fundamental than the State.
 The earlier view was that the natural law is binding on the State. When Bracton said
that the King is bound by law, he meant by law the natural law. Ihering’s view is that
the highest stage of development of law is that when it binds the ruler and the ruled
both.
 Jellinek says that although the state creates law, it is bound by law. The state
voluntarily submits itself to law. Jellinek describes it as theory of autolimitation.
According to Krabbe, the source of law is the subjective sense of the right in the
community. The sovereign is not the source of law. It is the community which
expresses itself through the organs of the government.
 Duguit’s view is that the social solidarity is the end of law and the State. The state is
bound by it and any law made in violation of it is invalid. In modern times, the
writers on English constitutional law have said that the golden principle of the
English constitution is the rule of law.
 It is submitted that most of views are not based on the actual facts and they are more
concerned with what law ought to be than what it is. The rule of law is not a result of
any logical deduction but itself is the result of political struggles of the past.
 In many constitutions of the modern times, certain rights to the individuals have been
guaranteed and the State is considered to be bound by it. The power ultimately lies
with the State and if it so wants the constitution can be amended. The state cannot be
said to be absolutely bound by it.
 In modern times, the perpetual danger of war, complex economic activities and the
changes in political ideologies have tended to make the state very powerful and law
is considered to be an instrument of development of the society on the lines which
the state deems fit. Therefore the theory that law is anterior to state and is binding on
it does not stand good.
C. Law and State are Same:
 This theory has been propounded by H.Kelson, one of the greatest jurist of the
present century. His view is that the State and law are the same thing. Two terms are
used for it because we look at it from different angles.
 When we think of rules, we call it law and when we think in terms of institution
created by those rules, we call it state. Thus there is no difference between law and
 the state. The real implication of the theory is that the law is more fundamental than
the state.
 Kelson’s theory has been criticized on the number of grounds but the theory is very
wide and it has the scope and the capacity to make adjustments. According to this
theory, there can be International legal order without being a superior state.
5. Conclusion:

All these theories about the relationship of law and state have their merits and the
difference which appears between them is not so big that they cannot be adjusted together.
The state bound by some fundamental law is not an impossibility. It is possible that in
future law may be considered more fundamental at the state.

In the Soviet Union, the first country to form a government based on Marxian ideology, the
state has become mightier than in any other country. In modern times, some great thinkers
have started a new move. They are preaching for making a world federation and the states
in that federation would remain autonomous units.

It is submitted that this idea has come as a reaction against the present acute international
conflicts. The possibility of a world federation is very remote, atleast, in the present state of
affairs. However things happen and developments take place not on a priori theories and
logical propositions but on events which are sometimes unforeseen and unpredictable.
Therefore what the future of the state would be cannot be predicted with great certainty.

SOVEREIGNTY:
1. Concept of Sovereignty in Ancient Times:
• In ancient times, there was no concept of sovereignty as it is understood in modern times.
However in ancient books, we find mention of an absolute authority within a state or more
correctly speaking within a territory.

A. India:

In India, in olden times, the king was considered as the representative of God and he
was simply to execute the law given by God. The idea of the secular state free from
religious dominance had not taken birth therefore the kings of those days cannot be
called sovereign in the modern sense of the world.
B. Greece:

In ancient Greece, so far as can be gathered from the poems of Homer and other
contemporary works, the king was by his birth and valor. He was assisted by his
nobles but he was not bound by their views and opinions and he could work in
accordance with the opinion of the people in the General Assembly.

Later on, the General Assembly became very powerful and thus in Greek city
states, the sovereign power vested in the people. They assembles at a fixed place to
 pass laws, to try cases, to declare war and peace and to give their verdict on many
other matters connected with the administration of justice.
C. Rome:

In Rome, in ancient times, the king assisted by an advisory body decided the internal
matters as well as the external policy of war and peace, but they acted in accordance
with the opinion of the ‘comitia curatia.’

The ‘comitia curatia’ was an assembly of all the able bodied persons of the state. This
can be said to be a form of popular sovereignty. During the Republican period the
‘comitia curatia’ became a limited body and in the Imperial Period it practically
became ineffective and the emperor usurped all the powers.

The Roman emperors commanded obedience on a large number of the nations of
Europe. They developed a theory of universal power. The power of the emperor meant
universal subjection.
D. Middle Ages:

In the middle ages the Church became very powerful. The Pope of Rome became
the central authority. He had his jurisdiction not only on religious matters but on
secular matters also.

In many cases Popes power extended to the recognition of kings and emperors but
about the same time a system took birth which was gradually transformed and took
the shape of sovereignty in the modern sense of the word. This system was the
feudal system. The idea of territorial sovereignty grew out of the feudal system.
E. Feudal System:

In this system, the landed estate was the unit and base of the political organization of
the society. The feudal lords had certain powers over their tenants and they, in their
turn, were subject to the power of the king. Thus a hierarchy of power was established
on the basis of land.

The power of the one in this hierarchy was restricted by the other above it and the
relationship was regulated by certain rules. In this way, the society was organised in a
legal order.

Gradually the conditions changed and the new forces which came into existence due to
these changes tended towards centralization. The local authorities or the feudals were
swallowed up by the higher authority i.e., the king. Now the king became the absolute
owner of the territory under him and thus the territorial sovereignty came into
existence.
F. Reformation and Renaissance:

The other factors which contributes to the development of the idea of sovereignty were
Reformation and Renaissance. The Reformation caused the overthrowing of the
universal authority of the Pope.

In many countries the Church became free from the direct control of the Pope and it
went into the hands of the secular power- the king. Thus the king became free from all
external control. The Renaissance brought the idea of the nation state.

The territorial state emerged which was free from any external control and had
absolute authority over its having this power are called Sovereign States. The
relationship between the two sovereign states was that of equal and the rules which
determined these relations came to be known as International law.
2. Development of the Concept of Sovereignty:
A. Machiavelli:
• Machiavelli said that politics is a secular science. The State is absolute and is an end in
itself. There are no restrains on its powers- neither of the Church nor of the natural law.
The power of the ruler over his subjects us absolute and there are no legal limitations upon
it except the matters of prudence and policy.
B. Bodin:
• The theory of sovereignty was first given by the French jurist Bodin. He for the first time
used the term sovereign and introduced it in the political science. According to him, the
ruler is the source of all laws. According to him, the ruler has the absolute power of law
making but the law of nature makes him to respect proprietary rights and to keep faith with
another ruler.
C. Hobes and Bentham:
• Hobes said that the sovereign was completely absolute and was not bound by anything. The
sovereign’s power extended over all the matters within the state including the religion.
Bentham also supported the same view but his support of the absolute power of the
sovereign was on utilitarian grounds. The sovereign has the authority for the purpose of
framing laws which should conform to the theory of utility.
D. Austin:
• The theory of sovereignty was put in a very elaborate and systematic form by Austin. He
defined law as the command of the sovereign. This definition involved a discussion of the
sovereign and his power that is sovereignty.
• Austin defined sovereign as ‘if a determinate human superior, not in the habit of obedience
of a like superior, receives habitual obedience from the bulk of a given society, that
determinate superior is sovereign in that society and the society is a political and
independent.’
• According to Austin, sovereign has two marks i.e., it is not in the habit of obedience to any
political superior and it must command the habitual obedience from the bulk of its subject.
The sovereignty includes both the marks and in the want of any one of them, there can be
no sovereignty.
• The sovereignty as defined in the absolutist theories has three characteristics:
a. Sovereignty is Essential in the State:

In every political society there is always a supreme power whose will ultimately
prevails. This supreme power vests in a single individual or a group of individuals.
Some argue that in ancient times, there were communities in which there was no
such supreme power.

The theory that sovereignty is essential is not inspired by this hypothesis and in the
present concept of the state sovereignty is an essential element of it. It is not
necessary that sovereignty should be always within the state, it may be partly or
wholly external to the state and it is accepted by all.
b. Sovereignty is Indivisible:

In every state the sovereignty vests in one person or in a defined group of persons,
that person or the group has the supreme power in the state. This power is indivisible
even in cases where it vests in a group.

Salmond’s view is that the Austin’s theory of indivisibility is not applicable even to
the British system because the legislature power vests in the Parliament, the
executive power in the Crown, and the judicial power in the House of Lords.

In Indi, the power to amend the Constitution is given to the Union Parliament but
some of the provisions of the Constitution cannot be amended without the
concurrence of the States.

Thus according to Austin’s theory, the sovereignty would be considered vesting in
the Union and the State Legislatures and it is now clear that the theory of the
indivisibility is not applicable to federal states, it is applicable only to the states
where there is unitary system of Government to solve the problem.
c. Sovereignty is Unlimited and Illimitable:

According to Austin, the third characteristic of the sovereignty is that it is unlimited
and it is illimitable. To a great extent this view is correct but it does not mean that
the sovereign is completely absolute and he can do anything he likes.

The supporters of this theory accept that there are limitations on the power but they
say that they are only de facto and there can be no de facto limitations on the power
and it is submitted that this contention is wrong and there are de jure limitations also.

The characteristic that sovereignty is unlimited and illimitable does not prove them
in the case of these states. It is true only in case of Britain where the Parliament is
supreme and sovereign. Thus the third characteristic has also no universal
application

It is possible that in future the theory might not remain applicable to any state at all
then it will have only a historical importance and nothing more than that.
3. Other Theories of Sovereignty:
A. Dicey’s Theory:
• In the end of the 19th century many writers gave the theory of popular sovereignty. Dicey
was one of these writers. He said that there are two kinds of sovereigns- the political and
the legal.
• According to Dicey, legislature or the Parliament is the legal sovereign because it has the
supreme power of law-making. The electorate is the political sovereign. The legal
sovereign acts in accordance with the wishes of the political sovereign.
• For a stable government, it is necessary that there must be harmony in the views of the
legal and the political sovereign. It is submitted that this theory is neither very logical nor
convincing.
B. Jethro Brown’s Theory:
• The theory of Jethro Brown about the sovereignty has become very popular in modern
times. His approach is sociological and he takes into account the change concept of the
state while propounding his theory.
• According to him, state, as a corporation is sovereign and acts through the organs and
agents for the achievement of its corporate purpose. The sovereign is not a person or a
group of persons distinct and separate from community.
• The community is as such the sovereign and it expresses its general will through the organs
of the government and this theory solves a number of problems which the earlier theories
failed to solve and as such it has a universal application.
 C. Kelsen’s Theory:
• Kelsen in his ‘pure theory of law’ makes some observations on the sovereign and says that
there can be no concept of sovereignty as distinct and separate from and above the law. The
state is simply legal order. The only meaning that can be given to the state sovereignty is
that the legal order is a unity distinct from and independent of the other similar legal orders.
D. Duguit’s Theory:
• Duguit rejects the idea of state sovereignty and says that the state is in no way different
from other human organizations. The social solidarity is the end of all human institutions
including the state. The state has no absolute and unlimited powers and it is bound by the
rule of social solidarity.
• Thus according to Duguit, state sovereignty is a meaningless term and the state has no
supreme and superior powers. It is submitted that Duguit’s theory is more concerned with
what ought to be than what it is and his theory does not find any support from the actual
state of things.
E. Marxist View:
• The Marxists say that the state simply reflects the dominance of one class over the other
class of the society and the power of the state are exercised to protect the interest of the
class which has the instruments of production in its hand. Thus the state power, on the
sovereignty is only for the protection of that class.
• In classless society, the state shall wither away and consequently there shall be no question
of the state sovereignty. It is submitted that in the countries where the governments have
been formed by the Marxist ideology, the state instead of withering away has become very
powerful and sovereignty has been demonstrated in a naked from there this theory is not
supported by the actual state of affairs.
4. Conclusion:
• In modern times, though much has been said against sovereignty but in actual practice state
has grown very strong and supreme. So state is ready to recognize any kind of external control
and a number of times arbitrary acts have been done in a complete disregard of the world
opinion.
• The state has asserted its sovereignty in present times as it never had done before It is
submitted that this is due to many reasons. The perpetual danger of war, the atmosphere of
cold war and economic and political necessities have caused the state to assume centralized
and uncontrolled power.
• The sovereignty has to suffer from both the sides i.e., internally and externally. International
law has become indispensable without becoming effective and as the recent instance have
shown, in the near future it will grow effective also.
• Sovereignty s essential in the state and the present concept of sovereignty is that it is not
absolute and there are certain de facto and de jure limitations upon it.

ADMINISTRATION OF JUSTICE:
1. Historical Development:
• Administration of justice is one of the essential functions of the State. The law and order
within the states us maintained through administration of justice and the citizens are made to
realize the existence and importance of the State.
 • The administration of justice in reaching its present form passed through various stages. In the
primitive society when a wrong was done against an individual he had to resort to self-help ad
it was based on private vengeance.
• In a later stage when individuals organised themselves in the form of society, certain rights
were recognized b the society as belonging to every individual and if a wrong was done
against an individual, it was abhorred by society and it made efforts to provide remedy to the
individual wronged.
• In some ancient societies, the natural elements were considered as gods and as such were
approached for justice. Gradually the society evolved and the state came into being. For the
protection of the citizens and for its own protection it became necessary for the state to
maintain law and order.
• The state defines rights and duties of its citizens. It protects the rights and enforces the duties.
If any violation of the rights of one individual is made by another, the latter is to redress it or
he is punished. In modern rimes, the judicial order is a very important organ of the
government and it is called judiciary. It administers justice which is considered to be an
essential function of the State.
2. Definition of Administration of Justice:
• The function of the judiciary is to protect and enforce the rights of the individuals and to
punish wrong-doers. This function is called administration of justice. The term ‘justice’ here
does nor man justice in the abstract sense as a moral virtue or ideal but it means justice
according to law.
• Thus to adjudicate the rights and duties if the individuals in the basis of the rule laid down by
the state is administration of justice. Salmond defines administration of justice as the
maintenance of rights within a political community by means of the physical force of the state.
• In the civilized societies the obedience of law becomes a matter of habit and in very rare cases
the force of the states is used to secure it. The administration of justice implies three things
i.e., the State, the Law and securing obedience to law by means of the physical force of the
state.
3. Advantages of Administration of Justice:
• The administration of justice is one of the essential functions of the State. Administration of
justice means justice according to law. It brings uniformity in the administration of justice.
• As the law is known to the citizens, it enables them to regulate their conduct in accordance
with it. As the rules are fixed, it helps judges in applying the law uniformly. In administering
justice according to law there are little chances of discrimination.
• As justice is done according to the fixed principles of law, it ensures impartiality and equality.
The rules of law represents the collective wisdom of the community therefore in following
them there are little chances of going wrong. The administration of justice brings uniformity
and consistency I the law and it causes a systematic development of law.
4. Disadvantages of Administration of Justice:
• Administration of justice makes law rigid. The same rules are applied to all the cases of
similar nature and it sometimes causes hardship and injustice. Law tends to become
conservative. It does not keep pace with the changed conditions and so it is not in accordance
with the new ideas and principles of justice.
• Law becomes greatly formal and greater importance is attached to the form than to the
substance. It brings many evils and causes injustice. The law becomes very complex. It n
 longer remains easy to understand it. Thus law loses certainty which is very essential for a
good law.
5. Division of Administration of Justice:
• The administration f justice is divided into two parts i.e., civil and criminal. The wrongs which
are subject-matter of civil proceedings are called as civil wrongs whereas the wrongs which
are the subject-matter of criminal proceedings are called criminal wrongs.
• The position of the person who commits or threatens to commit a wrong and thus exposes
himself to such proceedings is called liability. Generally civil and criminal justice are
administered by two different sets of courts.
• Civil justice is administered by civil courts whereas the criminal justice is administered by
criminal courts. There are two different forms or procedures for the administration of these
two classes of justice.
• The result of both the proceedings are different. A successful civil proceeding results in a
judgment for damages or recovery of debts or any other alike relief. A successful criminal
proceedings results in the punishment of the wrongdoer.

6. Theory of Civil Justice:

• The rights enforced by the civil proceeding are of two kinds i.e., primary and sanctioning or
remedial rights. The primary rights are those rights which exist as such and they do not have
their source in some wrong. Sanctioning or remedial rights are those rights which come into
being after the violation of a primary right.
• The administration of civil justice is of two kinds. This division is based on the nature of the
rights which is to be enforced by the civil proceedings:
A. Specific Enforcement:

The first aim of law is to enforce the primary rights. Where the primary rights
themselves can be enforced, there is no question of any sanctioning right for that
purpose.

The cases of enforcement of a primary right are where a defendant is compelled
to perform a contract or to pay debt. The enforcement of the primary right is
called specific enforcement.
B. Sanctional Enforcement:

There are cases where the primary right as such cannot be enforced and in such
cases of sanctioning rights are enforced. Salmond calls the enforcement of the
sanctioning rights as sanctional enforcement.

Generally these rights are enforced in two kinds of cases i.e., cases where it is not
possible to enforce the primary right and cases where the sanctional enforcement
is applied are those in which though the law can enforce the primary right it does
not enforce it as a matter of policy and awards damages only.
• In case of specific enforcement there is procedure to establish or bring the state of things as
required by the right and does not go to enforce another state of things as a substitute for or
equivalent to the original state of things.
• In enforcing sanctioning rights the aim of the law is either to impose pecuniary penalty on the
defendant for the wrong that he has committed or to award compensation to the plaintiff for
the damages suffered by him.
 • The rights of the plaintiff is either to receive money from defendant which amount to penalty
on part of defendant or to receive damages or pecuniary compensation. It is generally of two
types i.e., restitution and penal redress.
• If the defendant is ordered to return back or to restore any benefit which he has taken from the
plaintiff or at the cost of the plaintiff, it is restitution. If the law compels the defendant to pay
to the plaintiff the loss suffered by him by the wrongful act of the defendant without any
consideration whether the defendant gained anything out of it or not it is penal redress.
7. Theories of Criminal Justice:
A. Purpose of Criminal Justice:

The purpose of the criminal justice is to punish the wrongdoer. He is punished by the
State.
B. Theories of Punishment:

One class of the theories say that the end of the criminal justice is to protect and add to
the welfare of the state and the society. The offender must be made to suffer for the
wrong he has done.

The different theories of punishment are as follows:
a. Preventive Theory:
* This theory says that the punishment is for the purpose of disabling or preventing the
offender from committing the offence again. In olden days, the offender was
prevented from committing the offence again by disabling him permanently.
* The death punishment is the most effective mode of preventing the offences by an
offender. It is awarded only in those offences which are of a very grave nature such
as murder and treason.
* In modern times, certain other preventive measures are adopted in various new kinds
of offences. Apart from applying punishment as a measure of preventing the
offender, there are other measures in criminal proceedings to prevent offences. These
measures are purely preventive and are applied against persons who threaten to
commit offences or are otherwise dangerous to the society.
b. Deterrent Theory:
* According to some jurists, the deterrent punishment is the important purpose of the
criminal justice. Salmond says that punishment is before all things deterrent and the
chief end or law of crime is to make the evil-doer an example and a warning to all
that are like minded with him.
* This theory says that by punishment the wrongdoer is made an example and it
creates an awe not only in the mind of the offender alone, but in the minds of others
also and deters them from committing crimes.
c. Reformative Theory:
* This theory is of recent origin. It makes a study of the psychology of the criminal
and takes punishment as a means to a social end. It says that the offences are
committed under the influence of motive upon the character.
* This theory puts more emphasis upon the personality of the offender and considers
him to be a patient who should be given a proper treatment. It takes punishment not
as an end in itself but as a means to an end. In Rakesh v. B.L Vig, Supdt. Central Jail
Tihar, AIR 1981 SC 1767, it has been held that the penological purpose of sentence
is importantly reformatory.
* Reformative Theory and Juvenile Offenders:
  Reformative theory has been growingly adopted in case of juvenile offenders. In
India, the oldest legislation of the subject is Reformatory School Act, 1890.
Reformatory schools were considered as schools for Industrial Training of
Youthful Offenders where youthful offenders were lodged, clothed, fed as well as
taught with a view to their rehabilitation.
 According to Section 4(a), youthful offender means any boy who has been
convicted to any offence punishable with transportation or imprisonment and who
at the time of such conviction was under the age of fifteen years. It places the
entire responsibility of dealing with delinquent children on the local authority.
 According to Section 6, the Reformatory Schools must provide sufficient means
separating the inmates at night, proper sanitation arrangement, water supply,
food, clothing and bedding for the youthful offenders detained therein, the means
of giving such youthful offenders industrial training and infirmary or proper place
for the reception of such youthful offenders when sick.
 Section 8 provides that whenever a youthful offender is sentenced to
transportation or imprisonment and is in judgment of the Court by which he was
sentenced, a proper person to be an inmate of a Reformatory School the court
may subject to any rules made by the State Government direct that instead of
undergoing his sentences, he shall be sent to a school and be there detained for a
period which shall not be less than three years or more than seven years.
 It should be noted that children often become delinquent by force of
circumstances and not by choice. By improving the unfavorable environments
and giving suitable training, it is possible to reform the anti-social attitude and to
mould him into a responsible citizen.
 In Haranm v. State of UP, AIR 1976SC2071, it was held that this being the
current sociological and juristic thinking on the subject, it would be legitimate for
the Court to refuse to impose death sentence on an accused convicted of murder,
if it finds that at the time of commission of the offence, he was under 18 years of
age.
d. Retributive Theory:
* The origin of this theory lies in the primitive notion of vengeance against the
wrongdoer. When the society progressed crimes were considered as a wrong against
the whole of the society and not only against a particular individual.
* The state was substituted at the place of individual and as such the state initiated the
proceedings against the criminal and is a party in such proceedings. Now the
punishment gratifies the instinct of revenge not only of a single individual but of the
whole of the society as if a criminal wrong is committed against an individual then
extension of social sympathy in his favor makes it a wrong against the whole of the
society.
* This theory considers punishment as an end in itself. If an evil has been done, it can
be undone or negative only by doing an evil against the wrongdoer. This theory
proceeds on ethical grounds and therefore it concentrates upon the moral culpability
of the wrongdoer.
* In modern times, it cannot be said that the punishment is based only on vengeance
and it is more or less considered to be a measure to maintain order and peace in the
society. Though retribution has still an important place in the popular thought, there
 is a growing tendency to regard punishment as a means to an end and not an end in
itself.
e. Expiatory Theory:
* This theory is linked with the retributive theory and is sometimes considered to be
part of it. It says that by undergoing punishment, the crime is expiated. This has been
the view of ancient Hindu law givers.
* Hegel supported this theory and said that punishment makes the criminal to expiate
for the wrong done. This theory is based on morals and as a purpose of punishment it
has little value.
f. Criticism:
* The preventive theory says that the punishment s for the purpose of preventing the
offender from committing the offence again. It is not very logical and convincing
and it will not work very successfully in checking crimes.
* If a person has committed a crime under some extraordinary psychological stress or
under some special circumstances, there is little possibility of his repeating it again
To punish such a man so that he might not commit the crime again is meaningless.
* Generally punishment hardens his nature and he might do the crime again. The
keeping if first or juvenile offenders with the habitual can have adverse effect on
them. Therefore the punishment does not serve the purpose of preventing offences as
the theory says and rather it develops a tendency in the offender to commit the crime
again.
* Deterrent theory contains some truth. To deter the criminal as well as other is the
purpose of punishment and has been the view of the jurist since very early times but
the punishment cannot have its deterring effect in all the cases. The punishment has
little deterrent effect upon the offender who has been offered it.
* The usefulness of the reformative theory is a debatable point. As a matte fact, there
are some persons who are incurably bad and they are in a habit of committing crime
and they are beyond the reach of reformative influence.
* There are cases where crimes are committed casually and the reformative
punishment is useless in such cases. Salmond says that the application of the purely
reformative theory therefore would lead to astonishing and inadmissible results.
* Retributive theory is based on the idea of revenge against the wrongdoer. The main
defect of this theory is that it ignores a very important purpose of the punishment as
well as of law. It does not regard punishment as a measure of social security and
welfare but considers it as an end in itself.
* Salmond says that it is scarcely needful to observe that from the utilitarian point of
view, hitherto taken up by the society, such a conception of retributive punishment is
totally inadmissible.
* Expiatory theory of punishment is closely related to the retributive theory. The
shortcoming of this theory is that it is based on moral principles which fall outside
the domain of law.
8. Capital Punishment:
• There has been a worldwide growing humanistic approach to the criminals and punishment.
Efforts have been made and are being made to make punishment liberal and reform the
prisons. For quite sometime, there has been a move to abolish death sentence.
 • Before the amendment of Section 367(5) of the CrPC,1898 in 1955, the normal rule was to
impose sentence of death on a person convicted for capital offence and if a lesser sentence was
to be imposed, the Court was required to record the reasons in writing. In the amendment to
the Section 367(5) omitted the said provision and the Court became free to award either death
sentence or life imprisonment.
• In 1962, the resolution to abolish the capital punishment was referred to the Law Commission
of India which examined the matter from various angles and took extensive evidence. The
Law Commission recommended that the issue of abolition or retention has to be decided on a
balancing of the various arguments for and against retention.
• The Commission does not treat lightly the arguments based on the irrevocability of the
sentence of death, the need for a modern approach the severity of capital punishment and the
strong feeling shown by certain sections of public opinion in stressing deeper questions of
human values.
• In the 35th Report of the Indian Law Commission, it was reported that with regard to the
conditions in India, to the variety of upbringing of the inhabitants, the disparity in the level of
morality and education in the country, to the vastness of its area, to the diversity of its
population and to the paramount need for maintaining law and order in the country at the
present juncture, India cannot risk the experiment of the abolition of capital punishment.
• In the 42nd Report of the Indian Law Commission, it was recommended that children below 18
years of age at the time of the commission of the offence should not be sentenced to death. A
provision to that effect can be conveniently inserted in the Section 55B of the Indian Penal
Code.
• Section 354(3) of CrPC states that when the conviction is for an offence punishable with death
or in alternative with imprisonment for life or imprisonment for a term of years, the judgment
shall state the reasons for the sentence awarded and in case of sentence of death, the special
reasons for it.
• In E.Anamma v. State of Andhra Pradesh, AIR 1974 SC 799, it was held that the disturbed
conscience of the state on the vexed question of legal threat to life by way of death sentence
has set to express itself legislatively and the screen of tendency being towards cautious, partial
abolition and a retreat from total retention.
• Thus in cases where there are extenuating circumstances the accused is punished with life
imprisonment. In the absence of extenuating circumstances, the death punishment is given. In
fact death sentence is awarded only in those cases where there are aggravating circumstances.
• In Bachan Singh v. State of Punjab, AIR 1980 SC 898, the constitutional validity of death
penalty for murder provided under Section 302 of IPC and the sentencing procedure embodied
in Section 354(3) of CrPC was challenged on the ground that they are violative of Article
14,19 and 21 of the Constitution. It was held that provision of death penalty as alternative
punishment for murder and also the sentencing procedure in Section 354(3) do not violate
Article 14,19 and 21 of the Constitution.
9. Plea Bargaining:
• There is no precise definition of Plea Bargaining and it involves an active negotiation process
whereby offender is allowed to confess his guilt in Court if he so desire in exchange of lighter
punishment that would have been fixed for such offence.
• Plea Bargaining usually occurs prior to trial but may occur any time before a judgment is
rendered. From the point of view of the accused, it means that he trades conviction and a lesser
 sentence for a long, expensive and tortuous process of undergoing trial where he may be
convicted.
• Plea Bargaining also known as negotiating a settlement, copping a plea, or coping out- is the
most important step in the criminal justice process in United States. A negotiated guilty plea
arrive at through the interactions of prosecutors, defense lawyers and judges determine what
will happen to most defendants.
• The process of Plea Bargaining involves an active negotiation process by which the defendant
offers to exchange a plea of guilty, thereby waiving his right to trial, for some concessions in
charges or for a sentence recommendation. The offender is allowed to confess his guilt in
Court of he so desires in exchange of lighter punishment that would have been fixed for such
offence.
• The process of Plea bargaining is not as simple as it may first appear. In effectively
negotiating a criminal plea arrangement, the attorney must have the technical knowledge of
every element of a crime or charge, an understanding of the actual or potential evidence that
exists or could be developed, a technical knowledge of lesser included offences versus
separate counts or crimes and a reasonable understanding of sentencing guidelines.
• Plea Bargaining can mainly be classified into three types i.e., charge bargaining, sentence
bargaining and fact bargaining. Each type involves implied sentence reduction but differs in
the ways of achieving those reductions.
• Charge bargaining is such bargaining in which the defendant pleads guilty to reduced charges
and it occurs when defendant pleads guilty to necessarily included offences. Sentence
bargaining involves assurance of lighter or alternative sentences in return for a defendant’s
pleading guilty. In fact bargaining, the negotiation involves an admission to certain facts in
return for an agreement not to introduce certain other facts into evidence.
• In Blackledge v. Allison, 431 US 63 (1977), it has been held by Justice Potter Steward that the
heart and soul of plea bargaining is in the benefit it entails to all concerned in a criminal case.
Plea Bargaining is the primary apparatus through which judges, public prosecutors, accused,
investigating officers and victim co-operate and work together towards their individual and
collective goals.
• Salient features of Plea Bargaining are as follows:
* The plea bargaining is applicable only in respect of those offences for which punishment of
imprisonment is upto a period of 7 years.
* It does not apply where offences that affect the socio-economic condition of the country or
has been committed against a woman or a child below the age of 14 years.
* The application for plea bargaining should be filed by the accused voluntarily.
* A person accused of an offence may file an application for plea bargaining in the court in
which such offence is pending for trial.
* Any court had not previously convicted the accused in any case in which he has been
charged with the same offence.
* Once the court is convinced that the accused is participating in the plea bargaining
voluntarily, it will allow time to both parties to reach mutually satisfactory disposition.
* The court may release the accused on probation if the law allows for it, if a minimum
sentence is provided for the offence committed, the accused may be sentenced to half of
such minimum punishment and if the offence committed does not fall within the scope of the
above then the accused may be sentenced to one-fourth of the punishment provided.
 * The statement or facts stated by an accused in an application for plea bargaining shall not be
used for any other purpose other than for plea-bargaining.
* The benefits under Section 428 of CrPC of setting of the period of detention undergone by
the accused against the sentence of imprisonment is permissible in plea bargained
settlements as well.
* The court must deliver judgment in open court according to the terms of the mutually agreed
disposition and formula prescribed for sentencing including victim compensation.
* The judgment delivered by the Court in the case of plea bargaining shall be final and no
appeal except under Articles 13, 226 and 227 of the Constitution shall lie in any court against
such judgment.
10. Conclusion:
• In modern times punishment is not for one purpose only, but it also serves many purposes. It is
retributive, deterrent and preventive at the same time. In some cases, the purpose of the
punishment is reformative also however there is no agreement among the jurists regarding
only a single purpose it serves.
• Salmond says that it is needful then view o modern theories and tendencies, to insist on the
primary importance of the deterrent element in criminal justice. The reformative element must
not be overlooked but neither must it be allowed to assume undue prominence.
• Through the various stages of development, the purpose of punishment went on expanding, It
does not mean that the punishment at subsequent stages was not concerned with the purpose
which is used to serve earlier. In the process of development, the narrowness of the earlier
purposes was removed and they came to be associated with broader purposed.
• Reformative purpose of punishment is in accordance with new thought and developments and
when social disabilities and inequalities are removed the reform would be the main purpose of
the punishment.
• The main purpose of punishment is to ensure social security and welfare. The new trends and
changes regarding the purpose of punishment clearly reflects in the Soviet Criminal
Code,1926. It states that the purpose of criminal justice are to prevent the commission of
further crimes by the same offender, to influence the unstable member of the society and to
adapt the offenders to the conditions of the community life of the toiler’s state.
• Though the Soviet Code makes a sociological approach to crimes, it takes a very extensive
view. It attaches no importance to the individuals before the social good. In the name of the
safety of the state, it throws down many of the established principles of criminal justice.

LIABILITY:
• In civilized societies, most o the relations between the individual and the state are governed by
rules made or recognized by the state i.e., law. Law lays down the rights and duties of the
individuals. Law prescribes what one is to do and what one is to do and what one is entitled to get
done.
• A breach of the rules is called a wrong. When a person has committed a wrong, he is said to be
liable. Thus liability is the condition of the person who has committed a wrong. Salmond defines
liability as the bond of necessity that exist between the wrongdoer and the remedy of the wrong.
• The task of law is not finished only by laying down rights and duties, it ensures their protection,
enforcement and redress also. Therefore liability is a very important part of the study of law. The
kinds of liability when one becomes liable and the measure of liability are the things that must be
known in this connection.
A. Kinds of Liability:
* Liability is of two kinds i.e., civil and criminal. Austin says an offence which is pursued at
the discretion of injured party or by the subordinates of the sovereign is a crime. All absolute
obligations are enforced criminally.
* Salmond says that the distinction between criminal and civil wrongs is based not on any
difference in nature of the right infringed but on the difference in the nature of the remedy
applied.
* Crime is a wrong against the society but civil wrong is a wrongs against a private individual
or individuals. The remedy against a crime is punishment but the remedy against the civil
wrongs is damages.
* The proceedings in case of crime are criminal proceedings but the proceedings in case of a
civil wrong are called civil proceedings and criminal and civil proceedings take place in two
different sets of courts.
* The liability in a crime is measured by the intention of the wrongdoer, but in a civil wrong
the liability is measured by the wrongful act and the liability depends upon the act and not
upon the intention.
B. Remedial and Penal Liability:
* The liability can again be classified as penal and remedial. This distinction has been made on
the basis of the legal consequences of the action against the wrong, if after a successful
proceeding the defendant is ordered to pay damages or to pay a debt, or to make a specific
performance then the liability is called remedial liability.
* When after a successful proceedings the wrongdoer is awarded punishment which may be
the fine, imprisonment, etc., it is called penal liability. The civil liability is generally
remedial and the criminal liability is penal.
* As civil liability in some cases is penal and therefore civil liability is remedial and penal
both. So far as criminal liability is concerned, with the very few exceptions, it is always
penal.
1. Remedial Liability:
 This liability is based on the maxim ubi jus ubi remedium which means that when
there is a right, there must be some remedy. When law created a duty, it ensures its
fulfillment also. For the breach of a duty, there is some remedy prescribed by law and
it is enforced by law.
 There are certain exceptions to this as follows:
a. The duties of Imperfect Obligation: It means that duty is enforceable by law.
A time-barred debt is an example of it. Though debt exists in law, it is not
enforceable therefore there can be no proceedings to compel its payment.
b. There are some duties which are of such a nature that if once broken cannot be
specifically enforced in respect of the act done.
c. Cases where though the specific performance of the duty is possible, the law
on the other considerations does not enforce the specific perforce but instead
awards damaged to the plaintiff.
2. Penal Liability:
 The maxim actus non facit reum, nisi mens sit rea which means the act alone does not
amount to guilt, it must be accompanied by a guilty mind is considered to be the
condition of penal liability. Thus there are two conditions of peal liability:
i. Act:

Austin defines act as movement of the will. It is bodily movement caused by
volition. The view of Holmes is that an act is always a voluntary muscular
contraction and nothing else. Thus according to both the jurist, an act is a willed
movement of body.

Salmond says that an act means any event which is subject to the control of the
human will. Event is not an act in the strict sense nor is the movement, but
Salmond by act means those events which are subject to the control of human
will.

An act consists of three stages i.e., its origin in some mental or bodily activity or
passivity of the doer, its circumstances and its consequences. The law prescribes
as to under what circumstances and consequences an act shall be punishable.

The circumstances so prescribed are relevant in determining whether a
particular act has taken place or not. A person is liable only for his own act and
not for the acts done by others or the events which are independent of human
activity.

Generally acts are of following types:
a. Positive and Negative Act: When the wrongdoer does an act which he should
not do or in other words, he is prohibited by law not to do, it is a positive act.
When the wrongdoer does not do an act which he should do or in other
words which is he is directed by law to do, it is a negative act.
b. Voluntary and Involuntary Act: If the act is a willed act, it is called a
voluntary act but if the act is not a willed act, it is an involuntary act. The
penal liability is only for voluntary acts.
c. Internal and External Acts: Internal act means the act of mind and external
act means the act of body. An external act generally implies an internal act
also but an internal act is not always translated into an external act. Internal
act is a very important condition in determining the penal liability.
d. Intentional and Unintentional Acts: Intentional act means an act which is
foreseen and is desired by the doer of the act. Unintentional act is that act
which is not so foreseen or desired.

The divisions of act are not exclusive ad sometimes an act may fall into various
classes. An act may be positive, external and international at the same time
without any conflict.

The wrongful acts are divided into two classes i.e., acts which cause some harm
which makes them a wrong on this ground only and acts which are considered
as wrong due to their mischievous tendencies.

In the first class of the wrongful acts, no cause of action arises without some
actual damage but in the second class of acts, the proof of the damage is not
necessary, the act alone makes the doer liable.

The civil liability arises on the actual damage but a crime is a wrong against the
society in general so not only the act but the mischievous tendencies are also
considered wrongful and they are punishable.
ii. Mens Rea:

According to Salmond, mens rea means guilty mind. It is the second condition
of penal liability. Mens rea is defined as the mental element necessary to
constitute criminal liability.

In making a person criminally liable, an enquiry into his mental attitude is
made. Criminal intention, malice, negligence, heedlessness and rashness, etc all
are included in mens rea.

A man is liable only for those wrongful acts which he does either willfully of
recklessly. Sometimes inadvertent negligence is also punishable. Unless an act
is done with any one of the three mental attitude, the doer is not liable.

Different legal systems have recognized in different ways the mens rea as the
condition of penal liability. There are degrees of mens rea and in some cases,
the punishment of determined on the basis of the degree of mens rea.

Mens rea has no longer remained the condition of penal liability in its original
sense and it has been replaced by standards which the law has established. Apart
from this change, there are other factors which have contributed in relegating
the importance of mens rea.

In Indian Criminal Law, the scope of general application of the conditions o
mens rea is very limited. It is due to many reasons. Here the criminal law is
codified and the offences are carefully defined.

In terms if India, if mens rea is a necessary condition for a particular offence, it
is included in the very definition of the offence and is a part of it. There are
certain offences which have been defined without any reference to mens rea or
intention.
C. Intention:
* Intentions is defined as the purpose or design with which an act is done. It is the
foreknowledge of the act, coupled with the desire of it, such foreknowledge and desire being
the cause of the act, in as much as they fulfill themselves through the operation of the will.
* An act is intentional if and so far as it exists in idea before it exists in fact, the idea realizing
itself in the fact because o the desire by which it is accompanied. Holmes says that there are
two elements of intention i.e., foresight that certain consequences will follow from an act and
the wish for those consequences working as a motive which includes the act.
1. Intention and Expectation:
 Intention and expectations are two different things and one does not necessarily
involve the other, one may intend a result though he may not expect it. Intention is the
foresight of a desired issue howsoever improbable not the foresight of an undesired
issue howsoever probable.
 Intention is either the desire of the consequences of one’s conduct or foresight of the
certainty of such consequence but the intention does not extend to cover the
knowledge of probable events.
 In English and Indian Law, intention does not mean only the specific intent but it also
includes the generic intent also. In culpable homicide, it is not necessary that the
 offender should intend to kill any particular person or he has killed the same person he
intended to kill.
2. Intention and Motive:
 Though intention and motive are very close to each other, they are not the same.
Motive is called the ulterior intent and is seldom that a man commits a wrongful act
for its own sake. The wrongdoer has some end in his mind which he tries to achieve
through his wrongful act.
 Generally in committing a wrong, the intent of the wrongdoer is two fold where one
fold is the wrongful act itself and the other is that on which the wrongful acts proceeds
and it is beyond the wrongful act.
 Intention is related to the immediate and motive to the distant object of the act.
Motive is the feeling which prompts the operation of the will. Intention is the result of
the deliberation upon the motive. It is an operation of the will directing an overt act.
An act may have more than one motive behind it.
 Though most of the wrongful acts are done with a motive, it is not very relevant in
determining the liability. It is the immediate intent that is material in the determination
of liability.
 An act which is not unlawful otherwise will not become so because it was done with a
bad motive. In the same way, an act which is unlawful would remain the same
although it might have been done with a bad motive.
 Motive is taken into consideration for the determination of punishment. Though a
good motive is no defence against conviction, it is considered in determining the
sentence and if a good motive is there then a lighter punishment is awarded.
D. Negligence:
* Negligence is the second form of mens rea. The offences in which mens rea is a necessary
element, the wrongful intention or negligence will have to be proved on the part of the
person who committed the wrongful act to make him liable.
* Intention and negligence both are the mental attitudes which a person has towards the
consequences of his act. When a person does an act foreseeing and desiring the consequence
he is said to have the intention to do the act. Negligence is not the doing of an act which one
is under a duty to do, and it causes risk, danger or harm.
* In Gill v. General Iron Screw Colliery Co. (1886) LR 1 CP, it was held that negligence is
defined as the absence of such care as it was the duty of the defendant to use. Negligence and
wrongful intent are two contrasted and mutually inconsistent mental attitude of a person
towards his act and its consequences.
* A person who causes a consequence intentionally cannot be said to have cause it negligently
also and vice versa. Though at times, it may be difficult to make a distinction between them,
they are two separate and distinct attitudes of mind.
* Generally negligence is of two types i.e., advertent negligence and inadvertent negligence.
Advertent negligence is called wilful negligence or reckless negligence too. The harm is
done in foreseen as possible or probable but it is not willed. Inadvertent negligence is the
result of ignorance, thoughtlessness or forgetfulness is inadvertent negligence. The harm is
caused neither foreseen nor wilful.
* As the negligence is the omission to tale such care as under the circumstances, it is the legal
duty of a person who takes different duties. Where there is no such duty, there can be no
negligence.
 * In different legal systems, different duties have been imposed upon individuals. In criminal
law, negligence is a condition of liability only in exceptional cases. Generally crimes are
wilful or intentional wrongs therefore the question of negligence rarely arises.
* There are two theories of negligence i.e., subjective theory and objective theory. The
subjective theory was propounded by Salmond whereas the objective theory was propounded
by Fredrick. According to subjective theory, negligence is a state of mind which is a mental
attitude. According to objective theory, negligence is a type of conduct.
* Subjective theory states that negligence is culpable carelessness. Negligence essentially
consist in the mental attitude of undue indifference with respect to one’s conduct and its
consequences. A person is made liable on the ground of negligence because he does not
sufficiently desire to avoid a particular consequence.
* Objective theory states that negligence is an objective fact. It is not an attitude of mind or a
form of mens rea but it a kind of conduct. Negligence is breach of duty to take care. One
should take precautions against the harmful results of one’s actions and he must refrain from
unreasonably dangerous kind of conduct.

E. Strict Liability:
* Apart from the negligence and wrongful acts, there is another class of wrongful acts for
which a person is liable irrespective of mens rea. This liability is called the strict or absolute
liability. The strict liability is an exception to the general rule about the conditions that
constitute liability.
* It is said that in civil wrongs, strict liability should be a rule. The aim of civil law is to
redress the person who has suffered a harm and there is no question of punishment. The
person who suffered a harm should be redressed without the consideration as to whether the
wrongdoer did it intentionally or negligently.
* A strong argument given in favor of strict liability is that it is very difficult to procure the
evidence of intention or negligence in every case and it would make the administration of the
justice very difficult.
* In criminal law, the rule of strict liability is applied only to a comparatively minor and trivial
kinds of offences which in many cases do not imply any moral stigma on the part of the
wrongdoer and in majority of the offences mens rea is a necessary condition for liability.
Thus in criminal law, rule of strict liability is almost an exception. In cases of civil wrong, a
man does a thing at his own peril, therefore he should be liable for it in every case.
* A person is not liable for an act taking place accidentally. Accident differs from a mistake of
fact. Every unintentional act is done by mistake when the consequences of the act are
intentional, the mistake is only about the circumstances and in that respect it is unintentional.
* The principle of mistake of fact is that ignorantia facit excusat which means that a person is
not liable for a wrongful act if he has done it under a mistake of facts. In civil wrongs, the
mistake of fact Is not a valid ground for discharging a person from liability. In criminal law,
the strict liability for a mistake of fact is only in exceptional cases.
F. Vicarious Liability:
* The general principle of law is that a person is liable for his own acts and not for the acts of
others but in certain kinds of cases a person is made liable for the act of another on account
of his standing in a particular relationship with that person. This liability is called vicarious
liability.
 * The principle of vicarious liability in ancient times was that a person must be made
answerable for the acts of the person who are akin to him. In modern this principle of
liability exists in a limited kind of cases.
* In criminal law, the general principle if that a person is not liable for the act of another. A
master is not criminally liable for the unauthorized acts of his servant. The Legislature may
prohibit an act or enforce a duty in such terms as to make the prohibition or the duty absolute
then in that case the principle is liable if the act is in fact done by his servant.
* A statute may impose criminal liability upon the master as regards the acts or the omissions
of his servants. A master or owner is liable in case of public nuisance done by his agent. If a
principle neglects the performance of an act, which is likely to cause danger to others, and
entrusts it to the unskillful hands, he will be liable for certain cases criminally.
* Vicarious liability main exists in civil law. It is recognized in civil law generally in two kinds
of cases i.e., where the master is liable for all tortuous acts of his servants done in the course
of his employment and the representative of the dead person are in certain cases liable for the
acts of the deceased.
G. Measure of Liability:
* The principles to determine the punishment in the case of a crime and the damages or
compensation is the case of a civil wrong are entirely different from each other. The measure
of the criminal liability is different in different legal systems.
* The measure of liability is determined on various considerations. The measure of liability in
a particular society depends on the theory. The measure of the liability depends upon the
concept of the State and the kind of the government in a particular society. The measures of
liability are also dependent on the values which are recognized in a particular society.
* In modern times, the principle is that all the offences do not involve equal guilt on the part of
the wrongdoer and all the offenders are not equally guilty for the same offence. The aim of
law is to bring the maximum good at the cost of the maximum sacrifice therefore in
awarding the punishment it proceeds on the same line.
* Different offences have different punishments and the Judge has the discretion to award
punishments. The law has generally fixed the maximum punishment that can be awarded in a
particular offence and the judge awards the punishment within this limit taking into
consideration the nature of the guilt and the character of the offender, etc.
* Penal redress is a compensation to the person against whom a wrong has been done, but it is
punishment for the wrongdoer but in the case of civil liability, the liability is measure
exclusively by the magnitude of the wrong committed without any consideration of the
motive, character of the wrongdoer or the evil tendencies of the wrongful act.
* In all modern and developed bodies of law, its operation is supplemented and is deficiencies
made good by a co-ordinate system of criminal liability ad these two together combined in
due proportions constitute a very efficient instrument for maintenance of justice.
 MODULE 3

PROPERTY:
A. Introduction:
• The concept of property and ownership are very closely related to each other. According to
some jurist, they are one and imply the same relationship but it is called by two names as both
are looked into from two different angles. Property and ownership are mutually interdependent
and correlative. There can be no property without ownership and ownership without property.
• In modern times, apart from its common use, property is used in a wider sense also. In its
widest sense, it includes all the rights which a person has. Thus a person’s life, liberty,
reputation and all oth1er claims which he might have against other persons is his property.
• The term property is used also to denote the proprietary rights of a man as opposed to his
personal rights. In this sense, it means a person’s land, house, his shares in a business concern,
etc. It is used in a third sense also i.e., to mean proprietary right in rem.
• According to Salmond, the law of property is the law of proprietary rights in rem, the law of
proprietary rights in personam being distinguished from it as the law of obligations. According
 to this usage, a freehold or leasehold estate in land or a patent or copyright is property but a
debt or the benefit of a contract is not.
• In the beginning, property included only the corporeal objects but gradually the meaning went
on expanding. This expansion took place due to many reasons and in course of time. The jurist
who propounded the contract theory of the origin of the State attempted to give a wide
meaning to the term property. They said that the State and law came into existence only for the
protection of the property. In property they included all the things which are necessary for the
development of the individual.
• The equity jurisdiction of English Courts helped in extending the meaning of the term
property. There was a maxim to define equity jurisdiction which said that equity will protect
only the rights of property. Meaning of property was stretched and sometimes personal rights
were also included in it.
• Another development which caused the expansion in the meaning of the term property is the
constitutional protection given to the property in many legal systems in modern times. The
state is restrained from arbitrary interference in the individual’s enjoyment of his property or
taking it without payment of compensation.
B. Supreme Court’s View:
• The right to property guaranteed by Artcile 19(1)(f) means the rights, which by themselves
and taken independently are capable of being acquired, held or disposed of as property. In
Commer, HRE v. Lakshmindra, AIR 1954 SC 282, it was held by the court that there is no
reason why the word property as used in Article 19(1)(f) of the Constitution should not be
given a liberal and wide connotation and should not be extended to those well recognized type
of interests which have the insignia and characteristic of proprietary rights.
• Property in Article 31 must be understood both in corporeal sense as having reference to all
those specific things that are susceptible to private appropriation and enjoyment as well as in
its judicial or legal sense of a bundle if rights which the owner can exercise under the
municipal law with respect to the user and enjoyment of those things to the exclusion of all
others.

• In RC Cooper v. Union of India, AIR 1970 SC 564, it was held that property means the highest
right of a man can have to anything being that right which one has to lands or tenements,
goods or chattels which does not depend on another’s courtesy, it includes ownership, estates
and interest in corporeal things and also rights .
C. Theories of Property:
• Various theories have been given from time to time both in support and against private
property. These theories are called the theories of property.
• The theories of property are as follows:
1. Natural Theory:
* This theory states that property arose by taking control of res nullis. The person who first
takes the possession of an object has the right to retain it. This view is supported by
Grotius, Blackstone and many others. Henry Maine is opposed to this view.
* Henry Maine says that the doctrine that the occupation gives title is probably the result o
the later thought. The natural theory neither gives a convincing account of the origin or
 property nor it gives any justification for it. In modern times this theory is of little
practical value.
2. Labour Theory:
* This theory says that the property is the result of individual labour. This theory gives the
rule that any res that is created by the toil of a labour belongs to him. The proposition of
the theory creates problems which the theory cannot answer.
* The Marxist approach to property is to some extent based on this theory. This theory
works as an incentive for work and an implication of the theory is that he who works
should get a good return for it and property should belong to the person who collected it
without any labour on this part.
3. State Created Theory:
* According to this theory, property is a creation of the State and achieved only after a long
struggle with the clan. If one regards the various rights that he enjoys in respect of his
property as the essential characteristic of property, undoubtedly it is the State that has
provided the machinery by which these rights are enjoyed.
* The rights in the property were gradually created, defined and regulated by the State and
the State protects and enforces these rights, but to say that the State created the property is
not a sound proposition.
* The emergence of the State and the creation of the private property were the results of
some social and economic forces, therefore it is not true to say that one is the creation of
the other. There may be private property without a highly developed State.
4. Metaphysical Theory:
* This theory was given by Hegelians. According to him, some control of property is
essential for the proper development of the personality. Hegel said that property makes
objective any personal individual will.
* Property is the external manifestation of liberty, therefore the control of property makes a
man free. Kant says that property is the part if the human personality, therefore its
existence and protection is necessary.
* An important criticism of this theory is that it is little concerned with realities and is
based on metaphysical notions. This theory gives a great truism that a person dependent
upon the property of another does not live a free life and hence property is necessary for a
true self realization.
5. Historical Theory:
* This theory lays down two propositions. The first proposition is that the institution of
property has developed through a process of steady growth. The second proposition is
that the idea of individual property developed out of group or collective property.
* According to Henry Maine, in the beginning the land was collectively owned by the
community. The private or individual ownership is a later development. This theory is
Maine’s imaginative reconstruction based as he says on the examination of Indian village
communities and certain local customs. Thus it has no universal application.
6. Psychological Theory:
* This theory says that there is a natural instinct in man to acquire and control objects. It is
this instinct that brings the property into being. The law takes account of this instinct and
confers certain rights on individuals over the objects which they have acquired.
 * Bentham says that property is nothing more than the basis of a certain expectation of
deriving hereafter certain advantages from a thing by reason of the relation in which we
stand towards it.
7. Functional Theory:
* In modern times, an approach to the concept of property has been made from functional
point of view and this approach says that there should not be any a priori theory for the
justification of property.
* Ant theory of property should b built by an analysis of the function and the social effects
of the property. Property acquired through labour or effort is justified but it is acquired
otherwise, it is not justified. The distribution of property in the society must be on proper
and equitable principles.
D. Kinds of Property:
• A broad division of the property is made into corporeal and incorporeal property. Salmond
says that corporeal property is the right of ownership in material things and incorporeal
property is another proprietary right in rem.
1. Corporeal Property:
* It is called tangible property also because it has a tangible existence. It includes all
material things. The person who has the right to the aggregate use of an object is called
the owner of the object and the object is called his property.
* There are two kinds of restrictions on one’s use of his property. The first kind is those
that are imposed by law and it is done in the interest of the society whereas the second
kind of restriction is those that are encumbrances on the property. The right of ownership
is general, permanent and heritable.
* Types of Corporeal punishment are as follows:
a. Movable and Immovable Property:
 The division of property into movable and immovable is very important. This
division is generally found in all the legal systems but the basis on which this
division is made is not uniform and it is different in different legal systems.
 A number of incidents and the extent of rights in property depend on its being
movable or immovable. In India, the division of property is into movable and
immovable but in English Law the same is known as chattels and land.
 According to Salmond, the following kinds of property are included in the
immovable property such as determinate portion of the earth’s surface. Ground
beneath the surface down to the centre of the earth, column space above the
surface, all objects above or under the surface n its natural states and all objects
placed by human agency on or under the surface with the intention of permanent
annexation.
 In India, the definition of movable and immovable property may be found in a
number of statutes. None of the definitions given is exhaustive as somewhere it is
used in general purpose whereas somewhere it is only for the purposes of the
respective acts.
 It is submitted that the division into movable and immovable is not confined to
material object only but it includes rights also. A right over an immovable property
is itself an immovable property.
b. Real and Personal Property:
  In English Law, the property has been divided into real and personal. To a great
extent this division is identical with that of immovable and movable but they are
not the same in every respect.
 The law of real property is similar to that of land or immovable and the law of
personal property is similar to that of chattels or movables. The division into real
and personal is not based on any logical principle but it is a result of the course of
legal development in England.
 The real property includes all rights over land with such additions and exceptions
as the law has deemed fit. The law of personal property includes all other
proprietary rights whether they are in rem or in personam.
 This division into real and personal is on the basis of the action that was brought
for a particular kind of property. The actions were classified on the Roman law
principles. In Roman law, actions were divided into two classes i.e, action in rem
and actions in personam. Debts, shares etc are chattels whereas chattels includes
personal property as opposed to real property.
2. Incorporeal Property:
* Incorporeal property means intangible property. It includes the interest in non-material
things which law recognizes and protects. Incorporeal property is divided into two types:
a. Immaterial Things:
 Apart from the ownership of material objects, certain rights have been recognized
by law in immaterial things. Thus they too are property. The recognition and
protection of these rights is of recent origin.
 The immaterial things which law recognizes as the subject-matter of rights are the
various immaterial products of human labour and skill. This kind of property
sometimes called as intellectual property.
 The rights in immaterial things have been recognized o the principle that what a
man produces belongs to him and the immaterial product of a person’s intellect
may be as valuable as any other material property. In modern times, this kind of
right is growing very fastly. In developed and civilized socities, there a number of
statutes which govern these rights.
b. Rights in re aliena:
 These are the second class of rights which are also considered as property and
includes the following:
a. Lease:

It is a kind of encumbrance. It consists of a right to the possession and use of
property owned by another person. Salmond gives a very wide meaning to
the term ‘lease’ and says that apart from the tenancy of land it includes all
kinds of bailments of chattels and all encumbrances of incorporeal property
which possess the same essential nature as a tenancy of land.

In India, lease of immovable property is a transfer of right to enjoy such
property made for certain time, express or implied or in perpetuity.
b. Servitudes:

It is an encumbrance on property which gives a right for the limited use of a
piece of land to a person or persons without giving them possession of land.
Its chief point of distinction from a lease is that the servitude does not give
 the possession of the land over which it exists whereas in lease there is
possession of the lease on the subject matter of lease.

It is of two types i.e., private servitude and public servitude. A public
servitude is that in which the right to use vests in a determinate individual or
individuals. A public servitude is that in which the right is vested in the
public at large, on in some class of indeterminate individuals.
c. Securities:

It is also a kind of encumbrance and its purpose is to ensure or facilitate the
fulfillment or enjoyment of some other right vested in the same person. The
securities are of two kinds i.e., mortgages and liens.

A mortgage can be created by way of encumbrance as well as by way of
transfer. In India, a mortgage is the transfer of an interest in specific
immovable property for the purpose of securing the payment of money. A
lien is a right which is in its own nature a security for a debt and nothing
more.
d. Trust:

It is a kind of right in re aliena. The trustee is the legal owner of the property
and the beneficiary is the equitable owner of it. Though the property is
legally vested in the trustee, he keeps it for the benefit of the beneficiary.
E. Modes of Acquisition of Property:
• There are two important modes of the acquisition of property. They are as follows:
1. Acquisition Inter Vivos:
* It includes the following:
a. Possession:
 The possession of a thing creates title in it. The person who first reduced into
possession an ownerless object acquired title in it. This title was good against the
whole world. In modern times, there is little scope for acquisition of property in
this way except in very limited kinds of cases.
 The person who acquires title by possession is called the possessory owner. If he is
wrongly deprived of the thing by a person other than the real owner, he can recover
it from him.
b. Prescription:
 Salmond defines prescription as the effect f the lapse of time in creating and
destroying rights, it is the operation of times as a vestive fact. It is of two types i.e.,
positive and negative.
 When the right is created by lapse of time, it is called the positive prescription and
when a already existing right is destroyed due to its non-exercise for a prescribed
period it is called negative prescription.
 The positive prescription is generally based on the ground of possession and would
apply only to those objects only which admit the possession. The negative
prescription applies to property and obligations both.
 The negative prescription is of two types i.e., perfect and imperfect. The perfect
negative prescription is that in which the principal right itself is destroyed. In
imperfect negative prescription only the right of action is destroyed and not the
principal itself.
c. Agreement:
  Agreement is a very important mode of acquisition of property. In agreement, a
title is acquired with the consent of the previous owner. When agreement is used a
mode of acquisition of property, it is used on a very wide sense.
 Agreement is of two kinds i.e., assignment and grant. By assignment an existing
owner transfers his right to another. By grant, new rights are created by way of
encumbrances on the existing rights.
 An agreement must be effected in accordance with the formalities prescribes or
recognized by law. An important formality in transferring ownership by agreement
is delivery of possession.
 The general principle about assignment is that an assignor cannot assign a better
title than what he has. By grants, new rights are created by way of encumbrances.
2. Succession on Death:
* On the death of a person, his property devolves upon his legal representatives. It is
considered to be a continuation of the personality of the deceased because in law his
representatives are identified with him.
* As the proprietary rights of the deceased survive him and devolve upon his legal
representatives, the debts and other obligations of the deceased also survive him and the
property left by him in the hands of his representatives is liable for payment of such debts
and discharge of the obligations.
* The devolution takes place in two ways i.e., intestate succession and testamentary
succession. In interstate succession, the property devolves according to law or custom by
which the deceased is governed. The persons whom the property devolves are called the
heirs of the deceased.
* By testamentary it is meant that the law empowers a person to determine during his life-
time the disposition of the property which he leaves behind him after his death. The law
respects the will of the deceased and secures its enforcement. The devolution of the
property according to the directions given in the will of a person is called testamentary
succession.
* A person cannot dispose of his property by will in such a way as to vest in any person for
a long time. This property vests in some persons within a prescribed time. In some legal
systems, there is a limitation on the quantum of property that a testator can dispose of by
will. A testator cannot dispose of his property by will in such a way as to withdraw it
from the use of living persons.

POSSESSION:
A. Introduction:
• Possession is a polymorphous term which may have different meanings in different contexts.
It is impossible to work out a completely logical and precise definition of possession
uniformly applicable to all situations in the context of all statutes.
• It is the most difficult conception of the legal theory. Since very early times, attempts have
been made to analyze and theorize it and various theories have been given about it. The courts
in their judgments on possession have not followed any preconceived theory and this made the
conception a very complicated one.
 • Possession is an evidence of ownership. Its transfer is one of the chef methods of transferring
ownership. The possession of a thing is a good title against the whole world except the real
owner. Long possession created ownership by prescription.
• In certain cases the possessor of a thing can confer a good title on a transferee of it though he
himself has none. Possession plays a very important role in criminal law. In a number of
offences against property possession becomes the main issue to be determined.
B. Protection Of Possession By Law:
• Law protects possession even if it has been acquired unlawfully. Rousseu was of the view that
men are born free and equal and freedom includes the freedom of will also therefore in
possession individual’s will is reflected therefore it must be protected.
• Kant says that the freedom of the will is the essence of man and it is an end in itself which
need no further explanation which is absolutely to be respected and which I is the very end and
object of all governments to realized and affirm. Possession should be protected as a man
taking possession of an object has brought it within the sphere of his will and he has extended
his personality into or over that object.
• Hegel is also of the view that in possession there is manifestation of individual’s will and
therefore it is entitle to absolute respect. According to Savigny, possession is protected
because every act of violence is unlawful. He considers possession as the branch f the
protection of the person.
• According to Windscheid, protection to possession stands on the same ground as protection
against injuria and everyone is the equal of every other in the state and no one shall raise
himself over the other. According to Ihering, possession is ownership in defensive and one
who exercises ownership in fact is freed from the necessity of proving title against one who is
in an unlawful possession.
• Holland says that the prominent motive in the protection of possession is probably a regard for
the preservation of peace. In modern times, following reasons are given for the protection of
possession:
* possession is protected for the preservation of peace. Protection given to possession
comes to aid in criminal law and prevents breach of peace;
* possession is protect as a part of law of tort;
* possession is protected as a part of the law of property.
C. Possession In Fact And Possession In Law:
• The concept of possession has evolved through a long course of time. In the beginning, it was
only a fact with physical control over things but later it started receiving recognition and
protection by law.
• Possession included a physical relation with the object as well as its recognition by law. These
aspects are sometimes called as possession in fact and possession in law. A relationship with
an object to be recognized by law as possession should exist in facts as such.
• Right means a legally protected interest and it is a consequence attached by law to a fact or a
set of things defined by law. When a person is so situated that fact or facts so define are
complete, that person is said to have a right or rights that are attached to those facts. Thus right
and fact are closely related to each other.
• Possession is a relationship between an object and a person and therefore the consequence
attached to such fact or facts that is right of possession is available to that person. Facts
 implies the rights attached to them and rights implies the coexistence of certain facts. Hence
possession is neither a fact nor a right alone but consists of both.
• Therefore an analysis of possession involves a discussion on two things i.e., the fact , the
relation between an object and a person and the consequences that law has attached to it, that
is right.
D. Analysis Of Possession:
• The Roman law had its main aim to protect ownership and it was in this connection that the
law regarding possession developed. The Roman law was mainly concerned with developing a
theory to distinguish detention and possession from each other.
• The physical control of an object by a slave as a filius familias, a bailee or an agent was
considered only as detention and it was called detention or possession naturalis. All other
kinds of physical controls were possessions and was called possession or possession civilis.
• The law of possession did not develop in the lines directed by any theory or principle but it
developed on the basis of convenience and policy.
E. Savigny’s Theory Of Possession:
• Savigny on the basis of a text of a Roman Jurist Pail, said that there are two elements of
possession i.e., corpus possessionis and animus domini. Corpus is meant an effective physical
control of the object and Savigny explains that the physical power of dealing with the subject
immediately and of excluding any foreign agency over it and is the factum which must exist in
every acquisition of possession.
• Immediate physical power is not necessary to continue the possession as was required to rise
to it and continuing possession depends rather on the constant power of reproducing the
original relationship at will.
• Animus means the mental element or the intention to hold the object as owner against all
others. It is a conscious intention to exclude others from the object. Without this mental
element there can be no possession.
• This theory explains as to why the tenant, the borrower and the agent had no possession in
Roman Law. They had no animus domini as they did not intend to hold the object in their own
right. This theory fails to explain those cases where Roman law had given possessionary right
to the persons who were not the owners of the object or property.
F. Ihering’s Theory Of Possession:
• Ihering’s theory of possession is more objective and it presents a sociological approach to
possession. He takes up as to why Roman law protected by means of interdicts. The answer
according to him is that persons holding property in majority of the cases would be owners
and the possession was attributed to such persons so that the interdicts might be made
available to them.
• Ihering says that whenever a person is looked like an owner in relation to thing, he had
possession of it unless possession was denied to him by the rule of law based on practical
convenience.
• The theory is more in consonance with the practice in Roman law than Savigny’s theory. At
the same time, this theory is flexible and explains those cases which Savigny’s theory found
difficult to explain.
G. Possession In Common Law:
 • In the first instance, possession is a fact to be established like any other fact. Whether it exists
in a particular case or not depends upon the degree of the control exercised by the person who
claims to be in possession.
• The control must be such a degree as the person having the control might effectively exclude
interference by others. When the control falls short of the standards so established, it is called
only custody or detention.
• Various writers who have analyzed and discussed English law have defined possession.
According to Holmes, to gain possession a man must stand in a certain physical relation to the
object and to the rest of the world and must have a certain intent.
• Salmond divides possession into incorporeal and corporeal and defines corporeal possession as
the continuing exercise of a claim to the exclusive use of it. In this claim, there are two
elements i.e., the corpus and animus.
• According to Pollock, in common speech a man is said to possess or to be in possession of
anything of which he has the apparent control or from the use of which he has the apparent
power of excluding others.
• In English law, the emphasis is on the intent or animus. The intent that constitutes possession
is the intent to exclude others. In English law, the intent of animus is the main element of
possession and some kind of physical relationship with the object is also necessary.
• Corpus means that there exists such physical contact of a person with a thing as to give rise to
reasonable assumption that others will not interfere with it. The contact has two assumptions
or aspects i.e., the relation of possessor to other persons and the relation of the possessor of the
thing possessed.

• The necessary relation between the possessor and thing possessed is such as to admit of his
making such use of it accords with the nature of the thing and of his claims. In Ancona v.
Rogers, (1871) 1Ex. D 285, “A” was permitted to put her goods in a room in B’s house. A set
the goofs trough a man who kept it in the allotted room and locked it and took away the key
with him. It was held that A is in the possession of the room.
H. Rights of Possessor:
• Possession is said to be the nine points of law. It means that the person in possession of an
object has better claim over it against the whole world except the real owner. In Armorie v.
Delamirie, 1 Stra (1722) 505, a chimney boy found a jewel and took it to the shop of the
defendant to know its value. The defendant refused to return it to the boy on the ground that
the boy was not the owner. It was held that the boy being the prior possessor of the object had
a better claim to it against the whole world except the real owner and as the shopkeeper’s
claim was not on behalf of the real owner, the claim of the boy prevailed.
• Consequences attached to possession are substantially as those attached to ownership subject
to the question of possessory rights. In English Law, if the bailee is unlawfully deprived of the
goods bailed to him, he has got all the rights of the owner against the person who has so
deprived him though he himself is not responsible to the bailor for such loss.
• Possession is a root of title. Possession is substantive right and as such it is under the same
possessor is added together to make up the prescribed period of limitation. The person in
possession can sue and get restrained the persons who interfere with their possession without
proving title as owner of the property.
 • Possession is an evidence of ownership and the possessor is presumed to be the owner until
one proves a better title to it than him. All these rules and the principle have been recognized
in almost all the legal systems.
I. Kinds Of Possession:
1. Mediate and Immediate Possession:
• Possession is mediate or immediate. Salmond says that one person may possess a thing for
or on account of someone else. In such a case the latter is in possession by the agency of
him who so holds the thing on his behalf. The possession thus held by one man through
another may be termed mediate while that which is acquired or retained directly or
personally may be distinguished as immediate or direct.
• Salmond speaks of three type of mediate possession as follows:

Mediate possession is that which is acquired through an agent or a servant. The
agent or the servant acquires or retains the possession solely on behalf of his principal or
the master without claiming any interest of his own in the object. Here the immediate
possession is with the agent or the servant but the mediate possession is with the principal
or the master.

The next mediate possession is where an object is held by a person who holds it on
his own account as well as on another account but recognizes the superior right of the
latter who can obtain it whenever he chooses to demand.

The next mediate possession exists where the immediate possession of the object is
with a person who has a claim over the object until sometime has elapsed or same
condition has been fulfilled.
• The English Law favours the exclusiveness of the possession and it grants possession to
one person and one person alone. Between a master and servant, the servant posses the
goods given to him by stranger until he has appropriated them to his master by some act.
2. Corporeal and Incorporeal Possession:
• Corporeal possession is some form of continuing relation between a person and a material
object. It is a relation of fact and not of right. It is only a title of right and is not itself a
right. Incorporeal possession is the continuing exercise of a claim to anything else. The
thing so claimed may be either non-exclusive use of material object or some interest or
advantage unconnected with the use of material object.
• The possession of an object implies certain rights over the object ad the possession of a
right brings into picture some object over which or where the right is exercised. The
difference between corporeal and incorporeal possession is that of the degree and not of the
subject.
J. Acquisition Of Possession:
• Possession is acquired when the two elements corpus and animus coincide. There are three
modes of acquisition of possession:
1. Taking:
* It implies an act exclusively on the part o the person who takes the possession. Taking is
original or derivate. The original takes place when the object has no previous owner and
when the possession of a thing is taken which has already a previous owner it is
derivative taking.
* Taking means acquiring possession without the consent of that previous owner or
possession. The derivative taking may be rightful or wrongful. Where an innkeeper seizes
 the goods of his guest, who has failed to pay his bill, there is an acquisition of possession
against the will of the previous possessor but it is a rightful taking of possession.
2. Delivery:
* Delivery means the voluntary relinquishment of possession by one person in favor of
another. Delivery may be actual or constructive. Actual delivery means the transfer of
immediate possession and all that is not actual delivery is constructive delivery.
* Salmond has divided the actual and constructive delivery into a number of classes on the
basis of mediate and immediate possession. The division between mediate and immediate
itself being of no great practical importance.
3. By Operation of Law:
* A third mode of acquisition of property is by operation of law. It takes place when by the
operation of law goods are removed from the possession of one person to another. When
a person dies, the things in his possession pass to his personal representative.
K. Possession And Ownership:
• Ownership is a kindred conception of possession. Salmond makes a distinction between the
two on the basis of fact and right. Possession is in fact what ownership is in right. Possession
is the de facto exercise of a claim and ownership is the de jure recognition of one.
• Ownership is the guarantee of the law and possession is the guarantee of the facts. It is well to
have both forms of security if possible and indeed they normally co-exist. The right of
ownership is superior and comprehensive and it includes the right of possession.
• Generally ownership and possession coincide and their separation is due to special reasons.
Ownership tends to realize itself into possession and possession tends to become ownership.
Possession for a long time ripens into ownership and ownership without possession for a long
time is destroyed.
• The facts to which the right called ownership is attached are corpus and animus. The facts to
which the right called ownership is attached are possession of or prescription or conveyance
from the previous owner of the object. Sometimes rights analogous to those of ownership may
be given by the legislature to persons of whom a defined set of facts is true.
• Possession and ownership differ in their mode of acquisition and the transfer of possession is
comparatively easier and less technical but the transfer of ownership in most cases involves a
technical process of conveyancing.

OWNERSHIP:
A. Introduction:
• Ownership is an akin conception of possession According to Holdsworth, early law does not
trouble itself with complicated theories as to the nature and meaning of ownership and
possession.
• The conception of ownership seems to have come into being when the society changed from
nomadic to agricultural. This course of development illustrates the principle that the
development of law and society are interconnected and therefore one cannot be fully
understood without the other.
 • In Roman Law as well as ancient Hindu Law, possession and ownership were recognized as
two separate and distinct conceptions. In Roman Law, a distinction was made between
dominium and possession.
• In ancient Hindu law, possession and ownership are two distinct conceptions. The law of
prescription, bailment and sale without ownership was based upon this distinction. It was laid
down by ancient law-givers that possession of immovables for 20 years and of movable for 10
years give title by prescription.
• According to Holdsworth, English Law reached the conception of the ownership as an
absolute right through the development in the law of possession. The idea of ownership in
respect of land in respect of chattels evolved through two different ways.
• The idea of ownership in land was a product of the peculiar feature of land tenures under the
feudal system. Under this system, the land was held in return for service. The idea of
ownership in chattel had a different course of development.
• The concept of ownership in modern times is not so simple and it has become very
complicated. The conception of ownership in English Law is in many respects different from
that of Roman law and it was due to the peculiar features of the land tenures under feudal
system that the conception of ownership developed in different ways.
B. Definition of Ownership:
• According to the Hindu jurists, ownership is a peculiar kind of relation between a person and a
thing. The relation can be looked at from two different angles. One angle is person in whom
the bundle of rights over the thing vests which constitute ownership or the other angle where it
is studied as subject to a special kind of control exercised by particular individual.
• The bundle of rights of a person over a thing give him the ownership of the thing, and the
control exercised by the person over the thing makes the thing a property of that person. Thus
the idea behind the ownership and property are two aspects of the same relation. These
concepts are mutually interdependent and one cannot be fully and clearly understood without
the other.
• Thus ownership according to Hindu jurist view is considered inhere in persons in relations to
the tings in so far as they are objects of ownership and property is defined as characterizing
things in so far as they stand related to persons who are their owners.
• According to Austin, ownership is a relation which subsists between a person and a thing
which is the object of ownership. He also defined ownership as a right over a determinate thig
indefinite in the point of user, unrestricted in point of disposition and unlimited in point of
duration.
• Holland defines ownership as a plenary control over an object. According to him, an owner
has three rights on the object he owned i.e., possession, enjoyment and disposition. He says
that right of possession is inherent of ownership.
• Salmond says that ownership in most comprehensive signification denotes the relation
between a person and any rights that is vested in him. According to this definition, ownership
is a relation between a person and a right. It implies that ownership is incorporeal.
• Salmond’s definition has been criticized by Cook. He says that the use of the word ownership
in the sense of a relation between a person and a right would cause unnecessary confusion.
Ownership is a method of enjoyment which is more comprehensive than any other method and
ownership means this practical type of right or bundle of rights.
 • According to Duguit, ownership is a relation between a person and a thing, On account of this
relation between the person has the power of disposal, use and enjoyment of the thing.
Kocourek says that the ownership is on the one hand a relation of the owner of a right to a
thing which can be economically enjoyed and on the other hand, it is a matter of legal
protection and in this way it is the most ultimate right.
C. Rights of Ownership:
• There are three main rights of ownership i.e., the right of possession of the property owned,
the right of the enjoyment of the property and the power to dispose of the property. There are
certain restrictions upon these rights in the interest of the society or as a matter of policy but
subject to these restrictions, the rights have been recognized in democratic societies.
• The Indian Constitution makes it a Fundamental Right. The state can impose reasonable
restrictions on the exercise of the right by law in the interest of the general public or for the
protection of the interest of any Scheduled Tribe. The state cannot deprive a person of the
property owned by him except in the manner and for the purpose prescribed by law.
D. Classification of Ownership:
• On the basis of English law, the ownership is of following types:
1. Corporeal and Incorporeal Ownership:
* The ownership may be of a physical object or of a right only. If the subject matter of the
ownership is a physical object then it is called corporeal ownership. If the subject matter
of ownership is a right then it is called incorporeal ownership.
* Salmond recognizes this division not on the ground that the subject matter in one is a
physical object and in the other it is a right but on the ground that corporeal is the
narrower and the incorporeal is the wider sense of the term in which term ownership is
used.
2. Sole and Co-ownership:
* The general principle of ownership is that it should vest in one person only but sometimes
it is duplicate or I other words, two or more persons have the right of ownership of the
same property vested in them at the same time. When the ownership is vested in one
person only it is called the sole ownership and when it is vested in more than one, it is
called co-ownership.
3. Trust and Beneficial Ownership:
* This classification is made on the basis of the basis of institution trust. Trust is defined as
an obligation annexed to the ownership of property and arising out of a confidence
reposed in and accepted by the owner or declared and accepted by him for the benefit of
another or of another and the owner.
* The person in whom the property vests is called the trustee and he has the trust or legal
ownership and the person for whose benefit the property is so vested is called beneficiary.
He also has the ownership of the same property. The trust and the beneficial ownership
are separate and independent of each other in their designation and disposition both.
4. Legal and Equitable Ownership:
* This division of ownership is recognized in the English law but in India there is no such
division. Salmond observes that equitable ownership of a legal right is a different thing
from the ownership of a equitable right. Law and equity are discordant not merely as to
the existence of an equitable right but also as to the ownership of the rights which they
both recognize.
 5. Vested and Contingent Ownership:
* Ownership is vested or contingent. It is said to be contingent when the owner’s title is
already perfect and it is called contingent when the owner’s title is as yet imperfect but is
capable of becoming perfect in future on the fulfillment of some conditions.
* A vested ownership may co-exist with one or more contingent ownership of the same
property. Two persons may be contingent owners of the same property at the same time
and when the ownership of one of them is vested on the fulfillment of the required
condition, the contingent ownership of the other is destroyed.
6. Absolute and Limited Ownership:
* When in a person all the rights of ownership are vested without any restriction then his
ownership is absolute ownership but when there are limitations on user or duration or
disposal then the ownership is limited ownership.
E. Modes of Acquisition of Ownership:
• The ancient Hindu jurists have written much about the modes of acquisition of ownership.
Narada has given 12 modes of acquisition of the property but all the modes are not for all the
casted and some other modes are open only for particular caste.
• In Roman law, there are similar modes of acquisition of ownership and many of them are still
recognized and some of them exist in a modified form. In modern times, the modes of
acquisition of property may be either of two types i.e., original and derivative.
• Original acquisition of ownership tales place when ownership is acquired by some personal act
on the part of the acquirer. It is of three kinds i.e., absolute, extinctive and accessory. Original
acquisition of ownership takes place when ownership is required by some personal fact on the
part of the acquirer.
• When ownership is acquired by a person by some act on his part which extinguishes the title
of the previous owner it is called extinctive acquisition. In accessory acquisition, the
ownership of a property is acquired which come by way of accession to some existing
property.
• When ownership is derived from a previous owner it is called derivative acquisition. It
includes the acquisition of ownership by inheritance, intestate and testamentary and transfer
inter vivos.
 MODULE 4

Rights and Duties:

A. Introduction:
• Right in the ordinary sense of the term, mean a number of things but it is generally taken into
mean the standard of permitted action within a certain sphere. As a legal term, it means the
standard of permitted action by law and such permitted action of a person is known as his legal
right.
• A legal right is an interest recognized and protected by a rule of legal justice- an interest the
violation of which would be a legal wrong done to him whose interest it is and respect for
which is a legal duty.
• According to Salmond, moral or natural right means an interest recognized and protected by a
rule of natural justice- an interest the violation would be a moral wrong ad respect for which is
a moral duty.
• A man may have a legal right to do some act which may be against morals but this does not
means that the legal rights are always opposed to morals. The ethical or moral views of a
community influence the law in determining the conduct it will protect and all the actions it
will prohibit.
B. Definition of Right:
• According to Austin, right is a faculty which resides in a determinate party or parties by virtue
of a given law which avails against a party or parties other than the party or parties in whom it
resides. According to him, a person can be said to have a right only when another or others are
bound or obliged by law to do something or forbear in regard to him.
• Polland defines legal right as the capacity residing in one man of controlling with the assent
and assistance of the state the actions of another. According to Salmond, a right is an interest
recognized and protected by a rule of right and it is an interest and respect for which is a duty
and disregard of which is wrong.
• According to Duguit and Kelson, there is no such concept as legal right. Duguit says that no
one has any other right than always to do his duty however Kelson also says that there is no
such conception as right in law. Hence they said that there is no definition of legal right.
• In State of Rajasthan v. Union of India, AIR 1977 SC 1361, it was observed that in a strict
sense, legal rights are correlative of legal duties and are defined as interest which the law
protects by imposing corresponding duties on others, but in a generic sense, the word right is
 used to mean an immunity from legal power of another, immunity is exemption from the right
of another and immunity in short is no-subjection.
C. Theories of Right:
There are two main theories of legal right as follows:
1. The Will Theory:
• This theory says that the purpose of law is to grant the individual the means of self-
expression or self-assertion. Therefore right emerges from the human will. The definitions
of rights given by Austin and Holland lay down that the will is the main element of a right.
• Polland and Vinogradoff also define right in terms of will strong support of the theory has
been given by the doctrines of natural right and by the jurists who have made metaphysical
approach to law. Hegel, Kant, Hume and others says that right is meant the power of self
expression or will and the will theory has the greatest support in Germany.
• Duguit criticized this theory on the fact that basis of law is the objective fact of social
solidarity and not the subjective will. The law is to protect only those acts or things which
further social solidarity. He says that the idea of will is anti-social and law does not create
rights from a vacuum but to a great extent it picks and chooses them from the will of the
individuals.
2. The Interest Theory:
• The propounder of this theory is Ihering. He defines legal right as a legally protected
interest. According to him, the basis of right is interest and not will. Hid definition of law is
in terms of purpose.
• In case of rights, the purpose of law is to protect certain interest and not the wills or the
assertions of individuals. The main argument in support of this theory is that interest and
not the will is the basic element of right and there are cases where a person may have rights
without having any will.
3. Conclusion:
• An analysis of both the theories reveals that they are not o much opposed to each other as
they appear to be. On exaggerates the one element and the second the other element. It is
only a synthesis of the two that can give a correct picture. Therefore right means legal
protection and recognition of certain interest as rights.
• It must be noted that these theories about the rights are based not so much on an academic
analysis of the concept of right as on the theories of state and Law. Recognition and
protection by the State are also essential elements of legal rights and without recognition by
the State, a right cannot be a legal right.
• Whether the enforceability is the essence of a legal right or not depends on as to how one
defines law. If law is defined in terms of its enforceability by the courts, the legal rights
also must have this element. In modern times, a considerable body of rules would be
excluded from the law if we adhere to view that enforceability is essential of law.
D. Elements of Legal Right:
There are four elements or characteristics of a legal right as follows:
1. The Subject: It means a person in whom the right is vested or the holder of the right. There
can’t be no right without a subject.
2. The Act or Forbearance: Right relates to some act or forbearance. It obliges a person to act
or forbear in favor of the person who is entitles to the right. It is content of right.
 3. The Object of Right or res concerned: It s the thing in respect of which the right exists or
is exercised. The object may be material or immaterial, determinate or indeterminate.
4. The Person Bound or Person of Incidence: It means the person upon whom falls the
correlative duty.
E. Wider Sense of Legal Right:
• Right is used in wider also. In its wider sense, it includes other legally recognized interest
without considering whether they have a corresponding legal duty or not. Salmond has pointed
out that the term right-duty was often used to indicate relationships which were not in reality
the same. It caused a confusion in legal argument.
• Salmond tried to distinguish these relationships with another to avoid confusion which is
caused due to the use of the terms in various senses. He said that the term legal right in its
generic sense means any advantage or benefit which is in any manner conferred upon aperson
by a rule of law.
• Of right, there are four distinct kinds i.e., right, liberties, power and immunities. Each of these
has its correlative i.e., duties, no rights, liabilities and disabilities. This analysis of Salmond
was carried further by Hohfeld.
• Hohfeld analyzed it with greater accuracy. This has been developed by many other jurist also.
Each term with its correlative is discussed as follows:
1. Claim and Duty: Salmond has used the word right at the place of claim but its use may
create confusion. Therefore the word claim has been used here which indicated what one
can force another to do or to refrain from doing. The person who can so force is said to
have a claim and the person who can made to act or forbear is said to have a duty.
2. Liberty and No Claim: Liberty means what one can do for himself without being
prevented by the law. In the sphere of a person’s activity within which the law leaves him
alone. The opposite of liberty is duty. According to the principle, the correlative of liberty
should be that which is the opposite of claim.
3. Power and Liability: Power is generally defined as an ability on the part of a person to
produce a change in a given relation by doing or not doing a given act. The making of will
or alienating property are examples of such liability. A power may enable one to determine
the legal relations of others. The correlative of power is liability. Liability gives the sense
of being affected by an act of a person who has power to do it.
4. Immunity and Disability: Immunity is defined as a freedom on the part of one person
against having a given legal relation altered by a given act or omission on the part of
another person. It is opposite of liability. Disability means the absence of power. Immunity
is the opposite of liability and disability is the opposite of power.
• The relationships differ in their nature and the field of application but it does not mean that
they are mutually exclusive. A particular legal relationship may sometimes give rise not to a
single right and duty relationships but to a bundle of liberties, powers and other relationships.
F. Rights and Duties:
1. Right-Duty Relationship:
• Rights and duties are the very important elements of law. The administration of justice, in
most part, consists of the enforcement of rights and fulfillment of duties. Rights and duties
are correlated to each other in such a ways that one cannot be conceived of without the
other.
 • A right is always against someone upon whom the correlative duty is imposed. A duty is
always towards some in whom the correlative right vests. The duties which are always
correlated with a right are called relative duties.
2. Austin’s View:
• Austin who supports the right-duty relationship says that there are four kinds of absolute
duties i.e., duties not regarding persons, duties owed to persons indefinitely, self-regarding
duties and duties owed to the sovereign.
• This view taken by Austin is not a correct view though it is admitted that relationship
between the State and the citizen does not stand on the same footing as the relationship
between a citizen and a citizen and depends more on the nature of the state than on
anything else.
• In democratic countries, a citizen has a right against the State and the State has the right
against the citizens and thus Austin’s theory does not stand true in modern times.
G. Classification of Duties:
Generally duties are of following types:
1. Positive Duty: A positive duty implies some act on the part of the person on whom it is
imposed. If a person owes money to another, the former is under a duty to pay the money to
the later and this is positive duty.
2. Negative Duty: A negative duty implies a forbearance on the part of the person on whom it
is imposed. Suppose a person owns land then other are under duty not to make any
interference with that person’s use of the land and this is negative duty.
3. Primary and Secondary Duty: A primary duty is that duty which exist per se and
independent of any other duty and the duty not to cause hurt to any person is a primary duty.
A secondary duty is that whose purpose is to enforce some other duty and if a person causes
injury to another then the former is under a duty to pay damages to latter which is a
secondary duty.

H. Classification of Rights:
Legal rights may be classified as follows:
1. Antecedent and Remedial Rights: They are known by other names also such as primary
and secondary rights or principal and secondary rights. Pollock calls them as substantive and
adjective rights. When a right exists independent of any other right and for its own sake, it is
an antecedent right. When another right is joined to it then so joined right is called as
remedial right. Suppose “A” has a right that no one should defame him. It is an antecedent
right but if someone defames “A” then he has right to receive damages from him which is a
remedial right.
2. Perfect and Imperfect Rights: A perfect right means a right which has a correlative duty
that can be legally enforced. An imperfect right is that right which although recognized by
law is not enforceable such as rights barred by time.
3. Positive and Negative Rights: Like positive and negative duties, the rights are also positive
and negative. A positive right is that right which has a correlative positive duty. The scope of
negative right is only that the person having the right shall not be harmed.
4. Rights in rema and Rights in personam: Rights are again divided as rights in rem and
rights in personam but these terms do not appear to be simple. The rights in rem means a
 right available against the whole world or against people in general but a right in personal is
available against a definite person or persons.
5. Proprietary and Personal Rights: Proprietary rights means a person’s right in relation to
his property whereas personal rights are rights relating to status and that arising out of
contract. The aggregate of a person’s proprietary rights constitutes his property or estates.
The aggregate of a man’s personal rights constitutes his status. The proprietary rights are
valuable and personal rights are not valuable.
6. Rights in re propria and Rights in re aliena: This classification is more or less a
classification of the proprietary rights. The rights in re propria means the rights in one’s own
things and rights in aliena are the rights in the things of others. Rights in re aliena arise when
a person’s right in his property becomes subject to another person’s right in the same
property.
7. Vested and Contingent Rights: A right is a vested right when all the facts happening or not
happening of which it is necessary to create or vest the right have happened or not happened.
If only some of such facts have occurred then the right is a contingent right. A contingent
right does not create an immediate interest and can be defeated when the required facts have
not occurred.
8. Legal and Equitable Rights: The rights recognized and enforced by the common law courts
were known as legal rights and the rights recognized and enforced by the Chancery Courts
were known as the equitable rights. In India, there is no such division of the rights as legal
and equitable.
I. Conclusion:
• Sir Henry Maine has pointed out that legal rights and duties have special significance in
jurisprudence as status of a person is determined in the basis of rights and duties. Status is a
legal condition in which rights and duties are imposed by operation of law as distinct from a
condition in which they are acquired by person’s own voluntary acts. Status being conferred
on a person by law, cannot be deprived of it by other persons.
• According to Dicey; infancy, guardianship, legitimacy, insane and curator, etc are some
examples of legal status. It may be stated that different kinds of rights and duties should be
analysed in the context of the law under which they are created and protected.
• The dimension of legal rights varies due to varieties of juristic personality. The inquiry into
the nature of juristic personality is therefore supplementary to the determination of legal right.

PERSON:
A. Introduction:
• Personality is a very vague and wide term and it has a variety of meanings. It is derived from
the Greek word persona. Personality in the philosophic sense means the rational substratum of
a human being.
• In law, personality means a right and duty bearing unit. Personality should be distinguished
from humanity. Humanity means only the natural human beings but personality has a technical
meaning and it includes inanimate objects also. Thus personality is wider than humanity.
• Persons are of two kinds i.e., natural and legal. Natural persons means human beings whereas
legal persons mean being and things which are treated as persons by law. Thus legal person
includes those things which are treated in the same way as human beings for the legal purpose.
B. Natural Persons:
• All human beings are not legal persons. In olden says, slaves were not considered legal
persons. They were treated as chattel of their masters. In ancient times, in some societies, the
persons declared outlaws were not considered as persons in the eye of law and therefore to kill
them was not homicide.
• Lunatics and infants have only a restricted legal personality and they do not have many of the
civil rights. The legal personality granted to human beings begins at birth and ends with the
death. When a child is born alive, he is considered to be a person in the eye of law.
• The rights are generally created at birth and they extinguish at death but the law in certain
matters recognizes and protects the desires and interest of the deceased. There are three rights
in his respect i.e., about the deceased’s body, his reputation and his estate.
• Animals are not persons in the eye of law and therefore they are not the subjects of legal rights
and duties. In ancient times, animals for some purposes were treated as persons. In modern
times, no legal system recognizes animals as persons, They have no rights and liabilities.
• The human acts which are considered by law as wrongs against the animals are not wrong
against the animal but are wrongs against either the person who owns that animal or against
the society.
• In Lalla Pd. v. Brahmanand, AIR 1953 All 449, it was held the in India, cruelty against
animals is an offence but this duty is not a duty towards the animals but instead it is a duty
towards the society or the state.
• According to Salmond, there are four meaning of the word status i.e., legal condition of any
kind whether personal or proprietary, personal legal condition excluding proprietary relations,
personal capacities and incapacities as opposed to other elements of personal status,
compulsory as opposed to conventional legal systems.
• According to Austin, the complex of rights and duties or capacities and incapacities which
specially affect a narrow class are termed as status. Dr. Allen says that status may be described
as the fact or condition of membership of a group of which the powers are determined
extrinsically by law, status affecting not merely one particular relationship but being a
condition affecting generally though in a varying degree a member’s claim and power.
• Status is a condition which arises due to membership of a class or group and affects the rights
and duties of the members of that class. The general principle of status is that when created y
the law of one country, it is or ought to be judicially recognized as being the case everywhere
all over the world over.
• Capacity means the rights and powers of a person by virtue of which of his being at a
particular position. A person may have many capacities. A person in one capacity cannot enter
into a contract or any other alike legal transactions with himself in his other capacity.
C. Legal Persons:
• Salmond says that a legal person is any subject matter other than a human being to which law
attributes personality. It includes an object, a mass of property, an institution, a group of
human beings, etc. Law treats them as right and duty bearing units or entities like a normal
person. It is by a fiction of law that they are treated as persons,
• The law in creating legal persons personifies some real thing or object and then confers upon it
a fictious personality. Legal personality is attained when law recognizes a single entity over
and above the group of individuals or the thing which though represents the group of
individuals or the thing, is distinct from them.
D. Evolution of Corporate Personality:
• The idea of legal personality can be traced in Roman and ancient Hindu Laws. The ancient
Roman society was undeveloped and its organization was not very complex, therefore the
problem of legal personality did not bother them much.
• According to Ihering, the original doctrine was that the title of the heir related back to the
death of the ancestor but later on there came a change and a theory that the hereditas jacens
represented the ancestor developed.
• In England, there are two main types of juristic persons i.e., Corporation Sole and Corporation
Aggregate. The Corporation sole is defined as an incorporated series of successive persons.
The concept of corporation sole seems to have come into existence somewhat accidentally and
comparatively late.
• Corporation aggregate means an incorporated group of co-existing persons. The personality is
conferred upon groups by law. Apart from corporations, the legal personality has been
conferred upon certain objects ad things also. Certain objects or institutions are also legal
persons.
• Trade unions and friendly societies are not expressly recognized as legal persons however
some protection to the members is given by law on some other principles. The law of contract,
the law of agency and the law of co-ownership come to the rescue of the members.
• In ancient India, like Roman law, the concept of legal personality was not clearly understood
nor there was any necessity for it. The coparcenary system of Hindu law may be considered to
be more or less, a corporation but in modern sense, it cannot be called so.
• Idol was considered to be a juristic person and owned property. A fund dedicated for the
religious purpose was also of the nature of a legal person. State is a juristic person and it can
sue and can be sued.
• Companies, associations and many other kids of groups are legal persons. They have been
expressly so recognized in a number of statute. Companies incorporated in accordance with
the Indian Companies Act are juristic persons. An incorporated company has a separate
existence and the law recognizes it as the legal person separate and distinct from its members.
• Groups such as registered trade unions and friendly societies are also legal entities and they
own properties and suits can be brought in their names. Apart from these, there are
associations, institutions and many kinds of autonomous bodies upon whom the legal
personality has been conferred by statutes.
• An incorporated company or a group recognized as jurictic entity is not necessarily a citizen of
India though all the members constituting it may be Indian Citizens. In S.T Corporation of
India v.Commercial Tax Officer, AIR 1963 SC 1811, it has been held that the State Trading
Corporation, a company registered under the Indian Companies Act,1956 is not a citizen
within the meaning of Article 19 of the Constitution and cannot ask for the enforcement of
fundamental rights granted to citizens under the said article.
E. Advantages of Incorporation:
• The vast growth of corporations in recent years is an evidence of its usefulness. Incorporation
has a number of advantages. The greatest advantage of corporation is that it simplifies and
cheapens the legal proceedings.
• In any dispute with a corporation, a person proceeds against one person only and not against a
number of persons who compose the corporation. Similarly the corporation also sues a single
person only.
 • Incorporation has greatly helped in the development of commerce and industry. A member is
liable only to the extent of his share or to the extent of the amount guaranteed by him if it is a
company limited by guarantee.
• The death of, or withdrawal or transfer of share by a member does not affect the functioning or
the existence of the corporation as it causes in a partnership. It has its own life and existence
which can come to an end only by certain specific defined methods.
• It facilitates the functioning and management of the corporation. Due to incorporation, it is
possible that the whole management is done by one skilled person. This not only keeps the
members free from the botheration but helps n increasing production also.
F. Theories of Corporate Personality:
• There are various theories of corporate personality which have attempted to theorize the nature
and authority of it. The main theories are as follows:
1. Fiction Theory: This theory says that only human beings can properly be called persons.
Some kinds of groups, etc., are regarded as persons for certain purposes only by a fiction of
law and they have no real personality. The main supporters of this theory are Savigny,
Salmond and Dicey. This theory is very popular due as it is not based on any metaphysical
notion or argument.
2. Concession Theory: This theory is allied to the fiction theory and the supporters of both
theories are almost the same jurists. This theory says that corporate bodies have legal
personality only to the extent granted by law. Here law means the state. This theory has
been used in many cases to suppress the autonomous institutions.
3. Bracket or Symbolist Theory: This theory is also known as organic theory. The main
exponent of this theory is Gierke. This theory says that a group has a real will, real mind
and a real power of action. A corporation has all the characteristics which a natural person
has therefore juristic persons are real in the same sense in which human beings are. This
theory is based on the collectivist outlook.
4. Hohfeld’s Theory: This theory says that the members of the corporation are the only
persons who have rights and duties. The granting of juristic personality means putting a
bracket around the members in order to treat them as a unit. This is done for the purpose of
convenience. In modern times, it is agreed on all heads and is fully established that
corporation has a legal personality which is separate and distinct from its members and it
has entirely different rights and duties.
5. Hohfeld’s Theory: This theory is closely related to the Bracket theory and Hohfeld says
that only human beings have rights and duties and corporate personality in merely a
procedural form which is used to work out in a convenient way for immediate purpose, a
complex class of jural relation.
6. Kelsen’s Theory: Kelsen makes an analytical and formal approach to the concept of
personality. He says that for legal purposes there is no contrast between natural and juristic
persons. Personality is always a matter of law. In law personality means the totality of
rights and duties.
G. Problems of Corporate Personality:
• A corporation is in law quite distinct and separate from the members who compose it. Its
rights and liabilities are different for those of the members. A shareholder of a company can
legally enter into a contract with the company as such.
 • In Solomon v. Solomon and Co. Ltd., 1897 AC 22, the House of Lords refused to identify the
company with its shareholder. It was held that he could claim the preferential rights of a
bondholder against the company which was in reality he himself to the detriment of genuine
creditors.
• In People’s Pleasure Park Co. v. Rohleder, 61 SER 794, in this case the question was as to
whether a restrictive covenant that title to land should never pass to a colored person operated
to prevent the transfer to corporation of which all the members were Negroes. It was held that
the transfer to the corporation was valid as a corporation is distinct from its members.
• It is thus clear that courts have not followed any theory consistently and have proceeded the
legal personality to convenience and have proceeded legal personality to convenience and on
the basis of policy. In modern times, the law is very lenient in conferring legal personality
upon groups, but at the same time, it does not hesitate in lifting the veil if it is necessary in the
interest of justice or as a matter of policy.
H. Liability of Corporations:
• Corporations are legal persons which means that they have rights and liabilities. There is no
difficulty in the enforcement of the rights but the liabilities of corporations present very
complicated problems. Generally the liability of corporations is of following types:
1. Liability of Corporations in Contract:
* For entering into a contract, two things are vital i.e., the form of the contract and the
capacity of the parties. A corporation has no material existence, therefore it always acts
through its agent. It signifies its assent through its seal.
* The form of contract is same in every case whether the parties are the natural persons or
one or both parties are corporations. In modern times, there is no common law in India
regarding the entering into a contract by a corporation therefore the power of corporation
to enter into a contract depends upon the statute.
2. Liability of Corporation for Torts:
* A corporation acts always through its agents. The liability of a corporation for the torts is
based on the principle of vicarious liability. A corporation is liable for the acts of its
servants done in due course of employment.
* As far as the acts done without any authority from the corporation are concerned, the
corporation is not liable for these acts. Goodhart’s view is that corporation is liable. In
America, this view has been rejected and Winfield says that corporation is liable as a joint
tortfeasor.
3. Liability of Corporation for Criminal Acts:
* The earlier view was that a corporation cannot be made liable for a crime. In England, the
procedural difficulties have been removed by statutes and theoretical difficulties have
been overcome partly by statutes and partly by court decisions on this point.
* In recent years, corporations have been held criminally liable for the criminal acts done
by the persons acting on behalf of the corporation. In D.P.P v. Kent and Sussex
Contractors Ltd., (1944) KB 146, the manager of the company had sent in false returns
for the purpose of obtaining petrol coupons. It was held by the court that the company
was liable as the company was found to have committed the offence through the manager.

COMPARATIVE LAW:
A. Introduction:
 • Comparison is an important source of knowledge and understanding. It is said to be a
technique, a discipline, an implementation and a method by which the values of human life,
relations and activities are known and evaluated.
• The importance of comparison has received recognition in all quarters and by everybody in the
field of study and research. Its worth is reflected in the works and writings of the scientists,
historians, economists, politicians, jurists and other engaged in investigations and research
activities.
• The various contributions of legal thinkers and writers is by all means the results of their
comparative approach. As Jurisprudence is regarded as the science of law, its essential feature
is that it is a particular method of study, not the law of one country but the general notions of
law itself.
• This approach in the field of study of law has given rise to a new branch of legal study, which
is called by the name of Comparative Law and which sets out a method of studying laws of
different nations in a comparative manner.
B. Definition of Comparative Law:
• A good number of writers have made attempts to define the term comparative law but most of
them have only highlighted the purpose and functions of comparative law. In fact, comparative
law is a subject of recent origin and growth and there are many controversies regarding its
nature.
• According to Levy Ullman, comparative law has been defined as a branch of legal science
whose subject it is to bring about systematically the establishment of closer relations between
the legal institutions of different countries.
• Holland defines it as law that collects and tabulates the legal institutions of various countries
and from the results thus prepared the abstract science of jurisprudence which is enable to set
forth an orderly view of the ideas and methods which have variously been realized in actual
systems.
• Julious Stone remarks that comparative law seeks to describe what is common and what is
different in different legal system or to seek a common core of all legal systems. Sir Henry
Maine says that the chief function of the comparative jurisprudence is to facilitate legislation
and the practical improvement of law.
• Salmond points out that what is known as comparative jurisprudence namely the study of the
resemblance and difference between different legal system is not a separate branch of
jurisprudence which coordinate with the analytical, historical and ethical but it is merely a
particular method of that science in all its branches.
• Randal observes that the comparative legislation is in the nature of subterfuge, seems to have
been devised in order to emphasize the practical as opposed to the academic aspect of
comparative legal research and stress upon the two features of the results which may be
obtained by the use of comparative method.
C. Nature of Comparative Law:
• Comparative law, in its most simple sense, denotes a method of study and research, by which
laws and legal institutions of two or more countries are compared. It is concerned with the
examination of the contents of different legal systems in their answer to the solution of various
legal problems. It is a technique by which certain ends can be achieved by looking to the laws
of various nations in comparison with one’s own laws.
 • Comparative law is not a subject but a method of study. It is regarded as a process of studying
foreign laws in comparison with local laws. Its work is to ascertain the differences and
similarities in the legal rules, principles and institutions of two or more countries with a view
to provide solutions for local problems.
D. Origin/History of Comparative Law:
• Comparative law as it is understood today is definitely a modern character but there is no
doubt about the fact that even in very ancient time there was a tendency to look into the laws
of other countries.
• Roman Law did not provide any incentive to the development of the comparative law as it was
not the result of any process of comparison with foreign law. The Corpus Juris Civilise which
represented Roman lawn contained utterances of the emperors and also the edicta issued
directly by them as head of the State or the answers returned by the emperors when consulted
on questions of law by the parties in a suit or by magistrates.
• According to the Romans, the law which a people enacts is called the civil law of that people,
but that which natural reason appoints for all mankind is called the Law of Nations as all
nations use it.
• In England, Montesquieu is regarded as the founder of comparative law as he was the first to
realize that rule of law should not be treated as abstraction but must be regarded against a
background of the history and of the environmental in which it is called upon the function.
• In America, there was total hostility towards anything which was associated with English Law.
Accordingly, American legal system completely ignored the study of English law however
they did take a little support from the French legal system.
• The twentieth century marks the realization that the policy of legal isolationism is not a good
policy ad is not conclusive to the growth of a unified law. In recent years various institutes
have been established for the purpose of carrying on the research.
E. Classification of Comparative Law:
1. Prof. Lambert’s Classification:
• Prof. Lambert classifies Comparative Law under three heads i.e., descriptive comparative
law, comparative legal history and comparative legislation. Descriptive comparative law is
the inventory of the systems of law of the past and recent as a whole as well as of the
individual rules with these systems established for the several categories of legal relations
and lays downs the difference between the law of two or more legal systems.
• Comparative legal history seek to bring out by the establishment of a universal history of
law, the rhythms or natural laws of the succession of social phenomena, which direct the
evolution of legal institution.
• Comparative legislation or comparative jurisprudence tries to describe the common trunk
on which the recent national doctrines of law are destined to graft themselves as a result
both of the development of the study of law and of the awakening of an international legal
consciousness.
2. Wigmore’s Classification:
• Wigmore divides comparative law under three heads i.e., comparative nomoscopy,
comparative nomothetics and comparative nomogenetics. Comparative nomoscopy
ascertains and describes other systems of law as facts. It is concerned with the formal
description of law in different legal systems.
 • Comparative nomothetics seeks to ascertain the politics and relative merits of different
institutions with a view to amend the laws. Comparative nomogenetics traces the evolution
of various systems in their relation to another in chronology.
3. Kaden’s Classification:
• Kaden classidies Comparative law as formal comparison and dogmatic comparison. Formal
comparison denotes the comparative investigation of the sources of law and the application
of different methods of legal techniques in such respects as the interpretation of statutes.
• Dogmatic comparison is concerned with different solutions of a problem in different
systems of law. This method ascertains the application of the results of comparison in the
legal problem of a country.
4. Kantoroicz’s Classification:
• He classifies comparative law as geographical comparative law, material comparative law
and methodical comparative law implies the parallel investigation of the general structure
of the law in several systems.
• Material comparative law is the comparative investigation of the rules relating to a given
subject-matters. Methodical cooperative law is that of the process which is not purely
analytical but leads to a systematic view of the subject-matter.

5. Max Rheinstein’s Classification:

• Rheinstein has given two classification i.e., macro-comparison and micro-comparison.
Marco-comparison according to him is concerned with comparison of entire legal systems.
Micro-comparison is concerned with the detailed legal rules and substitutions of two or
more legal systems.
6. Gutteridge’s Classification:
• He classified comparative law as descriptive comparative law and applied comparative law.
Descriptive comparative law is concerned with the description of different legal facts as
found in different countries. The main function of descriptive comparative law is to state
only the divergences between the two or more system to an individual legal problems.
• Applied comparative law is concerned with the examination of the legal facts with the
purpose of obtaining the results. It is worthy of being dignified as legal research as it lays
down the conclusions, drawn from the comparison of different legal facts after making
proper analysis and careful study.
F. Values and Purposes of Comparative Law:
The utility, value and purposes of comparative law is given as follows:
1. Better Understanding of Law:
• The most important and widely accepted objective of Comparative law is that it increases
the knowledge and understanding of a person of the law and legal system of his own
country.
• By comparing the legal rules of his own country with other systems f law, it is possible for
him to evaluate the principles of his own country’s legal system and thereby to understand
them clearly.
• Lord Macmillan has also advocated the importance of studying other systems of law by
saying that it has always seemed to him that to learn other systems of law is like learning
another language.
 2. Aid to Legislature and other Law-Reform Agencies:
• Comparative law helps the legislature and other agencies in the process of making social
and legal reforms in the interest of their people and society by enacting new laws and
modifying and repealing current laws. This method has the advantage of utilizing foreign
achievements and experiences in the existing legal systems of a particular territory.
• Sir Henry Maine remarks that it would be universally admitted by competent jurists that if
not the only function, the chief function of comparative jurisprudence is to facilitate
legislation and the practical improvement of law.
3. Help to Courts of Law:
• Comparative law is useful for solution of cases which cannot possibly be decided by a
court in the absence of local law. It fills up the gap left by the statute or judicial precedent
by providing an answer to a problem with reference to the established practices of a foreign
trade. The question of foreign law in such cases is indeed a devise to influence a mind of a
judge to come to a proper decision.
• Though the rule of law of a foreign country cannot be authoritatively be applied, yet they
can persuade a judge to form an opinion in order to justify his decision. Foreign law does
not command but guides a Judge sitting in a court to do justice.
4. Help to Practicising Lawyers:
• Comparative law is of great practical utility to the lawyers in the pursuit of their legal
profession. A lawyer who studies the law of other countries is greatly profited in his
professional career and for winning the case of his client.
• A lawyer who is conversant with foreign law can probably conduct a case wherein a
foreign matter or law is involved. A practicing lawyer who has sufficient knowledge of
foreign law can also be engaged to conduct a case in a foreign country. The comparative
lawyer can also be engaged by businessmen, traders, corporations and others who deal in
international trade and commerce.
5. Utility in Foreign Trade and Economic Relations:
• The utility of comparative law has been recognized in truth in the field of international
trade and commerce. With the introduction of liberalization and globalization policy n most
of the countries of the world, it is essential for all doing foreign trade to keep themselves in
touch with the law of the country with which they deal.
• The knowledge of foreign commercial law helps every State and its peoples in the
business. The comparative method of study for them is a boon and with its help they can
safely guard the interest of their people and provide them all necessary help in promoting
foreign trade and commerce.
G. Weakness of Comparative Law:
The important weakness of comparative law are as follows:
1. A Difficult Process: The process of comparison is very difficult one and it requires special
kind of aptitude, training and qualifications.
2. Non-Availability of Materials: The structure of comparative law is built on the nature of
law and legal institutions of the countries to be compared with. It may not difficult to obtain
the rules of domestic laws but the collection of foreign rules in authoritative form in the own
may be a problem particularly the foreign rules of judicial precedents, customs and opinion
of the experts.
3. Lack of Experts: The work of comparison can only be done by those persons who are
experts in the field under study. It not only requires knowledge and understanding of foreign
law under investigation but an approach, aptitude, learning and training which everyone
cannot possess. Experts with such requisite qualifications are very few as it is evident from
the fact of the availability of scanty literatures in the spheres of comparative law.
4. Language Difficulty: Another reason which has made comparative study a difficult process
is the problem of language of its own, both in speech as well as in writing. The comparative
expert cannot perform his duties properly if he does not possesses sufficient knowledge of
the language of the countries under comparison.
5. No Standard Technique of Comparison: The most ostensible weakness of comparative
law is that it does not provide any standardized technique in its process. When two or more
comparative scholars are required to compare the same legal systems, their technique
approach differ.
6. Misleading Results: Comparative law has an important vice to give misleading results
because of varied social, economic, political and legal conditions in the countries under
study. The comparative lawyer cannot always look into the internal situation of a foreign
country and his task is to compare the contents of law, as available.