English Jurisprudence Ej Imp

LL.
B
Part-II + III
ENGLISH JURISPRUDENCE
LISALs
Leaders Institute of Social,
Administrative and Legal Studies
Sir Faisal Awais

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Table of Contents
WHAT IS JURISPRUDENCE? DISCUSS IN DETAIL VARIOUS KINDS OF JURISPRUDENCE
...................................................................................................................................................................... 4
WHAT IS JURISPRUDENCE? DISCUSS IN DETAIL ITS PRACTICAL VALUE OR SCOPE..... 7
WHAT IS JURISPRUDENCE? DISCUSS IN DETAIL DIFFERENT SCHOOL OF
JURISPRUDENCE? ................................................................................................................................. 13
WHAT IS JURISPRUDENCE? DISCUSS IN DETAIL THE DIFFERENCE BETWEEN
HISTORICAL AND ANALYTICAL JURISPRUDENCE. .................................................................. 17
DISCUSS IN DETAIL THE RELATIONSHIP OF JURISPRUDENCE WITH OTHER SOCIAL
SCIENCES?............................................................................................................................................... 21
DISCUSS THE ORIGIN OF ADMINISTRATION OF JUSTICE AND WHAT ARE THE
REASONS FOR ITS GROWTH? ........................................................................................................... 24
DISCUSS IN DETAIL VARIOUS SOURCE OF LAW ........................................................................ 29
DISCUSS IN DETAIL LEGISLATION AS A SOURCE OF LAW .................................................... 38
WHAT IS LEGISLATION? DISCUSS ITS ADVANTAGES OVER PRECEDENT? ...................... 43
PRECEDENT AS A SOURCE OF LAW ............................................................................................... 47
WRITE A DETAILED NOTE ON THE FOLLOWINGS: OBITER DICTA (BY THE WAY
REMARKS) AND RATIO DECIDENDI (THE RATIONALE FOR THE DECISION) .................. 52
DISCUSS IN DETAIL, CUSTOM AS A SORCE OF LAW ................................................................. 58
DEFINE LEGAL RIGHTS? WHAT ARE ITS KINDS? ...................................................................... 63
DEFINE LEGAL RIGHT WHAT ARE THE ELEMENTS OF LEGAL RIGHT? ........................... 70
DEFINE OWNERSHIP AND ITS ASPECTS........................................................................................ 75
DEFINE POSSESSION. WHAT ARE ITS ELEMENTS? DISCUSS THE MODES OF
ACQUISITION OF POSSESSION? ....................................................................................................... 80
DEFINE QUESTION OF LAW AND FACT AND ALSO DISCUSS ITS TRANSFORMATION? 85
DEFINE RULES OF INTERPRETATION OF STATUTE? ............................................................... 89
DISCUSS DIFFERENT THEORIES OF PUNISHMENT OF DETAIL? .......................................... 93
DEFINE EVIDENCE. WHAT ARE DIFFERENT KINDS OF EVIDENCE? ................................... 98
DEFINE EVIDENCE? WHAT ARE DIFFERENT RULES OF PROBATIVE FORCE
EVIDENCE? ........................................................................................................................................... 104
SUBSTANTIVE LAWS AND PROCEDURAL LAWS ...................................................................... 109
NATURAL THEORY OF LAW ........................................................................................................... 132
LEGAL POSITIVISM............................................................................................................................ 137
PURE THEORY OF LAW .................................................................................................................... 142
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AMERICAN LEGAL REALISM ......................................................................................................... 146
CRITICAL LEGAL THEORY ............................................................................................................. 148
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WHAT IS JURISPRUDENCE? DISCUSS IN DETAIL VARIOUS KINDS
OF JURISPRUDENCE
1. INTRODUCTION
Where there is a systemize branch of knowledge its science comes into existence,
since law is a systemized branch of knowledge, it is a science. The name of the science is
Jurisprudence. This word has its roots in the Latin word "Jurisprudentia". Juris means law
and prudentia meaning knowledge. Thus, jurisprudence is knowledge of law or skill in
law. It is the `science of legal principles and philosophy of law which includes the entire,
system of legal doctrine.
2. DEFINITION OF JURISPRUDENCE
In the words of Austin Jurisprudence is concerned with positive law i.e.
"positivism" which means that laws are commands. The second- meaning is that the, law
as "it is" actually laid down has to be kept separate from the law that "ought to be".
3. KINDS OF JURISPRUDENCE
The jurisprudence has been classified as under:
I. Analytical Jurisprudence.
II. Historical Jurisprudence.
III. Ethical Jurisprudence.
4. EXPLANATIONS
I. Analytical jurisprudence
It analyses the prevalent law, that is, the principles of law as these exist
now. It also studies theory of legislation, precedent and customs and study of
different legal concepts such as property, possession, trust, contract, negligence
etc.
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➢ Scope of Analytical jurisprudence
It analysis the basic principles of civil law, it does not pay any attention to
the evolutionary process and their Ethical aspects that is whether they are good
piece of law or bad one. We can say that analytical jurisprudence does not
consider the historical and ethical aspects.
Its scope can be underlined as given below:

a) An analysis of the law
b) Treatment of a complex idea or concept in its elementary sub-divisions
c) Examination of the relations between civil law and other forms of law
d) A study of the legal source of law
e) An investigation of the theory of legislation, precedent and custom
f) Classification of the different sub-divisions of corpus jurist or the entire

body of law with reason therefore
g) A treatment of rights, their kinds and classes, their creation, transfer and
extinction
h) Dealing with legal liability, its kinds, extent and incidence
i) To investigate such legal concepts as property, possession, trust, contracts,

persons, acts, intention, motive, negligence. etc.
II. Historical jurisprudence

Its studies history of law and evolution of law over a period of time and
also amendments, introduction of new principles of law.
➢ Scope of Historical Jurisprudence

It studies the principles of law in their origin and developments that take
place over a period of time. We can say that it gives the past history of important
existing legal conception and principles of a particular system. For instance, the
origin and development of the nature of private property, of individual
ownership, of contract, etc. The object of historical jurisprudence is to vindicate
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the earliest of mankind as they are reflected in ancient law and to point out their
relation to the modern thought. This branch is not the same thing as legal history.
III. Ethical jurisprudence

It deals with the law that should be in an ideal state. It lays down the
different purposes which should be fulfilled in an ideal state. It studies the
modifications in the existing law in order to achieve these purposes and objects.
The main object of ethical jurisprudence is the attainment of justice.
➢ Scope of Ethical Jurisprudence

Ethical jurisprudence deals with the law in the ideal state as it should be.
Law exists to fulfil certain purposes. It is for this branch of jurisprudence to lay
down what those purposes are and whether these are fulfilled by the law existing
at any given time. It considers the modifications necessary in the existing law so
that it may fulfil the objects for which it exists. The other two branches are
concerned with an analysis of the law as it is or as has been without being
concerned with its adequacy or in-adequacy. Ethical jurisprudence has as its
object the attainment of justice. It strives to bring the principles of the law to such
a form that they serve best that end.
5. CONCLUSION
Jurisprudence can be described as the wisdom, knowledge or the mind of law.
Without adequate knowledge of jurisprudence, no perfect interpretation of law can be
made. In fact, process of law making encompass many steps for inclusion of
jurisprudence in order to keep legislation within required perspective.
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WHAT IS JURISPRUDENCE? DISCUSS IN DETAIL ITS PRACTICAL
VALUE OR SCOPE.
1. INTRODUCTION:
The study of jurisprudence started with the Romans. The definitions gives by the
Roman jurists are vague and inadequate. Jurisprudence in its nature is entirely a
difference subject from other social sciences. The reason for this is that it is not codified
but a growing and subject. The jurisprudence has no limited scope being a growing
subject. Jurisprudence is the name given to a certain type of investigation into law
“Jurisprudence is as big as law - and bigger”
Actually, it means elucidation of the general principles upon which actual rules of law are
based. It is a mansion having many rooms in it as it is as much interested in diversity as
in uniformity.
2. LITERAL MEANINGS:
The word jurisprudence is derived from the Latin word “jurisprudentia” which
means “knowledge of law”- “Juris” means law and “prudentia” means skill or
knowledge. Thus, jurisprudence signifies knowledge of law and its application.
3. NATURE OF JURISPRUDENCE:
There is difference of opinion about the nature of jurisprudence. It is called both
art and science. But to call it science would be more proper and useful. The reasons for
this are that just as in science we draw conclusions after making a systematic study by
investing new methods.
4. SCOPE OF JURISPRUDENCE:
According to justice P.B.Mukherjee: ,” Jurisprudence is both an intellectual and
idealistic abstraction as well as behavioral study of man in society. It includes political,
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social, economic and cultural ideas. It covers that study of man in relation to state and
society.”
There is no unanimity of opinion regarding the scope of jurisprudence. It may be
discussed under the following three heads.
(a)Early Period:
In the early period, jurisprudence has been so defined as to cover moral and
religious percepts also and that has created confusion.
(b)Austinian Period:
It was the Austin, who distinguished law form morality and theology. So the
scope of jurisprudence was limited to the study of the concept of positive law only.
(c)Modern Period:
At present, there is a tendency to widen the scope of jurisprudence. It includes all
concepts relating to human order and human conduct in state and society.
5. CONTENTS OF JURISPRUDENCE:
The following are the contents of jurisprudence: -
(a) Sources:
It is true that the basic features of a legal system are mainly to be found in its
authoritative sources. Under this head matters such as custom, legislation, precedent as a
source of law, prose and cone of codification of laws, methods of judicial interpretation
and reasoning, an inquiry into the administration of justice etc., are included for study.
(b) Legal Concepts:

Jurisprudence includes the analysis of legal concepts such as rights, title, property,
ownership, possession, obligations, acts, negligence, legal personality and related issues.
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(c) Legal theory
Legal theory is concerned with law as it exists and functions in the society. It is
therefore necessary that while analyzing legal concepts, and effort should be made to
present them in the background of social developments and changing economic and
political attitudes.
6. AUSTIN’ S DEFINITION OF JURISPRUDENCE:

Austin defines jurisprudence as “The philosophy of positive law” positive law
laid down by a political superior for controlling the conduct of those subjects to his
authority.
(a)Divisions of Jurisprudence by Austin:

Austin divided the jurisprudence into following:
(i) General Jurisprudence
(ii) Particular Jurisprudence
General Jurisprudence includes such subject or ends of law as are common to all
systems. Particular Jurisprudence is the science of any actual system of law or any
portion of it.
7. SALMOND’ S DEFINITION:
Salmond defines Jurisprudence as “The Science of Law”. By law he means the
“law of the land” Or “civil law”. Salmond uses the term Jurisprudence is two senses.
(i) Generic sense:

Generic jurisprudence includes the entire body of legal doctrines. In that sense,
jurisprudence is of 3 kinds.
(a)Expository or Systematic Jurisprudence:

It deals with the contents of an actual legal system as existing law at any time.
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(b)Legal History:
It deals with the history of development of law.
(c)Science of legislation:
The purpose of the science of legislation is to set forth law as it be.
(ii) Specific Sense:

Specific jurisprudence deals with a particular department of legal doctrines. In
this sense, it is also called theoretical or general jurisprudence. it is also defined as “the
science of the first principal of the Civil Law.”
In this sense, he divides the subject into 3 branches:

(a) Analytical Jurisprudence
(b) Historical Jurisprudence
(c) Ethical Jurisprudence
8. BRANCHES OF JURISPRUDENCE:
Jurisprudence can be divided into three branches.
(a) Historical Jurisprudence:
Historical jurisprudence deals with the general principles governing the origin and
development of law, with influences that affect law, with the origin and development of
those legal conceptions and principles.
(b) Analytical Jurisprudence:
Analytical jurisprudence analyses the first principles of law as they exist in a legal
system.
(c) Ethical or philosophical jurisprudence:
It deals with the first principles of ethical significance and adequacy of law.
9. DEFINITION OF JURISPRUDENCE AT PRESENT STAGE:
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The term jurisprudence may be described as any thought or writing about law and
its relation to other disciplines such as philosophy, economics, anthropology and many
others.
10. IMPORTANCE AND UTILITY

OF JURISPRUDENCE:
Jurisprudence in basically a theoretical subject but it also has a
practical and educational value. The enumerated as under.
(a) Remove the complexities of law:

One of the tasks of jurisprudence is to construct concepts and make law more manageable
and rational.
(b) Answers the new problems:
Jurisprudence can teach people to look around them and realize that answers to new legal
problems must be found by a consideration of the present social needs and not in the
wisdom of the past.
(c) Grammar of Law:
Jurisprudence is the grammar of law. It throws light on the basic ideas and the
fundamental principles of law e.g., negligence, liability etc.
(d) Great educational value:
Jurisprudence has great educational value. The logical analysis of legal concepts widens
the outlook of lawyers and sharpens their logical technique. It helps in knowing and
grasping the language, grammar, the basis of treatment and assumption upon which subject
rests.
(e) Useful in Art of pleading and legislation:
It helps legislators and the lawyer the proper use of legal terminology. It relieves them of
the botheration creation of defining again and again certain expressions e.g., right, duty etc.
(f) To Interpret law:
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It helps the judges and the lawyers in ascertaining the true meanings of the law passed by
the legislatures by providing the rules of interpretation.
(g) To study foreign law.
It enables a lawyer to study foreign law because the fundamental principal is generally
common to all systems of law.
(h) Importance under the light of different jurists:
By Dr. M.J Sethna: The value of jurisprudence lies in examining the
consequences of law and its administration on social welfare and suggesting changes for
the betterment of the superstructure of laws.
By M. Dias: The study of jurisprudence is an opportunity for the lawyer to bring
theory and life into focus, for it concerns human thought in relation to social existence.
11. CONCLUSION:
To conclude, I can say, that jurisprudence is the science of law and there
are different methods of approach to it. The true purpose of the study of
jurisprudence should not be confined to the study of positive law alone but
must include normative study, that deal with the improvement of law in the
context of prevailing, socio-economic and political philosophies of time, place
and circumstances.
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WHAT IS JURISPRUDENCE? DISCUSS IN DETAIL DIFFERENT
SCHOOL OF JURISPRUDENCE?
1. INTRODUCTION:
The study of jurisprudence started with the Romans. In the start, the word
jurisprudence was not generally used in other languages, that’s why it has different
meanings. As the evolution of jurisprudence is dynamic in nature therefore it is difficult
to explain it.
2. MEANING OF JURISPRUDENCE:
i. Derivation of jurisprudence
Jurisprudence is derived from a Latin word “jurisprudentia” which means either
knowledge of law or skill in law.
ii. Jurisprudence in French:
In French, the word “Jurisprudence” refers to something like “case law”.
iii. Jurisprudence in English:
In English, “Jurisprudence” means a little more than “the study of law or skill in
law”.
i. According to Ulpian:
Jurisprudence is the knowledge of things divine and human, the science of just
and unjust.
ii. According to T.E. Holland:
Jurisprudence is the formal science of positive law.
iii. According to Keeton:
Jurisprudence means the study and systematic arrangement of the general
principles of law.
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As the nature of jurisprudence is dynamic, therefore it is difficult to explain it. It
has different views which are called schools of jurisprudence.
5. SCHOOLS OF JURISPRUDENCE:
Following are the schools of jurisprudence but each of them alone can’t explain it
in detail:
i. Analytical school of jurisprudence
ii. Historical school of jurisprudence
iii. Sociological school of jurisprudence
iv. Ethical school of jurisprudence
v. Scandinavian school of jurisprudence
6. ANALYTICAL SCHOOL OF JURISPRUDENCE:

i. Main exponents:
a. Jeremy Bentham
b. John Austin
ii. View of analytical school:
This school is of the view that the science of jurisprudence is concerned with
positive law, with “laws strictly so-called”.
iii. Analytical school and legal positivism:
The view of analytical school is that the law is a general command issued by
sovereign and backed by sanction.
iv. Criticism on analytical school:
It has not reflection for the subjects rather it is a “gunman theory”.
7. HISTORICAL SCHOOL OF JURISPRUDENCE
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i. Main exponents:
a. Baron De Montesquieu
b. F K VON Savigny
ii. View of historical school:
Jurisprudence is the body of general principles governing the origin and legal
development of law.
It is based on the history and customs.
iii. Customs and historical school:
According to the historical school, customs are typical law and therefore it is an
authentic school of thought.
iv. Criticism on historical school:
Customs are not the same. They vary from country to country and have no legal
force of law.
v. Difference between analytical and historical school of thoughts:
According to historical school law is not made by sovereign on the other hand
according to the analytical school, law is made by political sovereign.
8. SOCIOLOGICAL SCHOOL OF JURISPRUDENCE:

i. Main exponents:
a. Henry Main
b. Auguste Comte
ii. View of sociological school:
The center of gravity of law lies on neither in legislation nor in jurists and nor on
decisions of the judges. But it is on society itself.
iii. Agreements and sociological school:
According to sociological school of thought agreements are the source of law.
iv. Criticism on Sociological School:
It gives a narrow study of law which is based on society and agreements.it
excludes the other elements.
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9. ETHICAL OR PHILOSOPHICAL SCHOOL OF
JURISPRUDENCE:
i. Main Exponents:
a. Hugo Grotius,
b. Immanuel Kant
ii. View of ethical school
In ethical jurisprudence it has tendency to for ethics and law to overlap itself in
the highest stage of their development.
iii. Criticism on ethical school:
Ethics regulates the inner life of men but law regulates the external life of men.
They are quite weak as a check on society.
10. SCANDINAVIAN SCHOOL OF JURISPRUDENCE:

i. Main Exponents:
❖ Hagerstrom
❖ Olivecrona
ii. View of the School:
Reality can be discovered and analyzed by investigating of the fundamental facts
of the legal system. Metaphysical speculation should be rejected.
iii. Criticism on Scandinavian School:
The importance of metaphysical speculation can’t be avoided. This school is mistaken on
the point.
11. CONCLUSION
Jurisprudence is dynamic in nature there for it is difficult to fully explain the
jurisprudence they have different views these different views known as school of
jurisprudence.
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WHAT IS JURISPRUDENCE? DISCUSS IN DETAIL THE
DIFFERENCE BETWEEN HISTORICAL AND ANALYTICAL
JURISPRUDENCE.
1. INTRODUCTION:
The study of jurisprudence started with the Romans. In the start, the word
jurisprudence was not generally used in other languages that’s why it has different
meanings. As the evolution of jurisprudence is dynamic in nature therefore it is
difficult to explain it.
2. MEANING OF JURISPRUDENCE:
i. Derivation of jurisprudence
Jurisprudence is derived from a Latin word “jurisprudentia” which means either
knowledge of law or skill in law.
ii. Jurisprudence in French:
In French, the word “Jurisprudence” refers to something like “case law”.
iii. Jurisprudence in English:
In English, “Jurisprudence” means a little more than “the study of law or skill in
law”.
i. According to Ulpian:
Jurisprudence is the knowledge of things divine and human, the science of just
and unjust.
ii. According to T.E. Holland:
Jurisprudence is the formal science of positive law.
iii. According to Keeton:
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Jurisprudence means the study and systematic arrangement of the general
principles of law.
As the nature of jurisprudence is dynamic, therefore it is difficult to explain it. It
has different views which are called schools of jurisprudence.
5. SCHOOLS OF JURISPRUDENCE:
Following are the schools of jurisprudence but each of them alone can’t explain it
in detail:
vi. Analytical school of jurisprudence
vii. Historical school of jurisprudence
viii. Sociological school of jurisprudence
ix. Ethical school of jurisprudence
x. Scandinavian school of jurisprudence
6. ANALYTICAL SCHOOL OF JURISPRUDENCE:

i. Main exponents:
c. Jeremy Bentham
d. John Austin
ii. View of analytical school:
The school is of the view that the science of jurisprudence is concerned with
positive law, with “laws strictly so-called”.
iii. Analytical school and legal positivism:
The view of analytical school is that the law is a general command issued by
sovereign and backed up by sanction.
iv. Criticism on analytical school:
It has not reflection for the subjects rather it is a “gunman theory”.
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7. HISTORICAL SCHOOL OF JURISPRUDENCE
i. Main exponents:
c. Baron De Montesquieu
d. F K VON Savigny
ii. View of historical school:
Jurisprudence is the body of general principles governing the origin and legal
development of law.
It is based on the history and customs.
iii. Customs and historical school:
According to the historical school, customs are typical law and therefore it is an
authentic school of thought.
iv. Criticism on historical school:
Customs are not the same. They vary from country to country and have no legal
force of law.
8. DIFFERENCES BETWEEN ANALYTICAL AND

HISTORICAL SCHOOL JURISPRUDENCE:
Following are the difference between the analytical historical school:
i. Difference as to legal system:
• Historical school:
The historical school thinks that law is obtained by primitive legal system.
• Analytical school:
According to analytical school law is obtained by mature legal system.
ii. Difference as to existence
According to historical school law is self-existed it is found and is not made.
According to analytical school law is the command of a political sovereign.
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iii. Difference as to antecedent:
According to the historical school law is antecedent to the state.
According to the analytical school state is antecedent to law.
iv. Difference as to typical law:
According to historical school customs are the typical law.
According to the analytical school statute is the typical law.
v. Difference as to product:
Law is the product of the history
Law is the product by the legislation.
vi. Difference as to interpretation:
According to historical school law is interpreted by the reference of history.
According to the analytical school law is interpreted with the reference of the
analysis.
9. CONCLUSION:
Jurisprudence is the knowledge of law. Jurisprudence is the dynamic in nature
therefore it is difficult to explain the jurisprudence jurists have different view and
criticized one another.
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DISCUSS IN DETAIL THE RELATIONSHIP OF JURISPRUDENCE
WITH OTHER SOCIAL SCIENCES?
1. INTRODUCTION:
Jurisprudence is studying law, law is regulating the conduct of individuals and
individuals are living and forming societies. Therefore, law is an important social
phenomenon which is making jurisprudence as a Social Science. However, there are
several other Social Science, like Ethics, Political Science, Sociology, Psychology etc.
Now, it is logical that these social sciences should be interlinked with each other at some
point.
Moreover, these social sciences could not study in isolation. In other words, none
of these sciences can be understand with having a fair knowledge of others.
Jurisprudence, being a social science is, in fact, related with other social sciences.
2. JURISPRUDENCE AND SOCIOLOGY:

Jurisprudence is the study of law and sociology is the study of society and it is
also discussing law but from a different stand-point. Therefore, there is a link between
jurisprudence and sociology. Jurisprudence is concerned with legal rules that actually
exists, however, sociology is studying the effectiveness of those legal rules and their
impacts on society.
3. JURISPRUDENCE AND POLITICS

Politics studies the principles responsible for the governmental organization.
Whereas, jurisprudence is analyzing those principles. Moreover, in a political society
there exist rules for the regulation of human being conduct which are the subject-matter
of jurisprudence. Hence, there is a close connection between the two.
4. JURISPRUDENCE AND ETHICS
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Ethics is the science of human conduct. It projects an ideal human behavior, in the
light of which it suggests a course of conduct for individuals living in societies. Whereas,
jurisprudence is discussing the imperative rules, actually existing in the societies.
However, those rules are also connected with the behavior of human beings in societies.
Therefore, both of the science are interrelated. Due to the close relationship and
interdependency of these sciences, there emerged a branch of jurisprudence known as
Ethical Jurisprudence, discussing the ideal human behavior or which is the study of law
as it ought to be.
5. JURISPRUDENCE AND PSYCHOLOGY

Psychology is the ‘science of mind and behavior’, whereas, jurisprudence is
discussing law. Law is aimed to be followed by individuals, and individuals can only
follow law if they intend to follow. Therefore, intention is the very basic element behind
every law, and particularly in criminal law the concept of mens rea is having immense
importance. Therefore, jurisprudence and psychology both are closely inter-related
human sciences.
6. JURISPRUDENCE AND ECONOMICS

Economics is the science of wealth and jurisprudence is the science of law.
Economics studies the production and distribution of wealth and law is responsible for
establishing a fair distribution of wealth through rules. Moreover, studies show that
economic factors are responsible for the increasing rate of criminal activities, which
again brings the two in close relation with each other. Furthermore, economics aims at
improvement of the standards of human lives whereas, this could not possible if a
peaceful environment is not available which is possible through the application of laws.
Therefore, there is a close relationship between the two.
7. JURISPRUDENCE AND HISTORY
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History is the scientific narration of the past events, whereas, jurisprudence is the
science of law. Law has not come into existence overnight, as a matter of fact, it has
developed through ages. History helps jurisprudence in digging out the origin and
evolution of different legal rules. Owing to its importance, there developed a separate
branch of jurisprudence, known as Historical Jurisprudence. Therefore, it may conclude
that there is a close relation between jurisprudence and history.
8. CONCLUSION
So, we can conclude that, Jurisprudence is studying law, law is regulating the
conduct of individuals and individuals are living and forming societies. Therefore, law is
an important social phenomenon which is making jurisprudence as a Social Science.
However, there are several other Social Science, like Ethics, Political Science, Sociology,
Psychology etc. Now, it is logical that these social sciences should be interlinked with
each other at some point. Moreover, these social sciences could not study in isolation. In
other words, none of these sciences can be understand with having a fair knowledge of
others. Jurisprudence, being a social science is, in fact, related with other social sciences.
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DISCUSS THE ORIGIN OF ADMINISTRATION OF JUSTICE AND
WHAT ARE THE REASONS FOR ITS GROWTH?
1. CONCEPT OF ADMINISTRATION OF JUSTICE: -

➢ According to Prof. Sidgwick:
In determining a nation’s rank in political civilizations no test is more
decisive than the degree in which the justice is administered.
2. IMPORTANCE OF ADMINISTRATION OF JUSTICE: -

i. According to Lord Bryce:
There is no better test of a state than the efficiency of judicial system.
ii. According to George Washington:
Administration of justice is the firmest pillar of a government. Law exists

to bind together the community it is sovereign it cannot be violated.
3. DEFINITION OF ADMINISTRATION OF JUSTICE: -

i. By Farlex Legal Dictionary
The administration of justice is the process and structure which allows conflicts
between parties to be settled by a body dedicated to that purpose.
4. ORIGIN OF ADMINISTRATION OF JUSTICE: -
Administration of justice has been historically originated along with the growth of
man the social nature of man demanded the origin of administration of justice.
5. STAGES OF ORIGIN OF ADMINISTRATION OF

JUSTICE: -
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i. According to John Salmond.
Following are three stages of administration of justice:
i. First stage of Origin.

ii. Second stage of Origin.
iii. Third stage of Origin
6. FIRST STAGE OF ORIGIN:
At first stage the Society was primitive and private vengeance was allowed at the
time. Every individual has to help himself to punish the wrong doer. At this stage self-
help was the only remedy available to an individual.
i. Life at this stage:
At this stage every man carried his life in his own hands he was supposed to be
attacked by his enemies at any time.
ii. Basis of this stage:
Every man was judge in his own cause and might was the sole measure of right.
iii. Disadvantages of first stage

a. No guarantee that criminal would certainly be punished
b. No guarantee of proportion to the gravity of crime
c. One crime leads to another crime
7. SECOND STAGE OF GROWTH:
There was rise of political states in society. But these States were not strong
enough to regulate crime and inflict punishments on the criminals.
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The law of private vengeance was still continued and the states only prescribe
some rules for the regulation of private vengeance.
i. Basis of this stage:
This stage was based on the concept of:
i. Tooth for a tooth

ii. Eye for an eye
iii. Life for life
The state prescribed that a life shall not be taken for a tooth or for an eye.
ii. Abolishment of vengeance:
Vengeance was not totally abolished in the Anglo-Saxon period in England but was
merely restricted and regulated.
8. THIRD STAGE OF ADMINISTRATION OF JUSTICE:
At the third stage the states started to act as a judge to assess liability to impose
penalty. Private Justice was transformed into public justice. And administration was
given in the hands of states.
i. Modern administration of justice:
The modern administration of justice is a natural corollary to the growth in power

of political state.
9. NECESSITY OF ADMINISTRATION OF JUSTICE:
With the passage of time, man felt that administration of justice is unavoidable for
the society to groom and prosper.
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10. REASONS FOR NECESSITY OF ADMINISTRATION
OF JUSTICE:
There are some inevitable reasons for administration of justice as follows:
i. Want of judicial system:
The society traditionally required a judicially system to give solutions to conflicts

between individuals.
ii. One uniform system:
Mankind can only regulate by one uniform system and it was the reason which
gave rise to administration of justice.
iii. Man is a social animal:
Man being a social and fighting animal requires a strong system of administration
of justice.
iv. Control of one authority:
A common power to keep them all in the line was primitive requirement of
society and it was possible through administration of justice.
v. Might is right:
Might is right is the social norm of the society and it forces the man to seek
administration of justice.
vi. Increasing in population:
Increase in the world population was a threatening factor which lead the humanity
to think for administration of justice.
vii. Social sanction:
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Social sanction with a fluctuating and discriminatory punishment requires a strong
system of administration of justice.
viii. Instability in society:
Instability in social structure was a reason for the origin of the system of
ix. Social disobedience:
Social disobedience was rising due to absence of system of administration of

justice.
x. Group conflicts:
Conflicts between individuals started to grow like group conflicts and this factor
forced the need of administration of justice.
xi. Concept of Retaliation:
Retaliation was a prescribed rule to take law in one’s own hands.
Every man was a judge in his own cause.
xii. Origin of blood feuds:
Blood feuds were common and were growing disastrous for the society. This was
a strong reason of need of administration of justice.
11. CONCLUSION:
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DISCUSS IN DETAIL VARIOUS SOURCE OF LAW
1. INTRODUCTION
Sources of law are the origin of laws; whereby the laws came into existence. The
term “Sources of Law” has been used in different senses and manners by various jurists.
According to Sir John Salmond, sources of law can b classified as either legal or
historical.
“Law is the rudder of the ship of state.”
[A. O’Malley]
2. MEANINGS
• Sources of law means the “originator or the roots of law.”
• According to Merriam-Webster Dictionary, Sources of law mean Something that
provides authority for judicial decisions and legislation.
Source of law
Roots/ origin of law
3. DEFINITIONS
i. A process by which the rule of law may be evolved
(Vinogradoff)
ii. Legal decisions and legal analysis
(Black's law)
iii. Something that provides authority for legislation and precedents
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(M. Webster)
iv. The name for a historical fact out of which the rules of conduct come into existence
and acquire legal force.
(Oppenheim)
v. Agencies through which the rules of conduct acquire the character of law by
becoming definite, uniform, and compulsory
(C.K. Allen)
4. KINDS/CLASSIFICATION/TYPES
Sources of law can be classified into two major kinds:
i. Legal sources
Legal sources are those sources that are the instruments or organs of the State by
which legal rules are created, e.g., legislation and precedents.
ii. Non-Legal Sources:
Non-legal are the sources of law where common rules subsequently turned into
legal principles, these are usually unauthoritative and non-legal such as Religion,
Juristic writing, etc.
Their Details are Given as under:
5. TYPES OF LEGAL SOURCES

There are five types of legal sources of law:
a) Constitutional law
b) Legislation
c) Precedents
d) Agreement
e) Global institutional development
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a) Constitutional Law
1. Meanings:
According to Cambridge Dictionary, Constitutional Law means; the body of political

principles used to govern a state.
2. Derivation:
The word Constitution is derived from a “Latin” word, “Constituere” which means “a
body of laws”.
3. Definitions:
The definitions of constitutional law are given as under:
i. The supreme law of the land
[John Salmond]
ii. The written instrument embodying the fundamental law, together with any
formal amendments.
[Black’s Law Dictionary]
4. Illustration:
Following are the illustration of Constitutional law:
➢ Constitution of Pakistan 1973

➢ Constitution of China 1982
➢ Constitution of Malaysia 1957
5. Case laws:
o Brown Vs. Board of Education (1954)
Discrimination is not allowed by the constitution.
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o Panama Paper case:
Imran Khan Niazi Vs. Muhammad Nawaz Sharif
PLD 2017 SC 692
Supremacy of the constitution; no man, no king, no government above
the Constitution.
b) Legislation
1. Meanings:
According to the Oxford Dictionary legislation means; the process of making or

enacting laws.
2. Derivation:
The term legislation has been derived from two Latin words;
The first one is “Legis” which means “law” and the other one is “Latum” which means
“to make.” Combined, the legislation means; “to make law.”
3. Definitions:
i. The preparing and enacting of laws by local, state, or national legislatures.
[Britannica]
ii. The process of making or enacting a positive law in a written form.
iii. The making of law by some authority in the body politic which is recognized as
adequate for that purpose.
[Salmond]
iv. The law-making process by a legislative authority is called legislation.
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4. Types of legislation:
There are two main types of legislation:
• Supreme legislation; law-making by sovereign itself.

• Sub-ordinate legislation: law-making by an authority other than the sovereign.
c) Precedents
1. Meanings:
According to Oxford’s Dictionary, precedent means;
a previous case or legal decision that may be or must be followed in subsequent similar
cases.
Simply precedents mean “Judge made laws”.
2. Definitions:
The definitions of precedents are given as under:
i. A judicial decision that contains in itself a principle.
[Sir John Salmond]
ii. An action or official decision that can be used as support for later actions and decisions.
iii. A judgment or decision of a court that is cited in a subsequent dispute as an example or

analogy to justify deciding a similar case or point of law in the same manner.
[Britannica]
3. Types:
The types of precedents are:
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• Conditional Precedents
• Persuasive Precedents
• Binding Precedent
• Declaratory Precedent
• Original Precedent
• Precedents Sub Silentio
• Super Precedent
4. Parts of Precedents:
There are two parts of precedents:
➢ Ratio Decidendi; Rationality or reason behind the decision.

➢ Obiter Dicta; Remarks of judges which are not the part of the case.
d) Agreements And Conventions
According to Sir John Salmond, agreements and conventions are the sources of
conventional and contract laws.
1. Illustration:
In Pakistan, the illustration of Agreements and conventions as sources or law is Contract

Act 1872.
2. Case law:
Balfour Vs. Balfour (1939)
This case law is the foundation of conventional law.
e) Global Institutions Development
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Another important source of law is Global Development in the international community
as it deals with transnational problems.
International conventions and institutions have become a ground for legislation. These
institutions are:
• WTO (World Trade Organization)

• UNO (United Nations Organization)
• WB (World Bank)
• IMF (International Monetary Fund)
6. TYPES OF NON-LEGAL SOURCES

There are three major non-legal sources:
A. Customs
B. Religion
C. Juristic Writings
A. Customs
1. Meanings:
According to Oxford’s Dictionary Custom means; a traditional and widely accepted way
of behaving or doing something specific to a particular society, place, or time.
2. Derivation:
The word custom is derived from a French word, “Coustume” which means “Common
way of doing things.”
3. Definitions:
The definitions of customs are given as under:
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i. General rules and practices that have become the law through unvarying habit and
common use.
ii. Custom is the embodiment of those principles which have commended themselves to
the national conscience as principles of justice.
[John Salmond]
iii. The uniformity of conduct of all persons under like circumstances.
[Carter]
iv. A custom is a particular rule which has existed either actually or presumptively from
time immemorial and has obtained the force of law.
[Halsbury]
4. Types of Custom:
The types of customs are given as under:
• Legal Custom
• Conventional Custom
• Local Custom
• General Custom
• Binding Custom
• Non-Binding Custom
5. Case Law:
Raja Verma Vs. Ravi Verma
B. Religion
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According to Oxford’s Dictionary, religion means; the belief in and worship of
superhuman controlling power.
Law and religion are the regulators of social relations and Religion is, therefore, an
important source of law.
1. Illustration:
Islamic Law (For Muslims)
Hindu Law (For Hindus)
2. Case Laws:
➢ R. Vs. University of Cambridge
➢ Cowan Vs. Melbourne 1917
C. Juristic Writings
Juristic writings are the opinions or reviews of lawyers, law-makers, jurists, and judges
which help in the enactment or making of law.
“Good juristic writing is clear legal thinking made visible.”
[Bill Wheeler]
7. CONCLUSION
Consequently, we can say that sources of law are the origin of laws; whereby the
laws came into existence. The term “Sources of Law” has been used in different senses
and manners by various jurists. According to Sir John Salmond, sources of law can be
classified as either legal or non-legal.
“A bad law is no law.”
[C. Clare]
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DISCUSS IN DETAIL LEGISLATION AS A SOURCE OF LAW
1. INTRODUCTION
Legislation is the law-making process or procedure through competent authority.
The laws which are made through the process of legislation are called statutes.
Legislation has great importance in the modern world.
“Good legislation should bring clarity, not confusion.”
[Bill Haslam]
2. MEANINGS
According to the Oxford Dictionary legislation means;
The process of making or enacting laws.
3. DERIVATION
Legislation
Legis Lation
⬇ ⬇
Law. To make
To make/ to set of law
4. DEFINITIONS
i. The preparing and enacting of laws by local, state, or national legislatures.
[Britannica]
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ii. The process of making or enacting a positive law in a written form.
iii. The making of law by some authority in the body politic which is recognized as
adequate for that purpose.
[Salmond]
iv. The law-making process by a legislative authority is called legislation.
5. LEGISLATIVE POWER LISTS IN CONSTITUTION

In Pakistan, there are two lists into which legislative powers are divided:
➢ Federal list
➢ Provincial list
6. TYPES OF LEGISLATION
According to Salmond, there are two major types of legislation:
• Supreme Legislation
• Subordinate Legislation
7. SUPREME LEGISLATION
Supreme legislation is that legislation that is controlled directly by the sovereign
authority of the state.
“Supreme legislation is that which proceeds from
the sovereign power in the state.”
[Sir John Salmond]
The supreme legislation cannot be repealed, annulled, or controlled by any other
legislative authority.
Illustration:
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The Parliaments of Pakistan and India possess the power of supreme legislation.
8. SUB-ORDINATE LEGISLATION
Subordinate legislation is that which proceeds from any other authority than the
sovereign power.
[Sir John Salmond]
Subordinate legislation has a delegated power of legislation by the supreme

legislation.
i. Kinds of Sub-ordinate Legislation:
Salmond refers to five kinds of subordinate legislation.
i. Colonial Legislation
ii. Judicial Legislation
iii. Municipal Legislation
iv. Executive/Delegated Legislation
v. Autonomous Legislation
Their detail is given as under:
i. Colonial Legislation:
Colonial legislation is the legislation done by the Ministers of the colonies. The
ministers are subordinate to the Crown and can alter, make and repeat any colony
enactment.
ii. Judicial Legislation:
The legislative power has also been given to the judiciary for the regulation of
their procedure.
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iii. Municipal legislation:
Municipal law is the national, domestic, or internal law of a state.
Some municipal authorities are also allowed to make their bye-laws for limited
purposes within their areas.
➢ Illustration:
The Municipal Corporations Act 1882.
Local government Act 1888-1933
iv. Executive/Delegated Legislation:
Another kind of legislation is executive legislation or delegated legislation.
The main function of the executive indeed is to enforce the laws but in certain
cases, the power of making rules is delegated to the various departments of the
government.
➢ Illustration:
Laws are made by health or police departments for their administration.
v. Autonomous Legislation:
Sometimes the State allows private persons like universities, railway companies,
etc., to make bye-laws that are recognized and enforced by law courts. Such
legislation is called autonomous legislation.
➢ Illustration:
Railway companies may make bye-laws for the regulation of their undertaking.
9. ADVANTAGES OF LEGISLATION
Legislation as a source of law has many advantages:
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• Legislation is both constitutive and abrogative.
• Legislation is a necessary instrument not only for the growth of law but also for its
reform.
• Legislation is based on the principle of division of labor and consequently enjoys the
advantages of efficiency.
• Legislation satisfies the requirement of natural justice that laws shall be known before
they are enforced.
• Legislation makes rules for the cases that have not yet risen.
• The legislative process is very thorough and comprehensive.
10. CONCLUSION
To conclude, we can say that legislation is the law-making process or procedure
through competent authority. The laws which are made through the process of legislation
are called statutes.
Legislation has great importance in the modern world.
“Legislation is the art of compromise.”
[Harry Reid]
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WHAT IS LEGISLATION? DISCUSS ITS ADVANTAGES OVER
PRECEDENT?
1. PRELIMINARY NOTE:
Legislation is the source of law in the form of statute. It is the product of

sovereign based on the analytical school of thought. It has all the power to enact laws,
repealing old laws and modifying new laws.
2. MEANING OF LEGISLATION:
i. Black’s Law Dictionary
Legislation means the whole body of enacted law.
3. DEFINITION OF LEGISLATION:
i. According to Salmond
Legislation is that source of law which consists of declaration of legal rules by the
competent authority.
ii. According to Austin
There can be no law without legislative Act.
4. EXAMPLES OF LEGISLATION:
Following are some examples of legislation:
i. Pakistan penal code 1860

ii. Contract act 1872
5. DERIVATION OF LEGISLATION:
Legislation
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Legis Latum
Law Making Process
Law Making Process
6. LEGISLATION AS SOURCE OF LAW:
Legislation is the one of the four sources of law:
1. Legislation
2. Precedents
3. Customs
4. Agreements
7. LEGISLATION AND ANALYTICAL SCHOOL OF

THOUGHT:
Legislation is based on the analytical school of thought. It is the general command

of sovereign.
8. ADVANTAGES OF LEGISLATION OVER PRECEDENT:
The following are the advantages of legislation over precedent;
i. As to Abolishment
a. Legislation can not only make law but can also abolish it
b. Precedent can only make laws.
ii. As to Codification:
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a. Legislation is available in codified form
b. Precedent is not available in codified form. It is available in abstract decisions of
the judges.
iii. As to Collective Wisdom:
a. Legislation is given from different bodies. It is a result of collective wisdom.
b. Precedent can be called one man show.
iv. As to Principle of Democracy:
a. Legislation follows the principle of democracy.
b. Precedent doesn’t follow the principle of democracy.
v. Brief and clear:
a. Legislation is available in brief and clear form.
b. Precedent is not in clear form. It is rather ambiguous.
vi. As to Prospective:
a. Legislation is prospective in its nature
b. Precedent is not of prospective nature rather it is retrospective.
vii. Easy to Amend:
a. Legislation can be easily amended
b. Precedent cannot be easily amended and it takes time for change.
viii. As to Supporting School:
a. Legislation is supported by analytical school of jurisprudence.
b. Precedent is supported by historical school of jurisprudence.
ix. As to Source of Law:
a. Legislation is ranked as first source of law.
b. Precedent is ranked as second source of law.
9. CONCLUSION
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So, we can conclude that, Legislation is the source of law in the form of statute. It
is the product of sovereign based on the analytical school of thought. It has all the power
to enact laws, repealing old laws and modifying new laws.
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PRECEDENT AS A SOURCE OF LAW
1. INTRODUCTION:
Precedents are the most important sources of law and are the important
characteristics of the Rule of Law. They have enjoyed high authority at all times and in
all countries. These are the laws that are created by the Courts.
“Precedents perpetuate the principles.”
[Benjamin Disraeli]
2. MEANINGS:
o According to Oxford’s Dictionary, precedent means; a previous case or legal decision
that may be or must be followed in subsequent similar cases.
o Simply precedents mean “Judge made laws.”
3. DERIVATION:
The word precedent is derived from the Latin word “Praecedere” which means “to go
in front of.”
“Praecedere”
“To go in front of.”
4. DEFINITIONS:
The definitions of precedents are given as under:
i. A judicial decision that contains in itself a principle.
[Sir John Salmond]
ii. An action or official decision that can be used as support for later actions and
decisions.
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iii. A judgment or decision of a court that is cited in a subsequent dispute as an
example or analogy to justify deciding a similar case or point of law in the same
manner.
[Britannica]
iv. A court decision that is cited as an example to resolve similar questions in later
cases.”
[Legal Dictionary]
v. Precedent is a legal principle created by the court, it provides authority for judges
to decide similar issues afterward.
5. ESSENTIALS OF PRECEDENTS:
➢ Ratio Decidendi (Rationality or reason behind the decision.)
➢ Obiter Dicta (Remarks of judges which are not the part of the case.)
6. THEORIES REGARDING PRECEDENTS:

i. Declaratory theory
According to this theory, judges are no more than the discovery of law. they discover
a law on a particular point and declare it.
ii. Judge make law

According to this theory, judges do make laws
i.e. president is the law.
the law of England is based only on the judge making laws
7. DOCTRINE OF STARE DECISIS:

“Stare decisis” is a Latin term that means “to stand by the things decided.”
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Stare decisis is the doctrine that courts will adhere to (stick to) precedent in making their
decisions.
Simply, the decisions of higher courts will be binding to the decisions of lower courts.
8. METHODS OF PRECEDENTS:
i. Deductive (Fixed)
In this method, the law is already fixed, settled, and applied as it is in the individual
cases by the court
ii. Inductive (Molded)

In the individual method, the law is molded according to the facts of the case.
9. KINDS OF PRECEDENTS:
The kinds of precedents are given as under:
i. Conditional Precedents
ii. Persuasive Precedents
iii. Binding Precedent
iv. Declaratory Precedent
v. Original Precedent
vi. Precedents Sub Silentio
vii. Super Precedent
Their detail is given as under:
i. Conditional Precedents:
The precedents which are binding in specific terms and conditions are called
conditional precedents.
ii. Persuasive Precedents:
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“A precedent that is not binding on a court, but that is entitled to respect and
careful consideration.”
iii. Binding Precedent:
“A precedent that a court must follow.”
iv. Declaratory Precedent:
“A precedent that is merely the application of an already existing rule.”
v. Original Precedent:
“A precedent that creates and applies a new legal rule.”
vi. Precedent Sub Silentio:
“A legal question that was neither argued nor explicitly discussed in a judicial
decision but seems to have been silently ruled on and might therefore be treated as
a precedent.”
vii. Super Precedent:
1.“A precedent that defines a law and its requirements so effectively that it
prevents divergent holdings in later legal decisions on similar facts.”
2.“A precedent that has become so well established in the law by a long line
reaffirmation that is very difficult to overturn it.”
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10. FACTORS THAT DESTROY BINDING EFFECT OF

PRECEDENTS:
➢ Abrogated
➢ Reversal
➢ Ignorance of status
➢ In-constituency with the same rank
➢ Inconsistency with the higher court
➢ Erroneous decision
11. CONCLUSION:
Consequently, we can say that precedents are the most important sources
of law and are the important characteristics of the Rule of Law. They have
enjoyed high authority at all times and in all countries. These are the laws that are
created by the Courts.
“Precedents once established are so much positive power.”
[James Madison]
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WRITE A DETAILED NOTE ON THE FOLLOWINGS: OBITER DICTA
(BY THE WAY REMARKS) AND RATIO DECIDENDI (THE
RATIONALE FOR THE DECISION)
1. CONCEPT OF OBITER DICTA:
Judges often express their legal opinion on issue which they are not asked to
decide. Obiter dictum is what the judge says by the way and which is unnecessary.
i. Derivation of term obiter dicta:
Term obiter dicta is derived from a Latin word ‘Obiter’ which means
‘By the way’ and ‘dicta’ which means ‘remarks’
Obiter Dicta
Obiter Dicta
By the way Remarks
By the way remarks of judge
ii. Obiter Dicta – Defined:

➢ By Farlex Legal Dictionary
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a formal pronouncement from an authoritative source i.e what a judge said in passing
iii. Definition of obiter dicta:

➢ legal terms and phrases by Ilyas khan:
A judicial comment made while delivering a judicial opinion but one that is
unnecessary to the decision in the case and there for not the precedent.
iv. Obiter dicta and Persuasive precedent:
Persuasive precedent is based on the doctrine of obiter dicta obiter dicta is always
optional to follow.
v. Binding force of obiter dicta:
Binding force of obiter dicta is different from country to country:
i. Obiter dicta in England:
Obiter dicta has no binding force on a coordinate courts in England.
ii. Obiter dicta in India:
Obiter dicta of supreme court of India is authoritatively binding on all the

subordinate courts.
vi. Object of Obiter Dicta:
Obiter dicta help in the growth of law. These sometimes help the cause of the
reform of law. The defects in legal system can be pointed out in obiter dicta when the
judges feel that they must speak out their own minds on a particular point.
vii.Illustration of obiter dicta:
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A filed a suit against B for ransom. The judge decided not to pay ransom and to
deliver the custody to A. Further judge said that the future punishment will be hanging till
death.
Decision of punishment is obiter dicta.
viii. Leading case law:

➢ duncan v cammell laird co ltd 1942
Main issue in this case was of public security but judge also said about the secrecy of
governmental documents.
What the judge said about the security of governmental documents was obiter dicta.
2. CONCEPT OF RATIO DECIDENDI:
Ratio decidendi is the reasons of decisions it is general legal principle applied

between the parties to decide their matters it is a rule regarding as government principle
of the case.
i. Derivation of term ratio decidendi:
The term ratio decidandi is derived from Latin language:
Ratio means matters and decidendi means decided.
Ratio Decidendi
Ratio Decidendi
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Rationale Decision
the rationale for the decision
ii. Meaning of ratio decidendi:

➢ Oxford University Press 1961
Ratio decidendi means reasons for decisions or matter decided.
iii. Definition of ratio decidendi:

➢ legal term and phrases by Ilyas Khan:
The principle or the rule of law on which a court decision is founded.
iv. Ratio decidendi and authoritative precedent:
Authoritative precedent is based on the doctrine of ratio decidendi it is a decision made

between the parties on an issue.
v. Binding force of ratio decidendi:
Ratio decidendi of superior courts is binding on the lower courts of the same country. It
enjoys same binding force in the whole world.
vi. Illustration of ratio decidendi:
A filed a suit against B for ransom judge decided not to pay ransom and to deliver the
custody to A. Further judge said that the future punishment will be hanging till death.
➢ Decision of delivery of custody was ratio decidendi.

vii.Leading case law:
➢ duncan v cammell laird co ltd 1942
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Main issue in the case was public security but judge also said about the security of
governmental documents.
………..What the judge said about the public security was called ratio decidendi.
3. DIFFERENCE BETWEEN OBITER DICTA AND RATIO

DECIDENDI:
Following are the difference between the obiter dicta and ratio decidendi:
i. Difference as to main issue:

a. Obiter dicta is not the main issue of the case.
b. Ratio decidendi is the main issue of the case.
ii. Difference as to binding force:
a. Obiter dicta generally have no binding force.
b. Ratio decidendi enjoys a greater binding force for future decisions.
iii. Difference as to decision:
a. Obiter dicta is not a decision rather only a remark.
b. Ratio decidendi is a decision which includes settlement of any question.
iv. Difference as to applicability:
a. Obiter dicta dicta is applicable on public at large.
b. Ratio decidendi is applicable only on the parties to sued.
v. Difference as to nature:
a. Obiter dicta in not compulsorily to be expressed by every judge.
b. Ratio decidendi is compulsory to expressed by judge.
vi. Difference as to execution:
a. Obiter dicta cannot be executed by the court of execution.
b. Ratio decidendi can be executed by the court of execution.
vii. Difference as to effect:
a. Obiter dicta does not affect the case or parties to case.
b. Ratio decidendi is purely a practiced by the parties.
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viii. Difference as to declaration:
a. Obiter dicta does not declare or announced the right and duties of the parties.
b. Ratio decidendi declares the rights and duties of parties.
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DISCUSS IN DETAIL, CUSTOM AS A SORCE OF LAW
1. INTRODUCTION:
The customs are the main and earliest sources of law. When there was no written
law, there were customs which used to govern and regulate human beings. Most of the
laws originated from the customs.
“Bad customs make bad laws.”
[J. Aiken]
2. MEANINGS OF CUSTOM:
According to Oxford’s Dictionary Custom means; a traditional and widely
accepted way of behaving or doing something specific to a particular society, place, or
time.
3. DERIVATION OF TERM CUSTOM:

The word custom is derived from a French word, “Coustume” which means
“Common way of doing things.”
4. DEFINITIONS OF CUSTOM:
The definitions of customs are given as under:
i. General rules and practices that have become the law through unvarying habit and
common use.
ii. Custom is the embodiment of those principles which have commended themselves to
the national conscience as principles of justice.
[John Salmond]
iii. The uniformity of conduct of all persons under like circumstances.
[Carter]
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iv. A custom is a particular rule which has existed either actually or presumptively from
time immemorial and has obtained the force of law.
[Halsbury]
5. ORIGIN OF CUSTOM:
The origin of the customs is in primitive societies. When there was no codified
law, there were customs to govern human beings and regulate human behavior.
6. TYPES OF CUSTOMS:
i. Binding customs
ii. Non-binding customs
iii. Local custom
iv. Legal custom
v. Conventional
vi. General Custom
These details are as Under;
I. Binding custom
These Customs Are the Customs That Are Enforced by Law
➢ Illustration
• Commitment to marriage
• Transmission of property
II. Non-binding customs
The customs which are not enforced by law are the customs. without binding effect
but they are still prevalent in society and have social sanctions.
➢ Illustration
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Every society has a custom for how to be dressed in our society or how to be
addressed with elder and younger.
III. Local customs
Local customs are the customs to be followed in a particular locality
➢ Illustration
• Custom of Punjab
• Customs of KPK
IV. Legal custom
The customs which are allowed and recognized by law are called legal customs
➢ Illustration
• Laws against slavery
V. Conventional customs
These are the customs through agreement and contract with private peoples
➢ Illustration
• Private law
VI. General customs
General customs are the customs to be allowed in all over the state
➢ Illustration
• Common law in England
7. ESSENTIALS OF A VALID CUSTOM:
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• Reasonable
• Peaceful
• Conformity with State Law
• Certainty
• Continuity
• Universal
The details are as under;
I. Reasonable
A Custom should be reasonable (any reason behind it) and should be based on
basic morality.
II. Conformity with law
A Custom should have a conformity with the law of land otherwise this will be no
existence of that custom if there is no conformity.
III. Certainty
A Custom should be ascertained and there should no uncertainty in it. It must be

accurate and as clear as water.
IV. Continuity
A Custom must be consistent with the basic principles of law and there should be
no blockage in it there should be no interpretation and be continued for or
immemorable time.
V. Peaceful
A Custom must be peaceful and if there is violence in a custom it should not

consider a custom.
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8. THEORIES REGARDING CUSTOMS:
There are two theories regarding customs
i. Historical theory
ii. Analytical theory
Their detail is as under;
I. Historical theory
According to the historical School of thought, the customs depend upon the
history
II. Analytical history

According to the analytical school of thought for custom, there must be a valid
reason it has no concern with past or history
9. CONCLUSION:
To conclude, we can say that customs are the main and earliest sources of law.
When there was no written law, there were customs which used to govern and regulate
human beings. Most of the laws originated from the customs.
“Custom is the oldest source of international law,
as well as the law in general.”
[Oppenheim]
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DEFINE LEGAL RIGHTS? WHAT ARE ITS KINDS?
1. PREFACE:
Legal right is that to which force is given by the rule of law. Every legal right
imposes a legal duty to others. Legal rights are of different kinds discussed by jurists.
2. MEANING OF LEGAL RIGHT:

➢ Black’s Law Dictionary 7th edition.
A power, privilege, immunity or capacity, the enjoyment of which is secured to

a person by law
3. DEFINITION OF LEGAL RIGHT:

➢ By Salmond.
A legal right is an interest, recognized as well as protected by the rule of law.
4. LEGAL RIGHT-CORRESPONDING A DUTY:
Legal right is an interest, in respect of which is a duty and disregard for which is a wrong.
Every legal right has a corresponding duty to perform.
5. DIAGRAMMATICAL ANALYSIS:
Diagrammatical analysis of legal rights is given below:
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Legal Right
Having Force of Law an Interest
Interest having force of law
6. LEGAL RIGHT V MORAL RIGHT:
Legal right is recognized as well as protected by rule of justice unlike moral

rights.
7. PARTIES TO LEGAL RIGHTS:
There are three parties to legal right:
i. State or sovereign which confers legal right

ii. The person on whom right is conferred
iii. The person on whom duty is imposed
8. ENFORCEMENT OF LEGAL RIGHT:
Legal rights can be enforced by following ways:
i. Suit for damages.

ii. Suit for restitution.
iii. Suit for specific performance.
iv. Suit for injunction.
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9. KINDS OF LEGAL RIGHTS:
Legal rights are of following kinds:
i. Right in rem and right in personum.

ii. Right in re-propria and realiena.
iii. Proprietary and personal rights.
iv. Positive and negative rights.
v. Municipal and international rights.
vi. Ordinary and fundamental rights.
vii. Public and private rights.
viii. Vested and Contingent Right.
ix. Primary or Antecedent and Secondary or Remedial Rights.
10. RIGHT IN REM AND RIGHT IN PERSOMUN:
A. Right in rem:
Right in rem is a real right corresponding to which duty is of public at large or

general public.
i. Examples
a. Right of life
b. Right to own property
B. Right in personam:
Right in personum is a personal right corresponding to which duty is of an

individual or a group of individuals.
i. Examples
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a. Right of specific performance of a contract
b. Right of buyer to take possession
11. RIGHT IN RE-PROPIA AND RE-ALIENA:

A. Right in re-Propria:
Right in re-Propria is a right of a person over his own property.
i. Examples
a. Right of way ownership
b. Right of buyer after sale
B. Right in Re-Aliena:
Right in Re-Aliena is right of a person over the property of other it is a right over
a property belonging to some other person expect owner.
i. Examples
a. Right of way on neighbor’s land
b. Lessees right over leased property
12. PROPRIETARY AND PERSONAL RIGHTS:

A. Proprietary right:
Proprietary rights are those which relates to the estate of person it includes a
person’s estate his assets and his property it always has some economic and
monetary value. They are inheritable rights.
i. Examples
a. Right of debt
b. Right of creditors
B. Personal Rights:
Personal rights are those which are related to the status of a person. These are
always un-inheritable.
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i. Examples
a. Right of reputation
b. Right of speech
13. POSITIVE AND NEGATIVE RIGHTS:

A. Positive rights:
A positive right corresponds to a positive duty and entitles its owner to have
something done for him. They are usually rights in personam.
i. Illustration:
“A” contracts with B to buy a house and pays to B for the same A’s right to get
the house is a positive.
B. Negative rights:
Negative rights have negative duties corresponding to them and they entitle their
owner to prohibit something from being done. Usually negative rights are right in
rem
i. Examples
a. Right of life
b. Right of property
viii. MUNICIPAL AND INTERNATIONAL RIGHT:

A. Municipal right:
Municipal rights are conferred by the law of a country they are enjoyed by the
individuals living in a country.
i. Examples
a. Right of property
b. Right of life
B. International right:
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International rights are conferred by international law to the persons who are
recognized as subjects of international law. Usually ‘states’ are given such
recognition but now individuals are also considered as its subjects.
i. Examples
a. Right of freedom
b. Right of life
14. PUBLIC AND PRIVATE RIGHTS:

A. Public right:
A public right is possessed by every member of the public it is between the state
and the private individual.
i. Example
a. Right of vote
B. Private right:
A private right is concerned only with the individuals i.e. where both the parties
connected with the rights are private persons.
i. Example
a. Contract entered into by two individuals
15. ORDINARY AND FUNDAMENTAL RIGHTS:
Some rights are ordinary rights and some are fundamental rights. The distinction
between the two lies that fundamental rights are often guaranteed by the
constitution.
i. Examples
a. Right of life
b. Right of liberty
16. VESTED AND CONTINGENT RIGHT:
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A vested right is a right in respect of which all events, necessary to vest it
completely in the owner, have happened. In case of contingent right, only some of
the events, necessary to vest the right in the contingent owner, have happened.
i. Illustration
If a property is given to a person on the condition that he will be entitled to take its
possession on attaining the age of 21. Such a right is called contingent right as the
event of his 21 years of age has not happened yet.
17. PRIMARY OR ANTECEDENT AND SECONDARY OR

REMEDIAL RIGHTS:
Primary rights are those rights which are independent of a wrong having been
committed. They exist for their own sake. While secondary rights are a part of the
machinery provided by the state for the redress of the injury done to primary
rights.
18. CONCLUSION:
Consequently, we can say that, Legal right is that to which force is given
by the rule of law. Every legal right imposes a legal duty to others. Legal rights
are of different kinds discussed by jurists.
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DEFINE LEGAL RIGHT WHAT ARE THE ELEMENTS OF
LEGAL RIGHT?
1. PREFACE:
Legal right is that to which force is given by the rule of law. Every legal right
imposes a legal duty to others. Legal rights are of different kinds discussed by jurists.
2. MEANING OF LEGAL RIGHT:

➢ Black’s Law Dictionary 7th edition
A power, privilege, immunity or capacity, the enjoyment of which is secured to

a person by law
3. DEFINITION OF LEGAL RIGHT:

➢ By Salmond
A legal right is an interest, recognized as well as protected by the rule of law.
4. LEGAL RIGHT-CORRESPONDING A DUTY:
Legal right is an interest, in respect of which is a duty and disregard for which is a
wrong.
Every legal right has a corresponding duty to perform.
5. DIAGRAMMATICAL ANALYSIS:
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Diagrammatical analysis of legal rights is given below:
Legal Right
Having Force of Law an Interest
Interest having force of law
6. LEGAL RIGHT V MORAL RIGHT:
Legal right is recognized as well as protected by rule of justice unlike moral rights
7. PARTIES TO LEGAL RIGHT:
There are three parties to a legal right:
i. State or sovereign which confers legal right

ii. The person on whom rights is conferred
iii. The person on whom duty is imposed
8. ENFORCEMENT OF LEGAL RIGHT:
Legal right can be enforced by the following ways
1. Suit for damages

2. Suit for restitution
3. Suit for specific performance
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4. Suit for injunction
9. ELEMENT OF LEGAL RIGHT:

➢ According to Salmond
Every legal right has five essential elements discussed as follows:
1. Subject of right
2. Subject of duty
3. Object of right
4. Content of right
5. Title of right
10. SUBJECT OF RIGHT:
The first essential is that there must be a person who is owner of the right. he is
the subject of legal right and may also be called person of inherence.
I. Illustration
‘A’ buys a house from ‘B’. ‘A’ is the subject of right to have that house from ‘B’.
11. SUBJECT OF DUTY:
A legal right is always against another person who is under a corresponding duty
to respect that right. Such a person is called subject of duty.
Subject of duty is also called a Person of incidence.
I. Illustration:
‘X’ buys a car from ‘Y’. ‘Y’ is subject of duty to deliver the car to ‘X’.
12. OBJECT OF RIGHT
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Object of right is the thing over which the right is exercised. It may also be called
the subject matter of the right.
I. Illustration:
‘A’ buys a house form ‘B’. House is the object of right.
13. CONTENTS OF RIGHT:
Contents of right are the acts which a subject of duty is bound to do or abstain
from doing.
I. Illustration:
‘A’ owns a house with the following contents:
i. A can use it
ii. A can possess it
iii. A can dispose of it
And they would lie in the fact that the seller of house and every other person
should not disturb the peaceful possession and enjoyment of the house by the
buyer.
14. TITLE OF RIGHT:
Last essential of legal right is title of right. It means that facts must show how the
right is vested in the owner:
i. Illustration:
a. Right by purchase
b. Right by gift
c. Right by prescription
d. Right by inheritance
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15. TITLE OF RIGHT AS ESSENTIAL:
Some of the jurists are of view that title of right is source of legal right.
` According to Salmond, Title of right is most essential element of legal right.
16. CONCLUSION:
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DEFINE OWNERSHIP AND ITS ASPECTS.
1. INTRODUCTION.
No one can sell, transfer, dispose, destroy and exchange a thing, if he doesn’t
have legal and better title to do it. A transaction, if challenged in the court of law on the
above factors, can be set aside if court finds it effected ultra-vires. Only a real owner or
lawful owner r of the property can sell, dispose, gift and transfer it. A person who doesn’t
have a better title or legal title, cannot allowed to act as a true owner and he cannot sell or
transfer a title or property to anyone else.
2. CONCEPT OF OWNERSHIP:
Ownership is the fundamental juristic concept common to all laws this concept is
began to grow the people started to claim mine and thane.
3. RIGHT OF OWNERSHIP UNDER CONSTITUTION:

➢ U/sec: 24 of Pakistan Constitution 1973
Every person has a right to hold own and dispose of property.
4. MEANINGS OF OWNERSHIP:
• According to Oxford Dictionary
Ownership is to own something exclusively.
• According to Black’s Law Dictionary

It is the collection of right and to use and enjoy property including a right to
transfer it.
5. DEFINITION OF OWNERSHIP:
i. According to Holland
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Ownership is a primary control over a thing.
ii. According to John Austin

Ownership is the relation subsist the person and property called ownership.
iii. According to Salmond
Ownership is a relation between a person and a right which is vested in him.
6. OWNERSHIP ELEMENTS:
Following are the three kinds of ownership as follows:
i. Right to continue to possess ----possessionis
ii. Right to possess ---- Possidendi
iii. Right to dispose of---- Dispodendi
7. RIGHT TO CONTINUE TO POSSES (POSSESSIONIS):

Jus possessionis is the right of the possessor to continue to possess. It’s a right to
remain in possession except against a person who has a better title. Even a robber has the
right of possession and only the true owner can interfere with his possession.
8. RIGHT TO POSSESS (POSSIDENDI):

It is the right to possess. A person may have a right to possess a thing which he
wants to keep in his possession.
9. RIGHT TO DISPOSE OF (DIPODENDI):

The owner must have a right to transfer and country the property conveys the
property to others.
Nemo Dat Quad Non-Habit
“No one can transfer a better title than he himself has”.
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10. KINDS OF OWNERSHIP:
Following are the important kinds of ownership:
a. Corporeal and incorporeal ownership
b. Corporeal and incorporeal ownership
c. Sole and co-owner ownership
d. Trust and beneficial ownership
e. Legal and equitable ownership
f. Vested and contingent ownership
11. CORPOREAL AND INCORPOREAL OWNERSHIP:

A. Corporeal ownership:
Corporeal ownership is the idea of the material object it is the ownership of
tangible property.
Example
i. Ownership of house
ii. Ownership of car
B. Incorporeal ownership:
Incorporeal ownership is the idea of a non-existing meta-physical thing it is
ownership of intangible property.
Example
i. Ownership of copyright
ii. Ownership of intellectual property
iii. Ownership of trademark
12. SOLE AND CO-OWNERSHIP:

i. Sole ownership:
If the right is owned by one person only at a time is called sole ownership.
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Example
A buy a house from B. A is sole owner of house.
ii. Co–ownership:
When two or more person have a right vested in them it is called ownership.
a. Kinds of Co-ownership:
• Co-ownership in joint:
Where one of the co-owners if died the other co-owner can step into the shoes of
his deceased co-owner.
• Co-ownership in common:
Where one of the co-owners if died the other co-owner if died the other co-owner
shoes of his deceased co-owner.
It is called co ownership.
13. TRUST AND BENEFICIAL OWNER:

A. Trust ownership:
Trusty of a trust property is to look after and minister the property such ownership
is called trust ownership.
B. Beneficial ownership:
Beneficiaries of a trust property are only to get benefits of the trust such
ownership is called beneficial.
14. LEGAL AND EQUITABLE OWNERSHIP:

A. Legal ownership:
Legal ownership is that which is recognized by law and enforceable in the courts.
Example
Contract of sale
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B. Equitable ownership:
Equitable ownership is that which proceeds from the rules of equity.
Example
Agreement of sell
15. VESTED AND CONTINGENT OWNERSHIP:

i. Vested ownership:
When the title of owner is perfect without any other condition to be fulfilled.
It is called vested ownership.
ii. Contingent ownership:
When the title of owner is yet (becoming perfect) imperfect but is capable of
becoming perfect of becoming perfect. It is called contingent.
16. CONCLUSION:
No one can sell, transfer, dispose, destroy and exchange a thing, if he doesn’t have legal
and better title to do it. A transaction, if challenged in the court of law on the above
factors, can be set aside if court finds it affected ultra-vires. Only a real owner or lawful
owner of the property can sell, dispose, gift and transfer it. A person who doesn’t have a
better title or legal title, cannot allowed to act as a true owner and he cannot sell or
transfer a title or property to anyone else.
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DEFINE POSSESSION. WHAT ARE ITS ELEMENTS? DISCUSS THE
MODES OF ACQUISITION OF POSSESSION?
1. INTRODUCTION:
The concept of possession is the most ‘fundamental’ concept in all juristic system
of common law. Possession is the prima facie evidence of ownership. And the idea of
possession is followed by the ownership.
2. MEANING OF POSSESSION:
The state of having, owning, or controlling something.
3. DEFINITION OF POSSESSION:
i. By Salmond:
“The possession of the material object is the continuing exercise of a claim to
the exclusive use of it”
ii. Black’s Law Dictionary

The fact of having or ‘holding the property. Or one’s power to
exercise dominion over property.
iii. Cross Reference:

➢ Art: 24 of constitution of Pakistan
Every person ‘has’ a right to possess the property.
4. DIAGRAMMATICAL INTERPRETATION:
Possession
To possess
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State of having something
Elements
Animus Possidendi Corpus Possessionis
5. SIGNIFICANCE OF POSSESSION:
Possession is one of the most important concepts in the whole range or legal
history. It is the prima facie evidence of the title of ownership. Transfer of possession is
one of the chief modes of transferring ownership.
6. ELEMENT OF POSSESSION:
There are two elements of possession;
i. Animus possidendi
ii. Corpus possessionis
i. Animus possidendi:
It is intent or mental condition of claim of exclusive use of the thing possessed.
Generally, intention is enough to constitute the possession.
It is mental control of a thing.
ii. Corpus possessionis:

Corpus of possession can be considered under two heads;
i. Relation of the possessor to other persons:
By relation of possessor to other person means that the others shall not
interfere with the use of that thing. Or the possessor has the power to
exclude all others from the use of it.
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ii. Relation of possessor to the thing possessed:
It means that it is necessary for the possessor to have the physical power
of dealing with the thing exclusively as his own.
7. ACQUISITION OF POSSESSION:
To get something or to acquire something is called acquisition. Possession itself is
evidence of being an owner.
8. MODES OF ACQUISITION OF POSSESSION:

Following are the modes of acquisition of possession as follow:
i. Acquisition by taking
ii. Acquisition by delivery
iii. Acquisition by operation of law
a) Acquisition by taking:
It is done without the consent of previous owner. It can be discussed under two
heads;
i. Original:
Acquisition of a thing which had no previous possessor.
ii. Derivative:
Acquisition of a thing which had a previous possessor. It is further of two kinds;
a. Rightful taking:
Acquiring a thing for which the possessor is entitled, is called rightful taking.
b. Wrongful taking:
Acquiring a thing illegally, for which the possessor is not entitled, is called
wrongful taking.
b) Acquisition by delivery or tradition:
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The thing acquired by delivery with the consent and co-operation of previous possessor.
It is of two kinds;
i. Acquisition by actual delivery:

In case of actual delivery, immediate possession is given to the transferee. Which
means that a thing is physically transferred from one person to the hands of other.
ii. Acquisition by constructive delivery:

Constructive delivery is that which is not direct or actual. It has further three
kinds
a. Traditio brevi Manu:

In this case the possession is surrendered to the one who has already immediate
possession of the thing. In this case only the animus is transferred, as corpus is already
with the transferee.
b. Constitutum possessorium:
It is the transfer of mediate possession while immediate possession remains with
the transferor. A person may sell his car to other person but may retain its possession till
he is paid. In this case, the transferor has lost the animus and only has the corpus with
him.
c. By attornment:
` It is the transfer of mediate possession while the immediate possession remains
with a third person.
c) Acquisition by operation of law:

When goods are moved from the possession of first possessor and handed over to
other possessor.
i. Example:
a. Inheritance
b. Gift
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d) Principle of res nullius:
According to this principle, the first finder of a thing has a good title to that thing
against all but the true owner.
i. Exceptions:
a. The finder has not the good title if he is an agent of the owner
b. The finder has not the good title if he is a servant of the owner
9. COMPARISON OF POSSESSION AND OWNERSHIP:

Ownership and possession have the same subject matter:
a. Ownership is a legal concept
b. Possession needs not to be legal
10. CONCLUSION.
To conclude it, we can say that not every possess or has the legal or actual
right to transfer the property or sell it, but finder of goods can claim the title
against all other persons except the real owner. Possession can be actual or direct
or constructive indirect.
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DEFINE QUESTION OF LAW AND FACT AND ALSO DISCUSS ITS
TRANSFORMATION?
a. INTRODUCTION:
In determining justice, judge and the parties of the case have to face many
questions during the proceedings of a case. Those questions are either answered by judge,
law, expert or evidence.
b. QUESTION IN JUDICIAL PROCEEDING:

Following are the questions that arise in judicial proceedings:
i. Question of law
ii. Question of fact
iii. Question of mixed nature
iv. Question of judicial discretion
v. Expert opinion
c. DEFINITION OF QUESTION OF LAW:

Question which relates to the legal affairs and are answered by judge.
d. INSTANCES OF QUESTION OF LAW:

Following are instances
➢ Question answered by court
➢ Question related to legal affairs
➢ Question is what the law is on some particular point
e. ILLUSTRATION:
‘A’ has committed theft. Now the question is that what is the punishment for ‘A’.
It is a question of law.
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f. DEFINITION OF QUESTION OF FACT:
Question which relates to the factual position and is answered by the jury and can
be proved or disapproved by evidence.
g. INSTANCE OF QUESTION OF FACT:

Following are its instances:
➢ Question which is answered by jury
➢ Question relates the factual position
➢ Question other than the question of law
8. ILLUSTRATION:
A filed a suit against B for Rs. 20,000. weather B is liable or that amount or not is
a question of fact.
9. MIXED QUESTION OF LAW AND FACT:

The question which is not fully answered by law or by the facts.
It is a mixed question of law and fact.
10. EXAMPLE:
Sec: 82 of PPC 1860
If an act committed by the child after the age of 7 year is a crime or not?
11. QUESTION OF JUDICIAL DISCRETION:

A question, the answer of which depends upon the judicial discretion and
it may be discretionary matter of the court. It is a question of judicial discretion.
12. QUESTION OF EXPERT OPINION:
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A question the answer of which is given by expert of any department
before the court. It is an opinion of an expert. Opinion of expert is relevant under
Article 59 of QSO, 1984.
13. TRANSFORMATION OF QUESTIONS OF FACT

INTO QUESTION OF LAW:
Most of the time the question of fact transforms into question of law
➢ More and more decision on one point
➢ Old cases into new cases
➢ All must be identical
14. DISTINCTION BETWEEN QUESTION OF LAW AND

FACT:
There are some distinctions between question of law and question of fact:
i. As to determining authority:
Question of fact is such question which is not determined by any authority.
Question of law is such question which is determined from any authority.
ii. Meaning:
Question of fact relates to the factual position while question of law relates with
the legal affairs of the country or case.
iii. Nature of answer:
Question of facts are not answered by any piece of Evidence while question of
law is answered by any prescribed law.
iv. Decided by:
Question of fact is decided by jury while Question of law decided by the judge.
v. Prove and need not to prove:
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Question of fact need not to prove facts while question of law is proved already
by any prescribed law.
vi. Opinion of judge:
In question of fact opinion of judge has no importance while in question of law
opinion of judge has great importance.
vii. Complexity:
Question of fact relates with factual position and it is not in codified form. So it is
difficult to prove it.
While question of law relates to legal affairs and it is in codified form. So it is
easy to prove this type of questions.
viii. Aim of court:
In question of fact the aim of court is to seek and find out the truth in the facts.
While in question of law the aim of the court is to find what is just according to law.
ix. Priority of law:
In question of law priority of law is what the law says while in question of fact the
priority is how the incident happened.
x. Nature of decision:
In question of fact the decisions are not clear while in question of law the
decisions are clear and just
xi. Importance of judicial discretion:
In question of fact judicial discretion has very importance while in question of
law the judicial discretion has not any such importance.
15. CONCLUSION:
In determining and disposals of justice there are born some question which
can be of five kinds the questions are answered by the judge, law experts and
evidence to take a decision.
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DEFINE RULES OF INTERPRETATION OF STATUTE?
1. INTRODUCTION:
The rule of interpretation deals with the correct interpretation of legislation. It is
the best way to examine any point of law.
2. RULE OF INTERPRETATION-CONNOTATION OF:

Rule of interpretation is the process to find the true meaning of legislation.
3. PURPOSE OF RULE OF INTERPRETATION:

Following are the purpose of rule of interpretation
➢ To administer justice
➢ To find out the spirit of law
➢ To sustain truth
➢ To look upon the history of law
4. IMPORTANCE OF RULE OF INTERPRETATION:

Rule of interpretation is needed to meet the ends of justice.
5. BASIC RULE OF INTERPRETATION:

According to Salmond, basically there are 2 rules of interpretation:
i. Literal rule of interpretation (Grammatical)
ii. Logical rule of interpretation (Legal)
6. GRAMMATICAL RULE OF INTERPRETATION:

In Grammatical rule of interpretation, the letter of law is interpreted according to
its verbal expression. And the courts do not go beyond the “literal egis”
It is also called literal rule of interpretation.
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I. Cross reference
Art: 14 (v) Qanoon-e-shahdat Order1984
The word “seen” shall be interpreted as word “read”.
7. LOGICAL RULE OF INTERPRETATION:

In the case of logical rule of interpretation courts are allowed to depart from the
letter of law and try to find out the true intention of legislature.
I. Cross reference
Sussex peerage case
If there is any doubt then the benefit shall be transferred to the accused.
8. GOLDEN RULE OF INTERPRETATION:

In the difficult cases, the court may go beyond the words of the statute and take
help from other sources. This rule is applied when the statute is apparently defective.
9. MISCHIEF RULE OF INTERPRETATION:

When the true intention of the legislature cannot be determined by the language of
the statute then it is open to the court to consider the mischief for whose remedy the
statute was made.
i. Leading Case Law – Heydon’s Case 1584
Four things are to be observed in mischief rule of interpretation
a. What was the common law before the making of the Act?
b. What was the mischief or defect for whose remedy the Act was made
c. What was the remedy provided for that mischief or defect?
d. What was the true reason of the remedy?
10. STRICT AND EQUITABLE RULE OF

INTERPRETATION:
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It is used when the letter of law is ambiguous. This usually happens when the
letter used by the legislature has two types of meaning. One is more obvious with the
popular use of the language and the other is unpopular.
When the popular meaning is adopted, it is called the strict rule of interpretation.
When the unpopular meaning is adopted, it is called the equitable rule of interpretation.
i. Kinds of Equitable Rule:
Equitable rule has further two kinds;
a. Restrictive rule:
The rule of restrictive interpretation is applied to penal and fiscal statutes.
b. Extensive Rule:
The application of equitable rule of interpretation other than on penal and fiscal
statutes is called extensive rule of interpretation.
11. HISTORICAL RULE:

The method of historical rule is employed when its language gives no clue
about the intention of the legislature. Then court can consider the historical
background of the enactment.
12. SOCIOLOGICAL RULE:

Social rule gives a lot of freedom to judges who can refer to the history of
social movements and can enquire into the social needs, objects and purposes
which were agitating the society at the time of passing of the Act.
13. PRESUMPTIVE RULE:

Sometimes presumption has to be taken into consideration by the court to
interpret the law which is attached with that law. It is called presumptive rule of
interpretation.
I. Cross reference
Art: 128 of Qanoon-e-shahadat Order 1984
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A child born within 280 days after the dissolution of marriage the
child is legitimate.
14. CONCLUSION:
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DISCUSS DIFFERENT THEORIES OF PUNISHMENT OF DETAIL?
1. CONCEPT OF PUNISHMENT:
Punishment is an essential element of administration of justice. The question is
that what type of punishment is suitable for a criminal while administering justice. The
following theories are discussed below in this regard.
2. DEFINITION OF PUNISHMENT:
➢ Glanville William Criminal law 2nd Ed. P#575
Punishment in all its forms is a loss of right or of an advantage. It is consequence

on breach of a duty.
3. PUNISHMENT AND ADMINISTRATION OF JUSTICE:
Punishment is the last step for administering justice. Without awarding

punishment no justice can be administered.
4. THEORIES OF PUNISHMENT:
Following are the theories of punishment
i. Deterrent theory
ii. Retributive theory
iii. Reformative theory
iv. Compensatory theory
v. Preventive theory
vi. Exemplary theory
vii. Punitive theory
viii. Expiative theory
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ix. Denunciatory theory
x. Utilitarian theory
5. DETERRENT THEORY:
The object of criminal justice is to impose such punishments which create a threat
for society.
❖ View of this theory

Punishment must be executive at some public place
❖ Examples
a. Cutting the right hand from the wrist at the public place
b. Stoning to death at public place
6. RETRIBUTIVE THEORY:
The person wronged want to take his revenge form the wrong doer. This theory
focuses on the satisfaction of victim.
❖ Basis of retributive theory

Retributive theory is based on the principle of retaliation. The so called principle
is “As you sow, sow shall you reap”
❖ Example
Punishments of Qisas is an example of retributive theory like,
a. Tooth for a tooth
b. Eye for an eye
c. Life for life
7. REFORMATIVE THEORY:
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Punishment must be of that type which can reform the offender.
According to reformists
“Illiterate societies bear a greater ratio of crime. They suggest the literacy rate to be
developed
❖ Object of this theory

Object of this theory is to provide the social deduction to offender and to make
them better citizen
❖ View of B.M Gandhi

This theory focuses on this concept of “hate the sin not the sinner”
8. COMPENSATORY THEORY:
The main spring of criminality is greed and every crime has some economic purposes. To
remedy the victim, the punishment for offender should be in form of compensation.
❖ Object of the theory

Object of the theory is to create a better future for the victim by giving some
assistance in form of money.
❖ Example
a. Punishment of Diyat
b. Punishment of Arsh
c. Punishment of Daman
9. PREVENTIVE THEORY:
According to preventive theory offender must be disabled from repeating the offence
again in his life
❖ Examples
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a. Cancellation of driving license
b. Suspension of membership
c. Punishment of exile
10. EXEMPLARY THEORY:

In this theory, a greater punishment is awarded just to create an example
for upcoming offenders and likeminded individuals
❖ Object of this theory

This theory does not aim for punishing the offender but only to create an example
for future
❖ Example
a. seven hundred years imprisonment
b. thousand years of imprisonment
It is mostly applicable in the judicial system in Holland
❖ Nota Bene:
Recently, in 2011, Dr. Afia Saddique is punished for 87 years imprisonment under
exemplary theory
11. PUNITIVE THEORY:

The object of law is to award punishment whatever cruel or rigorous. It is
to create unease for the offender
12. EXPIATIVE THEORY:

Expiative means both suffering from imprisonment and from punishment
of fine.
Imprisonment + fine = punishment u/ Expiative theory
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13. DENUNCIATORY THEORY:
This theory examines the crime from the moral point of view. Punishment
must incriminate the conscious of offender.
14. UTILITARIAN THEORY:

In this theory the purpose of punishment is to achieve the good
consequences no matter what approach is being adopted.
15. CONCLUSION:
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DEFINE EVIDENCE. WHAT ARE DIFFERENT KINDS OF
EVIDENCE?
1. CONCEPT OF EVIDENCE:
Evidence is a testimony which is used to prove or disprove the truth in a fact. It is

testimony medium of proving documents and statements.
2. APPLICABLE LAW:
o Art: 2(c) and 70 to 77 of Qanun-e-Shahadat Order 1984
3. MEANING OF EVIDENCE:
o Black’s Law Dictionary 7th Edition
Evidence is something which proves or disproves any fact.
4. DERIVATION OF TERM EVIDENCE:
Evidence is derived from Latin term Evidentia and a French term Evidere, which
means to prove or to disprove a fact.
5. DEFINITION OF EVIDENCE:
o Art: 2 (c) Qanun-e-Shadadat Order 1984
Evidence includes all statements and documents produced for the inspection of court.
6. EVIDENCE AS ELEMENT OF JUDICIAL

PROCEEDINGS:
Evidence is an important element of judicial proceedings, without which justice cannot

be done.
i. Pliant
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ii. Written statement
iii. Summons
iv. Framing of issues
v. Evidence
vi. Arguments by lawyers
vii. Judgments
viii. Execution
7. EVIDENCE AND PROOF:
Proof is the effect of evidence given by a witness.
8. KINDS OF EVIDENCE:
The following are two basic kinds of evidence u/ Art:2 (c) of QSO
i. Oral evidence
ii. Documentary evidence
There are some other kinds too;
a. primary and secondary evidence

b. judicial and extrajudicial evidence
c. direct and circumstantial evidence
d. personal and real evidence
e. original and hearsay evidence
9. ORAL EVIDENCE:
o Art: 2 (c) (i) of Qanun-e-Shahadat Order 1984
All the statements made or required to be made before the court by witness upon
any matter under inquiry.
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10. DOCUMENTARY EVIDENCE:
o Munir Ahmed vs. State of Rajasthan
When a document is produced u/Art: 2(c)(ii) of Qanoon-e-shahadat Order

1984, in a case for the inspection of the court then it becomes the documentary
evidence.
i. What is Document?
Sec: 29 of Pakistan Penal Code 1860
Document means any matte expressed or described on any substance by means of letters,
marks and figures.
11. PRIMARY EVIDENCE:
Art:73 of Qanun-e-Shahadat Order 1984
Primary evidence means the document itself produced for the inspection of the court.
12. SECONDARY EVIDENCE:
Art:74 of Qanoonn-e-Shahadat Order 1984
Secondary evidence is the evidence which may be given in absence of the original
document. It is the production of better evidence given in the court.
i. Example
Photocopy of original registered deeds produce in the court.
13. JUDICIAL EVIDENCE:
Judicial evidence is that which can be produce in the court room and which consist of
all the facts essential for the knowledge of court.
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i. Example
“A” shoots “B” with a 30 bore pistol. The pistol is produced before the court as a judicial
evidence in this case.
14. EXTRAJUDICIAL EVIDENCE:
When any document or testamentary material cannot be produced before the court, it is
called extrajudicial evidence.
i. Example
Footprints at the place of occurrence shall be an extrajudicial evidence.
15. DIRECT EVIDENCE:
Art: 71 of Qanoon-e-Shahadat Order 1984
Oral evidence must in all cases be direct and the direct evidence must be such:
i. Evidence must say:

That he saw it, if the matter must be seen.
ii. Evidence must say:
That he heard it, if the matter must be heard.
iii. Evidence must say:
That he felt it, if the matter must be observed by any of the 5 senses.
16. CIRCUMSTANTIAL EVIDENCE:
Circumstantial evidence is the evidence which relates to a series of facts other than the
fact in issue but which are closely connected with them.
17. PERSONAL EVIDENCE:
In personal evidence the person whose right has been violated deposes evidence of
violation of his right.
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18. REAL EVIDENCE:
Probative matter furnished by items that are actually on view, as opposed to a

verbal description of them by a witness.
i. Example:
a weapon used in the commission of a crime would be classified as real evidence.
19. ORIGINAL EVIDENCE:
It is that which possesses an independent probative force of its own. For example, the
witness states that he has seen or heard with his own eyes or ears.
i. The original document introduced to a trial.

ii. First hand and the best evidence submitted to a case.
20. HEARSAY EVIDENCE:
When the witness has not seen or heard the evidence, it is called hearsay evidence.
21. EXPERT’S EVIDENCE:
When an expert of any department deposes his opinion before the court. It is called an
expert’s evidence.
i. Examples
a. Opinion of doctor of forensic
b. Postmortem report
c. Medico legal report
22. RULE OF BEST EVIDENCE: -
It is the duty of parties to produce the best available evidence in the court.
As it is obvious from the rule;
Res Ipsa Loquitur
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“The things speaks for itself.”
i. Presumption Attach with Non-production of Best Availbale

Evidence
Art: 129 of Qanun-e-Shahadat Order 1984.
That if that evidence is not produced, would go against the party who withholds.
23. MODE OF VALUATION: -
This is also called probative force of the evidence:
a. Conclusive Proof - Child below 7 years is innocent.

b. Presumptive Proof- A person in possession of property is owner.
c. Exclusive Proof - The execution of a will can be proved only be the testimony of
the one of the attesting witness
d. Insufficient Proof - two witnesses in proving offence of Zina. Etc.
24. CONCLUSION: -
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DEFINE EVIDENCE? WHAT ARE DIFFERENT RULES OF
PROBATIVE FORCE EVIDENCE?
1. CONCEPT OF EVIDENCE:
Evidence is a testimony which is used to prove or disprove the truth in a fact. It is

testimony medium of proving documents and statements.
2. APPLICABLE LAW:
Art: 2(c) and 70 to 77 of Qanun-e-Shahadat Order 1984
3. MEANING OF EVIDENCE:
❖ Black’s Law Dictionary 7th Edition
Evidence is something which proves or disproves any fact.
4. DERIVATION OF TERM EVIDENCE:
Evidence is derived from Latin term Evidentia and a French term Evidere, which means
to prove or to disprove a fact.
5. DEFINITION OF EVIDENCE:
❖ Art: 2 (c) Qanun-e-Shadadat Order 1984
Evidence includes all statements and documents produced for the inspection of court.
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6. EVIDENCE AS ELEMENT OF JUDICIAL PROCEEDINGS:
Evidence is an important element of judicial proceedings, without which justice cannot

be done.
ix. Pliant
x. Written statement
xi. Summons
xii. Framing of issues
xiii. Evidence
xiv. Arguments by lawyers
xv. Judgments
xvi. Execution
7. EVIDENCE AND PROOF:
Proof is the effect of evidence given by a witness.
8. PRODUCTION OF EVIDENCE:
An evidence when it is produced in the court must be evaluated the same.
9. PROBATIVE FORCE OF EVIDENCE:
Probative force of evidence is to the weigh the value of evidence produced in the court.
10. RULES OF PROBATIVE FORCE:
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The following are the five rules of probative force of evidence:
i. Conclusive proof
ii. Presumptive proof
iii. Exclusive proof
iv. Insufficient proof
v. No proof
11. CONCLUSIVE PROOF OF EVIDENCE:
It consists of the facts which cannot be contradicted. It shall not allow any
evidence to be produced in the court for the purpose of disproving it.
i. Relevant Presumptions:
In conclusive proof irrebuttable presumptions are raised.
ii. Example:
If a child is born within 280 days after the dissolution of marriage and the mother remains
unmarried, shall be conclusive proof of the legitimacy of child.
Sec: 82 of Pakistan Penal Code 1860
A child under the age of seven years is presumed by law to be incapable of committing
any offence.
12. PRESUMPTIVE PROOF OF EVIDENCE:
It means such proof which may be considered sufficient if there is no other proved
fact to the contrary
i. Relevant presumptions:
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In presumptive proof rebuttable presumptions are raised.
ii. Example
The Court may presume the existence of any fact which it thinks likely to have
happened.
It creates presumptions of fact which can be contradicted and proved contrary.
13. EXCLUSIVE PROOF OF EVIDENCE:
In this rule certain facts alone are recognized as being the only evidence of certain
other facts. No other evidence is permitted by law without attesting witnesses.
i. Example
Attesting witness of a contract made in writing has exclusive proof.
14. INSUFFICIENT PROOF OF EVIDENCE:
If law prescribes a certain amount of evidence for proving a fact, and the evidence
produced does not come up to the necessary standard. It is called insufficient
proof.
i. Example
a. In English law one witness in a case of high treason is insufficient proof
b. In Indian law one witness in a case of will is insufficient proof
c. In Islamic law one witness in hudood cases is insufficient proof
15. NO PROOF:
There are certain facts which can neither be produced nor acted upon, such proof
is called no proof.
i. Example
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Hearsay evidence is no evidence
16. RULE OF BEST EVIDENCE:
Rule of best evidence means that best available evidence must be produced.
17. CONCLUSION:
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SUBSTANTIVE LAWS AND PROCEDURAL LAWS
1. INTRODUCTION
Laws are the set or system of rules established by the government for the citizens
to obey and also to govern their behaviors and conduct. They are usually enforced by
governmental institutions. The mechanism of the law ensures that all citizens abide
by them and that society can function safely without any obstructions. In India, the
laws are made by the Indian Parliament, implemented by the executives and
interpreted and enforced by the judiciary.
Law can be further divided into two broad categories –
I. Substantive laws and

II. Procedural laws.
They form the two major branches of law.
Substantive laws are the statutory laws passed by the legislature.
Whereas, procedural laws comprise the rules and processes which any court follows
for hearing and determining the cases.
Procedural laws are also known as ‘Adjective laws. In absence of substantive laws,
procedural laws cannot be framed. Similarly, without procedural laws, substantive
laws cannot be applied fairly and properly. Both the laws are equally important and
one could not be applied effectively in absence of the other law.
In the case of Commissioner of Wealth Tax, Meerut v. Sharvan Kumar Swarup

and Sons (1994), the Supreme Court of India made the distinction between
substantive and procedural laws clear.
The Court defined substantive laws as the laws which fix duties and establish rights
and responsibilities among and for natural or artificial persons, while procedural laws
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are those which prescribe the methods in which such rights and responsibilities may
be exercised and enforced respectively.
2. JURISTIC VIEWS ON PROCEDURAL LAWS AND

SUBSTANTIVE LAWS
Several jurists have given their opinion regarding the distinction of laws.
Jeremy Bentham, an English philosopher, jurist, and social reformer first coined
the terms ‘substantive laws’ and ‘adjective laws’, i.e. procedural laws in his book
“The works of Jeremy Bentham”, while describing the procedure and course taken for
the execution of the laws in 1843. However, he stated that in jurisprudence, both the
procedural and substantive laws should co-exist i.e. both cannot exist without the help
of the other.
John Austin, on the other hand, had a completely different approach to the objective
of the law and was critical of such distinction.
Thomas Holland, the British jurist, in his book ‘The Elements of Jurisprudence’
defined ‘Substantive Law’ as the laws which specify the way the laws will aid to
protect rights. Whereas, Adjective laws or Procedural laws are the laws which
provide the methods of aiding and protecting the rights.
The jurist Salmond believed that the ‘exact nature of distinction’ of the laws cannot
be stated with precision. According to him in his book “Jurisprudence”, procedural
laws govern the processes of litigation and are the laws of ‘actions’ and the remaining
laws are substantive law. He further explains that substantive laws are concerned with
the results sought by the administration of justice whereas procedural laws deal with
the methods and instruments to attain these results.
There exists another juristic view that states that there are absolutely no distinctions
between substantive and procedural laws. Charles Frederic Chamberlayne, in his
book A Treatise on the Modern Law of Evidence, mentioned that the distinction
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between the laws is ‘artificial and illusory’. Professor Cook in Substance and
Procedure in the Conflict of Laws termed the distinctions between the laws as an
‘alleged distinction’. He was of the opinion that apart from ‘substance’ and
‘procedure’, there exists a grey area.
3. MEANING AND NATURE OF SUBSTANTIVE LAWS

AND PROCEDURAL LAWS
Both the substantive laws and the procedural laws are two related sets of legal
systems and are interdependent on each other.
Substantive laws are the essential laws that govern any particular field and declare
the rules and lay down the principles. The Pakistan Penal Code (PPC) which lays
down different types of crimes and defines their respective punishments is one of the
examples of substantive laws in Pakistan.
Procedural laws are the set of procedures to be followed for making, administering
and enforcing substantive laws. For example, the Code of Criminal Procedure (CrPC)
defines the procedures to be followed in criminal proceedings in Pakistan.
4. SUBSTANTIVE LAWS
Substantive laws define the rights and responsibilities in civil law and crimes and
punishments in criminal law. Substantive laws are codified in legislated statutes or
may be practiced or modified through precedent, especially in the common law
system. These laws can also be enacted through the initiative process. Substantive
laws refer to the actual claims and Defences to refer to in any particular case.
• Nature of substantive laws

➢ Substantive laws deal with those areas of law which establish the rights and
obligations of the individuals and what individuals may or may not do.
➢ These laws have independent power to decide any case.
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➢ Substantive laws dictate the legal context of any crime such as how the case will be
handled and what specific punishments to be given for any crime.
➢ Statutory laws or precedents in the common law system are substantive laws.
➢ Substantive laws deal with the legal relationship between individuals or the legal
relationship between an individual and the State.
➢ Substantive laws are the statutory laws which define and determine both the rights
and obligations of the citizens to be protected by law and the crimes or wrongs and
also their remedies.
➢ Substantive laws determine the subject matter of litigation pertaining to the
In the case of Thirumalai Chemicals Ltd. v. Union of India and others (2011), the
Supreme Court ruled that substantive laws are a body of rules that “creates, defines
and regulates rights and liabilities”. On the other hand, procedural laws establish “a
mechanism for determining those rights and liabilities and a machinery for enforcing
them”.
• Sources of substantive laws
The Substantive Laws are usually derived from:
I. the principles in Common laws which already exist, codified statutory laws
II. Constitution
III. judicial precedents in cases with similar facts and circumstances.
Substantive laws are also derived from various treaties that dictate the conditions
of the law. One such example is the regulations and directives of the European Union
followed by trade treaties, rules of the WTO and bilateral treaties.
Other sources of substantive laws include:
The writings of legal scholars: In civil laws, academic writings which explain or
interpret the Constitution or laws influence the decisions of the courts.
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Edicts from a king/ ruler;
“Sharia law” in religious books and edicts in the case of some of the Islamic countries.
Pakistan Penal Code, Indian Contract Act, 1872, Transfer of Property Act, 1882, Specific
Relief Act etc., are some of the examples of substantive laws in Pakistan.
• Types of substantive laws
The substantive laws define both the rights and the wrong and the punishment or remedy
for it. The laws include all categories of Public and Private law also including both
substantive civil and criminal laws.
a- Substantive civil laws
Substantive civil laws are the laws which deal with disputes between any individuals,
organizations or between both of them where the victim is entitled to compensation.
Using substantive civil laws, the courts find out whether the legal rights of the plaintiff
have been violated or not.
Examples
Some examples and functions of substantive civil laws in Pakistan include:
Law of Contracts such as the Contract Act, 1872 defines what are the essential elements
and conditions required to enter into any contract. The broader category of the laws
related to the contract also includes the Sale Of Goods Act, 1930 for the sale of goods
and the Partnership Act, 1932 for the law related to the formation and registration of
partnership firms and businesses.
Substantive civil laws also include any private wrong caused to anyone or ‘Tort’. The
Law of Torts is also an example of substantive civil laws. However, the law of Tort in
Pakistan has evolved from that of its English counterpart and is not codified.
b- Substantive criminal laws
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Substantive criminal laws deal with criminal offences and the punishments to be awarded
for each of these criminal offences.
A criminal prosecution starts after the defendant violates any criminal statute. The
primary purpose of substantive criminal laws is to provide punishment to the convict
while compensation may be provided to the victim depending on the situations.
Using substantive criminal laws, the court finds out whether the accused is guilty or not
and if found guilty, what should be the punishments for the criminal offence.
Examples
Various penal offences and their respective punishments have been described in the
Pakistan Penal Code (PPC). It also defines the conditions for various penal offences such
as ‘Murder’, ‘Rape’, ‘Abduction’ etc.
Domestic Violence Act, 2005; the Juvenile Justice (Care and Protection of Children)
Act,2000; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 are some of the substantive criminal laws in Pakistan.
• Limitations of substantive laws
Substantive laws can be used to limit and restrict the power and freedom of any
individual.
The State possesses the uncontrolled and unlimited power to frame laws according to its
own will which the judiciary is bound to follow.
However, in Pakistan, the judiciary may strike down any law if it is unconstitutional.
5. PROCEDURAL LAWS
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In contrast to substantive laws, procedural laws, also known as Adjective Laws, are
the laws which act as the ‘machinery’ for enforcing rights and duties. Procedural laws
comprise the rules by which a court hears and determines what happens in civil,
criminal or administrative proceedings, as well as the methods by which substantive
laws are made and administered. The rules are designed to ensure a fair and
consistent application of due process and fundamental justice to all cases before any
particular court.
Procedural laws are made to ensure the best distribution of judicial resources. All
procedural laws are made following the due process of the law. A court cannot
impose a civil or criminal penalty on any individual who has not received any notice
of the case filed against him/ her or has not got a fair opportunity to present evidence
or defend himself/ herself. The standardization of the procedural laws depends on
how any case is filed, parties are informed, evidence is presented and the facts are
determined to maximize the fairness of any legal proceeding.
• Nature of procedural laws

➢ Procedural laws lay down the ways and means substantive laws can be enforced.
➢ They do not carry any independent powers to decide any case.
➢ These laws are applied in the legal procedure which sometimes may be used in non-
legal contexts, such as filing any suits or the manner any case will proceed.
➢ These laws are enforced by the Acts of Parliament or implemented by the
government.
➢ Apart from prescribing ways and means of enforcing rights, procedural laws also
redress for the infringement of rights, also describe the machinery for proceedings of
any suit.
➢ In the opinion of Holland, although procedural laws are concerned with the rights
and acts of private litigants, it also describes the organization of Courts and the duties
of judges.
A procedural law should always follow substantive law. The Madhya Pradesh High
Court held the decision in Farookh Mohammed v. the State of Madhya Pradesh
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(2015). The Himachal Pradesh High Court held that procedural law should not
ordinarily be considered “mandatory” in the case of Gurudwara Bei Sehjal v. Nanhku
And Others (2022).
• Sources of procedural laws
Procedural laws are extremely important in the administration of justice. They function as
the means by which substantive laws should be implemented.
The primary source of procedural laws is the Constitution. Other sources of procedural
laws include:
➢ Statutes enacted by the legislature;

➢ Written regulations for employees of various law enforcement agencies. These
regulations cannot be considered as laws but violating them results in taking internal
actions.
➢ Various rules, procedural guidelines and rulings of cases laid down by the Supreme
Court.
• Types of procedural laws
Different legal systems have different procedural laws. Some of the procedural laws may
primarily look for the truths or fairness between the parties and some procedural laws
target a speedy resolution of disputes. Other procedural laws may also consist of a proper
and thorough application of legal principles. Procedural laws are the means to enforce
substantive laws. Hence, there exist different types of procedural laws depending on the
characteristics of substantive laws.
Based on these, the procedural laws are primarily of two types:
➢ Civil procedural laws or laws of civil procedure and

➢ Criminal procedural laws or laws of criminal procedure
Laws of Civil Procedures
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Laws of Civil Procedures comprise the rules, regulations and standards for the courts to
follow during the cases relating to civil matters and various civil trials.
These procedural laws govern how a civil suit or case should commence and the procedures
to be followed during the case. They also dictate:
➢ the nature of pleadings and statements of case, motions or applications;

➢ available remedies for civil cases;
➢ the orders to be passed in civil cases;
➢ the limiting time for appeal and the manners of how the cases are to be disposed of;
➢ the conduction of civil trials;
➢ the process for passing judgement, and
➢ how the courts, judicial officers and clerks must function.
Examples
One of the major civil procedural laws in India is the Code of Civil Procedure which governs
the administration of civil proceedings and implementations of civil orders and justice.
Laws of Criminal Procedures
While substantive criminal laws deal with punishment for criminal offences against public
and private individuals. The laws of criminal procedure can be termed corollary where these
laws lay down the criminal procedures. These laws describe how criminal law should be
applied and its procedures.
Stages of procedural criminal laws
Procedural Criminal Law can further be divided into two stages or phases:
➢ the investigatory stage; and

➢ the adjudicatory stage.
Examples
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In Pakistan, the Criminal Procedure Code describes the processes of getting the prosecution
of various types of criminal offences and the punishments to be awarded by the criminal
courts. It also lays down the details of the procedures regarding the steps to follow during
any criminal offence. These include the processes of the arrest of the accused, investigation
of the alleged crime committed, granting of bail, the jurisdiction of the courts, filing of
criminal appeals, and revisions and compounding of offence etc with regards to the various
criminal offences.
• Limitations of procedural laws
Procedural laws have certain drawbacks and limitations.
Some of the procedural laws may impose strict time limitations which may either
hasten or slow down the speed of the legal proceedings.
Any party who is unfamiliar with procedural laws may breach the guidelines. Though
they may not affect the merits of the case, the failure to follow these guidelines may
severely damage the chances of the party.
Procedural laws are constantly torn between arguments that judges should have
greater discretion to avoid the rigidity of the rules. While the other argument is that
the judges should have less discretion in order to avoid a result based more on
personal preferences than the laws or the facts.
6. CONCLUSION
Both substantive and procedural laws play an important role in administration of

justice. Substantive laws deal with the rights and obligations of the individual towards
one another and towards the state. These laws also deal with the objectives and
subject matters of the litigations. On the other hand, procedural laws supervise and
direct the proceedings of the litigation of any particular case. The substantive and
procedural laws are complementary to each other. While substantive laws explain the
guiding rules and regulations as per law, procedural law describes how the laws
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should be enforced. As rightly held by the Hon’ble Supreme Court and confirmed in
several of the cases, “A procedural law is always subservient to the substantive law.”.
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THEORY OF SOVEREIGNTY
1. INTRODUCTION
It is the most important, most unique, and major future of a state. It is the ultimate and supreme
law-making authority. No people can form a state unless there is sovereignty. In another word,
there is no state without sovereignty.
"Sovereignty is not given, it is taken"
Mustafa Kamal
2. MEANINGS
The word unity is the drive from the Latin word "superneous" which means supreme. it means
the Supreme power of the state.
3. DEFINITIONS
Aristotle
Sovereignty is the supreme to Dominion/authority.
Black's law
The supreme power over citizens and subjects is under stained by law.
Jean Bodin
The supreme power in the state.
4. ASPECTS
Sovereignty exists in two aspects and is described below;
I. Internal sovereignty
II. External sovereignty
Their Details are as follows:

I. Internal Sovereignty
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This is the absolute power of statutes to enforce the law and compel obedience within its area of
authority.
II. External Sovereignty
This is the power a state exercises to run its affairs without external control or interference.
5. TYPES
i. Legal sovereignty
ii. De-facto sovereignty
iii. De-jure sovereignty
iv. Popular sovereignty
v. Political sovereignty
There are 7 kinds of sovereignty and are explained as under;
i. Legal Sovereignty
This sovereignty is vested in the law-making body of the state for example parliament.
ii. Internal Sovereignty
This is the absolute power of a state to make and enforce the law within its area of jurisdiction.
iii. External Sovereignty
This refers to the powers of the state to run its appearance without any form of foreign
interference.
iv. De Jure Sovereignty
It has independent legal rule over one country. The state has to write to control its military,
finance, territory, and people.
v. De Facto Sovereignty
Make use of force compiling obedience.
vi. Political Sovereignty
This Sovereignty resides with the supreme body of the state.
vii. Popular Sovereignty
Popular is the government based and consent of the people. The government’s source of
authority is the people i.e government is established by the face choice of the people.
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6. SALIENT FEATURES/CHARACTERISTICS
• Permanence
• Absoluteness
• Independence
• Indivisibility
• Universality
Their Details are as follows:
• Permanents
It should exist long as the state remains independent.
• Absoluteness
No subject to any control/interference.
• Independence Sovereign
Sovereignty does not allow extender interference.
• Indivisibility
Remains single and absolute.
• Unity
A sovereign state should stay united.
"Unity is spread of sovereignty''
• Comprehensives
Every member of the state is subject to sovereignty.
7. POWER OF SOVEREIGN
I. According to Hobbes (unlimited)
II. According to Locke and J. Rousseau (limited)
8. CONCLUSION
To conclude we can say that sovereignty is the major aspect of a state. There is no state without
sovereignty. No people can form a state without sovereign power. Sovereignty also has become
the main idea of political science and it’s an essential feature of the state.
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STATE AND ITS ESSENTIALS
1. INTRODUCTION
The state is a politically organized community. "Machiavelli," wrote in his book "Prince, "all
forces which have control or authority on man state". A state is the collection of different things
like population, government, territory, etc. So, in this topic, we will discuss the state and its
essentials.
2. MEANINGS
The worst state is from the English word "status" which means condition/circumstances.
State
⬇
Status (English)
⬇
Circumstances/Condition
3. DEFINITIONS
a) Blunstchli
Organized political community having recognized territory and a well-defined government.
b) Merriam Webster
People organized for law within a different territory.
c) W. Wilson
Politically organized people of different territories.
4. HISTORY OF STATE/ORIGIN OF STATE

Greek
⬇
Family
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⬇
Tribes
⬇
Village
⬇
Towns
⬇
City
⬇
State
5. BASIC ELEMENTS
• Sovereignty
• Government
• Population
• Territory
6. SOVEREIGNTY
The state is the most important and unique feature of the state. There is no state without
sovereignty. The words Sovereignty are driven from the Latin word superneous which
means supreme authority. However, it is the major feature of a state. It should be united,
permanent, comprehensive, indivisible absolute and the most powerful authority of a state first
stop there are two major aspects of sovereignty.
• Internal sovereignty
• External sovereignty
7. GOVERNMENT
Government is the working agency of the state. It is also a major feature of the state. Besides
sovereignty, there is a government that runs the state. The word government is driven by the
Latin word "Gubernare" which means "rule" or "government". Government is a system or
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group of organized people to govern a state or community. Government is the governing agency
of the state and consists of three main parts/bodies.
• Legislative
• Executive
• Judiciary
8. POPULATION
The whole number of people or inhabitants in a country or a region is called population. The
world population is dried from the Latin word "populous" which means people. The state is a
human institution. Hands population is the element full stop no state can be imagined without
population. The population is a main and basic feature of a state. It is however difficult to fix the
size of the population of a state. The modern state is usually very in population. Some states are
overpopulated and some are population.
9. TERRITORY
Pipal cannot form a state unless they have a defined territory full stop the world territory is
dried from the Latin word "territorium" which means State. The territory is land occupied
by a population from a state. The territory is the material basis of the state.
Land mountains rivers legs within its boundaries.
Territorial water extending 6 miles into sea form cost.
10. MONTIVIDEO CONVENTION 1933

The capacity of a state to enter into relationships with other states
11. CHARACTERISTICS OF STATE

i. Comprehensive
ii. Exclusive
iii. Permanent
iv. Legitimate
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v. Authority
vi. Control
vii. Unique
12. FUNCTIONS OF STATE

• Protection of people
• Justice
I. Essential Functions
i. Rule of law
ii. Welfare
iii. Rights and liabilities
iv. Limit the people
v. Administration
vi. Interaction relations
vii. Resolved dispute
viii. Maintain equality
ix. Regulation of order
x. Liberties
xi. Control over finances
xii. Défense
xiii. Social control and social order
13. WHY STATES ARE IMPORTANT

States are important because: “Man by nature is a political animal.”
Aristotle
The importance of states is given as under:
i. They maintain law and order and safeguard the rights and liberties of the people.
ii. They regulate the activities of people.
iii. States establish peace and eradicate chaos.
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iv. States help in developing one’s personality.
v. States are the only legitimate authority to take decisive actions that will govern a big human
community. No other institution has such power.
vi. States preserve man’s life.
vii. States are against the principle of might is right.
viii. States protect and preserve the property of the individuals.
ix. They are the bastion of innovation and respond best to the needs of their citizens.
x. State controls over production, distribution, and consumption of commodities.
“State is made for man, not man for the state.”
Albert Einstein
14. CONCLUSION
Consequently, we can say that a state is a political community having an organized population
and government are defined territory and enjoys Independence from external threats. sovereignty
government population and territory are the essentials of a state.
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DISCUSS THE PRIMARY AND SECONDARY FUNCTIONS OF
COURTS?
1. INTRODUCTION:
Courts are responsible to perform the functions for the purpose to meet the ends of
justice. These functions are either primary or secondary in nature.
2. COURT – DEFINED:
➢ By Farlex Legal Dictionary
A judicial tribunal established to administer justice, presided over by a judge.
3. MEANING OF PRIMARY AND SECONDARY:

Primary means something of chief importance or principal. While secondary means less
important than, or resulting from something else that is primary.
4. FUNCTIONS OF COURTS:
Functions of courts can be divided into two heads:
i. Primary functions
ii. Secondary functions
5. PRIMARY FUNCTION OF COURTS:

Courts are primarily established to perform their functions which are the re-instatement
of primary rights of public. It is called administration of justice.
Courts in their primary functions only try to resolve conflicts between two subjects.
i. What is administration of justice:
According to Salmond
In administration of justice courts provide maintenance of right in
political country.
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ii. Kinds of administration of justice:
Administration of justice can be divided into two kinds:
i. Criminal administration of justice
ii. Civil administration of justice
6. SECONDARY FUNCTIONS OF COURTS:

Courts are also bound to perform their secondary functions which are classified into five
kinds discussed hereinafter:
i. Administrative actions
ii. Action against state
iii. Title of right
iv. Declaration of right
v. Supervision of lower courts
7. ADMINISTRATIVE ACTIONS:
In certain cases Courts undertake the management and distribution of property of a
deceased person and also of minor whose property is put under the court of Wards.
It is a secondary function of court.
i. Examples:
i. Liquidation of company
ii. Distribution property of insolvent
iii. Distribution of property of deceased
iv. Administration of Trust
8. ACTION AGAINST STATE:

A court of law has a function to adjudicate upon claims of citizen against state.
I. Cross reference:
i. Crown Proceeding Act 1947
A person can claim his right against the Crown.
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ii. Art : 199 of constitution of Pakistan 1973
A person can file a writ petition against the state of Pakistan such as:
a. Wirt of Prohibition
b. Writ of Mandamous
c. Writ of Habeas Corpus
d. Writ of Certiorari
e. Wit of Quo warranto
9. TITLE OF RIGHT:
In certain cases, judicial decrees are employed as a source of creating, extinguishing and
transferring rights.
I. Example
i. Acquisition of domicile by court
ii. Issuance of succession certificate
iii. Adjudication of bankruptcy.
Such kinds of decisions are not as the remedy of wrong but as the title of right.
10. DECLARATION OF RIGHT:

Another function of courts is the declaration of rights of the individuals. This is done
where the rights of the parties are uncertain. The court only gives an authoritative declaration of
the rights of the person concered.
I. Cross reference
Sec: 42 of Special Relief Act 1877
Court may declare a right of party who is apprehended that his right shall be denied in
future.
11. SUPERVISION OF LOWER COURTS:

Superior courts are often armed with the power of supervising the courts below them.
i. Cross Reference:
Art: 203 of Constitution of Pakistan
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Each high court shall supervise and control all courts subordinate to it.
12. CONCLUSION:
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NATURAL THEORY OF LAW
1. INTRODUCTION
The natural law school is not an independent school of thought, it is dependent on analytical
and historical schools. The natural law school and theory are interpreted differently by
different jurists at different times. Natural jurists believe that the law is based on human
nature.
2. MEANINGS
According to Black’s Law Dictionary, natural law means; A physical law of nature.
3. DEFINITIONS
The laws that deal with the relationship between human behavior and nature are called
natural laws.
4. ANCIENT PHILOSOPHERS
All the great ancient philosophers like Socrates, Plato, and Aristotle are also known as the
naturalists because they gave the concept of natural laws:
i. Socrates:
He was a great ancient Greek philosopher, attributed as the Father of Philosophy. He was
also a naturalist.
“Law is a product of straight thinking of mankind.”
[Socrates]
ii. Plato:
Plato is the student of Socrates and his thinking is also influenced by Socrates.
“Laws are partly formed for the sake of good men.”
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[Plato]
iii. Aristotle:
Aristotle is known as the originator of rule of law.
“Law is order and good law is good order.”
[Aristotle]
5. CONCEPT OF THOMAS AQUINAS

Thomas Aquinas was an Italian natural jurist of the 16th Century.
He means that natural law is a part of the divine law and this part is applied by humans to
govern their affairs and relations.
“King represents the natural order of God.”
[Thomas Acquinas]
6. NATURAL LAW AND SOCIAL CONTRACT

There were three exponents of social contract they talked about the state of nature the main
explanation is as under;
• Thomas Hobbes
• John Locke
• Rousseau
I. Thomas Hobbes
According to the Hobbes state of nature is greedy poor short temper and nasty
II. John Locke
According to John Locke, the state of nature of man is rational and wise
III. Rousseau
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According to Rousseau, the state of nature of man is varying content
7. CHARACTERISTICS OF NATURAL LAW

The characteristics of natural law are given as under:
➢ Natural law is based upon morals and ethics.

➢ It is used to defend.
➢ It maintains the status quo.
➢ Natural law is always universal.
➢ It is backed by sanctions.
➢ Natural law is always consistent.
➢ Natural law reflects the concept of the Rule of Law.
8. RELATION WITH DIVINE LAW

Divine law is a law given by divine authority and the divine authority is the supernatural
authority so there is a great relationship between divine and natural law.
9. MORALITY AND ETHICS

Natural law is truly based on the principle of morality and ethics
“Law is the king of all mortal and immortals”
(Justinian)
10. MODERNERND CONCEPT

The modern concept of natural law theory is given by
➢ Koehler
➢ Stammler
➢ Finnis
The Details are as Under;
I. Rudolf Stamler
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He was a German Jurist and was much more influenced by positive law.
According to Stammler, the law should be sovereign without any interference.
Key Notes:
• Germen
• Influenced by positive law
• Law should be the sovereign
• Without any interference
II. Finnis concept
John Finnis is a famous Australian legal philosopher of the present Century.
“Natural law is a set of practical, reasonableness
in ordinary human life and human community.”
[Finnis]
According to Finnis, the law is that which fulfills the basic goods. The basic goods are
given and explained as under:
➢ Life:
Everyone has a right to life.
➢ Knowledge:
It is the process of knowing the unknown with the help of empiricism and rationalism.
It is an important and basic need of men.
➢ Social life:
Socialization is an important process for all beings, therefore right to social life is a basic
need for all men.
➢ Role:
It is the expression of the status of a human being in practical form.
➢ Religion:
It is the belief and faith in the supernatural power.
Key Notes:
• Law is that which fulfills the basic goods

• Life
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• Knowledge
• Socialization
• Role
• Religion
11. RELATION
The natural law has a strong relationship with:
➢ Eternal law
➢ Divine law
➢ Morality and ethics
➢ Human nature
12. CRITICISM
The criticism of natural law theory is given as under:
➢ Natural laws do not always conform to the needs of society.
➢ In natural laws, morality and human nature are a varying content i.e vary from person to
person.
➢ Rules of morality are non-amendable.
➢ Disputes regarding morals and nature cannot be subject to judicial courts.
Key Notes:
• Disputes regarding morals and nature cannot
• Be subject to judicial courts
• Non-commendable
• Verifying content
• No place for legislative authority
13. CONCLUSION
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LEGAL POSITIVISM
1. INTRODUCTION
It is easier to explain the terms rather than to define them, the same is the case is in with the
law. Every jurist has defined law according to his school of thought. Therefore, some jurists
have a point of view that the commands of the sovereign are laws or simply only man-made
laws are laws.
“Leader is the law and law must be obeyed.”
[M. Qaddafi]
2. MEANINGS
According to Jeremy Benthem and Austin legal positivism means:
“Laws are command”.
3. DERIVATION
Legal. Positivism
⬇ ⬇
Legume (Latin). Positum
⬇ ⬇
Law. As it is
Law as it is
4. DEFINITION
According to Sir John Austin:
“Law is a general command of the sovereign, given to inferiors, and backed by sanctions.”
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5. OTHER NAMES
Other names for legal positivism are:
i. Imperative theory of law
ii. Austin Theory of law
iii. Positivism Theory of law
6. FATHER OF THIS THEORY

John Austin is attributed as the father of the theory,” Legal Positivism.”
7. ILLUSTRATION
Road Traffic Act 1960, is the law made by the Queen in Parliament (The sovereign
authority) itself. Though it’s the best illustration of legal positivism.
8. EXPLANATION
Legal positivism is to study law as pure science.
According to the positivists, there are two types of law;
i. Devine law
ii. Human law
Their detail is given as under;
i. Divine Laws:
These are the laws that are given by the divine authority. The positivists have no belief in
the defined power hence the divine laws have no importance in the eyes of the positivists.
Therefore, according to legal positivism, there is no place for divine laws in human life.
ii. Human Laws:
These are the laws that are made by man, by using his rationality and wisdom. These are
the true laws in legal positivism.
Human laws are also called positive laws.
9. FEATURES OF LAW
According to Austin, there are three features of law:
• Law is a type of command.
• Law is laid down only by a political sovereign.
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• Law is always enforceable by the sovereign.
10. CONCEPT OF SOVEREIGN

The concept of the sovereign by legal positivists is given as under:
i. The general command of the sovereign must be considered as laws.
ii. The sovereign’s power is unlimited.
iii. The sovereign is immune from any jurisdiction.
iv. There is no check and balance on the sovereign.
11. CONCEPT OF COMMAND

According to legal positivism, there are two types of command:
i. General command (Considered Law)
ii. Transitory Command (Not Considered Law)
Their detail is as under:
i. General Commands:
These are the commands given by the sovereign in general. The general commands have
a binding force and are considered laws.
ii. Transitory Commands:
These are the commands which are given to the troops during parades or at other
moments. These are not binding on general people and are not considered law.
12. CONCEPT OF SANCTIONS:

According to legal positivism, the concept of the sovereign is that if any inferior doesn’t
follow the command of the sovereign, he/she should be penalized.
13. MERITS OF LEGAL POSITIVISM

Merits of legal positivism are given as under:
• King i.e. sovereign should be absolute and independent.
• There is no limit on the powers of the sovereign. He has the power to do anything.
• Command of a sovereign should be considered as law.
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• Inferiors are bound to follow law i.e. sovereign’s command.
• There is a separation of morals from the law, therefore, a lot of confusion is avoided.
14. CRITICISM
Criticism of legal positivism is given as under:
➢ Legal positivism is termed the “gunman law” by critics. As there is no distinction

between the command of a sovereign and the command of a robber given to the bank
clerk at gunpoint.
➢ There is no limit on the powers of the sovereign which enroots tyranny and is against the
doctrine of rule of law.
➢ There is no place for religion and divine laws in this theory which is wrong because
religion and divine laws have great importance in all the legal systems.
➢ Divine laws are considered invalid, this concept is also completely wrong.
➢ There is no place and concept of international law.
➢ There is a lot of confusion about the generality of law.
➢ No place for any legislative authority.
➢ Denies the concept of ethics and morality, which is completely wrong.
➢ The theory also reflects the concept of “Might is Right” which is against human nature
and the Rule of Law.
Key Notes:
• Gun-Man Law
• No Legislature
• Generality
• No international law
• No morality
• No Ethics
• No Religion
• No Law of Nature
Quotes
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Laws are Laws because these are made by the sovereign and the sovereign is Sovereign because
he makes laws. (Austin)
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PURE THEORY OF LAW
1. INTRODUCTION
Among all the theories of law, the pure theory of law is the most difficult one and it was
given by Hans Kelson.
The theory emphasizes that law should be uniform, generally applied, and pure.
“Justice is primarily a possible, but not a necessary, quality of a social order regulating the
mutual relations of men.”
[Hans kelson]
2. MEANINGS
The pure theory of law means; that the law must be pure (not mixed with anything else).
3. DEFINITION
Law must be pure and uniform, free from external factors, and based on grund norms.
4. MAJOR EXPONENTS
The major exponent of this theory is Hans Kelson. He was an Austrian Jurist and was born in
1881. Kelson was a professor of law at Vienna University. He was also a judge of the
Supreme Constitutional Court of Austria. He is the author of many books and he drafted the
Constitution of Austria in 1920.
Key Notes:
• Hans Kelson 1881 to 1973
• Australian jurist
• Constitution of Austria in 1920
5. ORIGIN
The origin of this theory is in Hans Kelson’s Book “Theorie pure du Droit” which means
“Pure Theory of Law”, and was published in 1934.
6. EXPLANATION
The explanation of this theory is given as follows.
➢ Grund Norm:
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According to this theory, the law is based on the ground norm. Grund’s norm is the
starting point of their philosophy of Kelson. According to Kelson the knowledge of law
consists of normative prepositions.
“Knowledge of the law is the knowledge of norms.”
[Hans Kelson]
➢ External Factors:
According to Kelson, the law must be free from external factors. These external factors
include:
• Ethics
• Politics
• Religion
• Society
• History
• Morality
• Nature
• Rationality
➢ Positivism:
Hans Kelson belongs to the Positivistic school of thought, that laws are made by human
beings and the grund norm of an area is the law as it is.
7. SALIENT FEATURES
The salient features of the pure theory of law are given as under:
i. Reduce Chaos:
The aim of the pure theory of law is the reduction of chaos in society.
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ii. Multiplicity of Unity:
All the people in society respect the grund norm of that society and if that grund norm
becomes the law, people shall be united together.
iii. Normative Science:
This theory declares that law is a normative science and not a natural science.
iv. Formal Theory:
It is a formal theory confined to a particular system of positive law as actually in

operation.
v. Deals with What Law is:
The pure theory of law deals with what law is, and is not concerned about what law was
and what ought to be.
8. GRUNDNORM OF PAKISTAN
• Islam
9. MERITS
The merits of this theory are given as under:
• Kelson recognized international law as law.
• It is best for peaceful change.
• It makes the most refined development of analytical positivism.
• The concept of law is clear, legal, and striking.
• No law can prevail contrary to the grund norm.
10. CRITICISM
➢ Grund norms are vague and confusing.
➢ The purity of law cannot be maintained.
➢ No distinction between public and private law.
➢ No legislative authority.
➢ Less applicability.
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➢ International law is the supreme law, that is wrong.
➢ Declines the concept of morality, ethics, religion, society, and natural laws.
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AMERICAN LEGAL REALISM
1. INTRODUCTION
American legal realism is the sociological, naturalist, and positivist approach to law. In legal
realism, there is no place for pre-enacted rules. The decisions are based on rationality. In
legal realism respect to only precedents is given.
“When every man lives without law, every man lives without freedom.”
[Joseph Ratzinger]
2. MEANINGS
Legal realism means that only judge-made laws are laws.
3. DEFINITION
i. Law is based, not on formal rules or principles, but instead on judicial decisions that
should derive from social interests and public policy.
ii. Laws are made by the judges by using their rationality and wisdom for each case on the
facts and principles of natural justice.
iii. Law is a product of judgments of courts with social, economic, and contextual influences.
4. LEGAL REALISM IN AMERICA

In America, there is a strong influence of legal realism. American legal realism means that to
decide a case, the judge is not bound by the legislature or parliament.
5. FATHER OF LEGAL REALISM

Oliver Wendell Holmes Jr. is attributed as the father of legal realism due to the publication
of his work Common Law.
6. ORIGIN
The origin of legal realism is in 1881 but it flourished between 1920-1930.
7. KEY POINTS
The key points of legal realism are given as under:
➢ Law is the creation of courts.
➢ Society changes faster than law, there is a need to examine the law constantly.
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➢ Rule of law is not the principal factor to decide the cases, there is a human factor.
➢ A belief in the instrumental nature of the law.
➢ Law is realistic rather than a theoretical fashion.
8. MERITS OF LEGAL REALISM

Merits of legal realism are given as under:
• Laws are made by the rationality of judges.
• Laws can be amended easily.
• Laws are made by the facts and contexts of the cases.
• Laws are in the interest of larger society.
9. LEGAL REALISTS
Some legal realists are given as under:
➢ Jerome Frank
➢ Lord Lloyd
➢ Justice Holmes
➢ John Chipman Gray
10. RELATION WITH LEGAL POSITIVISM

Legal realism has a strong relationship with legal positivism as in both theories laws are
made by men, by using their rationality and wisdom.
11. CRITICISM
Criticism of legal realism is given as under:
• There is no place for legislative authority.

• Realists separate law from morality, which is wrong.
• No place for international law.
• There is also no place for religion and divine laws in legal realism.
• Focused only on litigation.
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CRITICAL LEGAL THEORY
1. INTRODUCTION
Critical legal theory is not an independent school of thought, but it is based on the criticism
of all other theories of law. The critical theories do not follow anything and according to the
law are not based on anything. Therefore, the critique of all other legal theories
“Criticism comes to those who stand out”
(Seth Godin)
2. CRITICISM ON NATURAL THEORY OF LAW

➢ The criticism of natural law is given as under:
➢ Natural laws do not always conform to the needs of society.
➢ In natural laws, morality and human nature are a varying content i.e vary from person to
person.
➢ Rules of morality are non-amendable.
➢ Disputes regarding morals and nature cannot be subject to judicial courts.
Key Notes:
• Disputes regarding morals and nature cannot
• Be subject to judicial courts
• Non-commendable
• Verifying content
• No place for legislative authority
3. CRITICISM ON LEGAL POSITIVISM

Criticism of legal positivism is given as under:
➢ Legal positivism is termed the “gunman law” by critics. As there is no distinction between
the command of a sovereign and the command of a robber given to the bank clerk at
gunpoint.
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➢ There is no limit on the powers of the sovereign which enroots tyranny and is against the
doctrine of rule of law.
➢ There is no place for religion and divine laws in this theory which is wrong because religion
and divine laws have great importance in all the legal systems.
➢ Divine laws are considered invalid, this concept is also completely wrong.
➢ There is no place and concept of international law.
➢ There is a lot of confusion about the generality of law.
➢ No place for any legislative authority.
➢ Denies the concept of ethics and morality, which is completely wrong.
➢ The theory also reflects the concept of “Might is Right” which is against human nature and
the Rule of Law.
Key Notes:
• Gun-Man Law
• No Legislature
• Generality
• No international law
• No morality
• No Ethics
• No Religion
• No Law of Nature
4. CRITICISM ON AMERICAN LEGAL REALISM

Criticism of legal realism is given as under:
• There is no place for legislative authority.

• Realists separate law from morality, which is wrong.
• No place for international law.
• There is also no place for religion and divine laws in legal realism.
• Focused only on litigation.
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LAW OF OBLIGATION
INTRODUCTION
The term jurisprudence derived from latin terms Juris Prudentia which means study of law or
knowledge of law. Jurisprudence is the basis of legal concepts and it clearly determines the
relationship of law with society as well as other disciplines. Be it a student, a practicing lawyer
or a judge, jurisprudence has an educational role to play for every person associated with legal
profession. The most beautiful part of jurisprudence is that it defines the basic legal concepts in
the simplest manner in order to bring clarity and remove ambiguity in interpretation of legal
concepts. One such legal concept that we come across is ‘Obligation’ under jurisprudence.
Generally, the term obligation is used as synonym of commitment and in layman’s language
obligation means the state of being forced to do something because it is your duty, or because of
a law, etc. or as something which you must do because you have promised, because of a law, etc.
But in Jurisprudence this concept has been defined more broadly and in a different way.
To get a clear idea about the nature of jurisprudence let’s have a look on the definition given by
Salmond on the concept of Obligation. According to Salmond- “An obligation may therefore be
defined as proprietary right in personam or a duty which corresponds to such right”
In Black’s law dictionary obligation means moral or legal duty to do or not to do something.
From the above two definition it can be concluded that obligation is far wider than what it is
generally understood as. Accordingly, it can be summed up that obligation arises from a legal
relation between two persons in which one has the right over the other who has the duty towards
the former. Such legal relationship arises for proprietary rights and are right in personam i.e.
right against a person.
Also, elements of Obligation can also be found through definition which are:
Parties: There are two parties generally, the first party is the one who is vested with the right,
second one is the one on whom a duty is vested.
Legal relationship: Parties should be in legal relationship so that there can be appropriate
enforcement.
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Proprietary rights: Obligation arises where there is involvement of proprietary right
Right in personam: Right in personam means right against a person and against the whole world.
Under obligation, there is a right in personam.
SOLIDARY OBLIGATION
Generally, what we see is that the obligation is between two persons but solidary obligation
refers to obligation where more than two persons are involved. In solidary obligation there may
be two or more parties on one hand and two or more parties on the other hand. If there are two or
more people who owe their duty towards a same person, such instance is example of solidary
obligation. Under such circumstance the person vested with the right can make any of the several
persons who are vested with the duty to perform the duty. In other words, it can be explained by
keeping creditor on one hand and several debtors on the other hand who owe same debt to one
creditor then such creditor can ask to pay debt from any one of the several debtors. Solidary
obligation is of three kinds: Joint solidary obligation; Several solidary obligations and Joint and
several solidary obligations, what we see in India is Joint and Several solidary obligations.
SOURCES OF OBLIGATION
There are four sources of obligation, they are as follows:
Contractual obligation: These obligations are the one that arise from the agreement between two
persons.
Delictual obligation: These obligations are the one which arise from torts
Quasi-contract obligation: These are the obligations that arise from quasi contracts.
Innominate obligation: These are the obligations that don’t arise from contract, quasi contracts or
are not like delictual obligations.
OBLIGATION ARISING OUT OF CONTRACTS
Contracts means agreement between persons who legally bind themselves by the terms of the
agreement, such agreements are enforceable by laws and thus are termed as contracts. Section 2
(h) of Indian Contracts Act defines contract as an agreement enforceable by law. Under a
contract, parties to contract have the obligation to fulfil the obligations that they have made
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towards each other. In a contract a party promises to or to abstain from doing something in
exchange of the promise made by the other person. So, we can say that there are rights and duties
from both the sides of the contract which they have obligation to perform. In cases where one
party is unable to perform his obligation or willfully abstains from performing his obligations
then such a situation gives rise to breach of contract and the party suffering from such breach has
a right to enforce the contract forcefully by the other party through the intervention of court.
Rights arising out of contract are right in personam as the remedy available against is the party to
the contract who makes breach of such contracts. Contracts create mutuality of obligations as
both promisor and promise perform their duty and have right against each other in a contract.
OBLIGATION ARISING OUT OF TORTS
Torts is that branch of law which is considered as civil wrong i.e. it is civil in nature. Under
Torts, damages are unliquidated unlike contract where damages are liquidated in nature. Tortious
liability arises from the breach of duty towards another person. Such duty is fixed by law and
people are accepted to abide by such duty when they don’t abide by their duty and cause harm to
other person then the person against whom tort is committed has a right to claim for unliquidated
damages. Hence a wrongdoer has the obligation to pay unliquidated damages towards the person
against whom he commits wrong. Unliquidated damages are the one wherein the amount of
compensation is not pre decided. In torts parties also don’t know each other unlike contracts
where parties are well known to each other. Thus, under torts the obligation is for the payment of
unliquidated towards the person against whom tort is committed and such other person has a
right over unliquidated damage.
OBLIGATION ARISING OUT OF QUASI CONTRACTS
Quasi contracts are the one which are not the contracts as defined earlier. These are though
similar to contracts but are still different. Quasi contracts are the one which are not created by a
formal agreement by the parties through their consent, these contracts are created by the
intervention of the court. A quasi contract is a contract by fiction. The reason behind
implementation of quasi contract is that any person who receives any type of benefit on the cost
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of another person then the cost on which such benefit arose should be restored back so that no
harm is suffered by any person. Quasi contracts are based on equity, justice and good concise.
They resemble contracts but are not actually contract they operate only after intervention of
courts. There should not be any unjust enrichment hence the person who receives such unjust
enrichment has the obligation to restore the person with the cost unjustly received.
INNOMINATE OBLIGATION
Innominate obligations are the one which do not have a specific classification or name because
they are not strictly contractual, deictual or quasi contractual. Obligation under this can be the
obligation of trustee towards beneficiary. A trustee has a fiduciary duty towards beneficiary. A
trustee is made personally liable for breach of duty which he has towards property of the
beneficiary.
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LL.

Sir Faisal Awais

II. Historical Jurisprudence.

III. Ethical Jurisprudence.

Its scope can be underlined as given below:

b) Treatment of a complex idea or concept in its elementary sub-divisions

d) A study of the legal source of law

e) An investigation of the theory of legislation, precedent and custom

f) Classification of the different sub-divisions of corpus jurist or the entire

i) To investigate such legal concepts as property, possession, trust, contracts,

II. Historical jurisprudence

➢ Scope of Historical Jurisprudence

III. Ethical jurisprudence

➢ Scope of Ethical Jurisprudence

(b) Legal Concepts:

6. AUSTIN’ S DEFINITION OF JURISPRUDENCE:

(a)Divisions of Jurisprudence by Austin:

(i) Generic sense:

(a)Expository or Systematic Jurisprudence:

(ii) Specific Sense:

In this sense, he divides the subject into 3 branches:

9. DEFINITION OF JURISPRUDENCE AT PRESENT STAGE:

10. IMPORTANCE AND UTILITY

(a) Remove the complexities of law:

6. ANALYTICAL SCHOOL OF JURISPRUDENCE:

7. HISTORICAL SCHOOL OF JURISPRUDENCE

8. SOCIOLOGICAL SCHOOL OF JURISPRUDENCE:

10. SCANDINAVIAN SCHOOL OF JURISPRUDENCE:

6. ANALYTICAL SCHOOL OF JURISPRUDENCE:

8. DIFFERENCES BETWEEN ANALYTICAL AND

2. JURISPRUDENCE AND SOCIOLOGY:

3. JURISPRUDENCE AND POLITICS

4. JURISPRUDENCE AND ETHICS

5. JURISPRUDENCE AND PSYCHOLOGY

6. JURISPRUDENCE AND ECONOMICS

7. JURISPRUDENCE AND HISTORY

1. CONCEPT OF ADMINISTRATION OF JUSTICE: -

2. IMPORTANCE OF ADMINISTRATION OF JUSTICE: -

There is no better test of a state than the efficiency of judicial system.

ii. According to George Washington:

Administration of justice is the firmest pillar of a government. Law exists

3. DEFINITION OF ADMINISTRATION OF JUSTICE: -

4. ORIGIN OF ADMINISTRATION OF JUSTICE: -

5. STAGES OF ORIGIN OF ADMINISTRATION OF

Following are three stages of administration of justice:

i. First stage of Origin.

6. FIRST STAGE OF ORIGIN:

i. Life at this stage:

ii. Basis of this stage:

iii. Disadvantages of first stage

7. SECOND STAGE OF GROWTH:

i. Basis of this stage:

This stage was based on the concept of:

i. Tooth for a tooth

ii. Abolishment of vengeance:

8. THIRD STAGE OF ADMINISTRATION OF JUSTICE:

i. Modern administration of justice:

The modern administration of justice is a natural corollary to the growth in power

9. NECESSITY OF ADMINISTRATION OF JUSTICE: