UNIT 1 CONCEPT AND BASIC PRINCIPLES

OF LAW
Structure
1.0 Introduction
1.1 Objectives
1.2 Concept of Law: Broad Approaches of Schools of Law
1.2.1 Approach of Natural Law School
1.2.2 Approach of Analytical Positivists School of Law
1.2.3 Approach of Historical School of Law
1.2.4 Approach of Sociological Jurists
1.2.5 Approach of Legal Realists
1.3 Some Basic Legal Concepts
1.3.1 Rights
1.3.2 Duties
1.3.3 Person or Personality
1.3.4 Possession
1.3.5 Ownership
1.3.5.1 Types of Ownership
1.3.6 Property
1.3.7 Liability
1.4 Basic Principles of Law
1.4.1 Principle of Democracy
1.4.2 Principle of Constitutionalism
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1.4.3 Principle of Justice
1.4.4 Principle of Liberty
1.4.5 Principle of Equality
1.4.6 Principle of Fraternity
Let Us Sum Up
Answers to 'Check Your Progress' Questions

Law, simply viewed, is a set of norms that regulate the behaviour of individuals
and the society as a whole. It is integral part of organization of any society. The
existence of norms, howsoever rudimentary they might be, is a prerequisite for
socio-politicalorganization and peaceful co-existence of people. Over the years,
through historical developments, various principles have emerged for improvement
in organization of societies. These principles have gradually helped in better
organization and integration of the norms in more acceptable form called law. In
the process, such principles also got established as legal principles and came to
enjoy the legal sanctity as such.

Apart from the wider organization of society, law is also integral to lives of
individuals as it determines the relationship between and among the individuals
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Essentials of Indian Legal as well as that of the individual(s) with thing(s) and other entities. This has led to
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formation and evolution of concepts such as person, property, rights, duties.
ownership, possession, and so on. The way such concepts are defined in any
legal system and the morality and ethics in any society together reflect the nature
of law of a given society. In other words, different notions about law, its nature,
various legal concepts, etc., are ultimately guided by the purpose sought to be
achieved by them, in a particular way as against others, and the principles on
which it is based. These together constitute a single unit of inquiry.

Since this Unit is the beginning of the course MAEE-002 titled "Basics of Legal
Awareness", we will focus our discussion on the basic concept and principles of
law and other concepts mentioned above, and will study them keeping in mind
their interconnectedness and application in life.

11 OBJECTIVES
After reading this unit you should be able to:
Explain the concept of law in general and also based on various approaches
to law;
Distinguish between different important legal concepts;
Describe different principles of law and explain their existence prior to law
and their importance in organization of many states and modern legal systems;
and
Analyse the implications of various legal concepts in the lives of individuals
and their relationship with other individuals, entities and the State.

CONCEPT OF LAW: BROAD APPROACHES OF

SCHOOLS OF LAW
What comes to your mind when you think about law? Your thoughts may pertain
to a variety of aspects relating to law - concept, nature, source, functions, etc.
You may think of law as the legislations enacted by the Parliament of India or
the state legislatures or law declared by the Supreme Court of India or other
High Courts or social norms, customs, etc., that are prevalent among communities.
You may also think of law as a force or a set of rules/guidelines necessary for
securing peaceful co-existence or as that essentially influenced by the socio-
economic structure and, thus, susceptible to a large extent to be used for
maintenance and reinforcement of that structure. Further, you may think of law
as a set of rules that are binding in nature and enforced by the state.

All perceptions such as those mentioned above about law are useful to understand
what law is and what its aspects are. Thus, with the proliferation of varied ideas
about the concept of law among the students and scholars, there emerged an idea
of some kind of classification of these scholars into different categories on the
basis of the commonalities and differences in their thoughts, popularly referred
to as a 'school of law'. In his seminal work titled "Jurisprudence", Roscoe Pound
(1959) analysed the distinguishing features of various perceptions about what
law is, particularly as viewed by scholars belonging to different schools of law
in terms of their responses to the followingfive points:
 Concept and Basic
1) The element or component that is referred to as "law"; Principles of Law
2) The nature of that element;
3) What makes it obligatory;

-1 4) What form does it take or the source of law; and

5 ) The philosophical views on which it is based.
Here, we intend to introduce you to some of the prominent schools of law so as
to enable you to not only understand, what law is but also assess the contribution
of each of these approaches to the idea of law and their relevance and usefulness
in understanding the Indian Legal S,ystem.

1. Broadly, the approaches of schools of law to the concept of law are as follows.
Approach of natural law school.
Approach of analytical positivists school of law.
Approach of historical school of law.
Sociological jurists' approach to law.
Legal realists' approach to law.
Let us discuss these approaches, in brief, below.

1.2.1 Approach of Natural Law School

Natural law approach is based on the idea that there exist some "objective moral
principles" (Freeman, 2001). It is these principles that constitute natural law.
Questions like what is the source of these objective moral principles and how
these principles are ascertained had invited varying responses in different periods
of history. Based on such variations different notions of natural law emerged.
The medieval notion of natural law reflected the political and social realities of
I Europe built on the foundations of feudalism and the Christian Church
(Friedmann, 1967, p.107). The notion of natural law that gained prominence at
that time reflected the growing popularity and acceptance of Christianity in
medieval Europe. It is in this context that St. Thomas Acquinas, one of the main
I
I
proponents of natural law, derived its origin from the divine wisdom (op. cit.,
p. 108), which directs movements and actions in the universe (constitutes eternal
I
law or Lex eterna) and natural law (Lex Naturalis). According to him (St. Thomas
I
Acquinas), the principles of lex eterna become known to man by means offaculty
of reason. He holds that Lex Humana or human laws are valid within their
province, i.e. the limits of justice as ordained by the higher laws. Lex Humana,
which is the lowest category, is "valid only in so far as it is compatible with
nature and. thus, with eternal law (Ibid).

The social, economic, political and intellectual developments marked by the

renaissance, reformation, struggle against feudalism and the rise of nation-states
helped shape secular, rationalistic and individualistic version of modem natural
law philosophy around the 16'h-18" centuries (Edgar Bodenheimer, 1974). This
overall change in the context also resulted in substitution of "spiritual authority
of divine law" (Friedmann, 1967,p. 114)with "the intellectual authority of reason"
(Ibid). For instance, Hugo Grotius grounded natural law on "an eternal reason
m pervading the cosmos" (Ibid). Thomas Hobbes and Locke emphasized natural
rights of man derived from the nature and essential requirements of human life.
E5sentia1sof Indian Legal The purpose of law, according to them, was to secure these requirements through
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the protection of natural rights in the politically organized society established
through a social contract entered into by people living in the state of nature. The
basic precepts of natural law according to Locke recognize three natural rights
which human beings are borne with, i.e. life, liberty and estate (op. cit., p.123).
The contribution of social contract theorists to the evolution of thoughts about
natural law was followed by an interregnum (as far as contribution to natural
law theory is concerned) on account of the sway held by analytical positivists in
the period between late to the mid 20thcentury. However, the emergence of
totalitarian regimes in the first half of the 20thcentury provided a fertile ground
for the revival of the natural law thought, which was marked by its attack on the
analytical positivist approach of considering law as merely the one that is posited
irrespective of the nature of its content. Fuller (1995, p.39) enumerates certain
characteristics which are necessary for law to retain its character as law performs
its basic function of guiding human conduct. The modem scholar, John Finnis
(2011) views that principles of natural law are derived from self-evident basic
values or basic goods, and practical reasonableness is a means to achieve them.

Therefore, law according to natural law theorists consists of certain immutable

and self-evident or divine principles which should inform the man-made law. It
is the moral force either on account of divine revelation or on account of self-
evidence and practical reason that makes the law obligatory. The source of law
according to the natural law school could be any of the three formal sources, i.e.
legislation, custom or judicial precedent provided they were based on divine
revelation, nature or reason.

1.2.2 Approach of Analytical Positivists School of Law

With the growth of varied views about what law is, as put forth by the scholars
belonging to the natural law school, the need arose to clear the haze that had
come to surround the very idea of law. Analytical positivists played a major role
in trying to divest law 01' all the external, metaphysical or other worldly influences
which had resulted in making it difficult for common man to recognize what law
is, i.e. the principles that are under an obligation to follow. They sought to put
forth clear and identifiable definition of law. Unlike natural law thinkers, analytical
positivists are not concerned with which higher principles should the law embody,
but concerned with what law is. According to them, law is what is created or
posited by a recognized authority in a legal system. Thus, according to them, the
element that is called law is positive law, i.e. law as posited or created or made.
The nature of law is coercive; the force or coercion or sanction of the authority
makes the law obligatory for the people. The source of law is legislation. Their
philosophical views are based on the idea of utility, i.e. maximum happiness for
the maximum number of people.

The main proponents of this school of law are Jeremy Bentham, John Austin,
Hans Kelsen, H. L. A. Hart and Ronald Dworkin. According to John Austin
(1832, p.9), the province of jurisprudence is positive law. He differentiated
between positive law and positive morality (op. cit., p.10). He defined law as "a
set of rules laid down for the guidance of an intelligent being by an intelligent
being having power over him" or rules set in the exercise of legal rights'conferred
by that superior. He designates such set of rules as positive law (op. cit., p. 11). In
 imposes duty on account of being backed by sanction The fear of sanction, Concept and Basic
Principles of L a w
according to Austin, is the reason which makes the law imperative (op. cit.,
p.19, i.e. absolutely obligatory to follow. Thus, command, duty and sanction
emerge as the three essential ingredients of his notion of law. Indian Penal Code
which lays down rules of conduct is backed by sanction if the rules are violated,
is a perfect example of Austin's conception of law. However, according to Austin,
laws which are not backed by sanction like General Clauses Act, definitional
clauses in various legislations do not amount to law. He rejected rules emanating
from custom as positive morality, i.e. laws set by persons (not by political superior)
(op. cit., p.32). On this basis he also categorized international law as positive
morality as it is not set by a superior and neither is it backed by sanction. His
theory could not explain the laws made in modern constitutional democracies.

Kelsen (1934, pp.359-362) defined legal order as a normative order, i.e. one
consisting of norms' placed one above the other where the lower norms derive
their existence and validity from higher norm which derive their existence and
validity from still higher norm. Finally, in this hierarchy of norms one reaches
the highest norm whose existence and validity cannot be derived from a still
higher norm as there is none, so the validity of this highest posited norm is
presupposed. It is this presupposition that the highest norm ought to be followed
that Kelsen designates as grundnorm. Kelsen who started his engagement with
law in order to give a pure theory of law divested of history, sociology, politics,
metaphysics, etc., ended up in recognizing the metaphysical character of the
basis of the entire legal order, i.e. grundnorm.

Hart (1961, pp.8 1-97) defined law as a combination of primary and secondary
rules. Primary rules, according to Hart, are duty-imposing rules present even in
primitive societies. In India, rules contained in the Indian Penal Code relating to
acts which are forbidden or rules laying down what constitutes civil wrongs
belong to the category of primary rules. However, as the societies develop there
arises the need to add new rules to the already existing rules or change the old
ones which have outlived their usefulness. Also, a separate institution is required
to adjudicate upon the disputes that arise between people on the basis of the
existing rules. All these needs are met by supplementing the primary rules with
certain other rules like the rules of change, rules of adjudication and rule of
recognition which are together known as secondary rules. Secondary rules are
mostly power-conferring rules. Hart argues that in every society there exist a set
of rules which help recognize whether any of the other rules is a rule of law or
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not. This rule is known as the rule of recognition. Rules contained in our
I Constitution pertaining to establishment of legislature to make new rules or amend
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the existing rules as well as provisions pertaining to establishment of judicial
system are examples of secondary rules. It could be anything ranging from
religious scriptures which are believed to lay down the rules of obligation for
people or constitution in modem democracies.

The primary contribution of analytical positivism has been the idea that unlike
natural law, which emphasized that law is something which is derived from
divine revelation or the eternal cosmic order or reason, positivism puts forth the
idea that law can be made. This very well served the needs of the society at the
time when lot of changes were being brought about by industrial revolution.
EsYntials
S! \tern
Indian Lega1 1.2.3 Approach of Historical School of Law
Unlike analytical positivism which concerned itself with what the law is. historical
approach goes back into the past to find out what law was, and derives law from
the norms of the past. The histotical approach evolved in Gennany as a reaction
to the large-scale codification bf laws that was happening throughout Europe at
that time. Scholars of the historical school argued that law is not something that
can be made but it is somcchlng that evolves on its own like language in a particular
society.

The main propbTlents of historical approach are Karl Von Savingy and Henry
Maine. According to Savihgy, iaw is volksgeist, i.e. common consciousness or
spirit ofpeople. It evolves gradually in society out of the silently operating forces.
The common cobscio~snessgets reflected in the customs that evolve in my society
(Dias, 1985, p.378). These customs gradually begin to be viewed as binding on
the people. Thus, law, like lafigdage, emerges in society gradually, grows with
the growth of the society and dies along with it. Therefore, according to the
scholars belonging to the historical school of law, all kinds of social control is
the element that they efef to as law. The nature of law even according to them is
coercive, However, unlike positivists, this coercion does not einetge horn the
sovereign but the sokrct. qf coercion is society itseE it is the social pressure that
makes the law obligatory. According to them, custom is the source of law. Their
philosophical views ate Hegalian which are epitomized by the idea that the law
is ~~nfoldingof human experience. Historical theorists argue that even in modern
societies the law is based on common consciousness and this is reflected in
incorporation of custom into the formal law. In India, the examples of law, as per
the historical school, would be all the personal laws as they are derived from
religiodcustom.

This theory, howevez was used by Nazis and other fundamentalists to rationalize
their actions. Moreover, in any society it is very difficult to find as to what is
common consciousness and it is likely to reduce into the consciousness of the
elite or the dominant group jn any society. There may not be any consciousness
which is co~~rnonlyheld by all the members of society.Further, this notion belittles
the refor~liu~ive
role played by law in modern societies to get rid of the age-old
social evils.

1.2.4 Approach of Sociological Jurists

Sociological jurists approach is concerned primarily about the role of law in
society. It is engaged in dwelling upon what the law ought to be rather than what
it is or what it was. The 'ought' that sociological jurists are engaged with is not
in terms of higher norms, as dwelled upon by the natural law thinkers, but is
integrally related to the societal needs and the purpose that the law should serve
in society. For them, law-making should be based on the assessment of the needs
of the society; once that is done the law-makers should dwell upon the ways in
which these needs can be best served.

The main proponents of this approach are Roscoe Pound, Duguit, Eugen Ehrlich.
Duguit refers to social solidarity as the end or the purpose of law whereas Ehrlich
and Pound recognize reconciliation of conflicting interests in society as the
purpose of law. Interests, according to them, are desires or wants of human beings
which law must try to satisfy.Therefore, an inventory of all the interests should
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 be made. Then, the interests that the law should protect must be recognized. This Concept and Rasic
Wiciples of Law
should be followed by fiuding out ways in which law can give effect to these
interests and then the law should be made giving effect to the interests. They
classify interests into three categories - Individual, Public and Social (Roscoe
Pound, 2000, p. 16).Interests in on& psrsonality like reputation, privacy, freedom,
enterprise, etc., are individual interests, whereas interests in the unity, integrity
and reputation of state arepublic interests, and finally interests in social institutions
like family, religion, interest in general progress, etc., are social interests ((op.
cit., pp.25-325). Law, according to Pound, is sacial engineering, i.e. it plays the
role of reconciling and giving effect to conflicting interests with minimum of
friction. Law functions like an engineer as far as social existence of people is
concerned.

The element which the sociologicaljurists designate as la& is social institutions.

According to them, the nature of law is purposive and it is the purpose that the
law serves in society which makes the law obligatory. They consider legislation,
custom and judicial precedent as source of law. Their ph~losophicalviews are
epitomised by the idea of mnxirnum k p p i ~ e s s f omaximum
r people with minimum
friction. All the social legislations like Workmen's Compensation Act, Payment
of Bonus Act, and Dowry Prohibition Act are illustrationsof law as a reconciliatory
of conflicting interests.

1.2.5 Approach of Legal Realists

Law, according to realists, is what the courts do. Legal realism was a movement
led by Judges iv America. According to them, if a person wants to know what
the law is with respect to qny ~f his actions then he would look into what the
court would bold with respect t~ his action. Justice Holmes (1897, p.460), one of
the proponents of legal realism, remarked "the prophecies of what the courts
will do in fact, and nothing more pretentiaus, are what I mean by the law." Thus,
according to him, law is a prediction of what the courts will do.

Realists inquire into the psychological factors like background of the judges,
etc., in order to predict their decisions. They contend that judges do not apply
law but make it through interpretation and application. The process of decision-
. making is not a deductive process emerging only out of application of rules to
the facts as realists express skepticism about both the rules and facts, calling
them as rule skeptics and fact skeptics. They allege that there are in existence
innumerable rules and number of precedents on every point of law and judges
choose out of many and often inconsistent judicial precedents. Moreover, they
argue that, in any case it is impossible to get to the real facts of the case on
account of missing documents, dead or unfound witnesses, tutored and biased
witnesses, perjured evidence, etc. Therefore, what actually gets recognized as
facts in the court are not generally real facts of the case. Judges have a lot of
leeway in deciding cases on account of innumerable and inconsistent rules as
well as what get recognized as facts of a case in the court of law. Thus, how the
court will decide a particular case can anly be predicted before the actual decision
is delivered by the court, and it cannot be determined beforehand with certainty.
f Some of the proponents of this approach are Justices Holmes, Karl Lewellyn,
Essentials of Indian Legal
System Check Your Progress
Notes: a) Space given below the question is for writing your answer
b) Check your answer with the one given at the end of this unit under
"Answers to 'Check Your Progress' Questions".
1) What do you understand by the term 'law'? Explain the significance of
law.
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2 ) List out different approaches to the concept of law.
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3) What are thefive aspects orpoints based on which Roscoe Pound (I 959)
analysed the distinguishing features of various perceptions of scholars
belonging to different schools of law?
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4) Fill-in the blanks below.
a) Pure theory of law was given by
b) H. L. A. Hart defined law as a set of and rules.
c) Law according to Savingy is
d) Sociologicaljurists view law from the point of view of what it -
e) Judicial Precedent is the source of law according to
f) Natural law theorists are concerned with what the law
 Concept and Basic
SOME BASIC LEGAL CONCEPTS Principles of Law

You are now clear about the concept of law and divergent views about it. Now,
you will easily understand important legal concepts, which we attempt to highlight

i in this section.

II 1.3.1 Rights
Rights have assumed a great significance in the modern world in view of
increasing interests of individuals, societies and the states. When we say that a
person has a right to or over something, it means that something, through an act
or omission by others, is owed to him or he is entitled to something; and if what
is owed to him is not given to him he is said to have been wronged (Allan
Buchanan, 1984, pp.227-246). The idea that a person is wronged gives rise to
remedy under law. Rights therefore alter the position of :n individual from a
mere recipient of charity which may be denied to him whil ,lsically and without
any consequences. Rights, hus, emerge as a major legal :ontrivance through
which the interests of the individual is sought to be given effect to in modern
societies.

Rights also connote standard of permitted action within a certain sphere (Shorter
Oxford English Dictionary mentioned in Paton, 1972, p.284). The specific rights
that are legally protected in any society are based on certain values. In a particular
system, what is right is determined with reference to "the general principles on
which the system is based (Ibid)." Thus, the notion of "rights spring from right"
(Allen, mentioned in Paton, 1972, p.284), i.e. something that is considered to be
right (as opposed to wrang) within the moral sense of the community. When
someone's right is violated or not protected the one responsible for it must be
liable for the actions or omissions in that regard. Thus, principles of liability in
the last analysis must dso be derived from the moral sense of the community"
(Ibid).

Legal rights are those which are recognized and protected by the legal system
(op. cit., p.287). Most of the times, legal rights are protected by enforcing rights,
i.e. directing that it be realized or by granting remedy in case of violation. The
reason behind the recognition 2nd protection of rights by law is attributed to two
primary elements. viz. will or interest. According to the former, law upholds
rights in order to "grant the widest possible means of self-expression - the
maximum of individual self-assertion, and thus, rights are viewed as inherent
attributes of the human will (1b.d). This theory is supported by the notion of
natural rights according to which certain rights are inherent in human beings and
every state must protect these riglts. Moreover, there may be entities that may
not be recognized as bearers of 'will' under law such as an infant, a lunatic, a
corporation, etc., but law does recognize and protect their rights. Therefore, it is
held that the purpose of law is no1 to protect individual assertion alone but certain
interests. Ihering, thus, defines rights as "legally protected interests" (Paton, 1972,
p.289). However, C. K. Allen argles that these theories exaggerate the opposition
between interests and will, and axording to him, the essence of legal right is not
"legally guaranteed power by it;elf, nor legally protected interest by itself, but
the legally guaranteed power torealize an interest" (Allen, mentioned in Paton,

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Essentials of Indian Legal There are Fve characteristics of every legal light that enable us to understand
S! stem
the implications of a legal right. These characteristics are as given below.
A right is vested in a person who may be referred to as the holder of a right
or the person of inherence.
A right is available against a person upon whom is cast the correlative duty
known as the person of incidence.
It obliges the person bound (person of incidtmce) to an act or omission in
favour of the person entitled. This is known ;is the content of the right.
The act or omission relates to something which may be referred to as the
object of right.
I1
Every legal right has a title, i.e. certain facts or events by reason of which
right becomes vested in its owner.
e B for residential purposes. B here becomes the
For instance,Arents his h ~ u s to
holder of the right to use the house for living (such an agreement relates to
transfer of possessory rights only and not right of ownership). Persons bound by
the duty are persons in general. The content of \he right consists of non-
interference with the use of house by B. The object o f the right is the house that
is rented out. The title of the right is the conveyanc:c:, i.e. for instance the rent
agreement by which it was acquired from its owner.,

A look at the conceptual analysis of rights undertaken by Hobbes, Windscheid,

Salmond and finally Hohfeld will help us understaild various implications of a
legal right. They elaborated different meanings that the term 'right' has and the
legal implications of these varying meanings. This was done through a diagram
of jural relations developed through the contribution of aiorementioned scholars. I
i

The completion of this diagram is attributed to an American jurist Hohfeld.

Claim H Liberty

L'
n~ltv &
-x
Nn r l a i m
Liability (+ Disability

Right in the strict sense is claim. When we say 'x' has a claim then it implies a
duty in some other person say 'y'. These are jural correlatives, i.e. claim in x
implies a duty in 'y'. In law the term right is also used to indicate-freedom,which
is as a matter of fact different from a claim. For instance, the freedoms guaranteed
in the Constitution of India under Article 19 may be designated not as claims but
as freedoms. Freedom in 'x' gives rise to a no claim in 'y', i.e. where 'x' has a
freedom 'y' would have no claim against hirn with regard to that freedom. For
instance, freedom of speech and expression in 'x' implies absence of claim in
'y', i.e. 'y' has no claim against 'x'. Liberty1 freedom of speech and expression
implies that the holder of the freedom has the 1ibc:rty to speak or not to speak and
others have no claim against the person to d e ~ l yit. However, limits may be
imposed on the freedom to deny a person freedom to defame another person.
The term right may also be used to indicate powe r. Legally, power is the "ability
in a person to alter the existing legal condition wl iether of oneself or of another"
(Cf Roman Law, mentioned in Dias, 1985, p.33). Liability is the correlative of Concept and Basic
Principles of Law
power, denotes the position of a person whose legal condition can be so altered
(Ibid). Making a will is an instance of power whereby the will changes the legal
status of others in whose favour the will is made. Finally, the term right may
connote immunity. Immunity denotes "freedom from the power of another." For
instance, diplomats are immune from the legal action against them.

You will find more details about rights under Unit 15 "Law of Specific
Performance" of Block 4 of this Course, i.e. MAEE-002.

1.3.2 Duties
'Duty', within law, implies a conduct that is obligatory. Obligation under law,
according to H. L. A. Hart, arises on account of rules, which ensure repetition of
behaviour enjoined by the rules as well as internalization of tho= rules by people,
not on account of the possible sanction that may arise but on account of their
significance as being necessary for maintenance of social life (Cf Roman Law,
mentioned in Dias, 1985,pp.54-85). "Duties express notional patterns of conduct
to which people ought to conform" (Dias, 1985,p.231). Here, we are concerned
with duties under law, i.e. legal as against moral duties, irrespective of the fact
that the two are closely related but not congruent. Duties have been classified as
follows.
Negative and positive duties.
Primary and secondary duties.
Absolute and relative duties.
When the law imposes an obligation to do something then the duty imposed is
said to be positive duty whereas when the duty imposed by law refrains the
individual from doing something the duty is said to be negative duty Primary
duties on the other hand are those which exist independently of any other duty;
for instance, duty not to commit assault, trespass, etc., whereas secondary duty
exists for the enforcement of primary duty, i.e. a duty or pay damages. It may be
remedial, restitutory or sanctioning duty (Venkata Subbarao, 1975,pp. 136-137).

Finally, the classification of duties into absolute and relative was done by John
Austin. He stated that relative duties are those duties which have a right
corresponding to them, i.e. they are correlatives of right; for instance, it refers to
a situation where right in 'X' implies a duty in 'Y'. On the other hand, absolute
duties are those which exist without there being a corresponding right. Austin
gives four illustrations of absolute duties:
Duties towards God or lower animals.
Duties owed to persons indefinitely in the community.
Self-regarding duties.
Duties owed to the sovereign.
The notion of absolute duties put forth by Austin emerges from his stand that
rights vest in some determinate and not in society generally or in a vague entity
like state. Secondly, the notion of absolute duties arises out of Austin's stand that
sovereign cannot be a holder of right.
Essentialsof Indian Legal On the contrary, Salmond dismisses the distinction between absolute and relative
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duties and claims that all duties are relative in nature. Salmond defines duty as
the vinculunz juris or a bond of necessity which binds together two or more
determinate individuals (Fitzgerald, 1966, p.446). Existence of bearer of right is
a sine qua nun for existence of duty in any person. Therefore, according to
Salmond there can be no duty unless there is someone to whom it is due.

1.3.3 Person or Personality

The definition of legal person or personality is not the same as it is understood in
common parlance. "Legal personality is an artificial creation of law" (Paton,
1972, p.391). Legal personality and the term personality as used in common
parlance do not always coincide. Law attributes personality to all those entities
that are capable of bearing rights or duties, so any entity which is capable of the
same is treated as person or personality under law whether or not that entity is a
human being or not. Such a conception of legal personality has resulted in
inclusion of entities like company, idol (Pramatha Nath Mullick v Pradyumna
Kumar Mullick, 1925, p.245) or a fund. Some entities have a restricted legal
personality like infants, lunatics (Paton, 1972, p.393).
By recognizing corporation or a company as legal person, law has enabled the
treatment of the group as a unit. Thus, a company is treated as a unit in any
litigation in which it is a party. This enables the determination of rights or
obligations of the company as a unit irrespective of the inter se liability of the
shareholders (Dias, 1985, p.254). It has also enabled human beings to get together
and carry on business with limited liability. Thus, a shareholder of a company is
liable only to the extent of his share in the company and not beyond. Because
company bears a separate legal personality, its existence is independent of the
existence of the shareholders; thus, a company will remain in existence even if
all its members change or even if all its members die (Ibid). However, when it is
a question of controlling the freedom of action then the courts have adopted the
technique of imputing the actions to specific human beings within the company
as actions can only be performed by human beings and not by notional entities
like company. In such situations, the courts lift the corporate veil and attribute
the actions of the company to certain individuals and fasten responsibility. This
is so done especially in cases of tort and crime.
Idol is also treated as legal person. It can buy or sell property, etc. Similarly, an
lcrtborn child is also a legal person. According to Hindu personal law of
inheritance, an unborn child is considered to be a coparcener, loosely speaking a
person entitled to a share in the ancestral property. Criminal law also recognizes
unborn child as a legal person and an act which is done with an intention of
preventing an unborn child from being born alive is a criminal offence under
Section 315 of the Indian Penal Code, 1860 (IPC). Dead person is not a legal
person as he cannot be a bearer of rights and duties; though law does prohibit
defamation of the dead (Section 499, The Indian Penal Code, 1860) as well as
give effect to his will.

1.3.4 Possession
The notion of possession pertains to a relationship between a person and a thing
- material or non-material. Law protects possession as part of law of torts (See

18
Unit 11 of Block 3 of this Course), law of property as well as criminal law (See
Unit 2 of this Block and Unit 10 of Block 3 of this Course). Theft, for instance, =
 is an offence against possessor of movable property (Section 378, The Indian Concept and Basic
Penal Code, 1860). Like the notion of personality, possession as understood in Prinelpka of Law
law is not the same as it is viewed in common parlance. In ordinary usage a
person is said to be in possession of a thing when he has control over the thing.
Law: however, goes beyond to recognize possession even in situations when a
person cannot be said to be in actual physical control over thing in order to give
effect to certain values. Thus, possession in law is broader than possession in
fact. This is because law seeks to go bzyond protection of actual possession to
give protection even to those who are not in possession but in the general view
of society ought to be in possession In other words, law seeks to protect the
dispossessed against wrongful dispossessor. That's why "law allows possessory
rights and possessory remedies to persons not in actual possession ... by regarding
them as being for legal purposes in possession" (Fitzgerald, 1966, pp.275-276).
Possession in law is considered to be constituted by two elements -physical and
mental. Physical element relates to control over the thing referred to as 'corpus'
and mental element relates to intention with respect to the thing referred to as
'animus'. There is a difference of opinion among legal scholars regarding the
nature of intention required to constitute possession in law. According to Savigny
(1848, pp.275-276) the intention with regard to the thing possessed should be
the intention to hold as owner. Thus, according to Savigny the two elements
which constitute possession are corpus possessionis - effective control, and
animus domini - intention to hold as owner. Such a definition, however, does
not explain the possession of the thing by tenant of a property, pledge, etc where
the person does not intend to hold the property as owner but holds it as mere
possessor. Salmond (Fitzgerald, 1966, p.272), however, considered that
possession consists of two elements - corpus possessionis and animus possidendi,
i.e. intention to exclude others.
The need to protect possession under law emanates from the fact that interference
with possession invariably invites violence (Paton, 1972, p.555). Moreover, "it
is convenient for the law to regard possession as well-founded, at least until a
superior title is shown to exist (op. cit., pp.555-556)." A person cannot be
dispossessed of the thing possessed merely on the ground that he is not the owner
where it is not known who the true owner is (Amory v Delamirie, 1722, p.505).
It is, therefore, said that possession is nine points in law, i.e. possessor has a
better entitlement to the thing against the whole world except the true owner. No
one else except the true owner can challenge his entitlement.
r
1 1.3.5 Ownership
i
I
I
Like possession, ownership also denotes relationship between person and a thing.
However, the nature of the two rights is different. Ownership of a thing implies
1 the following rights with respect to the thing owned:
I Right to possess.
I
1 Right to use and enjoy.
I Right to consume, destroy or alienate.

I I
So, possession is one of the constituents of ownership though not an indispensable
one. That is the primary difference in the nature of two rights, possession and
ownership. Ownership is residuary in character (Fitzgerald, 1966, p.247), i.e. it
persists even in the absence of the former. For instance, even when the owner
transfers to another person the right of possession of the thing owned by leasing 19
Essentialsof Indian Legal out the property or the right to use the property his ownership over the property
System
persists in the form of the residuary rights that remains with him after transfer of
the said rights. Therefore, the aforementioned are sort of lesser rights that go on
ta constitute the right of ownership, and temporary transfer of these rights does
not affect the ownership of the property. These lesser rights are not absolute in
nature but may be subject to general laws of the land pertaining to use and
enjoyment of property.
Ownership extends to tangible as well as intangible things. For instance, the
subject matter of ownership could be land or some material thing as well as
some interest in land of others, debts due to a person, shares in a company,
patents and copyright, among othets. What can be subject matter of ownership is
a matter of public policy that informs the law. So, certain things like "living
persoas, corpses (other than anatomical specimens), things common to all such
as the air and the sea, and things beyond our reach such as the sun, moon and
stars may kc considered as incapable of ownership" (op.cit., p.252).

1.3.5.1 Qpes of Ownership

Ownership is of the following types.
Sole ownership and co-owtzership: Sole ownership is where ownership of
the thing is vested in one person. However, where the thing is jointly owned
it is referred to as co-ownership; for instance, members of a joint family are
co-owners of the joint family property, i.e. they own the entire property
collectively, partners of a firm are co-owners of the firm property.
Vastedand contingent ownership: When the owner's title to the property is
perfect it is called vested ownership, whereas if the title is yet imperfect and
depends on the fulfillment of a condition before it can be said to be perfect
then the person's ownership of the thing is contingent, i.e. dependent on the
fulfillment of the condition.
Trust and beneficial ownership: This categorization of ownership, i.e. Trust
and betteficial ownership "allows for the separation of the powers of
management and the rights of enjoyment" (op. cit., p.256). This is done by
vesting the ownership between two persons - the trustee and the beneficiary.
The trustee owns the property and is under an obligation to use his ownership
for the benefit of the beneficiary. Therefore, in reality the ownership of the
trustee is only nominal and not real for he cannot use the property for his
own benefit. "The purpose of trusteeship is to protect the rights and interests
of persons who for any reason are unable effectively to protect them for
themselves" (op. cit., p.258). The status of the trustee is not that of an agent,
as the property is vested in the trustee and not an agent who is merely an
agent of the owner of the property. Agent can create direct obligations
between the principal and a third person whereas the trustee can only affect
the property and cannot create personal obligations for the beneficiary vis-
a-vis a third party.

1.3.6 Property
Both the concepts of possession as well as the concept of ownership have reference
to the thing or property that can be subject matter of ownership or possession. It
is, therefore, necessary to understand what constitutes property. The term
'property', according to Salmond, refers to proprietary rights in rent, i.e. rights
 to property which are available against the whole world, as against proprietary Concept and Basic
Principles of Law
rights in personain which is a concern of law relating to obligations. For instance,
a patent, copyright, or lease over land would qualify as proprietary rights in rem
whereas proprietary right to a debt or a contract are proprietary rights in personam
(Ibid, p.412). Thus, when property is defined in terms of rights, it does not remain
I
I
restricted to material things. Property may, therefore, be viewed as rights over
one's own property (jura in re propria) or rights over someone else's property
1 (jura in re aliena).

Rights over one's on 11 171operty (Jura in re propria) may pertain to material things
like land and chattel 01. non-material things like patents, copyright, trademarks,
etc. Patents are rights recognized in law for deriving benefit out of one's inventions
so the person who invents a process, product, instrument, etc., has right over the
same. Copyriglits are rights recognized in law with respect to literary, artistic
expression, musical or dramatic works, and the like. Trademarks seek to protect
the right of the person to enjoy the goodwill created by him with respect to a
business or product, etc.

Jura in re aliena, i.e. rights over someone else's property, relates to rights like
lease, servitudes and securities with respect to someone else's property. Lease is
a "form of encumbrance which consists in a right to the possession and use of
property owned by some other person". When the encumbrance relates to chattels
it is called bailment, whereas the term lease is generally used with respect to
encumbrance over land. Servitude, on the other hand, is a kind of encumbrance
restricted to the right of limited use without the possession of it; for instance;
right of way aver someone else's land or right to the passage of light over land to
the house on the adjoining land. "A security is an encumbrance, the purpose of
which is to ensure or facilitate the fulfillment or enjoyment of some other right
vested in the same person" (Ibid, p.428). Mortgage and lien are examples of
securities.

Liability in common parlance means responsibility.Even in law, liability implies

responsibility that the law attaches to wrongs committed by people. Once a
person is held responsible for an act or omission which is forbidden under law,
there arises the need to provide remedy. Remedies are the ways in which law
seeks to enforce the duties imposed on people. According to Salmond, "liability
or responsibility is the bond of necessity that exists between the wrongdoer and
the remedy of the wrong" (Fitzgerald, 1966, p.349). Thus, liability in law is
fastened upon the individual who commits a wrong. Wrongs in law are categorized
as civil and criminal, and similarly, it is common to categorise liability as civil or
criminal; and the nature of these two categories of liability differs.

Civil liability arises when a person is held responsible for a civil wrong. Mere
act or omission forbidden by law resulting in harm to the plaintiff (i.e. affected
party) amounts to a civil wrong. Civil liability is sometimes penal and sometimes
remedial in nature (Ibid), i s . it primarily seeks to enforce the rights of the plaintiff
(person against whom the wrong has been committed) and therefore only aims
at undoing or compensating him for the harm or loss suffered by the plaintiff.
Common examples of civil liability are damages, specific performance,
injunction, etc. Damages covering only the loss suffered by the plaintiff turn out
to be remedial in nature. Damages are generally provided when the breach of
Essentials of Indian-1 duty is such that once broken it belongs to the b'irrevocablepast" (op. cit, p.350),
System
and therefore cannot be specifically enforced. The only remedy available in such
cases would be to impose damages upon the wrongdoer. However, for instance,
if breach of contract has been committed but it is possible to force the wrongdoer
to perform his part of the contract then the law may impose the liability of specific
performance. In instances like nuisance which is continuing, an injunction
directing the wrongdoer to stop committing nuisance may be the best remedy.
As mentioned earlier, civil liability is generally remedial in nature. However,
sometimes we find the courts imposing exemplary damages which aim not only
at undoing the damage but also detemng others from committing such wrongs
in future.

Criminal liability is imposed when a person commits a criminal offence. Criminal

liability is penal in nature, i.e. the purpose is to punish the wrongdoer. So, the
primary aim of penal liability is to punish the wrongdoer and to protect the society.
The purpose of penal liability is either to deter others or incapacitate the person
who committed the wrong. Therefore, criminal liability is traditionally offender-
centric rather than victim-centric. However, the new developments in penology
have introduced the notions of reformation, rehabiliation and restoration as the
ends that punishment seeks to achieve. These notions seek to go beyond the idea
of mere punishment, to reform of the offender as well as restoration of peace in
society.

For the imposition of penal liability, law requires that certain conditions must be
satisfied. Unlike civil liability, criminal liability is not based on the mere
commission of an act forbidden by law but requires that such an act be
accompanied by guilty mind or mens rea. The idea is captured by the maxim
'Actus nonfacit reum, nisi mens sit rea', i.e. the act alone does not amount to
guilt, it must be accompanied by a guilty mind (op. cit., p.351). Therefore, for
criminal liability the will or the intention to commit the crime must be present.
The criminal intent or the mental element of any conduct alleged to be a crime
has to be proved before holding a person liable for an offence. Motive, purpose,
design or plan are generally used to indicate the existence of criminal intent.

You will learn, in greater detail, about the liabilities in Block 3 of this course,
which is devoted to liability creating laws.
Check Your Progress
Notes: a) Space given below the question is for writing your answer
b) Check your answer with the one given at the end of this unit under
"Answers to 'Check Your Progress' Questions".
5 ) What are the characteristics of a 'right'?
................................................................................................................
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................................................................................................................
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I 6 ) Explain the difference between the concepts of 'possession' and 'ownership'.
Concept and Basic

................................................................................................................
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................................................................................................................
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7) What are the different types of ownership?
................................................................................................................
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................................................................................................................
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................................................................................................................
................................................................................................................

8) Fill-in the blanks below.

a) Jural correlative of claim is ,while that of
power is
b) Company is a in law.
c) Jurain repropriaisrightover PrOPe*Y,
whereas jura in re aliena is right over property.
d) The act alone does not amount to guilt it must be accompanied by a

1.4 BASIC PRINCIPLES OF LAW

In the preceding sections, we have studied the concept of law and some important
legal concepts. Therefore, it is now easy for us to understand the principles on
which the law is based. It is important to note that the principles of law are not a
creation of law but they existed before law was formed, or rather they formed
basis for formulation of law. In fact, law is integrally related to certain ideas like
democracy, justice, constitutionalism, equality, liberty, fraternity, etc. Law that
prevails in a particular society is not only based on these ideas but, in turn, it also
contributes through its rules in reinforcing and strengthening the particclar notion
of these ideas which it has adopted. The purpose of our discussion in this section
is, therefore, to familiarise you with some of the notions that prevail -principles
- within each of these ideas as well as to indicate how these influence law and ill
turn are strengthened by law.

1.4.1 Principle of Democracy

The term democracy is derived from the word 'demos', which means people.
Abraham Lincoln referred to the democratic form of government as govel-nment 23
EssentialsoflndianLegal of the people, by the people and for the people. This statement imbibes some of
System
the fundamental features of democracy, i.e. equality recognizing "equal
distribution of political power and influence", and "popular participation"
(Andrew Heywood, 2000, p. 125) in the process of governance, which ensures
autonomy of individual, i.e. his control over his "own person, decision and life
choices" and "rule in public interest" (Niraja Gopal Jayal, 2001, p. 10). Values
like equality, autonomy and freedom provide justification for democratic form
of government. Different models of democracy emerge out of the combination
of these three justificatory principles/values and on account of the fact as to
which out of these three plays a dominant role (Ibid).
Popular Democracy
Liberal Democracy
Social Democracy
Participatory Democracy
Deliberative Democracy
Popular Democracy: It is based on the idea of people ruling themselves as free
and equal beings. This model of democracy emerges out of the combination of
the values of freedom and autonomy. Representative democracy is a form of
popular democracy. This model of democracy seeks to achieve the ultimate
political value of 'popularwill '. It seeks to do this by recognizing formal equality,
in the form of "adult franchise, free and fair elections, freedom of speech and
expression, freedom of association, rule of law and inclusive citizenship" (Ibid, D

p. 11). J

Liberal Democracy: Like the popular model of democracy, this model also
emerges from a combination of the values of freedom and autonomy. However,
unlike the popular model it denies that the "popular rule is the ultimate political
value" (Amy Gutmann, 1992, p. 143). In the liberal model, a set of basic liberties
like freedom of thought, speech, press, association, religion, the right to hold
personal property, freedom to vote and hold public office, freedom from arbitrary
arrest and seizure, etc., take priority over popular rule (Ibid). Liberal model seeks
to put constraints on the popular will in order to protect the liberties of individual.
Therefore, non-majoritarian contrivances like judicial review, separation of
powers, checks and balances find place in this model of democracy as a means
. to better secure individual rights as compared to majoritarian institutions.

Social Democracy: Social democracy emphasizes the value of equality and seeks
to realize actual exercise of autonomy and liberty by individual by going beyond
mere formal equality. It seeks to extend the process of democratization to the
private realm of family, realm of economy etc. They believe that personal freedom
and political equality of democratic citizens can only be achieved by "removing
the disadvantages that accrue from their social subordination or economic
deprivation7'(Niraja Gopal Jayal, 2001, pp. 11-12). Social democrats emphasise
the importance of redressing the social, economic and gender inequalities that
originate in the concentration of economic power, existence of social hierarchy
in society and the dominance of patriarchy.

Participatory Democracy: Participatory democracy seeks to extend the scope of

people's participation in collective decision-making beyond that of liberal
24
democrats who place greater emphasis on protecting personal freedom compared Concept and Basic
Principles of Law
to participating in politics (Amy Gutmann, 1992, p.415). Proponents of
"participatory democracy question the worth of the formal rights of participation
which, on account of inequalities of gender. ethnicity, race and class, are denied
to large number of people (Niraja Gopal Jayal, 2001, p.13)." Participatory
democracy can be viewed as a response to the problems associated with the
representative democracy like that of "inadequate political understanding and
information among the electorate, increasingly low levels of voter turnout,
corruption and other violations of democratic accountability by public officials
all of which can be attributed to the non-realisation of people's participation in
large-scale representative democracies"(Amq Gutmann, 1992, p.4 15).

Deliberative Democracy: This model "privileges the principle of autonomy. in

alliance with the principle of freedom and equality. in its interpretation of popular
rule as a means of encouraging free and open public deliberation on issues of
common concern" (Niraja Gopal Jayal, 2001, pp. 13-14). "In a deliberative
democracy people collectively shape their own politics through persuasive
arguments" (Walzer, 1983, p.417). Deliberative democracy gives primacy to
"publjc's considered judgments arrived at after due deliberations, argumentation,
evidence, evaluation and persuasion" (James S. Fishkin, 2002, p.235). Fishkin
argues that the challenges that deliberative democracy is faced with is taking
into account preferences even of those u ho do not participate in deliberations as
well as avoiding unjust outcomes (Ibid).

Model of Democracy in India: Democracy as an organizing legal principle of

the union of India stands explicitly embodied in the Constitution of India -
Preamble of our Constitution, provisions relating to universal adult franchise
(Articles 325,326), representative character of legislature (Articles 80, 81, 170,
17 1) as well as the executive (President, Council of Ministers), qualifications
for membership of Parliament (Article 84), of state legislature (Article 173),
qualifications for election as President (Article 58). Vice-President (Article 66).
qualifications for appointment as Governor (Article 157).Apart from provisions
relating to equality in the political sphere, which is sought to be secured through
the abovementioned provisions in the Constitution, other aspects of democracy
like freedom, social and economic equality that emerged in our discussion
pertaining to different notions of democracy also find reflection in our
Constitution. For instance, the Constitution guarantees freedom of speech and
expression (Article 19(l)(a)), peaceful assembly (Article 19(l)(b)), freedom to
form associations and unions (Article 19(l)(c)), movement (Article 19(l)(d)),
residence (Article 19(l)(e)), freedom from arbitrary arrest and detention (Articles
20,2 l,22). and freedom of religion (Articles 35,26). Equal it) in the legal sphere
(Article 14), social sphere (Articles 15,17, 18) and equality of opportunity in the
matters of public employment (Article 16) stand guaranteed by the Constitution.
Economic equality is not guaranteed as a fundamental right. However. Directive
Principles of State Policy recognize principles relating to economic equality as
fundamental in the govenlance of the country and enjoin upon the state to give
cffect to these principles in the formulation of laws and policies of the state
(Articles 37,38,39,41,42,43). Besides these, recent events in India with respect
to framing a law for establishment of Lok Pal reveal the disenchantment of people
with representative democracy and reflect an attempt towards engaging with
participatory and deliberative democracy.
System
of IndianLega1 1.4.2 Principle of Constitutionalism
In narrow sense, constitutionalism implies "limited government brought about
through the existence of a Constitution" (Andrew Heywood, 2000, p. 124). It is
achieved by the rules laid down in the Constitution putting constrains on the
government institutions and political processes. In the broad sense, constitutionalism
"refers to a set of political values and aspirations that reflect the desire to protect
freedom through the establishment of internal and external checks upon
government power" (Ibid).

The Constitution of India embodies the principle of Constitutionalism.The powers

of the government are sought to be restricted by imposing the requirement that
the executive actions should be in accordance with law and law made by the
legislature should be in accordance with the Constitution. For this purpose the
power of the state stands divided among the three different organs, i.e. executive,
legislature and judiciary. The principle of separation of powers is sought to be
achieved through the provisions in the Constitution embodying broad separation
offunctions and personnel in the three organs as well as a system of checks and
balances which the Constitution provides in order to limit the powers of the
government (Articles 53,73,154,163,245,246,131-138).The power of judicial
review of executive action (Articles 20, 21, 22, 32 and 226 as well as judicial
review of legislation (Articles 245, 246, 13, 21, 32 and 226; also see Maneka
Gandhi v Union of India, 1978) further ensure that the power of the different
organs is limited. Even the federal structure of the state embodied in the
Constitution seeks to divide power. Furthermore, fundamental rights (part-111)
guaranteed by the Constitution seek to secure certain values like equality, liberty
and dignity of individuals against an onslaught by the state.

1.4.3 Principle of Justice

"Justice is a moral value, i.e. one of the aims or purposes that man sets himself in
order to attain the good life" (Dennis Lloyd, 1991, p.116). Aristotle, for the first
time, distinguished between "corrective justice" and "distributive justice"
(Freeman, 2001, p.523). Broadly speaking, corrective justice pertains to
restoration of equality after it has been disturbed on account of wrongdoing (Dias,
1985, p.65). It seeks to achieve justice between parties (Freeman, 2001, p.523).
Remedy for tort is an example of corrective justice. Corrective justice imposes
an obligation on the person committing a wrong to compensate the other person
against whom the wrong is committed. "The victim has a correlative right to
recover for his losses" (Perry, 1992,p.564). On the other hand, distributivejustice
is concerned with the larger distributive issues in society as a whole (Ibid).
According to Aristotle, distributivejustice deals with the distribution of honours
and rewards by the state to persons according to their deserts (Dennis Lloyd,
1991, p.122). Distributive justice has been the primary concern of scholarly
enquiries into the idea of justice.

A number of philosophers (Aristotle, John Rawls, Robert Nozick and others)

have suggested varied notions of justice, i.e. the fundamental principles for
establishing a perfectly just society, while others have desisted from the same
arguing against the inadequacy of such theories in helping us justly resolve the
i\sues in the contemporary societies (Amartya Sen, 2009). Since, one of the
 Concept and Basic
primary pulposes of law is to secure a jus't order not only by ensuring just Principles of Law
resolution of disputes but also by securing just distribution of "means of
production" (see generally Karl Marx), "honours and rewards" (Aristotle) or
"primary goods" (John Rawls, 2000). Further, recognition and respect for differing
identities of people has also emerged as an aspect of justice.

The debate with respect to the idea of justice ranges from untilitarianism and
contractarianism to entitlement. According to utilitarians, society is considered
to be rightly ordered or just and the major institutions are arranged in such a way
as to achieve maximum happiness for the maximum number of people. The
rationale behind it is that individuals' actions are guided by a desire to achieve
greatest good for oneself (Henry Sidgwick, 1907, p.23), therefore, the greatest
good for greatest number appears just as an extension of rational choice for one
man to the entire society. Henry Sidgwick, Jeremy Bentham, and J. S. Mill have
been the main proponents of the utilitarian approach. The utilitarian approach,
however, would accept inequalities, curtailment of liberty of a few provided the

:I'
total benefits outweigh the costs.

On the other hand, John Rawls (2000, p. 120) in 'A Theory of Justice ' puts forth
a contractarian approach to justice. His view of a just society is based on the
principles that people would agree to in what he calls "original position." This
is, however, a hypothetical situation imagined by Rawls to arrive at the principles
of justice. In 'original position' people do not know about their place in society,
i.e. their sex, status, social position, class, colour, religion, abilities, intelligence,
strength, etc. (Op. cit., p. 137). In such a situation, Rawls argues people would
agree to the following principles of justice:
"The maximum of liberty, subject only to such constraints as are essential
for the protection of liberty itself'.
Equality for all, both in the basic liberties of social life and also in distribution
of all other forms of social goods, subject only to the exception that
inequalities may be permitted if they produce the greatest possible benefit
for those least well-off in a given scheme of inequality, "the difference
principle".
Fair equality of opportunity and the elimination of all inequalities of
opportunity based on birth or wealth" (John Rawls, 1972, pp.524-525).

Rawls argues that these principles of justice would be preferred to others as they
"affirm everyone's g o o d (John Rawls, 2000, p. 177). On the basis of the third
principle, it is argued that Rawls espouses qualified egalitarianism (Freeman,
2001, p.524).

Robert Nozick (1974, pp.534-537) proposes redistribativism, prefers minimal

state and puts forth entitlement theory of justice. His theory, unlike others, is
historical. He argues that distribution in any society is just if people's holdings
in the society are just. By just holdings he means holdings that are based on:
Just original acquisition.
Just transfer.
Rectification of injustices in the first two senses.
Essential5ofIndianLegal Ile, therefore. decries taxation by the state in order to achieve redistribution. Hi\
\\stem
theory, thus, defends libertarian capitalism.

The principle of justice informs the law both of its role in addressing the wrongs
as well as its distributive role. The principle of corrective justice stands
incotporated in law through the principles governing determination of damages
to be paid by the tortfeassr. Even in the law of contract which also seeks to
redress wrong against another person the principles pertaining to determination
of damages under the Indian Contract Act are based on the principle of corrective
justice. As far as distributivejustice is concerned the preamble to the Cotistitution
of India recognizes securing justice -- social, econonlic and political - as one of
the aims. The Constitution of India not only prohibits discrimination on the basis
of social origin like caste, religion, gender, etc., but also goes beyond it to secure
"opportunities," "liberties," "bases of self-respect" by enabling the state to take
special measures with respect to women and children (Article 15(3j), ~cheduled
castes and scheduled tribes (Articles 15(4), 16(4), 16(4A) and Articles 330,332,
and Schedule 5), socially and educationally backward classes (Article 15C4) and
Article 16(4). As far as rediq~rihutionof resources is concerned, the history of
Constitutional amendments (1 4th,17th,44thAmendments to the Constitution)
'I.

in India is a testimony to the commitment of the state with respect to abolition of

feudal structures like Zamindari and land reform legislations. Moreover, as
mentioned earlier, the Directive Principles of State Policy embody provisions
for securing equitable distribution of resources, etc.

1.4.4 Principle of Liberty

1,iberty or freedom, in its broadest sense, refers to "the ability to think and act as
one wishes" (Andrew Heywood, 2000, p. 129). It is essential to enable a person
to exercise his autonomy with respect to the kind of life an individual wants to
lead. 't.Iowe\er, ability of a person to determine for himself and be actually able
to lead the kind of life he wants depends not only on conditions which ensure
non-interference with his actions but also conditions that enable him to achieve
what he desires.

Liberty, therefore, has two aspects - negative and positive. Liberty, in the negative
aspect, implies "non-interference or the absence of external constraints upon the
iradividual" (Ibid). It requires nothing other than non-interference by other
individuals as well as the state. Freedoms (Article 19) recognized under the
Constitution of India as well as the right to personal liberty (Article 21) and
freedom from arbitrary arrest and detention (Article 22) guarantee non-
interference by the state. Wrongful restraint (Section 339, The Indian Penal Code,
1860) and wrongful confinement (Section 340, The Indian Penal Code, 1860)
are forbidden under the criminal law. Absolute freedom is antithetical to the
very notion of freedom itself. Therefore, the Constitution of India as well as
statutory law subjects freedom to reasonable restrictions. The state can irnpose
reasonable restrictions on the freedonrs recognized under Article 19 on various
grounds, viz. sovereignty and integrity of India, public order, etc. Offences like
defamation (Section 449, The Indian Penal Code, 1860), trespass (Section 44 1.
The Indian Penal Code, 1860), etc., restrict the freedom of individuals vis-a-vis
each other. A significant aspect of the Constitution with respect to liberty is that
i! cannot merely be curtailed through an executive order. Since individual is
guaranteed personal liberty under the Constitution, the basic law of the land, the
i

guarantee also seeks to protect individual liberty against arbitrary actions of the Concept and IlaGc
- Principles ol' I ,a\\
executive. Therefore,it requires that the liberty of individual can only be curtailed
in accordance with procedure established by law and not otherwise. Thus, only a
law that is duly made by the legislature can lay down rules regarding curtailment
of liberty. Moreover, the duly enacted law cannot just provide for any procedure
for curtailment of liberty but the procedure that the law should provide has to be
fair, just and reasonable and not arbitrary and fanciful, i.e. the procedure iriust
embody the principles of natural justice (Maneka Gandhi v Union of India, 1978,
p.597).

Liberty in its positive aspect is linked to "the achievement of some identifiable

goal or benefit, usually personal development or self-realization" (Andrew
Heywood, 2000, p.129). It implies removal of impediments in the way of the
individual in exercising his freedom (Gauba, 2003, p.3 16).Realisation of liberty
in its positive aspect by an individual requires a more proactive role of the state
in terms of creating conditions where people do not remain deprived of basic
necessities of life and also creating enabling conditions for people to pursue
their aims. Whereas in ensuring liberty in its negative aspect the state iq only
required to maintain institutions and structures like judiciary, police, etc to ensure
non-interference in individual's liberty either by the state itself or other individuals.
Affirmative action envisaged in the Constitution (Articles 15(3), 15(4), 16(4))is
geared towards taking initiatives in the form of special protections, establishment
of conditions for enabling individuals to actually enjoy their liberty in its positive
aspect.

1.4.5 Principle of Equality

When we refer to people as equal, what does it mean? Does it mean that they are
same, and therefore should be treated as the same under law or does it recognize
the different social, economic or other status and, thus, legitimize differential
treatment under law without really questioning the basis, origin or results of
these differences. In fact, both the ideas get reflected in the notion of formal
equality. It is based on the idea that like should be treated alike and unlike should
be treated differently. It is embodied in Article 14 of our Constitution, which
provides for equality before law and equal protection of laws. It implies that
everyone irrespective of his status, etc., is subject to the same law and jurisdiction
of the same courts. Provisions pertaining to political equality like universal adult
suffrage also reflect the notioil of formal equality as it provides for one person
one vote as well as same eligibility criteria for contesting elections, etc.
Formal Approach: This approach encompasses two methods or principles of
treatment of people. One is, same treatment and, the other is, differential treatment.
Under the same treatment principle, people are clubbed into one category
irrespective of difference of gender, caste, etc on the ground that these are
illegitimate grounds for providing differential treatment. It is believed that
recognition of these differences would only reinforce the stereotypes and
subordination. It seeks to set same standards or rules for everyone. The principle,
thus, gives rise to rules which are general in character and subject people existing
in different social realities to same standards. These standards operate differently
with respect to different people on account of their differential realities.
b
The differential treatment principle, within the broad category of formal equality
recognizes the difference like that of gender and seeks, for instance, to treat
Essentialsof Indian Legal women differently from men. The problem in relation to this approach arises not
System
in the recognition of difference but how it treats the difference. The differential
approach within formal notion of equality would recognize the gender difference
and differential need of women on account of the same. This perceives women
as weak, subordinate and in need of protection and, thus, seek to protect them
without questioning the ideological basis of these assumptions. This approach
rather reinforces,thenegative gender values attached to women. Similarly, in the
context of caste, this approach would seek to recognize the distinct role of different
castes and without questioning the same would seek to protect people within
different caste categories.

Substantive Approach: Substantive approach to equality focuses on diversity,

difference, disadvantage and discrimination.It not only recognizes the distinctions
on the basis of gender, caste or race but also seeks to go beyond mere recognition
of such distinctions into the assumptions or reasons and disadvantages arising
out of these distinctions. Thus, unlike the difference approach which is based on
acceptance of distinctions without questioning them, this approach seeks to
question the basis and origin of these distinctions and further seeks to correct the
disadvantages and discrimination that emerge out of these assumptions. "It seeks
to eliminate existing discrimination faced by the disadvantaged groups at the
individual, institutional and systemic levels through corrective and positive
measures. Its principle concern is to ensure that law corrects the imbalance and
impacts on the outcome by ensuring equal opportunities, access and benefits"
(Madhu Mehra and Amita Punj, 2004, p.26). Rather than equality of treatment it
focuses on equality of outcome (Ibid). The provisions in the Constitution of India
providing for reservation of seats for the scheduled castes and the scheduled
tribes in Parliament, Legislatures and public employment reflects the substantive
approach to equality. All forms of affirmative action which seek to correct the
historical and systemic discrimination and disadvantage reflect substantive
approach to equality.

1.4.6 Principle of Fraternity

Fraternity, in common parlance, refers to brotherhood. It is defined as
"brotherhood among disparate body of people united in their interests, aims,
beliefs and so on" (Iain Mcleon and Alistair McMillan, 2003, p.206). Legal
principles like equality and notions like statehood can be viewed as contrivances
for promoting fraternity. Fraternity also suggests "a sense of belonging to a unit
with which one can readily, if not naturally, identify". One of the primary functions
of law is to secure peaceful co-existence of people, which necessitates recognition
and promotion of fraternal feelings among people. The state by subjecting people
to the same law seeks to secure fraternity among people. In order to secure
fraternity the law should renounce and also seek to provide protection against
exclusion, discrimination, subordination and oppression.

In India, the preamble to the Constitution expressly recognizes fraternity as one

of the aims or principles of the Union of India. There are a number of provisions
in the Constitution which seek to promote fraternity. Recognition of single
citizenship is geared towards instilling a sense of belongingness among people
with respect to subjecting everyone to the same laws (Article 14), prohibition of
discrimination (Article 15), prohibition of titles (Article 18), abolition of
untouchability (Article 17). Even the federal structure established by the
 Concept and Basic
Principles of Law

Check Your Progress

Notes: a) Space given below the question is for writing your answer.
b) Check your answer with the one given at the end of this unit under
"Answers to 'Check Your Progress' Questions".
9) List out different principles of law.
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
............... ................................................................................................
b

10) State the essence of the principles of democracy, constitutionalism,

justice, liberty and equality.
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
11) Fill-in the blanks below.
a) Liberal model of democracy emerges from a combination of values
of and
b) Robert Nozick's theory of justice defends
C) Positive liberty is sought to be secured under the Indian Constitution
through
d) Substantive equality focuses on equality of
1) Law, in simplest terms, is a set of rules that are binding in nature and enforced
by the State. However, law is differently defined by scholars belonging to
different schools of jurisprudence laying emphasis on different aspects.
characteristics and perceptions about law. They must be seen as
complementary rather than opposed to one another, as one school of thought
supplements what other misses out in its attempt to define law. Law tries to
define various concepts which assume significance in the life of an individual
in the society and the State. Law carves out the legal notions about various
concepts in a way different from the way they are used in common parlance
in order to ensure that these notions serve the purposes of law.

2) Concept of law is approached in different ways by various scholars belonging

to different schools of law. The broad approaches to the concept of law
include the following.
Approach of Natural Law School.
Approach of Analytical Positivists School of Law.
Approach of Historical School of Law.
Approach of Sociological Jurists.
Approach of Legal Realists.

3) Roscoe Pound (1959) analysed the distinguishing features of various

perceptions about what law is, as viewed by scholars belonging to different
schools of law in terms of their responses to the followingfive points.

i) The element or component that is referred to as "law";

ii) The nature of that element;
iii) What makes it obligatory;
iv) What form does it take or the source of law; and
v) The philosophical views on which it is based.
4) a) Pure theory of law was given by Hans Kelsen.
b) H. L. A. Hart defined law as a set of primary and secondary rules.
c) Law according to Savingy is volks~eist,i.e. common consciousness or
spirit of veovle.
d) Sociological jurists view law from the point of view of what it do-.
e) Judicial Precedent is the source of law according to realists.
f) Natural law theorists are concerned with what the law should be.
5) There are five characteristics of every legal right that enable us to understand
the implications of a legal right. These characteristics are as given below.
A right is vested in a person who may be referred to as the holder of a
right or the person of inherence.
A right is available against a person upon whom is cast the correlative
I duty known as the person of incidence.
 It obliges the person bound (person of incidence) to an act or omission Concept and Basic
Principles of Law
in favour of the person entitled. This is known as the content of the
right.
The act or omission relates to something which may be referred to as
the object of right.
Every legal right has a title, i.e. certain facts or events by reason of
which right becomes vested in its owner.

I 6) In ordinary usage, a person is said to be in possession of a thing when he has

control over the thing. Law, however, goes beyond to recognize possession
even in situations when a person cannot be said to be in actual physical
control over thing in order to give effect to certain values. Thus,possession
in law is broader than possession in fact. This is because law seeks to go
beyond protection of actual possession to give protection even to those who
are not in possession but in the general view of society ought to be in
possession. In other words, law seeks to protect the dispossessed against
wrongful disposscssor. That's why "law allows possessory rights and
possessory remedies to persons not in actual possession . . . by regarding
them as being for legal purposes in possession". The need to protect
possession under law emanates from the fact that interference with possession
invariably invites violence.

Like possession, ownership also denotes relationship between person and a

thing. However, the nature of the two rights is different. Ownership of a
thing implies the following rights with respect to the thing owned:
Right to possess.
Right to use and enjoy.
Right to consume, destroy or alienate.
So, possession is one of the constituents of ownership though not an
indispensable one. That is the primary difference in the nature of two rights,
possession and ownership. Ownership is residuary in character, i.e. it persists
even in the absence of the former. For instance, even when the owner transfers
to another person the right of possession of the thing owned by leasing out
the property or the right to use the property, his ownership over the property
persists in the form of the residuary rights that remains with him after transfer
of the said rights. Therefore, temporary transfer of the right of possession
does not affect the ownership of the property.

7) Ownership is of the following types.

Sole ownership and co-ownership: Sole ownership is where ownership
of the thing is vested in one person. However, where the thing is jointly
owned it is referred to as co-ownership.

Vested and contingent ownership: When the owner's title to the property
is perfect it is called vested ownership, whereas if the title is yet
imperfect and depends on the fulfillment of a condition before it can
be said to be perfect then the person's ownership of the thing is
contingent.

33
Essentials of Indian Legal Trust and beneficial o~vtzership:Trust and beneficial ownership "allow5
Systeln
for the separation of the powers of munugetnent and the rights of
enjoyment. This is done by vesting the ownership between two persons
- the trustee and the beneficiary. The trustee owns the property and is
under an obligation to use his ownership for the benefit of the
beneficiary. Therefore, in reality the ownership of the trustee is only
nominal and not real for he cannot use the property for his own benefit.
The purpose of trusteeship is to protect the rights and interests of persons
who for any reason are unable effectively to protect them for themselves.

8) a) Jural correlative of claim is d l , while that of power is liability.

b) Con~panyis a person in law.
c) Jura in re propria is right over one's own property, whereas jura in re
aliena is right over someone else's property.
d) The act alone does not amount to guilt, it must be accompanied by a
puiltv mind.

9) The principles of law are not a creation of law but they existed before law
was formed or rather they formed basis for formulation of law and legal
systems. The main principles of law include the following.
Principle of Democracy.
Principle of Constitutionalism.
0 Principle of Justice.
Principle of Liberty.
Principle of Equality.
Principle of Fraternity.
10) Principle qf Democracy implies equal distribution of political power and
influence, and popular participation in the process of governance.

Principle ofConstitutionalistn, in its broad sense, refers to a set of political

values and aspirations that reflect the desire to protect freedom through the
establishment of internal and external checks upon government power.

Principle of Justice is a highly debated principle. Different notions have

been put forth with regard to what constitutes justice ranging from utilitarian
to contractarian to entitlements, based on the rights or freedom from
oppression.

Principle of Liberty implies the ability to think and act as one wishes and
involves freedom from interference as well as freedom to achieve certain
identifiable goals.

Principle of Equality has been defined in formal and substantive sense. In

the formal sense, two methods or principles of treatment, viz. same treatment
and differential treatment, are applied depending upon different realities.
Substantive approach to equality seeks to eliminate existing discrimination
faced by disadvantaged groups at the individual, institutional and systemic
levels through corrective and positive measures.
34
 Liberal model of democracy emerges from a combination of values of Concept and Basic
1 I) a) Principles of Law
freedom and autonomy.
b) Robert Nozick's theory of justice defends libertarian capitalism.
1 C) Positive liberty is sought to be secured under the Indian Constitution
through affirmative action.
d) Substantive equality focuses on equality of outcome.

1.7 REFERENCES
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Philosophy, 227-248.
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Oxford: Clarendon Press.
Amartya Sen. 2009. Idea of Justice. London: Allen Lane.
Amy Gutmann. 1992. "Democracy", in Robert E. Goodin and Philip Pettit (Eds.).
A Companion to Contemporury Political Philosophy. Oxford: Blackwell.
Andrew Heywood. 2000. Key Concepts in Politics. Basingstoke: Palgrave
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Aristotle, Nichomacean Ethics, Book V. paras 3: 113 la-4: 11 32b, mentioned in
Freeman, M. D. A. (Ed.). 2001. LloydS Introduction to Jurisprudence.
CfRoman Law, D. 9.2.37pr, 28.1.6. pr, 50.17.163,citedinR. W. M. Dias. 1994.
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Dennis Lloyd. 1991. The Idea of l a w . London: Penguin Books.
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Jurisprudence. op cit.
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Henry Sidgwick. 1907. The Methods of Ethics. London: Macmillan.
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Essentialsof Indian Legal
Svstern
Iain Mcleon, and Alistair McMillan (Eds). 2003. The Concise 0-xfordDictional?;
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I
The Blackwell Guide to Social and Political Philosophy. Maiden, MA: Blackwell.
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mi
John Rawls. 1972. Theory of Justice, pp.291-303, Mentioned in M. D. A.
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John Kawls. 2000. A Theory of Justice. Cambridge, Massachusetts: Harvard
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Madhu Mehra and Amita Punj. 2004. CEDAW: Restoring Rights to Women.
UNIFEM.
Nichomace~z~z Ethics, Book V, paras 3: 113 la-4: 1132b, in M. D. A. Freeman.
2001. Lloyd's Introduction to Jurisprudence. Op. cit.
Niraja Gopal Jayal. (Ed). 2001. Denlorracy in India. New Delhi: Oxford
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L l o ~ d kIntroduction to Jurisp~udence.Op cit.
Roscoe Pound. 1959. Jurisprudence, Vol.1. St. Paul, Minn.: West Publishing Co.
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The Indian Penal Code, 1860. (Bare Act).
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Cases
Armor?, v Delamirie. 1722. (1) Stra 505.
Maneka Cnndhi v Urzion ofIndia. 1978. AIR SC 597.
36 Prarnuthci Nath Mullick v Pradymiza Kurnar Mullick. 1925. L. R. 52 Ind. App. 245.