MODULE 1

Meaning of Jurisprudence

The English term Jurisprudence is based on the Latin word

jurisprudentia: juris is the genitive form of jus meaning "law", and
prudentia means "prudence" (also: discretion, foresight, forethought,
circumspection; refers to the exercise of good judgment, common
sense, and even caution, especially in the conduct of practical matters).
Thus meaning comes from the Latin term juris prudentia, which means
"the study, knowledge, or science of law". The word first appeared in
English in 1628, at a time when the word prudence had the now
obsolete meaning of "knowledge of or skill in a matter". It is also
believed that the word may have come via the French jurisprudence,
which is appeared much earlier.

Jurisprudence is thus the study and theory of law. Scholars of

jurisprudence, or legal theorists (including legal philosophers and
social theorists of law), try to assign a deeper understanding of the
nature of law, of legal reasoning, legal systems and of legal institutions.
Modern jurisprudence began in the 18th century and was focused on
the first principles of the natural law, civil law, and the law of nations.
Hence jurisprudence is a name given to certain type of investigation
into law and investigation of an abstract, general or theoretical in nature
which seeks to lay the essential principles of law and legal system.

General jurisprudence can be broken into categories both by the type

of question scholars seek to answer and by the theories of
jurisprudence, or schools of thought, regarding how those questions are
best answered. Answers to these questions come from four primary
schools of thought in general jurisprudence:

• Natural law is the idea that there are rational objective limits to
the power of legislative rulers. The foundations of law are
accessible through human reason and it is from these laws of
nature that human-created laws gain whatever force they have.
• Legal positivism, by contrast to natural law, holds that there is no
necessary connection between law and morality and that the force
of law comes from some basic social facts. Legal positivists differ
on what those facts are.
• Legal realism is a third theory of jurisprudence which argues that
the real-world practice of law is what determines what law is; the
law has the force that it does because of what legislators, judges,
and executives do with it. Similar approaches have been
developed in many different ways in sociology of law.
• Critical legal studies are a younger theory of jurisprudence that
has developed since the 1970s. It is primarily a negative thesis
that holds that the law is largely contradictory, and can be best
analysed as an expression of the policy goals of the dominant
social group.
Definition of Jurisprudence

Dr. Allen-

The noted English jurist Dr. Allen has defined jurisprudence as 'the
scientific synthesis of the essential principles of law'. Though this
definition may seem to be abstract at a glance, it surely takes notice of
the widening scope of law in its various facets.

Keeton-

According to Keeton "jurisprudence is the study and scientific

synthesis of the general principles of law"4 The definition seeks to
explain the distinction between public and private laws.

H.L.A. Hart-

The twentieth century analytical jurisprudence has emerged as a

reaction against the rigid positivism of the 19th century Austinian legal
philosophy. Among its prominent propounders H.L A. Hart's name
deserves special mention in view of his significant contribution to the
development of jurisprudence embracing all moral and social
principles and value and other non-legal elements which hitherto
remained excluded from the purview of the study of the subject. While
Austin considered command, sanction and sovereign as the three
essential constituents of the nature of law which formed the science of
jurisprudence, Hart believed that union of primary and secondary rules
explains the nature of law and provides 'Key' to science of
jurisprudence. By primary rules he meant rules which impose duty
while secondary rules confer powers which provide for creation or
variation of duties by removing defects of the primary rules. He further
opined that both these kinds of rules contain a minimum element of
natural law i.e. law and morals which every legal system must
necessarily contain. Thus, Hart viewed jurisprudence as a science of
law in a broader perspective by co-relating law and morality whereas
Austin had failed to do.

Roscoe Pound-

According to Pound, jurisprudence is the science of law using the term

'law' in the juridical sense, as denoting the body of principles
recognised or enforced by public and regular tribunals in the
administration of justice". He emphasised that there is an inevitable co-
relationship between jurisprudence and other social sciences. Thus, he
opined that "jurisprudence, ethics, economics, politics and sociology
are distinct enough as the core, but shade out into each other". Pound
suggested a separate branch of sociological jurisprudence, which is
concerned with the influence of law on society at large. He firmly
believed that behind every issue, there is something social; therefore,
in the study of jurisprudence, the emphasis should be on the
relationship between law and society.

G.W. Paton-

G. W. Paton holds that jurisprudence has two main aspects. It treats law
as an abstract body of rules and secondly, it's a social machinery for
securing order in the community. It deals with study of law in action.
The main function of law should be to create order in society so as to
resolve disputes and ensure peaceful transformation of the society
which is constantly heading towards progress of mankind. Thus, Paton
strongly believed that jurisprudence is a functional study of the
concepts which legal systems develop and it seeks to protect the social
interests.

Julious Stone-

Julious Stone represents the lawyer’s legal philosophy of 19th century

which marked a new era in juristic thinking. He termed jurisprudence
as lawyer's extra version. That is, the lawyers interpret law in the light
of knowledge derived from other disciplines Law has to function and
co-exist within the parameters of social dynamics in keeping with
human development and contemporary societal norms. It cannot be
studied in isolation, being an integral part of society. He considers
knowledge of social, economic and political problems essential for
lawyers and Judges without which they cannot handle the legal
problems of the society.

Growth of Jurisprudence including Reformation & Renaissance:

The period of renaissance in the history of the development of natural

law may also be called the modern classical era which is marked by
rationalism and the emergence of new ideas in different fields of
knowledge. General awakening among the masses coupled with new
discoveries of science during the fourteenth and fifteenth centuries
shattered the foundation of established values. That apart, the
tremendous growth of trade and commerce in European countries
created new classes in the society which needed greater protection from
the state.

The cumulative effect of these developments was that there was a

general wave of nationalism and a demand for the absolute sovereignty
of the state and supremacy of the positive law overthrowing the
dominance of Church. New theories supporting the sovereignty of a
state were propounded by rationalist Polito-legal thinkers such as
Machiavelli and Jean Bodin.

As a result of these developments, the temporal authority of the Church

and the theological natural law received a serious blow and finally, it
dwindled giving way to the natural rights of man and the state. The
natural law theories propounded by Grotius, Locke and Rousseau
revolutionized the existing institutions and held that 'social contract'
was the basis of the society. Hobbes used natural law theory to
perpetuate reactionary movement and justify the status quo for the
preservation of peace and protection of individuals from perpetual
conflict and chaos. With the Renaissance and the rise of humanism, the
natural law became open to rational inquiry free from religious
trappings.

There were many philosophers who contributed to the evolution of

natural law theory. Prominent among them are:

1. Hugo Grotius:
Hugo Grotius (1583-1645) worked as a jurist in the Dutch Republic and
laid the foundations for international law, based on natural law. Grotius
removed the natural law from the jurisdiction of moral theologians and
made it the business of lawyers and philosophers, by asserting that by
their very nature, authoritative in themselves, with or without faith in
God. He held that the moral ethics of natural lavw applied to all social
and rational beings, Christian and non-Christian alike. Grotius also
promoted the concept of "Just War" as a war which was required by
natural, national and divine law under certain circumstances. He
developed a series of rules for "right conduct" of war, based on the
principle that actions in a war should "serve the right." Grotius also
wrote De Jure Praedae, one chapter of which, defending free access to
the ocean for all nations, was reprinted and widely circulated under the
title Mare Liberum.

2. Thomas Hobbes:

Thomas Hobbes founded a social contractualist theory of legal

positivism. He declared that all men could agree that what they sought
(happiness) was subject to contention, but that a broad consensus could
form around what they feared (violent death at the hands of another,
and loss of liberty and personal property). Natural law was defined as
the way in which a rational human being, seeking to survive and
prosper, would act. It could be humankind's natural rights; previous
interpretations had derived natural rights by considering the natural
law. In Hobbes' opinion, the only way that natural law could prevail
was by all men submitting to the commands of a sovereign. The
ultimate source of law now became the sovereign, who was responsible
for creating and enforcing laws to govern the behaviour of his subjects.
decisions need not be grounded in morality, positivism, the concept that
law was created by the state and must, therefore, be obeyed by the
citizens belonging to that state. Jeremy Bentham further developed the
theory by modifying the concept of legal positivism.

In Thomas Hobbes's treatise Leviathan, natural law is precept, or

general rule, discovered through reason, by which a man is forbidden
to do anything which is destructive of his life, or takes away the means
of preserving his life; and forbidden to omit to do anything which he
thinks may preserve his life. Hobbes defines nine Laws of Nature.

3. John Locke:

John Locke (1632-1704) is among the most influential political

philosophers of the modern period. In the Government, he defended the
claim that men are by nature free and equal against claims that God had
made all people naturally subject to a monarch. He argued that people
have rights, such as the right to life, liberty, and property that have a
foundation independent of the laws of any particular society. Locke
used the claim that men are naturally free and equal as part of the
justification legitimate political government as the result of a social
contract where people in the state of nature conditionally transfer Some
of their rights to the government in order to better ensure the stable,
comfortable enjoyment of their lives, liberty, and property. Since
governments exist by the consent of the people in order to protect the
rights of the people and promote the public good, governments that fail
to do so can be resisted and replaced with new governments. Locke is
thus also important for his defence of the right of revolution. Locke also
defends the principle of majority rule and the separation of legislative
and executive powers. In the Letter Concerning Toleration, Locke
denied that coercion should be used to bring people to (what the ruler
believes is) the true religion and also denied that churches should have
any coercive power over their members. Locke elaborated on these
themes in his later political writings, such as the Second Letter on
Toleration and Third Letter on Toleration.

4. Jean Rousseau

Jean-Jacques Rousseau (1712-1778) believed modern man's

enslavement to his own needs was responsible for all sorts of societal
ills, from exploitation and domination of others to poor self- esteem
and depression. Rousseau believed that good government must have
the freedom of all its citizens as its most fundamental objective. The
Social Contract, in particular, is Rousseau's attempt to imagine the form
of government that best affirms the individual freedom of all its
citizens, with certain constraints inherent to a complex, Rousseau
acknowledged that as long as property and laws exist, people can never
be as entirely free in modern society as they are in the state of nature,
a point later echoed by Marx and many other anarchist Nonetheless,
believed in the existence of certain principles of government that, if
enacted, can afford the members of society a level of freedom that at
least approximates the freedom enjoyed in the state of nature. In the
Social Contract and his other works of political devoted to outlining
these principles and how they may be given expression in a functional
modern state.

5. Immanuel Kant:

Immanuel Kant (1724- 1804) is one of the most influential philosophers

in the history of Western philosophy. Metaphysics, epistemology,
ethics, and aesthetics have had a profound impact on movement that
followed him. One of his most important works is The Critique of Pure
Reason. A large part of Kant's work addresses the question "What can
we know?" The answer, if it can be stated simply, is that our knowledge
is constrained to mathematics and the science of the natural, empirical
world. It is impossible, Kant argues, to extend knowledge to the super
sensible realm of speculative metaphysics. The reason that knowledge
has these constraints, Kant argues, is that the mind plays an active role
in constituting the features of experience and limiting the mind's access
only to the empirical realm of space and time.

Conclusion

Jurisprudence is the study of law. It is a type of science that explores

the creation, application, and enforcement of laws. Jurisprudence is the
study of theories and philosophies regarding the law. It has a practical
and educational value. There are five schools of jurisprudence. In the
natural law school, there are four periods of evolution of theory. ln this,
the period of renaissance played a vital role in the development of
natural law theory. It is marked by rationalism and the emergence of
new ideas in different fields of knowledge. In the period of the
Renaissance there were many philosophers propounded their theories
but mainly Hugo Grotius, Thomas Hobbes, John Locke, Jean Rousseau
and Immanuel Kant were propounded natural law theory in the best
way. So, in the renaissance period, the rise of humanism the natural law
became open to rational inquiry free from religious trappings.

Utility of Jurisprudence:

There is a general confusion about practical utility of jurisprudence as

a subject. It is often alleged that jurisprudence being an abstract and
theoretical subject, is devoid of any practical utility. But this view is
not supported by Salmond who pointed out that jurisprudence has its
own intrinsic interest like any other subject of serious scholarship. Just
as a mathematician investigates the number theory not with the aim of
seeing his findings put to practical use but by reason of the fascination
which it holds for him, likewise the writer on jurisprudence may be
impelled to his subject by its intrinsic interest. The legal researches on
jurisprudence may well have their effect on contemporary socio-
political thought and at the same time may themselves be influenced by
these ideologies.

As rightly observed by Professor Jules L. Coleman,

"Jurisprudence aims at explaining the distinctive forms of life that

governance by law makes available, ...... It engages law in its
'aspirational mode'. Without law, these forms of life would not be
attainable, or if attainable, only incompletely so. The aim of
jurisprudence is to identify those forms of life and explain the way in
which law helps to create and sustain them."

Jurisprudence also has its practical applicability. It seeks to rationalise

the concepts of law which enable us to solve the different problems
involving intricacies of law. In other words, it serves to render the
complexities of law more manageable and rationale and in this way,
this can help to improve practice in the field of law.

That apart, jurisprudence also has great educational value. The logical
analysis of legal concepts widens the outlook of lawyers and sharpens
the logical technique. It helps them in shedding aside their rigidity and
formalism and trains them to concentrate on social realities and the
functional aspects of law. It is not the form of law but the social
function of law which has relevance in modern jurisprudence. Law has
to take note of the needs of society and also of the advances in the
related and relevant disciplines such as sociology, economics,
philosophy, psychiatry etc. For instance, a proper understanding of law
of contract may perhaps require some knowledge of economic and
economic theory or a proper grasp of criminal law may need some
knowledge of criminology and psychiatry and perhaps also of
sociology.

Commenting on the significance and utility of jurisprudence, Holland

observed, "the ever-renewed complexity of human relations calls for an
increasing complexity of legal details, till a merely empirical
knowledge of law becomes impossible". Thus, jurisprudence throws
light on the basic ideas and the fundamental principles of law in a given
society. This is why it has been characterised as "the eye of law" by
some jurists.

Jurisprudence helps the judges and the lawyers in ascertaining the true
meaning of the laws passed by the Legislature by providing the rules
of interpretation. It also furnishes them opportunity to pinpoint the
lacunae, shortcomings and defects in the laws framed by the legislature
and improvise them through their judicial interpretation.

The study of jurisprudence helps in rationalising the thinking of the

students and prepares them for an upright civil life. The knowledge of
law and legal precepts also helps them to face exigencies of human life
boldly and courageously

Jurisprudence may also be helpful to legislators who play a crucial role

in the process of law-making. The study of jurisprudence may
familiarise them with technicalities of law and legal precepts thus
making their job fairly easy as also interesting

According to R.W.M. Dias, the study of jurisprudence provides an

opportunity for the lawyer to bring theory and life into focus, for it
concerns human thought in relation to social existence. The utility of
jurisprudence should be tested in the light of its functional role and in
the context of the prevailing socio-economic and political philosophies
of the time, place and circumstances. The law should serve the purpose
of 'social engineering by preserving societal values and eliminating
conflicting interests of individuals in the society.

Inter-relationship of Jurisprudence with other Social Sciences:

Jurisprudence is closely inter-related with other social sciences since

all of them are concerned with human behaviour in society. Pointing
out the relationship of jurisprudence with other branches of knowledge,
G. M. Paton observed, "modern jurisprudence trenches on the fields of
social sciences and of philosophy; it digs into the historical past and
attempts to create the symmetry of a garden out of the luxuriant chaos
of conflicting legal systems"? Julius Stone also explained the
functioning of jurisprudence in terms of knowledge of other social
disciplines and stated, "jurisprudence is the lawyer's extraversion. It is
lawyer's examination of the precepts, ideals and techniques of the law
in the lights derived from present knowledge in disciplines other than
law".

Wurzel candidly observed that jurisprudence as a living science of law,

cannot be divorced from society of which individuals are an integral
part. Every legal system reflects the social background which it
operates. It is so, because of the inter-relationship of men within the
society.

Dean Roscoe Pound who propounded the theory of law as a 'social

engineering', pointed out that jurisprudence is closely inter-related with
ethics, economics, politics and sociology which though distinct enough
as the core, are shade into each other. All the social sciences must co-
ordinate with jurisprudence to make it a functional branch of
knowledge. Justice Mc Cardie emphasised the indispensability of the
study of other social sciences for the proper understanding of
jurisprudence. He wrote, "there never was a time when the barrister had
greater need of a wide culture and of a full acquaintance with history,
with economics and with sociological science".

With the development of social sciences in modern times, the approach

to jurisprudence has radically changed and more emphasis came to be
placed on the study of factual legal behaviour.

1. Jurisprudence and Ethics:

Ethics as a branch of knowledge deals with human conduct and lays

down the ideals of human behaviour. It is closely related to morality
and public opinion which are dynamic concepts varying from place to
place, from time to time and from people to people. What may be a rule
of good morality at one time may not necessarily remain so all the time
and it may even become a bad moral conduct in time to come. Thus the
public opinion and moral precepts go on changing with social
evolution, social culture and social development.

Jurisprudence is concerned with positive morality since law is

considered as an instrument to regulate human conduct in society.
Positive morality does not depend on ideal behaviour or good actions
but it requires a coercive force for maintaining public conscience.
There is a separate branch of jurisprudence called the ethical
jurisprudence which seeks to lay down the standards of ideal for human
conduct in terms of law for the maintenance of public conscience

It must, however, be stated that there are many unethical acts which the
law does not seek to punish. For example, the law does not take notice
of trifles. So also, to tell a lie is unethical but it is not punishable as an
offence. Conversely, all that is prohibited is not necessarily immoral eg
possessing land beyond ceiling limit is punishable under the law but it
is not an unethical act. Again, driving a vehicle or a car without a valid
licence is not unethical although it is prohibited by law.

Generally speaking, laws must not be divorced from accepted human

values since it is an instrument for regulating human conduct in a given
society. As Dr. M. J. Sethna rightly pointed out, laws of a community
are reflected in its culture, ideology and social norms. They are
therefore, indicators of country's civilisation and the ethical standards
of the society, hence ethical values cannot be excluded from
jurisprudence.

2. Jurisprudence and Psychology:

Psychology as a branch of knowledge is concerned with the working of

human brain or mental faculty. Since jurisprudence and law are
necessarily concerned with human action and it is the human mind
which controls human action, the inter-relation between psychology
and jurisprudence need not be over-emphasised. Particularly in dealing
with crimes the psychology of the offender is generally taken into
consideration. Again, psychology plays a dominant role in the study of
criminology and penology

The psychology of the offender is also one of the crucial factors in

deciding the nature of punishment of the convicted person. The modern
reformative techniques of punishment such as probation, parole,
indeterminate sentence, admonition, pardon etc. are essentially devised
for the treatment of offenders according to their psychological traits.

That apart, the legal concepts such as negligence, intention, motive,

mens Tea recklessness, rashness etc., pertain to the faculty of mind and
therefore, they form a part of study of psychology as also the
jurisprudence.

3. Jurisprudence and History:

It is difficult to appreciate the present law and legal system without

probing into its past historical evolution. Therefore, there is a close
inter connection between history and jurisprudence. History consists of
the study of past events in their proper perspective. Thus in order to
understand the constitutional jurisprudence of a country it is necessary
to look into its past constitutional history. It may therefore, be
concluded that the study of different branches of law essentially
requires their study in the historical perspective without which its
knowledge would remain incomplete. The codification of personal
laws of Hindus in 1955-56 is essentially an outcome of the historical
evaluation of the uncodified Hindu law of ancient India and its
transition through many phases.
The whole historical school of jurisprudence is devoted to the study of
law in its historical perspective and has substantially contributed to
trace the evolution of law and legal systems in different countries.

4. Jurisprudence and Sociology:

Sociology also includes the study of a part of law to some extent. For
example, criminology is one of the inter-disciplinary studies related to
both sociology and law. Again, Jurisprudence includes within its
compass the sociology of law, that is the practical functioning of law
in the society. Further, sociology as well as the study of jurisprudence
are concerned with regulation of human conduct in society. Therefore,
the two are intimately connected. It must, however, be noted in this
context that lawyer's approach to law is different from that of a
sociologist's attitude towards law. The former looks it from point of
view enforceability and obedience by the people while the latter
concentrates on studying how these rules actually govern the behaviour
of individual in the society.

More recently, there is greater thrust on sociological approach to law

and legal problems. The modern prison reforms and correctional
services for the treatment of offenders have been devised keeping in
view the sociological factors of the offenders. Even the judges have
accepted the role of sociology and its relationship with law and it is
often reflected in their decisions. The purpose of law as conceived
today, is to ensure social justices.
The relationship between law and sociology has been supported by
G.W. Paton for three obvious reasons, namely:

a) it enables better understanding of the evolution and development

of law,
b) it provides greater substratum for identity of law commensurate
with human needs and societal interests, and
c) it provides objectivity to legal interpretation which is the need of
the hour.

Without social interaction, law would remain a mere theoretical

perception devoid of any practical utility.

5. Jurisprudence and Economics:

Economics being a science of money and wealth and jurisprudence a

science of law, both are intimately co-related. Economics deals with
production and distribution of wealth for satisfying the wants of the
people. It is one of the major factors responsible for the incidence of
crimes. There are many laws which seek to regulate economic activities
of mankind. To name only a few, the laws relating to banking,
companies, negotiable instruments, foreign exchange regulation,
consumer protection, ceiling of land and wealth, payment of wages,
bonus, insurance, debts etc. are intended to regulate one or the other
economic activity of man in the society. Of late, law of poverty and law
of population have developed as separate branches of law for the
welfare of the people. The ultimate aim of economics as well as
jurisprudence is to improve the standard of life of the people for the
welfare of the community as a whole. Law acts as means to achieve
this end.

6. Jurisprudence and Political Science:

Friedmann has aptly remarked that jurisprudence is linked one end with
philosophy and at the other end with political theory. Political science
deals with the principles governing the governmental organisation.
State is politically organised society which makes law for good
governance of the people. Politicians who are representatives of the
people form the Legislature which is the law-making organ of the
Government. This amply reflects on the relationship of jurisprudence
i.e. science of law with politics.

From what has been stated above, it is evident that the subject matter
of jurisprudence comprises a synthetic study of various disciplines and
social sciences, each playing their role for the proper understanding of
the fundamental principles of law. It is primarily for this reason that
some jurists have advocated the necessity of synthetic jurisprudence in
recent years. They have asserted that jurisprudence is an amalgam of
history, philosophy, politics, sociology, economics etc., it is a science
and is concerned with altruistic utilitarianism or the doctrine of
hedonism as propounded by Bentham. Jerome Hall is one of the ardent
supporters of synthetic jurisprudence in United States. Lord Dennis
Lloyd has also emphasised the need for synthetic jurisprudence for the
growth and practical applicability of law.
Law and Morality

Law and morality are both too uncertain terms. Many jurists,
philosopher from ancient Greek time to modern time tried to define
these two terms. These two terms have a vast sphere. The reason for
not finding any definite meaning of these terms can be that both these
terms are dynamic in nature, with the time, situation and place meaning
and value of these terms keep changing.

According to the sources of Hindu Law like Shrutis, Smritis and Vedas,
there was no distinction between law and morality. Ancient times
speaks that both the terms conveyed same meaning. It is evident that
both law and morality serve to channel the behaviour of an individual.
Around 17th or 18th centuries, theories of natural law were very
famous and they had moral foundation for their existence but in 19th
century, Austin came with an argument that law has nothing to do with
morals. He said, ‘Command of the sovereign is law’ and law is the
subject matter of jurisprudence and not morals.

Relationship between Law and Morality

Law ensures conformity to the code of behavioural law and it is

essential as it cannot completely ignore the ethical and moral aspects.
If there are laws, not up to the standards of ethical behaviour, such laws
cannot survive in contemporary India. In a sensitive country in terms
of ethics like India, riots take place even on very small causes. In order
to survive, a law must meet the expected criteria or social
consciousness.
Morality generally means rules governing human behavior or
sometimes one’s personal views about a thing or activity which should
not be imposed upon others as these are not enforceable. Earlier law
was purely based on morals and values. When state came into
existence, the society opted for those rules and values which were
important from its point and put its own sanction behind it. These
norms were known as law.

The rules made for good of the individual and which were not observed
continuously by the state in its real term called morals. However, law
and morality have same institution but by the time, they deviated in the
course of its development. Many rules are mutual for both law and
morality like robbery, murder; theft and dacoity are some of the acts,
against law as well as morality. Law and morality both are normative
in nature and the main distinction between law and morality is that law
is coercive whereas morality is not. Morality is the basis of law only at
the places where the law accepts the grounds of morals for making it
otherwise, in contemporary world, morality and law has different
meaning. Law can be identified without any reference to morality.

Distinction between Law and Morality

In modern times, there is a difference between law and morality. It

cannot be said that morals are the basis of legal rules. It can be said that
usually law has some base of morals but law and morality can be
described separately in the contemporary world. There are various
things, which may be immoral but not necessarily illegal like cheating
on your friend or spouse, breaking promises (for certain sets of people)
and which may be illegal but not necessarily immoral like drinking
under age, abortion (for certain sets of people). Take issue of live-in
relationships, which already has a moral ban on it but according to law
it is legal.

The morality depends upon the conscience or will of the individual. An

act moral for me may be immoral for you and morals mould the
character of an individual. The best example can be taken of marriage
in Hindus and Muslims. In Hindus, only one marriage is considered as
sacred and bigamy is a sin and in Muslims, they are allowed to marry
four women at one point of time. Law is concerned with the society
collectively and not with the wishes of the individual.

There is a famous maxim, “Ignorantia juris non execusat” meaning

thereby, ignorance of law is no excuse. It is presumed that one should
know the law of the land, if a person does not follow the law; state is
empowered to punish that person whereas morality is not coercive in
nature. State has no power to punish for violation of such morality. In
case of application of law, it has universal character with no ambiguity
or vagueness whereas in case of application of morality, it differs from
case to case as it is vague and uncertain. It is a matter of choice of a
person.

Case Laws:

Queen v. Dudley and Stephenson.

In this case, three seamen and a boy, crew of an English yacht were cast
in a storm on the high seas and were compelled to put into an open boat
belonging to the said yacht. They had no supplies left in the boat and
in order to save themselves from death, they put the boy to death and
fed themselves on the boy’s body, when they were picked up by a
passing vessel. They were tried for the murder of the boy.

Held: No man has a right to kill some other person in order to save his
own life. And, thus, they were found guilty for killing the boy

In Smt. Sarla v. Mahendra Kumar, the Rajasthan High Court,

awarding maintenance to a wife who was leading an adulterous life
held, “It is not unnatural that when a husband leaves his newly wedded
wife alone and himself goes away at a distant place to earn his
livelihood, a lady who is suffering sexual deprivation may develop
intimacy as well as illicit relations with a stranger.”

When it is a crime, under section 497 of IPC, 1860 as well as civil

wrong, which can be remedied by way of divorce, to commit adultery,
the court itself reiterates that a lady can develop illicit relation with a
stranger if suffering from sexual deprivation. Further, court itself has
not taken into account the moral aspect related to the subject of the case
and gave its conclusion against the morality.

In K.A. Abbas v. Union of India, the Court held that sex and obscenity
are not always synonymous and it was wrong to classify sex as
essentially obscene or even indecent or immoral. Further, in Bobby Art
International case , regarding the depiction of the rape scene in the film
Bandit Queen, the Court held that the object was not to arouse prurient
feelings but revulsion for the perpetrators. In determining, whether an
act is obscene, regard should be given to recent times or modern
scenario of that place.

In, Aruna Shanbaug v. Union of India and others, Supreme Court

permitted the euthanasia after the completion of 37 years by the lady
on the bed. The petition was presented by one NGO working in the
concerned field but I did not find the worth for not permitting
euthanasia earlier on the justification of immorality. At the end, court
permitted. Needs are changing rapidly so as morals. Therefore, law and
morality are separable and due to the rapid growth of the society,
morals cannot stand static.

In D. Velusamy v D. Patchaiammal, after examining the evidences,

Apex Court came to the conclusion that woman who has a live - in -
relationship with a man can claim for maintenance under section 20 (1)
(d) of The Protection of Women from Domestic Violence Act, 2005.
The subordinate court declined to grant maintenance as the lady was
not legally wedded wife. They said “Indian society is changing, and
this change has been reflected and recognized by Parliament by
enacting The Protection of Women from Domestic Violence Act,
2005”.

Live - in - relationship is a new phenomenon, which was not recognized

by the law before the Act of 2005 and judgement of this case but now
considering the dynamic social values and morals, court awarded the
maintenance to the lady without encountering it as immoral by the
society.

END OF MODULE 1
 MODULE 2

Law is not static. As circumstances and conditions in a society change,

laws are also changed to fit the requirements of society. At any given
point of time the prevailing law of a society must be in conformity with
the general statements, customs and aspirations of its people. The
object of law is order which in turn provides hope of security for the
future. Law is expected to provide socio-economic justice and remove
the existing imbalances in the socio-economic structure and to play
special role in the task of achieving various socio-economic goals
enshrined in our Constitution. It has to serve as a vehicle of social
change and as a harbinger of social justice.

Legislation

Legislation is that source of law which consist in the declaration of

legal rules by a competent authority. Legislature is the direct source of
law. Legislature frames new laws, amends the old laws and cancels
existing laws in all countries. In modern times this is the most important
source of law making. The term legislature means any form of law
making. Its scope has now been restricted so a particular form of law
making. It not only creates new rules of law it also sweeps away
existing inconvenient rules.

Types of Legislation

1. Supreme legislation:
Supreme legislation is the expression of the legislative will of a
supreme authority in a state. It is supreme because no authority can
annual, modify or control it. It proceeds from the sovereign or supreme
legislative power in the state, and which is therefore, incapable of being
abrogated by any other legislative authority.

2. Subordinate legislation:

Subordinate legislation is that which proceeds from any authority other

than the sovereign legislation power, and is, therefore, dependent for
its existence or validity on some superior or supreme legislative
authority. It comes from a subordinate legislature or any authority and
is subject to the repealing or sanctioning control of a superior
legislation.

In England all form of legislative activity recognized by law, other than

the power of parliament are subordinated and subject to parliamentary
control.

Types of subordinate legislation

The chief forms or types of subordinate legislation are five in number.

These are:

1. Colonial legislation:

It means legislation by the legislature of the colonies or other

dependencies. The parliament can repeal, alter or supersede any
colonial enactment.

2. Executive legislation:
Though the main function of the executive is to enforce laws, but in
certain cases, the power of making rules is delegated to the various
departments of the government, which is called subordinate delegated
legislation.

3. Judicial legislation:

It means rules of procedure made by superior courts for their own

guidance under authority delegated to them for the purpose. In other
words the superior courts have the power of making rules for the
regulation of their own procedures.

4. Municipal legislation:

Sometimes municipal authorities are provided with the power of

establishing special laws for the districts under their control. They are
allowed to make bye-laws for limited purposes within their areas.
These are legislation of local bodies such as municipal or corporations.

5. Autonomous legislation:

It is the process of law making by persons not by the state for their own
guidance. Legislation thus made by private persons and the law created
may be distinguished as autonomic view. These are autonomous bodies
like municipal councils, universities etc.

Precedent

Precedent is one of the sources of law. The judgements passed by some

of the learned jurists became another significant source of law. When
there is no legislature on particular point which arises in changing
conditions, the judges depend on their own sense of right and wrong
and decide the disputes. Such decisions become authority or guide for
subsequent cases of a similar nature and they are called precedents.

The dictionary of English law defines a judicial precedent as a

judgement or decision of a court of law cited as an authority for
deciding a similar state of fact in the same manner or on the same
principle or by analogy. Precedent is more flexible than legislation and
custom. It is always ready to be, used. Precedent is otherwise called
case law judicial decision judge made law it is the sources of law. It
enjoyed a high authority precedent plays a vital role when law is
unwritten English common law is based on precedent.

Kinds of precedent

• Authoritative precedents or absolute precedent:

whether judge approve it or not this kind of precedent must be
followed.
• Conditional precedent:
The judge may disregard either by dissenting or by over ruling it
known as conditional precedent.
• Persuasive precedents:
Judges have no obligation to follow can take into consideration.
Precedent of other court i.e. Foreign court.
Theories of precedent

Declaratory theory:

Declaration of existing law by the judges is known as declaratory

theory. Judge only declare the existing law.

Original precedent theory:

Law making by the judge known as original precedent theory judge are
the law makers the role of judge is creative particularly when the law
is absent.

Principles of precedent

Ratio decidendi (Reason for the decision) –

An authoritative principle of a judicial decision. It contains the

principle of law formulated by a judge, it is essential for the decision
of a case. It has force of law and binding on the courts.

Prof Keeton. Ration decidendi is a principle of law which forms the

basis of decision in a particular case. Bridges v. Hawkeshworth,
Customer found money on the floor of a shopping complex both
customer and shopkeeper claim that money. Court treated shop as a
public place and applied rule finder keeper and it favoured the
customer. Here the ratio decidendi is the finder of goods is the keeper
principle.
Obiter dictum-

Something said by the judge, does not have any binding authority.
Judge may declare some general principles relating to law but that may
be unnecessary and irrelevant to the issues before him. Those
unnecessary statements of law which lay down a rule is called Obiter
dictum.

Stare decisis-

Means let the decision stand in its rightful place. During 17th century
a progress made in the law reporting system. Reporting of the decisions
of the court Act to stare decisis a principle of the law which has become
settled by a series of decisions is generally binding on the courts and
should be followed in similar cases. It is based on expediency and
public policy.

Prospective overruling-

Reversing the lower court's decision by Supreme Court can overrule

their own earlier decisions by another bench of judges consisting of a
greater number of judges than previous one. It is a modern trend which
enables the court to correct its errors without affecting its past
transactions.
Merits of The Doctrine of Precedents

• It shows respect to one ancestors’ opinion. Eminent jurists like

Coke and Blackstone have supported the doctrine on this ground.
The say that there are always some reasons behind these opinions,
we may or may not understand them.
• Precedents are based on customs, and therefore, they should be
followed. Courts follow them because these judicial decisions are
the principal and most authoritative evidence that can be given of
the existence of such a custom as shall form a part of the common
law.
• As a matter of great convenience, it is necessary that a question
once decided should be settled and should not be subject to re-
 argument in every case in which it arises. It will save labour of
the judges and the lawyers.
• Precedents bring certainty in law. If the courts do not follow
precedents and the judges start deciding and determining issues
every time afresh without having regard to the previous decisions
on the point, the law would become the most uncertain.
• Precedents bring flexibility to law. Judges in giving their
decisions are influenced by social, economic and many other
values of their age. They mould and shape the law according to
the changed conditions and thus bring flexibility to law.
• Precedents are Judge made law. Therefore, they are more
practical. They are based on cases. It is not like statue law which
is based on a priori theory. The law develops through precedents
according to actual cases.
• Precedents bring scientific development to law. In a case Baron
Parke observed ‘It appears to me to be great importance to keep
the principle of decision steadily in view, not merely for the
determination of the particular case, but for the interest of law as
a science.’ Precedents guide judges and consequently, they are
prevented from committing errors which they would have
committed in the absence of precedents. Following precedents
judges are prevented from any prejudice and partially because
precedents are binding on them. By deciding cases on established
principles, the confidence of the people on the judiciary is
strengthened.
 • As a matter of policy, decisions, once made on principal should
not be departed from in ordinary course.

Demerits of the Doctrine of Precedents

• There is always a possibility of overlooking authorities. The

vastly increasing number of the cases has an overwhelming effect
on the judge and the lawyer. It is very difficult to trace out all the
relevant authorities on the very point.
• Sometimes, the conflicting decisions of superior tribunal throw
the judge of a lower court on the horns of a dilemma. The courts
faced with what an English judge called “complete fog of
authorities.”
• A great demerit of the doctrine of precedent is that the
development of the law depends on the incidents of litigation.
Sometimes, most important points may remain unjudicated
because nobody brought action upon them.
• A very grave demerit or rather an anomaly of the doctrine of
precedent is that, sometimes it is extremely erroneous decision is
established as law due to not being brought before a superior
court.

Customs

A custom is a rule which in a particular family or in a particular district

or in a particular section, class or tribe, has from long usage obtained
the force of law. The dictionary of English law defines custom as a law
not written, which being established by long use and consent of our
ancestors has been and daily is put into practice. Custom as a source of
law got recognition since the emergence of Savigny on the horizon of
jurisprudence.

It is an exemption to the ordinary law of the land, and every custom is

limited in its application. A study of ancient shows that law-making
was not the business of the kings. Law of the country was to be found
in the customs of the people which developed spontaneously according
to circumstances. It was felt that a particular way of doing things was
more convenient than others when the same things were done again and
again in a particular way, it is of custom. According to Salmond custom
is the legal source of law.

According to Salmond:

Custom is the embodiment of those principles which have commended

themselves to the national and national conscience as the principles of
justice and public utility.

According to Austin:

Custom is a rule of conduct which the governed observed

spontaneously and not in pursuance of law set by political superior.

According to Holland:

Custom is a generally observed course of conduct.

Kinds of Custom:

Custom are of two kinds:

 I. Legal Custom

According to Salmond, a legal custom is one whose legal authority is

absolute, one which in itself and possesses the force of law:

Kinds of legal Custom:

a) General Custom.
b) Local Custom.

(a) General Custom: General customs are those which have force of
law throughout the territory. The common law of England is based
upon general customs of the realm.

(b) Local Custom: the local customs are those which operate have the
force of law in a particular locality. The authority of a local custom is
higher than that of general custom.

II. Conventional Custom:

A Conventional custom is one whose authority is conditional on its

acceptance in the agreement between the parties to be bound by it.
There is a process by which conventional usage comes to have the force
of law.

Conditions for a valid custom:

Certain conditions must be satisfied before a court is entitled to

incorporate the usages into contracts.

• The usage must be so well-established as to be notorious.

• The usage must be reasonable.
 • Usage cannot alter general law of land.
• The usage should not nullify or very the express term of the
contract.

Requisites of Valid Custom:

Following are the requisites for a valid custom, treated as law

1. Immemorial:

A Custom to be valid must be proved to be immemorial. According to

Blackstone: A custom in order that in may be legal and binding, must
have been used so long that the memory of man not to the contrary, so
that if anyone can show the beginning of it, it is good custom.

2. Reasonable:

Another essential of a valid custom is that it must be reasonable. The

unreasonableness of custom must be so great that its enforcement
results in greater harm than if there were no custom at all. According
to Prof. Allen: The unreasonableness of custom must be proved and not
its reasonableness.

3. Continuous:

A custom must be continuously observed. If a custom has not been

continuously and uninterruptedly observed, the presumption is that it
never existed at all.

4. Peaceable enjoyment:

The enjoyment of a custom must be a peaceable one.

 5. Certainty:

A valid custom must be certain and definite, if there is any ambiguities

in it or it keeps change, it is not a valid custom.

6. Compulsory Observance:

A custom is valid if its observance is compulsory. An optical

observance is ineffective. According to Blackstone: A custom that all
the inhabitants shall be rated towards the maintenance of a bridge, will
be good, but a custom that every man is to contribute thereto at his own
pleasure is idle and indeed no custom at all.

7. General or Universal:

The custom must be general or universal. In the absence of unanimity

of opinion, custom becomes powerless or rather does not exist. A valid
custom must not be opposed to public policy or the principles of
morality.

8. Not Opposed with Statute Law:

A valid custom must not be in conflict with the statute law of the
country. According to Coke: No custom or prescription can take away
the force of an Act of parliament. According to Blackstone customs
must be consistent with each other, one custom cannot be set up in
opposition to another.

Theories of customs

There are two theories regarding the question as to when a question is

transformed into law:
 • Historical theory
• Analytical theory
1. Historical theory:

According to the historical theory, the growth of law does not depend
upon the arbitrary will of any individual. It does not depend upon any
accident. It grows as a result of the intelligence of the people. Custom
is derived from the common consciousness of the people. According to
Puchta: Custom is not only self-sufficient and independent of state
imprimatur but is a condition to all sound legislation.

Criticism: According to Paton: The growth of most of the customs is

not the result of any conscious thought but of tentative practice.
According to Allen: All customs cannot be attributed to the common
consciousness of the people. In many cases, customs have arisen on
account of the convenience of the ruling class.

2. Analytical theory:

Austin, Holland, and Gray are the advocates of analytical theory.

According to Austin: Customs is a source of law and not law itself.
Customs are not positive laws until their existence is recognized by the
decisions of the Courts. According to Holland: Customs are not laws
when they arise but they are largely adopted into laws by state
recognition.

Criticism: By Allen: Custom grows by conduct and it is therefore a

mistake to measure its validity solely by the elements of express
sanction, accorded by Courts of law of by other determinate authority.
Reasons for Custom are given the force of law:

Following are the reasons, why custom is given the force of law:

1. Principles of National Conscience:

Custom is the embodiment of those principles which have commended

themselves to the national conscience as principles of truth, justice and
public policy. According to Salmond: Custom is to society what laws
are to the state. Each is the expression and realization of the measure
of man, insight and ability, of the principles of right and justice.

2. Expectation of continuance:

Another reason for the binding force of custom is the expectation of its
continuance is the future. Justice demands that this expectation should
be fulfilled and not frustrated.

3. Observance by a large number of people:

Sometimes a custom is observed by a large number of persons in

society and in course of time the same come to have the force of law.

4. Interests of Society:

Custom rests on the popular conviction that it is in the interests of

society. This conviction is so strong that it does not found desirable to
go against it.

5. Useful to the law giver:

According to Paton: Custom is useful to the law-giver and codifier is

two ways. It provides that material out of which the law can be
fashioned. There is a tendency to adopt the maxim whatever has been
authority in the past is a safe guide for the future.

END OF MODULE 2
 MODULE 3

Natural Law

There is no unanimity about the definition and exact meaning of

Natural Law. In jurisprudence the term ‘Natural Law’ means those
rules and principles which are supposed to have originated from some
supreme source other than any political or worldly authority. It is
basically a priori method different from empirical method. It
symbolizes Physical Law of Nature based on moral ideals which has
universal applicability at all places and terms. It has often been used
either to defend a change or to maintain status quo according to needs
and requirement of the time. For example, Locke used Natural Law as
an instrument of change but Hobbes used it to maintain status quo in
the society. The concepts of ‘Rule of Law’ in England and India and
‘due process’ in USA are essentially based on Natural Law. Natural
Law is eternal and unalterable, as having existed from the
commencement of the world, uncreated and immutable. Natural Law is
not made by man; it is only discovered by him. Natural Law is not
enforced by any external agency. Natural Law is not promulgated by
legislation; it is an outcome of preaching of philosophers, prophets,
saints etc. and thus in a sense, it is a higher form of law. Natural Law
has no formal written Code. Also, there is neither precise penalty for
its violation nor any specific reward for abiding by its rules. Natural
Law has an eternal lasting value which is immutable. Natural Law is
also termed as Divine Law, Law of Nature, Law of God, etc. Divine
Law means the command of God imposed upon men. Natural Law is
also the Law of Reason, as being established by that reason by which
the world is governed, and also as being addressed to and perceived by
the rational of nature of man. It is also the Universal or Common Law
as being of universal validity, the same in all places and binding on all
peoples, and not one thing at Athens. Lastly in modern times we find it
termed as “moral law” as being the expression of the principles of
morality. The Natural Law denies the possibility of any rigid separation
of the ‘is’ and ‘ought’ aspect of law and believes that such a separation
is unnecessarily causing confusing in the field of law. The supporters
of Natural Law argue that the notions of ‘justice’, ‘right’ or ‘reason’
have been drawn from the nature of man and the Law of Nature and,
therefore, this aspect cannot be completely eliminated from the purview
of law. It has generally been considered as an ideal source of law with
invariant contents.

Natural law is the moral theory of jurisprudence and often states that
laws should be on the basis of ethics and morals. This law also states
that law should focus on what is ‘correct’. In general, Natural law is a
philosophy of law that focuses on the laws of nature.

The philosophical concerns itself mainly with the connection of law to

specific thoughts which law is intended to accomplish and to explore
the reasons for which a particular law has been established. The
eminent law specialists consider the law as neither a discretionary
order of a ruler nor a concerning the making of recorded need. To
them, the law is the result of human reason and its motivation is to
hoist and praise human identity.

The natural law hypothesis propounded by Grotius, Locke, and

Rousseau altered the current organizations and held that ‘social
contract’ was the premise of the general public. Hobbes utilized
natural law hypothesis to propagate reactionary development and
legitimize business as usual for the safeguarding of harmony and
insurance of people from never-ending struggle and disarray. Thus,
the views of Scholars represent the ‘Philosophical thought’ of the
School itself.
Hugo Grotius, a Dutch national and a Republican philosopher was
regarded as the father of the philosophical school of jurisprudence. In
his famous work ‘The Law of War and Peace’, Grotius stated that
natural law springs from the social nature of man and the natural law as
well as positive morality, both are based on the nation of
righteousness. Natural justice is justice indeed with the truth. The rules
of human conduct emerge from the right reason and they receive
public support of the coercive force of the state but the census of public
disapprobation. Grotius also promoted the concept of “Just War” as a
war that was required by natural, national, and divine law under
certain circumstances. He developed a series of rules for the “right
conduct” of war, based on the principle that actions in war should
“serve the right.” Grotius also wrote De Jure Praedae, one chapter of
which, defending free access to the ocean for all nations, was reprinted
and widely circulated under the title Mare Liberum.
John Locke is among the most influential political philosophers of the
modern period. In the Two Treatises of Government, he argued that
people have rights, such as the right to life, liberty, and property that
have a foundation independent of the laws of any particular society.
Locke claimed that men are naturally free and equal as part of the
justification for understanding legitimate political government as the
result of a social contract where people in the state of nature
conditionally transfer some of their rights to the government in order
to better ensure the stable, comfortable enjoyment of their lives,
liberty, and property. Locke also defends the principle of majority rule
and the separation of legislative and executive powers. He additionally
protects the guideline of dominant party rule and the division of
administrative and official forces.
Jean Rousseau believed modern man’s enslavement to his own needs
was responsible for all sorts of societal ills, from exploitation and
domination of others to poor self-esteem and depression. Rousseau
believed that good government must have the freedom of all its
citizens as its most fundamental objective. The Social Contract in
particular is Rousseau’s attempt to imagine the form of government
that best affirms the individual freedom of all its citizens, with certain
constraints inherent to a complex, modern, civil society. Rousseau
recognized that as long as property and laws exist, individuals can
never be as utterly free in present-day society as they are in the
condition of nature, a point later reverberated by Marx and numerous
other Communist and rebel social thinkers. Nonetheless, Rousseau
unequivocally had confidence in the presence of specific standards of
government that whenever authorized, can bear the cost of the
individuals from society, a dimension of opportunity that at any rate
which approximates the opportunity appreciated in the condition of
nature.
It has a practical and educational value. There are five schools of
jurisprudence. In the natural law school, there are four periods of
evolution of theory. In this, the period of renaissance played a vital role
in the of natural law theory. It is marked by rationalism and the
emergence of new ideas in different fields of knowledge. In the period
of the Renaissance there were many philosophers propounded their
theories but mainly Hugo Grotius, Thomas Hobbes, John Locke, Jean
Rousseau and Immanuel Kant were propounded natural law theory in
the best way. So, in the renaissance period, the rise of humanism the
natural law became open to rational inquiry free from religious
trappings.

Philosophical School

The Philosophical School is not concerned with what the actual law of
the past and the present is. Their effort is to develop the idea of justice
as an ethical principle and consequently to create an ideal system of
law.
In the eighteenth century, they put their faith in the law of nature which
could be discovered by human reason. In the nineteenth century they
engaged themselves in the metaphysical discussions of the existing law
and in attempts to create a perfect system of law in codes and
legislation.

In the twentieth century, they devoted themselves to social interests and

ideals and the formulation of theories of social justice.

The jurists of the Philosophical School have always considered law as

an abstraction and based it upon abstract ethical principles of justice. A
law, as such, is removed from objectivity whereas it ought to be definite
and precise, capable of universal application. Idealism must be mixed
with realism. The following are the viewpoints of jurists:

Hugo Grotius

Hugo Grotius worked as a jurist in the Dutch Republic and laid the
foundation for international law, based on natural law. Grotius removed
the natural law from the jurisdiction of moral theologians and made it
the business of lawyers and philosophers, by asserting their very nature,
natural laws were authoritative in themselves, with or without faith in
God. He prompted the concept of 'just war' as are which was required
by natural, national divine law under certain circumstances. He
developed a series of rules for 'right conduct' of war, based on the
principle that actions in a war should ‘serve the right’.

Jean Jaques Rousseau

Rousseau thought that the enslavement of modern man to his own
requirements was accountable for all kinds of social ills, from the
exploitation and domination of others to poor self-esteem and
depression, Rousseau thought that good government must have as its
most basic goal the liberty of all its people. In specific, the social
agreement is Rousseau's effort to imagine the type of government that
best affirms all its citizens ' individual liberty, with certain limitations
inherent in a complicated, contemporary, civil society. Rousseau
recognized that as long as property and regulations exist, individuals in
contemporary culture can never be as completely free as they are in the
state of nature, a point that Marx and many other communist social
philosophers echoed later.

Immanuel Kant

Immanuel Kant is one of the most influential philosophers in the history

of western philosophy. He developed his metaphysical method further
and held that ethics and law are not the same thing. According to Kant,
ethics relates to man's spontaneous acts while law deals with all those
acts to which a man be compelled. Kant states that law regulates man's
external conduct. He stated that compulsion should be exercise man's
conduct. As per him, Law is the total of the conditions under which the
personal wishes of man be reconciled with the personal wishes of
another man following a general law of freedom. Thus, Kant
considered compulsion as an essential element of the law, and a right
is nothing but a power to compel.
Analytical School of Law

The Analytical School of Jurisprudence presented a new angle to the

legal thought and philosophy in an era dominated by Common Law and
precedent. There are a few known schools of jurisprudence, each
advocating their own unique perspective of law, order and society. The
analytical school focuses on the idea that law is not something which
is found in traditions and practices (advocated by the Historical School)
or something which is natural and based on morality, religion or
something emanating from God (Natural Law), or something arising
out of precedents, customs and good judgement (Common Law). It
clearly segregates the idea of law from traditions, beliefs, morals and
religion, and states that law is something which is made by an authority.
This law, which is made by the appropriate authority is above the
qualms of morality and is backed by sanction of the authority.

The approach of the Analytical School brings the society under order
and control. It leaves no room for ambiguity or doubt. There are no
considerations outside the book of the law written by a sovereign. The
idea of Analytical School of Jurisprudence considers jurisprudence as
a science of law concerned with analysis of legal concepts- their
exposition, examination and comparison in a scientific manner in order
to determine their scope and extent in a given politically organised
society.
Wolfgang Friedmann captures the essence of the dialectics between
Analytical Positivism and Historical schools of Jurisprudence in the
following words:

“The controversy between those who believe that law should

essentially follow, not lead, and that it should do so slowly, in response
to clearly formulated social sentiment — and those who believe that
the law should be a determined agent in the creation of new norms, is
one of the recurrent themes of the history of legal thought. It is tellingly
illustrated by the conflicting approaches of Savigny and Bentham.”

F.K. Von Savigny was a pioneer of the Historical School of law. He

believed that law was 'found', not 'made'. By contrast, Bentham, a
fervent believer in the efficacy of rationally constructed reforming
laws, believed that legislation is a science.

This theory analyzes the principles of law and reduces them to the
fundamentals. It takes into account the developed legal system and
analyzes the basic concepts to bring out their relationship with one
another. Therefore, this is school is called analytical School of
jurisprudence.
The beliefs, theories and contributions of the various jurists of the
Analytical School are as follows:

Jeremy Bentham (1748- 1832)

Jeremy Bentham was the forerunner and the greatest pioneer of the
Analytical School of Law. He is considered as one of the original
thinkers and propagators of law. He is considered to be the founder of
positivism in the modern sense of the term. It is often stated in the legal
community that the propositions of Austin are the ‘para-phasing of
Bentham’s Theory’. A.V. Dicey in his book ‘Law and Public Opinion
in 19th Century’ wrote about the contributions of Bentham to the
English Jurisprudence. He sketched Bentham’s ideas about
individualism, law and legal reforms. According to Dicey, the
contributions of Jeremy Bentham to English Law can be summarised
as-

“He determined, in the first place, the principles on which reforms

should be based. Secondly, he determined the method i.e., the mode of
legislation, by which reforms should be carried out in England.”

Criticism of Bentham’s Theory

• His utilitarian theory blends materialism with idealism.

• He overestimated the power of the legislator.
• Pleasure and pain cannot be the final test of the adequacy of law.
• The theory fails to balance individual interests with the interest of
the community.
• It overrated the powers of government.
• It was deficient in the sense of the importance of history and of
historical knowledge.
• It aimed at finality and made insufficient allowance for the
operation of natural growth and change.
• It ignored or underestimated differences caused by race, climate,
religion, physical, social, and economic conditions.
John Austin (1790- 1859)

John Austin is considered to be the ‘father of English Jurisprudence’.

Austin was a firm believer of segregating proper law, i.e., positive law
made by a Sovereign or a State from the improper law, i.e., law based
on customs or morals which lacks the force or sanction of the State.
The major thrust in Austinian positive law was on separation of law
from morals. He distinguished the science of jurisprudence from ethics.
In the words of Austin, “the existence of law is one thing, its merit and
demerit another… A law which actually exists, is a law, though we
happen to dislike it or though it may vary from the text by which we
regulate our approbation or disapprobation.”

The four essentials of positive law as attributed by Austin are:

• Command
• Sanction
• Duty
• Sovereignty

Austin's Imperative Theory of Law

Dr. Allen stated that, Austin defined law as "a rule laid for the guidance
of intelligent beings by an intelligent being having power over him."
He divides law into two parts, namely,

1. Laws set by God for men; and

2. Human Law, that is laws made by men for men.
He says that positive morality is not law properly so called but it is law
by analogy. According to Austin, the study and analysis of positive law
alone is the appropriate subject matter of jurisprudence. To quote him,
“the subject-matter of jurisprudence is positive law, i.e., law simply and
strictly so called; or law set by political superior to political inferiors.”
The chief characteristics of positive law are command, duty and
sanctions, i.e., every law is command, imposing a duty, enforced by a
sanction. Thus, Austin strongly believed that law is the sovereign's
command carrying with it threat of evil which is called sanction, and
the party commanded and threatened is under an obligation (or duty) to
obey it. Duty and command are co-relative and fear of sanction
(punishment) is the motive for obedience of such command, i.e., law.

Criticism of Austin’s Imperative Theory

Austin’s theory received criticism on various grounds, such as:

• It overlooks Customs
• No place for Judge-made law
• It treats International Law as merely moral obligations
• The command of sovereign is over-emphasised as an
inevitable constituent of law
• Relation between law and morality is overlooked
• Sanction is considered the only means to induce obedience of
law

Erskine Holland (1835- 1928)

Sir Thomas Erskine Holland characterized jurisprudence as the 'formal
science of positive law' which are recognised as having legal
consequences. He pointed out that jurisprudence is not a science of
legal relations a priori, (as they ought to have been followed) but it is
posteriori, i.e., the law which has been actually imposed by the state as
a positive law.

Holland rejected the Austinian division of jurisprudence into 'general'

and 'particular'. He treated jurisprudence as a science and believed that
a science can never be particularised. Supporting his view, he presented
an analogy between jurisprudence and geology as a science. He
supported the theory of general jurisprudence which has universal
validity like any other branch of science.

Criticism of Holland’s theory

Professor Dias disagreed with Holland comparing jurisprudence with

geology on the ground that the substance and forces of law are not the
same everywhere. Law being a social institution, varies according to
the varying traditions, values and structure of the society. Buckland has
also criticised Holland for not accepting the 'particularity', of the
jurisprudence and comparing it with science of geology. Law according
to Buckland is like the science of biology which is capable of constant
growth and change with changing times.

Sir John Salmond (1862- 1924)

Salmond defined jurisprudence with reference to a particular positive

legal system. According to him, jurisprudence is the science of the first
principle of civil law. The term ‘civil law’ denotes the law of a State as
administered by Courts and includes statutes, customs and judicial
precedents. He agreed with both Austin and Holland that jurisprudence
is a science which involves systematic study of essential principles of
national legal system. He differs from Austin in delinking law from
political sovereign and correlating it with Courts of law. Salmond was
against attributing jurisprudence generality or universality and held that
the jurisprudentia generalis is not the study of legal systems in general,
but the study of general principles of a particular legal system.

So, by the time of Salmond, we see a de-linking of the Analytical

School from the authority of the Sovereign and Legal Positivism.
Although to this day, both these terms are considered as almost similar
(they aren’t) and often used interchangeably in conversations and
discussions in the legal fraternity. Salmond being a follower of
Analytical School of Jurisprudence was a critic of legal positivism and
included customs and judicial precedents as law along with Statutes.

Juxtaposition of Indian Jurisprudence with Analytical Positivism

India, with the adoption of the Constitution in 1950, became a

democratic, secular and socialist nation embodying the principles of
freedom, liberty, equality and social justice. Early jurists in India after
Independence adopted the positivist approach in A.K. Gopalan v.
State of Madras. In this case, the Supreme Court relied on the rigid
principle of ‘procedure established by law' which rejected the view that
the word ‘law’ used in Article 21 could be interpreted to include within
it the principles of natural justice. The only dissenting opinion in this
judgement was given by Justice Fazl Ali (whose judgement was later
upheld and the rest of the case overruled).

This approach was found incompatible with the developing trend of

social justice and was, therefore, finally departed in the historic case of
Maneka Gandhi v. Union of India, wherein it was held that procedure
prescribed by law has to be just, fair and reasonable and not oppressive
or arbitrary. In other words, the Court ruled that the American concept
of ‘due process’ i.e., reasonableness and fairness was implicit in the
expression ‘procedure established by law’. Thereafter there have been
many cases of liberal interpretation by the judges which have acted
with the force of law.

The principle of Checks and Balances adopted by India allows the

liberal interpretation of laws by the Judiciary. There is a plethora of
cases where Judges interpreted certain laws in a manner or gave certain
guidelines which, in the form of precedent, acted with the force of law
and became the basis of giving future judgements. The prime example
in this regard is the Vishaka Guidelines given by the Supreme Court in
Vishaka v. State of Rajasthan in 1997 which acted as law until they
were formally drafted by the Legislature in the form of Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013. Thus, the idea of Analytical Positivism is hardly
followed to the extreme letter as would have been envisioned by
Bentham and Austin.
Pure Theory of Law

Kelson gave a ‘pure theory of law’. According to him, law is a

‘normative science’. The legal norms are ‘Ought’ norms as distinct
from ‘Is’ norms of physical and natural sciences. Law does not attempt
to describe what actually occurs but only prescribes certain rules. The
science of law to Kelson is the knowledge of hierarchy of normative
relations. All norms derive their power from the ultimate norm called
Grundnorm.

According to Kelson, law should be uniform. It should be applicable to

all times and in all places. Law must be free from ethics, politics,
history, sociology etc in other words, it must be pure. According to
Kelson law is a normative science and it is not a natural science based
on cause and effect like law of gravitation. Laws of natural science are
capable of describing as ‘what it is’ as compared to science of law where
law is knowledge of ‘what is ought to be’. This thought provides a
normative character to law.

Kelson’s Pure theory of Law

According to Kelson a theory of law should be uniform. It should be

applicable to all times and in all places. according to him, Law must be
free from ethics, politics, history, sociology etc in other words, it must
be pure.

Pure theory is close to some other theories –

Kelson and Austin both are positivists. Hans Kelson's Pure theory of
law is a part of analytical positivism. Kelson explains his theory by the
method of analogy. It deals with the existing fact for example what law
is and not as it ought to be.

The theory of law must be distinguished from this law itself –

Law itself consists of a mass of heterogeneous of rules and the function

of the theory of law is to relate them in a logical pattern and to recognize
them in single ordinarily unit

Theory of law should be uniform –

According to Kelson, a theory of law should be uniform. for example -

it should be applicable at all times and in all places

Law is Normative Science –

According to Kelson law is a normative science and it is not a natural

science based on cause and effect like law of gravitation. Jurisprudence
is the knowledge of norms. Law is a normative science. A norm of law
is simply a preposition in hypothetical from. A norm of law has a
distinct feature. They are different from Science norm.

Theory of Law must be pure -

According to Kelson's pure theory of law, it must be free from Ethics,

Morality, Politics Sociology, History etc it must be pure.

Hierarchy of normative relations -

For Kelson law is the knowledge of hierarchy of normative relations.
He does not want to include in his theory what ought to be but for him,
law is a theory of analysis an analysis that is free from all ethical and
political judgment of value

Salient features of Kelson's pure theory of law / Essential of

Kelson's Pure Theory of Law

1. Reduce chaos and multiplicity to unity- The aim of the Pure

theory of law is to reduce chaos and multiplicity to Unity
2. Legal theory as a science of what law is, not what ought to be
- Pure theory of law deals with the knowledge of what law is,
and it is not concerned about what law ought to be.
3. Law as normative science - Theory considered as a normative
science and not a natural science.
4. Effectiveness of not out of scope - Legal theory as a theory of
norms is not concerned with the effectiveness of legal norms.
5. It is formal theory confined to a particular system of positive
law as actually in operation.
6. The relation of legal theory to a particular system of positive
law is that of possible to actual law

Implications of the Pure Theory:

Kelson arrived at the following conclusions from his idea of

Grundnorm:

1. There exists no distinction between public and private law.

 2. It is not the idea of right, but the idea of duty that is essential.
This is evident in the element of “ought” present in every
norm. He concluded that law essentially structures human
behaviour and that the idea of duty is essential to fulfil this
function. The idea of right is only a by-product of the legal
system.
3. Personification is used by law only as a technical device to
achieve its goal as a normative science. Thus, the distinction
between natural persons and juristic persons is irrelevant for
the purposes of studying law.
4. The distinction between procedural law and substantive law is
relative and procedural law is more significant.
5. The distinction between question of law and that of fact is
relative. Fact is nothing but an assumption of the judge as to
what must have happened in order to apply a particular norm.
6. Kelson did not believe in the separation of power and argued
that all the three- legislature, executive and judiciary- are
essential “norm-creating” agencies.

Merits of the Pure Theory of Law

1. Kelson recognized International Law as a law

2. Pure theory of law is best for peaceful change
3. It makes the most refined development of analytical positivism
4. Kelson's concept of legal system is clear original and striking
5. Kelson has explained that no law can prevail country to
Grundnorm or constitution
 6. Kelson's Pure Theory of Law is considered to be the most
outstanding theory of law

Criticism of Kelson’s Pure theory law

1. Grundnorms are vague and confusing-

2. Purity of nerve cannot be maintained
3. Natural law is ignored
4. Supremacy of international law
5. No practical significance

Lord Lloyd has applauded the fact that Kelson’s pure theory avoids
some of the perplexities of Austin’s analytical positivism. However, he
expresses concern over the uncertainty of the basic norm. It is difficult
for the idea of basic norm to survive in the age of scientific
behaviouralist. Prof. Laski has stated, “granted its postulates, I believe
the pure theory to be unanswerable, but its substance is an exercise in
logic not in life.”

END OF MODULE 3
 MODULE 4

Historical School

Historical School of Jurisprudence describes the origin of law. This

school argues that the law was found not made. The main source of law
is Kings Judgment, Customs and habits. Jurists like Montesquieu,
Savigny, Sir Henry Maine, and Georg Friedrich Puchta are the
supporter of the Historical School of Jurisprudence. According to Sir
Henry Maine, Montesquieu was the first jurist of Historical school. Sir
Henry Maine was the jurist of English Historical School. He was more
logical and accept the concept of Codification and legislation.

Savigny was the father of Historical school. He argued that Law is like
language and have a national character. Law is not universal. While
Puchta improved the ideas of Savigny and argued that both state and
people are equally important and source of law.

The Historical School believe that law is made from people according
to their changing needs. Habits and customs are the main sources of the
Historical School of Jurisprudence. According to Dias, Historical
school arose as a reaction against the natural law theories.

The reasons for the emergence of this school are:

• It came as a reaction to the natural school of law.

Natural school of law believes that the law is originated from some
divine power. Natural law is also called the Eternal law. It exists since
the beginning of the world. It is closely associated with the morality
and intention of God. Indian constitution has some relevance of the
natural law in its articles.

Historical school of Jurisprudence focuses on the formation of law by

people not by some divine origin.

• It opposes the ideology of the analytical school of jurisprudence.

Analytical school of jurisprudence is also called Austinian School. It is

established by John Austin. The subject matter of Analytical school of
Jurisprudence is positive law. It focuses on the origin of law the judges,
state and legislators. Historical School laid emphasis on the formation
of law by people through customs and habits, not by the judges and
superior authority.

Jurists of Historical School of Jurisprudence

I. Montesquieu

According to Sir Henry Maine, the 1st Jurist to adopt the historical
method of understanding the legal institution was Montesquieu. He laid
the foundation of the historical school in France. According to him, it
is irrelevant to discuss whether the law is good or bad because the law
depends on social, political and environmental conditions prevailing in
society. Montesquieu concluded that the “law is the creation of the
climate, local situation, accident or imposture”. He was of the view that
law must change according to changing needs of the society. He did not
establish any theory or philosophy of the relation between the law and
society. He suggested that the law should answer the needs of the place
and should change according to time, place and needs of the people.

One of the best-known works of Montesquieu was his book ‘The Spirit
of laws’. In this book, he represents his beliefs in political
Enlightenment ideas and suggests how the laws are required to modify
according to the needs of people and society.

II. Savigny

Savigny is regarded as a father of the Historical school. He argued that

the coherent nature of the legal system is the usually due to the failure
to understand its history and origin. According to him, the law is “ a
product of times the germ of which like the germ of State, exists in the
nature of men as being made for society and which develops from this
germ various forms, according to the environing the influences which
play upon it.”

Savigny believes that the law cannot be borrowed from outside. And
the main source of law is the consciousness of the people.

He was of the view that the law of the state grows with the
strengthening of the state nationality and law dies or fade away when
nationality loosens its strength in the state.

Friedmann concludes the Savigny’s theory

• Law is like language which eventually grows.

• Law cannot be of universal validity nor be constructed on the
basis of certain rational principles or eternal principles.
 • Law is sui generis. Savigny argued that law is like the language
having its own national character. So, it can’t be universally
applied and varies according to the people. He mentioned this in
the self-written pamphlets “Vom Berufunserer Zeit für
Gesetzgebungand Rechtswissenschaft (On the Vocation of Our
Age for Legislation and Jurisprudence).”
• Law is found or discovered not made. It can’t be made artificially
like the invention of an object.
• Law is found on the basis of consciousness, customs and beliefs
of the people.

Basic Concept of Savigny’s Volksgeist

Volksgeist means “national character”. According to Savigny’s

Volksgeist, the law is the product of general consciousness of the
people or will. The concept of Volksgeist was served as a warning
against the hasty legislation and introduce the revolutionary abstract
ideas on the legal system. Unless they support the general will of the
people.

Basically, Savigny was of the view that law should not be found from
deliberate legislation but should be made and arises out of the general
consciousness of the people.

Volksgeist may quickly be expressed as follows:

1. The wellspring of law is “Volksgeist”: Law of a country isn’t the

result of reason or order however is solely dictated by the
country’s impossible to miss character which is in any case called
 the Volksgeist or soul of the individuals. Savigny, along these
lines, supported standard law over enactments. The custom goes
before enactment, and enactment also adjusts to gain expertise.
As such he gives more significance to law specialists than
lawmakers.
2. Law is found and not made: Law was something which can be
made or adjusted self-assertively by officials. The substance of
law is basically dictated by the entire past of a people so it can’t
be created stomach muscle extra by an activity of a shrewd law
supplier or by some imaginative or ace vivacious individuals. It
is to be found in famous confidence, regular feelings, customs,
attributes, propensities, conventions which in course of time
develop into lawful principles.
3. Law can’t be all inclusive or general in character: Law of a
country, similar to its language and way, is impossible to miss to
its kin. It is consistently impossible to miss, specific, constrained
in its temperament and character contingent on the
unconventional customs of each individual. A country to him,
implied just a network of individuals connected together by
verifiable, land and social ties. The limits of certain countries
might be obviously characterized, however not of different
countries, and this is reflected in the solidarity or assortment of
their individual laws. Indeed, even where the solidarity of a
people is clear, there may exist in its ‘internal circles’ of varieties,
for example, urbans and societies.
4. Law can be improved through verifiable examination: Historical
exploration was the key way to the comprehension and change of
the present. Savigny underscored that the jumbled and outdated
nature of a legitimate framework was ordinarily because of an
inability to appreciate its history and advancement. He cautioned
that changes, which conflicted with the flood of a country’s
congruity, were damned. The basic pre-imperative to the change
of German law was, for him, profound information on its history.
On the off chance that law is an impression of individuals’ soul,
at that point it must be comprehended by following their history.

Criticisms:

As of now talked about, a uniform and exact meaning of law is a long

way from the real world, and Savigny’s Volksgeist isn’t a special case.
It has likewise a few reactions by different legal advisers, which are as
per the following:

1. Volksgeist not generally law: Dias says that numerous

organizations like bondage have started not in Volksgeist
however in the comfort of a decision government.
2. Inconsistency of the hypothesis: Savigny, from one perspective,
accentuated the national character of law however then again, he
prescribed the strategy for Roman Law to be embraced for the
cutting-edge conditions. Subsequently there is irregularity in the
hypothesis of Volksgeist.
3. Volksgeist isn’t a selective wellspring of law: According to
Savigny, Volksgeist is the main wellspring of law in the public
arena, however it isn’t right. Ruler Lloyd additionally said that
Savigny misjudged the importance of enactment for current
society. To the extent society is built up the law is additionally to
be created in the general public by enactment too.
4. Idea of Volksgeist is itself obscure: Some guidelines of standard
law may not mirror the soul of the entire populace, for example
neighbourhood customs. Savigny allowed for these by perceiving
the presence of ‘internal circles’ inside a general public. The main
inquiry remains: if law is the result of a Volksgeist, how is it that
only a few people and not all have developed an uncommon
standard? Then again, a few traditions, for example the Law
Merchant, were cosmopolitan in source: they were not the
animals of a specific country or race.
5. Overlooked different methods of advancement of Law: Law is
once in a while utilized intentionally to change existing thoughts;
and it might likewise be utilized additionally between State co-
activity in numerous circles. Indeed, even in Germany one may
example Bismarck’s canny and effective endeavour to cut the
ground from under the feet of the communist development by
presenting the Railway and Factories Accident Law 1871, a long
time before social conditions were ready. Significant guidelines
of law now and again create as the aftereffect of cognizant and
brutal battle between clashing interests inside the country, and not
 because of vague development, e.g., the law identifying with
worker’s organizations and industry. Development doesn’t
follow an inflexibly decided way.
6. Other law affecting components overlooked: Savigny in his
hypothesis disregarded different variables that assisted with
starting law. He completely overlooked the appointed authority’s
capacity to make the law. Paton expresses that the inventive work
of the appointed authorities and legal scholars were dealt with
rather too gently by Savigny.

Criticism of Savigny’s View

The views of Savigny were criticized by many jurists:

a) Charles Allen

Charles Allen criticized Savigny’s view that law should be found or

based on the customs. Allen was of the view that customs are not the
outcome of common consciousness of people. But they are the outcome
of the interest of a powerful and strong of a ruling class. For example,
slavery which was recognized and prevailed in certain societies by the
powerful classes of society.

b) Prof. Stone

Prof. Stone criticized the Savigny and says that he (Savigny) ignored
the efficiency of the legislation and planned law and social change.
And over emphasized on the consciousness of people.
For example, In India, the abolition of Sati and widow’s remarriage are
brought in to change because of powerful and effective legislation.

III. Sir Henry Maine

Sir Henry Maine was the founder of the English Historical School of
Law. Savigny’s views of Historical school was carried forward in
England by Sir Henry Maine.

Major Works by Sir Henry Maine

• The first work of Maine ‘Ancient Law’ was published in 1861.

• He also wrote Village Communities (1871),
• Early History of Institutions (1875)
• Dissertations of Early Law and Custom (1883).

Maine studied the Indian legal system deeply as he was law member in
the Council of the Governor–General of India b/w 1861 to 1869.
Maine’s ideas were incorporated by the best things in the theories of
Savigny and Montesquieu and he avoided what was abstract and unreal
Romanticism.

Maine favoured legislation and codification of law, unlike Savigny.

Maine describes the development of law in four stages:

a) First stage

Rulers are believed to be acting under divine inspiration. And the laws
are made on the commands of the rulers. For example, Themistes of
ancient Greek. The judgment of the king was considered to be the
judgment of God or some divine body. King was merely an executor
of judgments of God, not the law-maker.

b) Second stage

Then the commands of King converted into customary law. The custom
prevails in the ruler or majority class. Customs seems to have
succeeded to the right and authorities of the king.

c) Third stage

The knowledge & administration of customs goes into the hands of a

minority, Due to the weakening of the lawmaking power of the original
law-makers like Priests the knowledge of customs goes into the hands
of a minority class or ordinary class. And the ruler is superseded by a
minority who obtain control over the law.

d) Fourth stage

In the fourth and last stage, the law is codified and promulgated.

IV. Georg Friedrich Puchta

Puchta was a German Jurist. He was a disciple of Savigny and a great

jurist of Historical school of Jurisprudence. Georg Friedrich Puchta’s
ideas were more logical and improved than Savigny’s ideas. He traced
the development and evolution of law from the very beginning. His
ideas mainly focused on the situation when conflict arises between
general will and individual will. In the conflict between general will
and individual will, the state came into existence. And find out the
midway to resolve the conflict.
The main concept of Puchta’s ideas was that “neither the people nor the
state alone can make and formulate laws”. Both State and individual
are the sources of law.

Contribution of Puchta

• Puchta gave twofold aspects of human will and origin of the state.
• Despite some points of distinction Puchta and Savigny, he
improved the views of Savigny and made them more logical.

Sociological School

The main subject matter of sociology is Society. Sociology is the study

of society, human behaviour, and social changes. And jurisprudence is
the study of law and legal aspect of things. The Sociological school of
Jurisprudence advocates that the Law and society are related to each
other. This school argues that the law is a social phenomenon because
it has a major impact on society.

August Comte (1798-1857) was a French Philosopher. The term

“Sociology” was first used by the Comte and he described Sociology
as a positive science of social facts. He said that Society is like an
organism and it could progress when it is guided by Scientific
Principles. Thus, he makes great efforts to use the law as a tool by
which human society maintains itself and progresses.
After Comte, many Writers and Jurist tried to connect the society and
law together. And tried to find a link between law and sociology.

Meaning of Sociological school of Jurisprudence

The idea of Sociological School is to establish a relation between the

Law and society. This school laid more emphasis on the legal
perspective of every problem and every change that take place in
society. Law is a social phenomenon and law has some direct or
indirect relation to society. Sociological School of Jurisprudence
focuses on balancing the welfare of state and individual was realized.

In the words of Ehrlich, “At the present as well as at any there time, the
centre of gravity of legal development lies not in legislation, nor in the
juristic decision, but in society itself.”

Sociological School of Jurisprudence studies the relationship between

the law and sociology. Every problem or concept has two different
aspects. One is sociological view and other is a legal aspect. For
example, Sati.

The main subject matter of sociology is Society. Sociology is the study

of society, human behavior, and social changes. And jurisprudence is
the study of law and legal aspect of things. The Sociological school of
Jurisprudence advocates that the Law and society are related to each
other. This school argues that the law is a social phenomenon because
it has a major impact on society. They consider law as a social
institution essentially interlinked with other scientists and the direct
impact of the law on society with its formation according to social
needs. Sociological jurists describe the perception of the law in
different ways like the functional aspect of law or defining the law in
terms of court’s rulings and decisions with a realistic approach of law.

Sociology of law is defined in many ways, but its main difference from
functional jurisprudence is that it attempts to create a science of social
life as a whole and to cover a great part of general sociology and
political science. The emphasis of the study is on society and law as a
mere manifestation, whereas Pound rather concentrates on law and
considers society in relation to it. Comte was the first writer to use the
term sociology which he described as a positive science of social facts.
Subsequently, writers and jurists tried to find a link between sociology
and law. Gurvitch, for example, said that the meeting point of sociology
and law is the sociology of law. Sociology of law should, however, be
distinguished from sociological jurisprudence. The latter primarily
studies law but in doing so it studies its relation with an impact on
society; whereas sociology of law primarily studies society and studies
law only peripherally.

The sociological school considers law as a social phenomenon and

examines the law in relation to society. The supporters of sociological
jurisprudence linked law with other social science disciplines and
treated it as a synthesis of psychology, philosophy, economics, political
science, sociology, etc. Law, according to them, was an applied science
employing functional methods of investigation and analysis for solving
the social and individual problems.
The sociological school of jurisprudence developed as the blend of
different juristic contemplations. The types of this school treat law as a
social wonder. As indicated by them, the law is a social capacity, an
outflow of human culture concerning the external relations of its
individual individuals. Montesquieu, Auguste Comte, Eugen Ehrlich,
Herbert Spencer, Duguit and Rosco Pound are the prominent legal
advisers of this school.

Montesquieu:

Montesquieu was a French philosopher and he paved the way of the

sociological school of jurisprudence. He was of the view that the social
condition of society somehow influences the legal process. He also
acknowledged the significance of history as a means of understanding
society’s composition and clarified the significance of studying
society’s history before formulating law for that particular society.

In his book, “The Spirit of Laws” he wrote, ‘The features of a country

should be determined by the law, so that they should relate to the
climate of each country, the quality of each soul, its situation and
extent, the main occupation of the natives, whether they are
husbandmen, huntsmen or shepherds, the degree of freedom that the
constitution will bear on the religion of the residents, their inclinations,
wealth, numbers, trade, customs and manners.’

August Comte:

The honour of being the founder of the science of sociology belongs to

another French philosopher August Comte. The legitimate object of
scientific study, according to Comte, is society itself and not any
particular institution of government. He stressed the fact that men have
ever been associated in groups and that it was in the social group and
not in isolated individuals that the impulses originated which
culminated in the establishment of law and government. He defiantly
rejected the view that society rests upon an individualistic basis and
that the individual is the focal point of law. His philosophy is thus in
sharp contracts to the mechanistic philosophy current before his time.

Eugen Ehrlich:

Ehrlich (1862-1922), an eminent jurist of sociological school primarily

expounded on the social basis of law. Eugen Ehrlich is regarded as the
sociology of law founder. Sociology of Law is the law study from the
sociological point of view. Ehrlich saw society as the main source of
law and by society he meant “men’s association.” Ehrlich had written
that “the centre of gravity of all legal developments is not in law or
judicial decisions but in society itself.” He asserted that society is the
primary source of law and a stronger source of law than law or
judgment. For him, the law is derived from social facts and depends not
on State authority but on social compulsion. Law, he said differs a little
from other forms of social compulsion and the state is merely one
among many associations, though admittedly it possesses certain
characteristics means of compulsion. The real source of law is not
statutes or reported cases but the activities of society itself. There is a
“living law” underlying the formal rules of the legal system and it is
the task of the judges and the jurists to integrate these two types of law.
Commercial law, for instance, as embodied in statutes and cases,
involves a constant attempt to try to keep up with commercial usage,
for the “centre of legal gravity lies of law not in legislation, nor in
judicial decisions but in the society itself.” Thus, it can be said that
Ehrlich suggests for a scientific approach to law which relates the law
more closely to the life of society but his work shows some weaknesses
also as he gives no clear criterion by which to distinguish a legal norm
from any other social norm.

Rosco Pound:

Roscoe Pound is regarded as one of the most noted American

Sociological jurists of the twentieth century. Kohler’s approach, in fact,
inspired Roscoe Pound the most for propounding the theory of social
engineering and the balancing of social interests. Kohler asserts that all
laws are relative and conditioned by the Civilization in which they
arise. But the idea of law has to follow the universal idea of human
civilization and the meaning of civilization is the social development
of human parts towards their highest possible unfolding. The evolution
of Civilization results from the struggle between the human mind
distinguishing itself from nature and the object-matter of nature. The
task of law following the evolution of Civilization is both to maintain
existing values and to create new ones for the further development and
unfolding of human powers. Every Civilization has certain rural
postulates that is, ideas of rights to be made effective by legal
Institution. Legal materials must be shaped so as to give effect to those
postulates and legislators, judges, jurists must mole to the law in
accordance with them. This analysis of Kohler has been incorporated
by Roscoe Pound in his exposition about the sociological school. For
Pound, jurisprudence is not so much a social science as a technology
and the analogy of Engineering is applied to social problems. He laid
Emphasis to accumulate factual information and statistics and paid
little attention to conceptual thinking. He called for a new functional
approach to law based on sound theorizing as to its purpose in a
particular age. For Pound, law is the body of knowledge and experience
with the aid of which a large part of social engineering is carried on. It
is more than a body of rules; it has rules, principles, conceptions and
Standards for conduct and for decisions but it also has Doctrines and
modes of professional thought and professional rules of Art By which
the precepts for conduct and decisions are applied, developed and given
effect.

Like an engineer’s formulae, they represent not only experience,

scientific formulations but also invented skill in conceiving new
devices and formulating the requirements by means of a developed
technique.

Pound has also recognised Ihering’s view of the law as a reconciler of

conflicting interests but at the same time has given it certain distinctive
features. For Pound, the law is an ordering of conduct so as to make the
goods of existence and the means of satisfying claims go around as far
as possible with the least friction and waste. Pound regards these claims
as interests which exist independently of the law and which are pressing
for recognition and security. The law recognises some of these making
them effective within defined limits and pound has attempted to
expound and classify the categories of interests which are thus
acknowledged in a modern democratic society.

It is however interesting to note that sociological jurisprudence neither

begins nor ends with Pound. Roscoe Pound died in 1964 and after him,
modern jurists have further elaborated or varied Pound’s basic
classification of interest and further developed a sociological approach.
Thus, Stone built upon Pound’s classification except for the elimination
of the category of public interest as a separate category. Professor Stone
is considered as a representative of modern sociological jurisprudence
one of the main faults of classical sociological jurisprudence. The
sociological jurists of the future will generally have to approach his
problems through a vast effort at understanding the wider social
context. Stone indicates that, in spite of its difficulties and faults, the
Parsonian Social system is the type of mode to which sociological jurist
must aspire. A common malaise in sociological jurisprudence is its
prevalent methodology of working outwards from legal problems to the
relevant social science. Instead what is needed is a framework of
thought receptive of social data which will allow us to see the social
system as an integrated equilibration of the multitude of operative
systems of values and institution embraced within it.

Leon Duguit:

The French jurist Leon Duguit was a professor of constitution law in

the University of Bordeaux in France. He made substantial contribution
to the sociological jurisprudence in early twentieth century. Duguit
carried forward the belief that scientific progress can be accelerated by
individual behaviour in order to satisfy common social needs and
interests. Duguit was inspired by Durkheim who himself had taken
inspiration from Comte. Durkheim’s main point, on which Duguit built
upon, was that he made a distinction between two kinds of needs of
men in society. Firstly, there are common needs of individuals which
are satisfied by mutual assistance and secondly, there are diverse needs
of individuals which are satisfied by the exchange of services.
Therefore, the division of labour was pre-eminent factor of social
cohesion as an indisputable fact beyond ideology, beyond religious or
metaphysical speculation…. The constant realisation of social fact
which is simply inter-dependence of individuals could at least replace
ideological quarrels by observable facts. Duguit attacked traditional
concepts of state, sovereignty and law and sought to fashion a new
approach to these matters from the angle of society. Duguit was much
influenced by Augste Comets ‘Theory of law as a fact” which
denounced individual rights of man and subordinated them to social
interest. Completed that “the only right which man can possess is the
right always to do his duty.” This formed the basis of Duguit’s legal
theory.

Duguit’s Theory of Social Solidarity:

Duguit built his theory on social solidarity. He insisted on the necessity

of viewing social life as it is actually lived. The most important fact of
the society is the interdependence of men. In the present-day society,
man exists by his membership of the society. Each man cannot
manufacture and pronounce the necessities of life himself. Functions
are so specialized that each in his turn depends on other for his
necessities. The end of all human activities and organisations should be
to ensure the interdependence of men. This is Duguit’s theory of social
solidarity. Duguit puts forth in definite and clear term that law arises of
the fact of social existence. Therefore, if man wishes to live and act in
society he must act in conformity with the social law of solidarity.
Solidarity is not a rule of conduct; it is a fact- the fundamental fact of
all human society. In other words, solidarity is neither a charity nor
fraternity. These are moral duties. It is a fact. It means that in fact men
are ‘solidarity’ with one another that is they have common needs which
they can only satisfy in common. That they have different capabilities
and different needs which they can satisfy by exchange of needs and
division of labour. This solidarity is mutual interdependence is the
product of social reality of social life. As such it is the duty of one and
all to conform his conduct according to fact of social solidarity. It is a
coincidence of purposes and facts- the unhappiness of one affect all,
the happiness of one profit all. He says, man must so act that he does
nothing which may injure social solidarity upon which he depends, and
more positively, he must do all which naturally tends to promote social
solidarity. Duguit’s principle of social solidarity is however not free
from criticism. Aware of the growing complexity of modern social life,
Duguit attacks individualism as reflected in the conception of
inalienable individual rights. He also rejects the alternative of
strengthening the central power of the state. Instead he advocates
decentralized group environment and the link between the different
groups is to be an objective rule of law, the principle of social
solidarity. This savours of natural law although Duguit emphatically
rejects any such metaphysical conception as incompatible with
scientific positivism, yet his idea of social solidarity is as strong a
natural law ideal as any ever conceived. As Allen puts it, “although
Duguit disregards the ethical element in law, he is considered to be
really postulating a content of ideal law “the natural law with valuable
content”. Again, the meaning of the term ‘social solidarity’ is not clear
from the analysis of Duguit. We may admit that the mutual
interdependence of men in society and the need to collaborate for the
functioning of social life is a scientific fact. But as many of these who
have examined the comparative precision of facts in the social and
natural sciences have observed, social facts are much less clearly
determined than natural facts and Duguit’s solid facts are, as one critic
has observed, facts of a highly metaphysical order. Duguit launched a
vigorous attack on the myth of state sovereignty. The social solidarity
is the touch stone of judging the activities of individuals and all
organisations. State is also a human organisation and it is no way
different from other organisations. The state stands in no special
position or privilege and it can be justified only so long as it fulfils its
duty. Duguit has no faith in all powerful illimitable authority-
‘sovereign’. He strongly pleads for the check on the state power. His
plea is for the decentralization and ultimately, he develops an idea of
syndicalism. Duguit denies the distinction between public and private
law. Both are to serve the same end i.e., social solidarity. So, there is
no difference in their nature.

Justice Holmes:

Justice Oliver Windell Holmes considered law as a means to protect

and promote the collective group interests as compared with the
individual interests. Thus, he approached law in a pragmatic manner
adopting a realistic attitude to analyse its working in the society. He
aptly remarked, “life of law has not been logic, it has been experience”
which meant that while determining the law and legal rules by which
men should be governed, the lawyers and Judges must take into
consideration the needs of the time, prevalent moral and political
precepts, public policy and the public opinion. Being a Judge of the
Supreme Court of America for over thirty years, Holmes was
convinced that Judges can play a significant role in turning law to life’s
needs and satisfaction. Through his monumental work, The Common
Law he took sociological jurisprudence across the Atlantic.

Benjaman Nathan Cardozo:

Cardozo (1870-1938), another Judge of the US Supreme Court, also

viewed the law in its sociological perspective. He totally rejected the
Austinian concept of logical interpretation of the law and his analytical
approach to the judicial process and emphasized on the need to interpret
the law in the light of social necessities and realities of life. He was
primarily concerned with two aspects of law, namely – how the Judges
should apply the law for deciding cases before them and how the law
grows in society.

According to him, judges cannot keep themselves secluded from social

realities and developments in other fields if social sciences which have
a direct bearing on the life of the people. Therefore, the law must keep
pace with the social developments and shape itself to the changing
needs of society in order to attain the ends of justice and undoubtedly,
Judge’s role is crucial in this judicial process. He remarked, “logic,
history, custom, utility and the accepted standards of right conduct are
forces which singularly or in combination, shape the process of law.
The judge should get his knowledge as a legislator gets it from
experience, study and reflection, from life itself.

Basic Tenets of Sociological School:

Following are the basic tenets or characteristics of the sociological

school:

1. Sociological jurists regard the working of the law rather than the
abstract content of the authoritative precepts.
2. Sociological jurists regard the law as a social institution, which
may be improved by intelligent effort. Hence it is the task of the
jurists to find out the best means of furthering such efforts.
3. Sociological jurists lay stress upon the social purposes which the
law serves rather than upon sanctions.
4. Sociological jurists look on legal institution and doctrines and
precepts functionally. They regard the form of legal precepts are
a matter of means only.
5. According to this school, the main function of law is to fulfil the
needs of society. Social requirements are accomplished by law.
Law is also a social instrument for maintaining law and order in
the society.

Legal Realism or Realist School:

Judgements of the law are affected by a lot of human emotions. This

school is known as Realist School because the law is considered as a
reality while looking at this school. This school focuses on the
judgements of the authority judges and their mind-set. This school is
based on the perspective of the lawyers and judges and the
implementation of their thought process. This school is an experience
of justice for different humans and it considers the perspectives of both
the parties in a case as to what is their opinion on justice.

Realist School was originated in America and Europe’s Scandinavia in

the 1880s. There was a plethora of judgments during 1890 in America
and the light was thrown on the Judgements and the cases and the
perspectives behind the judgements.

The next important question was the role of judges in the important
judgments and cases. The doctrine of precedents was introduced in this
school and in this doctrine, the Judgements shall follow the hierarchy
of the courts. For Instance, if the Supreme Court delivers a judgment
with their own knowledge and their liberal ideas, the subordinate courts
shall follow the judgments.

Basically, the Realist school was evolved and given accreditation in the
American Jurisprudence. Legal realism suggests that judicial decisions
must comply with financial factors and inquiries of strategy and
qualities. In America, we have the Realist School of jurisprudence. This
school strengthens sociological jurisprudence and perceives law as the
consequence of social impacts and conditions, and sees it as judicial
decisions.

American Realism –

The father of American Realism is John Gray and Oliver Wendell

Holmes. The other jurists of this school were Jeremy Frank and
Levellyn.

John Gray and Oliver Wendell Holmes focussed on the Liberal

Ideology and they can be explained by the example of an Indian Judge,
Justice D.Y Chandrachud. Justice Chandrachud gave the landmark
judgments on the Right to Privacy, Adultery and the famous Section
377 or the NAAZ foundation case. According to them, any judgements
are influenced by many factors and it is the responsibility of a prudent
and reasonable judgment of a liberal mind-set to deliver the judgments
in a way to instil the idea of liberalism in our society and stay unbiased
from any sort of Communalism or the Biasedness.
The question put by Oliver Wendell Holmes was to why people
understand the law? They understand the law to discern between right
and wrong. He coined the term ‘Bad Men’. The Bad Men according to
him think about what the judges feel and what is going to be decided in
the courts. They do not care about the other aspects, but about the
decision in courts. Law, according to him is not just logic and facts, but
the experiences gathered to conclude a statement of the problem and
deliver a prudent judgment. It also includes the belief of judges and
their mindset applied.

Jeremy Frank – In his book of ‘Law and the modern mind’, Jeremy
Frank states that, legal certainty is a myth and there is no certainty of
what would be the outcome of every wrong done, as it contains a lot of
variables and constraints, left out for different interpretations. He
contemplates and what Judges and Lawyers do and shall do. They apply
legal facts and reach the judgement. However, what if the facts are
wrong and so shall be the judgement. There is absolutely no guarantee
that judges would be understanding the facts word by word and there
will be a flawless judgment every time. It is always the duty of lawyers
and judges to follow the background of the law and the law is a
constructive work in the hands of lawyers and judges and they shall do
it independently and without any imposition.

During the 1990s liberalization was at a peak and many policies

changed and the law was a means for a social end. You can formulate
the law according to the need of changes in society. They shall work
parallel and there should be one common solution.
Oliver Holmes is, as it were, an example of the pragmatist school. “Law
is the thing that the courts do; it isn’t simply what the courts state.”
Emphasis is on activity. As Holmes would have it, “The life of the law
has not been the rationale; it has been involvement.”

Karl Llewellyn, in his previous works, was a representative for

customary pragmatist theory. He contended that the guidelines of
substantive law are far less significance in the genuine routine with
regards to the law that had up to this point been expected.

The theory rules that chosen “cases which appeared for a century have
been tricked and dealt by library-ridden hermits as judges.” He
suggested that the point of convergence of legal research ought to be
moved from the investigation of standards to the recognition of the
genuine conduct of the law authorities, especially the judges. “What
these authorities do about debates is, to my mind, the law itself.”

Llewellyn, one of the examples of the pragmatist development, has put

forward the accompanying focuses as the cardinal highlights of
American realism:

1. Realism isn’t so much another school of jurisprudence as another

philosophy in jurisprudence.
2. Realists see the law as robust and not as static. They view the law
as serving specific social closures and concentrate any given
cross-segment of it to discover to what degree these finishes are
being served.
 3. Realists, with the end goal of perception of working of any piece
of the legal framework, acknowledge a “separation of is from
should”. This implies the moral purposes which, as per the
spectator, ought to underlie the law are overlooked and are not
permitted to obscure the vision of the eyewitness.
4. Realism accentuates the social impacts of laws and legal
decisions.

Realist school helps not just in law but in understanding ideology and
perspectives.

END OF MODULE 4
 MODULE 5

Rights and Duties

Rights

In general parlance, right means claims or titles, liberties, powers and

immunities summed together. In other sense, it is a permissible action
within a certain sphere. The Latin term for right is rectus which means
'correct', Salmond has defined a 'right' as a man's capacity of
influencing the acts of another, not by his own strength, but of the
opinion on the force of society.

According to Julious Stone, a 'right' connotes

i. a claim justifiable in words;

ii. an attitude of human being by virtue of some supposed ideal or
natural right of life, equality property which is in accordance with
natural law.
iii. the existence of right presupposes existence of a remedy for its
breach. This has been well explained by the Latin maxim ubi jus
remedium. The German equivalent for right is Retch, in French
it is called 'droit.'

Legal Rights

Sir John Salmond defines right as an interest recognised and protected

by a rule or justice. It is an interest in respect of which there is a duty
and the disregard of which is wrong. A man has varied interests but all
of them are not recognised by law. Many interests exist de facto and
not de jure; they receive no recognition or protection from any rule of
right. The violation of them is no wrong and respect for them is no duty.
Interests are things which are to man's advantage, e.g., a man has
interest in his freedom or reputation.

Like wrongs and duties, rights are either moral or legal. A moral or
natural right is an interest recognised and protected by a rule of morality
violation of which would be a moral wrong. For example, parent's
interest to command respect from their children is their moral right but
if children violate it, it is a moral wrong. A legal right, on the other
hand is an interest recognised and protected by a rule of law, violation
of which would be a legal wrong. Thus, everyone has right to privacy
in his house and if any person interferes with this right, it would be a
legal wrong.

T.E. Holland defines a legal right as "a capacity residing in one man of
controlling with the assent and assistance of the State the actions of
others Thus, Holland lays greater emphasis on the element of
enforcement of legal right while Salmond lays greater stress on
recognition of right.

Ihering also defines right as a 'legally protected interest. He considers

law as a means to an end.

Dean Roscoe Pound in his analysis of 'Legal Right' observed that it

connotes:

1. an interest which is secured and protected by law;

 2. a recognised claim to act or forebearances by another or by all in
order to make the interest effective;
3. the capacity of creating or altering rights;
4. the privileges and liberties and
5. as an adjective, it is meant to give effect to recognise and give
effect to moral rights.

Case Laws

Explaining the main attributes of a legal right, the High Court of

Madras in Daniel v. State observed as follows:

i. In strict sense of the term, legal right is one which is an

ascertainable claim which is enforceable by courts and justice
administration agencies;
ii. In its wider sense, it has to be understood as any advantages or
benefit conferred upon a person by rule of law;
iii. legal rights need to be recognised by law;
iv. There are rights which are recognised by the International Court
under the law of nations;
v. Truly speaking, a legal right is a capacity of asserting a
recognised interest rather than a claim that could be asserted in
the law court.

The Supreme Court of India has defined legal right in State of

Rajasthan v. Union of India, wherein it observed:

"In a strict sense, legal rights are co-relative of legal duties and are
defined as interests which the law protects by imposing corresponding
duties on others. But in a generic sense, the word 'right is used to mean
an immunity from the legal power of another. Immunity is exemption
from the power of another in the same way as liberty is exemption from
the right of another. Immunity, in short, is no subjection."

Legal Wrongs

Salmond defines 'wrong' as "an act contrary to the rule of right and
justice. A synonym of it is injury, in its true and primary sense of
injuria". In its legal sense, it is known as legal injury which is against
law or jus. Wrongs may be of two kinds, namely,

(1) Moral wrongs

A moral wrong is an act which is morally or naturally wrong, being

contrary to the rule of natural justice whereas a legal wrong is an act
which is legally wrong, being contrary to the rule of legal justice and a
violation of the law. In simpler words, a wrong is a violation of legal
right (injuria).

(2) Legal wrongs.

A legal wrong may or may not be a moral wrong and conversely a

moral wrong may or may not be a legal wrong. For instance, non-
payment of a time barred debt is a moral wrong but it is not a legal
wrong since the same is not enforceable by law. Generally, recognition
of an act as a legal wrong entails punishment or suppression by the
physical force of the State.
Theories of Legal Rights

There are three main theories regarding nature of legal rights. They are:

1. Will Theory of Legal Right

The will theory of legal rights has been supported by Hegel, Kant,
Hume and others. According to this theory, a right is an inherent
attribute of the human will. The subject matter of right is derived from
human will. The theory suggests that it is through a right that a man
expresses his will over an object. The theory has also been accepted by
historical jurists of Germany, Puchta observed that a legal right is a
power over an object which by means of his right can be subjected to
the will of the person enjoying the right. Vinogradoff considers that
psychology of asserting claim is the basis of legal right. In a social order
established by law no man is absolutely free to act as he likes, but his
freedom of action is restricted due to rights of others.

2. Interest Theory of Legal Right

Another popular theory regarding the nature of legal right is called the
Interest Theory which was mainly propounded by the German Jurist
Ihering. According to this theory, "a legal right is a legally protected
interest". Ihering does not emphasise on the element of will in a legal
right. He asserts that the basis of legal right is 'interest' and not will.
The main object of law is protection of human interests and to avert a
conflict between their individual interests. But Salmond has criticised
Ihring's theory on the ground that it is incomplete since it completely
overlooks the element of recognition by State.
3. Protection Theory of Legal Rights

The totalitarian view completely denies the existence of legal rights.

They argue that State being omnipotent, individual has no separate
existence from it. Therefore, in fact all rights belong to the State and
the individuals do not have any independent legal right as such. This
view has, however, been rejected being far from reality in the modern
context of democratic welfare States.

Essential Elements of a Legal Right

According to Salmond, the five essentials of a Legal Right are:

(1) Person of Inherence

(2) Person of incidence
(3) Content of the Right
(4) Subject-matter of right
(5) Title of the right

Classification of Legal Rights

These may be classified as under:

(1) Perfect and Imperfect Rights

(2) Positive and Negative Rights
(3) Antecedent and Remedial Rights
(4) Rights in rem or in personam
(5) Proprietary and Personal Rights
(6) Rights in re propria and rights in re aliena
(7) Principal and Accessory Rights
(8) Primary and Sanctioning Rights
(9) Legal and Equitable Right
(10) Vested and Contingent Rights
(11) Public and Private Rights
(12) Servient and Dominant Rights

Jus ad rem

A right which originated from another right is called jus ad rem. That
is to say, the person of inherence has a right to have some other right
transferred to him. For instance, if A contracts to sell his land to B, then
B acquires a right against A to have the land transferred to himself.
Here right of B is called the right ad rem. A right ad rem is always a
right in personam in nature.

Duties

A duty is an obligatory act, it, it is an act the opposite of which would

be wrong. Thus, duties and wrongs are generally co-related. The
commission of a wrong is the breach of duty and the performance of a
duty is avoidance of wrong.

Duties are also of two kinds, namely,

(1) Moral, and

(2) Legal.

The law enforces the performance of a legal duty or punishes the

disregard of it.

Classification of Legal Duties

The duties which the law recognises may be of different kinds. They
may be classified under the following heads:

1- Positive and Negative Duties-

A duty may either be positive or negative. When law obliges a person

to do an act, the duty is called positive. When the law obliges him/her
to refrain from doing an act, it is a negative duty. If a person owes a
debt to another, he is under a duty to pay-off the amount of debt. This
is his positive duty. The performance of a positive duty extinguishes
both duty and right. The illustration of a negative duty is that if a person
has a right to a land, others are under a corresponding duty not to
interfere with that person's exclusive use of land. Thus, a negative duty
is not capable of being extinguished by fulfilment.

2- Primary and Secondary Duties-

Again, a duty may be either primary or secondary. A primary duty is

one which exists per se and is independent of any other duty. For
instance, to forbear from causing personal injury to another is a primary
duty. A secondary duty, on the other hand, is one which has no
independent existence but exists only for the enforcement of other
duties. For example, a duty to pay damages for the injury done to a
person, is a secondary duty. A secondary duty is also called a
sanctioning or a remedial duty.

3- Absolute and Relative Duties-

According to Keeton, a duty is an act or forbearance compelled by the
State in respect of a right vested in another and the breach of which is
a wrong. Hibbert refers to absolute and relative duties. According to
him, absolute duties are owed only to the State, breach of which is
generally called a crime and the remedy for it is punishment. Relative
duties are owed to any person other than the one who is imposing them,
the breach of which is called a civil injury which is redressable by
compensation or restitution to the injured party. Austin also supports
the view that certain duties are absolute, that is, they do not have a
corresponding right. For instance, duty towards God or State or a duty
not to commit suicide is absolute. A duty of kindness towards animals
is also an absolute duty.

Dr. Allen also supports Austin's view that a duty owed to the State is
absolute and there are no co-relative rights in the State. To quote his
words, A State compels children to go to school, or to be vaccinated,
prohibits the sale of certain drugs or alcoholic liquors, or forbids the
importation of animals which have not first been quarantined. In such
cases, the State has no corresponding right. Particularly, the duties
enforced by criminal law are absolute duties".

Salmond, however, rejects Austin's concept of absolute duty. He says

"there can be no duty without a right any more than there can be a
husband without a wife or parent without a child". Rights and duties
are always correlated and therefore, there is no scope for an absolute
duty. Gray also denies the existence of an absolute duty.
Characteristics of a Legal Duty:

A legal duty is simply a responsibility which must be fulfilled. The

main attributes of a legal duty are:

1. It should be general, though limited exceptions are permissible.

2. It should be promulgated.
3. It should be prospective and intelligible.
4. It must be consistent.
5. It should be capable of fulfilment.
6. It is mandatory in nature.
7. Hardships which are a part of the process of the obligation and
are a part of normalcy in accordance with the nature of the duty
will not result in any exemption.
8. Only a strong reason can stop one from the compliance of a duty,
otherwise its non- compliance is punishable.

Property

The term property is commonly used to define the objects which are
owned. In other words, property denotes those things in which right of
ownership can be expanded. The term property includes both living and
non-living things. Lands, chattels, shares, and debts are included in the
property.
In a wider sense, the term includes all those rights which a person has
or can be exercised. For instances, right to life, personal liberty,
reputation and all those rights which he can exercise against others.
Hence, in its wider sense, it can be termed as all those things or material
objects without which a person cannot live.

The term property has been described by various jurists as:

Salmond says that the law of property is the law of proprietary rights
'right in rem', the law of proprietary rights 'in personam' is distinguished
from it as the law of obligations. According to this usage, a freehold or
leasehold estate in land, or patent or copyright is included in property
but debt or shares or benefit arising out of a contract is not property.

According to Salmond, property has been termed in a variety of senses:

1. Legal Rights- It includes all those rights which a person is entitled

by a way of law. All those material objects which a person owns as per
the law are his legal rights. These are the rights which he exercises over
can others. It includes a person's personal as well as proprietary rights.

2. Proprietary Rights- It does not include personal rights, it only

includes proprietary rights. It means that land, chattels, shares or debts
are his property but his right to life and reputation are not included in
his property.

3. Corporeal Property- It only includes those property which real or

which can be seen i.e. land, chattels, etc. It does not include shares or
debts as property.
Hobbes and Blackstone are in favour of that property which is entitled
by law, i.e. legal rights.

Austin suggests that property is the greatest enjoyment which a person

holds. According to him, property includes whole of assets whethe
personal or proprietary.

Kinds of Property

- Corporeal
- Incorporeal

Corporeal Property

It is also termed as tangible property. It is the right of ownership over

material things. It includes only those things which are real and visible.
Person who has the right to use a thing is called as the owner of the
object and the object is called as property. It includes only material
things, i.e. land, house, chattels, money, ornaments etc.

Corporeal Property can be divided into two;

1. Movable Property and Immovable

2. Real and Personal property

Movable and Immovable Property

A corporeal property can be movable or immovable.

Immovable property includes land, house, walls etc. It includes that

property which cannot be moved from one place to another. Objects
which are physically attached to the earth and permanently fastened to
anything attached to the earth are termed as immovable property.

Whereas Movable property are those properties which can be easily

moved from one place to another by the help of a person. It includes
chattels, ornaments, etc.

Real and Personal Property

There is no such distinction between real and personal property. Real

property means all rights over the land which is recognized by law.
Whereas Personal property means all other proprietary rights whether
right in rem or right in personam.

Incorporeal property.

Incorporeal property is other proprietary rights which are right in rem

and are not tangible and real.

Incorporeal Property can be divided into two;

1. Jura in re aliena

2. Jura in re propria

Jura in re aliena

They are called as encumbrances. It includes property, the ownership

of which is in the hand of one person and it is used by another person.

It is categorized into following:

1. Lease;
2. Servitude;

3. Securities;

4. Trusts;

Jura in re propria

Proprietary rights are of both materials as well as non-material things.

Material things are the physical objects and non-material things are the
rights attached to the things.

Right in re propria is mainly over immaterial things. The person having

right over the thing which he attains due to his skill and labour.

It is categorized into following:

1. Patent

2. Copyright

3. Commercial Goodwill

Theories of Law of Property

Various theories have been provided by jurist from time to time to

provide better explanation and recognition to the law of property. Such
theories are both in support and against the law of property.

Following are the important theories of property:

1. The Natural Law Theory

The Natural law theory is based on the principle that one who possesses
the object is the owner of the property. It provides that when an
ownerless thing is being possessed by someone then that person
become the owner of the property. The reason is that the law recognized
the property through its owner. This theory also gets recognized by law
because the priority of the ownership of property is given to that person
who is in the possession of the property.

This principle is supported by various jurists:

Grotius says that all the things were originally without an owner and
whoever occupied them became the owner.

According to Blackstone, the natural law theory provides that one who
starts making use of a thing acquired an interest in that thing even for a
short period or last long.

This theory has been criticized by some jurist also; Henry Maine says
that it is erroneous to think that possession gives right over the title of
the property.

Bentham says that property is not originated by the occupation of an

ownerless thing, but it is the creation of law. He believes that property
exist only when there is an existence of law.

2. The Labour Theory

According to this theory, the person who has used his skills and labour
to produce an object is the owner of that object because it is the result
of his hard work. Though this theory is not recognized in modern times
because there are many situations where one can acquire property from
others by a way of will or contract. The labour theory is also called as
the positive theory.

Spencer supported this theory. He holds that property is the result of

labour of an individual and one who has not put any labour to produce
the property cannot acquire it.

3. Metaphysical Theory

This theory was propounded by Kant and Hegel. Both of them

justified the theory but this theory was not recognized as it is not
concerned with reality.

According to Kant, a thing rightfully belongs to someone when he is

connected with it in such manner that when someone else uses it
without consent, it causes damage to the owner also. He provides that
as per this theory, there is physical connection between the owner and
the object.

Hegel holds that property is the objective manifestation of the

personality of an individual. In other words, property is an object in
which person has a right to direct his will.

4. Historical Theory

This theory talks about private property and its slow and steady growth.
The growth of property has three distant stages:

First Stage-

It provides that a tendency is developed among people to take things in

natural possession and exercise it independently of the law of state.
Second Stage-

This provides for juristic possession which means possession in fact

and as well as in law.

Third Stage –

This is based on the ownership of the property recognized by law. The

law guarantees the owner of property exclusive right and control over
the property.

5. Psychological Theory

This theory provides that the property came into existence based on the

This theory provides that the property came into existence based on the
tendency of a human being. Every one desires to own thing and to
exercise control over them. It is nothing but an expectation to own a
property and make use of it to the fullest.

Dean Pound also supported Bentham and asserted that the conception
of property is the acquisitive instinct of an individual who desires to
have control and possession over the property.

Modes of Acquisition of Property

There are various modes of acquisition of property. Salmond has

described four modes of acquisition of property.

- Possession
- Prescription
- Agreement
 - Inheritance

Possession

Possession means physical control or acquisition of property by a

person. Ownership of a property is based on the possession of the
property. Possession is the prima facie evidence of ownership. For any
proprietary matter, law gives first priority to a person who is in
possession of the property.

There are many situations where a person is in the possession of the

property but he is not the real owner of the property. The title of
property belongs to someone else. The owner of the title of the property
enjoys absolute right over the property. But the person having
possession of the property does not have an absolute right, he has an
only relative title.

According to Salmond, a person having possession of a property

enjoys a good title against the third person except for the true owner.
The possessor is entitled to possession until getting evicted by the true
owner by force of law. In such case, there are two owners, one have
absolute title over the property while another one will have a relative
title.

Armony vs. Delomine [(1722) Istr.504]

If the person is in adverse possession i.e. possessory owner is

wrongfully deprived of the thing by a person other than the true owner,
that person cannot take the defence of 'jus tertii' that the thing does not
belong to the possessory owner either.

Prescription

According to Salmond, "prescription is the effect of lapse of time in

creating and destroying right."

It is of two kinds.

1. Positive or acquisitive prescription

When the right over property is acquired by lapse of time, it is called

positive prescription. For instance, when a person makes a continuous
use of a well located in someone else land, he automatically acquired a
right over the well as prescribed under the Indian Easement Act.

2. Negative or extinctive prescription

Negative prescription is when a person destroys his right by the effect

of lapse of time. It occurs when the person's right already exists. For
instance, right to sue for the non-payment of debt is destroyed after a
period of time.

Agreement

Property can also be acquired by an agreement enforceable by law. A

person having ownership of a property has a right to transfer the
ownership of the property to another person with or without
consideration.
According to Paton, agreement is an expression by two or more persons
communicated to each other, of a common intention to affect the legal
relation between them.

Paton follows that an agreement should fulfil four conditions:

- There should be two or more parties.

- Mutual consent of the parties.
- It should be communicated.
- There should be common intention to communicate a legal
relationship.

Miller vs. Collins [(1896) I Ch. 573]

Property is to be treated as belonging of any person who is having

custody and control of it or having any proprietary right or interest, not
being an equitable interest arising only from an agreement to transfer
or grant an interest or having a charge on it.

Inheritance

Another method of acquisition is inheritance. When a person dies, there

are some of his rights which are transferred to his heirs and successors.
Whereas there are some other rights also which cannot be transferred.
The rights which can be transferred are called heritance or inheritable
rights.

Proprietary rights are inheritable rights as it can be transferred after the

death of its owner. But personal rights such as the right to life or
reputation are not inheritable.
However, there are certain exceptions to it. Some proprietary rights are
also not inheritable. For instance, lease for the life of lessee only or in
the case of joint ownership.

In case of succession of proprietary rights, if a person has made a will

then succession will take place according to the will. But if the person
dies without making a will then succession will take place as per the
law.

Conclusion

Property is a belonging of a person who acquired it either through his

hard work or through succession or out of an agreement. Property can
be treated as proprietary rights as well as personal rights. Every
individual is entitled to personal as well as proprietary rights. The term
property is explained in Jurisprudence by various eminent Jurists.
Some jurists have supported the concept of the property while some are
against it. The concept of property has a special significance in
jurisprudence. As jurisprudence also provides a description of other
proprietary rights based on the property.

Possession

Possession is the most basic relation between man and things.

Possession of material things is essential to life because the existence
of human life and human society would be rather impossible without
the consumption and use of material things. Many important legal
consequences flow from the acquisition and loss of possession. Besides
being a prima facie evidence of ownership, it is also one of the modes
of transferring ownership. Possession is said to be nine out of ten points
of law meaning thereby that it is an evidence of ownership and he who
interferes with the possession of another, must show either title or better
possessory right. For example, a thief who steals my watch has a
possession which the law will protect against everyone except myself
or some person acting on my behalf. Not only that, dispossessing
(ejecting) a person from one's own land and re-entering forcibly is a
wrongful act though the possession of the person turns out to be
wrongful. The defendant cannot take the defence that some other
person than the person dispossessed, had a title to that land.

According to Salmond, in the whole range of legal theory, there is no

conception more difficult than that of Possession. Possession is the
most basic relation between man and a thing. Possession is an evidence
of ownership.

Meaning:

"Possession" literary means physical control over a thing or an object.

It expresses the closest relation of fact that can exist between a thing
and the person, who possess it. In law, possession means it includes not
only physical control over a thing but also an intention to exercise that
physical control. Example: A has an article in his hand. In other words,
he is in possession of that article. The person who is in possession is
called a 'Possessor'. In human life, consumption of material things is
very essential and it would be Impossible without the position of the
material things. Therefore, the concept of possession is of utmost
practical importance in human life.

Definition:

The concept of possession is though basic and essential in human life,

it is a difficult to define. There is no fixed or precise definition of
possession because it is legal as well as factual concept. Supreme Court
in Superintendent Remembrancer Legal Affairs vs Anil Kumar, AIR
1980 SC 52, held that it is impossible to work out a completely logical
and precise definition of Possession uniformly applicable to all
situation in the context of all the statutes.

It is very difficult to define the term Possession. Some Jurists have

given different definitions.

John Salmond:

Salmond defines Possession as, "possession is the continuing exercise

of a claim to the Exclusive use of an object."

Savigny:

Savigny defines Possession as, "intention coupled with physical power

to exclude others from the use of material object.

Salmond criticized Savigny’s definition and ground that Savigny

committed an error by including the element of physical power in his
definition.

O.W. Holmes:
Holmes defines Possession as, "To gain Possession a man must stand
in a certain physical relation to the object and to the rest of the world,
and must have certain intent."

Maine:

Maine defines the possession as, "physical detention coupled with the
intention to hold the things detained as one's own.

Sir Frederick Pollock:

Sir Frederick Pollock defines Possession as, "In common speech a man
is said to possess to be in possession of anything of which he has the
apparent control from the use of which he has apparent power for
excluding others."

Ihering:

The best among them is the definition given by Ihering. According to

him, "whenever a person looked like an owner in relation to a thing, he
had possession of it unless Possession was denied to him by rules of
law based on practical convenience."

Elements of Possession:

From the above definition we could see in that possession has two
essentials -

1) Actual power over the object possessed. i.e. corpus possessionis and
2) Intention of the possessor to exclude any interference from others.
i.e. animus possidendi.

According to John Salmond, both corpus and animus must be present

to constitute Possession. Ownership is a legal concept whereas
Possession is factual as well as legal concept.

The term CORPUS and the term ANIMUS, both the terms borrowed
from the Roman Law.

Categories of Possession:

Possession is divided into two categories.

a) Possession in fact and

b) Possession in law.

Possession in fact is actual or physical possession. It is physical relation

to a thing. Possession in law means possession in the eye of law. It
means a possession which is recognized and protected by law. There is
sometimes a discrepancy between possession in fact and position in
law, although usually possession exists both in fact and in law in the
same person. A person who is in de facto possession of a thing also
comes to have de jure possession.

Modes of acquiring possession:

There are two modes of acquiring possession

i) Delivery:
 Delivery completes voluntary act from one person to another.
The transferor gives actual position to the transferee. It is
usually a lawful mode of possession. Delivery may be actual
of constructive. In actual delivery the thing is physically
delivered.
ii) Taking:
Taking implies an Act exclusively on the part of the person
who physically takes the Possession. It is acquisition of the
Possession without the consent of previous Possessor. It is the
possession without the consent of the Possessor. Sometimes it
is said to be unilateral act. Transferee acquires the possession
without the knowledge or consent of the former Possessor of
the thing. It is usually possessio-civilis. It may or may not be
lawful. If it is lawful then it is legal possession. i.e. possessio-
juri.

Kinds of possession:

Following are the important kinds of possession.

1) Corporeal Possession:

Those things, which are having physical or material existence, wherein

direct relationship with the thing, are possible. for example, a house
has physical existence which can be perceived by our senses. The
possession in the house therefore is Corporeal Possession. Therefore,
corporeal possession is the possession of material things, movable as
well as immovable such as the Car, book, pen, wristwatch, etc.
2) Incorporeal Possession:

It means Possession of immaterial or intangible things. These are the

things, which do not have physical existence and therefore cannot be
perceived by our senses. Therefore, possession in respect of this thing
is known as incorporeal possession. for example - Copyright,
Trademark, Patent, Goodwill etc.

According to Salmond, corporeal possession is Possession of an object

whereas incorporeal possession is the possession of a right.

3) Mediate Possession:

It is the Possession of a thing through another, either through his friend,

servant for agent. As the thing remains, in possession with another, the
possessor has lesser degree of physical control over such thing.

Illustration:

a) 'X' has a car, which he leaves with his driver. The possession of the
driver will be immediate whereas the Possession of 'X' will be mediate.

b) 'A' purchased a house through his agent and the agent got the
possession. A's possession is said to be the mediate possession.

4) Immediate Possession:

It is also called as Direct Possession. Direct or primary possession by

a person over a particular object, which acquires or gets directly or
personally. In immediate possession, as the thing is in possession of the
possessor directly, he has higher degree of control over such thing. It
means that there is no other person holding the thing.
Illustration:

a) 'X' has a car and he keep it in his garage, this constitutes immediate
possession.

b) 'A' purchased a house and takes Possession of the property it is called

direct or immediate Possession.

5) Constructive Possession:

Constructive possession is not actual possession it is a possession in

law and not possession in fact. According to Pollock and Wright, it is
a possession which arises only by the construction of law.

Example: The delivery of the keys of a building.

6) Adverse Possession:

It means holding the land on his own behalf of some other person. if
adverse possession continues peaceful and undisturbed for that number
of years, he can claim ownership and the true owner's right (ownership)
gets extinguished.

7) De facto Possession:

De facto Possession exists where the thing is in the immediate

occupancy of a party. The person in de facto possession has the
physical control of the thing to the exclusion of others and has Animus
and Corpus over the material object. De facto possession may be
described as actual Possession.

8) De jure Possession:
De jure possession can be described as possession in law. De jure
possession exists when person claims a thing as his own in natural
normal legal manner by occupying a thing without any dispute as to his
legal right to possess and enjoy the thing. Legal possession may exist
with or without property in possession. In case of De jure possession it
is just possible that a man I have ceased to live in a house but without
intending and to abandon it for good as the owner of the house.

Possessory Remedies:

Possessory Remedies are those which exists the protection of

Possession even against ownership. Proprietary remedies are those
which are available for the protection of ownership. In many legal
systems, possession is provisional or temporary title even against the
true owner. Even a wrongful Possessor who is deprived of his
possession can recover it from any person whatsoever on the ground of
his possession. Even the true owner, who retakes his own, must first
restore possession to the wrongdoer and then proceed to secure a
possession on the ground of his ownership.

Why law protects possession?

The possessor has better title against the whole world, except true
owner. Even if the possession is wrongful, the possessor if deprived of
wrongfully, he is protected by law providing for possessory remedy.

There are many reasons for the protection of possession:

1) According to the philosophical School of jurists, possession is
protected because a man by taking possession of an object has brought
it within the sphere of his will. The freedom of the will is the essence
of personality and has to be protected so long as it does not conflict
with the universal will which is the State. As possession involves an
extension of personality over the object, it is protected by law. As the
reputation of a person he is protected against defamatory attack, his
possession is protected as he has projected his Personality over the
object possession.

2) Possession is an Evidence of ownership, Section 110 of Indian

Evidence Act 1872- Provides ' when any question is whether any
person is owner of anything of which he is shown to be in possession,
the burden of proving that he is not owner is on the person who affirm
that he is not the owner.

3) The possession even if it is wrongful is a good title against the whole

world except the true owner.

4) Possession is protected for the preservation of peace: It is the natural

human Instinct that he does not easily part of with what he possesses.
The interference with the possession leads to violence. Thus, the
protection is given to the Possession to aid criminal law and it prevents
a breach of peace.

5) Section 145 of CrPC deals with the dispute of immovable property

to provide speedy remedy for the prevention of breaches of peace out
of such dispute. The object of this section is to enable an executive
Magistrate to intervene and pass a temporary order in regard to the
possession of the property in dispute, till the competent civil court
determines the right of the parties. The executive Magistrate shall
determine the possession of immovable property on a particular date
and issue an order declaring such party to be entitled to Possession, thus
restore to Possession to the party who was forcibly and wrongfully
dispossessed of.

6) Possession is protected as a part of law of tort. Law protects

possession not only from disturbance by force but from disturbance by
fraud. The protection thus afforded as a part of the law of tort.

7) Section 53a Transfer of Property: Doctrine of part performance

which provides, there is a contract of sale in respect of immovable
property where in transferor by writing, signed by him agrees to
transfer such immovable property and the transferee has taken the
Possession of the immovable property and continuous to be in
possession of immovable property and the transferee has done
something in furtherance of such transfer and ready and willing to
perform transfers have done something his part under the contract of
transfer, then even though such contract is required to be registered by
any law and not registered in fact then also the transferor id debarred
from claiming any right against such transferee.

8) Section 47 sale of Goods Act: right of the seller to lien. The seller if
unpaid seller is and if the Possession is still with the seller, he can retain
the goods.
9) Right of Bailee in contract of bailment: Indian Contract Act 1872,
Section. 170, 171. The Bailee too has a right to lien the goods bailed to
unless he is paid remuneration by Bailor till then he is entitled to keep
the position of the goods.

10) In offence of theft in IPC Section 378: Possession is essential

element. Even though the possession was wrongful and the Possession
of such thing is taken without the consent of the possessor with
dishonest intention.

Relevant case law:

a) Elves v. Brigg Gas Co. 1886 Chancery Division.

Facts:

In this case the plaintiff was the owner of the land. He gave his land to
defendant Company on lease for the purpose of excavation and erection
of gas works thereon. During the course of excavation one of the man
of the defendants Company found a pre-historic boat buried 6 feet
below the surface.

Issue:

Issue before the Court was whether the boat belonged to the landlord
or lessee.

Held:

J. Chitty observed that the landlord was entitled to the boat against the
Company though it was discovered by the Company. It was observed
that it was immaterial that the landlord was not aware of the existence
of the boat. He was in possession of the ground not merely of the
surface. Hence everything that lay beneath the surface down to the
centre of the earth consequently in possession of the boat. It did not
matter that the plaintiff was not aware of the existence of the boat.

b) South Staffordshire Waterworks Co. V. Sharman, 1896.

Fact:

In the instant case Plaintiff Company appointed defendant servant to

clean out a pond upon their land and in doing so he found certain gold
ring at the bottom of it. Dispute arose between plaintiff Company and
the defendant servant as to the possession of the gold ring.

Issue:

To whom the Gold ring belong?

Held:

The plaintiff Company was in first possession of the gold ring and is
not the defendant, who acquired no title to them. It was observed that
the possession of land carries with it in general possession of
everything which is attached to or under the land.

Conclusion:

Possession is the most basic relation between man and a thing.

Possession is prima facie a proof or an evidence of ownership there is
no fixed or precise definition of possession because it is legal as well
factual concept. The four essentials of possession are subject matter of
possession, physical control, intention and knowledge. Possession is
nine points in law and law provides remedies to person having
possession.

Ownership

The idea of ownership developed by slow degrees with the growth of

civilization. So long as the people were wandering from place to place
and had no settled place of residence, they had no sense of ownership.
The idea began to grow when they started planting trees, cultivating
lands and building their homes. The transition from a pastoral to an
agricultural economy helped the development of the idea of ownership.

People began to think in terms of mine and yours. To begin with, no

distinction was made between ownership and possession. However
with the advancement of civilization, the distinction became clearer and
clearer. This distinction was made very clearly in Roman law. Two
distinct terms were used to point out the distinction and these were
Dominium and possession. Dominium denoted the absolute right to a
thing.

Possession implied only physical control over a thing. The English

notion of ownership is similar to the conception of dominium in Roman
law. According to Holdsworth, the English law reached the concept of
ownership as an absolute right through developments in the law of
possession.
The right to ownership was also recognized under the ancient Indian
law. The great commentators, notably, narada, Yajnavalkya ,vyas etc.
emphasized the right of ownership of property was to be used for noble
cause and good motives. The ancient Hindu law ordained men to
behave in a particular manner in relation to person or property of
another.

The Ancient Hindu jurists mentioned seven modes of acquisition of

ownership of property, namely,

1. Inheritance

2. Gain

3. Purchase

4. Conquest

5. Investment of wealth

6. Employment

7. Acceptance of gifts

Ownership, in its most comprehensive signification, denotes the

relationship between a person and any right that is vested in him. That
which a man owns is in all cases a right. When, as is often the case, we
speak of the ownership of a material object, this is merely a convenient
figure of speech. To own a piece of land means in truth to own a
particular kind of right in the land, namely, the fee simple of it.
Ownership, in this generic sense, extends to all classes of rights,
whether proprietary or personal, in rem or in personam, in re propria or
in re aliena. I may own debt, or a mortgage, or a share in a company,
or money in the public funds, or a copyright, or a lease, or a right of
way, or the fee simple of land. Every right is owned, and nothing can
be owned except a right. Every man is the owner of the rights which
are his.

DEFINITIONS

According to Keeton:

“The right of ownership is a conception clearly easy to understand but

difficult to define with exactitude. There are two main theories with
regard to the idea of ownership. The great exponents of the two views
are Austin and Salmond. According to one view, ownership is a relation
which subsists between a person and a thing which is the object of
ownership. According to the second view, ownership is a relation
between a person and a right that is vested in him.”

Holland’s Definition:

Holland defines ownership as ‘a plenary control over an object’.

According to Holland, an owner has three rights on the object owned.
They are:

(i) Possession
(ii) Enjoyment
(iii) Disposition.
He says that the right of possession is ‘inherent of ownership’.
However, it may be separated as in case of a mortgage or letting out.
According to him, the right of enjoyment means the “right of use and
of acquiring the fruits, or in the increase of the thing – The right is
limited only by the rights of the state or of other individuals.’’ The
power of disposition means not only the power of alienation but it
includes the power of alteration and destruction of the property.

Duguit’s Definition:

According to Duguit ownership is a relation between a person and a

thing. On account of this relation, the person has the power of disposal,
use, and employment of the thing according to a regle de droit.

Austin Definition:

A widely accepted definition is that of Austin, who defined ownership

as a right indefinite in point of the user, unrestricted in point of
disposition, and unlimited in point of duration over a determinate thing.

Salmond Definition:

According to the Salmond ownership vests in the complex of rights

which he exercises to the exclusion of all others. For Salmond what
constitutes ownership- a bundle of rights which is here in an individual
Salmond’s definition thus point out two attributes of ownership-

1. Ownership is a relation between a person and the right that is

vested in him
2. Ownership is incorporeal body or form.
Characteristics of Ownership

There are certain characteristics as such:

1. It is absolute or restricted. An owner of a property may be its

absolute owner and nobody else may have any interest in the
same. It is also possible that there may be certain restrictions on
the right of ownership and those restrictions may be imposed by
law or by voluntary agreement. An owner may lease out his
property. He may mortgage the same. Thus, he comes to have a
limited ownership. A compulsory restriction may be imposed on
ownership if another person comes to have an easement on a
particular property.
2. It is also possible that certain restrictions may be imposed on the
owners of property in times of national emergency. The house of
any owner may be requisitioned and any compensation may be
fixed by the prescribed authority. The Government may appoint
some authority to control the rents charged by the owners of the
property.
3. The Government may demand certain taxes from the owners of
the property. If those taxes are not paid, the Government may
confiscate their property of that portion of the property which is
necessary to realize the money due to the Government.
4. The ownership of a person does not diminish with his death. He
is entitled to leave his property to his property to his successors.
The owner can distribute the property even in his own lifetime.
 5. Certain disabilities have been imposed on infants and lunatics
with regard to the disposal of property. Obviously, they are not
competent to enter into valid contracts. They are not expected to
understand and appreciate all the implications of their actions.

Modes of Acquisition of Ownership

Broadly speaking there are two modes of acquiring ownership, namely,

(1) Original, and

(2) Derivative.

1. Original Acquisition of ownership takes place when ownership is

acquired by some personal act on the part of the acquirer. It may by
three ways:

a) Absolute – When a thing is acquired res nullius, i.e., which has

no previous owner.
b) This has been called Parigrah by Manu who stated that the first
striker of an arrow to a prey whether a bird or wild animal,
becomes its owner.
c) Original acquisition of ownership may also be by a specification
which means a person by working upon material belonging to
another makes a new thing. For example, if a sculptor makes a
statue from the clay belonging to another, he becomes the original
owner of that statue.

Extinctive Acquisition of ownership, that is when a person by some act

on his part extinguishes the ownership of the previous owner and
acquires its ownership himself, it is called extinctive acquisition. For
example, acquisition of ownership by prescription or adverse
possession for a prescribed period which is 12 years in India.

Accessio – This is called accessory acquisition that is, when the

ownership of property is acquired by way of accession to some existing
property. Examples are the produce of lands or animals or fruits of
trees. Manu has termed this mode of acquisition as Prayog which means
acquiring by accession.

2. Derivative acquisition – When ownership is derived from a previous

owner, it is called derivative acquisition of ownership. It takes place
when ownership is acquired by inheritance or gift or purchase, etc. In
the Indian context, the law of succession, transfer of property, sales of
goods, etc., regulate the acquisition of ownership of the property by
derivative mode.

Rights related to Ownership:

There are various rights which are related to the right to ownership
which are as follows:

1. Right to use – The owner has the right to use the subject-matter
of ownership as per his own discretion. However, this right is not
absolute.
2. Right to possess- The owner has the right to possess the thing
which he owns. He has the physical control over such thing.
3. Right to exhaust- If the nature of the thing which is owned is such
that it can be exhausted then the owner has the right to exhaust it
at his own will.
4. Right to destroy or alienate- An owner has the right to destroy or
alienate the thing that he owns.
5. Right to manage- The owner has the right to manage, i.e. to decide
how and by whom the thing used shall be managed.
6. Right to income- The owner has not only the right to possess the
thing but also the right to enjoy the benefits of the thing.

All these rights are in consonance with Right to Property under Art.300
of the Constitution. However, Art.19(5) imposes a restriction on the
same.

Distinction Between Custody, Detention, Possession and

Ownership

Custody is a relation of a person to an object in which he has no full

control over the thing, in the other words, he has no required animus to
exclude others. For example, a customer examining a piece of cloth in
a shop before the shopkeeper who has custody of that cloth.

Detention is a relation where a person has in fact possession over a

thing but law due to certain reasons does not recognize it as a
possession. For example, a servant has the detention over things of his
master with him.

Possession is a relation of a person to an object which law recognizes

as the possession. Possession is the external realization of ownership;
it is a valuable piece of evidence to show the existence of ownership.
Possession does not give the right to destroy, waste or even to alienate
the property except by way of a sub- lease.

Ownership is a relation of a person to an object which is exclusive or

absolute and ultimate. The person who stands in this relation is called
the ‘owner’ and he has a right of complete control and enjoyment of
the object. Thus, a right of ownership is a right of dominium over the
property concerned, so as to include the available rights attached to
‘ownership’- the right to possess the property in a de jure capacity, the
right to use the property, as also the right to alienate or even to destroy
the property though all those rights may not be present at the same time.

Personality

The term Person is derived from the Latin word 'Persona' it means those
who are recognised by law as being capable of having legal rights and
duties.

Definition:

1) Salmond - " A person is any being whom the law regards as capable
of rights and bound by legal duties.

2) Savigny defines the term person as the subject or bearer of a right.

3) According to Gray A person is an entity to which rights and duties

may be attributed.
4) According to Austin the term 'person' includes physical or natural
person including every being which can be deemed human.

According to Section 11 of the Indian Penal code the word person

includes any company or association, or body of Persons, whether
Incorporated or not.

Kinds of Persons:

There are two kinds of persons are as follows:

I) Natural persons

A natural person is a human being possessing natural personality.

According to Holland, a natural person is a human being as is regarded
by the law as capable of rights and duties. Requisite of normal human
being is that he must be born alive moreover, he must possess
essentially human characteristics. Generally, a person/human being
who has a capacity to sue and be sued is person.

II) Legal persons (legal persons are also known as juristic, fictitious or
artificial persons)

A legal person has a real existence but its personality is fictitious. A

fictitious thing is that which does not exist in fact but which is deemed
to exist in the eye of law.

Example: Company or corporation, idol etc.

END OF MODULE 5