1Q:-WHAT IS ADMINISTRATION OF JUSTICE? EXPLAIN ITS KINDS.

DISTINGUISH BETWEEN CIVIL AND CRIMINAL JUSTICE.

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

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

Ans:-
INTRODUCTION: It is easier to explain than to define it. It means that
things are easy to explain than to define it. Definition is very necessary for
the study of the subject, because the beginning and in one sense it ends is
also its definition. To give a definition of Law is comparatively a hard task
due to many reasons :
1. In Hindu :- Dharma
2. In France :- Droit
3. In Rome :- Jur.
4. In Muslim :- Hukma
All these above words conveys different meaning. And we can say that a
definition which contain all the above meaning and all elements would be a
good definition of law. Endlly definition given by every person is always
different. Because definition given by a lawyer a philosopher, a student or
a lecturer is always different. A definition which doesn’t cover all these
elements would be an in-perfect definition.
DEFINITION OF LAW:- The word, “Law” has been taken from the ‘latin
word’ which means “The body of Rules” various scholars has attempted to
define this term according to their own prospective. Some of them are as
under:-
According to Roman Scholars:- The law is concerned with the parameters
which is right or wrong, fair and unfair.
ULPIAN:- The famous Roman scholars and a Juries, he defined the term ,”
Law as standard of what is just and unjust.”
According to Salmond:- The law is the body of principals recognised and
applied by the state in the administration of justice.
According to Positivist Definition :- They are known as a modern thinkers
and they propounded a new school in the Law namely, “ Analytical
School.” This school is also known as a scientific school. Benthem, Austin
and Kelson define the term of Law in the following manners:-
1. AUSTIN:- Austin is the father of English Jurisprudence and according to
him, “Law is the command of sovereign” There are three elements of law
according to Austin :
a) Command )
b) Duty ) = LAW
c) Sanction )
According to him every law have a command and due to this command
we have the duty to obey this command and if we don’t obey this duty then
there is a sanction.
2. As per Benthem:- The law is the violaion of some declarations by the
political head with utiity ensuring maximum happiness of he maximum
people in the society. Benthm concept of law revolves around individual
utilitarianism and its concern with the theory of pain and pleasure, which
means that the purpose of Law to reduce the pain and harms and pleasure
in the society.
3. According to Kelson:- The law is depsycholigically command. He is
concern with those commands which purely rest upon the formal
expression of law.
3. Sociological Definition: The sociological approach is not a single
approach but it includes a number of thoughts, but all these thought related
to society, that is why heading is given them to sociological. And we shall
discuss some of true definitions :-
DUGUID :- According to him the law is a set of sosme formal norms aiming
an creation of soliditary in society.
IHERING :- According to Ihering the Law is a form of guarantees of the
conditions of life in society which are assured by the states power of
constraint.
EHRLICH :- Ehrlich lays down, “that the law consists of norms coverings
social life. But only the living Law is the actual law.”
ROSCUEPOUND :- According to him Law is an instrument for balancing,
conflict or completing interest of people in the society.
 REQUIREMENTS FOR LAW
The followings are some requirements for the definitions of law :-
i) Before the law there is a State.
ii) Before the State there must be a society.
iii) State & society develop a legal order to be followed.
iv) And finally law always has a purpose.
CONCLUSION:-
In end we can say that law is the important and necessary part of the state
and developing the human beings. Law gives rights and duties to human
beings. And law is the essential part of a State. Law is an instrument of
social control as well as social change.

3 Define ‘Right’ and discuss the essential elements of legal right. OR

What is a ‘Legal Right’? Discuss the characteristics of a legal right.
Ans:-
INTRODUCTION: Right generally means an interest or facility or a
privilege or immunity or a freedom. In this way right for the purpose of
jurisprudence is called legal right. Austin in his theory has separated the
subject matter of jurisprudence from morality or materiality. He gave the
concept of positive law. So here also right means positive law right only,
which is term of legal right. Legal right is recognised by law. It is different
from moral right. Moral right if violated is called moral wrong. The violatin
of natural right is called natural wrong. But these wrongs are not remedial
under law while if a legal right is violated then it will be legal wrong which is
remedial under law. The different jurists have defined legal right in different
ways:- According to Austin : “ Right is a faculty which resides in a
determinate party or parties by virtue of a given law and which avails
against a party or parties other than the party or parties in whom it
resides.” According to Salmond :- “ Right is an interest recognised and
protected by the rule of right.” Here rule of right means rule of law or law of
country. When an interest of a person is protected by the rule of law then it
is called right. Salmond definition involves two points, firstly that right is an
interest and secondly it is protected by rule of right. It means that it relates
to his (person) interest i.e., life liberty, heath and reputation etc. Grey has
criticised the interest theory propounded by Salmond, Ihering and Heck
and he has supported the view that right is not an interest but that means
by which the interest is secured. According to Holland, “ right is as a
capacity residing in one man of controlling, with the assent and assistance
of the state the action of others.”
According to Paton : “ That legal right is that it should be enforceable by
the legal process of the state.” He however says that there are three
exceptions to this rule :-
1. It is not necessary that the state should always necessarily enforce all
the legal rights.
2. There are certain rights which recognised by law but not enforced by it
for example : In a time barred debt, the right of the creditor to recover the
debt is an “ imperfect right”
3. There are certain laws which do not confer right of enforcement to the
courts, for example : International Court of Justice has no power to compel
enforcement of its decrees under International Law.
THEORIS OF RIGHT :- There are two theories of right :
1. WILL THEORY : This theory is based upon the will of human beings. It
says that a right reflects the inner will of a human being. Austin, Holland,
Halmes and Dov recognised this theory of right. According to them a
person wants o remain in the world freely and according to his own choice
because a man is born free.
2. Interest Theory:- This theory says that interest is the base of the right. It
is only interest which is recognised by law. This theory reflects the external
nature of the human beings. Supporter of this theory say that there are
many interests in the world. These interest which are protected and
recognised by law are called right.
ELEMENTS OF LEGAL RIGHT:- Following are the elements of Rights :-
1. Subject: here means a person who has right. So there must be a
person for rights
2. Act of Forbearance :- Right means some standard of action permitted
by law. In a right either an act is done or an act is forbidden. This is also
called as content of right.
3. Object:- There must be a object upon which the right is exercised.
Mainly there are three essential elements of right e.g. Lives in a house.
Here : (i) A has the right to live in the house. (ii) A is subject, house is
object and (iii) His living in the house is act content. But some writers give
some more elements of right.
4. Correlative duty: For right there must be a correlative duty. In the above
example ‘A’ has the right to live in the house but other persons have
correlative duty not to disturb him. Almost all jurists agree on the point
because one cannot exists without the other. Here Austin is not agree to
this He says that the duty may be divided into two kinds i.e. (1) Absolute
and (ii) Relative.
5. Title: Salmond gives one more element of rights in the form of title. He
says that a right has got also a title. Title may be in the form of the owner
or co-owner or mortgager or leaser or buyer etc.
ILLUSTRATION: If, ‘A’ buys a piece of land from ’B’. A is the subject or
owner of the right so required. The person bound by the co-relative duty is
persons in general because a right of this kind avails against the world at
large. The right consists in non-interference with the purchaser’s exclusive
use of the land.
KINDS OF RIGHTS :- The following are the kinds of rights :-
1. Primary right and secondary right : Primary right is an independent right
while secondary right means dependent right. They are also called as
principal right and helping right or remedial right. ILLUSTRATION:- ‘A’ has
right of reputation which is his primary and independent right. If any person
defames A then A has the right of damages against the defamer. This right
of damages is called secondary right or remedial right.
2. Positive and Negative Right:- Positive right is linked with negative and
negative right is linked with duty. Positive right permits to do an act while
negative right prohibit doing an act.
ILLUSTRATION:- ‘ A ‘ has the right of reputation. This is his positive right
and any person should not defame him. The defaming his reputation
called negative right.
3. Right Rem and Personam:- Right in Rem means right against the whole
world while right in persosnam means right against a definite person.
ILLUSTRATION: ‘A’ has not to be harmed by any person. This is right in
rem. On the other hand, ‘A’ has entered into a contract with ‘B’ and ‘B’ has
broken +ve contract. ‘ A “ can enforce this right against ‘B’. This is known
as right in personam.
1. LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):- The division of
right has its origin in England. Legal ight is recognised by Law. While
equitable right has been recognised by natural justice. In England there
were two types of courts: (i) Legal courts (ii) Chancery courts
Chancery Courts recognised the conquerable rights on the basis of justice,
equity and good conscience.
4. Vested & Contingents Right:- These rights is of permanent nature that
depends upon the happening of an uncertain event. Thus contingents right
becomes full right only when such uncertain events happen according to
the condition.
5. Proprietary and Personal Right:- Proprietary rights which are concerned
with property. A person possessing any property has the proprietary right
over it, and personal right means the right related with a person or a body.
Every person has a status. He should not be injured or defamed. If any
person injures or defames another person then the wrong doer infringes
the personal right of a person.
6. Perfect or Imperfect Right:- These rights which are enforceable by law
are perfect and which law does not enforceable are imperfect rights.
7. Right of Re-propia and Right in re-alena:- Right in re-propia means the
right in one’s own thing whereas right in re-aliena means the right in the
things of others.
4 Law is the command of sovereign comment.
Q.Critically examine the main features of ‘Analytical School’? OR
Discuss the essential characteristics of the ‘Analytical School’?
Ans:-
INTRODUCTION : The main features/essential characteristics of Analytical
School of Jurisprudence are as under:- The jurists of analytical school
consider that the most important aspect of law is its relation to the State
Law is treated as an imperative or command emanating from the state. For
this very reason this school is known as the Imperative school.
The exponents of this school are concerned neither with the past nor
with the future of law but with law as it exists, i.e. ‘ as it is (positus).For this
reason this school is termed the positive school. Its founder is John Austin
who was the professor of jurisprudence in the University of London.
He is also considered as the father of English jurisprudence. He studied
the Roman Law in Germany. There he was that Roman Law is very
systematic and scientific whereas English Law is not systematic and
scientific. So he tried to make English law in well manner. For this purpose
he wrote a book ‘Province of English Jurisprudence’. In this book he
difined English law and made it in a systematic way.
Austin said that only positive law is the subject matter of jurisprudence.
He separated both the morals and the religion from the definition of the
law. Prior to Austin the law was based upon customs and morals but
Austin reduced all things from the definition of law. He divided law into two
parts :
(i) Law propriety so called (II) Law impropriety so called.
It further divided into two parts :-
(1) Law of God (Divine Law) (II) Law of Men ( Human Law)
Law of God is also called divine law. It is a law set by God for human
beings on earth. Men also make law of men is made by men, so it is
called human Law. This law makes a relationship between persons and
the Law. This law is imposed upon persons and is made by persons.
Human law is further divided into two parts :-
(I) Positive Law (II) Positive Moral Law
Positive Law is main subject of jurisprudence. This classification can be
seen as under :-

LAW

(A) Law propriety so called (b) Law impropriety so called

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

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

Law of analogy law by Metaphor

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

5 Define and distinguish law and morals. Up to what extent morals help in
the development of law.
Ans:-
Introduction:- Play an important role in the development of law. In the
ancient society there was no difference between law and morals. The
Vedas and suteras which are the main ancient sources of law are based
upon morals. In the western society also the position was the same. The
legal system of Greek was also based upon the doctrine of natural rights,
which was in fact founded upon morals. So the Roman law also
recognised the doctrine of natural law, which was founded upon morals. In
the middle period also morals were the basis of law. In the 17th and 18th
centuries natural law theories become very popular which were also based
upon morals. However in modern times it was only Austin who discarded
morals from law. He said that law is a command of sovereign. But after him
there came the Historical School that recognised morals as the part of law.
DIFFERENCE BETWEEN LAW AND MORALS
When the Austin did not give any place to morals in law then there came a
question of the difference between law and morals. Later on the courts
tried to make difference between law and morals. In the modern times
there is clear difference between law and morals. In every developed and
civilized society the following are the differences between morals and
laws:-
MORALS LAWS
1.The morals are concerned with individual and are the laid down rules for
the moulding of his character.

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

4 The observance of law is concerned with duty towards the state.

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

Pre-legal world Legal world

No legislature Rule of recognitaion

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

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

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

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

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

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

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

13 Lay down the essential features of the Historical school. Discuss the
views of Society in this regard. OR Discuss the philosophy of law as
given by Sovging under Historical School? OR Write critically note on
the following Soveging (Volkgeist Theory).
Ans:-
INTRODUCTION:- Jurisprudence is a subject in which the definition
nature and the sources of law are studied various writers under various
schools have defined law. Austin under Analytical school says that law is
the command of sovereign. He added only the law in the study of
jurisprudence. But under historical school Soviging says that law is the
general consciousness (Volkgeist) of the people. It means what the
common people think or behave is the base of law. Law shows the
general nature of the common people. This theory of Volkgeist is bassed
on the historical method. Soveging is the father of it. According to
Soveging, “ Law is the General consciousness of he people.”
HISTORICAL SCHOOL
Historical School is a branch of Law, which studies law from the past
history. It says that law is based on the General Consciousness of people.
The consciousness started from the very beginning of the society. There
was no person like sovereign for the creation of law.
The law in the ancient times was based mainly upon simple
rules, regulation, custom, usages conventions etc. These things were later
on developed by the jurists and lawyers. These things were later on
converted into set form of law.
CAUSES OF COMMING OF THE HISTORICAL SCHOOL
The Historical school is just opposite to the Analytical school in
18th and 19th century, the concept of individualism came into existence.
Due to this concept the revolutions came like French revolution, Russian
revolution etc. At that time Soveging montasque, Barke, Hngo were the
writers who said that law is the general will of the people or law is based
upon common people and the feelings of the common people.
Law develops like the language and manners of the society.
So law has a natural character. Law has no universal application. It differs
from society to society and state to state. In the same way the languages
differ from society to society and locality to locality.
Montasoque has said, “Law is the creation of climate, local situations and
accidents.” According to Hugo hag, “ Law develops like language and the
manners of the society and it develops according to suitable circumstances
of the Society. The necessary thing is the acceptance and observance by
society.
According to Burke, “ Law is the product of the General process. In this
sense it is dynamic organ which changes and develops according to the
suitable circumstances of society.
SOVEGING :- Soveging is considered as the main expounder or
supporter of the historical school. He has given the Volkgeist theory.
According to this theory, law is based upon the general will or free will of
common people. He says that law grows with the growth of nations
increases with it and dies with the dissolution of the nations. In this way
law is national character. Consciousness of people. In other words,
according to this theory law is based will or free will of common people. He
says that law grows with the growth of nation. A law which is suitable to
one society may not be suitable to other society. In this way law has no
universal application because it based upon the local conditions local
situations, local circumstances, local customs, elements etc. Al these
things effect law and make it suitable to the society.
The main features of the Soveging theory is :-
1. Law has a national character.
2. Law is based upon the national conditions, situations, circumstances,
custom etc.
3. Law is pre historic: means law is found and is not made, the jurists and
the lawyers make it into set form.
4. Law develops like language and manner of the society. In ancient
society law was not in a natural stage or no in a set form. Later on with the
development of the society the requirements and the necessities of the
society increased. Due to this it was necessary to mould law in a set form.
IMPORTANCE OF CUSTOMS
According to Soveging customs are more important than legislation
because customs come before legislation. In other words the customs are
the base of legislation.
CRITICISM OF SOVEGING’s THEORY
Savigny’s theory has been criticised on the following grounds:-
1. Inconsistency in the Theory :- Saveging asserted that the origin of law is
in the popular consciousness, and on the other hand, argued that some of
the principles of Roman law were of universal application. Thus, it is a
clear cut inconsistency in his ideas.
2. ‘Volksgeist’ not the Exclusive Sources of law :- There are many
technical rules which never existed in nor has any connection with popular
consciousness.
3. Customs not Always Based on Popular Consciousness:- Many customs
are adopted due to imitation and not on the ground of their righteousness.
Sometimes customs completely opposed to each other exist in different
parts of the same country which cannot be said to be reflecting the spirit of
the whole community.
4. Savigny Ignored Other Factors That Influence Law:- The law relating to
trade unions is an outcome of a long and violent struggle between
conflicting interests within a society.
5. Many Things Unexplained :- Legal developments in various countries
show some uniformity to which he paid no heed. i.e.
6. What is national and what is universal.
7. Juristic Pessimism:- Soveging encouraged juristic pessimism.
Legislation must accord with popular consciousness. Such a view will not
find favour in modern times. No legal system would like to make
compromise with abuses. People are accustomed to it.

CONCLUSION
From the facts mentioned above we have gone behind to see the history of
the society to check that what was the position of law in the ancient time.
How and in what form law was prevailing in the society? To find the
solution of the questions the supporter of Historical school found that law is
the general consciousness of the common people or it is the free will of
common people on which law developed and converted into a set of form
of law.

14 Define Precedents? Lay down the importance of the precedents as the

source of law. In what sense they are binding? Do the judges make law?
Ans:-
INRODUCTION:- Precedents literally means previous judicial decision.
The decisions of the higher courts are binding on the lower courts. The
binding force of decision is called precedent. The precedents play an
important role in the development of law. It is the second important source
of law. First source is customs and the third source is legislation.
Sometimes act may be insufficient for the case or there may be an vacuum
or any thing missing in the act. Under these circumstances the court can
apply their own mind. These independent decisions becomes precedents
which are followed later on by the same & Lower courts. This method of
decision is also called as Judge made law. The English and American law
is mostly based upon the precedents. In India Art.141 of Indian
Constitution says that the decision of the higher courts shall be binding
upon the lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a decision of a court
which is also called judicial decision. According to the Oxford University,
“Precedents means the previous decision case given by a court according
to rules.” Various writers have given the definition of precedents is conduct
of court adopted by the lower court in similar facts and in similar
circumstances in a case. Particularly the precedents means the Judge
made law. When the court gives its own ideas for creating new rules.
England, America and China also follow the previous decisions as the
source of law but the continent countries like Germany, Japan does not
accept the previous decisions as the source of law. The method of taking
precedents as source of law is called inductive method, while the method
of continental countries not following previous decisions of the court is
called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very important source of
Law. They play an important role in the development of law, so they have
certain advantages as:
1. Precedents show true respect to the ancestors means by adopting the
previous decision of the higher court to decide the present case, it is a kind
of respect to elders.
2. Precedents are suitable to the present situation means after some times
the circumstances of the society can change with the change of time so
the precedents they are more suitable and fit for the present time and
circumstances.
3. Precedents are based on customs means the law in the form of act
which based upon customs. Court interprets the customs while
interpreting any act.
4. Precedents are convenient and easy to follow because they are
available in the form of written reports.
5. Precedents bring certainty in law, once decision is given in a case there
would be no need to repeat all precedents in any other case if it resembles
to the former case.
6. Precedents are the best guide for the Judges: They play an important
role in the judiciary because the precedents are the guide lines for the
courts.
DEMERITS OF THE PROCEDENTS:- lthough the demerits are very few
but these are as under :-
i) The decisions are given by the human beings while performing the duties
as judge, his decision may not be suitable to all persons who have different
mind and thinking. This will be a bad effect on Judiciary.
ii) Sometimes the decisions of the higher courts contradictory to each
other. It becomes harder to another judge to apply the same verdicts as a
precedents of higher court
iii) Sometimes the higher courts give a wrong decision and over pass the
important factors of the case due to one reason or the others.
PRECEDENTS ARE BINDING:- The precedents is an important source of
law. It is available in the form of judicial decisions. Now the question arises
that in what sense and when the precedents are binding o follow. For the
answer of this query different views have been given by the various writers
and jurists. No doubts the precedents is not binding like warrant issued by
a court of law. It means precedent can be over ruled if they are not right or
appropriable to the case to be decided but warrant has to be followed by
all to whom it is applicable.
It is not necessary that in the case which is to be decided the
circumstances and the facts must be the same as in resembling case. If
the facts and the circumstances of the cases are materially similar then the
precedents or previous judicial decision is applied in the later cases and
are applied only in the form of ‘ratio decidendi’ of previous cases. There
are two parts of it :-
i) Ratio-decidendi:- means reasons which leads the court to reach the
decision. It is the main part of the case in judgement and the ratio
decidendi of the decision is binding in the form of precedent.
ii) Obits decidendi:-It is also a part of the decision which is irrelevant to the
facts and circumstances of the case. The judge takes into consideration
the social conditions, morality, principal of natural justice that is why the
Judges play an important role in the development of legal system.
DIFFERENCE BETWEEN CUSTOM & PRECEDENTS
CUSTOMS PRECEDENTS
Custom is primary source of law.
Precedents are the secondary source of law.
Custom is given by people in general. Precedents are given by courts.
Custom is conduct adopted by people of society. Precedents is itself
complete certain, reasonable given by a competent court of the country.
Custom is based upon the reasoning of common people of the society.
Precedents are based upon the reasoning of a individual Judge or very few
judges.
Customs have more value then precedents and cannot be ignored. It can
be ignored if it gives un-justice.

DO JUDGES MAKE LAW:-

There are two theories about this purpose one theory says that Judgs do
not make laws and other theory says that Judges in fact are the makers of
Laws. This theory is also known as declaratory Theory. According to this
the judges are not makers of the laws which they are already n existence.
The judges while deciding the case only applies the existent and relevant
customs for deciding the cases.
Judges are not the law makers:- The supporters of this theory (historical
school) says that all the laws are based upon customs. The judges only to
explain these laws and customs. According to Coke hate and Dr.Carter,
that the law is created by the King or by the Parliament or by the
Legislature bodies. Common Laws is based upon custom. The public
through the decision of courts come to know those customs. It means that
Judiciary is not the maker of law. A case: Rageshwar Parsad v/s state of
West Bengal. It was held that, The court does not create Law.
ORIGINAL LAW MAKING THEORY
This theory is opposite to the first theory. It says that the Judges are the
real makers of the law. They not only interpret or explain but also make the
law. According to Salmond: who is the main supporters of this theory
says, “ That the decisions of the courts are a great contribution to the legal
system.” Dicay says that, “that legal system is the best part of the law of
England which is judge made law.”
CONCLUSION:- The conclusion or the correct view is that we cannot
ignored any of the above theories because both are correct and
complements to each other and both should be taken. No doubt that a
Judge can only to explain or to interprets the existing laws but at the same
time he also creates the new ideas, thoughts and gives new touch ideas
which play an important role in the development of law.
15 Discuss the main features of the ‘Pure Theory’ of Law. How it
resembles with Austin’s command theory. Critically examine the view of
Kelson given under pure theory of Law?
Ans:-
Introduction:- The Pure Theory of Law is given by Kelson. This theory is
also known as “Vienna School” because Kelson is the productor of Vienna
University. This theory resembles with Austin’s command theory because
in Kelson’s theory there must be sanction behind law. Austin gave it the
name of command theory and Kelson gave it the name of grandnorm
theory. Kelson is affected by local conditions, natural condition and
international condition. After studying all these conditions he gave this
theory of Law, which is known as pure theory of law and grandnorm theory
.
Concept of pure theory of Law:- At the time of Kelson there are Ist world
was which destricted the property of human beings at international level.
So he gave power to the international law and avoiding the destructions of
the world. Secondly during that time many countries adopted written
constitution. So Kelson also get influenced from these written constitutions
and gave his own theory which is based on grandnorms.
Grandnorm
Grand means great and norm means Law, So it means a great law the
superior authority from which law comes out. He compared the grandnorm
with written constitution. According to him written constitution is the highest
authority in the country which is known as grandnorms. In England the
Parliament is a grandnorm, in USA written constitution is grandnorms and
in India too written Constitution is grandnorm. State is not above the
grandnorm. Sovereignty also liven in grandnorm. Accoding to Kelson law is
a motive nor science, it means science of norms. In laws only those rules
are taken which are related with legal aspects. Any others like moral rules,
religious rules, ethical rules do not come under the concepts of grandnorm.
Here Kelson is equal to Austin. When he excludes morals relation or ethics
from the field of law.
System of Normative Rules:- System of normative rules was Hierarchy. In
hierarchy system there is one highest authority and all other are lower
authorities. This highest authority was grandnorm which was in the form of
written constitution and other authorities are below the constitution. The
source of power in a state for all bodies is written constitution.
Internation Law:- Kelson says that norms have a force behind it. This force
lies in the grandnorm. If this legal norm is not obeyed then one person will
be punished for it. He also says that at this time international law is
immature. It is in primitive stage. It is developing.
Nature of Grandnorm:- According to Kelson each country has the
formation of grandnorm according to local conditions. The duty of jurists is
to interpret the grandnorm in their own language. They are not concerned
with the goodness or badness of the grandnorm. They are not concerned
with the origin of the grandnorm. In this way the grandnorm is the main
source of all the laws in the country.
Elements of Pure Theory:- Kelson gave his view under this theory about
State, sovereignty, public and private law, public and private rights,
international law private and juristic law.
Feature of Kelson’s theory:-
1. Grandnorm as a source of law:- Grandnorm is the source of all laws.
Grandnorm is in the form of written constitution. Any such body, which
contains rules, or any such legal system in a country.
2. No difference between law and state:- Kelson says that there is no
difference between law and State between because they get power from
the same grandnorm. Law comes from the grandnorm and the state also
comes from the grandnorm.
3. Sovereign is not a separate body:- Austin says sovereign is a politically
superior person which keeps controls over the politically inferior persons.
But Kelson says that the power of sovereign lies in the people. So the
Sovereign is not separate and superior from the people of the country.
4. No difference between public law and private law:- The public law is
related with the state and the private law is related with the individuals as
Kelson says that there is no difference between public law and private law.
The law which creates a contract between individuals is called private law.
5. Supremacy of internationally laws:- The main prupose of Kelson was to
decrease the tension at world level because there was Ist world war which
destroyed millions of persons and property. He also said that the
internaiton law is in primitive stage or immature stage. It means it is in
developing stage. One day will come when international law will get equal
to that of municipal law. So this is also enforceable.
Criticism of Kelson’s theory:- In-spit of having good concept of pure theory
given by Kelson some of the criticism faced by him, which are as under:
a. Grandnorm is a vague concept:- The concept of grandnorm is not clear.
It cannot be applied where there is no written constitution. The base of
grandnorm in the form of positive norms or the rules based only on legal
order is not clear. The rules, which are not linked with morals ethics.
Customs and religion are not the norms. But we can not ignore the role of
these norms in the development of law.
b. Interantion Law is a weak law:- Kelson advocated the supremacy of
international law. But even upto now we see that is no force behind
international law.
c. No difference between state and law:- this point is also criticised by
various writers. Law as a separate thing from the State. State is body is
law in, which law is a rule that regulates the state.
d. Difference between public law and private law:- Kelson says that there is
no different between public law and private law. Which is also not right in
the modern days.
e. Customs and Precedents ignored:- He also customs as a source of law
while we see that customs are the source of all laws.
Conclusion:- Although Kelson has been criticised from various angles yet
he had contributed a lot in the development of the society. Thus the
concept of grandnorm gave power to the public at large as well as at
national level. His main purpose was to stop destruction of any world war.
This can resemble to Austin also Kelson is also limited with the law.

16 Discuss the Salient features of the Sociological School of

Jurisprudence? OR Salient features of the Sociological School of
Jurisprudence?
Ans:-
Introduction:- The sociological school is one of he important branches of
law. It comes after the Analytical school and Historical school. Its seeds
were found in the historical school. Duguit, Roscopound and Camta are
the supporters of this school. This school is related with society. According
to this school law is numerator of society. Law and society both are the two
sides of the same coin, one cannot exist without the other. If there is law
there should be society and if there is society there should be law. Law is
very necessary for regulating the society. Many writers like Duguit,
Roscopound and Inhering gave these view in the sociological school.
The theory of Duguit under sociological school is a social solidarity.
Scocial solidarity means the greatness of society. Duguit said that there
are mainly two types of needs of the society:-
1.Common Needs 2. Adverse Needs.
1. Common Needs :- Which are fulfilled by mutual assistance.
2. Adverse Needs.:- Which are fulfilled by the exchange of services. No
one can live without the help of other. Even a state cannot exist without
the help of other state. One cannot produce all things required for him. So
he has to depend upon others. The dependency is called social solidarity.
For this purpose the division of labour is necessary. Division of labour will
fulfill all requirement for the society. This philosophy or views is called
social solidarity.
ESSENTIAL ELEMENTS OF DUGUIT THEORY OF LAW
1.Mutual Inter dependence : In society all persons are depending upon
each other. Individual cannot fulfill his ambitions alone.
2. No difference between state & society: State and society are a group of
persons. Main purpose of the society is to save the people. This
responsibility is also lies upon the state. So state does not have a special
status or above status from people. State should make law for the welfare
of the people.
3. Sovereign and will of people: Sovereign is a politically superior person.
Duguit says that sovereign is not superior to people. The sovereign of a
state lives in people or in the will of people.
DIFFERENCE BETWEEN PUBLIC & PRIVATE LAW
Duguit says that there is no difference between public law and private law
because the aim of both the law is to develop the social solidarity. Pubic
law and private law are meant for people. Public right and private right or
people have only duties and not any right.
There is no difference between public right and private right. According
to Duguit there is only one right that is to serve the people. It means
person have only duties not rights.
CRITICISM OF DUGUIT’S THEORY
1.The theory of social solidarity is vague:- This theory is not clear for a
common person. One cannot gain anything from this theory so this is
vague theory.
2.Who will decide social solidarity :- Duguit has not given the authority that
who will explain the solidarity because Duguit did not recognize
sovereignty. We can imagine that Judge will explain the standard of social
solidarity. But there are no guidelines for the Judgess
3.Public law and Private law are not same :- There must be an authority
which passes the law. In Duguit theory there is no place for such authority.
4. Public right and Private right are also not same :- The right of society is
public right and the right of common people is private right.
5. Custom ignored:- Custom is the base of any law but Duguit ignore these
customs. In this way the theory of Duguit is not suitably in modern times.

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

17 Define Ownership. Discuss the various kinds of ownership. Distinguish

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

DIFFERENCE BETWEEN POSSESSION & OWNERSHIP

POSSESSION OWNERSHIP
1.Possession is a primary stage of ownership which is in fact. 1.
Ownership is in right.
2.Possession does not give title in the property defacto exercise of a
claims 2. While in ownership it gives title in the property dejure
recognisation.
3.Possession is a fact. 3. Ownership is a right and superior to possession.
4.Possession tends to become ownership. 4.Ownership tends to realize
itself in to possession.
5.Possession dominion corpus and animus are necessary. 5.Ownership
they are not necessary because law gives full rights.
6.Transfer of possession is comparatively easier.
7. Possession is nine points of law. 6.Ownership most of the cases
involves a technical process i.e. conveyance deed etc.
7.Ownership always tries to realize itself in possession i.e. complete thing.

18 Define Custom and essentials of a valid custom. Discuss its importance

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

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

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

Duties

Positive And Negative Duties Primary and Secondary Duties

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

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

Q:-What is basic Norm/ Gruundnorm.

Ans:- Grundnorm is a concept created by Hans Kelsen, a jurist and legal
philosopher.Kelsen used Grundnorm to denote the basic norm, order ,or
rule that forms an underlying basis for a legal system.

Q:-What is Social Engineering?

Ans:- By Social-engineering we meant the balancing of competing
interests in society. According to Roscoe pound, 'Law is a social
engineering which means a balance between the competing interest in
society, in which applied science are used for resolving individual and
social problems.
O.1. (a) What is meant by Legal Theory ? Define Jurisprudence as

defined by various jurists.

(b) Jurisprudence is the 'science of civil law. Discuss.

(c) Jurisprudence is the formal science of positive law'. Discuss.

Ans. a) Legal Theory-The term legal according to Chamber's

Twentieth Century Dictionary, means pertaining to, or according to, law",
and the term theory means "an explanation or system of anything: an
exposition
of the abstract principles of a Science or art."Legal Theory may, therefore,
be
defined as the exposition of the abstract principles of the science of law in
all

its bearings.

Jurisprudence The word jurisprudence has meant many different

things at different times. It is defined in the Oxford English Dictionary as
"knowledge or skill in law, the science which treats of human laws (written
or

unwritten) in general ; the philosophy of law: a system or body of law.

Jurisprudence' is the name given to a certain type of investigation into

law, an investigation of an abstract, general and theoretical nature which
seeks
to lay bare the essential principles of láw and legal system. It is a subject
which
differs in kind from other subjects on the legal syllabus. For the typical
legal
subject, e.g., contract or tort, consists of a set of rules and principles to be
derived from authoritative sources and applied to factual situations in order
to
solve practical problems. Jurisprudence, by contrast, does not constitute a
set
of ules, is not derived from authority and is without practical application.

The word jurisprudence is derived from its Latin equivalent

Jurisprudentia meaning knowledge of lawjuris denotes law and prudentia
knowledge, or foreseeing knowledge of a matter. According to the
Encyclopaedia Britannica, "Jurisprudence is the name given to those
studies,
researches and speculations which aim primarily at answering the plain
man's
question: What is laW ?It is proposed to define law for the jurist at the sum
of

the intuençes that determine decisions in Courts of Justice."

Now we shall give in brief the definitions of Jurisprudence as given by

various jurists.

Jurisprudence may be defined as "the Science of Civil Law

SALMOND

Jurisprudence is "the knowledge of things human and divine, the science

-ULPAIN

of the just and unjust".

Jurisprudence is "the philosophical aspect of the knowledgc of law.

-CICERO

Jurisprudence is "the formal science of positive law"

-HoLLAND

Jurisprudence is "the Science of Law, the statement and systematic

arrangement of the rules followed by the Courts and the princples involved
in
GRAY
Modern writers are agreed that the term jurisprudence does not merely
connote a knowledge of law : itcovers a field much wider than this
according
to ALLEN, it is the scientific synthesis of the essential principles of law. To
PATON it is a particular method of study, not of the law of one country but
of the
general notion of law itself. It is, according to him, a study relating to law.
And, according to PROF. KEETON, it is a study and systematic
arrangement of
the general principles of law, understanding the phrase "the general
principles

those nules"

of law' in its widest sense.

(b) Science of Civil LawAccording to SALMOND, if we use the term

Science in its widest permissible sense, as including the systemiséd
knowledge
of any subject of intellectual inquiry, Jurisprudence may be defined as the
SCience of civil law. It is a science as distinguished fronm arts and
connotes in
its widest sense all those subjects which directly or indirectly treat ofthe
science
of law. Itis a study not of the law of a particular country, but of the general
notion of law itself. Every law is based on certain fundamental principles
and
those principles are common to all legal systems. Jurisprudence thus
confines

itself to a systematic and scientific study of the existing rules of law.

By civil law is meant the law of land, as opposed to other bodies of rules=

to which the name of law has been extended by analogy. According to

SALMOND

Such law is termed civil as being that of the civitas or states.

The word civil law does not include Internátional Law, and since=

jurisprudence is the science f civil law, Intermational Law goes outof the
orbit of jurisprudence

SALMOND's definition which includes the term 'civil law' is considere

superior to the definitions including the term 'positivé law. But the terms
civil law and positive law do not always carry with them the distinctioE
drawn by SALMOND, it matters, little which term we use so long as we do
no=
mistake the content of jurisprudence.

(c) Formal science of positive law-According to PROF. Ho.LAND-

jurisprudence is a formal, or analytical science, as opposed to material one

and deals rather with the various relation which are regulated by legal rules
than with the rules themselves which regulate those relations.

HOLLAND defines jurisprudence as "the formal science of positive law"

It is wrongly applied to actual systéms of law, or to current views of laws, o
to suggestions for its amendment, but is the name of a science. The
scienceis
a formal, or analytical, rather than a material one. Itis the science of actual
o

positive law,

According to him, this science is a formal rather than a material one. It

deals more with the form and outer (but fundamental) aspect, rather than
with
the matter and contents of law. It concerns itsclf with basic ideas and
fundamental principles.of various systems of law rather than with laws

themselves.

In the words of PROF. HoLLAND"It deals rather with the various relations
which are regulated by legal rules than with the rules themselves which
regulate
those relations." Thus it deals only with the formal constituents and
fundamentar
conceptions of law and not,With its actual material content and the detailed

rules. Therefore jurisprudence is not a material science, but formal one.

It is a science and not an art. A systematic and formulated knowledge is

called science. Since the ideas, principles and conceptions underlying
various
systems of law and dealt with in jurisprudence from a systematised branch
of
learning, jurisprudence is a science. Moreover jurisprudence does not
concen

itself with any particular system of law, prevailing in a particular State.

with special reference to India.
Why should we study it them ?

Q.3. (a) Mention the various schools of Jurisprudence.

(b) Explain Realist School and Natural Law School.

(c) Analyse the main features of the Analytical School of

Jurisprudence. Explain the position of this school in modern Indian Legal

System.

(d) What are the distinguishing features of Historical School of

Jurisprudence ? Write briefly views of different jurists.

Ans. (a) There are following Schools of jurisprudence

1. Analytical School.
2. Historical School.
3. Ethical School.
4. Comparative School.
5. Sociological School.
6. Realist School.
7. Natural Law School
(b) Realist School-The realist movement, which prefers not to be called a
school, is a branch of sociological school. It studies law as it is in its actual
working and effects. It has been summed up by its exponent, PROF. C.
LLEWELLYN,
as a 'ferment'. ALLEN Observes that fermentation is necessary in legal
chemistry
for without it the liquor of the law becomes sour and stale. Grown out of its
youthful exuberances and disabused of its hasty conclusion that law is to
be
found only in facts and deeds, this movement brings to modern
jurisprudence
a spirit of vigilance and exploration which is capable in the right hands of
contributing substantially to the understanding of law not as a bloodless
abstraction but as a living force in society. According to GEORGES
GURVITCH,
the neorealistic school represents a violent reaction against the
dominantly teleological and moralizing orientation of 'sociological
jurisprudence.

Natural Law School-The law of nature is that portion of morality which

supplies the more important and universal rules for governance of the
outward acts of mankind. The idealist attitude was prominently displayed
by PLATO'S theory of ideas according to which the physical phenomena of
the world are mere manifestations of a superior order laid up in heaven
and should be studied only in order to gain insight into the ultimate pattern.

ARISTOTLE recognised the existence of a natural as well as of a legal

justice.
GROTIUS used natural law as the foundation of a new international law to
regulate the affairs and warfare of the rising national states. GROTIUS
asserted
that human nature is the mother of natural law which would operate even if
God did not exist.
(c) Analytical School This school of jurisprudence deals with the
present. ts purpose is to, analyse and digest the law of the land as it exists
today. The analysis of the first principle of civil law or the law of land is
done irrespective of their historical origin or ethical significance. It
examines the relationship of civil law to other forms of law and analyses
the various constituent ideas of which the complex idea of law is made
upe, g., those of the state, sovereignty and administration of justice,
customs, precedents, principles of legislation; inquires into the scientific
arrangement of law, the
conception of legal rights, ownership, possession, principles of liability,
intention and negligence, the law of obligations, the law of persons, the law
of property, the law of procedure etc. which by reason of theoretical
interest deserve special attention.

The main features of this School can be summarized as follows:

(1) Positive law and ideal must be kept strictly distinct. It has thus analysed
the conception of civil law and established its relationship with other forms
of law.

(2) All positive law is deduced from a clearly determinable law-giver as

sovereign.
(3) This school also lays down the essential elements that go to make-up
the whole fabric of law. e.g., the state, sovereignty, and the administration
of Justice.

(4) It also takes into account the legal sources, as opposed to the
historical, which are the sources from which the law proceeds. The most
important legal sources are legislation. judicial precedents and customary
law. The Analytical School, therefore, investigates.

(5) investigates the theory of legal liability both civil and criminal

(6) It analyses the conception of legal rights their division, creation, transfer
and execution,

(7) It considers other allied problems directly or indirectly affecting the

fabric of law, e.g., property, Possession, obligations, contracts, trusts,
personality, incorporation, intention, motive and negligence.

(8) It favours codification of law and treats law as a conscious enactment

or command with legal sanction behind it .

(d) Historical School The task of this school is to deal with the general
principles governing the origin and development of law, and with the
influences that affect the law. Thus is carries out attention to ‘the history of
the first principles
of law and conceptions of the legal system. According to SAVIIGNY, "The
organic evolution of law, with the life and character of a people, develops
with ages and in this it resembles with language, as in the latter, so in the
law. Historical school made history as important a reason in the
development of law. Its only defect is that it has identified law with custom,
which is in fact a quasi-law.
The main features of Historical School are mentioned below
unconscious and organic process.
spirit of the people; law is the manifestation of the common consciousness.

Distinguishing features of Historical School and the views of jurists

) Law is found and not made. The growth of law is essentially an
(ii) The nature of any particular system of law is the reflection of the
(ii) Laws are not of universal validity or application. Different people
develop their own legal habits, as they have their peculiar languages,
manners and constitutions.

Savigny, Maine and Hiring belong to the Historical School, According

to SAviGNY, The organic evolution of law, with the life and character of a
people, develops with the ages; and in this it resembles language. As in
the letter, so in the law, there can be no rest... there is always movement
and development, Law is governed by the same power of internal
necessity as simple phenomena. Law grows with a nation, increases with it
and dies at its dissolution, and is a characteristic of it". MAINE brilliantly
remarked the most celebrated system of jurisprudence known to the world
begins, as it ends, with a code"

In brief it may be said that it is the business ofthe historical method to

establish ahistorical connection between law as ithas been and law as itis
and to explain the course of developments.

Q. What is meant by source of law? State the various sources of law and
explain them.
Ans:- The term source of law has been used in different senses and
various views have been expressed from time to time. Source means
origin. There is difference of opinion among the jurists about the sources or
origin of law. Although there may be certain differences or variations in
sources or in the sequences in which they came into existence, a general
theory about sources can be given and it would be applicable to most of
the legal systems.
Classification of sources- Salmond divided the sources of law into two
categories, they are- Formal sources and Material source.
A formal source is that from which a rule of law derives its force and
validity. It is that from which authority of law proceeds.
The material source of law are those from which it derives the mater and
not the validity of law The material source supply the substance to which
the formal source gives the force and the nature of the law.
Following are the general outline of the various sources of law.
1. Custom In the early stages of society, the customs were the most
important and in some cases, the sole sources of law. But with the
progress of the society they gradually diminish and legislation and judicial
precedents become the main sources. In early legal system at all the
stages of legal development there are some customs, but in advanced
society they are more rationalized and are certain and definite.
Custom as a source of law comprises legal rules which have neither been
promulgated by legislation nor formulated by professionally trained judges,
but arises from popular opinion and is sanctioned by long usage. Thus
custom means the habitual course of action of the majority of the persons
concerned.
2. Precedent- The term precedent means a previous instance or case
which is, or may be taken as an example of rule for subsequent cases, or
by which some similar act or circumstances may be supported or justified.
In almost all legal systems, the judges take guidance from the previous
decisions on the point, and rely upon them. But the authority of such
decisions is not the same in all the legal systems. Lawyers acquire their
knowledge of law more from the decisions of the higher courts than from
anything else. Such decisions are published and compiled in Reports /
Journals. These decisions are very useful in deciding the subsequent
cases of similar nature. They are called precedent.
According to Article 141 of the Constitution of India the law declared by the
Supreme Court shall be binding on all courts within the territory of India.
Again the decisions given by the High Court is binding on all the courts
subordinate to it.But in the context of changing socio-economic conditions,
the courts must have the readiness to depart from rules and principles
contained in earlier pronouncements if they no longer conform to new
conditions.
3. Legislation- The term legislation is derived from two Latin words- 'legis'
meaning law and 'Lation' meaning to make, put or set. Etymologically,
legislation means the making, putting or the setting of law. It may be
defined as the promulgation of legal rules by an authority which has the
power to do so. Legislation may be either direct or indirect. Direct
legislation is the making of law by an express declaration thereof. Indirect
legislation is the making of law not directly, but indirectly in the course of
some other transaction. Thus enactment of a legislature is direct legislation
but the making of a new rule of law and a judicial decision is indirect
legislation because the judge does not expressly make law as such.
In modern times legislation is the most potent source of law. In the early
times, there was no legislation, the relations and conducts of the
individuals were regulated by customs. Legislation took its birth when the
state came into being. With the advancement of society, legislation starts
replacing customs.
In recent years, the sphere of legislation has very much widened. Statutes
regulate even the most ordinary conduct of individuals.
Legislation has been categorized into two parts-
a. Supreme legislation- Supreme legislation is the expression of the
legislative will of the supreme authority of the state. Therefore, any other
authority within the state can, in no way, control or check it. Though there
are certain constitutional restrictions upon its powers, it is not subject to
any other legislative authority within the state.
b. Subordinate leqislation- Subordinate legislation is that which proceeds
from any authority other that the sovereign legislative power and is
therefore, dependant for its existence or validity on some superior or
supreme legislative authority. It comes from a subordinate legislature or
any other authority and is subject to the repealing or sanctioning or control
of a superior authority.
Apart from the three main sources of law, there are some other sources
also. They are comparatively minor sources, but, sometimes, they
generally help in moulding the law. There are two such important sources
and they are-
A. Morals and equity- In ancient times, there was no such distinction
between the moral and legal rules. Moral principles influenced and,
sometimes, guided the administration of justice. The ancient Hindu
concept of law was that it was a part of Dharma, and most of the legal
rules were based on moral principles. In the western countries, moral
principles entered into the law under the name of 'equity'.
B. Opinion of Experts- The opinion of experts and the text book writes on
law' sometimes, works as a source of law. In India also, some valu able
contributions have been made by British as well as Indian writers.
Q. Mention the essentials that are required for a custom to be a source of
law.
Ans- In order that custom may be valid and operative as a source of law, it
must conform to the requirements laid down by law. The following are the
main judicial test required for a custom to be valid source of law.
1. Antiquity- A custom, to have the force of law, must be immemorial. It
must have existed for so long a time that in the language of law- the
memory of man runneth not to the contrary. Time immemorial means time
so remote that no living man can remember it or give evidence concerning
it.
2. Continuance- The second essential of a custom is that it must have
been practiced continuously. If a custom has been disturbed for a
considerable time, a presumption arises against it.
3. Peaceable enjoyment- The custom must have been enjoyed peaceably.
If a custom is in dispute for a long time in a law court, or otherwise, it
negatives the presumption that it originated by consent as most of the
customs naturally might have originated.
4. Obliqatort force- The custom must have an obligatory force. It must have
been supported by the general public opinion and enjoyed as a matter of
right. If a practice was maintained by stealth or by something of that sort, it
cannot become a custom.
5. Certainty - A custom must be certain. A custom which is vague or
indefinite cannot be recognized. The court must be satisfied by a clear
proof that custom exists as a matter of fact or as a legal presumption of
fact.
6. Consistency- A custom must not come into conflict with the other
established customs. There must be consistency. It is therefore, said that
one custom cannot be set to in opposition to the other custom.
7. Reasonableness- A custom must be reasonable. This is a very difficult
test which a custom must pass through. It is not meant by this that the
courts are at ,liberty to discharge a custom whenever they are not satisfied
as to its absolute rectitude and wisdom, or whenever they think that a
better rule could be formulated in the exercise of their own judgment
otherwise a custom will lose much of its force and sanctity.
8. Conformity with statute law- A custom, to be valid, must be in conformity
with statute law, that it is must not be in contrary to statute law or the act of
the parliament. It is a positive rule in most of the legal systems that a
statute can abrogate a custom.
If a custom is proved to have the essentials given above, it is law, but the
courts have power on sufficient grounds to change the law it embodies.
Q. Discuss the definitions of jurisprudence as given by different Jurists. Is it
justified to call John Austin as the father of Jurisprudence?
Ans- The term 'jurisprudence' has been taken from the Latin word
'jurisprudentia'.
The term is made of two words, 'juris' and 'prudentia'. 'Juris' means law
and 'prudentia' means knowledge. Thus the term jurisprudence means
knowledge of law. But this meaning is too general in the modern point of
view as we mean jurisprudence today. The meaning which the word
'Jurisprudence' conveys in modern times is the result of a course of
evolution.
Different jurists defined jurisprudence in their own ways.
Austin defined jurisprudence as "science of law which deals with analysis
of the concepts or its underlying principles."
Salmond defined as "jurisprudence is the science of the first principle of
civil law." Holland defined as "jurisprudence is the formal science of
positive law."
Patterson defined as "jurisprudence means a body of ordered knowledge,
which deals with a particular species of law."
Allen defined as "only a scientific synthesis of the essential principles of
law could amount to jurisprudence."
Keeton defined that "jurisprudence is the study and systematic
arrangement of the general principles of law."
From above, it is clear that there is a difference of opinion about the
definition, the purpose and the scope of law. Under these conditions, it is
very difficult to give a definition of jurisprudence which may be universally
acceptable. After discussing the definitions given by various jurists and
legal thinkers, it can be briefly stated that "jurisprudence is a study relating
to law."
Whether John Austin can be considered as the father of jurisprudence
Q. What is precedent? What are the different kinds of precedent? Write a
note on the rote played by precedent in the administration of justice.
Ans- According to Oxford English Dictionary, 'precedent' means a previous
instance or case which is, or may be taken as example of rule for
subsequent cases, or by which some similar act or circumstances may be
supported or justified. Thus precedent means anything said or done which
furnishes a rule for subsequent conduct.
In almost all legal systems, the judges take guidance from the previous
decisions on the point and rely upon them. But the authority of such
decision is not the same in all legal systems. In most of the countries,
including our own, lawyers acquire their knowledge of law more from the
decisions of the higher courts than from anything else. Such decisions are
published and compiled in reports. These decisions are very useful in
deciding the subsequent cases of similar nature. They are called
precedents.
Types of precedent
According to the nature of precedents, we can classify them into two
categories-
I.Original
ii. Declaratory
Original precedents are those which create or establishe original or new
rule of law. Declaratory precedents are those which merely reiterate and
apply an already
existing rule of law.
Again precedents are further divided into two classes and they are:-
I.Authoritative
ii.Persuasive.
Authoritative precedent is one which judges must follow whether they
approve of it or not. This is also called a binding precedent. Generally a
lower court is bound by the decision of its higher court.
Persuasive precedent is one which the judges are under no obligation to
follow, but which they will take into consideration and to which they attach
such weight as it seems to them to deserve. Decisions of the court of a co-
ordinate jurisdiction are only persuasive.
Authoritative precedent is further divided into
i. absolute
ii. conditional
In the absolute, the decision is absolutely binding and must be followed
without question, however unreasonable and erroneous decision may be
considered. On the other hand, conditional precedent possesses merely
conditional authority, where the courts possess a certain limited power of
disregarding it.
Under the ancient Hindu law the doctrine of precedent was recognized by
Hindu lawgivers. Manu, the renowned law-giver of Hindus, advocated the
theory of precedent in order to settle doubtful points of law. However, it can
be pointed here that in the ancient Hindu law the term precedent is not
used in the modern sense of a decision coming from a court.
It was during the British period that the doctrine of precedent became very
important. Mr. Dorin suggested that statutory force to be given to this
theory.
In the nineteenth century, because of the popularity of the publication of
Reports of decided cases and digests the doctrine of precedent acquired a
more significant place.
Article 141 of the constitution of India provides that the law declared by the
Supreme Court shall be binding on all the courts within the territory of
India. Here all courts does not include the Supreme Court itself. Hence
Supreme Court is not bound by its own decision. The trend of decision of
the Supreme Court is to overrule those cases which have caused hardship
and which have been decided erroneously.
The High Courts are bound by the law declared by the Supreme Court. But
the judgment of one high court is not binding upon another high court. The
High courts are the courts of co-ordinate jurisdiction. Hence the precedent
only have a persuasive value.
Q. Discuss the elements of possession. Distinguish between possession
and ownership.
Ans- Possession is one of the most important rights in law. The legal
consequences that flow from the acquisition or loss of possession are
many and serious. The possessor of anything is presumed to be its owner
unless and until another person proves a clear title in it. Possession is the
most difficult conception of the legal theory.
Elements of possession-
There are two elements of possession.
1. Physical control or power over the object possessed (corpus
possessionis), and
2. The intention or will to exercise that power (animus domini).
Corpus or physical control
Corpus means that there exists such physical contact of a person with a
thing as to give rise to a reasonable assumption that others will not
interfere with it. There may be an actual physical contact or there may the
cases when there is no physical contact.
Corpus also implies the ability to make such use of the things as the nature
of the thing and the nature of his claim permits and there is no barrier
between him and the use of the object. Corpus does not mean physical
power to exclude or physical capacity to exclude others. Corpus consists
only of apparent control. So what is necessary is the fact whether the
possessor can make the use of the object as its nature admits.
Animus or intention
Animus means the mental element or the intention to hold the object as
owner against all others. In other words, it is a conscious intention to
exclude others from the object. Without this mental element, there can be
no possession.
The physical elements form only a proportion of the conception of
possession. There must also co-exist the determination (animus) to
exercise that physical power on our own behalf. Thus the master does not
lose the possession of the goods in the charge of his servant, nor does the
later acquire possession thereof.
Distinction between possession and ownership
Q. What is Administration of Justice? What are the advantages and
disadvantages of administration of Justice? What are the different types of
Administration of Justice and what are the difference between the two?
Ans- According to Salmond, "administration of justice is the maintenance
of right within a political community by means of the physical force of the
state. It is the application by the state of the sanction of force to the rule of
right." The administration of justice is thus a permanent necessity and it
constitutes primary function of the state.
The state defines the right and duties of its citizens. It protects the right s
and enforce the duties. If any violation of the rights of one individual is
made by another, the latter is to redress it or he is punished. The state
thus appoints person to adjudicate the rights and duties and to secure their
protection and enforcement. Thus the function of the judiciary is to protect
and enforce the right of the individual and to punish the wrong-doers. This
function is called the 'administration of justice'. The term 'justice' here
means justice according to law, i.e enforcement of the rights as they are
defined by law. Thus to adjudicate the rights and duties of the individuals
on the basis of the rule laid down by the state is administration of justice.
Hence, administration of justice implies three things- the state, the law and
securing obedience to law by means of the physical force of the state.
Advantaqes ofAdministration of iustice
The administration of justice is one of the essential functions of the state.
Thus it has the following advantages-
1.Certainty and uniformity- The administration of justice brings certainty,
uniformity and consistency in the law and it causes a systematic
development of law.
2. Protection from error of individual judgment- As the rules are fixed it
helps judges in applying the law uniformly. In administering justice
according to law there are little chances of discrimination.
3. Impartiality- When there are fixed rules to be observed, impartiality is
assured. Even a slight departure from the rules can also be detected and
the judges automatically become impartial.
Disadvantages of Administration of justice
Administration of justice has some disadvantages also. They are as
follows-
1. Rigidity- It makes law rigid. Codified law cannot be changed or modified
easily.
2. Conservatism- Law tends to become conservative. It does not keep
pace with the changed conditions and so it is not in accordance with the
new ideas and principles of justice.
3. Complexity- Modern society has grown very complex and law cannot be
made so simple as to be easily understood by all. Thus law loses certainty
which is very essential for a good law.
4. Formalism- Law becomes greatly formal. Greater importance is attached
to the form than to the substance. It brings many evils and causes
injustice.
Division of administration of justice
There are two distinct part of the administration of justice. One is civil and
the other is criminal . The administration of justice may be the enforcement
of a right or the punishment for the violation of a right. In other words, it
may enforce right or punish wrong . When it aims at the enforcement of
rights, it is called "Civil" and when it aims at punishing a wrong doer , it is
called "Criminal".
Civil Justice: Civil justice deals with the enforcement of right which may be
primary or sanctioning. A sanctioning right is one which arises out of the
violation of another right. All others are primary.
Criminal Justice: The purpose of criminal justice is to punish the wrongdoer
. Punishment is one of the chief objective of the administration of criminal
justice. It can be defined as authoritative infliction of suffering an offence.
For this it is necessary that the punishment should be imposed by
someone in authority.
Distinction between civil and criminal justice
The two parts of the administration of justice differ from each other on
many points-
(i)They are administered by two different set of Courts. Civil justice is
administered by civil courts and criminal court.
(ii) There are two different forms and procedures for the administration of
these two classes.
(iii) The result of the proceedings is also different. A successful civil
proceeding results in a judgment for damages, or recovery of debts, or any
other like relief. On the other hand a successful criminal proceeding results
in the punishment of a wrong doer.
It should also be noted that one and same act may be both a civil wrong as
well as a crime. But generally the cases of this nature are treated as
exceptions to this rule.
Q. Discuss the history of the Natural school of jurisprudence. Explain the
reasons behind the revival of the Natural school in the twentieth century.
Ans- Natural law means those rules and principles which are considered to
have emanated from some supreme source,_ Various theories have been
propounded since very early time about the source, authority and relation
of these rules (natural law) with law (positive law). These theories proceed
from common ground that the source of these rules have come from God,
some find their source in nature, others say that they are the production of
reason.
Following is a brief discussion of the history of natural law. For
convenience in discussion and understanding, we divide it into four distinct
classes-
1. Ancient theories.
2. Medieval theories
3. Renaissance theories
4. Modern theories.
Ancient theories
In Greek- The Greek Thinkers developed the idea of natural law and laid
down its essential features. The unstability of political institutions and
frequent changes in law and govt in small city state of Greece made some
jurists to think that law was for the purpose of serving the interests of the
strong and was a matter of expediency. But the same conditions made
some other jurists to think on a different line. Some philosophers started
thinking of some immutable and universal principles. This gave them the
idea of natural law.
In Rome- In Rome stoics build up on the theory of Aristotle but transformed
it ethically. According to them the entire universe is governed by reason.
Men's reason is a part of the universal reason. Therefore when he lives
according to reason, he lives according to nature or lives naturally. It is the
moral duty of man to subject himself to the law of nature.
In India- Hindu legal system is perhaps the most ancient legal system of
the world. They developed a very logical and comprehensive body of law
at very early times.
According to Hindu view law owes its existence to God. Law is given in
'Shruti' and 'Smriti'. The king is simply to execute that law and he himself is
bound by it and if goes against this law, he should be disobeyed.
Medieval Theories
Catholic philosophers and theologians of the middle ages gave a new
theory of natural law. Though they too gave it theological basis, they
departed from the orthodoxy of early Christian fathers. Their views are
more logical and systematic.
Thomas Acquinas's view may be taken as representative of the new
theory. He defined law as an ordinance of reason for the common good
made by him who has the care of the community and promulgated. He
divided law into four categories-
a. Law of God
b. Natural law
c. Divine law
d. Human aw
Natural law is the part of divine law. It is that part which reveals itself in
natural reason.
Renaissance Theories
This period marks a general awakening and resurgence of new ideas in all
the fields of knowledge. Rationalism became the creed of the age. Various
factors combined together created force to overthrow the dominance of the
church. New theories supporting the sovereignty of the state were
propounded. These theories proceed from the supposition that a social
contract is the basis of the society. The concept of social contract is
associated with the Italian Marsilius of Padua. The concept is that in the
beginning man lived in the natural state. They had neither any govt nor any
law. Therefore, men entered into an agreement for the protection of their
lives and property. Thus, society came into existence.
Modern theories
In the 19th century the popularity of natural law theories suffered a decline.
In 18th century, the natural law reflected social, economic, and political
changes which had taken place in Europe. Reason or Rationalism was the
spirit of 18th century. A reaction against this abstract thought was overdue.
The problems created by the new changes and developments demanded
practical and concrete solution. Modern thinkers used to think there are no
absolute and unchangeable principles. On the other hand historical
research showed that the social contract was a myth. These forces caused
the decline of natural law in the 9th century.
Reason behind the revival in the 20th century
Towards the end of the 20th century a revival of the natural law theories
took place. There was various reasons for the revival of natural law. They
are-
First, a reaction against the 19th century legal theories which had
exaggerated the importance of positive law was due.
Second, it was realized that abstract thinking or a prior assumptions were
not completely futile.
The emergence of ideologies such as Fascism and Marxism caused
development of counter ideologies and thus contributing to the revival of
natural law theories.
Q. Explain Savigny's theory of Volksgeist. What are the main defects of
Savigny's theory?
Ans- Law, according to savigny's, is a rule of human action and conduct
sanctioned by national usage. It is always based on popular support and
approval. He held that at early law was customary, and the function of
legislation is merely to supplement and redefine custom. customary law is
a law as an expression of the general consciousness o right and not by
virtue of the sanction of legislator. According to him the nature of law
traced to history and social function.
Law develops like language: Law has a natural character:-ln all societies, it
is found already established like their language, manners and political
organisation. These all are stamped with national character. They are
natural manifestation of popular life and by no means the product of man's
free will. Law, language, customs and government have no separate
existence. Thus, the law, like language, developed with life of the people.
According to Savigny, "the evolution of law with the life and character of a
people develops with the ages and in this resembles language. As is law,
there can be no instance of rest, there is always movement, and
development of law is governed by the as a power of internal necessity as
simple phenomena. Law grows with a nation, increases with it, and dies as
its dissolution and is a characteristic of it.
Thus Savigny's theory can be summarized as follows:-
i. Law is found, not made. The growth of law is essentially unconscious
and organic process; legislation is, therefore, of subordinate importance as
compared with customs.
ii. Law is not universal in its nature. Like language, it varies with people
and age.
iii. Custom not only precedes legislation but it is superior to it law should
always conform to the popular consciousness.
iv. As law grows into complexity, the common consciousness is
represented by lawyers who formulated legal principles. But lawyers
remain only the mouthpiece of popular consciousness and their work is to
shape the law accordingly. Legislation is the last stage of law making and
therefore the lawyers or justice is more important than the legislator.
Concept of Volksgeist:- Volksgeist is a theory of law of Savigny. Here he
observed"in the earliest time to which authentic history extends, the law
will be found to have already attained fixed character, peculiar to the
people, like their language, manners and constitution. Many of these
phenomena have no separate existence, they are but the particular
faculties and tendencies of an individual, inseparable, united in the nature,
and only wearing the semblance of distinct attribute to over view.
Savigny emphatically laid down that law grows with growth and
development of people, it takes its strength from people and is extinct with
the nation loses its nationality. He summed up his idea as "All law is
originally formed in the manner to put it in ordinary but not quite correct
language, customary law is said to have been formed, that is first by
jurisprudence everywhere and not by arbitrary will of a law giver".
Defects/ Criticism of savigny's theory Savigny was criticized on a number
of grounds:
(i) National consciousness alone cannot make law, "in as much as every
custom has not the force of law. Before it assumes the form of law, it must
be immemorial and obligatory and should not be contrary to law or public
morality. The final authority is, therefore the state and the sovereign and
not the national consciousness.
(ii) Statute law overrides custom in the sense that the former can modify or
repeal the later. Statute law and customary laws are, therefore not
coordinate in authority or based on the national consciousness of the
people.
(iii) Gray observes that the great bulk of law in unknown to the people.
How then can it be the product of their common consciousness?
Q. Critically examine John Austin's Imperative theory of law.
Ans- Austin defined law as follows- "A rule laid down for the guidance of an
intelligent being by an intelligent being having power over him."
According to Austin, an indeterminate body is capable of commanding.
The question is whether we can discover a determinate person or body of
persons who can be regarded as having commanded the whole corpus of
the law. But if we go through history we shall never discover any moment
in history when such a person or group of persons existed.Characteristics
of Austin's theory
Following are the main three characteristics of his theory.
a. law has its source in sovereign authority.
b. Every law is the command of the sovereign
c. Command must compel a course of action.
The problem of 'law as a command' touches very largely on the nature of
duties. We know duties are essentially "ought" propositions, which are
expressed in the form of commands-you must' or 'you shall'. We know that
the association of the idea of command with law is a psychological one.
Each of us has past experiences or actual command situations, in which
actual command were issued to us in an imperative form. The result is
that, whenever we meet the common form, we tend to assume that an
actual command must lie behind it.
Austin himself was somewhat exercised by declaratory statutes, i.e those
which merely declare existing law, and by repealing statutes. Declaratory
statutes could be treated as repealing the earlier command while repealing
statutes may be said to create fresh rights and duties by their cancellation
of earlier one, and so be said to be command.
The question whether custom is to be treated as 'law' or not, caused Austin
a little trouble. To him custom was not law until it had been commanded by
the sovereign, either in the form of a statute incorporating it or a judicial
decision.
According to Austin's definition custom is clearly not law. A different
definition might be devised which would include it. Finally we must recall to
mind those rules which prescribe the effective way of exercising certain
powers e.g the rule that a 'will' must be witnessed by two witnesses. Austin
regarded these as commands.
Law and sanction- Duty command and sanction are interrelated in Austin's
theory. The power and purpose to inflict penalty for disobedience are the
very essence of a command. The person liable to the evil or penalty is
under a duty to obey it. The evil or penalty for disobedience is called
sanction.
Austin also marked that all the commands are not law, it is only the general
command, which obliges to a course of conduct is law. These general
commands as defined above are the proper subject of study of
jurisprudence. But according to Austin, there are three kinds of laws which,
though not command, are still within the province of jurisprudence. They
are-
i. Declaratory or explanatory laws- Austin does not regarded them as
commands, because they are passed only to explain laws already in force.
ii. Laws to repeal laws- These too are not commands but rather the
revocation of a command.
iii. Laws of imperfect obligation- These laws have no sanction attached to
them.
Now it is clear that in Austin's conception of law, such notions as justice or
morality have no place. The basis of law is the power of superior and not
the ethics or the principles of natural justice. Thus Austin stands in
regarding laws as the command of the sovereign.
Q. Write a critical note on the evolution of Jurisprudence. Put forward your
argument in favour ofJurisprudence as a dynamic science.
Ans- Although to some jurists, jurisprudence is the oldest science and to
others, the first of all the social sciences to be learn, yet it cannot be
denied that in the early stages, all sciences were lumped together and in
such a state of affairs jurisprudence could not have a definite fate. The
meaning that jurisprudence conveys today is the result of a course of
evolution.
The Jews came forward with their messianic ideals, but their contribution
although indirectly helped the legal system to grow, yet fail to fall strictly
into the province of jurisprudence.
Although the Greeks with their Jus Naturale (Natural law) — the father of
modern equity, laid the foundations of the legal thought on which Romans
built later, yet like Jews, for the Greeks there was no difference between
religion, morality and law.
In course of the evolution of jurisprudence from ancient time to today,
maximum credit deserves the Romans. This is because of-
a. For assigning to the science of jurisprudence an independent position.
b. For coining the name of the science itself.
c. For Emperor Justinian's Corpus Juris Civilis giving rules and principles
of law.
According to Holland for the beginning of the science which reduces
phenomena to order and coherence the world is indebted to the Romans.
The 13 th Century researched jurisprudence but as a branch of theology.
The writings of St. Thomas Aquinas are a clear proof of it. The mixture of
and legal science in the political field resulted in religious prosecutions.
It was in the 16 th century, the reformation period, that jurisprudence as a
science distinct from theology again raised its head.
Hugo Grotius, the father of international law maintained not only that states
were bound by the higher law in external affairs but that they could
exercise an unfettered authority of law making.
Hobbes, an English philosopher, found law as a command, and thus the
states were entitled to unquestionable obedience.
But even in the 17th century, Blackstone maintained that the law of God
was superior to the laws made by states. This view, however, lost its
ground after its criticism by Bentham.

In the evolution of jurisprudence, Fridemenn observed that before the 29th

century, legal theory was essentially a by-product of philosophy, religion,
ethics and politics. The great legal thinkers are primarily philosophers,
churchman, politicians. The shift from philosopher, or politicians to lawyer's
legal philosophy is of recent date. It followed a period of great development
in juristic research, techniques and professional training. The era of legal
philosophy arises mainly from confrontation of the professional lawyer in
his legal work with problems of social justice.
Jurisprudence as a traditional British concept and as understood by 19th
century English jurists, is a systematic study of positive law. Its boundaries
have gradually expanded and have come to include philosophy of law also.
Thus modern jurisprudence is the result of continuous evolution and
development of exercising legal thoughts and analyzing, mixing with it
other distinct branches of knowledge in different places from time to time
by eminent personalities.
Jurisprudence as a dunamic science
The society we live in is dynamic in nature. So law changes with the
changes in the society. Hence jurisprudence is a subject dealing with ever
changing ideas. Thus jurisprudence is not static, rather it is dynamic. It has
been progressing with the
growth of law.
In the words of Savigny "law like language stands in organic connection
with the nature and character of the people and evolves with the people."
So jurisprudence which is the science of law progresses with the growth of
law. As law changes from time to time according to the requirement of a
specific period of a society hence jurisprudence also changed itself.
In the present day of society, the meaning assigned to a subject must be
governed by its use and purpose to be fulfilled. Thus the expression
'jurisprudence' may be taken to mean outlook on the law as it stands in
relation to other fields of knowledge.
Thus jurisprudence is a dynamic science as other branches of science
since it is ever changing with the change in time, society and law.
Q. Critically examine Jeremy Bentham's utilitarian theory. Compare
Bentham 's positivist theory with Austin's theory.
Ans- Jeremy Bentham of Analytical school heralded a new era in the
history of legal thought. He laid the foundation of positivism in the modern
sense of the term. His contribution to legal theory is epoch making. The
transition from the peculiar brand of natural law doctrine to the rigorous
positivism of Bentham represents one of the major developments in the
history of modern legal theory.
Bentham's definition of law
He defined law as follows- "A law may be defined as an assemblage of
signs declarative of a volition conceived or adopted by the sovereign iin a
state, concerning the conduct to be observed in a certain case by a certain
person or class of persons, who in the case in question are or are
supposed to be subject to his power, such volition trusting for its
accomplishments to the expectations of certain events which it is intended
such declarations should occasion be a means of bringing to pass, and the
prospect of which it is intended should act as a motive upon those whose
conduct is in question.
Utilitarian theory of Bentham
Bentham's legal philosophy is called utilitarian individualism. He was an
individualist. He said that the function of the law is to emancipate the
individual
from the bondage of restraint upon his freedom. Once the individual is
made free, he himself shall be looking after his welfare. In this way, he was
supporter of laissez fair principle of economics which means non-
intervention (or very less) of govt in economic matters.
He was an utilitarian also. According to him the end of legislation is the
greatest happiness of greatest number. His philosophy is as follows-
Nature has placed man under the empire of pleasure and pain. We owes
to them all our ideas, we refer to them all our judgements and all the
determination of our life. He who pretends to withdraw himself from this
subjection knows not what he says. His only object is to seek pleasure and
to shun pain. These eternal and irresistible sentiments ought to be the
great study of the moralist and the legislator.
The purpose of law is to bring pleasure and to avoid pain. Pleasure and
pain are the ultimate standards on which a law should be judged. Thus the
consideration of justice and morality was greatly ignored by him. He was
the supporter of the maxim'Obey punctually, censure freely'.
Criticism o Bentham's theory
Bentham's theory has its weaknesses. According to Friedman, the main
weakness of Bentham's work derives from two shortcomings. The first one
is Bentham's abstract and doctrinaire rationalism which prevents him from
seeing man in all his complexities, in his blend of materialism and idealism,
of nobility and baseness, of egoism and altruism. This leads Bentham to
an overestimate of powers of the legislators and underestimate of the need
for individual discretion and flexibility in the application of law.
The second fundamental weakness of Bentham's theory was his failure to
develop clearly his own conception of the balance between individual and
community interest. Many of his propositions are neither convincing nor
prove true in the practical application. According to him, the interest of an
unlimited number of individuals shall be automatically conducive to the
interest of the community as the freedom of enterprise will automatically
lead to greater equality. But it gave just the reverse result when it was put
in practice later on. In the same way pleasure and pain alone cannot be
the test to judge the law.
Bentham on one hand emphasised the analysis of law and on the other
hand proposed the ends also that the law should pursue. After Bentham,
these two sides were not taken together. Some took only analysis and they
had nothing to do with the ends of law. Others concentrated only on the
ends of law and ignored analysis. A comprehensive approach on the line
of Bentham could not be made.
According to Bentham, the aim of the legislation was only to remove
shackles from the individual's freedom and provide him opportunities for
his self-progress. But the legislation in later time was used to restrict the
individual's freedom in economic matters.
Q. Rights and Duties are necessarily correlative. Elucidate. Add a note on
Austin's concept of absolute duties.
Ans- Rights and duties are the very important elements of law. The
administration of justice, in most part, consists of the enforcement of rights
and fulfilment of duties. Rights and duties are correlated to each other in
such a way that one cannot be conceived of without the other. In other
words, the existence of the one depends on the existence of the another,
as there can be no child without a father and no father without a child. A
right is always against someone upon whom the correlative duty is
imposed. In the same way a duty is always towards someone in whom the
correlative right is vested.
Thus, when "A" has a right to recover a debt from "B", "B" owes a duty
towards "A" to pay the same. Similarly, if "X" and "Y" have entered into an
agreement and "Y" has broken it, in "X" lie the right and on Y the duty to
make good the loss caused by the breach of the contract.
On the question whether rights and duties are correlated , there is
difference of opinion- some are of the opinion that rights and duties are
correlative while some feel that some duties are absolute i.e., without a
right.
Gray says that right is correlative to duty, where there is no duty there can
be no right.
According to Holland every right implies the active or passive forbearance
by others of the wishes of the party having the right. The forbearance on
the part of the other is called a duty.
According to Keeton a duty is an act of forbearance which is enforced by
the state in respect of a right vested in another and breach of which is a
wrong. Every right implies a co-relative duty and vice versa.
But there are some jurists who do not agree to this view. They say that
there can be duties without a corresponding right. They call such duties as
absolute duties. Austin is the supporter of this view and he says that there
are four kinds of absolute duties.
Professor Allen also supports the view of Austin and denies that there are
correlative rights in the state. According to Austin the right-duty relationship
between two individuals can exist only when there is a political superior to
protect and enforce it. Without this political superior there can be no right-
duty relationship.
It is submitted that the views of Austin and Allen are not correct. Keeton
does not accept the view of Austin. He said the rights and duties are
always correlative, there cannot be such thing as absolute duty. According
to Salmond also rights and duties are correlative. If there are duties
towards the public, there are rights as well. There can be no duty unless
there is some person to whom that duty is due.
The modern view, therefore, seems to disregard Austin's thesis with regard
to absolute duties, the consensus of opinion being that rights and duties
are always correlative.
Q. Define the term 'right' and 'duty'. Briefly discuss the analysis of legal
rights and kinds of legal rights.
Ans- 'Right' in the ordinary sense of the term means a number of things,
but it is generally taken to mean the standard of permitted action within a
certain sphere. Thus a legal right is an interest recognized and protected
by a rule of legal justice — an interest, the violation of which would be a
legal wrong, done to him whose interest it is, and respect for which is a
legal duty.
Holland defines right as a capacity residing in a man of controlling with the
assent and assistance of the state, the actions of others.
On the other hand a legal duty is a legal obligation. A man is said to have a
duty in any matter when he is under a legal obligation to do or not to do
something. A person owes certain duties to others by reason of his status
or position in the society as a servant is under obligation to serve his
master.
According to Jenks, there are three kinds of duties. They are-
I. Universal duties- binding on all normal members of the community.
2. General duties- binding on all classes of normal persons not voluntarily
formed.
3. Particular duties- binding only on person who have voluntarily
undertaken them.
Following are the different kinds of legal rights-
1. Antecedent and remedial riqhts- When a right exists independent of any
other right and for its own sake, it is an antecedent right. When another
right is joined to it then so joined right is called a remedial right. For
example, 'A' has a right that nobody should defame him. It is an
antecedent right. If a person defames 'A', 'A' has a right to receive damage
from him. This is his remedial right.
2. Perfect and imperfect riqht- A perfect right means a right which has a
correlative duty that can be legally enforced. Generally when law
recognizes a right, it prescribes a remedy also and when the right is
violated, it enforces it. On the other hand an imperfect right is that right
which although recognized by law, is not enforceable. In such cases the
limitation does not extinguishes the right but bars the remedy only. The
claim is valid in other respects, but it cannot be enforced.
3. Positive and neaative right- A positive right is that right which has a
correlative positive duty. In case of positive right, the person having the
right can compel the person upon whom the correlative duty is imposed to
do some positive act.
The scope of negative right is only that the person having the right shall
not be harmed. Law can easily enforce negative rights that positive rights,
that's why the number of positive rights is fewer than the negative rights.
4. Riqht 'in rem' and riqht 'in personam'- A 'right in rem' is one which is
available against the whole world. A 'right in personam' is one which is
available against a particular individual only.
A right 'in rem' is a right vested in some determinate person and available
against the world at large. Thus one's right not to be defamed or assaulted
etc are rights available against the whole world.
The very opposite if a right 'in rem' is a right available only against some
determinate person or body and in which the community at large has no
concern.
5. Proprietary and personal right- Proprietary right means a person's right
in relation to his own property. Personal rights are rights relating to status
and that arising out of contract. Thus proprietary rights are those rights
which have some economic significance, which constitutes a person's
estate or property.
Personal right relate to one's well being and not to his wealth, they
constitute a person's status or personal condition. Rights of infants, slaves
or lunatics etc are personal rights.
6. Riqhts in 're propria' and riqhts in 're aliena'- This classification of rights
is more or less a classification of the proprietary rights. Rights in 're propria'
means the right in one's own thing. Rights in 're aliena' are the rights in the
things of other. This can also be termed as encumbrances, i.e,
easementary rights. For example my right to pass over the land belonging
to another or my right of light and air through the house of another and so
on.
7. Vested and contingent right- Another division of right is vested and
contingent. Every right is created by a title. The title comes by the
happening or not happening of certain facts. Therefore, this happening or
not happening of certain facts affects the nature of right. A right is a vested
right when all the facts happening or not happening of which it is
necessary to create or vets the right, have happened or not happened. If
only some of such facts have occurred then the right is a contingent right.
It would become vested when all the facts have occurred.
Q. Distinguish between the basic ideas of American realists and
Scandinavian Realists. Write a note on the contribution of Realist towards
further development of jurisprudence.
Ans- The realist approach to law is a part of the sociological approach.
That is why it is sometimes called as the left wing of sociological or
functional school. It differs from sociological school in that this school
neither studies the social effect of law nor it starts with any a prior like
balance of interests or social engineering.
There are two trends of the realist school. One is the American realist
school and the Other one is the Scandinavian Realist school. American
realism is the product of a pragmatist and behaviourist approach to social
institutions. Scandinavian realism is a philosophical critique of the
metaphysical foundations of law. They have put forth a philosophical
justification.
Following is a general outline of the main points of differences and / or
comparisons of the American realist school and the Scandinavian realist
school.
1. The Scandinavian realist share with sociological jurist like Pound a
weakness for a priori assertions, while at the same time insisting on the
use for basing the law on the needs of social life. But the Scandinavian link
this attitude with varying degrees of hostility to conceptual thinking, which
they stigmatize as metaphysical or ideological. The American Realist, on
the other hand, are not much interested in general theorizing about law
and although they may share with the Scandinavian the feeling that rules
do not decide cases, they do not altogether reject the normative aspect of
legal rules.
2. American Realists are mainly interested in the practical working of the
judicial process whereas the Scandinavians are more concerned with the
theoretical operation of the legal system as a whole.
3. Although the Scandinavians are the most extreme empiricists, it is the
Americans who primarily stress the need for factual studies in working out
proper solutions for legal problems.
4. The Scandinavian movement, for all its positivism, remains essentially in
the European Philosophical tradition, whereas the American bears many of
the characteristics of English empiricism.
Contribution of Realist school towards further development of
iurisprudence
The realist school, whether American or Scandinavian, while studied jointly
as a single philosophy based on the realist movement, can be found that
they have done much for furtherance of the modern concept of
jurisprudence. This may be summed up as follows-
1. The realist introduces studies of case-law from a point of view which
distinguished between rationalization by a judge in conventional legal
terminology of a decision already reached and the motivations behind the
decision itself.
2. The enquiry into the motivation behind decisions opened up a further
line of investigation.
3. Jurists of this school study the different results reached by the courts
within the frame work of the same rule or concept in relation to variations in
the facts of the cases.
Q. Define different kinds of person. Explain the term 'lifting the veil' and the
circumstances under which 'lifting the veil' is perrnissible.

Ans- The term 'person' or 'personality' has been used in many different
senses from time immemorial. In the philosophical or moral sense the term
has been used to mean the rational substratum or quality of human being.
In law the word 'person' is given a wide meaning. It means not only human
being but also associations as well.
Persons can be of two types-
1. Natural person, and
2. Legal or artificial person
3. Natural person- A natural person may be defined as a normal human
being. The first necessity for a normal human being to be a legal person is
that he must be recognised as possessing sufficient status to enable him
to possess rights and duties. Another essential pre-requisite for normal
personality is that the individual should be born alive. Further a normal
human being should possess human characteristics.
Legal person- A juristic or legal person is one to whom law attribute legal
personality. Normally legal personality is granted to all human beings.
Legal personality, being an artificial creation of the law, may be conferred
on entities other than individual human beings. The law, in creating legal
persons, always does so by personifying some real thing. Corporations are
undoubtedly legal persons and the better view is that registered trade
unions and friendly societies are also legal persons, though not regarded
as corporations.
Legal status of child in mother's womb (unborn person)
Unborn children are persons in the eye of law. Property can be transferred
in favour of unborn children. Unborn children become contingent owner.
The ownership becomes vested in them on their birth. In Hindu law, a
child, in womb is considered in existence and he inherits the property if he
born alive. If a partition takes place among the co-partners while the child
is in womb, a share is to be reserved for him. If the share is not reserved
then the partition would re-open and the new born child would take the
same share which he would have taken if he was born before the partition.
If a pregnant woman is awarded death sentence, the execution of the
sentence shall be postponed till she delivered the child. In English law,
killing of a child amounts to murder only when the child is completely born
alive. The offence is the same where the injuries are inflicted while the
child is in the womb, but he is born alive and dies afterwards due to the
injuries so inflicted. In India the law is different. The causing of the death of
child in the mother's womb is not homicide. But it may amount to culpable
homicide to cause the death of a living child, if any part of that child has
been brought forth, though the child may not breathed or completely born.
Leqal status ora dead man
The rights are generally created at birth and extinguish at death. Dead
man cannot have any interest, nor are they capable of any acts. Hence
dead man are not persons in the eye of law as their personality ceases
with their lives. But the law, in certain matters, recognises and protects the
desires and interests of the deceased. There are three rights in this
respect- about the deceased's body, his reputation and his estate.
The testaments of the dead are respected and enforced by law. This does
not mean that the dead have a right to have their wills enforced. The will is
enforced in the interest of the living legatees to whom property is
bequeathed. If the Will does not contain any disposition of property in
favour of any human legatee, it will not be enforceable. This shows that
right to have a Will enforced is not that of the testator but only that of the
living legatees.
Legal status of Animal
Animal's are not persons in the eye of law and therefore, they are not
subject to legal rights and duties. Rather they are regarded as things. In
ancient times, animals for some purposes, were treated as persons. In
Ancient Greek law, animals and trees were tried in courts for their wrongful
acts. In Roman law also, in some cases, inanimate objects were
considered as having rights and subject to duties. In ancient India also, a
number of instances are there where animals were sued in courts.
But in modern times, no legal system recognises animals as persons.
Therefore, they have no rights and liabilities. The human acts which are
considered by law as wrongs against animals are really speaking , not
wrongs against the animals but are wrongs either against the person who
owns that animal or against the society. An animal cannot own property.
There are only two cases in which they may be thought to possess legal
rights-
I. Cruelty to animal is a criminal offence, and
2. A trust for the benefit of particular classes of animals as opposed to one
in favour of individual animals is valid and enforceable as a public and
charitable trust.
Lifting the veil and when it is permitted
The law is complicated by the fact that the courts do not always take
account of the distinct personality of a company. It renders impossible to
any consistent theory as to the nature of personality and emphasizes more
strongly than anything else the need to proceed empirically in
understanding the law. The courts do in some cases lift the veil of legal
personality in order to detect and redress frauds upon creditors, the
evasion of obligations or statutes or to suppress tax evasion.
The court mau lift the veil of personalitu for a number of reasons-
Firstly, it may be done to ascertain whether a company is to be treated as
an enemv company in times of war.
Secondly, public policy may make it necessary to lift the veil of a legal
personality to look at the realities of a situation.
Thirdly, it may become necessary to disregard corporate personality in
order to prevent fraud.
Fourthly, the legislature can forge a sledgehammer capable of cracking
open the corporate shell and the legislature has done so in a variety of
statutes, mainly to prevent the evasion of tax and other forms of revenues,
Finally, there are various other cases in which the courts have lifted the
veil for purposes which can only be described compendiously as based on
justice and convenience.
Q. Explain Roscoe Pound's concept of interests and social engineering.
What are the defects of Roscoe Pounds' theory?
Ans- Roscoe Pound is considered to be the American leader in the field of
sociological jurisprudence. It is in the writings of Roscoe Pound that the
most influential exposition of the American Sociological viewpoint is to be
found. Pound concentrates more on the functional aspects of law, that is
why some writers name his approach as functional school. For pound the
law is an ordering of conduct or so as to make the goods of existence and
the means of satisfying claims go round as far as possible with the friction
and waste.
pound's main thesis is that 'the task of law is social engineering'. By social
engineering Pound tried to mean a balance between the competing
interests in society. He lays down a method which a jurist should follow for
social engineering. He should study the actual social effects of legal
institutions and legal doctrines, study the means of making legal rules
effective, sociological study in preparation of law-making, study of judicial
method, a sociological legal history and the importance of reasonable and
just solutions of individual cases.
pound enumerates various types of interests which are to be protected by
law. He classifies them under three heads- Private interest, Public interest
and Social interest.
Private interest is to be protected bu the law are —
a. The individual's interest of personality. These include his physical
integrity, reputation, freedom of volition and freedom of conscience.
b. Individuals' interests in domestic relations. These include marriage,
relations of husband and wife, parents and children and claims to
maintenance.
c. Interests of substance. These include proprietary rights, inheritance and
testamentary succession, occupational freedom.
Public interests are-
a. interest in the preservation of the state as such, and
b. interest of the state s the guardian of social interest.
The social interest deserving legal protection are-
a. interest in the preservation of peace and order and maintaining general
security
b. interest in preserving social institutions like marriage and religious
institutions.
c. Interest in preserving general morals by counteracting corruption,
discouraging gambling etc.
d. Interest in conserving social resources.
e. Interest in general progress which is to be achieved by freedom of
education, freedom of speech and expression etc.
f. Interest in the promotion of human personality.
Logic, history, custom, utility and accepted standards of right conduct are
the forces which singly or in combination shape the progress of the law.
When of these forces dominate in any case must depend largely upon the
comparatively importance or value of the social interest is that law shall be
uniform and impartial. There must be nothing in its action that savours of
prejudice or favour or even arbitrary whim or fitfulness.
Interest is the main sub •ect matter o law
pound's theory is that interest sis the main subject matter of law and the
task of law is the satisfaction of human wants and desires. It is the duty of
law to make a valuation of interest, in other words to make a selection of
socially most valuable objectives and to secure them. At the same time the
function of law is to strike a balance between stability and change.
De ects Criticism o Roscoe Pound's theo
A general criticism against Pound's theory is regarding his use of the word
engineering, because it suggests a mathematical application of the
principles of social needs.
Another criticism against his theory is that emphasis on 'engineering'
ignores an important part of law which developed and evolves in the
society according to social needs and the law simply recognises or
approves it.
Friedman criticised Pound for his classification of interests.

Q. Discuss Kelsen's pure theory of law.

Ans- The Pure theory of law which is also known as the Vienna School of
legal thought was propounded by Hans Kelsen, a professor in Vienna
University, Austria. Though the first exposition of the theory took place in
1911, it came in full bloom in post-war

Europe. The national and international conditions at that time may throw
light on the basis and necessity of this approach.
Kelsen's theory is in some respect close to the theory of Austin. Both point
out the coercive character of law and both are positivists.
The pure theory of law
According to Kelsen, law is a 'normative' science but law norms have
distinct features. They may be distinguished from science norms on the
ground that norms of science are norms of being or is while the law norms
are 'ought' norms. Law does not attempt to describe what actually occurs
but only prescribes certain rules. It says if one breaks the law, then he
ought to be punished. These legal 'ought' norms differ from 'morality'
norms in this respect that former are backed by physical compulsion which
the latter back, but Kelsen does not admit the command theory of Austin
as it introduces a psychological element into the definition of law which
Kelsen avoids.
The science of law to Kelsen is the knowledge of hierarchy of normative
relations. He builds on Kant;s theory of knowledge and extends this
theoretical knowledge to law also.
The task of legal theory is to clarify the relation between the fundamental
and all lower norms, but not to say whether this fundamental norm itself is
good or bad. It represents within the realm of legal theory the quest for
pure knowledge in its most uncompromising sense, for knowledge free
from instinct, volition, desire. Thus, the Pure Theory on the one hand,
avoids any discussion of ethics or natural law and on the other hand it
reacts against the modern sociological approaches which go to widen the
boundaries of jurisprudence to a very large extent. Kelsen attempts to
establish universal principles in his legal theory, and therefore, he may be
said to be in favour of general jurisprudence.
Following are the essential foundations of Kelsen's Pure theory-
1. The aim of a theory of law, as of any science, is to reduce chaos and
multiplicity to unity.
2. Legal theory is science, not volition. It is the knowledge of what the law
is, not of what the law ought to be.
3. The law is a normative not a natural science.
4. Legal theory as a theory of norms is not concerned with the
effectiveness of legal norms.
5. A theory of law is formal, a theory of way of ordering, changing contents
is a specific way.
6. The relation of legal theory to a particular system of positive law is that
of possible to actual law.
Followin are the eneral im lications of the Pure theo of Kelsen

I. Law and state not two different things.

2. No difference between public and private law.
3. No difference between natural and juristic person.
4. No individual rights.
5. Supremacy of international law.

The concept of 'Grundnorm'

Every legal act relates to a norm which gives legal validity to it. The legal
norm derives its validity from an external source, that is from a particular
'ought norm' or sanction. Every legal norm gains its force from more
general norm which backs it. Ultimately that hierarchy relates back to an
initial norm or hypothesis called 'grundnorm'. The grundnorm is the starting
point in a legal system. From this base a legal system broadens down ion
gradation becoming more and more detailed and specific as it progresses.
In every legal system there is always a grundnorm although its forms are
different in different legal systems. For example, in Britain the grundnorm
is Crown in parliament and in USA it is the Constitution. The grundnorm
can be recognised by the minimum effectiveness which it possesses. But
any discussion about the nature and origin of grundnorm is not within the
province of Pure Theory of Law.

Q. 8. (a) Explain the imperative theory of law and dwell On its merits and
demerits.
Examine the concept of law as a 'command of the sovereign'. Did Austin
define 'Command' and 'Sovereign' and conceived 'Sovereignty, ? How
much of the Austinian theory is likely to endure in modern times.
(b) “A statement of Law is nothing more than a prediction of what courts
will decide.” Do you agree ? Give reasons for your answer.
Ans. (a) According to the imperative theory of civil law, which was
expounded by AUSTIN, civil law is essentially and throughout its whole
compass, nothing but imperative law.
AUSTIN'S theory of law can be deduced from the following definition of law
given by him in his “Lectures on Jurisprudence”.
”Positive law consists of commands set as general rules of conduct by a
sovereign to a member or members of the independent political society,
wherein the author of the law is supreme”.
From the above definition, the imperative theory of law may be reduced
into the following constituent elements—
1. Sovereignty—By sovereign, AUSTIN means the supreme authority who
is obeyed by the bulk of the members of a political society. Such s
ereignauthority is regarded by AUSTIN as the source of law. Nothing is aw
if it is not the sovereign's command. In AUSTIN'S own words, “Every
positive law prevailing in community as creature of the sovereign or state,
having been established immediately by the monarch or supreme body, as
exercising legislative or judicial functions, or having been established
immediately by a subject individual or body, exercising rights or powers of
judicial or direct legislation, which the monarch or supreme body has
expressly or tacitly conferred”.
2. Command—It is an expression of a wish by the sovereign that the
subject shall do or refrain from doing something. It is a general command
which obliges the subject to do not some isolated act but to a course of
conduct It is in this sense that the command is a general command. Such
a general command emanating from the sovereign and controlling the
conduct of a subject or subjects is a positive law.
3. Sanction—AUSTIN defines a sanction as a contingent evil, which
will be inflicted on a subject who neglects to obey the rule of conduct set
by the sovereign. The idea of sanction is implicit in the conception of law
as a conunand.
Criticism to Austinian Concept of Law—Austinian concept of Law that law
can be followed by people only when it is in the form of commands of
Sovereign has been criticised at length by various persons. Some of the
important criticism to this theory are as under
( l ) If Austinian concept of Law is concluded then result comes that (I)
Every command is a law, and (ii) Every law is a Command, but the critics
have been of the view that both these conclusions are not correct because
neither every command is a law nor every law is a command. There are
military

commands of Sovereign but they are not law, similarly there are various
laws which are ofpermissive nature (e. g. Law of franchise) where there is
no sanction or command.
(2) Personal Laws I.e. Hindu Law or Mohd. Law are not the commands of
any sovereign but they are laws.
(3) If theory of Austin is followed into then in the country there will be only
one type of law I.e. Penal Law.
(4) International Law is not a law according to this theory while
International law is a perfect law.
(5) Constitutional Law is not covered by this definition while constitutional
law is the basic Law.

(6) SAVINGNY said that law is not a Command of Sovereign, it is not

some such thing which is made by some one but it is to be found ; it is in
unconscious growth, it is something which grows with the growth of the
society; which develops with the development of the society and which
dies with the death of the society.
(7) SIR HENRY MAINE who has been an important author ofAncient Law
said that the theory of Austin is neither comprehensive nor historically
correct.
(8) SALMOND who has been the propounder of Ethical School criticised
Austinian concept of Law at length. He said that :—
(i) Austin unduly impressed upon imperative ascept.
(ii) He completely ignored object of Law and ethical values i.e. the idea of
Justice, Equity and good conscience.

(iii) He ignored the idea of administration of Justice.

(iv) He considered law in concrete sense and not in abstract sense.

Inspite ofthese and so many other criticisms, Austinian concept of Law has
unique place in the Legal theory and his conceét is considered as the
basis concept and a concept which is basis of all other conce ts of Law.
(b) SALMOND was of the view that main object of law is administration of
justice and justice is administered by Courts (Tribunals) and Austin
completely ignored this aspect According to SALMOND, to know the
nature of law we have to go to the Courts of justice and not to the
Sovereign. It is the verdict given by
the Courts of justice and not the command that commands of Sovereign of
Sovereign which may has take binding the force of law. SALMOND
etmphasized shape of law but those commands of Sovereign only are not
all-in-all.
Precedents and the principles of equity,justice and good conscience also
result in law. Therefore Salmond was of the view that Courts (Tribunals)
should find a proper place in the definition of Law. SALMONID defined law
as “the body of principles recognised and applied by the State through its
tribunals (Courts). for the administration of justice.” Thus through this
definition, Salmond tried to rernove the defects in the Austinian theory of
law because according to Salmond all laws from whatever source they
come are recognized and acted upon by the Courts ofJustice and Courts
do not recognise any rule which does not aniount to law.
By quotation in question, we simply mean that statement oflaw is nothing
but a prediction of what Couns will decide. In the administration of justice it
is not the whim of the presiding officer (Judge) which is to prevail but the
decision is to be in accordance with the provisions of law. In the words of
SALMOND himself”Law is law, not because the Courts are under any legal
obligation to observe it but because they do in fact observe it. No rule that
is not thus in fact observed in accordance with the established practice of
the courts is a rule of law, and conversely, ever' rule that is thus in fact
observed amounts to a rule of law. It is to the Courts of justice, and to them
alone, we must have recourse if we wish to find out what rules are rules of
law and what are not”
But one should not forget that there is other side of the picture also. The
Courts are interpreters of law and the Courts may misinterpret a statute
and in that case the decision of the Court will not amount administration of
justice. PROF. GRAY rightly noticed that position. He said that the law of a
great nation means -the opinion of half a dozen old gentlemen, for if those
half a dozen old gentlemen form the highest, judicial tribunal of a country,
then no rule or principle which they refuse to follow is a law in that
country.”
From the discussion as above it can be concluded that undoubtedly judge
play an important role in the administration of Justice and Courts are to be
given due weightage in the development of law as the statement of law is a
prediction of what Courts will decide, but we should keep in mind the fact
that law is law even before its recognition by the Courts of Law.