WHAT IS ADMINISTRATION OF JUSTICE?

EXPLAIN ITS
KINDS. DISTINGUISH BETWEEN CIVIL AND CRIMINAL
JUSTICE.
INTRODUCTION:-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?
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 doesnt 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 dont 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.
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
purchasers 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 repropia means the right in ones own thing whereas right in
re-aliena means the right in the things of others.
4 Law is the command of sovereign comment. Critically
examine the main features of Analytical School? OR
Discuss the essential characteristics of the Analytical
School?
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

impropriety so called
A.1) Law of God

(b) Law

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 (AUSINS 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 cant 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 cant 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.
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 ones
own hands. The rule is that none has the power/right to
take anothers 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.
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
recognitaion
No executive
Change

Rule

of

Rule

of

No court
Adjustice

Rule

of

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 HARTS THEORY

Sir HLA Harts 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.
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 ones friends purposes, ones 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?
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.

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 socialengineering 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?
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 Bharis 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 safeguarded 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 POUNDS 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 Pounds
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.

POUNDS 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.
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).
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 SOVEGINGs THEORY
Savignys 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?
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 Austins command theory. Critically
examine the view of Kelson given under pure theory of
Law?
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 Austins command theory because in
Kelsons 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 Kelsons 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 Kelsons 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?
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 DUGUITS 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.
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 ones

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.
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 countrys 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.
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 alongwith 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

Secondary Duties

Primary and

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?
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.